author: Self, Judge.

text:
    A17A0391.
    LYNCHAR, INC. et al. v. COLONIAL OIL INDUSTRIES, INC.
    (801 SE2d 576)
   Self, Judge.

Colonial Oil Industries, Inc. (“Colonial”) filed the instant suit on an account against Lynchar, Inc. d/b/a T&W Oil Company (“Lynchar”), and two of its shareholders, Lawrence M. Derby, Sr. and Charles G. Thompson, Jr. (collectively, “appellants”), alleging that appellants owed $1,406,194.61 in principal, plus interest, on an open account for the sale and delivery of fuel products and other goods by Colonial. Colonial alleged that Derby and Thompson signed personal guaranties for the debts of Lynchar and were therefore liable for the same. The trial court entered an order granting Colonial’s motion for partial summary judgment and denying appellants’ motion for partial summary judgment. Appellants appeal both rulings. For the reasons that follow, we reverse.

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. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Community Magazine v. Color Xpress, 326 Ga. App. 330 (756 SE2d 564) (2014). So viewed, the record reflects that Colonial entered into an account agreement with Lynchar whereby Colonial would sell and deliver fuel products and other goods. A “New Account Data Sheet” signed December 10, 1986, lists “Lynchar Inc. d/b/a T&W Oil Co.” as the billing name on the account. An updated “Account Data Sheet and Agreement” signed August 18, 1997, lists “T&W Oil Co.” as the billing name on the account. The signature block of the 1997 agreement lists the “Company Name” as “T&W Oil.” In 2007 and 2008, Thompson and Derby executed personal guaranties. Both guaranties identify Colonial as the “Holder” and T&W Oil, Inc., as the “Debtor,” and Derby’s guaranty provides as follows:

On this the 23[rd] day of April, 2008[,] in consideration of and as inducement for Colonial Oil Industries, Inc. (hereinafter, “Colonial” or “Holder”) to sell product to T&W Oil, Inc. (“Debtor” or “Borrower”) on credit or delayed payment terms, to extend to Debtor existing or new credit or indebtedness, and/or to otherwise assume a credit risk with respect to Debtor whereby Debtor will owe to Colonial money, each of the undersigned guarantors (hereinafter, collectively and individually a “Guarantor”) do hereby agree, jointly and severally, as follows:
1. Guarantor hereby unconditionally and absolutely guarantees to the Holder the full and prompt payment, when due, of all of the “Obligations.” “Obligations” shall mean and include all indebtedness and liability of whatsoever nature of the Borrower to the Holder . . . together with any and all costs and expenses of and incidental to the collection any of the foregoing or the enforcement of this Guaranty, including, but not limited to, reasonable [attorney] fees and costs and expenses of litigation generally.
16. ... In the event Guarantor breaches this Guaranty, then Guarantor shall pay to Holder all costs of the Holder in enforcing this Guaranty and collection of the Liabilities, including but not limited to reasonable [attorney] fees and the costs and expenses of litigation. . . .

Thompson and Derby are shareholders in Lynchar, Inc., and both aver that they have never been associated with an entity known as “T&W Oil, Inc.”

When Lynchar failed to meet its obligations under the agreements, Colonial sued appellants asserting claims for breach of the account agreement, promissory estoppel, breach of both guaranties, and attorney fees. The complaint alleged as follows:

Pursuant to an agreement with Defendant T&W Oil and personal guaranty agreements with Defendant Lawrence M. Derby, Sr. and Defendant Charles G. Thompson, Jr., Plaintiff sold and delivered fuel products and other goods to Defendant T&W Oil on account. The outstanding balance on this account for product sold is $1,406,194.61 plus interest.
Defendant. . . Derby . . . signed a Guaranty Agreement through which he bound himself to be personally liable for any amounts owed Plaintiff by Defendant T&W Oil. . . .
Defendant. . . Thompson . . . signed a Guaranty Agreement through which he bound himself to be personally liable for any amounts owed Plaintiff by Defendant T&W Oil. . . .

Appellants filed an answer, admitting these allegations but disputing the amount owed. In an amended answer, appellants later denied these allegations and raised a new affirmative defense based on the Statute of Frauds. Thereafter, appellants moved for partial summary judgment on Colonial’s claims for breach of the guaranties and attorney fees, arguing that the guaranties were not enforceable because they failed to identify the correct principal debtor, Lynchar, Inc.

In the meantime, Colonial amended its complaint to include a claim for fraud. Colonial also moved for partial summary judgment on all of its remaining claims with the exception of its claim for promissory estoppel. In support of its contention that summary judgment was proper, Colonial pointed to appellants’ admissions in their original answer as well as various e-mails between Derby as “President of T&W Oil Company” and Colonial’s credit manager evincing Lynchar’s inability to satisfy its payment obligations as well as its desire to continue doing business with Colonial and pay off its account “in full.” Colonial also pointed to Derby’s deposition testimony and Lynchar’s federal tax return in support of its motion. During his deposition, Derby confirmed that the 2011 federal tax return listed the corporate name as “LYNCHAR, INC. D/B/A T&W OIL COMPANY, INC.” Regarding the guaranty, Derby testified as follows:

Q: What was your understanding of what this document, this guaranty, was supposed to do?
A: Personal guaranty, you know, for the debt.
Q: And what does that mean?
A: That I’d be held responsible.
Q: And what debt were you going to be personally responsible for?
A: From Colonial.
Q: Whose debt were you covering personally?
A: It would be Lynchar.
Q: Okay Lynchar doing business as —
A: T&W Oil.
Q: Okay The document refers to T&W Oil, Inc. Do you see that?
A: [. . .] Okay, I see it now.
Q: Why is that name in there?
A: I’m not sure.
Q: Well, is that a correct name of whose debt you were going to guaranty?
A: No, ma’am. We don’t go by that name.
Q: Okay. Did you tell Colonial that that was not the proper name?
A: No, ma’am.
Q: Was it your intent to deceive Colonial at that point?
A: No ma’am.
Q: Okay. So in fact, you wanted Colonial to rely upon this [guaranty] in providing you fuel products?
A: Right. Yes ma’am.

Derby further testified that he understood that the guaranty he signed “was to guaranty the debt of T&W Oil Company to Colonial Oil” and that he would be “personally responsible” for that debt.

Appellants objected to Colonial’s reliance on parol evidence to construe the unambiguous guaranties. Following a hearing on the cross-motions for partial summary judgment, the trial court overruled appellants’ objection and granted Colonial’s partial motion for summary judgment; the trial court contemporaneously denied appellants’ partial motion for summary judgment. The trial court ruled that appellants admitted the debt and that Colonial established a prima facie right to judgment on its breach of contract claim. Based on the evidence recounted above, the trial court also ruled that the guaranties were enforceable even though they identified the debtor as “T&W Oil, Inc.,” instead of “Lynchar” or “T&W Oil Company” because Derby and Thompson admitted the interchangeable nature of the names and that under L. Henry Enterprises v. Verifone, Inc., 273 Ga. App. 195 (614 SE2d 841) (2005), parol evidence was admissible to explain ambiguities in descriptions. Finding that the account agreement and guaranties provided for attorney fees, the trial court also granted summary judgment to Colonial on its claim for attorney fees. In its order, the trial court reserved for later determination the issue of damages. Appellants appeal the trial court’s rulings as to Colonial’s claims for breach of the guaranties and attorney fees.

1. In five somewhat overlapping enumerations, appellants contend that the trial court erred in granting partial summary judgment to Colonial on the guaranties because (1) the guaranties are unambiguous, and (2) parol evidence is not admissible to interpret an unambiguous contract. According to appellants, the guaranties identify the principal debtor as “T&W Oil, Inc.,” which is not a legally-existing entity. Appellants contend that the guaranties here are identical to the one in PlayNation Play Systems v. Jackson, 312 Ga. App. 340 (718 SE2d 568) (2011), which we found unenforceable because it failed to reference the corporate debtor. Appellants assert that PlayNation requires that we reverse the trial court’s order. Colonial disagrees, contending that PlayNation is distinguishable and that this case is controlled by L. Henry, supra. We agree with appellants.

“The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another. . . OCGA § 10-7-1. Moreover, “[a] personal contract of guaranty must be in writing and must satisfy all of the requisites of the [S]tatute of [F]rauds, OCGA § 13-5-30 (2).” Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, 461 (489 SE2d 568) (1997). As we reiterated in Community Magazine, supra,

under the Statute of Frauds and cases applying the Statute, a promise to answer for another’s debt is only enforceable against the promisor if it identifies the debt, the principal debtor, the promisor, and the promisee. It is well settled that a guaranty must identify the principal debtor by name. If a guaranty omits the name of the principal debtor, of the promisee, or of the promisor, the guaranty is unenforceable as a matter of law. Even where the intent of the parties is manifestly obvious, where any of these names is omitted from the document, the agreement is not enforceable because it fails to satisfy the Statute of Frauds. Moreover, a court must strictly construe an alleged guaranty contract in favor of the guarantor. The guarantor’s liability may not be extended by implication or interpretation. And parol evidence is not admissible to supply any missing essential elements of a contract required to be in writing by our Statute of Frauds. Thus, this Court is not authorized to determine the identity of the principal debtor, of the promisee, or of the promisor by inference as this would entail consideration of impermissible parol evidence.

(Citation and punctuation omitted.) 326 Ga. App. at 332 (1). See Legacy Communities Group v. Branch Banking & Trust Co., 316 Ga. App. 496, 497 (729 SE2d 612) (2012) (“It is well settled that a guaranty must identify the principal debtor by name.”) (emphasis in original). See also Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982) (guaranty which omitted name of principal debtor, but which defendants admitted to executing, did not satisfy the Statute of Frauds and was, therefore, unenforceable; parol evidence inadmissible to “supply. . . description which is entirely wanting in the writing”) (citation and punctuation omitted).

In PlayNation, the owner of The Bottom Line, a limited liability corporation in the business of selling and installing children’s swing sets, entered into a dealership agreement with a swing set manufacturer. One month after signing the agreement, the owner signed a guaranty for the debts of “Swing Set Planet.” The guaranty named only “Swing Set Planet,” The Bottom Line’s fictitious name or d/b/a designation, without any reference to The Bottom Line or other legal entity it was describing. The owner subsequently changed The Bottom Line’s fictitious name to “PlayNation Parties and Playgrounds” and then failed to make payments on outstanding invoices. The manufacturer sued for breach of the guaranty, and the trial court granted the owner’s motion for summary judgment, ruling that he could not be held responsible for the debt of PlayNation Parties because the debtor listed on the guaranty was Swing Set Planet. We affirmed, rejecting the manufacturer’s argument that the owner promised to pay the debts of The Bottom Line, and finding that the guaranty named only the fictitious name or d/b/a designation, without any reference to a corporation or other legal entity. Because the guaranty named only Swing Set Planet, we concluded that the owner was, therefore, not obligated to guarantee the debt of The Bottom Line or PlayNation Parties: “To hold otherwise would extend a guarantor’s liability by implication or interpretation — an act forbidden to the courts.” PlayNation, supra, 312 Ga. App. at 340-342. Compare American Express Travel Related Svcs. Co. v. Berlye, 202 Ga. App. 358, 360 (1) (414 SE2d 499) (1991) (guaranty enforceable where change in d/b/a designation did not alter fact that guaranty named the corporation as the agent).

We find the rationale in PlayNation to be dispositive of the issue here. In PlayNation, the guaranty was unenforceable not because the d/b/a name changed but because the guaranty failed to designate the corporate debtor. In this case, as in PlayNation , the guaranties do not reference the corporate debtor but, rather, reference Lynchar’s d/b/a designation, T & W Oil, Inc. “The use of d/b/a or ‘doing business as’to associate a tradename with the corporation using it does not create a legal entity separate from the corporation but is merely descriptive of the corporation.” Berlye, supra, 202 Ga. App. at 360 (1). We did not find any ambiguity in the defect at issue in PlayNation, and we find similarly in this case. Where a defect cannot be treated as an ambiguity, judicial construction of the contract of guaranty is improper, and parol evidence is inadmissible to cure the defect. See Sysco Food, supra, 227 Ga. App. at 462. Strictly construing the guaranties here, we cannot conclude that Derby and Thompson were obligated to guarantee the debt of the corporation, Lynchar, Inc. Accordingly, the trial court erred in granting summary judgment to Colonial on its claims under the guaranties.

Colonial’s assertion that the guaranties here are ambiguous and that L. Henry, supra, and not PlayNation, controls this case is incorrect. In L. Henry, the corporate maker’s name on the note and guaranty differed slightly, and we affirmed the trial court’s consideration of parol evidence to explain the ambiguity Because the defendant in L. Henry signed the guaranty contemporaneously with a note which had the correct corporate name, our decision was based on the “contemporaneous writing” rule. L. Henry, supra, 273 Ga. App. at 198 (2). See OCGA § 24-3-3 (a). See also Duke v. KHD Deutz of America Corp., 221 Ga. App. 452 (471 SE2d 537) (1996) (where guaranty was executed at the same time and in the course of the same transaction as a loan and security agreement and a stock pledge agreement, the three documents could be read and construed together under the contemporaneous writing rule, OCGA § 24-3-3 (a), formerly OCGA § 24-6-3 (a), to determine the identity of the principal debtor). Because the account agreement in this case had been in effect years before the guaranties were executed, the “contemporaneous writing” rule does not apply and L. Henry is inapposite.

2. Relying on Citrus Tower Boulevard Imaging Center v. Owens, 325 Ga. App. 1 (752 SE2d 74) (2013), appellants contend in their third enumeration of error that the trial court erred in considering their withdrawn admissions. We agree.

OCGA § 24-8-821 provides that “[wjithout offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other.”

Under OCGA § [24-8-821, formerly OCGA § 24-3-30], admissions in judicio in a party’s pleadings bind the party so that they cannot put up evidence over objection to contradict such admissions. However, if the party amends its pleadings to withdraw the admissions, it may then introduce evidence contravening the admissions. If such contradictory evidence is admitted, even over the objection of the other party, then under OCGA § 9-11-15 (b), such evidence may be deemed to amend the pleadings to withdraw the admissions.

(Citations and punctuation omitted.) SAKS Assoc. v. Southeast Culvert, 282 Ga. App. 359, 364 (2) (638 SE2d 799) (2006). “Even so, the other party may rely on the original admission as evidence.” Citrus Tower, supra, 325 Ga. App. at 4 (1). As we noted in Citrus Tower,

[i]n other words, although a party may withdraw or strike from the pleadings an admission in judicio by amendment and tender evidence to contravene such admission, the opposite party can tender in evidence the original admission in judicio against such party as an admission against interest. Even after its withdrawal, an opposing party undeniably has a right to use it as evidence.

(Citation and punctuation omitted.) Id. Citrus Tower makes it clear, however, that

an admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact. Thus, where the admission is simply an opinion on the part of the party making it as to the legal effect of a paper, the withdrawn admission is not a fact that can be taken advantage of by the opposing party.

(Citations and punctuation omitted.) Id.

Here, Colonial argued, and the trial court agreed, that Colonial was entitled to recover under the guaranties because both Derby and Thompson admitted in the original answer to entering into personal guaranties with Colonial making them personally liable for any amounts owed Colonial by “T&W Oil.” Appellants subsequently withdrew this answer, however, and admitted that “Colonial had an agreement with, and sold and delivered fuel products and other goods to, Defendant Lynchar, Inc. d/b/a T&W Oil Company on account.” Appellants denied the amount owed and also denied that Derby and Thompson “signed. . . Guaranty Agreement^] through which [they] bound [themselves] to be personally liable for any amounts owed Plaintiff by Defendant T&W Oil.” Appellants urge us to follow our reasoning in Citrus Tower and find that the withdrawn admissions go to the legal effect of the guaranties — not to any factual issue — which Colonial cannot use to its advantage. We agree that Citrus Tower controls the issue here.

In Citrus Tower, the plaintiff sued for breach of a lease and sought to recover against the defendant in his personal capacity to recover rent and other amounts under a guaranty signed by the defendant. The defendant admitted in his original answer to executing the guaranty whereby he guaranteed payment of all sums owing under a lease. In an amended answer, the defendant later denied those allegations. The trial court granted summary judgment to the defendant, presumably finding that the defendant had executed the guaranty as a representative of his professional corporation and not in his personal capacity This Court affirmed, finding that “[defendant’s] admission that he ‘executed’ the Guaranty may demonstrate that he signed the Guaranty, but that fact is undisputed and in itself does not create a genuine issue of material fact as to whether [defendant] was personally bound thereby” Citrus Tower, supra, 325 Ga. App. at 5 (1) (emphasis omitted). Similarly, in this case, the trial court erred in relying on the withdrawn admissions because those admissions went to the legal effect of the guaranties and were not evidence of whether the written guaranties complied with the Statute of Frauds or the requirement that the debtor be identified.

Decided May 31, 2017

Brown & Adams, Benjamin W. Wallace, for appellants.

Ellis, Painter, Ratterree & Adams, Tracy C. O’Connell, Philip M. Thompson, for appellee.

3. Finally, appellants contend that because the guaranties are unenforceable, the trial court erred in granting summary judgment to Colonial on its claim for attorney fees. Given our finding that the guaranties are unenforceable, it follows that the trial court erred in granting summary judgment to Colonial on its claim for attorney fees under the guaranties.

Given the foregoing, we conclude that the trial court erred in granting Colonial’s motion for partial summary judgment on Counts 3, 4, and 6, and in denying appellants’ motion for partial summary judgment on those same counts.

Judgment reversed.

Dillard, P. J., and Ray, J., concur.

       As amended, the complaint alleged the following claims: breach of the account agreement (Count 1); promissory estoppel (Count 2); breach of Derby guaranty (Count 3); breach of Thompson guaranty (Count 4); fraud (Count 5); and attorney fees (Count 6). After Colonial amended its complaint, appellants amended their motion for partial summary judgment to include Colonial’s claim for fraud. The trial court granted summary judgment to appellants on the fraud claim.

       Appellants have not appealed the trial court’s grant of summary judgment to Colonial on its claim for breach of the account agreement.

       We render no opinion as to whether Colonial is entitled to attorney fees under any other theory or claim for relief.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A17A0444.
    HEATH v. COLOR IMPRINTS USA, INC. et al.
    (801 SE2d 107)
   Branch, Judge.

This is the second appearance of this case before us. In Heath v. Color Imprints USA, 329 Ga. App. 605 (765 SE2d 751) (2014) (“Heath I”), we reversed the trial court’s grant of summary judgment as to defendant Color Imprints USA, Inc., in plaintiff Richard Heath’s action on account against the company and its owners, Michael and John Saylor, but affirmed the grant as to the Saylors. Upon the return of the remittitur from this Court, however, the trial court dismissed Heath’s action as a sanction for failing to file a supplemental brief well before his first appeal. On this appeal, Heath argues that the trial court abused its discretion when it dismissed his action. We agree and reverse.

In July 2012, Heath brought this action for $41,833.77 against Color Imprints USA, Inc., and that company’s owners, the Saylors, for services Heath rendered as an accountant. On September 17, 2013, the trial court held a hearing as to whether defendants could withdraw admissions deemed admitted as a result of their failure to respond to Heath’s requests. During this September 2013 hearing, Heath requested time for additional briefing on the question whether the withdrawal would prejudice him. The trial court agreed and ordered that Heath file a brief by October 10,2013. Heath failed to file this supplemental brief, however.

On December 2, 2013, Heath filed an amended complaint reducing the amount sought to $25,000. On December 12,2013, defendants moved for an order finding Heath in contempt and for sanctions, including dismissal, as to Heath’s failure to file the supplemental brief. On the same day, the trial court issued a rule nisi scheduling a hearing on defendants’ motion for contempt and sanctions for January 15, 2014. On January 6, 2014, however, the trial court granted summary judgment to all three defendants.

At the January 15 hearing on defendants’ motion for contempt and sanctions, Heath told the court that he was abandoning his former position that defendants should not be allowed to withdraw their admissions. At the conclusion of the hearing, the trial court made an oral ruling that Heath’s complaint would be dismissed as a sanction for his wilful violation of the court’s order, pursuant to his request, to file an additional brief on this issue. When Heath asked that the entry of the order of dismissal be delayed, the court agreed that it would not enter the dismissal until February 6.

In the meantime, on January 28, Heath filed a notice of appeal, and asserted on appeal that the trial court had erred in allowing defendants to withdraw their admissions such that its grant of summary judgment was also error. In Heath I, we affirmed the grant of summary judgment as to the Saylors but reversed the grant of summary judgment to Color Imprints, concluding that the trial court had abused its discretion when it allowed Color Imprints to withdraw its admissions and that an issue of fact remained as to the amount owed to Heath by the company 329 Ga. App. at 608-609 (2), (3) (b). The parties did not raise, and we did not address, the propriety of the pending dismissal. See id. at 605-606.

On the return of the remittitur following the issuance of our opinion on November 13, 2014, the trial court filed an order in which it recounted the history of the case, noted that Heath had disregarded its September 2013 order to file the supplemental brief he had requested, and entered an order dismissing the action “for [Heath’s] willful failure to comply” with that order. On appeal from this dismissal, Heath argues that the trial court abused its discretion in dismissing his appeal for failing to file the supplemental brief as ordered. We agree.

Under OCGA § 9-11-41 (b), a trial court may dismiss an action “[f]or failure of the plaintiff to prosecute or to comply with this chapter or any order of court [.] ” After a motion for dismissal, the trial court, sitting “as trier of the facts[,] may then determine the facts and render judgment against the plaintiff[.]” Id.; see also Weeks v. Weeks, 243 Ga. 416 (254 SE2d 366) (1979) (OCGA § 9-11-41 (b) “authorizes the trial court, upon motion, to dismiss any action for failure of the plaintiff to comply with an order of the court”). OCGA § 9-11-60 (h) also provides, however, that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” Thus “[although the law of the case rule has formally been abolished[,] it still applies to rulings by one of the appellate courts; they are binding in all subsequent proceedings.” Davis v. Silvers, 295 Ga. App. 103, 105 (670 SE2d 805) (2008) (punctuation and footnote omitted); see also IH Riverdale, LLC v. McChesney Capital Partners, 292 Ga. App. 841, 843 (666 SE2d 8) (2008).

Decided May 31, 2017.

Ashleigh R. Madison, Dewey N. Hayes, Jr., for appellant.

Patrick S. Ferris, for appellees.

Heath’s supplemental brief was ordered in 2013 on the question whether Heath would be prejudiced by defendants’ withdrawal of the admissions — the very topic this Court addressed in Heath I. In our 2014 opinion, we noted that Heath had not filed a brief on the issue and went on to hold that although the trial court did not abuse its discretion in allowing the Saylors to withdraw their admissions, the court had abused its discretion in allowing Color Imprints to do the same. 329Ga.App. at 607-608(2) (a), (b). Our holding in Heath/thus mooted the issue of defendants’ withdrawal of their admissions such that the trial court violated the law of the case rule when it returned to that issue in the context of whether to enter an order of dismissal against Heath. Although Heath should have either filed the supplemental brief he himself had requested or obtained the trial court’s permission not to do so, this trial court nonetheless abused its discretion when it dismissed Heath’s action for his failure to file a brief on an issue settled by this Court on his first appeal. We therefore reverse the dismissal and remand for further proceedings on the factual issue of the amount owed, if any, by Color Imprints to Heath. See id. at 609 (3) (b); Davis, 295 Ga. App. at 105 (affirming earlier grant of summary judgment on fraud claim when the parties were attempting to relitigate “the same issue already decided” on a second appeal).

Judgment reversed and case remanded.

McFadden, P. J., and Bethel, J., concur.

       See OCGA § 9-11-36 (a) (2) (a request for admission “is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney”), (b) (“the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”).

        See Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726, 727 (1) (405 SE2d 764) (1991) (“A court may grant a motion to withdraw (1) when the presentation of the merits will be subserved thereby and (2) the party obtaining the admission fails to satisfy the court that the withdrawal will prejudice maintaining his action or defense on the merits. The burden as to the first prong is on the party moving to withdraw and the burden as to the second prong is on the respondent.”), citing Whitemarsh Contractors v. Wells, 249 Ga. 194, 195 (288 SE2d 198) (1982).

       Although a transcript of this hearing has not been included in the appellate record, the trial court quoted the transcript in its order.


text:
    A17A0633.
    HYNES v. THE STATE.
    (801 SE2d 306)
   Self, Judge.

James Hynes was charged with failure to maintain lane, driving under the influence of alcohol (DUI) less safe, and DUI per se. He filed a motion to suppress the results of a blood test administered pursuant to a search warrant. Following a hearing, the trial court denied the motion. We granted Hynes’s application for interlocutory appeal, and after reviewing the record and hearing transcript, we affirm for the reasons set forth below.

The evidence in this case shows that on April 6, 2016, a deputy with the Cherokee County Sheriff’s Office observed Hynes weaving across the centerline of Bells Ferry Road. The deputy conducted a traffic stop and smelled a “heavy odor of alcohol” on Hynes’s breath. During his conversation with the deputy, Hynes first stated he had consumed “zero” alcohol but later admitted to drinking two glasses of wine. Hynes refused to participate in field sobriety testing but eventually let the officer perform the horizontal gaze nystagmus test, in which Hynes exhibited all six indicators. The deputy placed Hynes under arrest, read the implied consent notice for drivers over the age of 21, and then asked Hynes if he would submit to a blood test. Hynes refused the State-administered test but stated that he would “do an independent test.” The deputy obtained and executed a search warrant for a blood test. The deputy testified that he did not permit Hynes to obtain an independent test because “he refused implied consent.”

The transcript of the hearing on the motion to suppress includes the following colloquy between the State and the deputy:

Q: What was his answer to the implied consent card?
A: He refused State testing.
Q: Did he ever ask for an independent test?
A: He never directly asked for one, no.
Q: Okay Did you take him to get an independent test?
A: I did not, as he refused implied consent.

Later, the following exchange occurred between Hynes’s attorney and the deputy:

Q: Now, let’s talk about after you arrest him and you read him implied consent, he tells you in response that he’ll do an independent test, is that right?
A: Uh-huh . . . Yes, ma’am, he does.
Q: And do you recall hearing him on the video say, you asked him to confirm, you will do an independent test? Do you remember asking him that?
A: Yes, I believe that’s on the video.
Q: And he responded, yes. Is that right?
A: He said he would do an independent test, yes, ma’am.
Q: Okay. At any point thereafter was a test administered in this case?
A: A test was administered after a search warrant was completed.
Q: Okay And what kind of test was that?
A: It was a blood test.
Q: All right. And after the blood test was administered, was there any effort made to accommodate an independent test?
A: No, ma’am, because he refused implied consent.

Hynes moved to suppress the results of the blood test because the deputy refused to honor his request for an independent test. Hynes argued that his right to an independent test under OCGA § 40-6-392 (a) (3) is not contingent upon his submission to a State-administered test. The trial court denied the motion, ruling that a “[defendant's right to an independent test accrues only upon the [defendant's consent to the State’s test as requested after the reading of the [i]mplied [c]onsent card.”

In his sole enumeration of error, Hynes contends that the trial court erred in ruling that OCGA § 40-6-392 (a) (3) does not grant a driver the right to an independent test when the officer obtains a search warrant for a blood test. Hynes argues that the trial court should have granted his motion to suppress the results of the blood test performed pursuant to a search warrant because OCGA § 40-6-392 (a) (3) merely requires that a test be administered at the direction of a law enforcement officer before the right to an independent test accrues and does not make an exception for chemical tests administered pursuant to search warrants. In other words, according to Hynes, he was entitled to an independent test because under the plain language of OCGA § 40-6-392 (a) (3), a chemical test performed pursuant to a search warrant comes within the definition of “any administered at the direction of a law enforcement officer.”

The State argues that OCGA § 40-6-392 (a) (3) does not create the right to an independent test for defendants whose blood is drawn pursuant to a search warrant. The State points out that OCGA § 40-6-392 (a) does not apply in its entirety to cases where a chemical test was conducted pursuant to a search warrant. The State also contends that OCGA § 40-6-392 (a) (3) must be read in concert with subsection (a) (4) (requiring an implied consent warning to be read) and OCGA § 40-5-67.1 (containing the language of the warning), which make clear that an independent test is triggered only after a defendant consents to take a test pursuant to the implied consent statute.

The question of whether a DUI suspect has the right to an independent test when that suspect refuses a test under the implied consent law, but is then tested pursuant to a search warrant, appears to be one of first impression in Georgia. We conduct a de novo review of the trial court’s negative answer to this question. Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012) (“When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.”). We begin our analysis by delineating a few basic principles related to implied consent and the rules of statutory construction.

Implied Consent

In Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015), the Supreme Court of Georgia explained that

[a DUI] suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution. In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.

(Citation omitted.) Id. at 819. The United States Supreme Court in Schmerber v. California, 384 U. S. 757 (86 SCt 1826, 16 LE2d 908) (1966), recognized the presence of “exigent circumstances” as the first exception to the warrant requirement in the context of a blood test taken by a physician while the defendant was in the hospital after being arrested, ruling that a warrantless blood draw may be appropriate where the officer was confronted with an emergency which threatened “ ‘the destruction of evidence.’ ” Id. at 770-771 (IV). See also Missouri v. McNeely, 569 U. S. 141 (133 SCt 1552, 185 LE2d 696) (2013) (rejecting per se rule of admissibility of warrantless blood draws based upon exigent circumstances). Another exception to the warrant requirement is a search pursuant to consent. See Cooper v. State, 277 Ga. 282, 291 (VI) (587 SE2d 605) (2003). Georgia’s implied consent law is based on this exception. See id.

In codifying Georgia’s implied consent law, our General Assembly declared as a matter of law that persons in control of any moving vehicle while having an illegal blood alcohol concentration “constitute[ ] a direct and immediate threat to the welfare and safety of the general public.” OCGA § 40-5-55 (a). Accordingly,

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.

Id. This Code section is part of the implied consent statutory scheme which also includes OCGA §§ 40-5-67.1 and 40-6-392. See Massey v. State, 331 Ga. App. 430, 431-434 (1) (771 SE2d 122) (2015).

OCGA § 40-5-67.1 provides the specific implied consent notice to be given by the officer to the driver, including “information regarding consequences for refusing the testing requested by the officer, and the driver’s right to obtain additional chemical testing after submitting to the testing requested by the officer.” Massey, supra at 433 (1). And OCGA § 40-6-392 governs the admissibility of chemical tests in cases alleging the violation of OCGA § 40-6-391, including regulating the procedures and methodology of chemical analysis, and provides in relevant part:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:
(1) (A) Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.
(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;
(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and
(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section. . . .

OCGA § 40-6-392 (a). As the United States Supreme Court noted in Birchfield v. North Dakota, 579 U. S. _ (136 SCt 2160, 195 LE2d 560) (2016):

Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violatingthe State’s drunk-driving laws.

Id. at 2166.

Like many other states, Georgia relies upon incentives and penalties in the implied consent law to encourage DUI suspects to submit to State-administered testing. In State v. Simmons, 270 Ga. App. 301 (605 SE2d 846) (2004) (physical precedent only), we noted that Georgia’s implied consent law offers two choices to DUI suspects: “(1) submit to State-administered chemical testing with right to independent testing, if desired, or (2) refuse State testing, suffering the attendant evidentiary consequences.” Id. at 303. See also Padidham v. State, 291 Ga. 99 (728 SE2d 175) (2012). In Padidham, our Supreme Court recognized that the obligation placed on the officer by the implied consent statute is intended to protect the DUI suspect: “[0]ne cannot make an intelligent choice to submit to a chemical test without the knowledge of the right to have an independent test.” (Citation and punctuation omitted.) Id. at 101 (2).

[T]he choice to submit or refuse to submit to the analysis of one’s blood, breath, urine or other bodily substance will not be an easy or pleasant one to make, “but the criminal process often requires suspects and defendants to make difficult choices.” DUI defendants similarly must determine, often under difficult and stressful circumstances, whether to request an independent test.

Id. at 102-103 (2), citing South Dakota v. Neville, 459 U. S. 553, 560 (II) (103 SCt 916, 74 LE2d 748) (1983).

In Neville, the United States Supreme Court held that “the admission into evidence of a defendant’s refusal to submit to [a blood-alcohol test] does not offend the right against self-incrimination.” Neville, supra, 459 U. S. at 554. The Court reasoned that a DUI suspect’s right to refuse chemical testing was not a right of “constitutional dimension,” but “simply a matter of grace bestowed by the South Dakota legislature.” Id. at 565 (III). The defendant in Neville argued that admission into evidence of his refusal to take a blood-alcohol test violated the Due Process Clause in much the same way that the Due Process Clause forbids the state from using the defendant’s silence after a Miranda warning against him at trial. Id. at 564 (III). The Court rejected this argument, finding that

the Miranda warnings emphasize the dangers of choosing to speak (“whatever you say can and will be used as evidence against you in court”), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, [however], implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of his choice. The officers explained that, if respondent chose to submit to the test, he had the right to know the results and could choose to take an additional test by a person chosen by him.

Id. at 565 (III). The Court also pointed out that the warning that the State could revoke the DUI suspect’s license for one year “made it clear that refusing the test was not a ‘safe harbor,’ free of adverse consequences.” Id. at 566 (III). The case law interpreting implied consent laws demonstrates that the judiciary overwhelmingly sanctions the use of civil penalties and evidentiary consequences against DUI suspects who refuse to comply

Statutory Construction

Our consideration of Hynes’s enumeration of error requires application of the elementary rules of statutory construction.

[I]n considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant. Thus, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage. Importantly, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly

(Citations and punctuation omitted.) Wright v. Brown, 336 Ga. App. 1, 3 (2) (783 SE2d 405) (2016). See also Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). Additionally, when a statute is part of a statutory scheme, as in this case, it must be analyzed in relation to other statutes of which it is a part. As our Supreme Court has explained,

in our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is a primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question. This is what we mean when we speak of discerning “the intent of the legislature,” as that “intent” is reflected in the relevant statutory text and its contextual backdrop.

(Citations and punctuation omitted.) Algren v. State, 330 Ga. App. 1, 7 (3) (764 SE2d 611) (2014).

Analysis

Bearing in mind the principles of implied consent and statutory construction, we now consider the question of whether a DUI suspect has the right to an independent test when that suspect refuses testing under the implied consent law but is then tested pursuant to a search warrant. As noted previously, Hynes contends that he was entitled to an independent test because under the plain language of OCGA § 40-6-392 (a) (3), a chemical test performed pursuant to a search warrant comes within the definition of “any administered at the direction of a law enforcement officer.” We are not persuaded by this contention.

The case law discussed above demonstrates that under implied consent law, a DUI suspect has the option of accepting or refusing the State-administered test, after being advised of the attendant consequences for both choices. The law provides for penalties, including license revocation and admission into evidence of the refusal to submit to State-administered testing, but also offers a DUI suspect an incentive “carrot” of additional testing after accepting the required State-administered chemical testing. In Neville, supra, the United States Supreme Court implicitly approved the use of such an incentive, which we interpret conversely: If a DUI suspect chooses not to take the State-administered test, he or she is not entitled to take advantage of the “additional test” incentive. As we noted above, the choice to submit or refuse testing is not an easy or pleasant one to make, but the criminal process often requires suspects and defendants to make hard choices, some of which will result in adverse consequences, some of which will result in favorable consequences. Contrary to Hynes’s contention, Georgia’s implied consent warning has everything to do with whether he was entitled to an independent blood test; if he chose to submit to State-administered testing as provided by the implied consent notice, he would be entitled to take advantage of the incentive offered. He refused to submit to the required State-administered test and must, therefore, suffer the adverse consequences of that choice. This result is consistent with our existing law that defendants forfeit their “right to such independent testing by refusing the arresting officer’s request to submit to a [S]tate-administered breath test after being advised under OCGA § 40-5-67.1.” Clegg v. State, 236 Ga. App. 115 (511 SE2d 544) (1999).

Reading the statute in the manner suggested by Hynes would vitiate the nature of independent testing as an incentive for accepting State-administered testing under implied consent and effectively frustrate the intended effect of Georgia’s implied consent law. When OCGA § 40-6-392 (a) (3) is read in the context of the entire statutory scheme for implied consent, it is clear that “the person tested” in subsection (a) (3) refers to a person tested pursuant to implied consent. Construing it any other way would render meaningless the language in the implied consent notice. OCGA § 40-5-67.1 (b) (3) (“After first submitting to the required [S]tate tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense.”).

If the General Assembly had intended OCGA § 40-6-392 to grant a DUI suspect the right to an independent test after an officer obtains a search warrant for a chemical test, it could have expressly provided that right. Instead, in the statutory text, our General Assembly used an independent test as an incentive for a DUI suspect to submit to the required State test under implied consent. The crux of Hynes’s argument in this case is that he was entitled to an independent test under the statute upon demand. But, the Supreme Court of Georgia in Padidham, supra, made clear that the right to an independent test is not an entitlement, but rather, “a matter of grace bestowed by the Georgia legislature” upon one who submits to the required State-administered test under implied consent. (Punctuation omitted.) 291 Ga. at 101 (2).

Hynes’s claim fails for another reason as well. As noted above, OCGA § 40-6-392 (a) (3) provides, in pertinent part, that “[t]he person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.” (Emphasis supplied.) Here, Hynes’s blood was drawn pursuant to a search warrant. A search warrant is issued at the command or direction of a judicial officer, not at the direction of a law enforcement officer. See OCGA § 17-5-20 et seq. See also Hawkins v. State, 130 Ga. App. 426, 427 (2) (203 SE2d 622) (1973) (reversing denial of motion to suppress where magistrate judge, who was also county law enforcement officer, issued search warrant; under doctrine of separation of powers, person seeking search warrant, an executive officer, and person issuing search warrant, a judicial officer, cannot be one in the same). When presented with a proper affidavit, it is ultimately up to a judicial officer to determine whether probable cause exists to issue a search warrant:

Upon the written complaint of any certified peace officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws and otherwise as authorized in Code Section 17-5-20 under oath or affirmation, which states facts sufficient to show probable cause that a crime is being committed or has been committed and which particularly describes the place or person, or both, to be searched and things to be seized, any judicial officer authorized to hold a court of inquiry to examine into an arrest of an offender against the penal laws, referred to in this Code section as “judicial officer,” may issue a search warrant. . . .

OCGA § 17-5-21 (a).

Construing the plain language of OCGA § 40-6-392 (a) (3), it is apparent that it applies only to tests administered at the direction of a law enforcement officer, not tests administered pursuant to a search warrant, which by definition are issued at the direction of a judicial officer. So, while OCGA § 40-6-392 (a) (1) (A) applies to chemical tests performed pursuant to search warrants, subsection (a) (3) does not. To hold that the statute, in its silence, applies to tests administered at the direction of a judicial officer would require us to add words not found in the statute. This, we will not do. Reading the statute in this manner is also consistent with our conclusion that an independent test is an incentive for accepting testing under implied consent.

Decided May 31, 2017

Erin H. Gerstenzang, Andrew S. Fleischman, for appellant.

Hynes points out that “there is something perverse about allowing officers to use a search warrant to avoid providing an independent test even if a motorist may have submitted.” We are not persuaded by this argument. Because the effort of obtaining a search warrant is time-consuming and the requirements strict and exacting, we do not accept Hynes’s argument that law enforcement officers will abuse that power in an effort to trick DUI suspects into forfeiting their right to an independent test. Indeed, the facts of this case demonstrate that officers will first seek to use the implied consent procedure.

Hynes further contends that denying an independent test to a DUI suspect who is tested pursuant to a search warrant creates an absurd result whereby only those who waive their Fourth Amendment rights would be entitled to have their blood drawn by qualified medical personnel. The facts of this case, however, do not require us to address this scenario. But see Jackson v. State, 340 Ga. App. 228, 230 (2) (797 SE2d 152) (2017) (under implied consent, there is no requirement that a chemical analysis of blood to detect the presence of drugs be performed by “qualified medical personnel”).

In sum, because Hynes refused to submit to the chemical testing requested by the arresting officer pursuant to OCGA § 40-5-55, he was not entitled to an independent test, and the trial court properly denied his motion to suppress the results of the blood test performed pursuant to a search warrant.

Judgment affirmed.

Dillard, P. J., and Ray, J., concur.

Jessica K. Moss, Solicitor-General, Carlton T. Hayes, Benjamin Huntington, Assistant Solicitors-General, for appellee.

       While our appellate courts have never addre ssed this exact issue, we have held that “ [t] he statutory right to an alternate test by a person of the defendant’s own choosing does not attach until the State has performed its test.” Modlin v. State, 176 Ga. App. 83 (335 SE2d 312) (1985), citing Huff v. State, 144 Ga. App. 764, 765 (2) (242 SE2d 361) (1978).

       See Perano v. State, 250 Ga. 704, 706-707 (2) (300 SE2d 668) (1983) (“OCGA § 40-6-392 . . . provides for the procedures to be used where the [SJtate administers the [alcohol concentration] test.”). A State-administered test that complies with the procedures outlined in the Code section is admissible; conversely, a State-administered test that does not comply with the statute is inadmissible. See State v. Padgett, 329 Ga. App. 747, 750 (1) (766 SE2d 143) (2014).

       United States Supreme Court opinions “have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Birchfield, supra, 136 SCt at 2185 (VI), citing McNeely, supra, 133 SCt 1552; South Dakota v. Neville, 459 U. S. 553, 560 (II) (103 SCt 916, 74 LE2d 748) (1983).

       “An officer is permitted to attempt to persuade an individual to submit to a field-sobriety test, so long as in doing so the officer makes no threat of criminal sanction or any show of force that would improperly compel a suspect into submitting to the tests.” (Citation and punctuation omitted.) State v. Mosley, 321 Ga. App. 236, 237, n. 4 (739 SE2d 106) (2013).

       In Padidham, supra, the Supreme Court of Georgia adopted the United States Supreme Court’s language from Neville in relation to OCGA § 40-6-392: “a defendant’s right to an independent test, a right created by OCGA § 40-6-392 (a) (3), is not one of constitutional dimension but a ‘matter of grace’ bestowed by the Georgia legislature.” 291 Ga. at 101 (2).

       In light of this construction, we need not consider Hynes’s contention regarding the legislature’s use of the words “undergo” and “submit” in other subsections of OCGA § 40-6-392 (a).

       See generally King v. State, 276 Ga. 126, 128 (2) (577 SE2d 764) (2003) (discussing requirements for issuance of search warrants).

       We render no opinion as to whether Hynes may be entitled to subpoena the sample of his blood for independent testing. See generally Townsend v. State, 236 Ga. App. 530, 533 (3) (511 SE2d 587) (1999) (noting with approval trial court’s decision to allow defense expert to independently test sole blood sample).


author: Andrews, Judge.

text:
    A17A1023.
    HARTMAN v. CLARK.
    (801 SE2d 66)
   Andrews, Judge.

Latasha Hartman sued David Clark for damages after she slipped and fell at a Chick-fil-A restaurant owned and operated by Clark. Clark subsequently moved for summary judgment. The trial court granted Clark’s motion, and Hartman appeals. For reasons that follow, we affirm.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c). We review a trial court’s summary judgment ruling de novo, construing “the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences."All American Quality Foods v. Smith, 340 Ga. App. 393 (797 SE2d 259) (2017) (citation and punctuation omitted).

So viewed, the record shows that Hartman visited Clark’s Chick-fil-A for dinner on February 6, 2013. After eating, Hartman left her table to visit the restroom. She entered the restroom, walked directly into the handicap stall, and used the facility, remaining in the stall five to ten minutes. She then exited, taking about two steps before she fell backward, twisting her ankle and injuring her back. At her deposition, Hartman asserted that she slipped on water. She also testified, however, that there was no water on the floor when she entered the restroom and walked to the stall.

In Georgia, “proof of a fall, without more, does not give rise to liability on the part of a proprietor.” All American Quality Foods, 340 Ga. App. at 395 (1) (citation and punctuation omitted). To support a premises liability claim, a plaintiff must show that the proprietor had superior knowledge — either actual or constructive — of the hazard that caused the plaintiff’s injury See id. Hartman does not contend that Clark had actual knowledge of the water on which she slipped. Instead, she argues that questions of fact remain as to Clark’s constructive knowledge of the hazard, precluding summary judgment. We disagree.

A claimant may establish constructive knowledge by presenting “evidence that the hazardous condition lasted so long that it would have been discovered and removed if the proprietor had exercised reasonable care in inspecting the premises.” All American Quality Foods, 340 Ga. App. at 395 (1) (citation and punctuation omitted). According to Hartman, the evidence raises factual questions about Clark’s inspection procedures and whether they were followed on February 6, 2013. For a proprietor to be liable, however, “the hazardous condition must have been in place on the premises for a sufficient period of time such that [he] should have discovered and removed the hazard.” Id. at 395 (1) (a) (citation and punctuation omitted). And Hartman testified unequivocally that no water was on the floor when she entered the restroom five to ten minutes before she fell.

The undisputed evidence shows that, at most, the water on which Hartman slipped remained on the floor for ten minutes. Regardless of when restaurant employees last inspected the restroom, this limited period of time was “insufficient asa matter of law to hold that [Clark] should have discovered and removed the liquid prior to [Hartman’s] fall.” All American Quality Foods, 340 Ga. App. at 396 (inspection-related evidence irrelevant where evidence showed that hazardous substance was on grocery store floor only six or seven minutes); see also Gleaton v. APAC-Georgia, 228 Ga.App. 52, 55 (2) (491 SE2d 138) (1997) (“In cases involving grocery stores, parking lots, and restaurants, we have found that 15 or 20 minutes was a legally insufficient amount of time for a proprietor to discover a foreign substance on the floor.”); Mazur v. Food Giant, 183 Ga.App. 453, 454 (1) (359 SE2d 178) (1987) (“Where it appears a foreign object had not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.”) (citation and punctuation omitted).

On appeal, Hartman urges us to interpret her deposition testimony as meaning that she “merely did not see the water on the floor when entering the stall.” But her testimony does not permit such interpretation. Hartman clearly stated that there was no water on the floor when she walked into the restroom. She never asserted that she did not see the water. And she made no subsequent effort to modify or explain her testimony. See Sunlink Health Systems v. Pettigrew, 286 Ga. App. 339, 341 (649 SE2d 532) (2007) (“It is well established that on summary judgment a party’s self-contradictory testimony, if unexplained, must be construed against the party-witness, even when the party-witness is the respondent rather than the movant.”) (citation and punctuation omitted). Furthermore, although Hartman argues that the water at issue could not have “miraculous[ly] appeared],” she testified that she could not remember whether anyone else (i.e., a person who could have spilled the water) was in the restroom while she occupied the handicap stall.

Decided May 10, 2017

Reconsideration denied June 1, 2017.

Dozier Law Firm, David T. Dorer, for appellant.

Mabry & McClelland, James W. Scarbrough, for appellee.

The record contains no evidence that Clark had superior knowledge of the hazard on which Hartman fell. Accordingly, the trial court properly granted Clark’s motion for summary judgment. See All American Quality Foods, supra.

Judgment affirmed.

Ellington, P. J., and Rickman, J., concur.


author: Bethel, Judge.

text:
    A17A0166.
    WALKER v. THE STATE.
    (802 SE2d 1)
   Bethel, Judge.

Anthony Walker, pro se, appeals the denial of his motion to correct an illegal and/or void sentence. Walker contends that the imposed sentence of life with parole is void because the trial court did not use its discretion when sentencing him, and the sentence itself is indeterminate. We agree with the trial court that Walker’s allegations are without merit and affirm.

In June 1991, Walker was sentenced to life with parole following his armed robbery conviction. He appealed, and this Court affirmed his conviction in May 1992. In June 2016, Walker filed a post-conviction motion to void his sentence and asked the trial court to conduct a resentencing hearing. The trial court denied the motion because the sentence imposed was allowed by law, and this appeal followed.

1. Walker contends the trial court erred because it did not use its discretion to sentence him to less time, and because it relied on the State’s argument that his criminal record constituted aggravating circumstances, resulting in severe punishment. We disagree.

OCGA § 16-8-41 (b) as it existed on March 6, 1991 — the date the crime was committed — provided that “[a] person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than five nor more than 20 years[.]” (Emphasis supplied.) Life with parole was a valid sentence which fell within the statutory range of punishment for armed robbery, and required no aggravating circumstances in order to be imposed. Further, Walker’s contention that the trial court confused the terms “aggravation” with “recidivism” is without support. “Assertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence . . . are not a means for... sentence modification.” Jones v. State, 278 Ga. 669, 670-671 (604 SE2d 483) (2004). “So long as the sentence imposed is within the statutory limits, we will not disturb it.” Gillespie v. State, 311 Ga. App. 442, 442 (715 SE2d 832) (2011) (citation and punctuation omitted).

2. Walker further contends that under OCGA § 17-10-1 the sentence of life with parole is void because it is an indeterminate punishment. Under Georgia law, “[a] sentence is void if the court imposes punishment that the law does not allow.” Jones, 278 Ga. at 670 (citations and punctuation omitted). This means that in support of his motion, Walker was required to demonstrate that the sentence of life with parole is a punishment not allowed by law. Burg v. State, 297 Ga. App. 118, 118-119 (676 SE2d 465) (2009). Walker alleges that the trial court erred because it was required to prescribe with specificity the maximum time he was to serve and failed to do so. We disagree.

In support of his argument, Walker focuses on the language of OCGA § 17-10-1 (a) (1) as it existed on March 6,1991, which provided in part that “[ejxcept in cases in which life imprisonment or the death penalty must be imposed, . . . the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years. . . (Emphasis supplied.) However, Walker fails to recognize that OCGA § 16-8-41 (b) was also in effect and applicable at the same time and allowed for a sentence of life imprisonment, or a sentence from five to twenty years for armed robbery Even if we concede that reading OCGA § 16-8-41 (b) and OCGA § 17-10-1 (a) (1) together, as they existed at the time, creates an ambiguity, in resolving any ambiguity we look to the more specific Code section and agree with the trial court that Walker’s sentence is legitimate. See Stovall v. State, 216 Ga. App. 138, 141 (7) (453 SE2d 110) (1995).

In addressing the scope of their applicability, OCGA § 17-10-1 (a) (1) is a general sentencing statute while OCGA § 16-8-41 (b) establishes the range of sentences authorized specifically for the crime of armed robbery. Because the specific statute prevails over

Decided June 1, 2017.

Anthony G. Walker, pro se.

Julia F. Slater, District Attorney, Jennifer E. Dunlap, Assistant District Attorney, for appellee.

        Walker v. State, 204 Ga. App. 269, 269 (419 SE2d 542) (1992).

       See Ga. L. 1985, p. 1036, § 1.

       The transcript of the pre-sentencing hearing was not included in the record on appeal.

        Stovall, 216 Ga. App. at 141-142 (7) (“OCGA § 16-8-41 (b) creates a sentencing scheme specifically for the offense of armed robbery, whereas the former (as well as the now amended) OCGA § 17-10-1 (a) (1) related to sentencing generally.”).


author: DOYLE, Chief Judge.

text:
    A17A0009.
    DeNAPOLI et al v. OWEN et al.
    (801 SE2d 314)
   DOYLE, Chief Judge.

Anthony and Tina DeNapoli purchased 1.97 acres (“Lot 2”) from Kenneth and Kathy Owen, who also owned various other parcels around Lot 2. After the sale, the Owens began construction of a driveway across Lot 2 toward an abutting parcel the Owens still owned (“Lot 3”), clearing a 20-foot-wide swath of trees and brush off of the DeNapolis’ property. The DeNapolis subsequently filed suit against the Owens and their company, Custom Log Homes, requesting temporary and permanent injunctions to halt construction of the driveway, alleging claims of trespass and fraudulent misrepresentation, and asking for attorney fees and punitive damages. The Owens answered and alleged counterclaims of trespass and tortious interference with property rights and requested a declaratory judgment, reformation of the warranty deed, and interlocutory and permanent injunctions.

After a bench trial on the claims for injunctions and a declaratory judgment, the trial court denied the DeNapolis’ request for injunctions and granted the Owens’ claims for declaratory judgment and interlocutory and permanent injunctions, finding that the DeNapolis purchased title to Lot 2 subject to a 20-foot easement in favor of Lot 3 pursuant to the legal principles of “notice and caveat emptor.” The DeNapolis appeal, arguing that the trial court erred by finding that the Owens had an easement across Lot 2 because (1) the inclusion of “proposed 20' easement” in the plat for Lot 2 was not sufficient to create an easement; (2) caveat emptor is not applicable to the situation; (3) any protective covenants in the subdivision plat did not create an easement in favor of Lot 3 for a driveway across Lot 2; (4) the merger doctrine extinguished any of the Owens’ easement rights; and (5) any remaining rights that were not extinguished by the merger doctrine passed to the DeNapolis at the time of purchase. For the reasons that follow, we reverse.

On an appeal from an entry of judgment following a bench trial, we apply a de novo standard of review to any questions of law decided by the trial court, but will defer to any factual findings made by that court if there is any evidence to sustain them. Nevertheless, if the trial court makes a finding of fact which is unsupported by the record, that finding cannot be upheld[,] and any judgment based upon such a finding must be reversed.

Viewed in this light, the record reveals that the Owens purchased approximately 103 acres off Big Creek Road in Fannin County, from which parcel they subdivided three lots for resale. Two lots were along the public road (Lots 1 and 2) and sit between the road and Lot 3. To the west of Lots 1 and 3 lies a portion of the original parcel still owned by the Owens. Lot 2 lies to the east of Lot l.

In the plats for Lots 2 and 3, an area along the western edge of Lot 2 is marked as a proposed 20-foot easement. In May 2015, the DeNapolis purchased Lot 2 from the Owens. At no point in any of the documents of sale or in the deed from the Owens to the DeNapolis is there an express reservation of a 20-foot access easement across Lot 2 for the benefit of Lot 3. After the DeNapolis closed, they visited the house in June to find that a large swath of trees had been cut and land had been bulldozed across their property running north toward Lot 3 from the main road.

At the end of the trial, the court found in favor of the Owens as to the issues of declaratory judgment and injunctive relief, finding that the DeNapolis were on notice and should have investigated more thoroughly whether an easement existed.

1. As an initial matter, the Owens have filed a supplemental brief without first obtaining leave to file from this Court. Accordingly, the information contained in that document has not been considered for purposes of this appeal.

2. The DeNapolis argue that the trial court erred by finding that the Owens retained a 20-foot easement for the benefit of Lot 3 across Lot 2. We agree.

The right of private way over another’s land may arise from an express grant, from prescription by seven years’ uninterrupted use through improved lands or by 20 years’ use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale through the superior court in the manner prescribed by Article 3 of this chapter.

(a) No express easement. At the time of the conveyance to the DeNapolis, the Owens failed to retain an easement over Lot 2. First, the deed contains no express creation of an easement. Second, to the extent that the survey contains a demarcation noted as “proposed 20' easement,” without expressly reserving a right to that interest, the proposal remains an unenforceable hope or suggestion. To the extent that the Owens cite Hernandez v. Whittemore in support of their contention that the plats for Lots 2 and 3 show that the easement was reserved, their argument fails because in Hernandez, the common grantor specifically recorded the lot at issue as being an access lot for the benefit of adjacent lots and not for building. Here, in contrast, the plats for both Lots 2 and 3 contain the modifier “proposed” and never go so far as to expressly reserve the easement. Finally, nothing in the subdivision documents from the early 1980s appears to create an access easement over that portion of the property.

(b) No easement by implication. Although the trial court did not make a written finding that an easement by implication was created at the time that the Owens sold Lot 2 to the DeNapolis, in its oral ruling the trial court discussed the landlocked status of Lot 3 as a reason the court would have ruled in favor of the Owens had he not found that they expressly created the easement. There could be no easement by implication at the time of the sale to the DeNapolis, however, as explained in Bruno v. Evans:

The right of private way over another’s land may arise by implication of law when the right is necessary to the enjoyment of lands granted by the same owner. Thus, a way of necessity arises in this State by implication of law under . . . OCGA § 44-9-1 when the common owner sells the dominant estate first and retains the servient estate. The common owner is impliedly deemed to have granted an ease-menttopass overthe servient estate. However, if the common owner sells the servient estate first as happened in this case, he has deeded everything within his power to deed and retains no easement in the servient estate. Therefore, when the common grantor subsequently deeds the dominant estate to a third party, the third party can obtain no higher interest than that of the grantor and receives no easement over the servient estate. Accordingly, no easement by implication was created in this case.
Assuming arguendo, sequence of conveyance was not controlling in those instances where easement is created by implied reservation due to necessity, the result in this case remains the same. In these cases, a private way by implication is based on necessity and not convenience. Moreover, a reasonable necessity for a way must exist at the time of the severance to support the implication of a way of necessity. The record fails to establish the actual existence of such necessity at the time of the severance of the property by the common grantor.

At the time that the DeNapolis purchased Lot 2 from the Owens, the Owens retained Lot 3, abutting additional property owned by the Owens through which they maintained access to the public road. Because the Owens failed to expressly retain an easement over Lot 2 and because no way of necessity existed at the time of the sale to the DeNapolis, there was no easement by implication. Accordingly, the trial court’s order is reversed.

Decided June 2, 2017

The Carr Law Group, James H. Cox, for appellants.

Francis X. Moore, for appellees.

3. Finally, the Owens filed a motion to dismiss and an amended motion to dismiss the appeal as moot because of the subsequent sale by them of Lot 3 to a third party. The sale, however, does not moot the issue of whether the Owens created an easement over Lot 2 prior to selling to the DeNapolis, nor does it moot the pending claims in the trial court below. Accordingly, the motion to dismiss and amended motion to dismiss are hereby denied.

Judgment reversed.

Miller, P. J., and Reese, J., concur.

       The remaining claims are pending in the trial court.

       (Punctuation omitted.) Central Mtg. Co. v. Humphrey, 328 Ga. App. 474, 475 (759 SE2d 896) (2014), quoting Champion Windows of Chattanooga v. Edwards, 326 Ga.App. 232, 233 (756 SE2d 314) (2014).

       Lot 1 was sold to a third party prior to the DeNapolis’ purchase of Lot 2.

       There is a mention of utility, common water system, and road system covenants that the Owens had created in the early 1980s; however, there is no contention that these serve as the basis for the driveway at issue, and indeed, testimony at the hearing showed that the Owens had not incorporated by construction Lots 1, 2, or 3 into the common water and road systems at issue in those covenants prior to their sale.

       See Court of Appeals Rule 27 (a) (“Supplemental briefs may be filed only by leave of Court.”).

       For the sake of clarity, rather than addressing the DeNapolis’ enumerations of error individually and in the order presented, we instead address the overarching complaint on appeal — that the trial court erred by finding the existence of an easement.

       OCGA § 44-9-1.

       See Deas v. Hughes, 264 Ga. 9, 10-11 (1) (440 SE2d 458) (1994).

       See id. at 11 (3).

       287 Ga. App. 251 (651 SE2d 180) (2007).

       See id. at 253 (“The present-tense phrase that the strip of land on the plat is being created for the sole purpose of providing access evinces an intent to create an easement at that time; the plat lacks any other language implying some contemplated future action intended to grant the easement for access. Accordingly, this language sufficiently evinces the grantor’s intent to create an express grant of an easement by recording the plat.”) (punctuation omitted).

       200 Ga. App. 437 (408 SE2d 458) (1991).

       (Citations, punctuation and emphasis omitted.) Id. at 440-441 (3) (b).

       See id.


text:
    A17A0145.
    CONYERS 138, LLC et al. v. ONH1, LLC.
    (801 SE2d 318)
   Bethel, Judge.

Conyers 138, LLC, Glenn E. Murer, Thomas Kostensky, and Bradley Taratoot (the “Appellants”) appeal from the trial court’s order confirming the purchase of a certain property by ONH1, LLC, in a foreclosure sale under OCGA § 44-14-161. The Appellants argue on appeal that the trial court erred in confirming the foreclosure sale because, contrary to the trial court’s conclusion that the property sold for its true market value, the evidence established instead that the foreclosed property sold for less than its true market value. However, because we find evidence in the record to support the trial court’s ruling, we affirm.

OCGA § 44-14-161 (a) requires a creditor who purchases property in a foreclosure sale to obtain a court order confirming the sale of real property as a condition of pursuing a deficiency judgment against the debtor. In order to confirm the sale, the court must hold a hearing and determine through the evidence presented that the property sold for its “true market value” and that the sale conformed to other procedural and notice requirements. OCGA § 44-14-161 (b), (c).

“The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them.” Nash v. Compass Bank, 296 Ga. App. 874, 875 (676 SE2d 28) (2009). “[W]e do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.” Chamblee Hotels v. Chesterfield Mtg. Investors, 287 Ga. App. 342, 343 (651 SE2d 447) (2007) (citation and punctuation omitted).

So viewed, the record reveals that Conyers 138, LLC, executed and delivered to ONH1 a deed to secure debt and security agreement dated September 28, 2012 (the “Agreement”) for a certain property which included a former retail space and a parking lot (the “Property”). Pursuant to the power of sale provision in the Agreement, ONH1 foreclosed on the Property in July 2015, selling the Property in a public auction for the sum of $1,745,000. ONH1 was the sole bidder for the Property

ONH1 filed a petition for confirmation of the foreclosure sale soon after. The trial court held a hearing on the petition, at which it received testimony from the appraiser that had been hired by ONH1 to value the Property prior to the foreclosure sale. The appraiser testified that he had determined that the highest and best use of the Property was as raw, vacant land and that, in order to determine the value of the Property with that use, he had to consider the fair market value of the property, less the expected cost of demolishing the building on the Property. He testified that he determined the value of the land (as vacant) to be $2,510,000, with $765,000 deducted for demolition costs, for a total value of $1,745,000. This was the precise amount for which ONH1 purchased the Property at the foreclosure sale.

The appraiser testified that in order to determine the demolition costs for his appraisal, he requested a cost estimate from a local demolition company. The owner of the demolition company testified regarding the demolition estimate his company provided to the appraiser, noting that he calculated the estimate using the square footage of the building and parking lot from Google Earth. From the Google Earth images, he calculated the square footage of the building on the Property to be 160,000 square feet, which included loading docks, overhangs, covered walkways, and covered loading docks in the curtilage of the building. He stated that he then considered additional factors such as costs for disposal, milling, equipment, trucking, labor overhead, and profit in providing a final estimate of the demolition costs. He testified that the estimate he provided was a fair bid for a demolition job of that size and character. He also noted that the figure he provided was a “rough” estimate which was expected to be within ten percent above or below the actual cost of performing the demolition job.

Decided June 2, 2017.

The court issued a final order confirming the foreclosure sale of the Property. This appeal followed.

On appeal, the Appellants do not suggest that the appraiser’s estimate of the Property’s fair market value (before demolition costs) of $2,510,000 was without support. Rather, their appeal turns on whether evidence in the record supports the trial court’s underlying determination that $765,000 is a fair estimate of the demolition costs for the Property, such that the price paid at the foreclosure sale by ONH1, $1,745,000, is the true market value of the Property, as required by OCGA § 44-14-161 (b). We find such evidence in the record before us.

The Appellants argue that several statements made by the owner of the demolition company show his estimate of the demolition costs to be too high. However, these arguments are essentially attacks as to his credibility and the credibility of the appraiser who relied on the estimate. We note that “[wjhat value is, or may have been, is a question of fact to be resolved as others are. In so doing, the [trial judge] is the judge of the credibility of the witnesses and of the weight to be given to the evidence.” Fleming v. Fed. Land Bank of Columbia, 148 Ga. App. 765, 766 (2) (252 SE2d 653) (1979) (punctuation omitted). Thus, even though the Appellants question the demolition company’s methodology for determining the square footage of the building and rely heavily on the owner’s “admission” that the estimate he provided may deviate by as much as ten percent from the actual cost of the demolition job, each of these points raised by the Appellants gives rise to questions of fact that were properly before the trial court to consider and resolve. See Chamblee Hotels, 287 Ga.App. at 343-345. Therefore, as we find evidence in the record supporting the trial court’s determination that the price paid by ONH1 represented the true market value of the Property, we affirm the trial court’s order confirming the foreclosure sale.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

Schreeder, Wheeler & Flint, John A. Christy, Debbie A. Wilson, for appellants.

Weissmann Zucker Euster Morochnik, Paul J. Morochnik, J. Ashley Oblinger, for appellee.

       Google Earth is an online and mobile service provided by Alphabet, Inc.’s Google unit which allows users to view aerial images of locations around the globe at various levels of detail and magnification by querying an address, intersection, or place name. See https://www.google.com/ earth.

       The appraiser testified that the square footage of the building was 156,000 square feet, based on local property tax records and a physical measurement of the building that he conducted.


author: McFADDEN, Presiding Judge.

text:
    A17A0253.
    OLMSTEAD HOMEOWNERS ASSOCIATION, INC. v. WASHINGTON.
    (801 SE2d 320)
   McFADDEN, Presiding Judge.

Olmstead Homeowners Association, Inc. (the “Association”), appeals from the trial court’s final order and judgment in the Association’s action against Reginald Washington. The terms of that order and judgment conflict with the terms of a settlement agreement reached by the parties in mediation. The trial court, however, did not acknowledge the parties’ agreement in her order. As a result, we cannot determine whether she affirmatively declined to enforce that agreement, or whether she had a legal basis for entering an order that did not incorporate its terms. We therefore vacate the trial court’s judgment and remand the case for further proceedings in the trial court. Given this disposition, we do not address the Association’s other challenges to the order.

This case concerns the Association’s claims that Washington is liable to it for unpaid assessments on real property In its action, the Association sought to collect unpaid assessments, to foreclose upon a statutory lien on the property, and to recover attorney fees. When the parties appeared for a calendar call on July 11, 2016, the trial court gave them the opportunity to mediate their dispute. That mediation resulted in a written agreement stating that Washington agreed to pay a money judgment of $ 18,342.75; that he would immediately pay a portion of that amount to the Association; that by August 11, 2016, he would present to the Association’s board a mutually-satisfactory plan for paying the balance of that amount; and that if the parties had not agreed on a payment plan by that date, the Association would be free to pursue all lawful means to collect the debt, including foreclosure.

The Association states in its appellate brief that the parties then presented this agreement to the trial court for entry of a consent judgment. (Because Washington has not filed an appellate brief controverting this statement of fact, and the record is silent on this point, we accept this statement of fact as true. See Court of Appeals Rule 25 (b) (1).) The trial court, however, entered a final order and judgment with terms that differed from those of the parties’ agreement. In that order, the trial court entered a judgment of $12,041 against Washington; required Washington to pay the Association $350 per month beginning September 1, 2016; and provided that, if Washington was in default for three consecutive months, the Association could execute a judgment for the total amount owed. In the order, the trial court stated that the parties had mediated their dispute but did not acknowledge that the parties had reached a settlement agreement. Instead, she treated the Association’s entitlement to attorney fees as an unresolved item requiring determination by the trial court.

Decided June 2, 2017.

Lazega & Johanson, David B. Fife, P. Patrick Pou, Richard J. Joseph, Laura D. Rosencrantz, for appellant.

Reginald Washington, pro se.

“[Tjrial courts are required to accept settlements agreed to by the parties." Ford Motor Credit Co. v. Williams, 194 Ga. App. 405, 406 (1) (390 SE2d 640) (1990). “When the parties to litigation have entered into a definite, certain and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation.” DeKalb County v. Everhart, 242 Ga. 104, 105 (249 SE2d 571) (1978). Because the trial court made no mention of the parties’ settlement agreement in her final order and judgment, we cannot discern whether she impermissibly modified its terms instead of enforcing it as written, see Allen v. Sea Gardens Seafood, 290 Ga. 715, 717-718 (2) (723 SE2d 669) (2012) (trial court erred by entering order that modified terms of parties’ settlement agreement), or whether she found the agreement to be unenforceable.

Accordingly, we vacate the judgment and remand the case to the trial court for proceedings not inconsistent with this opinion. “We leave it to the trial court to determine on remand whether the parties’ .. . agreement is sufficiently definite, certain, and unambiguous as to all material terms to be itself enforced as the parties’ final settlement.” Allen, supra, 290 Ga. at 718 (2).

Judgment vacated and case remanded.

Branch and Bethel, JJ., concur.