author: MCFADDEN, Judge.

text:
    A12A2530.
    BOURFF v. GREEN TREE SERVICING, LLC.
    (741 SE2d 175)
   MCFADDEN, Judge.

Michael Bourff filed a pro se complaint alleging that Green Tree Servicing, LLC, had engaged in unlawful debt collection practices. Green Tree filed an answer and counterclaim, asserting that Bourff had defaulted on two real estate loans and seeking attorney fees. Green Tree moved for summary judgment as to both the complaint and its counterclaim, and the trial court granted the motion. Bourff appeals, challenging an order allowing the withdrawal of his attorney, an order vacating a prior summary judgment ruling, rulings on whether to strike affidavits, and the grant of summary judgment as to the counterclaim. Because there was no objection to the order allowing the attorney withdrawal and any purported error was harmless; the trial court was authorized to modify the prior interlocutory summary judgment ruling and any purported error was harmless; the enumeration that the court erred in refusing to strike Green Tree’s affidavits is abandoned as not supported by argument, any purported error in striking Bourff’s affidavits was harmless, and there exist no genuine issues of material fact as to the counterclaim, we affirm.

1. Appellant’s brief.

At the outset we note that Bourff’s appellate brief does not contain proper citations to the specific page numbers of the record or transcript that are essential to consideration of the enumerated errors. See Court of Appeals Rule 25 (a) (1), (c) (2) (iii). Moreover, Bourff has failed to properly state the specific method by which each enumeration of error was preserved for appellate review. Court of Appeals Rule 25 (a) (1). In the absence of proper record citations, we need “not search for or consider such enumeration.” Court of Appeals Rule 25 (c) (2) (i).

“Although [Bourff] is acting pro se, that status does not relieve [him] of the obligation to comply with the substantive and procedural requirements of the law, including the rules of this [c]ourt.” (Citation and punctuation omitted.) Bennett v. Quick, 305 Ga. App. 415, 416 (699 SE2d 539) (2010).

The rules of this court are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules . .. are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown. Nevertheless, we will address [Bourff’s] arguments, insofar as we are able to ascertain them from his brief.

(Citation and punctuation omitted.) Williams v. State, 318 Ga. App. 744, 744-745 (734 SE2d 745) (2012).

2. Withdrawal of attorney.

Five months after Bourff filed his pro se complaint, an attorney filed an entry of appearance in the case on behalf of Bourff. Three months later, on February 10, 2011, the attorney filed both a request to withdraw and Bourffis written consent to the withdrawal. On April 19, 2011, the trial court entered an order granting the request, nunc pro tunc to the date of the consent withdrawal. Bourff did not object to the order, but now complains that it was error. Having “failed to raise the issue below[, w]e find no error.” Harbolt v. Pelletier, 291 Ga. App. 582, 583 (1) (662 SE2d 355) (2008) (appellants failed to raise issue of consent to attorney withdrawal in trial court). And even if Bourff could show error, it would be harmless in light of his own deposition testimony that he had terminated the attorney from the case.

3. Vacating of prior summary judgment order.

On April 15, 2011, Green Tree filed a motion for summary judgment as to the complaint and as to its counterclaims seeking damages and attorney fees. On May 12, 2011, the trial court entered an order finding that Bourff had not filed a response and granting the motion, although the order did not calculate the amount of damages to be awarded to Green Tree on its counterclaim and made no mention of attorney fees. On November 8, 2011, the trial court vacated, sua sponte, the May 12,2011 order because it had been entered before the expiration of the time period for Bourffis response. Bourff did not object to that November 8,2011 order, and at a subsequent hearing he thanked the trial court for having vacated the prior summary judgment ruling. Thereafter, the trial court entered the final summary judgment order from which this appeal was taken, and which made findings of fact and conclusions of law, and which calculated specific amounts of damages and attorney fees to be awarded to Green Tree.

Bourff now claims that the November 8, 2011 order vacating the initial summary judgment ruling was void because it was entered after the term of court in which that prior ruling had been entered. “While final judgments may not be modified after the term in which they were rendered, an interlocutory ruling does not pass from the control of the court at the end of the term if the cause remains pending.” (Citations and punctuation omitted.) Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 56 (3) (572 SE2d 664) (2002). Contrary to Bourffis claim, the May 12, 2011 order was not a final order because the amount of damages and an award of attorney fees remained pending. Thus, the order in question was

analogous to those cases in which the liability of a party has been determined but the amount of damages to be assessed remains pending. A judgment that reserves the calculation of the amount of damages is considered interlocutory in nature and does not become final until the amount is determined.

(Citations omitted.) Sotter v. Stephens, 291 Ga. 79, 83 (727 SE2d 484) (2012). Indeed,

[sjummary judgment orders which do not dispose of the entire case are considered interlocutory and remain within the breast of the court until final judgment is entered. They are subject to revision at any time before final judgment unless the court issues an order “upon express direction” under OCGA § 9-11-54 (b).

(Citations and punctuation omitted.) Canoeside Properties v. Livsey, 277 Ga. 425, 427 (1) (589 SE2d 116) (2003). Because the May 12, 2011 order did not dispose of the entire case and the trial court made no “express direction” entry under OCGA § Q-JL1-54 (b), the order remained within the breast of the trial court and was subject to revision at any time before final judgment. Consequently, the trial court’s subsequent order vacating the May 12 order was not improper.

Moreover, even if Bourff had shown error, he has shown no harm from the order vacating the initial summary judgment order since the trial court later entered the final summary judgment order in favor of Green Tree. “An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.” (Citation and punctuation omitted.) Grot v. Capital One Bank (USA), N.A., 317 Ga. App. 786, 791 (3) (732 SE2d 305) (2012).

4. Affidavits in support of motion for summary judgment.

Bourff claims that the trial court erred in denying his motion to strike affidavits filed in support of Green Tree’s motion for summary judgment. He has set forth no discernible argument in support of this enumeration, and instead purports to incorporate by reference motions filed in the trial court. However,

[t]his practice is not approved by this [cjourt and we decline to look in the record for matters which should have been set forth in the brief. Moreover, if we were to permit this practice a party could evade entirely the page limitations on briefs established in our Rules. See Court of Appeals Rule 24 (f). Accordingly, we have limited our review ... to those [arguments] actually made in [the] appellate brief.

(Citation omitted.) Ellison v. Burger King Corp., 294 Ga. App. 814, 815 (1) (670 SE2d 469) (2008).

In his brief, Bourff notes that Green Tree cannot raise on appeal objections not raised in the trial court. But as recited above, he has not made any discernible argument in support of the actual enumeration that the trial court erred in denying the motion to strike. Because he has failed to set forth any argument explaining how the trial court erred, this enumeration of error is deemed abandoned. See Court of Appeals Rule 25 (c) (2).

5. Summary judgment on counterclaim.

Bourff contends that the trial court erred in granting summary judgment to Green Tree on its counterclaim. The contention is without merit.

When reviewing the grant or denial of a motion for summary judgment, this [cjourt conducts a de novo review of the law and the evidence. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Hadley v. Countrywide Home Loans, 315 Ga. App. 349 (727 SE2d 183) (2012).

So viewed, the evidence as to the counterclaim shows that Bourff obtained two real estate loans that are serviced by Green Tree. He obtained a mortgage loan, executing a promissory note and deed to secure debt in the principal amount of $324,300. He also entered into a home equity line of credit and another deed to secure debt. Bourff failed to make required payments, defaulting on both the mortgage loan, which had a payoff of $342,064, and on the home equity line of credit, which had a payoff of $54,148.

Bourff does not claim that he is not in default on the loans and has not pointed to any evidence in the record showing a genuine issue of material fact. Instead, he relies on immaterial allegations, unsupported by proper record citations, and his claim that the trial court erred in applying Georgia law because there was a choice of law provision in the promissory note. However, he has made no showing that he gave proper notice in his pleadings that he intended to raise an issue concerning the law of another state, and thus “the trial court did not err in applying Georgia law.” Godinger Silver Art Co. v. Olde Atlanta Marketing, 269 Ga. App. 386, 389-390 (2) (604 SE2d 212) (2004). Accordingly, because there was no genuine issue of material fact and Green Tree was entitled to judgment as a matter of law, the trial court correctly entered summary judgment on the counterclaim. See OCGA § 9-11-56 (c).

Decided March 20, 2013

Reconsideration denied April 10, 2013

Michael Bourff, pro se.

Kenney, Solomon & Medina, Thomas S. Kenney, for appellee.

6. Affidavits opposing summary judgment.

Bourff claims the trial court erred in striking two affidavits he filed on the day of the motions hearing.

Pretermitting the several grounds upon which the striking of the affidavit[s] might be sustained, we note that the affidavit[s] if considered, failed to alter the result of our conclusion that the entry of summary judgment in favor of [Green Tree on its counterclaim] was proper. Any error in striking the affidavit[s] was harmless.

Fuhrman v. EDS Nanston, Inc., 225 Ga. App. 190, 191 (4) (483 SE2d 648) (1997).

Judgment affirmed.

Barnes, P. J., concurs. McMillian, J., concurs in judgment only.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A12A2544.
    ZURICH AMERICAN INSURANCE COMPANY et al. v. HEARD et al.
    (740 SE2d 429)
   Boggs, Judge.

Zurich American Insurance Company, American Zurich Insurance Company, and American Guarantee and Liability Insurance Company (collectively “insurers”) appeal from the trial court’s order granting summary judgment in favor of John Heard, John Heard Associates, Inc., Hairston Engineering, PC., and Jerry Hairston, Jr. (collectively “appellees”). The insurers contend that the trial court erred by concluding: (1) that contribution and indemnity under OCGA § 51-12-32 were precluded by the apportionment statute, OCGA § 51-12-33; (2) that even if contribution were still available, the insured and the appellees in this case were independent, not joint, tortfeasors, from whom contribution is not available; (3) that the settlement was a voluntary payment; and (4) that all of the insurers’ claims against the appellees should be considered reframed claims of contribution. For the reasons explained below, we agree and therefore reverse.

“On appeal from the grant or denial of summary judgment, we apply a de novo standard of review.” (Citation omitted.) Coca-Cola Bottlers’ Sales & Svcs. Co. v. Novelis Corp., 311 Ga. App. 161 (715 SE2d 692) (2011). “[T]he moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also OCGA § 9-11-56 (c). So viewed, the record shows that Pinkerton & Laws of Florida, Inc. (“P&L”) entered into a contract to serve as the general contractor for construction of a hotel in Brunswick, Georgia. While P&L’s contract provided for mandatory arbitration, it also included the following provision regarding joint arbitration of claims with the architect:

No arbitration arising out of or relating to the Contract shall include, by consolidation or joinder or in any other manner, the Architect, the Architect’s employees or consultants, except by written consent containing specific reference to the Agreement and signed by the Architect, Owner, Contractor and any other person or entity sought to be joined.

John Heard Associates (“JHA”) entered into a separate contract to provide “architectural and structural, mechanical, electrical and plumbing engineering design services” for construction of the same hotel. JHA also agreed to perform “construction administration,” which included monthly site visits to review the “[qjuality of construction.”

Because John Heard, an architect, was not a licensed engineer, JHA entered into a subcontract with Wellborn Technical to provide the MEP (mechanical, electrical, and plumbing engineering) and HVAC (heating, ventilating, and air conditioning) design services for the hotel. Heard knew that the principal of Wellborn Technical, Billy Wellborn, was not a licensed engineer at the time of the subcontract. After obtaining Heard’s contract, Wellborn entered into an oral agreement with Jerry Hairston, a licensed engineer, to provide the required MEP and HVAC designs. While Heard knew that Wellborn would obtain the assistance of a licensed engineer, he testified that he did not recall any discussion with Wellborn about who should be hired.

The record shows that both during and after construction of the hotel, the owners discovered the presence of mildew and signs of moisture trapped in the building. In June 2008, the owners filed a demand for arbitration against P&L and JHA seeking monetary damages in excess of $500,000. In their “overview” of their claims and damages, the owners requested that the award be made against P&L and JHA “jointly and severally” based upon P&L’s negligent construction and Heard’s negligent design. After P&L filed a motion to sever the claims, relying upon its right to insist upon a separate arbitration, JHA was dismissed from the arbitration proceeding. The owners then filed suit against Heard and JHA in Gwinnett County State Court, and P&L unsuccessfully sought to intervene in that suit.

P&L and the owners settled the arbitration claim based, in part, upon the following terms: that P&L would enter into a consent arbitration award in the amount of $6.2 million; that P&L would pay $2.3 million within 14 days after the settlement agreement was executed; that this payment would “not represent a full satisfaction of [the owner]’s damages”; that upon receipt of the payment, the owners agreed not to seek any recovery of the award from P&L; that “P&L’s claims for contribution and/or indemnification” were preserved; and that P&L would waive and release its counterclaim' against the owners in the pending arbitration. The settlement agreement also stated:

The Parties agree that the Award shall represent the losses, costs, injuries, and damages suffered by [the owners] arising out of or relating to the Hotel and/or the Arbitration as of December 15, 2009 (the “Damages”), including repair costs, lost profits, costs of investigation and repair design, and the attorneys’ fees and expenses of the Arbitration. This Award is consented to as part of the Parties’ desire to compromise and resolve disputed claims and is not an admission of liability by P&L.

Six months later, the owners settled their claims against JHA and Heard for $100,000. The written settlement agreement contained the following provision:

The Releasors [the hotel owners] understand and acknowledge that the payment being made by the Releasees [JHA and Heard] represents a full and final satisfaction of any and all claims, damages, or losses claimed by or that could be claimed by the Releasors allegedly arising from, caused by, or related to any architectural or engineering (including structural, mechanical, electrical, and plumbing) design services or construction contract administration services provided by the Releasees with respect to the Project. [] The Releasors also acknowledge that any payment previously received by the Releasors pursuant to any settlement agreement or release arising out of the claims asserted in the arbitration proceeding [against P&L] .. . did not arise from or relate in any way to any architectural or engineering services providedby the Releasees with respect to the Project.

Less than one year after P&L’s settlement with the owners, the insurers filed a suit against Heard, JHA, Hairston Engineering, PC., and Jerry Hairston, Jr. They asserted causes of action for professional negligence (Count 1), third party breach of contract (Count 2), negligent misrepresentation and/or omission of fact (Count 3), and contribution/indemnity based upon the appellees’ joint tortfeasor status with P&L (Count 4). The facts alleged to support these claims were that insufficient information was provided to P&L in the construction drawings; that the defendants failed to provide adequate construction administration; that JHA and Heard refused to conduct an investigation into the moisture problems at the hotel; and that Hairston Engineering and Jerry Hairston incorrectly designed the HVAC system in the hotel.

All of the defendants moved for summary judgment in their favor. JHA and Heard asserted that (1) the insurers’ claim for contribution and indemnity fails because joint tortfeasors can no longer assert these claims following the enactment of the apportionment statute, OCGA § 51-12-33; (2) any payment for damages caused by the defendants “was a voluntary payment for which the defendants cannot be responsible”; (3) a waiver of subrogation clause barred the insurers’ claims; (4) the insurers’ claims for professional negligence and negligent representation are barred by the statute of limitation; and (5) the insurers’ third-party beneficiary claim fails because P&L was not an intended beneficiary of the contracts between the owners and JHA. In their motion for summary judgment, Hairston Engineering and Jerry Hairston adopted the grounds asserted by their co-defendants and added one additional argument for summary judgment in their favor: the design services provided by them were complete at the permitting phase of the project and they cannot be held responsible for design changes made by Billy Wellborn during construction without their knowledge and consent.

The trial court granted summary judgment to the defendants for the following reasons: (1) after the legislature’s enactment of OCGA § 51-12-33, “there is no longer a right of a ‘joint trespasser to contribution from another or others’ that can continue, regardless of whether liability is imposed by virtue of a settlement or a verdict”; (2) even if contribution claims may still be made among settling defendants, the defendants in this case are independent tortfeasors, not joint tortfeasors, based upon the insurance policies at issue and the underlying facts surrounding the two settlements; (3) even if some portion of the payments by the insurers represented an amount resulting from the defendants’ negligence, it was a voluntary payment in light of the apportionment statute and policy exclusions; and (4) the insurers’ remaining claims fail because they are “nothing more than a reframed contribution claim.” The insurers take issue with each of these findings in their appeal.

1. We first consider whether claims for contribution between joint tortfeasors who have settled with the plaintiff still exist following the enactment of the apportionment statute, OCGA § 51-12-33. Subsection (b) of this Code section provides:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(Emphasis supplied.) Based upon the plain language of subsection (b), joint liability and the right of contribution no longer exist when damages have been apportioned by the trier of fact under this subsection. Based upon this plain language, it cannot be interpreted to abolish the right of contribution between settling joint tortfeasors when there has been no apportionment of damages by a trier of fact. See Six Flags Over Georgia II v. Full, 276 Ga. 210, 211 (576 SE2d 880) (2003) (“Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.”). When enacting subsection (b) of OCGA § 51-12-33 in 2005, the legislature left OCGA § 51-12-32 intact in its entirety and it remains valid law. This latter Code section provides:

(a) Except as provided in Code Section 51-12-33, where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.
(b) If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution.
(c) Without the necessity of being charged by an action or judgment, the right of indemnity, express or implied, from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.

(Emphasis supplied.) Based upon the plain language of this statute, the right of contribution between joint tortfeasors has not been completely abolished by the legislature’s enactment of OCGA § 51-12-33 (b), and the trial court erred by holding otherwise.

2. We must now consider whether the trial court properly concluded that P&L and the appellees were not joint tortfeasors as a matter of law. The test for determining joint tortfeasors is whether “the separate and independent acts of negligence of two or more persons or corporations combine naturally and directly to produce a single indivisible injury. . . .” (Citation, punctuation and emphasis omitted.) Zimmerman’s, Inc. v. McDonough Constr. Co., 240 Ga. 317, 320 (1) (240 SE2d 864) (1977). Statements made in settlement agreements between the parties and the separate legal proceedings (the Gwinnett lawsuit and arbitration) do not support the trial court’s conclusion that no joint liability existed. The issue is whether a single indivisible injury resulted from the negligence of P&L and the appellants, not how the different entities involved conducted legal proceedings or described payments made in settlement. “Where no judgment finding both tortfeasors liable has been entered, a right of contribution still exists, but the party seeking contribution must prove that his own negligent actions and those of the alleged joint tortfeasor jointly caused the harm.” (Citation, punctuation and footnote omitted.) Suggs v. Hale, 278 Ga. App. 358, 360-361 (2) (629 SE2d 11) (2006). “As a general rule, the substantial rights of the parties in a negligence case, including the right to contribution between joint tortfeasors, become fixed at the time of injury or the event upon which liability depends. [Cits.]” Byington v. Lee, 150 Ga. App. 393, 394 (1) (258 SE2d 6) (1979). The trial court therefore erred by concluding as a matter of law that P&L and the appellants were not joint tortfeasors. See Big Canoe Corp. v. Moore & Groover; Inc., 171 Ga. App. 654, 657-658 (2) (320 SE2d 564) (1984).

3. The insurers contend the trial court erred in finding that their contribution and indemnity claims were barred because the settlement was a voluntary payment. We agree.

(a) The trial court concluded that the entire settlement payment was a voluntary payment “because, in light of apportionment, P&L had no legal obligation to pay and could not be held liable for any damages resulting from the negligence of the [appellants].” This conclusion was erroneous for the reasons stated in Division 1 of this opinion.

(b) The trial court also found that the insurers’ settlement should be construed as a voluntary payment because of the professional services exclusions in the insurance policies. The court found it significant that the insurers admitted in their discovery responses “that they never paid money under either the CGL policy or the Umbrella Policy for any damages that would have been excluded from coverage.” The trial court reasoned that because the policies excluded coverage for professional services, the settlement payment cannot be construed as a payment caused by appellants’ alleged professional negligence. The trial court’s reasoning is flawed, however, because the record shows that the insurance policies excluded coverage for professional services rendered by or on behalf of P&L, not other parties, such as the appellants. Additionally, in an OCGA § 9-11-30 (b) (6) deposition, the insurers’ representative testified that the insurers paid for damages caused by P&L’s construction work relying on the appellees’ designs. Additional testimony that the insurers were not obligated to pay damages for the acts or omissions of the appellees generally or for professional services, does not the alter evidence showing that the insurers paid for damages caused by the combination of P&L’s conduct during construction and the designs provided by appellees — a single indivisible injury covered by the policy.

(c) The trial court’s finding that the insurers made a voluntary payment based upon a mold exclusion in the policy was also erroneous. The record shows that the insurers did not pay for mold damage because it was excluded under the policy. Instead, they paid for property damage claims resulting from structural issues and water intrusion, as well as loss of use resulting from covered property damage. It is undisputed that the insurers contributed $1,463,950 to the settlement and that P&L paid $721,050 for uninsured damages, including those caused by mold and the use of EIFS (exterior insulation and finish system). P&L subsequently assigned its interest in uninsured damages to the insurers. Based upon this record evidence, the trial court erred by concluding as a matter of law that the insurers made a voluntary payment for mold and mildew damages not covered by the policies.

Because the record fails to establish, as a matter of law, that the insurers’ subrogation and assigned claims for contribution and indemnity are barred by voluntary payment, the trial court erred by granting summary judgment in favor of the appellees on this ground.

4. In their remaining claim of error, the insurers contend that the trial court erred by concluding that they could not recover on their remaining theories of recovery because they were “nothing more than a reframed contribution claim.” Based upon our holdings in Divisions 1-3 regarding contribution, this enumeration of error is rendered moot.

Decided March 28, 2013

Reconsideration denied April 10, 2013

Drew, Eckl & Farnham, Brian T. Moore, Chad E. Jacobs, for appellants.

Carlock, Copeland & Stair, Gregory H. Wheeler, Ryan B. Wilhelm, David S. Bills, for appellees.

5. In their briefs, appellees request this court to rule on additional grounds for summary judgment raised below, but not ruled upon by the trial court. In accordance with City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002), we decline to address the additional grounds not ruled upon by the trial court. We are reversing the trial court based upon its application of an erroneous legal theory, and the additional grounds involve potential undisputed issues of material fact and legal theories not adequately briefed by the parties before this court.

Judgment reversed.

Ray and Branch, JJ., concur.

       The owners alleged in this suit that they suffered damagesasa result of JHA and Heard’s “failure and refusal to conduct an investigation of the mildew, odor and possible water intrusion problems at the Hotel”; JHA and Heard’s failure to provide sufficient information to P&L in the construction drawings; and JHA and Heard’s failure to discover or notify the owners that P&L was not constructing the hotel in the manner required by the drawings.

       The record before us does not include the order denying the motion to intervene, but in their brief opposing intervention, the owners asserted several positions, including that P&L’s claims for contribution and indemnity would not be impaired by the outcome of the owners’ suit against JHA and Heard.

       The agreement defined “Project” as “the development, design, construction, and operation of the [hotel by the owners], including, but not limited to, any and all claims that were or could have been asserted in the lawsuit [against Heard and JHA].”

       The owners did not agree to indemnify JHA and Heard from any contribution claims asserted against them by nonparties to their settlement agreement, such as P&L.

       The insurers sought a subrogation recovery for the amounts paid by them on behalf of P&L and sought to recover for P&L’s damages not covered by insurance through an assignment.

       The Supreme Court’s opinion in McReynolds v. Krebs, 290 Ga. 850 (725 SE2d 584) (2012), does not require a different result. In that case, the trier of fact determined the amount of damages owed by one defendant, and the appellant conceded that she had no evidence of liability which would support apportionment against another defendant that settled before trial. Id. at 852-853 (1) (b).

       Although appellees assert that the trial court made “no such holding,” and therefore make no argument against a finding that they were joint tortfeasors with P&L, the trial court’s order plainly states, “Even if contribution claims still existed among settling defendants, the facts of this case do not support the Plaintiffs’ claims. Contribution only applies to joint tortfeasors - not independent tortfeasors.”


author: McFadden, Judge.

text:
    A13A0213.
    SANCHEZ v. THE STATE.
    (741 SE2d 660)
   McFadden, Judge.

After a jury trial, Rafael Sanchez was convicted of trafficking in methamphetamine. He argues that the trial court erred in allowing evidence that police found an unidentified substance in his pocket at the time of his arrest. Because the evidence was relevant to whether Sanchez committed the trafficking offense, we find no error and affirm.

Viewed most favorably to the verdict, the evidence showed that, working with a confidential informant, law enforcement officers arranged to purchase two ounces of methamphetamine from a person named David. That person arrived at the designated spot for the transaction driving a car owned by Sanchez, who was the front seat passenger; a third person was in the back seat. Law enforcement officers arrested the three persons in the car, searched the car, and found two ounces of an off-white substance in two baggies inside a flashlight that was on the back seat floorboard. Subsequent testing identified this substance as methamphetamine. An officer also searched Sanchez incident to his arrest and found in his front pocket a similar baggie containing a white, granulated substance that the officer suspected to be methamphetamine. Subsequent testing did not determine the identity of this substance but revealed that it was “negative for common drugs of abuse.”

Decided April 10, 2013.

J. Scott Key, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Thomas L. Williams, James L. Wright III, Assistant District Attorneys, for appellee.

Sanchez argues that the trial court erred in denying his motion to exclude as irrelevant any evidence about the substance found in his pocket. “The admission of evidence is a matter which rests largely within the sound discretion of the trial judge; and if an item of evidence has a tendency to establish a fact in issue, that is sufficient to make it relevant and admissible.” (Citation omitted.) Alexander v. State, 239 Ga. 108, 110 (1) (236 SE2d 83) (1977). “Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” (Citation and punctuation omitted.) Smith v. State, 291 Ga. App. 545, 547 (2) (662 SE2d 323) (2008).

The state presented evidence that the unidentified substance in Sanchez’s pocket resembled methamphetamine or a substance with which methamphetamine could be “cut” to increase the amount available for sale by weight, and evidence that the substance was packaged in a similar manner to the methamphetamine found in the flashlight. We agree with the state that this evidence could support a finding that Sanchez had knowledge or familiarity with the methamphetamine trade and that, consequently, the evidence tended to establish a fact that Sanchez had contested at trial — whether he knew that trafficking in methamphetamine was occurring in his car at the time of his arrest. See OCGA § 16-13-31 (e).

In his appellate brief, Sanchez points to facts that he argues undermined the state’s theories that the substance could have been sold as counterfeit methamphetamine or used to “cut” methamphetamine. These arguments go to the strength of the evidence regarding the unidentified substance, not its relevance. We find no abuse of discretion in the trial court’s decision to allow the evidence. See Whisnant v. State, 178 Ga. App. 742, 743 (1) (344 SE2d 536) (1986).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: Dillard, Judge.

text:
    A13A0578.
    WHORTON v. THE STATE.
    (741 SE2d 653)
   Dillard, Judge.

Following a trial by jury, Glenn Whorton was convicted on one count each of child molestation and sexual battery of V. B., a minor. On appeal, Whorton contends that (1) the trial court erred by refusing to conduct a pre-trial hearing as to the reliability of child-hearsay statements, (2) the trial court erred by admitting child-hearsay statements in violation of his Confrontation Clause rights, (3) the trial court erred by admitting inherently unreliable child-hearsay statements, and (4) the evidence against him was insufficient as it was based entirely upon inadmissible child-hearsay statements. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that Whorton is the boyfriend of the victim’s aunt on her father’s side. During the relevant time period in 2007, Whorton and V. B.’s aunt lived together with V. B.’s paternal grandmother in a two-bedroom trailer in Polk County. V. B., who was four years old at the time, frequently visited with her aunt and grandmother, often spending the night with them.

At this same time, V. B.’s mother began to notice that the child was behaving oddly. For example, despite being successfully potty-trained, V. B. began wetting herself on a regular basis. Additionally, she suddenly became afraid of the dark. And finally, she began masturbating and did so on such a frequent basis that her genitalia remained “constantly red.” In response to this troubling behavior, V. B.’s mother inquired as to whether anyone was hurting her, to which the child responded in the negative.

In July or August 2007, after V. B. masturbated with a soda can and caused significant irritation to her genitals, the mother again inquired if her daughter was being hurt or whether anyone had been “messing” with her. And while V. B. again denied that she was being hurt by anyone, she did ask her mother what she meant by someone “messing with her.” After her mother explained what she meant by this line of inquiry, V. B. immediately responded with Whorton’s first name, Glenn, and stated that she had been touched by him “bunches of times” at both the trailer and in her aunt and grandmother’s prior home. V. B. then detailed and demonstrated exactly how Whorton touched her by “rubbing her private area.” And when her mother asked why she had not previously disclosed that she was being hurt by Whorton, V. B. responded that Whorton’s actions had not hurt her but had instead felt good.

Thereafter, Y. B.’s mother provided the child with an opportunity to tell her father what Whorton had done to her, but when the father failed to take any action to address the situation, V. B.’s mother took her daughter to law enforcement in September 2007. Around that same time, V. B. also underwent a forensic interview at a child-advocacy center.

In October 2007, V. B.’s mother and father separated and the mother moved with her children, including V. B., to Alabama and lived with her boyfriend. V. B. was then enrolled in a preschool, and her teacher at the school observed the same disturbing behavior that concerned the mother — namely, that V. B. was wetting herself and masturbating regularly. Additionally, in April 2008, V. B. approached the mother’s boyfriend and made an outcry that “Glenn touches me.” V. B. then demonstrated the manner in which she had been touched by Whorton by placing her hand on her genital area and moving it around.

It was unclear whether V. B.’s disclosure to her mother’s boyfriend referred to an old incident or to a new incident, but the disclosure was reported to the Alabama Department of Human Services, and V. B. underwent a second forensic interview by a child-advocacy center in Alabama. V. B. also began undergoing counseling through the Alabama child-advocacy center, and during her counseling sessions, she disclosed that Whorton had touched her genitals, which she referred to as her “tutu.”

Thereafter, Whorton was indicted for committing the offenses of child molestation and sexual battery. Specifically, the indictment alleged that Whorton committed these offenses between June 1, 2007, and June 30, 2007, by touching V. B. upon her genitals. A jury convicted Whorton on both counts, and this appeal follows.

At the outset, we note that on appeal from a criminal conviction, we view the evidence “in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent.” And in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine “if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld so long as “there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we turn now to Whorton’s enumerations of error.

1. In two separate enumerations of error, Whorton argues that the trial court erred in denying his request for a pre-trial hearing to determine the reliability of the child-hearsay statements and that the trial court erred in admitting the statements because they lacked sufficient indicia of reliability. We disagree.

Whorton contends that due to, inter alia, the sheer number of child-hearsay statements at issue in this case, the trial court erred by failing to hold a pre-trial hearing as to the reliability of those statements pursuant to Gregg v. State The record reflects that Whorton filed motions in limine to exclude those statements and requested a pre-trial hearing, but the trial court denied the request for a separate pre-trial hearing and denied the motions in limine, finding that the statements at issue were reliable. Nevertheless, the trial court granted Whorton a continuing objection as to the child-hearsay statements.

At the conclusion of the State’s evidence, Whorton moved for a directed verdict and again argued that the child-hearsay statements were unreliable. But the trial court denied the motion and again found that those statements were supported by the presence of sufficient indicia of reliability. And finally, the trial court likewise denied Whorton’s motion for new trial on the same grounds.

Former OCGA § 24-3-16 provided as follows:

A statement made by a child under the age of 14 years describing any act of sexual contact... performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

It is well established that indicia of reliability must “spring from the circumstances of the statement” and that the trial court may consider, inter alia, the following factors when making this determination:

(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

Here, despite Whorton’s argument that the trial court erred in denying his request for a pre-trial hearing to determine whether the statements at issue had sufficient reliability, there is no requirement in the child-hearsay statute that the court conduct such a hearing prior to receiving the relevant testimony. Nor is there a requirement that the trial court “make a specific finding of sufficient indicia of reliability in order for the out-of-court statements of child victims to be admissible.” Indeed, the statutory requirement is met if “after both parties have rested, the record contains evidence which would support such a finding.” Thus, so long as sufficient evidence of indicia of reliability “appears in the record either before or after the introduction of the child’s out-of-court statements, the fair trial rights of the defendant are adequately protected.”

In the case sub judice, Whorton argues that the trial court erred in denying him a pre-trial Gregg hearing, relying on this Court’s decision in Ferreri v. State for the proposition that a pre-trial hearing is required in some cases. But Ferreri cannot possibly stand for such a proposition. Indeed, our Supreme Court explicitly held in Reynolds v. State that it was merely “advisable in some situations” to hold a hearing to determine whether a child-hearsay statement has sufficient indicia of reliability. Suffice it to say, “advisable” can in no way be understood to mean “required.” And because vertical stare decisis dictates that we faithfully adhere to the precedents established by the Supreme Court of Georgia, we flatly reject Whorton’s invitation to read our decision in Ferreri in a manner that undermines or is inconsistent with our Supreme Court’s holding in Reynolds.

And while it is certainly true that some of the language employed by this Court in Ferreri is less than precise, the fundamental error made by the trial court in that case was in failing to make its decisions on the admissibility of certain child-hearsay statements “outside the hearing of the jury, so that improperly admitted hearsay evidence [did] not contaminate the remainder of the trial,” not in failing to hold a pre-trial hearing. To be sure, the facts in Ferreri were such that the trial court perhaps should have, as a prudential matter, held a pre-trial hearing on the child-hearsay statements at issue. Put another way, the trial court’s failure to hold a pre-trial hearing in Ferreri was “no way to run a railroad.” Nevertheless, to the extent that our decision in Ferreri can possibly be read as requiring a pre-trial Gregg hearing in “some situations,” that case is of no precedential utility for such a proposition.

In any event, this case is nothing like Ferreri, which involved a staggering amount of child-hearsay statements introduced by the State to form the bulk of its case against the defendant, in addition to “evidence of [the victim’s] tender age, inconsistent statements, coaching, [and] involvement of law enforcement [in interviewing the child].” Indeed, the record in the case sub judice contains sufficient evidence to support the trial court’s determination that the child-hearsay statements in question had indicia of reliability. In stark contrast to the questionable facts in Ferreri, the statements here were properly admitted. The initial outcry to the mother followed denials that anyone had hurt V. B. but was made after the mother clarified her question as to whether anyone was “messing with” the child. The outcry to the mother’s boyfriend was completely spontaneous. The child’s remaining statements were made to two forensic interviewers and a counselor, not to law-enforcement officers; and the recorded statements to the forensic interviewers reflected a degree of spontaneity and credibility. In each statement, V. B. consistently maintained that Whorton touched her on her genitals, never indicating that he did anything else or required her to do anything to him. Additionally, no rewards were given to Y. B. in response to incriminating statements, and the interviewers observed nothing to raise concerns as to potential “coaching.” Accordingly, the trial court did not abuse its discretion in admitting the child-hearsay statements.

2. Next, Whorton argues that the trial court erred in admitting child-hearsay statements in violation of his Confrontation Clause rights when, although made available to testify, the State did not call the child victim to testify at trial. The State concedes, and we agree, that the trial court erred, but we hold that the error was harmless because the inadmissible evidence was cumulative of admissible evidence.

In Hatley v. State, our Supreme Court interpreted the child-hearsay statute and held as follows:

[W]e now interpret [the child hearsay statute]... to require the prosecution to notify the defendant within a reasonable period of time prior to trial of its intent to use a child victim’s hearsay statements and to give the defendant an opportunity to raise a Confrontation Clause objection. If the defendant objects, and the State wishes to introduce hearsay statements under [the child hearsay statute], the State must present the child witness at trial; if the defendant does not object, the State can introduce the child victim’s hearsay statements subject to the trial court’s determination that the circumstances of the statements provide sufficient indicia of reliability.

Nevertheless, the court in Hatley went on to explain that despite the State’s failure to call the child victim as a witness, any error in admitting testimonial hearsay was harmless when it was cumulative of admissible nontestimonial hearsay.

As the State concedes, our Supreme Court’s decision in Hatley applies to the case sub judice. And accordingly, we are constrained to hold that the trial court erred in admitting the child-hearsay statements made during the two forensic interviews because those statements were clearly testimonial. But this error was harmless beyond a reasonable doubt because the statements to the forensic interviewers were cumulative of the admissible nontestimonial statements V. B. made to her mother and her mother’s boyfriend — i.e., that Whorton touched the child upon the genitals with his hand. Accordingly, the admission of those statements was harmless.

3. Finally, Whorton argues that the evidence was insufficient to sustain his conviction because it was based entirely upon inadmissible hearsay testimony. But this enumeration of error is without merit based upon our holdings in Divisions 1 and 2, supra. Indeed, the child-hearsay statements admitted against Whorton, in which V. B. alleged that he touched her upon the genitals, were sufficient to support his convictions for child molestation and sexual battery.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

Decided April 10, 2013

David L. Smith, for appellant.

Robert E. Brooks, Jr., District Attorney, Gary D. Bergman, John D. Browning, Charles A. Spahos, Assistant District Attorneys, for appellee.

       The convictions merged for sentencing purposes.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330 (682 SE2d 671) (2009).

       Former OCGA § 16-6-4 (a) (2007) (“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”) (current version at OCGA § 16-6-4 (a) (1)).

       OCGA § 16-6-22.1 (b) (“A person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.”).

        Goolsby, 299 Ga. App. at 330 (punctuation omitted).

        Id. at 330-31 (punctuation omitted).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       201 Ga. App. 238 (411 SE2d 65) (1991).

       OCGA § 24-3-16 (2010), repealed by Ga. L. 2011, p. 99, § 2 (effective Jan. 1, 2013). OCGA § 24-8-820, which became effective January 1, 2013, contains language identical to that quoted above from former OCGA § 24-3-16, but the provisions of Georgia’s new evidence code “apply to any motion made or hearing or trial commenced on or after” January 1, 2013. Ga. L. 2011, p. 99, § 101. Because Whorton’s trial occurred before this date, the prior evidence code applies in the case sub judice.

        Gregg, 201 Ga. App. at 240 (3) (b).

        Id. (emphasis omitted).

        Id. at (3) (a); accord Henry v. State, 316 Ga. App. 132, 136 (6) (729 SE2d 429) (2012); Robinson v. State, 308 Ga. App. 45, 47 (2) (a) (706 SE2d 577) (2011); Phillips v. State, 284 Ga. App. 224, 226 (1) (a) (644 SE2d 153) (2007).

        Robinson, 308 Ga. App. at 47 (2) (a) (punctuation omitted); see also Henry, 316 Ga. App. at 136 (6) (“[T]here is no requirement that a trial court make an explicit finding of sufficient indicia of reliability prior to the admission of the child’s out-of-court statements.”); Phillips, 284 Ga. App. at 227 (1) (a) (“[T]he trial court need not make an express finding that the circumstances of the statement at issue provide sufficient indicia of reliability before admitting the statement. . . .”).

        Gregg, 201 Ga. App. at 239 (3) (a) (punctuation omitted); accord Phillips, 284 Ga. App. at 227 (1) (a).

        Gregg, 201 Ga. App. at 240 (3) (a).

       267 Ga. App. 811 (600 SE2d 793) (2004).

       257 Ga. 725 (363 SE2d 249) (1988).

        Id. at 726 (2).

        See The Compact Oxford English Dictionary 22 (2nd ed. 1991) (defining “advisable” as meaning, inter alia, “recommended, expedient, prudent”).

        See The Compact Oxford English Dictionary 1565 (2nd ed. 1991) (defining “require” as meaning, inter alia, “to demand as necessary or essential on general principles, or in order to comply with or satisfy some regulation”).

        See Ga. Const., art. VI, § VI, ¶ VI (1983) (“The decisions of the Supreme Court shall bind all other courts as precedents.”); State v. Smith, 308 Ga. App. 345, 352 (707 SE2d 560) (2011) (“[T]he doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.”); State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“Stare decisis is an important principle that promotes the rule of law....”); see also Kurt T. Lash, Originalism, Popular Sovereignty, and Reverse Stare Decisis, 93 Va. L. Rev. 1437, 1454 (2007) (noting that “[v]ertical stare decisis refers to the binding effect of precedent on lower courts,” and that “[s]erious rule of law costs would follow if lower courts were free to ignore precedent established by a higher court of appeal”).

       Whorton’s suggestion that we supplant our Supreme Court’s decision in Reynolds with Ferreri is done by characterizing this Court’s holding in Ferreri as a “significant clarification” of Reynolds. This Court is not, of course, at liberty to “clarify a Supreme Court decision in a manner that is fundamentally at odds with the holding of that case.

       267 Ga. App. at 814.

       In his brief, Whorton makes much ado over this Court’s statement in Ferreri that “a pretrial Gregg hearing was necessary to prevent the harm that did, in fact, occur in this case,” id. (emphasis supplied), but his enthusiasm for this out-of-context snippet from the opinion is misplaced. It may very well be that under the extraordinary facts of Ferreri, the only practical way the trial court could have avoided the harm that resulted in that case was to hold a pre-trial Gregg hearing; but the unique posture of Ferreri does not change the fact that the trial court’s error in that case was in allowing improperly admitted hearsay evidence to contaminate the trial, not in failing to hold a pre-trial hearing. Put another way, the trial court’s refusal to hold a pre-trial hearing may have ultimately led it into reversible error, but our Supreme Court’s decision in Reynolds precludes us from deeming such refusal itself to be per se reversible error. And while our Supreme Court does not provide an explicit rationale for its holding in Reynolds, it is easy to see why our appellate colleagues would be leery of imposing an extratextual requirement of a pre-trial hearing in certain cases, infringing on a trial court’s ability to consider the necessity of such a pre-trial hearing on a case-by-case basis. It is not the role of an appellate court to micromanage the manner in which a trial court conducts its proceedings. See Wang v. Liu, 292 Ga. 568, 570 (1) (740 SE2d 136) (2013) (refusing to micromanage trial court’s conduct of its proceedings by declining to find that specific findings are required as to enumerated statutory requirements when ruling upon motions to dismiss for forum non conveniens). Finally, it is worth noting that although this Court did direct the trial court in Ferreri on remand to hold a pre-trial Gregg hearing, this was done as a remedial measure and can in no way be understood as undermining our Supreme Court’s holding in Reynolds.

       267 Ga. App. at 814.

        See id. at 813-14 (finding insufficient indicia of reliability when circumstances included the following: some questioning conducted by law enforcement; one interview was “chaotic”; some interviews included repeated denials and persistent questioning; child had “just turned three” at first interview; taped interviews took place over seven-month period; child repeatedly said she was tired and wanted to stop during some interviews; child was offered repeated tangible and verbal rewards; many statements were contradictory; allegations arose against father in context of acrimonious divorce; evidence of possible “coaching” or prompting by child’s mother).

       While it is true that in V. B.’s statement to the mother’s boyfriend and the Alabama forensic interviewer she indicated that Whorton had touched her during a visit with her father and that she later recanted this allegation during questioning by the counselor, V. B. never recanted the allegation that Whorton touched her while visiting her grandmother, which formed the basis of Whorton’s conviction.

        See Hughes v. State, 297 Ga. App. 581, 583-84 (2) (677 SE2d 674) (2009) (holding that videotaped child-hearsay statements were properly admitted when, unlike the facts in Ferreri, the statements provided sufficient indicia of reliability).

       290 Ga. 480 (722 SE2d 67) (2012).

        Id. at 483-84 (I).

        See id. at 484-85 (II).

        See Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992) (“In order to ensure that similarly situated defendants are treated similarly and to maintain the integrity of the judicial process while still providing finality, we deem it appropriate to adopt the ‘pipeline’ approach, that is, that a new rule of criminal procedure... will be applied to all cases then on direct review or not yet final.”).

        See Hatley, 290 Ga. at 484-85 (II) (holding that statement to forensic interviewer was testimonial, and defining testimonial statements as those made “when the circumstances objectively indicate that there is no... ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” (punctuation omitted)).

        See id. (holding that child’s outcry statement to mother was nontestimonial, and defining nontestimonial). We need not determine whether the statements made to the counselor were testimonial or nontestimonial because these statements were also cumulative of the admissible nontestimonial statements. See id. at 485 (II) (declining to decide whether some statements were testimonial or nontestimonial when they were cumulative of admissible nontestimonial statements).

        See id. at 484-85 (II).

        See id. at 485 (II) (affirming defendant’s conviction for child molestation); see Copeland v. State, 319 Ga. App. 585, 586 (737 SE2d 590) (2013) (“[Tjhe testimony of a single witness is generally sufficient to establish a fact.”).


author: Ray, Judge. DOYLE, Presiding Judge, MILLER, Presiding Judge,

text:
    A12A0514.
    MONTGOMERY v. BANK OF AMERICA et al.
    (740 SE2d 434)
   Ray, Judge.

Roosevelt Montgomery filed suit against Bank of America, BAC Home Loans Servicing, Inc. (“BAC”), Mortgage Electronic Registration Systems, Inc. (“MERS”), Prommis Solutions, LLC, and McCalla Raymer, LLC (collectively, “Appellees”) asserting claims for wrongful foreclosure, slander of title, slander of credit, quiet title, fraud, and intentional infliction of emotional distress. Montgomery appeals from the trial court’s order granting Appellees’ motion for judgment on the pleadings as to all claims. For the following reasons, we affirm.

When, as in this case, [the defendants] file[ ] a motion for judgment on the pleadings and do[ ] not introduce affidavits, depositions or interrogatories in support of the motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Such a motion should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the plaintiff’s claim. On appeal, we review de novo the trial court’s decision on a motion for judgment on the pleadings, and we construe the complaint in a light most favorable to the appellant, drawing all reasonable inferences in his . . . favor.

So viewed, the record shows that, on May 16, 2008, Montgomery obtained a mortgage from the National Bank of Kansas City and, in conjunction therewith, executed a promissory note and security deed. The security deed named MERS as a nominee of the lender and as the grantee under the security instrument. The security deed conveyed to MERS, and its successors and assigns, the right to exercise any or all of the interests granted under the security deed, including the right to foreclose and sell the property. In 2010, MERS assigned all of its right, title and interest in and to the security deed to BAC. The assignment was duly filed and recorded on April 16, 2010. After Montgomery defaulted on his mortgage payments, BAC retained the law firm of McCalla Raymer, LLC to assist with initiation of nonjudicial foreclosure.

In response, Montgomery filed suit against Appellees. Montgomery predicated each of his claims on the allegations that BAC lacked the authority to initiate nonjudicial foreclosure on his property because (1) MERS lacked the authority to assign such authority to BAC and (2) such assignment was not valid.

1. Montgomery contends that the trial court erred in granting Appellees’ motion for judgment on the pleadings. We disagree.

Broadly construed in Montgomery’s favor, the claims set forth in the complaint are essentially based on two allegations: (1) that MERS had no legal interest with respect to the promissory note or security deed, and, thus, had no interest to assign to BAC; and (2) that the McCalla Raymer attorney executing the assignment on MERS’ behalf did so improperly or without the appropriate authority.

“Under Georgia law... a security deed which includes the power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies.” Furthermore, OCGA § 23-2-114 provides:

. . . Unless the instrument creating the power [of sale] specifically provides to the contrary, a . . . successor of the grantee in a mortgage, . . . deed to secure debt, ... or other like instrument, or an assignee thereof... may exercise any power therein contained; and such powers may so be exercised regardless of whether or not the transfer specifically includes the powers or conveys title to the property described. . . .

The security deed at issue in this case expressly provides that “MERS is the grantee under this Security Instrument,” that “Borrower does hereby grant and convey to MERS ... and the successors and assigns of MERS, with power of sale,” with regard to the property, and... “[t]o have and to hold this property unto MERS ... and to the successors and assigns of MERS . . . .” The security deed further provides:

Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but... MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security instrument.

Thus, the security deed expressly conveyed title to the interests in the security deed to MERS, gave MERS the right to invoke the power of sale, and authorized MERS to assign its rights and interests in the security deed to BAC.

Montgomery also contends that Appellees failed to comply with the filing requirements of OCGA § 44-14-162 (b). However, the pleadings clearly indicate that Appellees filed the assignment of the security deed on April 16, 2010 and that the foreclosure sale was scheduled for May 4, 2010. Accordingly, this argument lacks merit.

2. In related enumerations of error, Montgomery contends that the trial court erred in granting the motion for judgment on the pleadings, in part, because the trial court wrongfully determined that the assignment of the security deed was valid, and that Montgomery lacked standing to contest the validity of the assignment. We discern no error.

Montgomery argues that MERS did not have an interest in the promissory note at the time of the assignment and, therefore, did not assign the promissory note to BAC along with the security deed. Montgomery further argues that acceleration of the promissory note is a condition precedent to invoking the power of sale contained in the security deed, thereby inferring that one must possess both the promissory note and the security deed in order to carry out a nonjudicial foreclosure. There is no statutory authority or case law from Georgia courts to support this argument.

Montgomery also contends that the trial court erred in upholding the validity of the assignment because the attorney who purportedly executed the assignment on MERS’ behalf (C. Troy Crouse) did not, in fact, execute the assignment. At the motions hearing, Montgomery argued that Crouse’s signature on the assignment did not match his signature on other documents. In addressing this claim, the trial court found that the assignment was contractual, and because Montgomery was not a party to the assignment, that he lacked the standing to contest its validity.

As the trial court correctly found, the assignment at issue is a contract between MERS and BAC. Even if we were to assume, for the purposes of argument, that Crouse’s execution of the assignment on behalf of MERS was flawed, the proper party to bring a claim against MERS would be the other party to the assignment, BAC. Accordingly, Montgomery has no basis to contest the validity of the assignment.

3. Montgomery contends that the trial court erred in denying his motion to amend the pleadings, motion to enforce subpoenas, and motions relating to discovery because the trial court did not provide him with an opportunity to be heard on the motions. We disagree.

Appellees filed their joint answer to the complaint on July 16, 2010. Appellees then filed a motion for judgment on the pleadings pursuant to OCGA § 9-11-12 (c) onAugust 25,2010. Montgomery did not timely respond to that motion, and over the next several months he made no effort to take discovery. On January 14, 2011, the last business day before the discovery period expired, Montgomery filed a motion to extend discovery and served extensive discovery requests on January 15,2011. OnFebruary 16,2011, Appellees served responses to Montgomery’s discovery requests, objecting to all of them on the grounds that they were untimely served, overbroad and unduly burdensome, sought irrelevant information, and/or were not reasonably calculated to lead to the discovery of admissible evidence. Montgomery re-served his discovery requests in the form of notices to produce, and Appellees filed a motion to quash. Montgomery then filed motions to enforce the notices to produce.

The trial court scheduled a hearing on all pending motions for February 24,2011. On February 23,2011, McCalla Raymer, LLC and Prommis Solutions, LLC filed a motion to quash a non-party witness subpoena and a subpoena for the production of evidence that Montgomery had served upon non-party Crouse, the attorney at McCalla Raymer, LLC who executed the assignment of the security deed from MERS to BAC. On the date of the hearing, Montgomery filed a motion to compel discovery and a motion to enforce the subpoenas served on Crouse.

At the motions hearing, Montgomery’s counsel conceded that the ruling on the motion for judgment on the pleadings could be dispositive of all issues in the case. The trial court heard argument on the motion for judgment on the pleadings and, after acknowledging that the motion “could be dispositive of the case,” took the matter under advisement and deferred consideration of the other motions until it made its ruling on the motion for judgment on the pleadings. Montgomery’s counsel did not object. Thereafter, the trial court entered its order granting Appellees’ motion for judgment on the pleadings. In so ruling, the trial court found that the remaining discovery-related motions were moot. We discern no error.

For the above reasons, the trial court did not err in granting Appellees’ motion for judgment on the pleadings.

Judgment affirmed.

Phipps, P. J., Andrews, P. J., and Branch, J., concur. Doyle, P. J., and Boggs, J., concur specially. Miller, P. J., dissents.

DOYLE, Presiding Judge,

concurring specially.

I concur fully with the majority. I write separately only to note that while I concurred in the opinion in U. S. Bank, N.A. v. Phillips, in which we vacated the trial court’s order regarding the appellee’s wrongful foreclosure claim and remanded the case with instruction that the case be stayed pending the decision of the Supreme Court of Georgia in You v. JPMorgan Chase Bank, N.A., No. 1:12-cv-202-JEC-AJB, 2012 U. S. Dist. LEXIS 127461, at *12 (III) (C) (N.D. Ga. Sept. 7, 2012), for the reasons set forth in the majority opinion and in the interest of judicial economy, I agree that this case should be affirmed.

Decided March 29, 2013

Reconsideration denied April ll, 2013

Douglas R. Daum, for appellant.

McCalla Raymer, Jimmy T. Howell, Jr., Steven J. Flynn, Hunton & Williams, Brooke F. Voelzke, for appellees.

I am authorized to state that Judge Boggs joins in this special concurrence.

MILLER, Presiding Judge,

dissenting.

I dissent from the majority’s opinion in this case. Montgomery asserted in his complaint that the assignment from Mortgage Electronic Registration Systems, Inc. (“MERS”) to BAC Home Loans Servicing, Inc. (“BAC”) was invalid because MERS did not hold the promissory note and BAC therefore lacked authority to foreclose. Moreover, Montgomery raised this issue on appeal, albeit without citation to authority.

Montgomery’s claim appears to raise the same question posed in You v. JPMorgan Chase Bank, N.A., No. 1:12-cv-202-JEC-AJB, 2012 U. S. Dist. LEXIS 127461, at *17 (III) (C) (N.D. Ga. Sept. 7, 2012), inquiring as to whether or not a security deed holder who does not also hold the promissory note, or have an interest in the underlying debt obligation, can validly institute foreclosure proceedings. Because there are no clear controlling precedents deciding this issue, the United States District Court for the Northern District of Georgia certified this question to the Supreme Court of Georgia. Id.

The Supreme Court of Georgia’s decision in You v. JP Morgan Chase Bank, N.A., Case No. S13Q0040 (docketed Sept. 13, 2012) will be dispositive of the question of whether Montgomery’s complaint asserts a viable claim for relief against BAC. Accordingly, the Court should remand this case with instructions that any further proceedings in this matter should be stayed until the Supreme Court of Georgia has rendered its decision in You, supra, as we did in U. S. Bank, N.A. v. Phillips, 318 Ga. App. 819, 826 (4) (734 SE2d 799) (2012).

       (Citations and punctuation omitted.) McCobb v. Clayton County, 309 Ga. App. 217 (710 SE2d 207) (2011).

        Gordon v. South Central Farm Credit, ACA, 213 Ga. App. 816, 817 (446 SE2d 514) (1994).

       See also OCGA § 44-14-60 (A security deed “pass[es] the title of the property to the grantee until the debt or debts which the conveyance was made to secure shall be fully paid”).

       OCGA § 44-14-162 (b) provides that “[t]he security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.”

       See OCGA § 44-14-64 (b) (“Transfers of deeds to secure debt . . . shall be sufficient to transfer the property therein described and the indebtedness therein secured, whether the indebtedness is evidenced by a note or other instrument.”); see also Davis v. Bank of America,

        N.A., 2012 WL 3949224 (N.D. Ga. Sept. 12, 2012) (“[S]plitting a note and a deed does not render either instrument invalid under Georgia law” punctuation omitted)); LaCosta v. McCalla Raymer, LLC, 2011 WL 166902 (N.D. Ga. Jan. 18, 2011) (finding no support in Georgia law for the theory that an entity or individual in possession of the security deed must also possess the note before bringing a foreclosure action). Cf. Morgan v. Ocwen Loan Servicing, LLC, 795 FSupp.2d 1370 (N.D. Ga. 2011). We note that, in You v. JPMorgan Chase Bank, Case No. 1:12-cv-202-JEC-AJB, 2012 WL 3904363 (N.D. Ga. Sept. 7, 2012), the United States District Court for the Northern District of Georgia has certified the question to the Supreme Court of Georgia (Case No. S13Q0040, docketed Sept. 13, 2012) to decide “whether a deed holder who does not also hold the note, or have an interest in the underlying debt obligation, can validly institute foreclosure proceedings.” At the time of our opinion in this case, the Supreme Court had not made a decision on the certified question.

        Bank of Cave Spring v. Gold Kist, Inc., 173 Ga. App. 679, 680 (1) (327 SE2d 800) (1985).

       OCGA § 9-2-20 (a) (“an action on a contract... shall be brought in the name of the party in whom legal interest in the contract is vested, and against the party who made it in person or by agent”).

       Montgomery’s response to the motion for judgment on the pleadings was filed on January 7, 2011.

       318 Ga. App. 819 (734 SE2d 799) (2012).

        You was docketed in the Supreme Court of Georgia on Sept. 13, 2012.