text:
    A11A2105.
    MAULDIN v. THE STATE.
    (721 SE2d 182)
   Ellington, Judge.

A Bartow County jury found Danny Mauldin guilty beyond a reasonable doubt of five counts of child molestation, OCGA § 16-6-4. On appeal from the denial of his motion for new trial, Mauldin contends that the trial court erred in admitting similar transaction and other evidence, in excluding certain evidence, in denying his motions for a mistrial, and in instructing the jury. He also asserts that he received ineffective assistance of counsel at trial and that the evidence was insufficient to support his convictions. For the reasons explained below, we affirm.

Viewed in favor of the jury’s verdict, the record shows the following facts. In 2001, 53-year-old Danny Mauldin was the choir director at the 14-year-old victim’s church. The victim often ate dinner and spent the night with Mauldin and his wife at their home, and they attended church together. In the spring or early summer of 2001, however, the Mauldins separated, and Mrs. Mauldin moved out of their home. That summer, Mauldin decided to move, also, and he repeatedly asked the victim, and sometimes her 13-year-old sister, to come to his house so they could help him pack up his belongings. On several occasions, the victim spent the night alone with Mauldin at his house. According to the victim, at some point that summer, Mauldin kissed her on the mouth. Over the next few weeks, Mauldin progressed from kissing her to fondling her breasts and genitals, exposing himself, placing her hand on his penis, and, eventually, having sexual intercourse with her. Mauldin told the victim that he loved her, that their conduct was okay because she would be 18 years old soon, and that she should not tell anyone else because it was none of their business. These encounters usually happened while the victim and Mauldin were alone at his house, but both the victim and her sister testified that, on one occasion, the sister walked into Mauldin’s bedroom and saw him and the victim lying close together in bed under a blanket. Although Mauldin never molested the victim’s sister, he asked her one time, while they were alone at his house, to “sleep” with him. After the sister refused, Mauldin made no further advances toward her.

In August 2001, Mauldin started dating a woman that he met at church. Shortly thereafter, he stopped inviting the victim and her sister to his home, and the molestation of the victim stopped. Over the next two months, the victim told her aunt and her church’s pastor about the molestation. Her aunt told the victim’s mother, who talked to the victim and then reported the molestation to the Department of Family and Children Services (“DFCS”); DFCS notified the police.

The victim underwent a sexual assault exam in October 2001; the results revealed no evidence of assault, which the examining physician testified was not unusual given the time that had elapsed since the alleged molestation and the victim’s description of the acts of molestation. A police detective and a DFCS employee interviewed the victim on October 11, 2001, and the audiotape of the interview was played for the jury at trial without objection. The detective also interviewed the victim’s mother and sister, her pastor, and, eventually, in January 2002, Mauldin. During his interview, which was recorded and played for the jury at trial, Mauldin denied any inappropriate contact with the victim, but asserted that, if there had been any such contact, it had been initiated by the victim, whom he described as a “habitual liar” with mental and emotional problems. Mauldin was subsequently arrested and charged with five counts of child molestation.

At trial, in addition to the above evidence, the State showed that, during the summer of 2001, Mauldin purchased a dress and a pair of shoes for the victim. The State also showed that, at some point after the molestation stopped, the victim wrote a letter to Mauldin professing her love for him; although she never mailed the letter, her mother found the letter in her bedroom. Mauldin’s defense was based upon his claim that the victim was a habitual liar with serious mental and emotional problems who had given so many inconsistent statements about what she claims had occurred that she should not be believed.

1. Mauldin contends that the evidence presented was insufficient to support his convictions, arguing that there were “glaring inconsistencies” between the victim’s statements at the time she reported the molestation in 2001, when she was a 14-year-old girl, and her testimony at his 2009 trial. According to Mauldin, these inconsistencies, combined with the victim’s “convenient memory loss” concerning certain facts, require a finding that no reasonable jury could have found the victim’s testimony to be credible. Thus, because she was not credible and the State presented no physical evidence to support her allegations, his convictions must be reversed due to insufficient evidence.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citation and punctuation omitted.) Knight v. State, 311 Ga. App. 367, 367 (1) (715 SE2d 771) (2011). It is axiomatic that

it is the function of the jury, not this Court, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, a jury is authorized to believe or disbelieve all or any part of the testimony of witnesses. Ultimately, as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Id. Moreover, “the victim’s testimony alone is generally sufficient to establish the elements of child molestation.” (Citation omitted.) Id. See also OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

In this case, the acts of molestation took place when Mauldin was alone with the victim, so there were no eyewitnesses who could provide direct testimony about what occurred. Even if uncorroborated, however, the victim’s testimony was sufficient to support Mauldin’s convictions on each count as indicted. Further, as noted above, the victim’s sister testified that, during one visit to Mauldin’s home, she saw the victim and Mauldin lying close together under the covers on his bed; that testimony corroborates the victim’s testimony about the same incident.

Consequently, because the victim’s testimony was legally sufficient to support Mauldin’s convictions, and because the jury, alone, was authorized to judge the credibility of the victim’s testimony, Mauldin’s challenge to the sufficiency of the evidence must fail.

2. Mauldin argues that he received ineffective assistance of his trial counsel due to counsel’s failure to object to (a) a witness’ reference to his (Mauldin’s) failing polygraph examination results during a Jackson-Denno hearing, and (b) inadmissible and prejudicial statements in the victim’s interview.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003).

(a) The record shows that the court conducted a Jackson-Denno hearing to determine the admissibility of Mauldin’s January 2002 non-custodial interview statements to the detective investigating the victim’s allegations. During the hearing, the detective testified that, after she had interviewed the victim and other witnesses, she called Mauldin and asked him to come in for an interview. The detective’s hearing testimony and the interview transcript both show that, during the interview, the detective specifically told Mauldin that she was investigating the molestation allegations, that he was not under arrest, and that he could leave at any time if he no longer wished to answer questions. The record also shows that Mauldin voluntarily sat for the interview and that he not only answered the questions he was asked, but also volunteered much additional information in a rambling narrative, which included his frequent references to the victim as a “good little girl” who was also a “habitual liar” with a “real bad problem.”

During the Jackson-Denno hearing, the detective testified that she did not seek an arrest warrant for Mauldin until seven months after his non-custodial interview, when she had reviewed all of the information she had gathered about the case. On re-direct, she testified that, after she interviewed Mauldin in January 2002, she referred him to another police department so that he could be questioned about the victim’s allegations as part of a polygraph examination. The detective added that the results of the examination showed signs of deception. According to the detective, while the polygraph results were a “tool” she considered during her investigation, she ultimately based her decision to secure an arrest warrant for Mauldin on the totality of the information she had obtained, including statements Mauldin made during his interview that corroborated the statements of the victim and other witnesses.

Following the Jackson-Denno hearing, the trial court found that Mauldin’s interview was not an in-custody interrogation but was part of an on-going investigation of the victim’s allegations. As a result, the court found that the interview was admissible, subject to the redaction of certain statements, including the information about the polygraph examination results. Further, during the motion for new trial hearing, the trial court specifically stated that the detective’s statements about the polygraph examination “had absolutely no impact” on its decision about the voluntariness and admissibility of Mauldin’s non-custodial interview statements.

Moreover, given that the polygraph examination was conducted after Mauldin gave the interview statements that were at issue in the Jackson-Denno hearing, Mauldin has failed to show how the examination or its results could have impacted the voluntariness of his interview statements. Accordingly, under the totality of the circumstances presented, including the fact that information about the polygraph examination results was never presented to the jury, we agree with the trial court’s conclusion that Mauldin’s non-custodial interview statements were voluntary and admissible and that trial counsel’s failure to object to the detective’s statements during the Jackson-Denno hearing did not constitute ineffective assistance of counsel.

(b) Mauldin asserts that his trial counsel was ineffective for failing to object to allegedly inadmissible and prejudicial statements in the victim’s interview with investigators when a tape of the interview was played for the jury. Pretermitting whether the statements were objectionable or whether Mauldin is able to meet his burden of showing that counsel’s failure to object to the statements prejudiced his defense, given that there is no transcript of the interview in the record on appeal, the transcript of the motion for new trial shows that counsel’s failure to object was the result of an intentional strategic decision. Specifically, counsel testified that it was his trial strategy not to object to the statements because they showed that some of the victim’s allegations against Mauldin were “outlandish” and that she was “off” when making her allegations.

“As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001). Further, “[w]hether an attorney’s trial tactics are reasonable is a question of law, not fact.” Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003). Under the circumstances, the record supports a finding that trial counsel’s failure to object to the allegedly prejudicial statements was a matter of reasonable trial strategy. Therefore, Mauldin cannot prevail on this ineffective assistance claim.

3. According to Mauldin, the trial court erred in failing to grant his motion for a mistrial when (a) the State elicited testimony regarding his alleged threats against his ex-wife, and (b) the State failed to provide a prior inconsistent statement of the victim before trial. “Whether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” (Citation and punctuation omitted.) Childs v. State, 287 Ga. 488, 492 (696 SE2d 670) (2010).

(a) While the State was cross-examining Mauldin’s current wife, the prosecutor asked her if she was aware that Mauldin had threatened to kill his former wife. Before the witness could answer, however, Mauldin’s counsel objected and moved for a mistrial. The trial court denied the motion, but decided, sua sponte, to give the jury a curative instruction. Mauldin’s counsel did not object to the curative instruction or renew the motion for a mistrial after the curative instruction. Thus, Mauldin waived any error for purposes of appeal by failing to renew his motion for mistrial after the curative instruction was given. Rhines v. State, 288 Ga. App. 128,131 (2) (653 SE2d 500) (2007).

(b) According to Mauldin, the trial court erred in denying his motion for mistrial because the State failed to provide a prior inconsistent statement of the victim before trial. The record shows that, just before trial, the victim told the prosecutor that she and Mauldin had had sexual intercourse in his car during the summer of 2001. Mauldin contends that this allegation was inconsistent with the victim’s statements to the police and others, as well as her trial testimony, that she and Mauldin had only had sexual intercourse one time.

The trial transcript shows, however, that the State questioned the victim about the second incident of sexual intercourse during direct, and defense counsel did not object at that time. Further, defense counsel did not raise an objection before beginning his cross-examination of the victim. During cross-examination, defense counsel repeatedly questioned the victim about the inconsistencies in her testimony, as well as those in her statements to her mother, the police, the DFCS employee, the physician, etc. Then, after defense counsel had cross-examined the victim about the sexual intercourse incident in Mauldin’s car, counsel moved for a mistrial based upon the State’s failure to provide the victim’s statement before trial. According to defense counsel, if he had had the information at that time, he “probably” would have mentioned it during his opening statement to further enforce Mauldin’s defense that the victim was a habitual liar whom the jury should not believe. After hearing argument, the court denied Mauldin’s motion for mistrial, and defense counsel continued his cross-examination of the victim.

Based on these circumstances, we conclude that Mauldin has waived this alleged error due to trial counsel’s failure to make a contemporaneous objection and to seek a mistrial at the time the State first elicited the victim’s testimony about the second incident of sexual intercourse. Boyd v. State, 275 Ga. 237, 238 (3) (564 SE2d 185) (2002); Butler v. State, 273 Ga. 380, 382-383 (5) (541 SE2d 653) (2001). Even if that were not the case, Mauldin is unable to show that his defense was harmed simply by arguing that his counsel’s opening statement may have been different if counsel had known about the victim’s statement before trial, because counsel’s opening statement was not transcribed. Accordingly, this alleged error presents nothing for this Court to review.

4. Mauldin contends that the trial court erred in instructing the jury on resolving conflicts in the evidence. The record shows that the court instructed the jury as follows:

Upon consideration of the evidence in this case, if you find that there is a conflict in the testimony of the witnesses or a conflict between a witness or witnesses, it is your duty to settle this conflict if you can without believing that any witness has made a false statement. If you cannot do this, then it becomes your duty to believe that witness or those witnesses which you think are best entitled to belief. It is for you alone to determine what testimony you will believe and what testimony you will not believe.

Mauldin’s counsel did not object to the instruction. Therefore, Mauldin has waived his right to urge error on appeal. OCGA § 17-8-58 (a), (b); Collier v. State, 288 Ga. 756, 758-759 (4) (707 SE2d 102) (2011).

Moreover, even if the “plain error” standard of review applied in this case, we find that the instruction given by the trial court included substantially the same language as the pattern jury instruction on conflicts in the testimony and that it was a complete and correct statement of the law. Brown v. State, 264 Ga. 48, 50 (3) (c) (441 SE2d 235) (1994); Byrd v. State, 186 Ga. App. 446, 450 (4) (b) (367 SE2d 300) (1988). Accordingly, we find no reversible error. See Collier v. State, 288 Ga. at 758-759 (4).

5. Mauldin argues that the trial court erred in excluding evidence that the victim had made a prior false accusation against her grandfather. Evidence that the victim had made prior false accusations of sexual misconduct against a third party is admissible to attack the credibility of the victim and as substantive evidence tending to prove that the instant offense did not occur. Menard v. State, 281 Ga. App. 698, 700 (3) (637 SE2d 105) (2006). Before admitting evidence of the victim’s prior accusation, however,

the trial court must conduct a hearing, outside the presence of the jury, to determine whether a reasonable probability exists that the victim made a prior false accusation of sexual misconduct. “Reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” The defendant bears the burden of coming forward with evidence [that the prior accusation was false] at the hearing. The trial court’s ruling will not be overturned absent an abuse of discretion.

(Citation, punctuation and footnotes omitted.) Palmer v. State, 248 Ga. App. 515, 515 (1) (546 SE2d 886) (2001). This Court has consistently held that a defendant will not meet his or her burden of proving that the victim’s prior accusation was false merely by showing that the accused third party has denied the victim’s allegations, when that denial is not supported by other evidence, or by showing that the third party was never prosecuted for the alleged sexual misconduct. Menard v. State, 281 Ga. App. at 701 (3).

In this case, the transcript of the hearing on the State’s motion in limine to exclude evidence of this alleged prior false accusation shows that it was during his non-custodial statement to the police that Mauldin first asserted that the victim had told him that her grandfather had molested her. There is nothing in the record to show that the victim ever made the allegation to anyone else;, thus, there was never an investigation into such allegation. Given these circumstances, the trial court granted the State’s motion in limine and excluded the allegedly false prior accusation.

We conclude that Mauldin has failed to meet his burden on appeal of showing that, even if the victim had made a prior accusation of sexual misconduct against her grandfather, there is a reasonable probability that the prior accusation was false. Palmer v. State, 248 Ga. App. at 516 (1). Therefore, the trial court did not abuse its discretion in excluding the evidence. Id.

6. Mauldin contends that the trial court abused its discretion in admitting, as similar transaction evidence, the incident in which he allegedly asked the victim’s sister to “sleep” with him. He argues that the evidence was unreliable and failed to prove that he committed the alleged act, there was no proof that he made the request for “sexual purposes,” and the evidence’s prejudicial effect outweighed its probative value.

In general, evidence of independent offenses committed by a defendant is irrelevant and inadmissible in a trial for a different crime. In some cases, however, evidence of similar crimes (or transactions) is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. Before evidence of prior crimes is admissible, the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

(Citations and punctuation omitted.) Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009). Further,

when considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. This rule is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.

(Citations and punctuation omitted.) Id. at 121.

When reviewing the trial court’s factual findings regarding whether the State satisfied the three-prong test, we apply the clearly erroneous standard. Further, the decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

(Citations omitted.) Flowers v. State, 269 Ga. App. 443, 444 (1) (604 SE2d 285) (2004).

In this case, the State timely filed a notice of intent to present a similar transaction involving Mauldin and the victim’s sister, who was 13 years old at the time — just one year younger than the victim. During the similar transaction hearing, the State presented the testimony of the victim’s sister to show that, at some point during the summer of 2001 — the very same period during which Mauldin’s molestation of the victim occurred — Mauldin and the sister were alone in his house when Mauldin asked the sister to come over to him and to “sleep” with him on the couch. After the sister refused, Mauldin made no other advances toward her.

After hearing argument, the trial court ruled that this evidence was sufficiently similar to the charged crimes because the incident involved the victim’s sister and occurred during the same time period and under similar circumstances, and because the jury could find that Mauldin’s actions demonstrated his intention to have physical contact of a sexual nature with the sister. The court also found that the evidence was relevant to demonstrate Mauldin’s bent of mind and his scheme to commit similar crimes against both the victim and her sister. Defense counsel objected to the ruling and requested that the court give a similar transaction limiting instruction, which the court gave at the beginning of the trial. After the State presented the sister’s testimony about the similar transaction, defense counsel thoroughly cross-examined her.

Thus, there was sufficient evidence to show that the incident at issue occurred at the same location and within the same three-month time period as the charged crimes; involved the victim’s sister, who was only one year younger than the victim and who was at the defendant’s home under circumstances that were similar to those present when the charged crimes occurred; and involved an act and/or a statement that the jury could reasonably conclude exhibited an intention to commit a crime against the sister that was similar to those committed against the victim. Because the rule allowing the admission of similar transaction evidence is liberally extended in cases involving sexual offenses, we conclude that the trial court did not abuse its discretion in admitting this evidence at trial. Pareja v. State, 286 Ga. at 121.

Decided December 7, 2011.

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

T. Joseph Campbell, District Attorney, Suzanne Z. Brookshire, Stewart D. Bratcher, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       Specifically, Mauldin was charged with touching the victim’s breasts and vagina with his hands, exposing his penis to the victim, causing the victim to touch his penis with her hands, and having sexual intercourse with the victim.

        Jackson v. Denno, 378 U. S. 368, 380 (84 SC 1774, 12 LE2d 908) (1964).

       See Vergara v. State, 283 Ga. 175, 176-177 (657 SE2d 863) (2008)' (“The trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances. The issue presents a mixed question of fact and law. On appeal, we accept the trial court’s findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the legal principles to the facts.”) (citations and punctuation omitted).

        See Jones v. State, 276 Ga. App. 728, 729 (624 SE2d 275) (2005) (“[T]he failure to grant a mistrial based on a discovery violation committed by the State constitutes reversible error only if the violation harmed the defendant’s ability to prepare and present his defense or otherwise deprived him of a fair trial.) (citations omitted).

       See OCGA § 17-8-58 (h); Crusselle v. State, 303 Ga. App. 879, 882 (2) (694 SE2d 707) (2010) (“In reviewing an allegedly erroneous jury instruction, this Court applies the plain legal error standard of review.”) (punctuation and footnote omitted).

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 1.31.20 (“When you consider the evidence in this case, if you find a conflict, you should settle this conflict, if you can, without believing that any witness made a false statement. If you cannot do so, then you should believe that witness or those witnesses whom you think are best entitled to belief. You must determine what testimony you will believe and what testimony you will not believe.”).

       Although the notice of intent also referred to three other incidents, none of those were presented to the jury and, thus, are not at issue here.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A11A1115, A11A1116.
    CITY OF COLLEGE PARK v. GEORGIA INTERLOCAL RISK MANAGEMENT AGENCY; and vice versa.
    (721 SE2d 97)
   PHIPPS, Presiding Judge.

The City of College Park was sued by a subcontractor, which complained that it had not been paid for work it performed on College Park’s property. College Park, a participant in the Georgia Interlocal Risk Management Agency (GIRMA), submitted a claim to GIRMA seeking a defense and indemnity. GIRMA denied the claim. College Park filed suit against GIRMA, alleging breach of contract and seeking attorney fees. On cross-motions for summary judgment, the trial court ruled in favor of College Park with respect to the breach of contract claim; the court ruled in favor of GIRMA on the attorney fees claim.

These appeals challenge those rulings. In Case No. A11A1115, College Park contests the denial of its claim for attorney fees; in Case No. A11A1116, GIRMA maintains it was entitled to summary judgment on the breach of contract claim. Because College Park failed to show that GIRMA was contractually obligated to provide a defense and indemnity, we reverse the trial court’s judgment pertaining to the breach of contract claim and affirm the judgment with respect to the attorney fees claim.

The relevant facts are not in dispute. In 2005, College Park hired a contractor, Southern Products, Inc., to perform repairs to some of its sewer pipes. In turn, the contractor hired Sekisui SPR Americas, LLC to serve as a subcontractor on the project. In September 2005, Sekisui sent its first invoice to Southern Products in the amount of $18,646.79, which Southern Products paid after it submitted its application for payment to College Park. In October and December 2005, Sekisui sent second and third invoices to Southern Products in the amounts of $82,829.24 and $231,339.15, which were not paid to it either by Southern Products or by College Park. College Park, however, paid the entire amount it owed to Southern Products for services rendered on the project.

Consequently, Sekisui filed suit against Southern Products for breach of contract. After apparently determining that Southern Products had ceased operating and was insolvent, Sekisui filed suit against College Park, seeking damages in the amount owed it ($314,168.39), but not paid due to Southern Products’ alleged breach of contract. Among the causes of action set forth in its lawsuit, Sekisui alleged that College Park had failed to obtain a payment bond or other security in violation of the Georgia Local Government Public Works Construction Law.

College Park tendered the claim against it to GIRMA pursuant to their Member Coverage Agreement. GIRMA denied the claim, citing an exclusion clause in that Agreement.

This action ensued. College Park filed a complaint against GIRMA, alleging that GIRMA had wrongfully denied the claim it submitted, that it (College Park) had been forced to litigate the case Sekisui filed against it, and that it had incurred formidable costs. College Park set forth in its complaint three separate counts: breach of contract, declaratory judgment, and attorney fees. College Park next filed a motion for summary judgment. Therein, it sought a ruling that the claim submitted to GIRMA was covered under their Agreement; it sought a ruling as to liability on the breach of contract claim, specifically that GIRMA had breached its duty to provide a defense under the Agreement; and it sought a ruling that, because of GIRMA’s conduct, GIRMA should be required to pay College Park’s attorney fees.

In its motion for summary judgment, GIRMA argued that it had not breached the Agreement because the Agreement did not provide for the coverage demanded by College Park and that College Park was therefore not entitled to attorney fees.

After a hearing on the motions, the trial court entered an order granting College Park’s motion for partial summary judgment on the breach of contract claim, thus determining that the Agreement provided coverage for the claim. The trial court granted summary judgment in GIRMA’s favor on the attorney fees claim.

“[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.” “In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

Because our decision in Case No. A11A1115 turns on our resolution of Case No. A11A1116, we address the latter case first.

Case No. A11A1116

1. Citing cases such as Drawdy v. Direct Gen. Ins. Co., GIRMA contends that “[t]he trial court lacked subject matter jurisdiction to enter a declaratory judgment.” Pretermitting whether GIRMA waived this contention by not raising it below, we find it unavailing.

Nomenclature aside, it is clear from the record that College Park did not seek merely the entry of a declaratory judgment. After GIRMA denied College Park’s claim, College Park sought recourse by filing a lawsuit against GIRMA asserting, inter alia, a breach of contract theory. Regarding the essential element of “breach,” College Park alleged that GIRMA had a duty to provide coverage for the claim, but refused to do so. To test the merits of that breach of contract claim, the parties filed their respective summary judgment motions. The trial court was authorized to decide the issues presented thereby. Contrary to GIRMA’s contention, cases such as Drawdy do not provide for a conclusion that the trial court’s rulings were not authorized.

2. GIRMA contends that it is entitled to summary judgment on College Park’s breach of contract claim. Challenging the trial court’s rulings with respect thereto, GIRMA maintains that the Agreement excluded coverage of the claim submitted by College Park.

The Agreement provided coverage for any “Wrongful Act.” The Agreement defined “Wrongful Act,” in pertinent part, as “any actual or alleged error or misstatement, omission, act of neglect or breach of duty including misfeasance, malfeasance and non-feasance by [College Park] committed during the Coverage Agreement Period.” GIRMA has conceded before the trial court and this court that College Park’s claim fell within that particular language. Nevertheless, GIRMA maintains, it properly denied the claim because of an exclusion that coverage was not provided for any claim against College Park that was “arising out of or in any way connected with breach of contract.”

According to GIRMA, Southern Products’ breach of the subcontract with Sekisui invoked that exclusion; the origin of Sekisui’s complaint against College Park was the contractor’s breach of contractual duties owed the subcontractor; and but for that breach, College Park’s claim would not have arisen. College Park countered that the claim was covered by the Agreement, pointing out that the subcontractor’s lawsuit against it did not allege that it breached a contract. College Park pointed out further that it never had a contract with the subcontractor and that it was being sued by the subcontractor on a noncontractual theory of failure to comply with the payment bond statute. According to College Park, its claim to GIRMA did not fall within the cited exclusion because the subcontractor’s suit against it “for failure to adhere to statutory bonding requirements . . . [did] not constitute action[ ] arising under a breach of contract.”

For the following reasons, we agree with GIRMA that the trial court erred in determining that it was not entitled to summary judgment on College Park’s breach of contract claim. First, the exclusionary language at issue stated that GIRMA was not obligated to provide coverage for any claim “arising out of or in any way connected with breach of contract.” Sekisui’s lawsuit against College Park sought payment from the city because it was not paid for work performed under the subcontract. Although College Park established that Sekisui’s complaint against it did not contain any breach of contract count, the exclusion at issue was not restricted by the particular theory of recovery alleged against College Park. That being the case, “the underlying facts and circumstances of the claim[s asserted], rather than the theory of the claim[s], determine whether or not the exclusion applies.” Consequently, College Park’s position is not meritorious.

Second, a conclusion that the underlying facts and circumstances fell within the exclusionary language is supported by Continental Cas. Co. v. HSI Financial Svcs. In that case, an insurance company had issued a policy extending professional liability insurance coverage to a law firm and its three named partners. Coverage was provided for any “wrongful act,” defined by the policy as “any negligent act, error or omission in . . . the rendering of or failure to render professional services.” The term “professional services” was defined as “services rendered in an insured’s capacity as a lawyer . .. (including) acts as an administrator, conservator, executor, guardian, trustee, receiver, or in any . . . fiduciary activity.” Excluded from coverage, however, was “[a]ny claim arising out of any dishonest, fraudulent, criminal, or malicious act by (an insured) or any of (an insured’s) partners, officers, stockholders, or employees.”

When a client of the law firm filed a lawsuit against the law firm and the three named partners, they forwarded the complaint to the insurer for the provision of a defense. The complaint alleged that one of the named partners, Page, had improperly withdrawn funds from the client’s escrow account for his personal use. As there was no doubt that Page’s theft of the escrowed funds fell within the exclusion, at issue in Continental Cas. Co. were those counts of the complaint that charged negligence and legal malpractice against Page’s two partners for their failure to supervise and ensure the proper accounting of the client’s escrowed funds. Hence, the question before the Court was framed:

Does a claim for a law partner’s negligence with respect to supervising and mitigating a fellow partner’s criminal act “arise out of” “any dishonest, fraudulent, criminal or malicious act” within the meaning of this insurance policy exclusion?

In answering this question in the affirmative, the Court noted that (i) the theft by Page unquestionably fell within the exclusion relating to “dishonest, fraudulent, criminal and malicious act[s]”; and therefore, (ii) the client’s claim against the other two law partners “ ‘arose out of’ Page’s actions, because but for Page’s actions, there could be no claim against [his two partners].” Additionally, the Court expressly rejected Page’s partners’ argument that, because the client’s claims against them were based upon allegations that they negligently failed to supervise properly the client’s accounts, such claims “assert[ed] independent and concurrent causes of [the client’s] loss, for which coverage must be provided.” The Court explained:

[T]his argument misses the mark, because the exclusionary clause is not at all concerned with whether ancillary acts of less culpable partners may have contributed to the loss which [the client] suffered as a result of Page’s actions. Rather, by its express terms, the exclusionary clause is focused solely upon the genesis of [the client’s] claims — if those claims arose out of Page’s culpable conduct, as they did, then coverage need not be provided.

Likewise, in this case, the exclusionary clause — “arising out of or in any way connected with breach of contract” — was not at all concerned with whether an ancillary act, such as the failure to obtain a statutory bond or its equivalent, may have contributed to the loss which the subcontractor suffered as a result of Southern Products’ breach of the subcontract. Here, by its express terms, the exclusionary clause focused on the genesis of the subcontractor’s claims, and also more broadly, on whether the subcontractor’s claims were in any way connected with breach of contract. Because the claims were encompassed by the Agreement’s exclusionary clause, then coverage need not be provided by GIRMA.

Third, this determination — that the subcontractor’s claims against College Park were “arising out of or in any way connected with breach of contract” — comports with analysis employed in Mayor &c. of Savannah v. Norman J. Bass Constr. Co. In that case, a nonresident subcontractor that had performed work on a city public works project sued the City of Savannah on the ground that the city had failed to obtain a bond as required by former OCGA § 36-82-102. Under that statute, if the city failed to take a payment bond in the required manner and form, then the city was “liable to all subcontractors . . . for any loss resulting to them from such failure.” Savannah moved to dismiss the action, pointing out that the nonresident subcontractor had failed to satisfy certain statutory provisions that allowed nonresident subcontractors to be “entitled to maintain an action to recover payment for performance on the contract in the courts of this state.” In ruling that dismissal was proper, the Court reasoned, “By its action against the City under [OCGA] § 36-82-102, [the nonresident subcontractor] seeks to recover payment due it for work it has performed under its subcontract”; further, the Court found irrelevant that the subcontractor had premised the city’s liability for that payment upon an alleged failure to obtain a proper bond.

Likewise, it is not dispositive in this case that the subcontractor premised College Park’s liability upon an alleged failure to obtain a payment bond or other security acceptable in lieu thereof. Indeed, by its action against College Park for violating the Georgia Local Government Public Works Construction Law, the subcontractor sought to recover payment due it for work it performed under its subcontract.

Finally, College Park urges a conclusion in its favor under the principle that “if an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured.” But it cannot be concluded that the exclusionary language at issue — “arising out of or in any way connected with breach of contract” — is ambiguous. That being so, our conclusion accords with another principle: “if the policy exclusions are unambiguous they must be given effect ‘even if beneficial to the insurer and detrimental to the insured.’ ” “We will not strain to extend coverage where none was contracted or intended.”

Decided October 11, 2011

Reconsideration denied December 8, 2011

Fincher, Denmark & Williams, Winston A. Denmark, Emilia C. Walker, L’Erin F. Barnes, for appellant.

Because College Park’s claim fell within the scope of the exclusionary clause, GIRMA had no contractual duty to provide coverage therefor and thus did not breach the Agreement by denying College Park’s claim. In connection with College Park’s breach of contract claim, the trial court erred in its rulings that the Agreement provided for coverage, that GIRMA’s denial of College Park’s claim constituted a breach of its duties under the Agreement, that College Park was entitled to partial summary judgment (as to liability), and that GIRMA’s motion for summary judgment was not meritorious.

Case No. A11A1115

3. College Park contends that the trial court erred in granting summary judgment in GIRMA’s favor with respect to the claim for attorney fees under OCGA § 13-6-11. Given our holdings in Divisions 1 and 2, College Park has failed to show that it is entitled to attorney fees under that statute. The trial court’s judgment in that regard is affirmed.

Judgment affirmed in Case No. A11A1115. Judgment reversed in Case No. A11A1116.

Andrews and McFadden, JJ., concur.

James R. Westbury, Jr., Matthew H. Bennett, for appellee.

       See OCGA § 36-85-1 et seq. (providing for an arrangement among municipal governments to, inter alia, pool their general liability risks); Ga. Interlocal Risk Mgmt. Agency v. Godfrey, 273 Ga. App. 77, 78 (614 SE2d 201) (2005) (although not an insurance company or “insurer” governed by Title 33 of the Georgia Code, GIRMA provides a mechanism for municipalities to pool their general liability, motor vehicle liability, and property damage risks; a municipality that enters a GIRMA coverage agreement in effect purchases liability insurance).

       Additionally, Sekisui’s complaint asserted theories of unjust enrichment, quantum meruit, and implied obligation to pay under OCGA § 9-2-7. Sekisui also sought attorney fees under OCGA § 13-6-11, alleging that College Park had acted in bad faith. We focus herein on Sekisui’s claim that College Park violated the Georgia Local Government Public Works Construction Law, because that claim was College Park’s focus in its quest for GIRMA to provide coverage under the Agreement.

       See OCGA § 36-91-1 et seq.; see, e.g., OCGA §§ 36-91-90 (setting forth requirement for payment bond or other security acceptable in lieu of a payment bond); 36-91-91 (“If a payment bond or security deposit is not taken in the manner and form required in this article, the corporation or body for which work is done under the contract shall be liable to all subcontractors and to all persons furnishing labor, skill, tools, machinery, or materials to the contractor or subcontractor thereunder for any loss resulting to them from such failure.”). See generally B <fe B Elec. Supply Co. v. H. J. Russell Constr. Co., 166 Ga. App. 499, 501 (304 SE2d 544) (1983) (payment bond requirement was “for the use and protection of subcontractors supplying labor and materials in the prosecution of the work on the public project”) (citation omitted).

       At the hearing, GIRMA’s counsel represented that Sekisui’s lawsuit against Southern Products remained pending, because Southern Products was no longer in business. And College Park’s counsel represented that Sekisui’s lawsuit against College Park remained pending, awaiting a ruling in the instant case on the issue of coverage.

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted).

       Id. at 624 (1) (a) (citation and punctuation omitted).

       277 Ga. 107, 109 (586 SE2d 228) (2003) (where insurer had already denied coverage for claims at issue, declaratory judgment was not available to insurer because it was neither uncertain nor insecure with regard to its rights, status or legal relations).

       See Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 266 (491 SE2d 471) (1997) (pleadings, motions, and orders are to be construed according to their substance and function and not merely as to their nomenclature).

        Kirkland v. Morris, 233 Ga. 597, 598 (212 SE2d 781) (1975) (“The distinctive characteristic of a declaratory judgment is that the declaration stands by itself and does not seek execution or performance by the defendant. Ordinary judgments, on the other hand, grant consequential or curative relief in some form.”) (citations omitted).

       See Kuritzky v. Emory Univ., 294 Ga. App. 370, 371 (1) (669 SE2d 179) (2008) (“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.”) (citation omitted).

       See Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974) (a motion for summary judgment is designed to test the merits of the claim). Cf. Planet Ins. Co., supra at 265 (noting that summary judgment will not lie as to issues the adjudication of which would not be dispositive in whole or in part of the merits of the case under consideration).

       See OCGA § 9-11-56 (c) (“A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage.”); Ogden Equip. Co., supra.

       See generally Drawdy, supra.

       College Park and GIRMA stipulated before the trial court, “In both lawsuits [against (i) Southern Products and (ii) College Park], Sekisui seeks damages equal to the amount owed to it by Southern Products’ breach of contract, interest on the unpaid amount, and its attorney’s fees.”

        Video Warehouse v. Southern Trust Ins. Co., 297 Ga. App. 788, 792 (1) (678 SE2d 484) (2009) (citations and footnotes omitted; emphasis supplied).

       266 Ga. 260 (466 SE2d 4) (1996).

       Id.

       Id.

       Id. at 260-261.

       Id. at 261.

       Id.

       Id.

       Id. at 262.

       Id. at 261.

       Id.

       Id. at 261-262.

       Id. at 262 (emphasis supplied); see generally Carver v. Empire Fire &c. Ins. Co., 270 Ga. App. 100, 102-103 (605 SE2d 842) (2004) (noting that the Supreme Court of Georgia interpreted in Continental Cas. Co., supra, “an event ‘arising out of’ [an] . . . action to constitute an event that would not have occurred but for the . . . action”) (emphasis supplied).

        Continental Cas. Co., supra at 262.

       Id. (emphasis in original).

       See id.; Eady v. Capitol Indem. Corp., 232 Ga. App. 711 (502 SE2d 514) (1998) (applying required “but for” analysis in examining “arising out of” language found in an exclusionary clause; ruling that coverage need not be provided because harm arose out of conduct that was within scope of exclusionary clause); Dynamic Cleaning Soc. v. First Financial Ins. Co., 208 Ga. App. 37-38 (430 SE2d 33) (1993) (ruling that coverage need not be provided even though negligence was asserted as a concurrent cause of the harm suffered by an insured, because that harm arose out of conduct that was within the scope of an insurance policy exclusionary clause); see generally Southgate Recreation and Park Dist. v. Cal. Assn, for Park and Recreation Ins., 106 Cal. App. 4th 293 (Cal. Ct. App. 2003).

       264 Ga. 16 (441 SE2d 63) (1994).

       Id. at 16, n. 1 (punctuation omitted).

       Id. at 16 (punctuation omitted; emphasis supplied).

       Id. at 18 (2).

       Id.

       See n. 3, supra.

       See n. 14, supra.

        Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (380 SE2d 686) (1989) (citations omitted).

       We note that the exclusion clause, in its entirety, states that coverage is not provided for any claim “arising out of or in any way connected with breach of contract; however, this exclusion does not apply to employment contracts.” College Park has not made any argument to this court — either by brief or when expressly questioned by this court at oral argument — based upon this “employment contracts” exception to the exclusion. Nor has College Park asserted that any part of its argument to the trial court was based on such “employment contracts” exception. Our holdings herein are decided accordingly. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) (573 SE2d 389) (2002) (each party has a duty to present his best case on a motion for summary judgment; once a defendant points out there is an absence of evidence to support plaintiffs case, burden shifts to plaintiff to point to specific evidence giving rise to triable issue; appellate courts are courts for the correction of errors of law committed in the trial court; routinely, appellate courts refuse to review issues not raised in the trial court; to consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.”); Reece v. Chestatee State Bank, 260 Ga. App. 136, 140 (1) (579 SE2d 11) (2003) (issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken; one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by trial court).

       See Hunnicutt v. Southern Farm &c. Ins. Co., 256 Ga. 611, 612 (4) (351 SE2d 638) (1987) (construction of an unambiguous contract is a question of law for the court); Western

        Pacific Mut. Ins. Co. v. Davies, 267 Ga. App. 675, 680 (1) (601 SE2d 363) (2004) (a word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one; an ambiguity involves a choice between two or more constructions of the contract). See also Continental Cas. Co., supra at 263 (applying the plain meaning of the exclusionary language to conclude that the claim was within the scope of insurance policy exclusionary clause).

        Pilz v. Monticello Ins. Co., 267 Ga. App. 370, 371-375 (599 SE2d 220) (2004), quoting Jefferson Ins. Co. &c. v. Dunn, 269 Ga. 213, 216 (496 SE2d 696) (1998).

        Jefferson Ins. Co. &c., supra (citation omitted).

       See Continental Cas. Co., supra at 263; Eady, supra; Dynamic Cleaning Svc., supra; see generally Southgate Recreation and Park Dist., supra.

       See Cowart, supra at 623 (1) (a).

       Supra.

       See United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996) (a prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim).


author: MCFADDEN, Judge.

text:
    A11A1682, A11A2411.
    UDOINYION v. MICHELIN NORTH AMERICA, INC. (two cases).
    (721 SE2d 190)
   MCFADDEN, Judge.

After a tire blew out on his car, Sunday N. Udoinyion brought a product liability action against Michelin North America, Inc., a division of which had manufactured the tire. The trial court granted summary judgment to Michelin. The trial court also ordered, over Udoinyion’s objection, that the transcript of the hearing on the motion for summary judgment be included in the record on appeal of the summary judgment order. Acting pro se, Udoinyion appeals both rulings.

In Case No. A11A1682, Udoinyion appeals the grant of summary judgment to Michelin on the grounds that the evidence gave rise to a genuine issue of material fact and that the court erred in not allowing him to present his case at the hearing on the motion for summary judgment. We find, however, that Michelin satisfied its burden on summary judgment of negating an essential element of Udoinyion’s claims — the existence of a defect — and that Udoinyion in response failed to point to any competent evidence giving rise to a genuine issue of material fact on this point. We further find that the court did not err in its conduct of the summary judgment hearing. Accordingly, we affirm in Case No. A11A1682.

In Case No. A11A2411, Udoinyion appeals the order directing the transcript of the summary judgment hearing to be transmitted as part of the record on appeal of the summary judgment order on the grounds that the transcript was fraudulent, that Michelin did not timely seek a ruling thereon, and that Michelin did not adequately respond to contentions Udoinyion made in an application for discretionary appeal. We find that the trial court did not err in ruling that the transcript accurately portrayed what had occurred at the hearing and that none of Udoinyion’s other contentions merit reversal. Accordingly, we affirm in Case No. A11A2411.

Also in Case No. A11A2411, Udoinyion has filed a separate motion to strike Michelin’s pleadings from the record and to reverse the summary judgment order at issue in Case No. A11A1682. Michelin has moved to supplement the record to respond to Udoinyion’s motion. We deny Udoinyion’s motion as lacking merit and Michelin’s motion as moot.

Finally, we deny Michelin’s motion seeking frivolous appeal sanctions in Case No. A11A2411.

Case No. A11A1682

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Hutto v. CACV of Colorado, 308 Ga. App. 469 (707 SE2d 872) (2011). We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant. Id.

So viewed, and pretermitting for the moment certain hearsay issues, the evidence showed that Udoinyion’s tire blew out on July 21, 2007, while he was driving. Three days later, Udoinyion spoke on the telephone with a Michelin representative named “Mike” about the tire. Mike told Udoinyion he would call him back, but did not do so. On December 5, 2007, Udoinyion spoke on the telephone with a Michelin representative named “Eddie,” who instructed Udoinyion to take the tire to Wal-Mart for evaluation. Udoinyoin did so on January 14, 2008, and a Wal-Mart tire shop manager spoke with Eddie on the telephone and told him that the tire had a manufacturing defect. Udoinyion then spoke with Eddie, who Udoinyion avers “did not contest the result of the tire inspection.” Eddie also offered to replace the tire, but Udoinyion declined. On July 16, 2009, Udoinyion brought an action claiming that the tire had a defect and alleging that as a result of the blowout he crashed his car into a concrete barrier and sustained personal injuries and damage to the car.

Michelin moved for summary judgment and submitted the expert affidavit of Chuck Patrick, a tire design, manufacturing and forensic consultant. Patrick averred that he had training in tire design, tire manufacturing, and forensic tire inspection; that he was familiar with the proper methods of designing and manufacturing steel-belted radial passenger tires; and that he had conducted forensic inspections of “thousands” of tires. He averred that the separation of a tire’s tread and one or more of its steel belts from the tire carcass can be due to a number of causes other than a defect. He further averred that he had conducted a forensic inspection of Udoinyion’s tire and he opined, to a reasonable degree of scientific certainty, that the tire was appropriately designed, featured no design flaws or defects, was appropriately manufactured, and featured no manufacturing flaws or defects. Patrick also opined that the blowout most likely occurred because the tire was underinflated, and he noted that there were two unrepaired punctures in the tire.

In response to Michelin’s motion for summary judgment, Udoinyion provided two expert affidavits of witnesses who also had inspected the tire. Witness Jerry Dobbins, who inspected the tire twice, averred that he had studied automotive technology and that he had 29 years of experience, but did not specify the nature of that experience. Dobbins further averred that the tire had “completely separated” in a manner that he had never before seen, that the tire’s material seemed “defective] or inferior/weak,” that he saw no punctures in the tire on his first inspection, and that on his second inspection he saw a staple in the tire that had not been there previously. Dobbins opined that, to the best of his knowledge and experience, the tire did not show the type of wear that would have occurred if it had been underinflated, that a puncture would not have caused the damage to the tire, and that possible causes of the blowout were “poor workmanship, inferior/weak material, [or] manufacture defect.”

Udoinyion’s other witness, Michael Reed, averred that he was an automobile technician with 16 years of experience in the automotive industry, that he saw a staple sticking out of the tire, and that he saw no evidence of underinflation. Reed opined that the damage to the tire was not caused by the holes in the tire but by the lack of a proper bond between the rubber and the steel, which he described as a manufacturing defect.

Also in support of his response to the motion for summary judgment, Udoinyion filed copies of news articles about a jury verdict in another tire blowout case and about a Michelin tire recall.

1. Udoinyion contends that genuine issues of material fact exist as to whether the tire had a defect giving rise to a cause of action under OCGA § 51-1-11 (b) (1), precluding summary judgment to Michelin. The existence of a defect in the product is an essential element of a products liability claim, whether brought under a theory of strict liability or of negligence. Boswell v. Overhead Door Corp., 292 Ga. App. 234, 235 (664 SE2d 262) (2008).

Michelin presented evidence disproving this essential element of Udoinyion’s claim through the opinion of its expert witness Patrick. Udoinyion argues that the Patrick affidavit must be disregarded as untimely. But Michelin submitted the affidavit contemporaneously with its motion for summary judgment in compliance with OCGA § 9-11-56 (b), which allows a defendant in a civil action to, “at any time, move with or without supporting affidavits for a summary judgment in his favor.” (Emphasis supplied.) And we find no support in the record for Udoinyion’s assertion that the Patrick affidavit should be disregarded as fraudulent or made in bad faith.

Because Michelin, through the Patrick affidavit, discharged its burden of showing an absence of evidence on the essential element that the tire was defective, the burden shifted to Udoinyion to point to specific evidence showing a genuine issue for trial. Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). “The mere fact of a tire blowout does not. . . tend to establish that the tire was defective.” (Citation and punctuation omitted.) Firestone Tire &c. Co. v. Jackson Transp. Co., 126 Ga. App. 471, 475 (191 SE2d 110) (1972).

Udoinyion contends that the Dobbins and Reed affidavits created a jury question on the issue of the existence of a defect. Michelin argued to the trial court that these affidavits did not meet the requirements of OCGA § 24-9-67.1 (b), which allows in a civil action a witness qualified by knowledge, skill, experience, training or education to give opinion testimony if “(1) [t]he testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) [t]he testimony is the product of reliable principles and methods; and (3) [t]he witness has applied the principles and methods reliably to the facts of the case.”

Whether a witness may give an expert opinion under OCGA § 24-9-67.1 is a legal determination for the trial court, not to be disturbed absent a manifest abuse of discretion. McGuire Holdings v. TSQ Partners, 290 Ga. App. 595, 598 (1) (b) (660 SE2d 397) (2008). This standard has been applied in the summary judgment context to trial court rulings on the admissibility of expert opinion affidavits. See id.

Here, the trial court ruled that Udoinyion’s affidavits were “totally inadequate.” Both Dobbins and Reed merely averred that they had visually inspected the tire and that, in their opinions, the tire was defective. Their affidavits did not describe the facts or data upon which their opinions were based, aside from visual inspections of the tire; the affidavits did not explain the principles or methods they used to reach their conclusions about the tire; and the affidavits did not provide support for a conclusion that Dobbins and Reed had applied those principles and methods reliably in their inspections of the tire in this case. Given the paucity of the Dobbins and Reed affidavits, we find no error in the trial court’s determination that they were inadequate to defeat summary judgment. See McGuire Holdings, 290 Ga. App. at 599 (1) (b). See also Smith v. Liberty Chrysler-Plymouth-Dodge, 285 Ga. App. 606, 607-609 (647 SE2d 315) (2007) (affirming grant of summary judgment to defendant in action for negligent maintenance and repair of vehicle, where plaintiffs expert affidavits did not satisfy requirements of OCGA § 24-9-67.1).

Alternatively, Udoinyion argues that the court was required to consider his expert affidavits under OCGA § 24-9-67. By its terms, however, that Code section applies to criminal cases, not civil cases.

Udoinyion contends that he should be entitled to a spoliation presumption, precluding summary judgment, because he asserts that at some point after the accident Michelin created two holes in the tire by putting a staple in it. “[SJpoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation and punctuation omitted.) Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009). The three expert affidavits are the only evidence regarding whether Michelin destroyed or failed to preserve the tire. Dobbins averred that when he first saw the tire it had no holes in it and that when he saw it again he observed a staple that had not been there previously; Patrick averred that he saw unrepaired punctures in the tire; and Reed averred that he saw the staple. Under these circumstances, we cannot say that the trial court was required to give Udoinyion a spoliation presumption. See Kitchens v. Brusman, 303 Ga. App. 703, 705 (1) (694 SE2d 667) (2010) (trial court has wide discretion in resolving spoliation issues).

Udoinyion contends that the copies of news articles he submitted demonstrated a history of Michelin tire failures that created a jury issue. But these articles were not authenticated and thus cannot be considered in our de novo evaluation of whether summary judgment was warranted. See Baker v. Simon Property Group, 273 Ga. App. 406, 407 (1) (614 SE2d 793) (2005); see also Holcomb v. Norfolk cfee. R. Co., 295 Ga. App. 821, 822 (673 SE2d 268) (2009) (rules as to the admissibility of evidence apply in summary judgment proceedings). Udoinyion also cites Michelin Tire Corp. v. Crawford, 170 Ga. App. 359 (317 SE2d 336) (1984), as an example of a case where a jury found a Michelin tire to be defective. Unlike here, however, the testimony of the plaintiffs expert in that case was sufficient to establish a defect. Id. at 360 (3).

Udoinyion contends that the statements and actions of Mike and Eddie preclude summary judgment. He argues that because these men did not deny a defect when Udoinyion brought the tire to Wal-Mart, Michelin may not now take a contrary position. The authority he cites for the proposition, however, pertains to the requirements placed on a defendant in filing an answer to a lawsuit or filing a response to a statement of material facts; this authority has no application to the actions of Mike and Eddie in this case. Udoinyion also argues that a jury issue is created by Eddie’s statement on the telephone to a Wal-Mart employee that the tire was defective. But Udoinyion’s affidavit testimony, both that Eddie made the statement to the employee and the description of what he allegedly said, is hearsay. See OCGA § 24-3-1 (a). Finally, there is no merit in Udoinyion’s contention that Eddie’s offer to replace the tire is evidence of a defect. See OCGA § 24-3-37 (“admissions or propositions made with a view to a compromise are not proper evidence”). Cf. Simpson v. Hyundai Motor America, 269 Ga. App. 199, 201, 204 (1) (a) (603 SE2d 723) (2004) (finding in warranty action that plaintiffs had presented no evidence that car had defect; evidence did show, however, that car manufacturer had offered to replace car).

In summary, Michelin demonstrated an absence of evidence that the tire was defective, and Udoinyion failed to point to any evidence giving rise to a triable issue. Consequently, the trial court did not err in granting summary judgment to Michelin. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Udoinyion argues that the trial court erred in its conduct of the hearing on Michelin’s summary judgment motion. He contends that the court refused to hear argument on his pleading styled a “cross-motion for summary judgment,” and that the court did not allow him to represent himself or to present at that hearing evidence in the form of oral expert witness testimony or the tire itself. Notwithstanding its style, Udoinyion’s pleading was in substance an opposition to Michelin’s motion for summary judgment, not a separate summary judgment motion. See Dudley v. Wachovia Bank, 290 Ga. App. 220, 224 (2) (659 SE2d 658) (2008) (substance, rather than nomenclature, of legal pleadings determines their nature). And the transcript of the summary judgment hearing shows both that the trial court permitted Udoinyion to present argument opposing summary judgment and that the court did not receive evidence from any party during the summary judgment hearing. See Gunter v. Nat. City Bank, 239 Ga. 496, 497 (238 SE2d 48) (1977) (the law creates no obligation on the trial court to permit the use of oral evidence at a hearing on a motion for summary judgment). Moreover, the transcript does not show that Udoinyion sought to introduce the tire as physical evidence at the hearing. We find no error.

Case No. A11A2411

In his notice of appeal from the motion granting summary judgment in Case No. A11A1682, Udoinyion stated that no transcript was to be included in the appellate record. Michelin then requested that the transcript of the July 22, 2010 summary judgment hearing be included. See OCGA § 5-6-42. Udoinyion objected, and after a hearing on the issue pursuant to OCGA § 5-6-41 (f), the trial court ordered the transcript’s inclusion in the record. Udoinyion appeals from this order.

Udoinyion does not include any enumeration of errors in his appellate brief, as required by Court of Appeals Rules 22 (a) and 25 (a) (2). In his “Argument and Citation of Authority,” however, he asserts a list of “discrepancies” in connection with the contested transcript. Even if we consider these “discrepancies” as enumerations of error, see generally Miley v. Thornburg Mtg. Home Loans, 294 Ga. App. 140, 140-141 (668 SE2d 560) (2008), they are without merit for the following reasons.

3. Udoinyion argues that the transcript is fraudulent because he claims it contains numerous alleged inaccuracies and was certified by a court reporter who he contends was not present in the courtroom during the summary judgment hearing. He notes that the transcript contains an incorrect date for his accident (which, at the hearing on the transcript, Michelin conceded was an error), he speculates that other portions of the transcript must be wrong because they reflect incorrect grammar, and he states that neither he nor his expert witness Dobbins, who attended the summary judgment hearing, recalls other statements reflected in the transcript. Udoinyion also asserts that no party requested that the hearing be taken down and states that neither he nor Dobbins recalls a court reporter being present during the hearing. Dobbins submitted an affidavit to this effect. In addition, Udoinyion argues that Michelin, in its response to his opposition to the transcript, conceded that the court reporter was not present at the hearing; in fact, Michelin argued the opposite in that brief.

“Where the correctness of the record is called into question the matter is to be resolved by the trial court.” (Citations and punctuation omitted.) State v. Nejad., 286 Ga. 695, 697 (1) (690 SE2d 846) (2010). After hearing Udoinyion’s arguments and reviewing the July 20, 2010 summary judgment hearing transcript, which contained a court reporter’s certification, the trial court ruled that the transcript “accurately portrays the motion hearing.”

A transcript certified by a court reporter is presumed to be true, accurate and correct unless the trial court requires its correction. OCGA § 15-14-5; Willis v. Willis, 288 Ga. 577, 581 (3) (i) (707 SE2d 344) (2010). We find no merit in Udoinyion’s contention that the certification did not meet the requirements of OCGA § 15-14-5. And nothing in the record before us requires a conclusion that the trial court abused its discretion in ruling that the certified transcript of the hearing, which was presided over by the same judge who made the ruling, accurately depicted what had occurred. See generally Murphy v. State, 267 Ga. 100, 101 (5) (475 SE2d 590) (1996) (applying abuse of discretion standard of review to court’s decision regarding correctness of a certified transcript).

4. Udoinyion contends that Michelin did not timely request a hearing on the accuracy of the transcript under OCGA § 5-6-41 (f). But it was Udoinyion, as the party complaining about the transcript, who had the burden to seek corrective action under that Code section. See Nejad, 286 Ga. at 698 (1). His argument does not support the reversal of the trial court’s order to include the transcript in the appellate record.

5. Udoinyion initially applied for discretionary review of the court’s order directing inclusion of the transcript, although we determined that the order instead was subject to direct appeal, and he complains that Michelin did not address in its response some of the issues raised in that application. Because this claim does not assert an error of the trial court, it presents nothing for us to review. See Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999) (this is a court for the correction of errors made by the trial court). Moreover, we find no merit in Udoinyion’s contention that Michelin’s alleged failure to respond to specific issues raised in an application for discretionary review constitutes an admission. See generally OCGA § 5-6-35 (e) (regarding contents of response to application for discretionary review).

Decided December 8, 2011

Sunday N. Udoinyion, pro se.

Peters & Monyak, C. Angela Hinds, for appellee.

6. Udoinyion has moved in Case No. A11A2411 to “strike [Michelin’s] summary judgment, reverse summary judgment in favor of [Michelin], strike all responses and pleadings by [Michelin] from record and rule in favor of [Udoinyion],” on the ground that Michelin has evaded or inadequately responded to Udoinyion’s claims throughout the course of the litigation below and on appeal. This motion merely asks that we decide in his favor issues Udoinyion raised in either Case No. A11A1682 or Case No. A11A2411. We have resolved those issues in deciding those cases. Udoinyion’s motion is therefore denied.

7. In light of our ruling in Division 6, supra, Michelin’s motion to supplement the record in Case No. A11A2411 with items that are a part of the record in Case No. A11A1682, so as to respond to those allegations in Udoinyion’s motion that concern the merits of Case No. A11A1682, is denied as moot.

8. Michelin’s motion for imposition of sanctions for a frivolous appeal is hereby denied.

Judgments affirmed.

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


author: McFadden, Judge.

text:
    A11A1756.
    In the Interest of H. J., a child.
    (721 SE2d 197)
   McFadden, Judge.

The father of H. J. appeals the order finding that H. J. is deprived and awarding his custody to the Department of Family and Children Services (“DFCS”). The father argues that the evidence does not show that his son is presently deprived. He also argues that the juvenile court abused its discretion by denying the father any visitation with his son. Because we find that the clear and convincing evidence shows present deprivation and that the juvenile court did not abuse its discretion in regard to visitation, we affirm.

On February 19, 2010, when H. J. was about 141/2 years old, DFCS received a referral alleging that the father had shot two dogs, was involved in an abusive relationship with his girlfriend, frequently drank alcohol to the point of intoxication, and had pointed a gun at the child. A social services supervisor interviewed H. J. that day, and the child told her that his father had pointed a .22 rifle at him because he got dirt in the father’s truck. He confirmed that the father had shot the dogs, which resulted in the father’s arrest for animal cruelty. He said that the father kept him out late on school nights, taking him hunting and to a bar, so that he had trouble staying awake in school. He confirmed the father’s excessive drinking, and said that his father drove while intoxicated with him in the vehicle. He said that he had witnessed the father being abusive to his girlfriend. He also said that he was afraid of his father and did not want to see him or go home with him.

H. J. went to live with a maternal aunt for the remainder of the school year and then was placed in the custody of his former stepmother, the father’s ex-wife. The child was adjudicated to be deprived on July 22, 2010. In the deprivation order, the court prohibited the father from having contact with the child until the child’s counselor deemed it appropriate to begin joint counseling sessions with the father and child. The court ruled that the father and son must complete at least 12 joint counseling sessions before the father could have unsupervised contact with his son. It ordered H. J. to continue to participate in individual and family counseling. The court directed the father to complete a family services plan, which required the father, among other things, to complete psychological services associated with anger management, alcohol dependence, depression and anxiety.

On November 18, 2010, the court conducted a hearing at which the therapist who had been counseling the father and H. J. testified. The therapist testified that he had recommended H. J. and his father begin family counseling but H. J. rescheduled the first session, originally scheduled for November 1, and did not show up for the second session, scheduled for November 8. The therapist testified that the father had been undergoing random alcohol screens, that he had provided proof that he completed anger management treatment, and that he continued to provide proof of participating in 12-step meetings; the certificates of completion were introduced at the hearing. At the end of the hearing, the court ruled that the child needed a different therapist, as the current therapist was aligned with the father, and that the new therapist would decide when joint family therapy would begin. The court removed the child from his former stepmother’s custody and placed him in the custody of DFCS for reasons that are not at issue here.

DFCS filed a “petition deprivation/protective order.” The juvenile court conducted a hearing on the petition December 17, 2010, and, on January 20, 2011, entered the order from which the father filed his notice of appeal. According to that order, the father stipulated to findings of fact that led to the initial finding of deprivation. He also stipulated that the court had previously determined that he must petition for return of custody once he had completed his case plan and that supervised visitation with H. J. would resume only at the recommendation of the child’s therapist. He stipulated that as of November 18, 2010, he had not cured the initial deprivation. The juvenile court found that the child had not started sessions with a new therapist, whom the court had previously indicated it wanted to make the decision as to when family therapy should begin.

1. The father asserts that there is no evidence that his son is presently deprived, given that the father has completed all of his case plan goals. He asserts that the only allegation of deprivation that he has not cured is that the child does not want to return to the father’s home.

On appeal, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. We do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard of review is not met.

(Citations and punctuation omitted.) In the Interest of I. W., 304 Ga. App. 225, 229 (3) (695 SE2d 739) (2010). OCGA § 15-11-2 (8) (A) provides that a child is deprived if he or she “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” (Emphasis supplied.)

That definition focuses upon the needs of the child regardless of parental fault. The deprivation petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.

(Citation and punctuation omitted.) In the Interest of R. C. H., 307 Ga. App. 774, 777 (1) (706 SE2d 686) (2011).

Decided December 8, 2011.

Justin B. Grubbs, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Tammy M. Griner, Charles B. O’Neill, Jr., for appellee.

The father argues that the only condition that the juvenile court found to be currently depriving the child was the child’s preference not to return to the father’s custody. On the contrary, the juvenile court found that the child was deprived because he and his father had not completed family counseling. Although the father argues his completion of the case plan goals eliminated the original causes of the deprivation, the failure to complete family counseling continued the deprivation.

Clear and convincing evidence authorized the juvenile court to find that the child was currently deprived because he was without the “care . . . necessary for [his] . . . mental[ ] or emotional health.” OCGA § 15-11-2 (8) (A). See In the Interest ofD. Q., 307 Ga. App. 121, 125 (704 SE2d 444) (2010) (“[T]he juvenile court correctly found that the evidence of the children’s deprivation was clear and convincing in that the evidence demonstrated that [the children] were not receiving adequate support for their mental health issues.”); In the Interest of N Y, 246 Ga. App. 723, 726 (542 SE2d 137) (2000) (clear and convincing evidence showed that children’s “deprivation would likely continue or would not be remedied in the absence of an extension of temporary legal custody in DFCS to permit the father to complete individual counseling and to participate in family counseling, as appropriate”).

2. The father alleges that the juvenile court erred by prohibiting any visitation simply because the child desired not to be united with his father. This mischaracterizes the juvenile court’s order. In fact, the juvenile court required the father and son to engage in family counseling together, but the court ordered the child’s therapist to verify first that the child was ready, given their history. The court explicitly ordered that a status review hearing would be held within eight days of its order at which time the court would “then hear from [H. J.’s] therapist and [would] probably set a time certain to initiate family therapy.” The trial court did not abuse its discretion by delaying family therapy until H. J. was ready. See In the Interest of S. C., 248 Ga. App. 819, 820-821 (2) (547 SE2d 611) (2001).

Judgment affirmed.

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

       Because the father does not enumerate it as error, we do not reach the issue of the propriety of the trial court’s delegating this decision to the therapist.


author: MCFadden, Judge.

text:
    A11A1837.
    AVERY v. THE STATE.
    (721 SE2d 202)
   MCFadden, Judge.

Huey Harrison Avery III challenges the order revoking a portion of his probation. He argues that the evidence was insufficient to show that he committed the new offense of obstructing an officer because he was entitled to walk away when a police officer tried to stop him. We affirm because the arresting officer had particularized, objective reasons for detaining Avery.

The state filed a petition to modify or revoke Avery’s probation on the ground that he committed the new offenses of obstructing an officer and loitering or prowling. After conducting a hearing, the trial court found by a preponderance of the evidence that Avery had violated the terms of his probation by committing the offense of obstruction of an officer as set forth in the petition. The court therefore ordered Avery to be incarcerated in a probation detention center for not less than 180 nor more than 240 days. We granted Avery’s application for discretionary appeal, and he filed this appeal.

“This court will not interfere with a probation revocation, where the standard for finding a violation is a preponderance of the evidence, unless a trial court has manifestly abused its discretion.” (Citations omitted.) Cannon v. State, 260 Ga. App. 15, 16 (579 SE2d 60) (2003). OCGA § 16-10-24 (a) provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Avery argues that the officers who arrested him were not in the lawful discharge of their duties because they lacked reasonable suspicion to warrant a lawful, second-tier encounter. Therefore, Avery argues, their contact with him was simply a first-tier encounter from which Avery could walk away. See Walker v. State, 299 Ga. App. 788 (683 SE2d 867) (2009).

At the hearing on the petition, Officer Hayward Derouen testified that he stopped Avery in the same area where a robbery had occurred earlier that day. Derouen had received a briefing that evening to be on the lookout for the perpetrator of the robbery, described as a tall, black man, wearing dark clothes and a plaid shirt, with white or gray gloves; Avery was wearing dark clothing, a long, dark trench coat and maybe a hat, and he had gray gloves. Derouen stopped Avery because he fit the be-on-the-lookout description and was in the same location as the robbery. Avery refused to speak with Derouen and ran away, ignoring Derouen’s order to stop. Derouen caught up with him and arrested him.

The issue is whether the contact between Avery and the police officer was a first-tier or a second-tier encounter. “[A] citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter. Even running from police during a first-tier encounter is wholly permissible.” (Citations and punctuation omitted.) Galindo-Eriza v. State, 306 Ga. App. 19, 22-23 (1) (701 SE2d 516) (2010). Second-tier encounters occur

when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.

(Citation and punctuation omitted.) Peters v. State, 242 Ga. App. 816, 817 (1) (531 SE2d 386) (2000). “Because the officer[ ] verbally commanded [Avery] to stop and prevented him from [leaving the scene], we find that it was a second-tier encounter for which a reasonable, articulable suspicion of criminal activity was required. [Cit.]” Id.

Derouen testified that he stopped Avery because he was in the area of the robbery that had occurred that day and because he matched the description of the be-on-the-lookout briefing. This amounted to a particularized and objective basis for suspecting that Avery may have been involved in criminal activity. See, e.g., Howard v. State, 187 Ga. App. 74, 76 (4) (369 SE2d 271) (1988) (officer who had been instructed to be on the lookout for robbery suspects, two young black men, one taller than the other, wearing dark shirts, one with two-toned pants and one with a blue jacket, had specific and articulable facts, namely the suspects’ physical resemblance to the description, that gave rise to a reasonable suspicion that the men had been involved in the robberies, and the officer was justified in detaining them); Smith v. State, 165 Ga. App. 333 (299 SE2d 891) (1983) (detention of defendant and his companions was based on specific and articulable facts giving rise to a reasonable suspicion when radio bulletin described the perpetrators of an armed robbery as two black males armed with sawed-off shotguns and dressed in dark clothing, one of whom was wearing a gray colored toboggan hat, and 30 minutes later a few miles away from the scene of the crime, an officer saw an automobile with a passenger wearing a gray toboggan hat, even though there were three men in the car). Consequently, we conclude that the trial court did not abuse its discretion in finding that the state proved by a preponderance of the evidence that Avery committed the new offense of obstructing an officer. We therefore affirm the trial court’s revocation of his probation.

Decided December 8, 2011.

Albert P. Hopkins III, for appellant.

Layla H. Zon, District Attorney, Warren S. Summers, Sr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A11A1954.
    KIGHT v. FORD MOTOR CREDIT COMPANY, LLC.
    (721 SE2d 204)
   MCFADDEN, Judge.

Thenila L. Right appeals the grant of summary judgment to Ford Motor Credit Company in its suit for a deficiency judgment. Right argues that a genuine issue of material fact exists on the issue of whether Ford complied with the notice provision of OCGA § 10-1-36 (a). We agree and therefore reverse.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

(Citation omitted.) Versey v. Citizens Trust Bank, 306 Ga. App. 479, 479-480 (702 SE2d 479) (2010). Viewed in this light, the evidence shows that Thenila Right and Larry Right entered into a retail installment contract to purchase a 2006 Ford Freestyle. When the Rights failed to make the required payments, Ford repossessed the vehicle. It sold the vehicle at auction, applied the proceeds to the Rights’ account, and then filed this action for the balance due. OCGA § 10-1-36 (a) provides:

When any motor vehicle has been repossessed after default in accordance with Part 6 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer. . . .

Decided December 8, 2011.

D. Duston Tapley, Jr., for appellant.

The evidence Ford submitted in support of its motion for summary judgment showed that in November 2008, within ten days of the repossession and before filing this lawsuit, Ford mailed by certified mail a notice of repossession, right to redeem and intention to pursue a deficiency to a Lyons, Georgia address listed on the contract. In response, Thenila Right submitted a sworn affidavit testifying that she had moved to a certain address in Vidalia, Georgia on August 8, 2008, and that she had notified Ford of her change of address in writing, by submitting a note showing the changed address in her payment envelope, and by telephone, when Ford’s collectors called her.

This testimony created an issue as to whether Ford complied with OCGA § 10-1-36 (a). Brack Rowe Chevrolet Co. v. Walls, 201 Ga. App. 822, 825 (2) (412 SE2d 603) (1991). The fact that Ford’s notice may have complied with the statute as to Larry Right did not negate its obligation to comply with the statute as to Thenila Right. See Whitley v. Bank South, 185 Ga. App. 896, 898-899 (3) (366 SE2d 182) (1988).

Ford argues that Right’s affidavit testimony is inadmissible, self-serving hearsay. Right’s testimony that she notified Ford of her changed address is not hearsay because she did not relay information told by others. See Holloman v. State, 167 Ga. App. 683, 684 (3) (307 SE2d 266) (1983). “The testimony did not rest on the veracity and truthfulness of other persons, but on [Right herself].” Id. Her testimony is self-serving, but “most testimony a party offers is likely to be self-serving. That is no ground to exclude evidence.” Hamrick v. Greenway, 257 Ga. 287, 289 (4) (357 SE2d 580) (1987).

Because Right presented evidence that created an issue of fact as to whether Ford complied with OCGA § 10-1-36 (a), we reverse the grant of summary judgment to Ford.

Judgment reversed.

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

Clifford W. Heindel, Elizabeth C. Whealler, for appellee.


text:
    A11A2393.
    CURTICE v. HARWELL.
    (721 SE2d 200)
   MCFADDEN, Judge.

Jonathan E. Curtice appeals from the trial court’s grant of primary physical custody of his daughter, H. C., to the child’s mother, Jessica L. Harwell. Because the court did not abuse its discretion in determining that this custodial arrangement was in the child’s best interest, we affirm.

The record shows that H. C. was born in February 2007. At that time, her parents lived together in Utah. When H. C. was five months old, Harwell and Curtice ended their relationship and Harwell and H. C. moved out of the residence. In June 2008, Harwell and H. C. moved to Georgia.

Curtice took action in both Utah and Georgia to legitimate H. C. and to obtain visitation and custody rights. On March 15, 2010, in connection with a petition filed by Curtice in Georgia, the superior court entered an order approving a consent interim agreement between the parties on issues including legitimation, joint legal custody, and visitation. In February 2011, the court held a hearing that focused on the issue of physical custody.

On May 16, 2011, the court entered a final order acknowledging that Curtice had legitimated H. C. in the earlier consent interim agreement and order, but awarding primary physical custody to Harwell for the stated reason that Georgia is H. C.’s home:

The Court finds that Georgia has been the minor child’s home state for the past two and one-half years, and the Court is concerned that relocating the child from the home within which she is so familiar would result in unnecessary emotional trauma for the child. Accordingly, the Court finds that it would be in the best interest of the minor child for the parties to have joint legal custody of the minor child, but the Mother [Harwell] shall be the primary physical custodian, and the Father [Curtice] shall be the secondary physical custodian.

A trial court hearing the issue of child custody in a dispute between the child’s parents has the duty “to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness.” OCGA § 19-9-3 (a) (2). The trial court may consider any relevant factor in determining the child’s best interest. See OCGA § 19-9-3 (a) (3) (providing nonexclusive list of factors for consideration in best interest determination).

Where the trial court exercises its discretion and awards custody of a child to one fit parent over the other fit parent, the appellate court will not interfere with that decision unless there is evidence the trial court clearly abused its discretion. If there is any evidence to support the trial court’s decision, it cannot be said that there was an abuse of discretion.

(Citations omitted.) Anderson v. Anderson, 278 Ga. 713 (1) (606 SE2d 251) (2004).

1. On appeal, Curtice questions whether the trial court had grounds for finding that Harwell was a fit parent, asserting that the court’s order “[did] not speak to any of the qualities or circumstances of the mother from which the trial court could discern her fitness to parent.” In fact, the court did not set forth in its order any factual findings upon which a determination as to either parent’s fitness could be based. But the court was not required to set forth in its order every relevant factor upon which it relied in making its custody award, absent a timely request by a party to do so, OCGA § 19-9-3 (a) (8), and the record does not show that any such request was made in this case. Moreover, although the trial court made no express determination that either Harwell or Curtice was a fit parent, such determination was implicit in the court’s awards of joint legal custody of H. C. to both parents, primary physical custody to Harwell, and secondary physical custody to Curtice. And evidence was presented to support that implicit fitness determination.

2. Curtice challenges the trial court’s determination that an award of primary custody to Harwell served H. C.’s best interest. The trial court’s stated reasons for its best interest determination — that H. C. was familiar with her home in Georgia and would experience unnecessary emotional trauma if relocated to Utah — address the impact of a disruption upon the child. A trial court may award custody based on its conclusion that “it was in the children’s best interests to implement permanent custody provisions that resulted in the least amount of disruption to their lives,” where there was evidence to support that conclusion. Welch 'v. Welch, 277 Ga. 808, 809 (596 SE2d 134) (2004). See also Haskell v. Haskell, 286 Ga. 112, 113 (1) (686 SE2d 102) (2009) (finding award of custody to father was supported by, inter alia, evidence related to stability, continuity, and the child’s adjustment to relocation).

Evidence was presented in this case to support the conclusion that awarding primary physical custody of H. C. to Harwell would result in the least amount of disruption in H. C.’s life and would be in her best interest. H. C. has lived her entire life with Harwell and moved to Georgia with Harwell at the age of one. She has other family in Georgia with whom she spends time. In addition, Harwell testified that H. C. had displayed signs of emotional distress in connection with her visits to Curtice in Utah, although other evidence was presented that H. C. had enjoyed those visits.

Decided December 8, 2011.

Jo Nesset-Sale, for appellant.

Adam M. Stein, for appellee.

Although Curtice argues that other factors set forth in OCGA § 19-9-3 (a) (3) weigh in favor of him as H. C.’s primary physical custodian, the best interest determination, including the application of the factors set forth in OCGA § 19-9-3 (a) (3), must be made by the trial court on a case-by-case basis. See Haskell, 286 Ga. at 112-113 (1). Because there was evidence supporting the trial court’s determination, the court did not abuse its discretion in awarding primary physical custody of H. C. to Harwell. See id. at 113 (1); Anderson, 278 Ga. at 713 (1).

Judgment affirmed.

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