author: Dillard, Judge.

text:
    A15A0926.
    AUTO-OWNERS INSURANCE COMPANY v. NEISLER.
    (779 SE2d 55)
   Dillard, Judge.

Auto-Owners Insurance Company (“Auto-Owners”) appeals from the trial court’s denial of its motion for summary judgment and grant of summary judgment to Jason Neisler on his complaint to recover funds under a dwelling policy that he holds with Auto-Owners. Auto-Owners contends that the trial court erred in (1) ruling that Neisler’s policy covered his claim for certain alleged property damage and loss of rents, and (2) refusing to hold that Neisler’s claim for bad-faith penalties under OCGA § 33-4-6 fails as a matter of law. For the reasons set forth infra, we affirm in part and reverse in part.

Viewed in the light most favorable to Auto-Owners (i.e., the nonmovant), the record reflects that Neisler owns a single-family home on Langston Avenue in Atlanta. The home is one of thirty-seven residential properties that Neisler owns and uses as a rental home. He purchased the property in question on April 24, 2013, and had it insured through Auto-Owners. On May 20,2013, before Neisler could find a tenant for the property, it was vandalized by burglars.

During the burglary, the perpetrators removed the property’s water heater, the outside condensing unit, the inside air handler and furnace, and electrical wiring. It is undisputed that Neisler’s policy does not cover the cost of the items that were stolen from the property, but Neisler filed a claim with Auto-Owners seeking to recover on the damage caused by the removal of these items, and Auto-Owners issued payment on what it believed was covered by Neisler’s policy. Neisler refused to cash the check because he disagreed with Auto-Owners about the extent of his coverage under the policy. Specifically, Neisler took issue with Auto-Owners’s refusal to pay for the labor cost associated with replacing the items stolen by the burglars, and for his alleged loss of rent.

Neisler’s policy with Auto-Owners provided, in relevant part, that the dwelling was covered in the event of “[vandalism or malicious mischief.” However, the coverage for “vandalism or malicious mischief” explicitly excluded, inter alia, “loss[ ]... by theft, burglary or larceny.” Nevertheless, the policy separately provided coverage for “[d]amage by burglars to the dwelling or other structures at the described premises.” However, the coverage for “damage by burglars” explicitly excluded “any property taken by burglars.” Finally, the policy also provided:

If a covered loss makes the described premises unfit to live in, we will pay for your loss of normal rents resulting from such covered loss while the described premises is unfit to live in. We will not pay charges and expenses which do not continue during that time. We will pay this loss of normal rents only for the shortest time needed to make the rented part fit to live in.

The parties continued to disagree as to whether, under these provisions, Neisler was entitled to recover the cost of labor to replace the fixtures that were stolen from the dwelling (though not the cost of the replacement fixtures themselves) and the cost of lost monthly rent when he had no tenant at the time of the burglary. Thus, Neisler filed suit against Auto-Owners, and both parties eventually filed motions for summary judgment. The trial court thereafter denied Auto-Owners’s motion, but granted Neisler’s motion for partial summary judgment, determining that the policy’s provisions for coverage and exclusions related to burglary and its coverage of “normal rent” were ambiguous. But construing the provisions in Neisler’s favor, it determined that Neisler was owed the cost of damage by the removal of the stolen property and the cost to replace it, and that he was owed rent for the period in which the property was uninhabitable. Nevertheless, the court determined that there was a genuine issue of material fact as to whether Auto-Owners had acted in bad faith by refusing to pay these damages. Thus, the court denied Auto-Owners’s motion and granted Neisler’s motion for partial summary judgment. This appeal by Auto-Owners follows.

1. Coverage under the policy.

First, Auto-Owners argues that the trial court erred in finding that Neisler could recover for the cost of labor to replace the fixtures that were stolen from the dwelling and that he could recover “normal rent” when the dwelling had no tenant at the time of the loss. Although we agree with the trial court that the relevant policy provisions are ambiguous as to coverage for vandalism (and therefore Neisler is entitled to recover for his property damage), we disagree that he is entitled to recover lost rent.

At the outset, we note that insurance in Georgia is a matter of contract, and this Court has long held that such contract disputes are “well suited for adjudication by summary judgment because construction of a contract is ordinarily a matter of law for the court.” And in construing a contract, we must first decide “whether the language is clear and unambiguous.” Of course, under Georgia law, an insurance company is “free to fix the terms of its policies as it sees fit, so long as they are not contrary to the law, and it may insure against certain risks while excluding others.” And as is true with all contracts, “unambiguous terms in an insurance policy require no construction, and their plain meaning will be given full effect, regardless of whether they might be of benefit to the insurer, or be of detriment to an insured.” Thus, if the language is unambiguous, the court “simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.”

But if a contract is ambiguous, “the court must apply the rules of contract construction to resolve the ambiguity.” And contractual provisions are ambiguous when they are “susceptible to more than one meaning, even if each meaning is logical and reasonable.” Indeed, a contract is ambiguous if the words “leave the intent of the parties in question — i.e., that intent is uncertain, unclear, or is open to various interpretations.”

In cases of ambiguity, there are three well-known rules of contract construction that apply: (1) ambiguities are strictly construed against the insurer as the drafter; (2) exclusions from coverage the insurer seeks to invoke are strictly construed; and (3) the contract is to be read in accordance with the reasonable expectations of the insured when possible. Indeed, when a term of a policy of insurance is susceptible to two or more constructions, even when such multiple constructions are all logical and reasonable, “such term is ambiguous and will be strictly construed against the insurer as the drafter and in favor of the insured.” Furthermore, exceptions and exclusions to coverage must be “narrowly and strictly construed against the insurer and [forgivingly] construed in favor of the insured to afford coverage.”

Finally, only if the contract is still ambiguous after applying the rules of construction, “the issue of what the ambiguous language means and what the parties intended must be resolved by the jury.” With these guiding principles in mind, we turn now to the policy provisions at issue in the case sub judice.

(a) Coverage for damages related to burglary.

As set forth infra, the “vandalism and malicious mischief” provision excludes from coverage losses from, inter alia, theft and burglary. Nevertheless, the policy separately covers “damage by burglars to the dwelling or other structures,” though not any property actually taken by burglars. And, importantly, this latter provision does not limit the coverage to damage caused when burglars enter or exit the building. Thus, the relevant terms of the insurance policy are rendered ambiguous by conflicting coverage and exclusions, i.e., a provision that excludes coverage of losses by burglary and a provision that includes coverage for damage to the dwelling or other structures caused by burglars.

After strictly construing the ambiguous exclusion and coverage provisions in Neisler’s favor, and against Auto-Owners, we agree with the trial court that Auto-Owners is liable for the cost of repairing the damage to the dwelling caused during commission of the burglary. This includes the cost of labor and material to repair that damage through the replacement of the items that were removed (though not the cost of the items themselves). Thus, the trial court did not err in granting summary judgment to Neisler on this issue.

(b) Coverage for recovery of “normal rents. ”

As previously noted, the policy at issue also provided:

If a covered loss makes the described premises unfit to live in, we will pay for your loss of normal rents resulting from such covered loss while the described premises is unfit to live in. We will not pay charges and expenses which do not continue during that time. We will pay this loss of normal rents only for the shortest time needed to make the rented part fit to live in.

Unlike the provisions referencing vandalism and burglary, the provision as to “normal rent,” though unclear as to what constitutes “normal rent,” unambiguously requires that the property actually have a tenant at the time of loss. Indeed, the final sentence in this provision makes clear that Auto-Owners will pay the insured’s loss of normal rents “only for the shortest time needed to make the rented part fit to live in.” And because the lost-rent provision unambiguously provides for the recovery of lost rent only for property that is being rented out at the time a covered loss occurs, the trial court erred in granting summary judgment to Neisler on this issue. Accordingly, we reverse the trial court’s determination in this regard.

2. Bad faith under OCGA § 33-4-6.

Finally, Auto-Owners argues that the trial court erred in denying its motion for summary judgment as to Neisler’s request for attorney fees for bad-faith refusal to pay his claim. In light of our reversal of the trial court’s grant of summary judgment to Neisler in Division 1 (b) supra, we agree in part.

To support a cause of action under OCGA § 33-4-6, “the insured bears the burden of proving that the refusal to pay the claim was made in bad faith.” To do so, the insured must prove “(1) that the claim is covered under the policy, (2) that a demand for payment was made against the insurer within 60 days prior to filing suit, and (3) that the insurer’s failure to pay was motivated by bad faith.”

As for the insurer, a complete failure to prove any defense to an action on the policy is “evidence of the bad faith contemplated by [OCGA § 33-4-6], and subjects the insurer to a verdict for the statutory penalty and attorney’s fees.” But a defense that shows “reasonable and probable cause for making it would vindicate the good faith of the company as effectually as would a complete defense to the action.” And, of course, penalties for bad faith are “not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.”

As discussed supra in Division 1 (b), Auto-Owners had a complete defense to Neisler’s claim that he was entitled to lost rent under the terms of the insurance policy. Thus, because Auto-Owners had reasonable grounds to contest Neisler’s claim for lost rent, penalties for bad faith are not authorized, and the trial court erred in failing to grant summary judgment to Auto-Owners as to that particular claim. Accordingly, we reverse this aspect of the trial court’s order.

Decided October 30, 2015

Kendall Law Group, Michael C. Kendall, for appellant.

The trial court, however, properly denied summary judgment to Auto-Owners on Neisler’s bad-faith claim as it relates to the refusal to pay for the burglary damages discussed in Division 1 (a) supra. The record reflects that, in correspondence between Auto-Owners and Neisler, Auto-Owners was placed on notice as to the ambiguities in the policy’s coverage and of the rules of contract construction, which dictate that ambiguous insurance-contract language be construed in favor of the insured. Thus, it cannot be said as a matter of law that Auto-Owners had a reasonable defense or probable cause to deny Neisler’s claim in this regard, and the trial court properly denied summary judgment to Auto-Owners on this particular bad-faith claim. Thus, we affirm this aspect of the trial court’s order.

Accordingly, for all of the foregoing reasons, we affirm the trial court’s order on the issue of coverage for damages related to burglary, reverse the trial court’s order on the issue of recovery of “normal rents,” and affirm in part and reverse in part on the issue of bad-faith recovery under OCGA § 33-4-6.

Judgment affirmed in part and reversed in part.

Ellington, P. J., and McEadden, J., concur.

Peavy Law, John H. Peavy, Jr., for appellee.

        See, e.g., Blake v. KES, Inc., 329 Ga. App. 742, 742 (766 SE2d 138) (2014) (“On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (punctuation omitted)).

        Maxum Indem. Co. v. Jimenez, 318 Ga. App. 669, 669 (734 SE2d 499) (2012) (punctuation omitted); accord Club Libra, Inc. v. R.L. King Props., LLC, 324 Ga. App. 547, 547-48 (1) (751 SE2d 418) (2013); see also Michna v. Blue Cross & Blue Shield of Ga., Inc., 288 Ga. App. 112, 113 (653 SE2d 377) (2007) (noting that contract construction is a matter of law for the court); Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 660 (2) (516 SE2d 371) (1999) (same).

        Michna, 288 Ga. App. at 113 (punctuation omitted); accord Schwartz, 237 Ga. App. at 660 (2).

        Payne v. Twiggs Cty. Sch. Dist., 269 Ga. 361, 363 (2) (496 SE2d 690) (1998); accord Sorema N. Am. Reinsurance Co. v. Johnson, 258 Ga. App. 304, 306 (574 SE2d 377) (2002).

        Payne, 269 Ga. at 363 (2); accord Sorema N. Am. Reinsurance Co., 258 Ga. App. at 306; see also Grange Mut. Cas. Co. v. DeMoonie, 227 Ga. App. 812, 814 (3) (a) (490 SE2d 451) (1997) (“Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.” (punctuation omitted)).

        Michna, 288 Ga.App. at 113 (punctuation omitted); accord Schwartz, 237 Ga.App. at 660 (2).

        Michna, 288 Ga. App. at 113 (punctuation omitted); accord Schwartz, 237 Ga. App. at 660 (2); see also OCGA § 13-2-2.

        Michna, 288 Ga. App. at 114; see also Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996).

        Citrus Tower Blvd. Imaging Ctr., LLC v. Owens, MD, PC, 325 Ga. App. 1, 8 (2) (752 SE2d 74) (2013).

        Lambert v. ALFA Gen. Ins. Corp., 291 Ga. App. 57, 59 (660 SE2d 889) (2008); see also OCGA § 13-2-2.

       Ga. Farm Bureau Mut. Ins. Co. v. Meyers, 249 Ga. App. 322, 324 (548 SE2d 67) (2001); accord Mason v. Allstate Ins. Co., 298 Ga. App. 308, 311 (1) (a) (680 SE2d 168) (2009); see OCGA § 13-2-2 (5) (“If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred!)]”).

        Meyers, 249 Ga. App. at 324; see also Blue Cross & Blue Shield of Ga., Inc. v. Shirley, 305 Ga. App. 434, 437 (1) (699 SE2d 616) (2010) (“[E]ven though ambiguous exclusions may be construed [forgivingly] in favor of the insured and strictly construed against the insurer, this cannot be done when the exclusion is clear and unequivocal.” (punctuation omitted)).

        Michna, 288 Ga. App. at 113 (punctuation omitted); accord Schwartz, 237 Ga. App. at 660 (2).

        Cf. Summit Bank & Trust v. Am. Modern Home Ins. Co., Civil Action No. 12-cv-02395-JLK, 2014 WL 3512770, at *2 (III) (D. Colo. 2014) (holding that removal of copper piping and conduit, among other things, was not covered by insurance policy when policy covered vandalism or malicious mischief but excluded coverage for loss “by pilferage, theft, burglary or larceny, except... for willful damage to the building(s) covered caused by burglars in gaining entrance to or exit from the building(s) or any part of the building(s)”). See generally Morley Witus, The Paradox of Insurance Coverage for Vandalism but Not Theft, 56 Wayne L. Rev. 1747, 1759 (ill) (2010) (discussing the “decades of litigation” over insurance provisions covering vandalism but not theft and noting that some courts have “tried to give effect both to the vandalism coverage and the theft exclusion by holding that the building damage is covered, but the loss of the stolen items is not” before suggesting that this approach “is sensible in light of the presumption favoring coverage when the provisions are ambiguous,” hut opining that the “result is difficult to reconcile with the standard policy language which includes an exception to the theft exclusion, allowing coverage for damage caused by burglars entering and exiting the building”).

        Cf. United States Fid. & Guar. Co. v. Bimco Iron & Metal Corp., 464 SW2d 353, 355-56 (Tex. 1971) (acknowledging that intermediate appellate court found insurance policy provisions related to burglary ambiguous, but finding no ambiguity by construing questionable provision to “exclude personal property from coverage” but not damage caused to building by burglars (emphasis supplied)).

        Cf. Pacific Indem. Co. v. N.A., Inc., 120 Ga. App. 793, 794-95 (1) (172 SE2d 192) (1969) (holding that exclusionary provision for theft barred recovery, and noting that “[b]urglary is not involved in this case as there is no evidence whatsoever indicating burglary”); Theo v. Nat’l Union Fire Ins. Co., 99 Ga. App. 342, 345, 347 (2) (109 SE2d 53) (1959) (physical precedent only as to Div. 2) (holding that ‘loss of bathroom fixtures, kitchen sink, plumbing, electric hot water heater, electric refrigerator and window frames and a 50-foot length of sewer pipe” was “due to burglary or theft, which, under the provisions of the policy . . . clearly was not covered” when policy insured against perils of “[b]urglary, except with respect to property taken by burglars” and “[v]andalism and malicious mischief” except for “any loss by pilferage, theft, burglary or larceny”); SJP Props., Inc. v. Mount Vernon Fire Ins. Co., No. 4:14-CV-694-JAR, 2015 WL 4524337, at *5, 7 (E.D. Mo. 2015) (holding that removal of copper materials was not covered by insurance policy when policy covered “vandalism, meaning willful and malicious damage to, or destruction of the described property” but excluded coverage for loss or damage “caused by or resulting from theft”).

        See F.E. Sterling v. Audubon Ins. Co., 452 So2d 709, 716 (La. Ct. App. 1984) (“Because of the added language allowing coverage for damage caused by burglars, the insureds are entitled to the cost necessary to install replacement items but not the costs of the items themselves.”); Pryor v. State Farm Fire & Cas. Co., 141 Cal.Rptr. 394, 396 (Cal. Ct.App. 1977) (holding that, although “replacement cost of the stolen items” was not compensable, that the removal of the various appliances and wiring “left holes and gaps in the cabinetry, walls and floors which had to he repaired before the houses would be marketable” and that “in the act of removing goods from the house, the burglars caused willful damage that is compensable under the policies” such that the correct measure of damages was “the installation costs after new appliances, carpeting, and light fixtures have been purchased”); see also Aetna Casualty & Sur. Co. v. Ardizone, 481 So2d 380, 384-85 (IV) (Ala. 1985) (holding that “some of the items related to the subject warehouse were stolen, and . .. the insurance company should not be liable for the replacement cost of those items,” but “it is equally clear that some óf the damage of which Plaintiffs complain was the direct result of vandalism; thus, the insurance company will be liable for the total cost, both of materials and labor, for the repair of that damage”); Benson Holding Corp. v. New York Prop. Ins. Underwriting Ass’n, 478 NYS2d 570, 571 (NY Civ. Ct. 1984) (“[I]t would seem that any forceful or violent severing and removal of property that had been affixed to the premises constitutes vandalism and the loss of the property thus removed is not excluded as pilferage, theft, etc.”).

        See Certain Underwriters at Lloyd’s London v. Hogan, 556 SE2d 662 (NC App. 2001) (holding that policy unambiguously provided for recovery of lost rent only for property being rented at the time of loss when policy provided, inter alia, that “[i]f a loss ... makes that part of the insured premises rented to others (under a ‘rental contract’) not fit to live in, we cover your actual loss of rents____” (emphasis omitted)); Whitney Estate Co. v. N. Assurance Co. of London, 155 Cal. 521, 524-25 (Cal. 1909) (holding that insurance policy provided for recovery of gross rents, not net rents, when the policy made the insurance company “liable for the ‘actual loss of rent ensuing’ from the fire, and [made] provision for the manner of determining the loss” in that the loss was “to be based upon the rentals in force from the rented portions of the premises at the time of fire and to be ‘computed from the date of the fire for the time it would require to put the premises in tenantable condition’ ”). Cf. Ventura Kester, LLC v. Folksamerica Reinsurance Co., 161 Cal.Rptr.3d 875, 881 (Cal. Ct. App. 2013) (holding that policy provisions for coverage of lost rent were ambiguous when they “provide [d] coverage for the loss of rents the owner would have collected but for the property damage” and noting that “[r]ental property is often vacant between tenants” and the policy “provided coverage for damage to the building regardless of whether the property was vacant”).

        See OCGA § 33-4-6 (a) (“In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 50 percent of the liability of the insurer for the loss or $5,000.00, whichever is greater, and all reasonable attorney’s fees for the prosecution of the action against the insurer.”).

        Assurance Co. of Am. v. BBB Service Co., Inc., 259 Ga. App. 54, 58 (2) (576 SE2d 38) (2002) (punctuation omitted); accord Atlantic Title Ins. Co. v. Aegis Funding Corp., 287 Ga. App. 392, 393 (651 SE2d 507) (2007).

        BayRock Mortg. Corp. v. Chicago Title Ins. Co., 286 Ga. App. 18, 19 (648 SE2d 433) (2007); accord Lawyers Title Ins. Corp. v. Griffin, 302 Ga. App. 726, 730 (2) (b) (691 SE2d 633) (2010).

        Reserve Life Ins. Co. v. Ayers, 217 Ga. 206, 213 (3) (121 SE2d 649) (1961); accord Key Life Ins. Co. of SC v. Mitchell, 129 Ga. App. 192, 194 (4) (198 SE2d 919) (1973); see also Griffin, 302 Ga. App. at 731 (2) (b) (“Bad faith is shown by evidence that under the terms of the policy upon which the demand is made and under the facts surrounding the response to that demand, the insurer had no ‘good cause’ for resisting and delaying payment.” (punctuation omitted)).

        Assurance Co. of Am., 259 Ga. App. at 58 (2) (punctuation omitted); accord Moon v. Mercury Ins. Co. of Ga., 253 Ga. App. 506, 507 (2) (559 SE2d 532) (2002).

        Assurance Co. of Am., 259 Ga. App. at 58 (2) (punctuation omitted); see also Rentrite, Inc. v. Sentry Select Ins. Co., 293 Ga. App. 643, 648 (2) (667 SE2d 888) (2008) (“An insured cannot sustain a cause of action for bad faith where an insurer had any reasonable ground to contest the claim made under the insurance policy.” (punctuation omitted)).

        See Rentrite, Inc., 293 Ga. App. at 648 (2) (affirming grant of summary judgment on bad-faith claim as to claim for loss that was excluded from policy coverage); Assurance Co. of Am,., 259 Ga. App. at 58 (2) (holding that trial court did not err in granting summary judgment to insurance company when there were disputed questions of fact as to insured’s entitlement to coverage under a particular clause of the policy).

        See Certain Underwriters at Lloyd’s of London v. Rucker Constr., Inc., 285 Ga. App. 844, 850 (3) (648 SE2d 170) (2007) (holding that it could not be said that, as a matter of law, insurance company had a reasonable defense to claim when insurance company, through correspondence, had been put on notice of the difficulty in construing policy); First Fin. Ins. Co. v. Am. Sandblasting Co., 223 Ga. App. 232, 233 (2) (477 SE2d 390) (1996) (physical precedent only as to Div. 1) (holding that trial court properly awarded bad-faith damages to plaintiff when insurance company had been put on notice, through correspondence, that policy contained an ambiguity and that ambiguous language in insurance contracts is to be construed in favor of the insured).

        See Rentrite, Inc., 293 Ga. App. at 648 (2) (despite affirming grant of summary judgment to insurance company on bad faith as to claim for loss that was excluded from policy coverage, nevertheless reversing grant of summary judgment on bad-faith claim for loss that insurance company argued was not covered, but insurance company’s representations to the insured, trial court, and Court of Appeals misstated the policy language).


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A15A1068.
    HINES et al. v. HOLLAND et al.
    (779 SE2d 63)
   McMlLLIAN, Judge.

The sole issue in this appeal is whether the trial court erred by dismissing a third-party complaint for contribution and indemnification filed by Matthew C. Hines, individually, and the Hines Law Firm, P.C. (collectively referred to as “Hines”), against nonattorneys Hazel A. Holland and Holland Title Limited Liability Company (singularly referred to as “Hazel” and “Holland Title” and collectively referred to as “Holland”) after Hines was sued by title insurer First American Title Insurance Company (“FATIC”) for professional malpractice in rendering an opinion on the status of title to land related to a real estate closing. As more fully set forth below, we find no error and affirm.

The relevant facts are essentially undisputed. Hines was retained as the settlement agent/closing attorney in connection with the refinancing of a loan related to certain real property (the “Property”). Hines hired Holland to perform the title examination of the Property, and the title examination revealed an open security deed to Berkley Park Properties, LLC (“Berkley Park”), as lender (“Berkley Loan”); however, another open loan secured by a security deed to the Bank of North Georgia’s predecessor, as lender, in which Berkley Park was the borrower (“Bank of North Georgia Loan”) was not identified when Holland performed the title search. Hines subsequently conducted the loan closing and disbursed payment for the Berkley Loan but did not pay off or seek a release of the Bank of North Georgia Loan. After the Berkley Loan was paid off, Hines, as title agent, rendered a legal opinion to FATIC to the effect that the property at issue was now free and clear of encumbrances. Based on this representation, FATIC then issued a lender/owner title insurance policy.

Some time later, foreclosure proceedings were instituted on the Bank of North Georgia Loan. The property owner was given notice of the foreclosure sale, and she notified FATIC of the impending foreclosure. FATIC ultimately paid off the outstanding loan amount of $144,985.17 and obtained a release to prevent the foreclosure sale and protect the owner’s/insured’s interest in the Property.

FATIC subsequently filed a legal malpractice and indemnification action against Hines based on Hines’ failure to disclose and obtain a discharge and release of the Bank of North Georgia Loan in connection with the closing. Hines answered and filed a third-party complaint against Holland Title seeking contribution and indemnification for any damages Hines might be liable to pay FATIC, asserting that Holland Title breached the standard of care it owed to Hines in performing the title search and that it breached an unspecified oral contract between the parties. Subsequently, and without first seeking permission from the trial court, Hines amended his third-party complaint to add Hazel individually as a third-party defendant; Hines later moved for permission to add Hazel as a party to the lawsuit. Holland filed a motion to dismiss, asserting that because Hazel and the other Holland title examiners were not attorneys, they could not render a legal “opinion” on the status of the title to land and that, therefore, Holland could not be liable for any portion of the legal malpractice claim against Hines. Hazel Holland also filed a response to Hines’ motion to add her as a party, contending that Hines’ motion should be denied because, among other things, he had not attempted to pierce the corporate veil or made any allegations that she, individually, had committed a tort or breached a contract. Following a hearing, the trial court denied Hines’ motion to add Hazel as third-party defendant and dismissed Hines’ third-party claims on the basis that Hines could not seek indemnity or contribution from Holland for FATIC’s professional negligence claim against Hines.

FATIC and Hines subsequently entered into a consent judgment pursuant to which Hines agreed to pay FATIC the full amount paid out under the title insurance policy. Within 30 days of the entry of the consent judgment, Hines filed his notice of appeal, challenging only the trial court’s order granting the third-party defendants’ motion to dismiss.

1. In Georgia, third-party practice is governed by OCGA § 9-11-14. Under subsection (a) of OCGA § 9-11-14, athird-party complaint may be brought by the defendant, as a third-party plaintiff, “upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” As our appellate courts have expounded, subsection (a)

authorizes a defendant, as a third-party plaintiff, to file a claim against a third-party defendant for secondary liability on the plaintiff’s claim, i.e., a claim for liability over, but not a direct claim for damages. [Thus, an] absolute requirement of every third-party proceeding is that its purpose must be to impose upon the third-party defendant a liability for part or all of the liability asserted by the original plaintiff against the third-party plaintiff. A third-party action may be maintained only against one who is secondarily liable to the original defendant for part or all of the original plaintiff’s claim. When a recovery by the plaintiff against the defendant would necessarily be followed by recovery for the defendant against the third-party defendant, then a third-party action is proper____[I]t is not a device for bringing into an action any controversy which may happen to have some relationship with it. . . . [A] defendant cannot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must bean attempt to pass on to the third-party all or part of the liability asserted against the defendant but not to tender the third-party as a substitute defendant.

(Citations and punctuation omitted.) Cohen v. McLaughlin, 250 Ga. 661, 662 (1) (301 SE2d 37) (1983). See also Satilla Community Svc. Board v. Satilla Health Svcs., Inc., 275 Ga. 805, 809 (573 SE2d 31) (2002) (Hines, J., concurring). Stated more succinctly, “[t]his section does not authorize defendant to seek affirmative relief solely on his own behalf. Instead, the complaint must be predicated on secondary or derivative liability. . . .” (Citation omitted.) McCray v. Fed. Nat. Mtg. Assn., 292 Ga. App. 156, 160 (3) (663 SE2d 736) (2008). typically then, the “third-party plaintiff must establish a right over against the third-party defendant either by indemnity[,] ... subrogation, contribution or warranty.” (Citation and punctuation omitted.) ARA Transp. v. Barnes, 183 Ga. App. 424, 425 (1) (359 SE2d 157) (1987). Against this backdrop, we now turn to the specific allegations of Hines’ third-party complaint and consider whether he has asserted any claims of derivative liability.

(a) Contribution. OCGA § 51-12-32 sets out a statutory right of contribution, subject to certain limitations not pertinent here. See Zurich American Ins. Co. v. Heard, 321 Ga. App. 325, 330 (1) (740 SE2d 429) (2013) (explaining that the statutory right of contribution has not been completely abolished by the legislature’s enactment of OCGA § 51-12-33, Georgia’s apportionment statute); see also Dist. Owners Assn., Inc. v. AMEC Environmental & Infrastructure, Inc., 322 Ga. App. 713, 718 (2) (747 SE2d 10) (2013) (noting that “our Supreme Court has held that OCGA § 51-12-33 supplanted claimsfor common-law contribution and apportionment”). But, as expressly stated in the statute, “[t]he right to contribution relates only to joint tortfeasors, and where the proposed defendant cannot be made liable as a joint tortfeasor, the contribution action does not state a claim.” (Citations and punctuation omitted; emphasis in original.) Greenhorne & O'Mara, Inc. v. City of Atlanta, 298 Ga. App. 261, 262 (679 SE2d 818) (2009). See also Ga. Ports Auth. v. Andre & Co., 262 Ga. App. 591, 596 (5) (a) (585 SE2d 883) (2003) (“[a]n alleged joint tortfeasor who cannot be held liable on the underlying tort claim cannot be held liable for contribution or indemnity”), rev’d on other grounds, Hines v. Ga. Ports Auth., 278 Ga. 631 (604 SE2d 189) (2004); Southern R. Co. v. Brewer, 122 Ga. App. 292, 293 (176 SE2d 665) (1970) (third-party complaint based on contribution could not be maintained against third-party defendant who was not subject to suit by the plaintiff for negligence).

Here, we need not parse whether the nonattorney title examiners could be joint tortfeasors in this suit involving a legal malpractice claim because Hines has specifically denied that Holland is a joint tortfeasor with him. Hines argues instead that “as a result of the defective title examination conducted by [Holland], [Holland] are tortfeasors as to [Hines], and therefore secondarily liable for damages that [Hines] is ultimately obligated to pay EATIC pursuant to the judgment entered in this case[.]” (Emphasis supplied.) Accordingly, because Hines has not asserted a claim for contribution under OCGA § 51-12-32, the trial court did not err by dismissing Hines’ third-party complaint to the extent it was grounded on a claim for contribution.

(b) Indemnity. Hines also asserted a claim for indemnity against Holland. Following the enactment of OCGA § 51-12-33, “Georgia law continues to recognize two broad categories of indemnity: as created by contract, as between a surety and a debtor; and under the common law of vicarious liability, as between principals and agents.” (Citations and punctuation omitted.) AMEC, 322 Ga. App. at 715 (1). Here, there is no contention that an express contract of indemnity exists between the third parties. Further, as to the second category of indemnity, we have held that this type of

[i] ndemnification contemplates imputed liability arising from the torts of another. A person who is compelled to pay damages because of liability imputed to him as the result of a tort committed by another may maintain an action for indemnity against the person whose wrong has been imputed to him.

Auto-Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 363 (1) (556 SE2d 465) (2001). Stated somewhat differently, “if a person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action for indemnity against the person whose wrong has thus been imputed to him.” (Citation and punctuation omitted; emphasis in original.) AMEC, 322 Ga. App. at 715-16 (1).

As noted above, Hines is not alleging that he is vicariously liable for Holland’s alleged omissions; rather, he alleges that Holland has breached a standard of care owed directly to him and that Holland is a tortfeasor as to him. Moreover, to the extent he alleges that Holland’s failure to identify the outstanding security deed recorded by Bank of North Georgia was the proximate cause of any damages suffered by FATIC, he has not alleged that he is liable for these damages based on an assertion of imputed, vicarious, or derivative liability. Rather, he asserts, in essence, that Holland’s negligence caused him to be professionally negligent and that he has a claim for indemnity against Holland.

Although nonattorneys in Georgia have been granted an express statutory right to examine records of titles to real property and to prepare and issue abstracts of title, our legislature has also provided that only “an attorney at law [is authorized] to express, render, or issue any legal opinion as to the status of the title to real or personal property.” OCGA § 15-19-53. Thus, an action for legal malpractice will lie against an attorney or law firm who issues a defective title examination or report, and this is true even when the defendant attorney does not personally perform the search, but merely reviews or approves the results. See Old Republic Nat. Title Ins. Co. v. Attorney Title Svcs., Inc., 299 Ga. App. 6, 9 (1) (682 SE2d 134) (2009), overruled on other grounds by Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 288 Ga. 236, 239 (703 SE2d 323) (2010), and cites.

Further, this is in accord with OCGA § 15-19-54, which provides that while “a person, corporation, or voluntary association [may furnish] any person lawfully engaged in the practice of law such information or clerical services in and about his professional work,” it is “the attorney receiving the information or services [who] shall [at all times] maintain full professional and direct responsibility to his clients for the information and services received.” Id. Accordingly, by statute, only Hines can render a legal opinion on the status of title to property, and Hines is directly responsible to his client for his opinion on the status of the title to the Property. Whether he bases that opinion on information supplied to him by nonattorneys or garners the information himself, Hines is directly, rather than vicariously, liable for any claim of professional negligence arising out of the title examination.

(c) Moreover, to the extent that Hines is claiming that Holland’s negligence was the sole proximate cause of the injury for which recovery is sought, he is in effect seeking impermissibly to tender a substitute defendant. J. Smith Lanier & Co. v. Acceptance Indem. Ins. Co., 272 Ga. App. 789, 793 (1) (a) (B) (612 SE2d 843) (2005) (“OCGA § 9-11-14 does not allow the tender of another defendant who is or may be liable to the plaintiff”); Brabham v. Brown, 147 Ga. App. 766, 767 (250 SE2d 495) (1978). Based on the foregoing, the third-party complaint was properly dismissed on the basis that no claim for indemnity had been stated.

2. Hines also contends the trial court erred by holding that he cannot assert separate legal claims based on the same underlying facts as the original complaint, and by holding that Holland cannot be impleaded based on theories of simple negligence and breach of contract. Pretermitting whether the trial court actually made any holdings on these issues, even implicitly, and to the extent Hines’ arguments in support of these enumerations have not been addressed in Division 1 above, we note that while it is true that “[i]t is immaterial that the liability of the third-party rests on a different theory from that underlying plaintiff’s claim,” it is also true that independent claims not based on secondary liability cannot form the basis for a third-party action. (Citations and punctuation omitted.) Knapp v. Lolley, 177 Ga. App. 786, 787 (341 SE2d 306) (1986). Thus, because we have determined that Hines has not asserted a derivative or secondary liability claim against Holland for the acts of professional negligence he is alleged to have committed, it follows that he cannot use a third-party complaint to assert any independent causes of action he may have against Holland. However, we caution that our opinion should not be read as holding that Hines has no viable claims against Holland based on the title examination and report at issue, and we expressly decline to address this issue.

3. Based on the foregoing, we need not consider whether the trial court abused its discretion by denying Hines’ motion to add Hazel Holland, individually, as a third-party defendant. And in any event, we note that

[t]he decision whether to grant or deny a motion for leave to implead a third-party defendant is one committed to the sound discretion of the trial court, and the timeliness of the motion is a factor governing the exercise of such discretion. Where the motion for interpleader is not promptly made and the movant offers no reasonable excuse for the delay, the motion may be properly denied.

(Citations and punctuation omitted.) Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 506 (7) (497 SE2d 269) (1998). Here, Hines waited over two months after he filed his original answer and third-party complaint to attempt to add Hazel to his third-party complaint and has offered no reasonable excuse for the delay. Accordingly, for all the foregoing reasons, the trial court properly denied the motion to add Hazel Holland as a third-party defendant.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

Decided October 30, 2015.

Matthew C. Hines, pro se.

Freeman, Mathis & Gary, Neil L. Wilcove, Benjamin R. Keck, for appellees.

       Further, Hines’ third-party complaint is construed in his favor, and all doubts regarding his third-party complaint are likewise resolved in his favor. Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796) (2014). Accordingly, although disputing some of Hines’ facts as stated in his appellate brief, Holland acknowledges that such disputes are immaterial to this appeal.

       Hines and FATIC sought a certificate of immediate review of the trial court’s order, and the trial court signed the certificate on April 30,2012, which was filed with the lower court clerk on May 1, 2012. We initially granted Hines’ application for interlocutory review, hut then dismissed the appeal because the certificate of immediate review was not obtained within ten days of the judgment sought to be reviewed. However, our earlier dismissal of Hines’ procedurally faulty interlocutory appeal does not foreclose our consideration of this appeal. Canoeside Properties, Inc. v. Livsey, 277 Ga. 425, 426 (1) (589 SE2d 116) (2003); see also Sotter v. Stephens, 291 Ga. 79, 84 (727 SE2d 484) (2012).

       Although this appeal follows the entry of a consent judgment between FATIC and Hines, we have jurisdiction to review the earlier interlocutory order granting Holland’s motion to dismiss the third-party complaint. See O’Dell v. Mahoney, 324 Ga. App. 360, 361 (1) (750 SE2d 689) (2013).

       We have previously "note[d] that the professions of title examiner and attorney are not mutually exclusive.” Old Republic Nat., 299 Ga. App. at 8 (1).

       We note that Southern Land Title, Inc. v. North Ga. Title, Inc., 270 Ga. App. 4 (606 SE2d 43) (2004) is inapposite to the issues raised in this appeal for a number of reasons. First, that case did not involve a claim, much less a third-party claim, by an attorney against the nonattorney title examiners who performed the title examination and issued the title report, and thus provides no authority for an attorney who is sued because of a defective title opinion to file third-party claims against a nonattorney title examiner. Moreover, none of the issues currently before us were raised or addressed in that appeal.

       This case was reversed on unrelated grounds in J. Smith Lanier & Co. v. Southeastern Forge, Inc., 280 Ga. 508 (630 SE2d 404) (2006).

       We note also that Hines has not asserted any claim based on the existence of a warranty. See Smith, Kline & French Laboratories v. Just, 126 Ga. App. 643 (191 SE2d 632) (1972) (third-party complaint against pharmaceutical manufacturer based on implied warranty proper in wrongful death action against prescribing doctor).


author: McFADDEN, Judge.

text:
    A15A1006.
    HARRIS v. THE STATE.
    (779 SE2d 83)
   McFADDEN, Judge.

After a jury trial, Phillip M. Harris was convicted of armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. On appeal, Harris argues that the evidence does not support the armed robbery conviction, but we find that the evidence was sufficient to show both the property’s change of location and Harris’s exercise of dominion over the property. Harris also argues that the trial court should have merged the armed robbery and aggravated assault convictions for sentencing purposes, but we find that the convictions were based on separate acts and therefore did not merge. Finally, Harris argues that he received ineffective assistance of trial counsel, but we find that he has not shown both harm and prejudice. We therefore affirm his convictions.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence showed that the victim went to the Ware Manor Apartments to visit friends. As he was walking through the complex, he encountered Harris’s cousin and another woman, who made unfriendly remarks to him. The victim exchanged words with the women, then walked off to visit his friends.

Thirty minutes to an hour later, as the victim was walking back through the complex, he encountered Harris. Harris voiced his displeasure with the victim and pulled a gun on him. Harris hit the victim in the head and face with the gun, splitting the victim’s chin. Harris snatched the victim’s necklace from his neck. Then Harris shot the victim in the arm. The police found the necklace in a grassy area, 30 yards away from where the incident occurred.

Harris argues that the evidence was insufficient to support the armed robbery conviction because it showed only that the victim’s necklace was broken and fell to the ground, so there was neither a change in location nor a transfer of complete dominion over the property.

Under OCGA § 16-8-41[, the armed robbery statute,] the slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation to meet the statutory criterion. It is not required that the property taken be permanently appropriated.

Miller v. State, 223 Ga. App. 453, 454 (1) (477 SE2d 878) (1996) (citation and punctuation omitted). Here, the evidence enabled the jury to find that Harris ripped the victim’s necklace from his neck and carried it 30 yards away before dropping it. This evidence supported the armed robbery conviction. See id. at 453-454 (1) (evidence supported armed robbery conviction where cashier, believing defendant had a gun, opened cash register and defendant pulled cash drawer out of the register, spilling cash to the floor, before store owner appeared and held defendant at gunpoint until police arrived); see also Gutierrez v. State, 290 Ga. 643, 645 (723 SE2d 658) (2012) (where money was removed from its original position, where victims wanted it to be, and was placed in front of armed intruder, in the place where he wanted it to be, money “came within the dominion and control of” defendant) (citation and punctuation omitted).

2. Merger.

Harris argues that the trial court should have merged his armed robbery and aggravated assault convictions for sentencing because the aggravated assault arose out of the same act or transaction as the armed robbery. We disagree. The evidence showed that Harris took the victim’s necklace after hitting him in the head and face with the gun, the act for which he was indicted for armed robbery. After taking the necklace, Harris shot the victim in the arm, the act for which he was indicted for aggravated assault. Thus, “the armed robbery and aggravated assault were separate events, the armed robbery being complete before the commission of the aggravated assault. For this reason, the court below did not err when it [did not] merge these convictions.” Brown v. State, 314 Ga. App. 198, 206 (6) (723 SE2d 520) (2012) (citations and footnote omitted).

3. Effective Assistance of Counsel.

Harris argues that he received ineffective assistance of counsel in two regards. To prevail on his claim of ineffective assistance of counsel, Harris must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). To show sufficient prejudice, Harris must show that “there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (citation omitted). If Harris “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted).

(a) Failure to subpoena alibi witness.

Harris argues that trial counsel was ineffective for failing to subpoena an alibi witness, his girlfriend, who did not come to the trial. He argues that had counsel subpoenaed this witness, either she would have shown up and given the alibi testimony or she would not have shown up and then counsel could have introduced her testimony from Harris’s probation revocation hearing related to this charge. Harris has not shown that the failure to subpoena the witness prejudiced his case because there is no reasonable probability that her testimony would have changed the outcome in his favor.

Trial counsel testified that he had gotten a sworn statement from Harris’s girlfriend, in which she stated that Harris had come to her residence at 8:00 on the evening of the shooting and stayed until the next day. Counsel testified that he thought the girlfriend would attend the trial, so he did not worry about subpoenaing her.

Even if counsel had introduced the girlfriend’s testimony that Harris was with her from 8:00 p.m. onward, it would not have helped Harris’s case because it directly contradicted Harris’s own trial testimony. Harris testified that he went to his girlfriend’s house around 8:00 p.m.; but she was not there, so he went to Ware Manor, the apartment complex where the crime occurred, arriving just a few minutes later. Harris entered an apartment, stayed there for 15 or 20 minutes, then went outside, where he saw a group of people, including his cousin (the woman with whom the victim had exchanged words). The group was arguing, and Harris heard a gunshot.

Decided November 2, 2015.

Joshua A. Millican, for appellant.

George E. Barnhill, District Attorney, Michelle C. Mclntire, Assistant District Attorney, for appellee.

Harris’s testimony that he was only at his girlfriend’s residence for a moment directly contradicts his girlfriend’s statement that he was with her from 8:00 that evening until the next morning. Consequently, “[t]here is no reasonable probability that the outcome of the trial would have been different had the [alibi] testimony been presented.” Mathis v. State, 328 Ga. App. 292, 298 (2) (c) (761 SE2d 836) (2014) (citations omitted).

(b) Failure to investigate.

Harris argues that trial counsel was ineffective because he failed to investigate the facts of the case properly. Harris “did not make any proffer as to what further investigation would have uncovered. He thus cannot establish ineffective assistance of counsel on this ground.” Arbegast v. State, 332 Ga. App. 414, 426 (6) (f) (773 SE2d 283) (2015) (citation and punctuation omitted).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


author: MCFADDEN, Judge.

text:
    A15A1116.
    BANKSTON v. RES-GA TWELVE, LLC et al.
    (779 SE2d 80)
   MCFADDEN, Judge.

This appeal is from a trial court order dismissing a complaint for failure to state a claim. Because the trial court correctly found that there is no set of facts within the framework of the complaint that would entitle the plaintiff to relief, we affirm.

“We review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff s favor.” Babalola v. HSBC Bank, 324 Ga. App. 750 (751 SE2d 545) (2013) (citations and punctuation omitted). So construed, the pleadings show that Denesia Bankston filed a complaint against RES-GA Twelve, LLC (“RES-GA”) and its law firm Hartman, Simons and Wood, LLP (“Hartman”), asserting claims for breach of contract, breach of duty of good faith, invasion of privacy, punitive damages and attorney fees. In support of the claims, the complaint alleged that in 2007, Bankston acquired land by quitclaim deed and executed a deed to secure debt in favor of First Georgia Community Bank in the amount of $277,500. The bank was later closed by the Georgia Department of Banking and Finance, and the Federal Deposit Insurance Company (“FDIC”) was appointed as receiver for the bank. In 2010, the FDIC assigned its interest in the aforementioned deed to secure debt to Multibank 2009-1 RES-ADC Venture, LLC (“Multibank”). In 2013, Multibank assigned the deed to secure debt to RES-GA. On May 29, 2013, Hartman mailed notice of foreclosure to Bankston that, according to the complaint, failed to include the information required by the security deed and OCGA § 44-14-162.2. Bankston attached the notice of foreclosure as an exhibit to the complaint.

RES-GA and Hartman moved to dismiss the complaint for failure to state a claim. The trial court granted the motion, finding that the notice of foreclosure attached to the complaint plainly showed that it complied with all notice requirements. Bankston appeals from the dismissal order.

A motion to dismiss may he granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied.

Ramsey v. New Times Moving, 332 Ga. App. 555, 557 (774 SE2d 134) (2015) (citations and punctuation omitted). “A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes and thus, a trial court is authorized to consider exhibits attached to and incorporated into the pleadings in its consideration of a motion to dismiss.” Gold Creek SL v. City of Dawsonville, 290 Ga. App. 807, 809 (1) (660 SE2d 858) (2008) (citations and punctuation omitted).

1. Breach of contract.

The only specific allegations in the complaint supporting the breach of contract claim are that the notice of foreclosure was deficient under the security deed and OCGA § 44-14-162.2. But these allegations

are not factual matters at all. To the contrary, they are conclusions of law. While a trial court is required to consider a non-moving party’s factual allegations to be true, it is not required to accept the legal conclusions the non-[moving] party suggests that those facts dictate. For this reason, [Bankston’s] claims are untenable based on the standard of review alone.

Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) (764 SE2d 398) (2014) (footnote omitted).

Moreover, even if Bankston’s legal conclusions were treated as factual allegations, they do not provide a basis for relief. As the trial court found, the notice of foreclosure that was attached to and incorporated into the complaint clearly shows that it included the required information and was thus sufficient as a matter of law. See OCGA§ 44-14-162.2 (notice must be in writing; be given no later than 30 days before foreclosure date; include name, address and telephone number of entity with authority to negotiate all terms of the mortgage; and be sent by registered or certified mail to specified address). Because the complaint shows with certainty that Bankston would not be entitled to relief under the state of facts that could be proven in support of her breach of contract claim, the trial court correctly dismissed that claim.

2. Breach of duty of good faith and fair dealing under security deed.

There is no independent cause of action for violation of a duty of good faith and fair dealing in the performance of a contract “apart from breach of an express term of the contract. [Cit.]” Morrell v. Wellstar Health System, 280 Ga. App. 1, 5 (2) (633 SE2d 68) (2006). As discussed above in Division 1, the trial court properly dismissed the breach of contract claim. Consequently, the claim for breach of duty of good faith and fair dealing under the contract was also properly dismissed since there is no such independent cause of action apart from the breach of contract claim.

3. Invasion of privacy.

The complaint alleged that RES-GA violated Bankston’s right of privacy by placing her in a false light before the eyes of others.

To establish this [type of false light invasion of privacy] claim, a plaintiff must show the existence of false publicity that depicts her as something or someone which she is not and must demonstrate that the false light in which she was placed would be highly offensive to a reasonable person.

Decided November 2, 2015.

Roberts Law, Grady A. Roberts III, for appellant.

Schulten, Ward & Turner, Kevin L. Ward, J. Zachary Zimmerman; Busby & Negin, J. S. Scott Busby, Ronald F. Negin, Anne-Marie Shipe, Eric M. Jenniges, for appellees.

Torrance v. Morris Publishing Group, 281 Ga. App. 563, 572 (3) (b) (636 SE2d 740) (2006) (citations and punctuation omitted). Here, the invasion of privacy count of the complaint did not identify any acts of false publicity and instead simply referenced the “[d]efendants’ above actions.” As previously noted, the only specific allegations in the complaint concerned the purportedly deficient notice of foreclosure that was sent to Bankston. However, as also explained above, that notice was sufficient as a matter of law, and thus the complaint “fails to state a claim upon which relief can be granted.” Benedict v. State Farm Bank, 309 Ga. App. 133, 136 (1) (a) (709 SE2d 314) (2011) (affirming dismissal of invasion of privacy claim).

4. Punitive damages and litigation costs.

The trial court correctly concluded that because the primary claims must be dismissed, the derivative claims for punitive damages and litigation costs also fail. See Crane v. Samples, 267 Ga. App. 895, 896 (2) (600 SE2d 624) (2004).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       RES-GA and Hartman’s motion to dismiss the appeal due to untimeliness of, and deficiencies in, Bankston’s appellate brief is hereby denied.


text:
    A15A1525.
    GRANITE LOAN SOLUTIONS, LLC v. KING.
    (779 SE2d 86)
   McFADDEN, Judge.

After Clarence King obtained a default judgment against Granite Loan Solutions, LLC (“Granite”), Granite filed a motion seeking to set aside the judgment and open the default or, alternatively, to obtain a new trial. Granite appeals from the denial of that motion. We affirm the ruling because Granite has not shown that the trial court abused his discretion in declining to set aside the judgment and open default and because Granite has not shown by the record that it is entitled to a new trial.

1. Procedural background.

On April 4, 2014, King filed a complaint against Granite, among other defendants, in the State Court of Chatham County. The complaint alleged that after King’s home was foreclosed upon and no timely confirmation action was brought, resulting in his discharge from further liability, Granite and its co-defendants engaged in a fraudulent conspiracy to foreclose upon him a second time and thereby create an apparent basis for extracting further payments.

King served the complaint upon Granite on April 25, 2014. Granite failed to answer or file another defensive pleading. After a bench trial on damages that was not taken down, on June 26, 2014, the trial court granted King a default judgment and awarded actual and punitive damages totaling $4 million against Granite. On July 28, 2014, Granite filed a motion in which it asked the trial court to set aside the default judgment under OCGA § 9-11-60 (d) (2) for fraud, accident or mistake; to set aside the default pursuant to the trial court’s broader authority over cases still within the breast of the court; or, alternatively, to grant a new trial on damages. The trial court denied this motion, and we granted Granite’s application for discretionary review of that decision.

2. Appellate jurisdiction.

As an initial matter, we note that, although Granite sought discretionary review of the trial court’s order, the order was directly appealable. Among other relief, in its motion Granite asked the trial court to order a new trial on damages because the evidence did not support the award, a request the trial court denied. Because the order on appeal included the denial of a motion for new trial, it was directly appealable. See generally PHF II Buckhead LLC v. Dinku, 315 Ga. App. 76, 80-81 (2) (726 SE2d 569) (2012) (considering direct appeal of order denying motion for new trial on damages, which sought reexamination of issues of fact, in case involving default judgment). Because the order on appeal was directly appealable, the application for discretionary appeal, while not necessary, was due to be granted. OCGA § 5-6-35 (j).

3. Motion to set aside judgment and open default.

Granite argues that the trial court erred in denying its motion to set aside the default judgment pursuant to OCGA § 9-11-60 (d) (2) because King obtained the default judgment by accident or mistake. Granite argues that the trial court erred in denying the motion for three other reasons, as well: because at the time of the judgment venue was not proper in Chatham County, because Granite was not given notice of the damages hearing, and because procedural errors occurred in the case. Granite also argues that the trial court erred in denying its motion to open default. We review a ruling on a motion to set aside for abuse of discretion and affirm if there is any evidence to support it. See Stamey v. Policemen’s Pension Fund Bd. of Trustees, 289 Ga. 503, 504 (1) (712 SE2d 825) (2011); Cherwood, Inc. v. Marlin Leasing Corp., 268 Ga. App. 64 (601 SE2d 356) (2004). As explained below, the trial court did not err in declining to set the judgment aside for any of the reasons argued by Granite. Consequently, the trial court had no occasion to reach the question of opening the default.

(a) Setting aside judgment for fraud, accident, or mistake under OCGA § 9-11-60 (d).

Granite argues that the trial court should have set aside the default judgment pursuant to OCGA § 9-11-60 (d) (2), which authorizes a trial court to set aside a judgment for “[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant[.]” Granite asserts that some of the factual allegations in King’s complaint were “patently false” and in conflict with positions King took in a prior case against a different set of defendants. But “[rjelief under OCGA § 9-11-60 (d) (2) maybe granted only where the grounds are unmixed with the negligence or fault of the movant.” T. A. I. Computer v. CLN Enterprises, 237 Ga. App. 646, 648 (2) (516 SE2d 340) (1999) (citation and punctuation omitted). Where, as here, a “judgment against [a defendant] was entered because [the defendant] negligently allowed the case to go into default” and “ft]he essence of the mistake raised by [the defendant] is that it was unable to refute the allegations of the complaint,” a trial court “[does] not abuse [his or her] discretion in finding that this ‘mistake’ was not sufficient to support setting aside the judgment[.]” Id. (citation omitted). Although Granite asserts that its counsel was responsible for the default, “the neglect of [Granite’s] attorney is attributable to [it] and cannot suffice to excuse [its] failure to timely answer.”Butterworth v. Safelite Glass Corp., 287 Ga. App. 848, 851 (2) (652 SE2d 877) (2007) (citation omitted).

(b) Remaining grounds for setting aside judgment.

Granite’s remaining arguments for setting aside the judgment invoke the trial court’s inherent power to exercise his discretion for meritorious reasons to set aside a judgment not based on a jury verdict that was entered within the same term of court. See Miranda v. Stewart, 312 Ga. App. 290, 291 (718 SE2d 123) (2011) (“Under our law, a judgment not based upon a jury verdict is considered within the breast of the court during the term of court in which it is entered, and a court may exercise its discretion for meritorious reasons to set aside a judgment within the same term of court. Once that term of court has ended, however, a judgment may only be set aside under the procedures in OCGA § 9-11-60 (d).”) (citations omitted); Piggly Wiggly Southern v. McCook, 216 Ga. App. 335, 337 (1) (454 SE2d 203) (1995). The trial court retained this power in this case because Granite moved to set aside the default judgment during the same term in which the trial court entered that judgment. See OCGA § 15-6-3 (17) (Chatham County terms of court commence the first Monday in March, June, September, and December); see also Maslia v. Hamilton, 239 Ga. 52 (235 SE2d 485) (1977); Piggly Wiggly Southern, 216 Ga. App. at 337 (1).

(i) Venue.

Granite argues that the trial court should have set aside the default judgment because, when the trial court entered the judgment, venue was not proper in that court. Venue was not proper, according to Granite, because King voluntarily dismissed the only defendant who was a Chatham County resident. See generally OCGA § 9-10-31 (d) (“If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper.”). But, as King points out, after the voluntary dismissal, the only defendants remaining in the case were out-of-state defendants subject to long arm jurisdiction in Georgia. OCGA § 9-10-93 addresses venue in these circumstances:

. . . Where an action is brought against a resident of this state, any nonresident of this state who is involved in the same transaction or occurrence and who is suable under the provisions of this article may be joined as a defendant in the county where a resident defendant is suable. Under such circumstances, jurisdiction and venue of the court of and over such nonresident defendant shall not be affected or lost if at trial a verdict or judgment is returned in favor of such resident defendant. If such resident defendant is dismissed from the action prior to the commencement of the trial, the action against the nonresident defendant shall not abate but shall be transferred to a court in a county where venue is proper.

(Emphasis supplied.)

The parties dispute whether King dismissed the Chatham County resident before or during the trial on damages. But there is evidence to support King’s position that the dismissal occurred after the start of the damages trial. King was required to obtain a court order approving the voluntary dismissal for it to become effective, because the dismissal did not cover all of the defendants in the case. See Gresham v. Harris, 329 Ga. App. 465, 466 (765 SE2d 400) (2014); Kilgore v. Stewart, 307 Ga. App. 374, 375 (705 SE2d 209) (2010); see also OCGA § 9-11-21. The record contains sworn testimony from one of King’s attorneys that the trial court was presented with and signed that dismissal order after the damages hearing had begun. This evidence supports a finding that venue remained proper in Chatham County under OCGA § 9-10-93.

(ii) Notice.

Granite argues that the trial court should have set aside the default judgment because it did not receive notice of the damages hearing. But “[i]t is well settled that the failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial, and all service in the action.” T. A. I. Computer, 237 Ga. App. at 649 (3) (quoting OCGA § 9-11-5 (a)) (punctuation omitted). “Since [Granite] failed to timely file an answer, [it] waived any notice of further action in the case, including notice of the hearing on damages.” Cavin v. Powell, 276 Ga. App. 60, 62 (2) (622 SE2d 415) (2005) (citation omitted).

(iii) Alleged procedural errors.

Granite argues that the trial court should have set aside the default judgment on account of three alleged procedural errors: King’s use of an incorrect name for Granite in the caption of his complaint; a process server’s use of a return of service form that incorrectly identified the trial court; and the trial court’s inclusion of an incorrect date in his order granting default judgment. As explained below, these errors were minor and, whether taken separately or together, did not require the trial court to set aside the default judgment.

First, Granite points out that the caption of King’s complaint misstates Granite’s name as “Granite Solutions, LLC.” But “the caption is generally not considered a part of the petition in Georgia.” Anderson v. Bruce, 248 Ga. App. 733, 735 (2) (548 SE2d 638) (2001) (citation and punctuation omitted).

Courts refrain from attaching too much importance to the merely formal parts of a complaint and construe pleadings so as to do substantial justice. Substance, rather than nomenclature, controls. Thus, the character in which a party is sued may be determined from the substance of the allegations of the petition, considered in its entirety.

Id. at 736 (2) (citations and punctuation omitted). See also Memar v. Styblo, 293 Ga. App. 528 (667 SE2d 388) (2008); Southcom Group v. Plath, 257 Ga. App. 46, 48-49 (1) (570 SE2d 341) (2002). Here, because the body of King’s complaint repeatedly and consistently identifies Granite by its correct name, “Granite Loan Solutions, LLC,” it is clear that “Granite Loan Solutions, LLC” is a defendant in this action. See L. Henry Enterprises v. Verifone, Inc., 273 Ga. App. 195, 197 (1) (614 SE2d 841) (2005). Consequently, the incorrect caption “evinces no more than a mere misnomer,” and a “mere misnomer of a corporation in a judicial proceeding is not material or vital in its consequences, if the identity of the corporation intended is clear.” Miller v. U. S. Shelter Corp. of Del., 179 Ga. App. 469, 472 (2) (347 SE2d 251) (1986) (citation, punctuation and emphasis omitted). The record shows that Granite’s registered agent received service of the complaint, notwithstanding the mistake in the caption. Although Granite argues that King never sought to correct the misnomer, because Granite did not raise the issue until after final judgment, it has waived any objections to the mistake. See Northgate Village Apartments v. Smith, 207 Ga. App. 479, 481 (2) (428 SE2d 381) (1993).

Second, Granite points out that the return of service form reflecting service of the complaint upon Granite’s registered agent included a heading that incorrectly identified the trial court as the “UNITED STATES DISTRICT COURT[,] Chatham District of Georgia.” Nevertheless, the trial court accepted this form for filing, and Granite has pointed to no authority suggesting that the error in the heading made the document an inadequate proof of service. See generally OCGA § 9-11-4 (h) (setting forth requirements for return of service).

Finally, Granite points out that, in the order granting the default judgment, the trial court incorrectly stated that the hearing on damages had occurred on January 6,2014, rather than June 26,2014. Granite offers no authority for the proposition that this type of clerical mistake, which a trial court may correct at any time of its own initiative, OCGA § 9-11-60 (g), required the trial court to set aside the default judgment.

(c) Opening of default.

Granite argues that the trial court erred in denying its motion to open default pursuant to OCGA § 9-11-55 (b), which authorizes a trial court, in its discretion, to open default under specific circumstances “[a]t any time before final judgment.” (Emphasis supplied.) The trial court here had entered a final judgment. So it could not open the default without first setting aside the final judgment, which it had declined to do. See Rapid Taxi Co. v. Broughton, 244 Ga. App. 427, 428 (1) (535 SE2d 780) (2000); Archer v. Monroe, 165 Ga. App. 724, 725 (2) (302 SE2d 583) (1983).

Decided November 2, 2015.

Hunter, Maclean, Exley & Dunn, Nicholas J. Laybourn, for appellant.

Bondurant, Mixson & Elmore, Michael B. Terry, Robert L. Ashe III; Lumley & Harper, Jerry A. Lumley; Jones & Smith, Bobby T. Jones, Julian B. Smith, Jr.; Jones, Osteen & Jones, Billy N. Jones, for appellee.

4. Motion for new trial.

Granite argues that the trial court erred in denying its motion for new trial on damages because no evidence supported the damages awarded by the trial court. On appeal from a ruling on a motion for new trial, we construe the evidence in the light most favorable to the party opposing the motion to determine whether there is any evidence supporting the judgment. See Holland v. Holland, 267 Ga. App. 251, 252 (599 SE2d 242) (2004). By virtue of its default, Granite admitted that it had participated in the fraudulent conspiracy alleged in the complaint. See Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985) (“a defendant in a default is in the position of having admitted each and every material allegation of the plaintiff’s petition except as to the amount of damages alleged”) (citation and punctuation omitted). And where, as here, there is no transcript of the evidentiary hearing, “we must presume . . . that the trial court’s finding ... was supported by the evidence presented at the hearing.” Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656 (2) (402 SE2d 753) (1991) (citation omitted). Accordingly, the trial court did not err in denying the motion for new trial.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       Granite refers to its out-of-state counsel who served as its registered agent and received service of the complaint, not to its appellate counsel.


text:
    A15A1551.
    WILLIAMS v. THE STATE.
    (779 SE2d 91)
   MCFADDEN, Judge.

Brett Williams appeals from the state court’s denial of his post-sentencing motion to withdraw his guilty plea for simple battery and criminal trespass. He argues that the record does not affirmatively show that he entered the plea knowingly and voluntarily and that the state failed to provide the trial court with sufficient facts on which to accept the guilty plea, but the contrary evidence was sufficient to authorize the trial court to reject those arguments. Finding that the trial court did not abuse her discretion in denying the motion to withdraw the plea, we affirm.

For a guilty plea to be valid, the record must show that

the defendant understands the plea and the constitutional rights that he is relinquishing. The [s]tate has the burden on direct review of establishing that the plea was entered intelligently and voluntarily. The [s]tate may meet this burden by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary. After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court’s discretion and withdrawal of the plea is allowed only when necessary to correct a manifest injustice.

DeToma v. State, 296 Ga. 90, 91 (1) (765 SE2d 596) (2014) (citations and punctuation omitted).

Contrary to Williams’s assertions, the record contains evidence that affirmatively shows that he made his plea knowingly and voluntarily. It contains a copy of the guilty plea form, signed by Williams, in which Williams agreed that he understood the rights he was giving up in pleading guilty and that he understood the sentence the state was recommending. The trial judge and Williams’s trial counsel also signed the plea form. While a plea form alone is not sufficient to establish the voluntariness of a guilty plea, a plea form is evidence that can be used by the trial court in determining whether a plea was voluntary. See Pike v. State, 245 Ga. App. 518, 521 (1), n. 4 (538 SE2d 172) (2000). In addition, at the hearing on Williams’s motion to withdraw his plea, trial counsel testified that she had advised Williams of the charges against him, had communicated the plea offer to him, had explained his right to choose whether to be tried by the court or by a jury, and had clarified what rights he was giving up in pleading guilty, including reviewing with him the rights listed on the plea form.

Williams argues that his trial counsel’s testimony was insufficient to show that he entered the plea knowingly and voluntarily because trial counsel testified based on her general practice rather than a specific recollection of her interactions with Williams. We do not find this argument persuasive. “Where, as here, the defendant has legal representation, a presumption arises that defense counsel routinely explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Wharton v. Anderson, 270 Ga. 22, 23 (1) (504 SE2d 670) (1998). The testimony of trial counsel concerned her standard practice and procedure when interacting with clients and as the trial court correctly noted, evidence of this kind can be used in establishing compliance with constitutional standards. See Barker v. Barrow, 290 Ga. 711, 714 (1) (723 SE2d 905) (2012); Bazemore v. State, 273 Ga. 160, 162 (1) (535 SE2d 760) (2000).

Citing the Uniform Superior Court Rules, Williams also argues that, because the record does not contain a verbatim transcript, it does not sufficiently show that the trial court determined that there was a factual basis for the plea. It is true that Uniform Superior Court Rule 33.11 requires “[a] verbatim record of the proceedings at which a defendant enters a plea of guilty or nolo contendere.” But this case came before a state court. In state court a verbatim transcript of a plea hearing is required only when the plea results in additional incarceration. See King v. State, 270 Ga. 367 (509 SE2d 32) (1998). The required contents of the record of a state court plea hearing are set out in Uniform State Court Rule 33.11:

Arecord of the proceeding at which a defendant enters a plea of guilty or nolo contendere shall be made and preserved. The record should include: (A) the inquiry into the voluntariness of the plea (as required in section 33.7); (B) the advice to the defendant (as required in section 33.8); [and] (C) the inquiry into the accuracy of the plea (as required in section 33.9) [.]

The requirements of Uniform State Court Rule 33.11 maybe satisfied by a combination of documentary or extrinsic sources, as long as they “provide reviewing courts with a record of the plea proceedings to determine if challenged pleas have been entered voluntarily and with proper understanding.” King, 270 Ga. at 370 (1) (citation omitted).

Even if we assume, as Williams argues, that the state failed to provide the trial court with sufficient facts on which to accept his guilty plea, this does not automatically require reversal. In order to successfully attack a guilty plea after sentencing, Williams must show that the trial court’s acceptance of his guilty plea caused him to suffer a manifest injustice. Ramsey v. State, 267 Ga. App. 452 (600 SE2d 399) (2004); State v. Evans, 256 Ga. 332, 336 (3) (454 SE2d 468) (1995). He has not done so. “[Williams] has argued only that the record contains an insufficient factual basis to support his plea, and, although he states that a manifest injustice occurred, he makes no contentions whatsoever supporting this statement.” Ramsey, 267 Ga. App. at 453. The record does not support a finding that Williams suffered a manifest injustice.

Decided November 2, 2015.

The McReynolds Law Firm, Jule McReynolds, Jr., for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

The evidence of the plea form combined with trial counsel’s testimony authorized the trial court to find that the state had met its burden of showing the plea to be knowing and voluntary. See Tomlin v. State, 295 Ga. App. 369, 371-372 (2) (671 SE2d 865) (2008). As Williams has not shown a manifest injustice, we affirm the trial court’s order denying Alexander’s motion to withdraw his guilty plea.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.