author: McFadden, Judge. BOGGS, Judge,

text:
    A13A2024.
    KHAN v. LANDMARK AMERICAN INSURANCE COMPANY.
    (757 SE2d 151)
   McFadden, Judge.

This appeal is from summary judgment rulings by the trial court in a case involving a dispute over insurance coverage arising from a shooting. Because the case was properly transferred from state court to superior court and because the trial court correctly ruled that there exist genuine issues of material fact as to the identity and motive of the shooter, we affirm those rulings. However, because the trial court erred in concluding that damages for the insurer’s breach of the duty to defend its insured in an underlying action are necessarily capped by the policy limit, we reverse that ruling.

The record shows that on November 4, 2006, Jamil Khan was shot with a firearm while in the parking lot of Flashers nightclub. Khan filed a lawsuit against 6420 Roswell Road, Inc. d/b/a Flashers, alleging, among other things, that he was shot by or at the direction of an employee of Flashers acting in the course and scope of Flashers’ business. Flashers requested that its insurer, Landmark American Insurance Company, provide a defense to the suit pursuant to its policy. The policy excludes bodily injury claims arising from an assault and/or battery unless the assault and/or battery was committed by a Flashers employee while trying “to protect persons and/or property.” Landmark refused to defend the action, stating that the incident was not covered by the policy. After Flashers failed to comply with discovery, Khan obtained a default judgment against Flashers and was awarded approximately $2.3 million in damages.

Thereafter, as part of a settlement agreement, Flashers assigned to Khan its claims against Landmark arising out of Landmark’s failure to defend Flashers in the premises liability lawsuit or to provide insurance coverage. Khan, as assignee of Flashers, filed the instant action against Landmark in the State Court of DeKalb County, asserting, among other things, a claim for breach of the contractual duty to defend. Landmark filed a motion to dismiss, while Khan moved for partial summary judgment on the issue of Landmark’s liability for breaching its duty to defend Flashers in the underlying premises liability suit. The trial court denied Landmark’s motion to dismiss, but granted partial summary judgment to Khan on the issue of liability for failure to defend. Landmark appealed, and this court affirmed the rulings. Landmark American Ins. Co. v. Khan, 307 Ga. App. 609 (705 SE2d 707) (2011).

On remand, the state court transferred the case to the Superior Court of DeKalb County. The parties subsequently filed cross-motions for partial summary judgment, which the trial court ruled on in two separate orders. In the first, the trial court granted Landmark’s motion for summary judgment as to claims for common law bad faith and attorney fees under OCGA § 13-6-11. Among other things, the trial court held that “the default judgment in the ancillary [premises liability] case does not preclude the Defendant from contesting the identity or motive of the shooter.” In the second partial summary judgment order, the trial court ruled that Landmark’s “breach of its duty to defend does not subject [it] to liability exceeding the policy limits set in the insurance policy obtained by Flasher[s], which is the amount of the insurance policy’s assault and battery exclusion endorsement, $100,000.” Khan appeals.

1. Transfer.

Contrary to Khan’s argument, the state court did not err in transferring the case to the superior court. It is undisputed that the insurance policy at issue in this case is a surplus line contract governed by OCGA § 33-5-1 et seq. As mandated by OCGA § 33-5-34 (a), an action against an insurer under such a surplus line contract pursuant to this chapter “shall be brought... in the superior court of the county in which the cause of action arose.” (Emphasis supplied.) Khan’s contention that this is merely a venue statute, rather than jurisdictional, is incorrect. The Code section plainly establishes that mandatory jurisdiction for such actions is in superior court, and that the proper venue is in the superior court of the county where the cause of action arose. Thus, the

transfer [of] the case to superior court. . . was required by Article VI, Section I, Paragraph VIII of the Georgia Constitution, which provides, under the heading “Transfer of Cases,” that “[a]ny court shall transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.”

Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369, 371 (667 SE2d 348) (2008) (punctuation omitted). See also Uniform Superior Court Rule 19.1 (providing that a motion in a pending action that jurisdiction is lacking or that venue is improper is treated as a motion to transfer the action to another court, and upon transfer the action shall continue in the transferee court as though initially commenced there). Accordingly, the case was properly transferred to superior court.

2. Landmark’s liability under the policy.

Khan contends that the trial court erroneously denied his motion for partial summary judgment by finding that genuine issues of material fact exist as to Landmark’s liability under the insurance policy issued to Flashers. Specifically, Khan challenges the trial court’s finding that the default judgment in the prior premises liability case does not preclude Landmark from contesting the identity or motive of the shooter. We disagree.

By refusing to defend Flashers in the underlying case that resulted in a default judgment, Landmark

did not waive its right to contest [Khan’s] assertion [in this case] that the insurance policy provides coverage for the underlying claim. Obviously, if the underlying claim is outside the policy’s scope of coverage, then [Landmark’s] refusal to indemnify or defend was justified and it is not liable to make payment within the policy’s limits. This question of whether the policy provides coverage for the claim is separate from the legal consequences of an insurer’s refusal to indemnify or defend.

Southern Guaranty Ins. Co. v. Dowse, 278 Ga. 674, 676-677 (2) (605 SE2d 27) (2004) (citations omitted). See also McGregor v. Columbia Nat. Ins. Co., 298 Ga. App. 491, 494 (1) (680 SE2d 559) (2009) (insurer’s election not to defend its insured does not waive its right to contest a claim of entitlement to recovery under the policy because duty to defend and duty to pay are independent obligations).

As noted above, the policy at issue expressly excludes bodily injury claims arising from an assault and/or battery unless the assault and/or battery was committed by a Flashers employee while trying “to protect persons and/or property.” Thus, as Khan acknowledges, for his injuries to be covered by the policy, he has to prove that the shooting was committed by a Flashers employee who was trying to protect persons and/or property. Conversely, Landmark may contest that claim of coverage by showing that the shooting was not committed by a Flashers employee trying to protect persons and/or property.

With regard to the identity of the shooter, Khan is correct that the default judgment in the prior lawsuit established the fact that the shooter was a Flashers employee because Khan’s complaint in that suit expressly made such an allegation.

A judgment by default properly entered against parties sui juris operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. Conclusions of law, and facts not well pleaded and forced inferences are not admitted by a default judgment.

American States Ins. Co. v. Walker, 223 Ga. App. 194, 195 (1) (a) (477 SE2d 360) (1996) (citation and punctuation omitted). Moreover, collateral estoppel precludes the relitigation of issues already adjudicated between the parties or their privies in a prior action. Id. Landmark, as Flashers’ insurer, stands in its shoes. Id. at 195 (1) (b). Accordingly, in this case, the fact that the shooter was a Flashers employee may not be contested by Landmark and relitigated. See Atlanta Cas. Ins. Co. v. Gardenhire, 248 Ga. App. 42, 44 (1) (545 SE2d 182) (2001).

However, the specific identity of the employee who was the shooter was not alleged in the complaint of the prior suit and thus was not adjudicated by the default judgment. Consequently, while the fact that the shooter was a Flashers employee may not be relitigated, the specific identity of the employee who was the shooter is not precluded by collateral estoppel and may be contested by Landmark in this case. See American States, supra at 195 (1) (a) (facts not pleaded are not admitted by a default judgment). Likewise, the issue of whether that employee/shooter was trying to protect persons and/or property also was not alleged in the prior complaint and has not been adjudicated, and therefore that issue also may be contested by Landmark in the instant case. Id.

With regard to this latter issue concerning the shooter’s motives, Khan argues that he has pointed to evidence in the record establishing without question that the unidentified shooter’s motive was to protect persons or property. However, the evidence he cites does not resolve that issue. Rather, the evidence shows merely that Flashers’ owner claimed that he and his management team had an unwritten policy between themselves that no employee was authorized to use force unless it was necessary to protect persons or property, and a Flashers manager speculated that there would be no reason for an employee to use force other than to protect persons or property. This claim of an unwritten policy and speculation by the manager simply do not establish as a matter of law that the person who shot Khan necessarily did so only to protect persons and/or property, especially since the specific identity of the shooter has not been established and is still in dispute. Because there remain genuine issues of material fact as to the identity of the employee who shot Khan and whether the shooting was committed to protect persons and/or property, the trial court did not err in denying Khan’s motion for partial summary judgment. See OCGA § 9-11-56 (c).

3. Damages.

Khan asserts that the trial court erred in ruling that damages for the claim that Landmark breached its duty to defend Flashers in the prior suit may not exceed the policy’s coverage limit of $100,000. We agree.

In Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267 (339 SE2d 321) (1985), “default judgments were entered, to the prejudice of insured, far above the policy limits the insurer would otherwise have been obligated to pay.” Id. at 279 (2) (citations omitted). Given those judgments, this court addressed the question of “whether the full amount of the judgments can be recovered when the insurer fails to defend under an obligation to do so[, o]r, on the other hand, is [the insurer] protected by the policy limits?” Id. at 277 (2). This court concluded that the insurer was not necessarily protected by the policy limits, and whether the full amount of the judgments was recoverable was a jury question that depended upon what damages were found to flow from breach of the contractual duty to defend. Id. at 279-280 (2). In a subsequent appeal of the case, the Supreme Court of Georgia affirmed the trial court’s judgment, noting with approval this court’s conclusion that recovery beyond the policy limits was a jury question depending on what damages flowed from the breach of the duty to defend. Leader Nat. Ins. Co. v. Kemp & Son, Inc., 259 Ga. 329, 330-331 (380 SE2d 458) (1989).

Thereafter, the Supreme Court of Georgia, citing its opinion in Leader, further explained the difference in possible damages for a failure to defend claim brought by an insured as opposed to the same claim brought by an injured victim:

When the plaintiff is the insured seeking to recover for the insurer’s breach of its contractual duty to defend, there is a factual question whether the breach may have caused the plaintiff to be exposed to greatly increased liability to the injured party. [Cit.] However, when the injured victim sues the insurer for the insurer’s failure to defend an insured tortfeasor, the plaintiff is hard-pressed to establish the harm the plaintiff has suffered as a result of the insurer’s failure to defend the tortfeasor, since, even if the insurer had done its duty, its maximum liability to the injured victim would have been the limits of the insurance policy.

Ga. Farm Bureau Mut. Ins. Co. v. Martin, 264 Ga. 347, 350-351 (3) (444 SE2d 739) (1994) (emphasis supplied).

In the instant case, Khan is not suing Landmark for breach of its duty to defend Flashers as the injured victim. Rather, he is “suing as assignee[ ] of the insured [Flashers], and [therefore], there is a factual question whether the breach may have caused the [insured] to be exposed to greatly increased liabilityf.]” Driskell v. Empire Fire and Marine Ins. Co., 249 Ga. App. 56, 62 (3) (547 SE2d 360) (2001) (citation omitted). Indeed, under such circumstances,

where an insurance company fails to offer a defense, it may be liable to its insured beyond the policy limits to the full amount of the judgment. Here, [Khan] stands in the shoes of the insured and thus may be entitled to recover an amount in excess of the policy limits. ... [A] jury question exists as to the extent of [Landmark’s] liability.

Atlanta Cas. Ins. Co., supra at 44-45 (2) (citations omitted).

We note that Landmark’s reliance on language from Colonial Oil Indus. v. Underwriters Subscribing to Policy Nos. TO31504670 & TO31504671, 268 Ga. 561, 563 (4) (491 SE2d 337) (1997) is misplaced. Landmark cites Colonial for the proposition that an insurer’s wrongful refusal to provide a defense entitles the insured to receive only what is owed under the contract. But as further explained in that opinion, the breach of the duty to defend “should not enlarge indemnity coverage beyond the parties’ contract.” Id. In this case the possible damages at issue are not merely those within the indemnity coverage of the policy, but are those further damages that may flow from breach of the contract to defend. “The issue of consequential damages, i.e., judgment in excess of the policy limits, and causation [that can be traced directly to the failure to defend are] matters for jury determination. [Cits.]” Thomas v. Atlanta Cas. Co., 253 Ga. App. 199, 204 (3) (d) (558 SE2d 432) (2001). Because the trial court incorrectly ruled that damages for the failure to defend claim are necessarily limited to the policy’s coverage limit of $100,000, that portion of the trial court’s ruling is reversed.

Judgment affirmed in part and reversed in part.

Doyle, P. J., concurs. Boggs, J., concurs fully and specially.

BOGGS, Judge,

concurring fully and specially.

I agree with all that is said in the majority opinion, but write separately to emphasize that Khan would not be automatically entitled to recover $2,308,684.70 from Landmark.

Here, the parties filed a consent motion asking the trial court to address whether any damages would be limited to the policy’s assault and battery exclusion endorsement of $100,000, or, whether the jury would be allowed to “enter a judgment for the Plaintiff in an amount up to and including the amount of the default judgment obtained by Khan against Flashers . . . $2,308,684.70.” While the trial court concluded, in error, that any damages could not exceed the $100,000 policy limit, I wish to emphasize that the majority does not endorse the alternative potential recovery posed to the trial court. This is not a case in which a judgment was entered against a pro se insured following a trial. See Leader Nat. Ins. Co. v. Kemp & Son, Inc., 189 Ga. App. 115 (375 SE2d 231) (1988). Rather, here, a default judgment was entered for Flashers’ failure to complete discovery, and Flashers subsequently settled with Khan for $100,000. In exchange for the assignment of Flashers’ claim against Landmark for Landmark’s failure to defend, Khan agreed to “withhold from the execution of the Judgment against the assets of Flashers.”

Khan is not automatically entitled to $2,308,684.70, the full amount of the default judgment. As the assignee of Flashers, he could seek only those damages that are directly traceable to Landmark’s breach of its duty to defend Flashers. See Thomas v. Atlanta Cas. Co., 253 Ga. App. 199, 204 (3) (d) (558 SE2d 432) (2001). Generally, where the insured has settled with the injured party and seeks damages for the insurer’s breach of its duty to defend, the damages are limited to the amount of settlement, expenses and attorney fees. Cf. Ga. Southern & Florida R. Co. v. United States Cas. Co., 97 Ga. App. 242, 244 (102 SE2d 500) (1958).

Decided March 26, 2014

Glenn A. Loewenthal, for appellant.

Fields, Howell, Athans & McLaughlin, Michael J. Athans, Matthew A. Barrett, for appellee.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A2050.
    GENERAL PUMP & WELL, INC. v. MILLER.
    (757 SE2d 161)
   Miller, Judge.

This appeal arises from the failure of a well-drilling unit purchased by General Pump & Well, Inc., which included a component part manufactured by Corey Miller d/b/a Centerline Manufacturing Company (“Centerline”). To date, General Pump has litigated the failure of this well-drilling unit in multiple venues in both state and federal courts, including the litigation that resulted in this Court’s decision in Laibe Corp. v. Gen. Pump & Well, 317 Ga. App. 827 (733 SE2d 332) (2012) (hereinafter “General Pump l”). General Pump appeals from the grant of Centerline’s motion to dismiss, contending that the trial court erred in dismissing this case for lack of personal jurisdiction and improper venue based solely upon this Court’s decision in General Pump 1. Since we find that our decision in General Pump 1 is not controlling here, we reverse and remand.

A defendant moving to dismiss for lack of personal jurisdiction bears the burden of proving the absence of jurisdiction. To meet that burden, the defendant may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. Further, to the extent that defendant’s evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence. When examining and deciding jurisdictional issues on a motion to dismiss, a trial court has discretion to hear oral testimony or to decide the motion on the basis of affidavits and documentary evidence alone pursuant to OCGA § 9-11-43 (b).

(Citations and punctuation omitted.) Hyperdynamics Corp. v. Southridge Capital Mgmt., 305 Ga. App. 283, 283-284 (I) (699 SE2d 456) (2010). Where, as here, the trial court resolved the motion to dismiss based solely upon written submissions, rather than upon evidence presented at a hearing, this Court is in an equal position with the trial court to determine and examine the facts under a nondeferential standard, and we resolve all disputed issues of fact in favor of the party asserting the existence of personal jurisdiction. See id. at 284 (I); see also Sun v. Girardot, 302 Ga. App. 395, 395-396 (691 SE2d 278) (2010) (applying de novo standard of review to grant of motion to dismiss for lack of subject matter jurisdiction and improper venue based on trial court’s consideration of parties’ written submissions).

So viewed, the record shows that, in the fall of 2004, General Pump, a Georgia company, contacted Laibe Corporation in Indiana to discuss the purchase of a water well-drilling unit. Between November 2004 and March 2005, General Pump and Laibe discussed various options for configuration of the well-drilling unit, including Laibe’s recommendation for incorporation of a duplex mud pump manufactured by Centerline, and drilling rods manufactured by Matrix Drilling Company. After contacting Centerline directly, General Pump entered into a new equipment purchase contract with Laibe for a custom well-drilling unit, which included the Matrix drilling rods and the mud pump that Centerline manufactured and specifically provided at an additional cost of $15,000. Laibe assembled the well-drilling unit in Indiana and delivered it to General Pump in Georgia on April 2005. The well-drilling unit subsequently developed recurring hydraulic problems and was returned to Indiana for repairs. After determining that the hydraulic problems were caused by a faulty check valve on the Centerline mud pump, Laibe repaired the hydraulic system and the mud pump and returned the well-drilling unit to General Pump.

Thereafter, in April 2006, a hole developed in the main housing of the Centerline mud pump. General Pump contacted Centerline directly and explained the problem. Centerline told General Pump that it had seen the same problem before and recommended a temporary solution. Although General Pump made the suggested temporary repair, the mud pump continued to fail at increasingly shorter intervals. As a result, the well-drilling unit was unusable for extended periods of time.

As set forth above, General Pump subsequently litigated claims against Laibe, Centerline and Matrix in numerous venues in both state and federal courts, including the present action and individual complaints against Laibe and Matrix in the State Court of Tattnall County. See Matrix Drilling, supra, No. CV608-045 at *1-3. Thereafter, the trial court denied Laibe’s motion to dismiss General Pump’s individual suit against it for lack of personal jurisdiction and improper venue. In General Pump 1, this Court held that the trial court should have granted Laibe’s motion to dismiss, because the sales contract for the well-drilling unit applied to General Pump’s individual claims against Laibe, and the forum selection clause in that contract was enforceable. General Pump 1, supra, 317 Ga. App. at 831-834 (2). Following this Court’s ruling in General Pump 1, the trial court granted Centerline’s motion to dismiss the instant suit for lack of jurisdiction and improper venue, finding that this case arises from the same contract and the same sales transaction that was at issue in General Pump 1.

In its sole enumeration of error, General Pump contends that the trial court erred in dismissing the present action for lack of personal jurisdiction and improper venue based solely on this Court’s decision in General Pump 1. We agree.

In General Pump 1, Laibe argued that the trial court erred in denying its motion to dismiss on four distinct grounds: (1) that General Pump failed to file suit within a specified limitations period; (2) that General Pump failed to state a claim because the contract disclaimed the relevant warranties; (3) lack of personal jurisdiction; and (4) improper venue based on the contract’s forum-selection clause. See General Pump 1, supra, 317 Ga. App. at 828. Contrary to the trial court’s finding in the instant case, however, this Court did not hold in General Pump 1 that the trial court erred in denying Laibe’s motion to dismiss for lack of personal jurisdiction. Rather, in vacating the denial of the trial court’s motion to dismiss, this Court solely addressed Laibe’s argument that the contract between Laibe and General Pump for the purchase of the well-drilling unit and the contract’s forum-selection clause applied to General Pump’s individual claims against Laibe. Id. at 829.

Decided March 26, 2014.

This Court’s decision in General Pump 1 also did not address the additional terms of the purchase contract between General Pump and Laibe. Notably, the purchase contract expressly excludes liability for materials or components that were not manufactured by or directly supplied by Laibe. Moreover, the contract expressly requires General Pump to file any claims regarding allegedly defective component parts directly against the manufacturers or suppliers of those component parts, none of whom were signatories to the contract.

In sum, our decision in General Pump 1 does not control and does not apply to the instant action involving a component part of the well-drilling unit, because General Pump 1 was limited solely to the applicability of the forum-selection clause to General Pump’s individual claims against Laibe, and General Pump 1 did not address the contract terms excluding liability for component parts. Since General Pump 1 does not control, the trial court erred in dismissing this case. Accordingly, we reverse the trial court’s judgment and remand this case for proceedings consistent with this opinion.

Judgment reversed and case remanded.

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

Callaway, Neville & Brinson, William E. Callaway, Jr., William J. Neville, Jr., for appellant.

Oliver Maner, Patrick T. O’Connor, Patricia T. Paul, for appellee.

       See Gen. Pump & Well v. Laibe Supply Corp., Centerline Mfg. Co., and Matrix Drilling Prod. Co., No. CV607-30 (S.D. Ga. May 10,2007) (Moore, J.); Gen. Pump & Well v. Laibe Supply Corp., No. CV607-30, 2007 U.S. Dist. LEXIS 80656 (S.D. Ga. Oct. 31,2007); Gen. Pump & Well v. Laibe Supply Corp., No. CV607-30, 2007 U.S. Dist. LEXIS 94990, at *9-11 (II) (A) (S.D. Ga. Dec. 28, 2007); Gen. Pump & Well v. Laibe Supply Corp., Centerline Mfg. Co., and Matrix Drilling Prod. Co., No. 1:08-CV-009 (S.D. Ind. Jan. 3, 2008); Gen. Pump & Well v. Matrix Drilling Products Co., No. CV608-045, 2009 U.S. Dist. LEXIS 24569, at *2-3 (S.D. Ga. Mar. 26, 2009).

       The contract states in pertinent part:
      3. Warranties, (a) Except as provided in Section 3 (b) and Section 4, we warrant to you, the original buyer only, that the Equipment (exclusive of the materials and components used in the Equipment) will be of good quality and workmanship, and free from defects . . .
      (b) Excluded from this warranty are (i) defects in parts or components not supplied directly by us; (ii) added part(s) that are not part of our standard design or are supplied pursuant to your special requirements; (iii) defects, damages or failures caused by unauthorized alterations or non-approved parts];] . . . (vi) any part that has been subject to . .. negligent repair or failure to provide reasonable and necessary maintenance; and (vii) defects, damages or failures caused by . . . negligent repair . . .
      (c) The Equipment may incorporate many component parts manufactured by companies other than us. . . . This limited warranty does not apply to such component parts, but such component parts may be warranted by the companies that manufactured them. Any limited or express warranty provided by the manufacturer or supplier of materials or components used in the Equipment will be passed on by us to you, to the extent possible____If any material or components used in the Equipment are defective, you will not file a claim against us, but will instead file your claim directly against the manufacturer or supplier!.]
      4. Disclaimer of Warranties and Limitation of Liability. . . . Your sole and exclusive remedy relating to this agreement and/or to the Equipment shall be the remedies, if any, afforded by the limited warranty in section 3 above and the transferable warranties of the manufacturers of components and systems of Equipment!.]


author: BARNES, Presiding Judge.

text:
    A13A2129.
    SUNBRIDGE RETIREMENT CARE ASSOCIATES LLC et al. v. SMITH et al.
    (757 SE2d 157)
   BARNES, Presiding Judge.

We granted Sunbridge’s application for interlocutory review of the trial court’s denial of its motion to stay proceedings pending arbitration and to compel arbitration. On appeal, Sunbridge contends that the trial court erred in denying its motion to stay proceedings and to compel arbitration because, among other things, the Federal Arbitration Act (“FAA”) mandates arbitration and the agreement at issue is not void for impossibility because of the unavailability of the National Arbitration Forum (“NAF”) as the designated arbitral forum. Upon our review and for the reasons that follow, we affirm.

The relevant undisputed facts establish that on May 27, 2009, Emma Wingo gave her daughter, Vickie Smith, a general power of attorney. On November 24, 2009, Smith enrolled Wingo at Carters-ville Heights Care and Rehabilitation Center, a Sunbridge facility. As part of the admission process, Smith signed documents as her mother’s legal representative, including an arbitration agreement that provided in pertinent part:

Any and all claims or controversies arising out of or in any way relating to this Agreement, the Admission Agreement or any of the Resident’s stays at this Facility . . . whether or not relating to medical malpractice . . . whether existing now or arising in the future, whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of statutory duties, regardless of the basis for the duty or of the legal theories upon which the claim is asserted, shall be submitted to binding arbitration.

(Emphasis in original.) The agreement further provided:

The arbitrator shall apply the NAF’s Code of Procedure (in effect as of May 1, 2006) unless otherwise stated in this Agreement. The parties’ selection of the NAF Code of Procedure to govern the arbitration proceedings is not tantamount to the selection of NAF as the administrator of the arbitration.... The Parties hereby opt out of NAF rules (45 regarding indigents and 43 regarding appeals and judicial review).

(Emphasis supplied.) Rule 1 (A) of the 2006 NAF Code of Procedure provides, in relevant part:

Parties who contract for or agree to arbitration provided by the [NAF] or this Code of Procedure agree that this Code governs their arbitration proceedings, unless the Parties agree to other procedures. This Code shall be deemed incorporated by reference in every Arbitration Agreement! ] which refers to the National Arbitration Forum ... or this Code of Procedure, unless the Parties agree otherwise. This Code shall be administered only by the National Arbitration Forum or Forum.

Sections (E) and (F) of Rule 48 of the Code further provide, in pertinent part, that “[i]f Parties are denied the opportunity to arbitrate a dispute, controversy, or Claim before the Forum, the Parties may seek legal and other remedies in accord with applicable law,” and that “[i]n the event of a cancellation of this Code, any Party may seek legal and other remedies regarding any matter upon which an Award or Order has not been entered.”

In July 2009, the Minnesota Attorney General filed a complaint against the NAF and related entities alleging violations of the Minnesota Prevention of Consumer Fraud Act and, thereafter, the parties entered into a consent judgment under which the NAF agreed that it would not administer, process, or participate in any consumer arbitration filed on or after July 24, 2009. See Miller v. GGNSC Atlanta, 323 Ga.App. 114, 116 (746 SE2d 680) (2013) (explainingthe details surrounding the NAF consent order).

Wingo died after spending approximately 11 months at the nursing home. OnNovember 21,2011, Smith and two siblings, Donna Green and Kenneth Anthony Brown, sued Sunbridge and several of its employees individually and as co-executors of their mother’s estate, for medical malpractice, ordinary negligence, and wrongful death. Sunbridge moved to stay the litigation and compel arbitration of the dispute pursuant to the arbitration agreement. Smith responded, and argued that the arbitration agreement was void pursuant to the doctrine of impossibility because of the NAF consent order and also because the agreement was unconscionable. Following a hearing on the motion, the trial court denied Sunbridge’s motion without explanation, but certified its order for immediate review. After this Court’s grant of Sunbridge’s application for interlocutory review, this appeal ensued.

In reviewing the trial court’s order, we look to see whether the trial court was correct as a matter of law in denying the motion to compel arbitration. Thus, the construction of an arbitration agreement, like any other contract, presents a question of law, which is subject to de novo review.

(Citations omitted.) Cash In Advance of Florida, Inc. v. Jolley, 272 Ga. App. 282 (612 SE2d 101) (2005).

1. This Court has previously addressed the issue of whether the FAA mandates arbitration in the event the arbitral forum designation in an agreement is unavailable. In Miller, 323 Ga.App. at 120 (2), this Court followed the “integral term vs. ancillary logistical concern” test for determining whether an arbitration agreement becomes unenforceable where the arbitral forum designated therein is unavailable for any reason. Under this test,

where the language of the agreement reflects that the choice of arbitral forum is an integral part of the agreement to arbitrate, then the agreement will be considered void if the forum is unavailable. [W]hen a court asks whether a choice of forum is integral, it asks whether the whole arbitration agreement becomes unenforceable if the chosen arbitrator cannot or will not act. If, on the other hand, the agreement shows that the selection of a particular forum was merely an ancillary logistical concern, section 5 [of the FAA] will apply and a substitute arbitrator may be named.

(Citations and punctuation omitted.) Miller, 323 Ga. App. at 119 (2). See Brown v. ITT Consumer Financial Corp., 211 F3d 1217, 1222 (II) (A) (3) (11th Cir. 2000).

Sunbridge maintains that, despite the designation of the NAF as the arbitral forum in the Agreement, use of the NAF was not integral to the contract and that Section 5 of the FAA provides a mechanism for proceeding with arbitration when the chosen forum is no longer available.

In Miller, 323 Ga. App. at 119 (2), this Court concluded that if “the agreement shows that the selection of a particular forum was merely an ‘ancillary logistical concern,’ section 5 of the FAA will apply and a substitute arbitrator may be named.” Conversely, if the selection of a particular forum was integral to the agreement, Section 5 does not apply, and the entire agreement is deemed impossible to enforce. Id. In determining whether the selection of a particular forum was ancillary or integral, we are guided by Miller, where we noted that

an arbitration agreement’s express designation of a single arbitration provider weighs in favor of a finding that the designated provider is integral to the agreement to arbitrate. Where the parties have agreed explicitly to settle their disputes before particular arbitration fora, that agreement must control.

(Citations and punctuation omitted.) Id. at 120 (2).

Here, the Arbitration Agreement provides that any disputes between the parties “shall be submitted to binding arbitration” and the arbiter “shall apply the NAF’s Code of Procedure.” It also provides that “[p]re-arbitration discovery shall be governed by NAF’s Code of Procedure.” The Agreement further provides that the parties specifically opted out of NAF Rules 45 and 43, and that designation of the use of the NAF Code of Procedure did not mandate use of a NAF administrator. In contrast, the parties did not opt out of Sections E and F of Rule 48, which authorizes parties to seek legal and other remedies in the event the Code of Procedure was canceled.

Likewise, the NAF’s Code of Procedure provides that “[t]his Code shall be deemed incorporated by reference in every Arbitration Agreement, which refers to the National Arbitration Forum... or this Code of Procedure, unless the Parties agree otherwise. This Code shall be administered only by the National Arbitration Forum. . . .”

Although Sunbridge maintains that this case is distinguishable from Miller because this agreement includes a provision that an arbitrator need not bean NAF arbitrator, we are not persuaded. Even if a non-NAF arbitrator were appointed, the NAF Code would still apply under the terms of the parties’ agreement. And because the NAF Code has in effect been canceled, Rule 48 of the Code authorizes the parties to pursue other remedies.

[T]he Arbitration Agreement by its terms provides that the procedural law governing the arbitration proceedings would be the NAF Code; that the arbitrators would... apply the NAF Code; and that in the absence of the NAF and/or the NAF Code as written, the parties would not be obligated to arbitrate their disputes but instead would be free to seek legal remedies. Accordingly, we find that the availability of the NAF Code of Procedure and, consequently, the availability of NAF as an arbitral forum, are integral to the Arbitration Agreement. To hold otherwise would require us to impose a strained construction on a straightforward agreement. It is far better to interpret the agreement based on what is specified, rather than attempt to incorporate other remote rules by reference. ... To appoint a substitute arbitrator, who would have to apply procedural rules other than the NAF Code, would constitute a wholesale revision of the arbitration clause. We therefore find that section 5 of the FAA does not apply in this case, as that law would allow a court to select and impose on the contracting parties a substitute arbitrator inconsistent with the plain terms of their contract. Rather, the unavailability of the NAF and its Code render the Arbitration Agreement impossible to enforce.

(Citations and punctuation omitted.) Miller, 323 Ga. App. at 124 (2).

2. Because we have determined that the Agreement is impossible to perform, we do not address Sunbridge’s remaining enumerations of error.

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs in judgment only.

Decided March 26, 2014.

Hall Booth Smith, T. Andrew Graham, Truman L. Tinsley TV, for appellants.

Wilkes & McHugh, Mary J. Perry, Gary L. Wimbish, for appellees.

       The appellants are Sunbridge Retirement Care Associates LLC, d/b/a Cartersville Heights Care and Rehabilitation Center, Sunbridge Healthcare LLC, f7k/a Sunbridge Healthcare Corporation, Harborside Healthcare Corporation, Sun Healthcare Group, Inc., Renee D. Roberts Rk/a Renee D. Knox, Holly Buchanan, and Gladys Sone. They will be referred to collectively as “Sunbridge.”

       The trial court granted Sunbridge a certificate of immediate review.

       The parties stipulated to the application of the FAA to the agreement.

       Section 5 of the FAA provides:
      If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as ifhe or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.
      9 USC § 5.


author: Miller, Judge. BARNES, Presiding Judge,

text:
    A13A2134.
    DOUBLE VIEW VENTURES, LLC et al. v. POLITE.
    (757 SE2d 172)
   Miller, Judge.

Nathaniel Polite filed a premises liability suit against Double View Ventures LLC (“Double View”) and Westdale Asset Management Ltd. (“Westdale”), the owner and property manager, respectively, of the apartment complex in which he lived at the time he was attacked by unknown assailants. Following a trial, the jury returned a verdict for Polite, determining that Double View and Westdale (collectively, “the Defendants”) were significantly at fault for Polite’s injuries, Polite was somewhat at fault, and the unknown assailants were not at fault. The Defendants appeal from the denial of their motion for new trial, contending that the trial court erred in: (1) refusing to allow the jury to consider an apportionment of fault with respect to the nonparty owner of the property adjacent to the apartment complex; (2) denying their motion for new trial on the basis that the jury’s failure to assign fault to the criminal assailants was contrary to or strongly against the evidence; (3) giving a charge on proximate cause that was inconsistent with the statutory requirement regarding apportionment of fault; and (4) excluding bad character evidence after Polite elicited testimony showing his good character. For the reasons that follow, we reverse.

Viewed in favor of the verdict, the evidence shows that on the evening of May 30, 2007, Polite, then a resident of Stonebridge Apartments, walked along a dirt path leading from the parking lot in front of his apartment to the Chevron gas station located adjacent to the apartment complex. It was well documented that residents of the apartments and their guests would use that path to go to the Chevron convenience store. The path went up a small hill to a wooden fence, which served as a boundary between the two properties, and the wooden fence had an opening that allowed for access back and forth across the properties. Polite passed through the fence and then continued walking to the Chevron station’s convenience store, where he bought a soft drink and a pack of cigarettes. Polite then exited the store and began walking back to his apartment.

As Polite walked back through the fence, two assailants, who were hiding behind the wooden fence, threw bleach into his face. Polite, whose eyes were burning, started running down the hill toward his apartment and screaming for his friends. One of the assailants then fired a gun, and the bullet struck Polite in the back, injuring his spine. It was not known if the assailants came from the apartment complex or the Chevron station.

Polite was subsequently taken to a hospital for his injuries, and he remained there for several months. As a result of the gunshot wound, Polite has difficulty walking, requires the use of a cane, is unable to stand for long periods of time, and has bowel and bladder problems. Polite’s assailants were never apprehended.

In the three years preceding the attack on Polite, at least a dozen armed robberies and a number of aggravated assaults had occurred at the Stonebridge Apartments. Furthermore, approximately two weeks prior to Polite’s attack, an apartment resident was attacked soon after passing through the wooden fence as he was walking back home along the dirt path from the Chevron station. That individual reported the incident to the complex manager of Stonebridge Apartments. Another attack was also reported to the complex manager approximately one week before Polite’s attack.

A security expert testified that given the documented history of armed robberies and aggravated assaults at Stonebridge Apartments, the access and perimeter control for the property fell below the standard of care. The security expert testified that, while the apartment complex had wrought-iron gates and chain link fencing surrounding most of the property, the use of the wooden fence as a means to control access from the convenience store was inadequate. The security expert also testified that the wooden fence was actually harmful because it provided a cover for would-be assailants to hide behind while waiting for victims. A former Stonebridge Apartments security guard testified that, beginning in January 2007, he made numerous reports to management identifying the opening in the wooden fence as a significant security violation, because it left residents unprotected. The security guard stated that nothing was done to respond to his concerns.

Following his attack, Polite sued the Defendants, alleging that they were negligent in failing to exercise ordinary care in keeping the premises safe and that their failure to provide adequate security in light of the prior criminal activity was the proximate cause of his injuries. Following a trial, the jury returned a verdict for Polite, finding that he was 13% at fault and the Defendants were 87% at fault. Although the unknown assailants were on the verdict form, the jury did not apportion any fault to them. Pursuant to the trial court’s ruling, the verdict form did not include the name of the Chevron gas station for the jury to determine whether it should be apportioned fault.

1. On appeal, the Defendants contend that the trial court erred in refusing to allow the jury to consider the percentage of fault of the Chevron station and to apportion damages among the Defendants and the Chevron station, pursuant to OCGA § 51-12-33. We agree.

Prior to trial, the Defendants filed three different notices of intent to seek apportionment of fault among nonparties as well as parties pursuant to OCGA § 51-12-33 (d). The three notices named at least three different entities as the owner of the Chevron gas station located adjacent to the Stonebridge Apartments.

At trial, evidence was elicited that, in addition to the criminal incidents on the apartment complex property in the three years preceding Polite’s attack, there were approximately nine robberies or assaults on the Chevron property, both inside and outside the store. Other evidence showed that the wooden fence in question was built by the owners, or former owners, of the Chevron station. A survey of the Chevron property shows that the fence is 12 feet away from the property line abutting Stonebridge Apartments.

A former Stonebridge Apartments complex manager testified that the Defendants began repairing the fence after individuals ripped out planks in order to cross between the convenience store and the apartment complex. The manager further testified that she attempted to contact the owners of the Chevron station to determine who was responsible for the fence and to propose sharing the costs of installing a wrought-iron fence; however, she received no response from the Chevron station owners. The manager also stated that the Defendants ultimately installed a wooden gate to deter people from tearing off planks from the fence.

Following the close of evidence, the trial court considered Polite’s motion for a directed verdict on the issue of putting the Chevron station on the verdict form for an apportionment of fault. Although the trial court initially questioned the validity of the Defendants’ pretrial notices on the ground that the Defendants had not established the true legal owner of the Chevron station, it concluded that the notices were legally adequate. The trial court nevertheless determined that the Chevron station would not be on the verdict form because the Defendants failed to produce any evidence creating a jury question as to whether the Chevron station was responsible for any of the repairs or had knowledge of the existing condition of the fence.

Here, the trial court essentially granted Polite’s motion for a directed verdict on the apportionment-of-fault issue with respect to the Chevron station.

A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the nonmovant, demands a particular verdict. OCGA § 9-11-50 (a). But where any evidence or some evidence exists to support a jury issue on the non-movant’s claims, a directed verdict is improper. This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict only if all of the evidence demands it.

(Citations and punctuation omitted.) Sun Nurseries v. Lake Erma, LLC, 316 Ga. App. 832, 835 (730 SE2d 556) (2012).

(a) The apportionment-of-fault statute at issue, OCGA § 51-12-33,

establishes the mechanism by which a trier of fact apportions damages. First, if the plaintiff is some degree responsible for its own injuries, the trier of fact determines the percentage of fault of the plaintiff, and the judge thereafter reduces the total amount of damages awarded in proportion to the plaintiff’s percentage of fault. Next, in cases involving an action against more than one actor, the trier of fact apportions the remaining damages among the liable actors according to each actor’s percentage of fault.

(Punctuation and footnotes omitted.) Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 271 (1) (740 SE2d 672) (2013). “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” (Emphasis supplied.) OCGA § 51-12-33 (c).

The purpose of the apportionment statute is to have the jury consider all of the tortfeasors who may be liable to the plaintiff together, so their respective responsibilities for the harm can be determined. ... By its plain language, OCGA § 51-12-33 (b) makes all persons responsible according to their respective percentages of responsibility.

(Punctuation omitted.) Couch v. Red Roof Inns, 291 Ga. 359, 365 (1) (729 SE2d 378) (2012).

In determining whether the Chevron station could be held liable to Polite, we look to applicable premises liability law.

[I]n Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe, which includes inspecting the premises to discover possible dangerous conditions of which the proprietor does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

(Punctuation and footnotes omitted.) Benefield v. Tominich, 308 Ga. App. 605, 607-608 (1) (708 SE2d 563) (2011). Proprietors also have a duty to protect customers from reasonably foreseeable criminal acts, and the question of reasonable foreseeability is generally for a jury to determine. See Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 785-786 (482 SE2d 339) (1997). An incident causing an injury is not considered reasonably foreseeable unless it was substantially similar to prior criminal acts based on “the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” (Citations and punctuation omitted.) Id. at 786.

In this case, it is undisputed that: the Chevron station built the fence; the Defendants made repairs to it; the holes in the fence, which allowed easy access between Stonebridge Apartments and the Chevron station, were an ongoing issue; there was a hole in the fence as of January 2007, about five months prior to the attack on Polite; and many violent crimes and robberies had occurred on the Chevron gas station property during the same period that similar crimes occurred at Stonebridge Apartments. Additionally, there is evidence that the Defendants attempted to contact the owners of the Chevron station for the purpose of coming to some agreement to replace the wooden fence, and that the Chevron station owners were unresponsive. Furthermore, Polite testified that he was attacked after he walked through the fence and took a few steps, and the evidence shows that the wooden fence is on Chevron’s property about 12 feet away from the Defendants’ property line. Given this evidence, along with the fact that it is unknown whether the attackers came from the Chevron station or the apartment complex, a jury question exists as to whether the Chevron station should have anticipated another criminal attack near the wooden fence and whether Chevron took reasonable precautions to protect Polite from the use of its premises. Sturbridge Partners, supra, 267 Ga. at 786-787 (holding evidence of prior burglaries was sufficient to give rise to a jury issue as to whether or not an apartment complex had the duty to exercise ordinary care to safeguard its tenants against the foreseeable risks posed by the prior burglaries). Under these circumstances, we cannot say that there was no evidence supporting the Defendants’ claims that the Chevron gas station may have been liable for Polite’s injuries and could be apportioned fault. Consequently, the trial court erred in refusing to allow the jury to consider whether the Chevron station was partially at fault.

The dissent reaches a contrary conclusion, contending that the Defendants were required to call witnesses in order to create factual questions as to the apportionment issue. Contrary to the dissent’s assertion, this Court has held that, even where a defendant does not call witnesses, the plaintiff’s own evidence may create questions of fact that preclude a directed verdict. See Glover v. Southern Bell Telephone & Telegraph Co., 132 Ga. App. 74, 78 (6) (207 SE2d 584) (1974). In arguing against Polite’s motion for a directed verdict, the Defendants cited to the above evidence showing that a jury question existed as to the apportionment issue.

Additionally, the dissent’s conclusion that the frequency of crimes in the area, including those at the Chevron station itself, “establishes nothing about what the owners or occupiers knew,” ignores well-established legal precepts and views the evidence in a light most unfavorable to the Defendants, who were the nonmovants with respect to Polite’s motion for a directed verdict. Notably, the evidence shows that there were armed robberies and assaults inside the convenience store, as well as in the parking lot and behind the building. Given that the incidents that occurred inside the store were reported to the police, as the dissent acknowledges, it strains credulity that the owners of the store were not aware of this criminal activity.

Nevertheless, a landowner

need not have actual knowledge of criminal conduct before it may be held liable for failing to keep the premises safe; rather a landowner can be liable for third-party criminal attacks if the landowner has reasonable grounds to apprehend that such a criminal act would be committed but fails to take steps to guard against injury.

(Citation and punctuation omitted.) Walker v. Aderhold Properties, 303 Ga. App. 710, 713 (1) (694 SE2d 119) (2010). One way to prove that a landowner had advance notice of the danger of criminal attack is by introducing evidence showing a pattern of substantially similar crimes on the premises. See Fernandez v. Ga. Theatre Co. II, 261 Ga. App. 892, 893 (583 SE2d 926) (2003) (providing that a proprietor’s knowledge can be shown by evidence of substantially similar prior incidents of violence on its premises); Hunter v. Cabe Group, Inc., 244 Ga. App. 162, 163 (535 SE2d 248) (2000) (“In order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the proprietor may be held liable.”) (citations omitted).

Given the evidence showing numerous armed robberies and assaults on the Chevron property, including inside the convenience store, as well as evidence that the area surrounding the Chevron station and the apartment complex was known as a high-crime area, there is a factual question as to whether the Chevron station knew or should have known about the dangerous conditions on its premises which might subject it to a determination of fault. It was for the jury, not any member of this Court, to resolve this issue. Moreover, although it is not clear whether the Chevron station had any security protection, it is undisputed that it did not maintain its own fence, that the portion of the fence at issue was located on Chevron property about 12 feet away from the property line, and that this failure resulted in clear danger to those, such as Polite, who traversed openings in the fence.

Although the dissent wishes to uphold the jury’s verdict, an apportionment of fault is required by law. Polite removed this issue from the jury’s consideration by successfully moving for a directed verdict. Notwithstanding the substantial jury verdict, or this Court’s desire to honor the jury’s verdict, this Court cannot ignore the apportionment requirement. Nor can this Court overlook well-established law concerning a review of a directed verdict that mandates that we view the evidence most favorable to the nonmovant and that we reverse a directed verdict where, as here, a factual question exists that was not resolved by the jury. Since there is some evidence showing that the Chevron station may have contributed to Polite’s injuries, we are constrained to reverse the jury’s verdict because the jury did not have the opportunity to consider whether the Chevron station should be apportioned fault.

(b) To the extent Polite argues that the Defendants failed to prove the exact identity of the owners of the Chevron station, his argument is unavailing. In order to submit the apportionment issue to the jury, the defending party must give pretrial notice that a nonparty was wholly or partially at fault. OCGA § 51-12-33 (d) (1). The notice

shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(Emphasis supplied.) OCGA § 51-12-33 (d) (2). The statute does not require precise party identification. See GFI Mgmt. Svcs. v. Medina, 291 Ga. 741, 742-743 (733 SE2d 329) (2012) (unknown criminal assailants could be on the verdict form for apportionment of fault). Additionally, the determination of fault under OCGA § 51-12-33 does not subject a nonparty to liability in any action and cannot be introduced as evidence of liability in any action. OCGA § 51-12-33 (f). Consequently, although establishing the exact identity of the Chevron station owner would be necessary to subject that owner to liability, to apportion fault, the Defendants were required, at a minimum, to designate the nonparty’s identification as much as they could under the circumstances. OCGA § 51-12-33 (d). The trial court found that the Defendants’ apportionment notices were adequate, and Polite presents no basis to reverse that ruling.

Finally, we note that the Defendants have a burden to establish a rational basis for apportioning fault to a nonparty, see Couch, supra, 291 Ga. at 366 (1); Levine, supra, 321 Ga. App. at 272 (1). Whether the Defendants would have met that burden given the trial evidence presented should have been left for the jury to determine. See Couch, supra, 291 Ga. at 366 (1). Accordingly, the trial court erred by taking that issue away from the jury and completely omitting the Chevron station from the verdict form.

2. The Defendants also contend that the trial court erred in its charge to the jury on proximate cause because it is inconsistent with the statutory requirement that the jury apportion fault to all persons responsible for the plaintiff’s injuries. We disagree.

The review of allegedly erroneous jury instructions is a legal question, and we therefore review the trial court’s ruling de novo. Monitronics Intl. v. Veasley, 323 Ga. App. 126, 140 (5) (746 SE2d 793) (2013). “[I]t is well established that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) West v. Breast Care Specialists, 290 Ga. App. 521, 522 (1) (659 SE2d 895) (2008).

Over the Defendants’ objection, the trial court gave the following instruction on proximate cause:

Proximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred. Proximate cause is that which is nearest in the order of responsible causes, as distinguished from remote. That which stands last in causation, not necessarily in time or place, but in causal relation.
If an injury would have occurred regardless of the acts of negligence on the part of the Defendant, there can be no recovery. In determining whether Plaintiff has met his burden of proving that a Defendant’s negligence was the proximate cause of his injuries, you need not address the various elements of it in any particular order. There may be more than one proximate cause of an injury.
A general principle of law is that one wrongdoer may be liable for the acts of a later wrongdoer if the first could have foreseen the wrongful acts of the second. If, after an original wrongful act, a new act has intervened that, by itself, could have been the cause of the injury, and the nature of the new act was such that its natural consequences could reasonably have been foreseen by the original wrongdoer, the original wrongdoer is responsible for all of the consequences resulting from the intervening act.

As discussed in Division 1, a property owner has a duty to keep his premises safe from foreseeable criminal acts. The proximate cause charge reflects this principle by stating that “one wrongdoer may be liable for the acts of a later wrongdoer if the first could have foreseen the wrongful acts of the second.” While the proximate cause instruction also stated that the original wrongdoer is responsible for all of the consequences resulting from the intervening act, it does not expressly provide that such wrongdoer is completely or totally liable for all of the plaintiff’s damages. Indeed, the fact that a property owner may be liable for failing to keep the premises safe from foreseeable criminal acts does contradict the requirement that damages are to be apportioned. See Couch, supra, 291 Ga. at 366 (1) (holding that even under the apportionment statute, a property owner must still keep his premises safe or face potential liability in proportion to his level of responsibility for causing the plaintiff’s injuries from failing to protect against a criminal attack). The trial court correctly instructed the jury on the issue of apportionment of fault and did not err in giving the proximate cause instruction.

3. The Defendants’ remaining claims of error are based on evidence admitted at trial, are not likely to recur during retrial of the case, or are moot in light of our holding in Division 1.

Judgment reversed.

Andrews, P. J., Dillard and McMillian, JJ., concur. Doyle, P. J., and Ray, J., concur fully in Divisions 1 and 3 and concur in judgment only in Division 2. Barnes, P. J., concurs fully in Division 2 and dissents in Divisions 1 and 3.

BARNES, Presiding Judge,

concurring in part and dissenting in part.

Because the trial court did not err in denying the defendants’ motion for new trial in this premises liability suit, I must respectfully dissent from Divisions 1 and 3 of the majority opinion, although I concur fully in Division 2. The owner and property manager of the apartment complex where Polite was attacked contend that the trial court should have allowed the jury to consider apportioning damages against a contiguous property owner, asserting that OCGA § 51-12-33 only requires them to give timely notice of the nonparty they wish to add to the verdict form. But the defendants failed to introduce evidence that would provide a rational basis for the jury to apportion fault against this nonparty under a premises liability theory. Accordingly, I respectfully dissent to the majority opinion reversing the verdict and judgment in this case.

1. “In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack,... the jury is allowed to apportion damages among the property owner and the criminal assailant,” pursuant to OCGA § 51-12-33. Couch v. Red Roof Inns, 291 Ga. 359 (1) (729 SE2d 378) (2012). Whether the assailant’s identity is known is not important, because the assailant is undeniably part of “the full universe of tortfeasors, whether [a] part[y] or not,” which the jury is authorized to find liable for the plaintiff’s damages and against which it may apportion a damages award. Id. at 361. The issue in this case is different: what evidence is required to elevate a nonparty who is not a criminal actor to inclusion in “the full universe of tortfeasors” against which damages may be apportioned?

The defendants filed a “Notice of Negligence or Fault of Non-party’ pursuant to OCGA § 51-12-33 against three entities. In one notice they asserted that Polite was attacked on the property of a Chevron-branded gas station and convenience store, and believed that Chevron USA, Inc. had “ownership and/or management interests in the gas station and convenience store” believed to be doing business as Shreeji Food Mart. In the second notice the defendants claimed that Polite was attacked “on property owned and/or operated by AMA Investment, Inc.,” which operated a Chevron-branded gas station and convenience store doing business as Shreeji Food Mart, and the third notice was identical except for the nonparty name, which was Areesha Enterprises, LLC. In all three notices, the defendants contended that

the negligence of [the named nonparty’s] knowledge of and continued maintenance of a nuisance on its property were the proximate cause of [the] Plaintiff’s injuries. [The named nonparty] has failed to repair a fence located on its property. This lack of repair constitutes negligence and nuisance that is the proximate cause of Plaintiff’s injuries.

After Polite rested his case, the defendants also rested without putting up any evidence, and Polite moved for a directed verdict as to any apportionment of fault against AMA Investments, Areesha Properties, and Chevron USA on several grounds. Those grounds included the lack of evidence regarding the relationship between the convenience store and the three parties and that there was no evidence that the property owners knew about ongoing criminal activity behind the store so that the attack on Polite was foreseeable. Polite also argued that because a convenience store would not want to restrict access in the way the apartment owners wanted to restrict nonresidents’ access, the defendants needed to present evidence regarding what security measures a convenience store should employ. The defendants responded that Polite’s security expert testified that commercial property owners had a duty to protect their customers and that there had been a robbery inside that store, which was sufficient evidence to allow the jury to decide if the property owner had sufficient knowledge. Further, they argued that apportioning damages was “not the same as a claim” and they did not have to establish damages. The statute only required notice about who the defendant intended to blame, and it did not matter who actually owned the property or which entity’s name was listed in the apportionment section of the verdict, because the verdict was not binding against the nonparty.

The trial court asked, “Do you think the Legislature actually intended that? Because if that’s the case, what would keep you from theoretically naming a thousand entities?” The defendants responded, “Well, you could. That’s exactly right. If there were a thousand entities that you could establish and articulate were in some way responsible for[.]” The defendants only had to establish that there is some other entity that was responsible, and not who that entity actually was, they contended, and suggested that the trial court simply identify the nonparty as “Chevron” because “[t]here is a sign on the door that says Chevron.” After additional colloquy, the trial court found that the defendants failed to produce sufficient evidence related to the three nonparties and did not include them on the verdict form.

The defendants argue on appeal as they did at trial that the only requirement for adding a nonparty for apportionment purposes under OCGA § 51-12-33 is that they give timely notice that they believe the nonparty was wholly or partially at fault, because “the requirements for maintaining a claim against, and recovering from an entity do not apply.” It does not matter, according to the defendants, whether a contiguous property owner is actually identified properly, because the entity named is not subject to liability if the jury assesses fault against them. Nor do they bear the burden of proving the extent of the nonparty’s responsibility for the plaintiff’s damages, they argue, because the statute provides that the nonparty against whom fault is claimed must be considered regardless of whether the person or entity was, or could have been, named as a party to the suit. Aside from the ownership issue, the defendants also argue that there was sufficient evidence for the jury to consider whether the nonparty had adequate notice of crimes occurring on the property to be found responsible for a portion of Polite’s damages.

The trial court was correct in holding that the defendants did not produce sufficient evidence to create a jury question regarding whether damages should be apportioned against the nonparties. Property owners in premises liability cases involving criminal activity “face potential liability for an amount of damages commensurate with [their] responsibility for a plaintiff’s harm.” (Emphasis supplied.) Couch, 291 Ga. at 366 (1). Further, “it is the defendant’s burden to establish a rational basis for apportioning fault to a nonparty.” Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 272 (1) (740 SE2d 672) (2013).

[T]he fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact contributed to the alleged injury or damages. ... If it were otherwise,. . . there would be no limitation on the number of potential nonparties that a trial court would be required to include on the verdict form for purposes of assessing fault under OCGA § 51-12-33 (c).

(Citation and punctuation omitted.) Union Carbide Corp. v. Fields, 315 Ga. App. 554, 559-560 (1) (b) (ii) (726 SE2d 521) (2012), reversed on other grounds, Georgia-Pacific v. Fields, 293 Ga. 499 (748 SE2d 407) (2013). Accordingly, a defendant property owner who wants the jury to allocate responsibility for a plaintiff’s injury to another property owner has to present evidence sufficient to provide a rational basis for the jury to apportion damages against it. The defendants in this case did not do so.

Pretermitting whether a defendant must identify the legal owner or occupier of adjoining land for apportionment purposes, the applicable standard for adding a nonparty for apportionment purposes is that a defendant must at a minimum present evidence that the nonparty had a duty to the plaintiff, breached its duty, and caused damages. While the defendants baldly assert that “there was ample evidence that the owner/occupier of the Chevron station owed a duty, breached its duty, and was a cause of Polite’s injuries,” there was no actual admissible evidence introduced by the defendants at trial that could form a rational basis for the jury to apportion damages against “Chevron.”

Further, a landowner has a duty to prevent foreseeable crimes, and the defendants argue that there was evidence that “Chevron” was aware of criminal activity in this area because Polite’s security expert testified that a number of crimes had occurred in the previous three years at the address where the Chevron station and a food mart were located. But the expert obtained that information by reviewing 911 call logs and then asking for incident reports on calls from the address where the station was located, from the defendant apartments, and from an adjoining apartment complex. He did not obtain the information from the “Chevron” owners or occupiers, and therefore this evidence establishes nothing about what the owners or occupiers knew. Further, testimony from the defendants’ former property manager that she left messages for the property owner and kept “hoping and waiting for the owner to contact [her]” does not establish that the Chevron owners or occupiers even received her messages. Finally, while Polite’s expert admitted on cross-examination that “Chevron” had an obligation to control crime on its property, he also testified that he had no information on what kind of security program was used there.

Absent information about the contiguous landowner/occupier’s knowledge of similar crimes, the foreseeability of this crime, or the security efforts in use on that property, if any, the jury had no rational basis to consider whether Polite’s damages should have been apportioned against that nonparty, and the trial court did not err in declining to allow the jury to do so. McReynolds v. Krebs, 307 Ga. App. 330, 335 (3) (705 SE2d 214) (2010), aff’d, 290 Ga. 850 (725 SE2d 584) (2012) (trial court properly declined to allow jury to consider apportioning damages against nonparty after defendant presented no evidence on which apportionment of liability could be based, but “rested following the plaintiff’s case without presenting any evidence whatsoever”).

Accordingly, because the defendants failed to present evidence that would have provided the jury with a rational basis for apportioning damages against the contiguous property owner, I must respectfully dissent from Division 1 of the majority opinion.

2. As noted earlier, I fully concur with all that is said in Division 2 of the majority opinion, which concludes that the trial court did not err in its jury instructions on apportionment of fault and proximate cause.

3. The defendants also argue that the trial court erred in denying their motion for new trial on the general grounds, contending that the jury’s failure to apportion any fault to the criminals who attacked the plaintiff “is plainly both contrary to the evidence and not supported by any evidence.” They further argue that the trial court failed to exercise its discretion to act as a “thirteenth juror” as permitted by OCGA § 5-5-20.

(a) In asserting that the jury’s decision to apportion zero fault to the criminal nonparties is contrary to the evidence, the defendants are basically arguing that OCGA § 51-12-33 requires a jury to apportion at least some percentage of fault against a nonparty criminal in this kind of premises liability case. The statute itself contains no such requirement. In addressing the argument that allowing a jury to apportion fault to a nonparty criminal actor would insulate the landowner from liability, our Supreme Court observed that “property owners remain responsible for their actions and will be required to pay damages in proportion to their level of responsibility.” Couch, 291 Ga. at 366 (1).

A finding that the criminals were at fault to some unspecified degree is not mandated by the evidence. Polite introduced evidence from which a jury could find that three similar attacks had occurred in the month before Polite was shot, that the defendants failed to give residents proper notice of the attacks, that the defendants’ own employees told management that the path was dangerous, that the defendants chose to incorporate the wooden fence into their perimeter fencing instead of continuing their wrought iron fence, that they installed an opaque wooden gate in the fence, and that they invited use of the path by clearing it of vegetation. “[A] jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law.” (Punctuation and footnote omitted.) Bldg. Materials Wholesale v. Triad Drywall, 287 Ga. App. 772, 774 (1) (653 SE2d 115) (2007).

Additionally, “[a]n appellant cannot travel on one ground below, find the wind blowing in another direction, change tack, and head elsewhere on appeal.” Boggs v. Madison County, 240 Ga. App. 849, 852 (524 SE2d 252) (1999). The defendants made no exceptions to the charge after the trial court, while instructing the jury on how to complete the apportionment section of the verdict form, informed it that if it deemed “any of these parties or nonparties to have zero percent [fault], go ahead and write the zero instead of leaving it blank.” Having failed to interpose any objection at trial to the verdict form or the trial court’s instructions, the defendants cannot now complain that the trial court should have done something different. Lummus v. State, 274 Ga. App. 636, 637 (1) (618 SE2d 692) (2005) (“defendant cannot acquiesce in a trial court’s ruling below and then complain about that ruling on appeal”) (punctuation omitted).

(b) Further, there is no merit to the defendants’ argument that the trial court failed to exercise its discretion to act as a thirteenth juror, as authorized by OCGA § 5-5-20. “In passing upon the general grounds of a motion for new trial, this court will not disturb the trial court’s refusal to grant a new trial if there is any evidence to support the judgment.” Hopkins v. Sicro, 107 Ga. App. 691, 693 (2) (131 SE2d 243) (1963). However, if

a defendant raises a claim under OCGA §§ 5-5-20 and 5-5-21 in his motion for new trial, the law imposes upon the trial court an affirmative duty to exercise its discretion and weigh the evidence to determine whether a new trial is warranted. If the record reflects that the trial court failed to exercise its discretion and sit as the thirteenth juror, we will vacate and remand for the trial court to fulfill its affirmative statutory duty.

(Citations omitted.) Hartley v. State, 299 Ga. App. 534, 540 (3) (683 SE2d 109) (2009).

The defendants contend that the trial court only reviewed their legal errors, rather than exercising its discretion to determine whether the jury’s verdict was contrary to the evidence, and therefore its order denying their motion for a new trial should be vacated and the case remanded with direction for consideration under the proper legal standard. The defendants do not point to anything in the record that indicates that the trial court applied an incorrect standard of review, however.

Generally, in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the court agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.

(Citation and punctuation omitted.) Copeland v. State, 325 Ga. App. 668, 672 (3) (754 SE2d 636) (2014); see also Brown v. Service Coach Lines, 71 Ga. App. 437, 443 (1) (31 SE2d 236) (1944).

4. Finally, the trial court did not abuse its discretion in sustaining Polite’s objection to the defendants’ admission in evidence of character evidence, asserting that Polite opened the door to the introduction of this evidence when he “presented himself as a clean cut young man with a difficult upbringing.”

Former OCGA § 24-2-2 provided that “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” The defendants argue that Polite intentionally elected to put his character into evidence through testimony from a friend of Polite’s mother who described Polite as a role model and mentor to her teenage son, who improved his reading skills after Polite encouraged him to write down lyrics to songs he was composing. The defendants further argue that Polite

was described as a role model and mentor. That testimony opened the door to a more complete, accurate portrayal of Polite via his rap lyrics, web postings, and numerous photographs. The damages in this case are based largely on the impact of the injury on his daily life. The jury, however, never saw or heard evidence of Polite [’s] real daily life before the shooting.

The defendants do not state precisely what character evidence they think the trial court should have admitted, although at trial they proffered photographs. At the hearing on Polite’s motion in limine regarding this evidence, Polite says the photographs of him “looking criminal and thuggish and gang” had been placed on his MySpace page to promote his rap music and record labels but argued that no evidence existed that he was actually a gang member. In addition to being irrelevant, Polite argued that the photographs were more prejudicial than probative. The trial court granted the motion in limine.

After the friend of Polite’s mother testified, the defendants renewed their attempt to introduce evidence of “what his character was at the time” before he was shot, arguing that the witness had been “making [Polite] look like a choir boy” while the defense had pictures of him holding guns and “acting like he’s breaking into apartments,” the lyrics to his rap music were offensive, he had been in jail for DUI, and he had pled guilty to offenses that were not crimes of moral turpitude. The trial court held that the witness’s testimony about Polite helping her son was collateral to any of the main issues in the case.

“[A] trial court has discretion to exclude evidence when its probative value is outweighed by the undue sympathy, hostility, or prejudice its admission might generate with the jury.” (Citation and punctuation omitted.) Kesterson v. Jarrett, 291 Ga. 380, 387 (2) (b) (728 SE2d 557) (2012). There was no evidence that Polite was actually in a gang. In fact, in support of his motion in limine Polite introduced an affidavit from a detective who was the supervisor of the DeKalb County Gang Unit. The detective interviewed Polite and reviewed the police file on the assault, deposition testimony from two security guards, Polite, and Polite’s friend, photographs of the crime scene, and individual and group photographs from Polite’s MySpace page, and he concluded that Polite was not affiliated with any gang, his attack was not gang-related, the photographs of Polite do not indicate he is in a gang, and that it was unlikely that a gang member would attack Polite based on a mistaken belief he was in a gang. The detective explained why he reached all of these conclusions, and stated that “any suggestion that Nathan Polite is affiliated with a gang appears to be a mistake in confusing a music or rap group with a gang.” The defendants have not cited to any evidence that Polite had committed gun crimes or broken into any apartments, so the trial court was entitled to find that photographs of him “acting” in support of his rap persona would be particularly prejudicial. Therefore, the trial court did not abuse its discretion in finding the prejudicial effect of the character evidence the defendants sought to introduce outweighed its probative value.

Decided March 26, 2014

Hawkins, Parnell, Thackston & Young, Warner S. Fox, Matthew G. McLaughlin, for appellants.

D. Richard Jones III, Julie A. Dlott, Nelson O. Tyrone, Summer-ville Moore, J. Darren Summerville, S. Leighton Moore III, for appellee.

For these reasons, I would affirm the judgment entered on the jury verdict in this case, and therefore I respectfully concur in part and dissent in part to the majority opinion.

        Barnett v. Farmer, 308 Ga. App. 358 (707 SE2d 570) (2011).

       Polite relies upon this Court’s opinion in Union Carbide Corp. v. Fields, 315 Ga. App. 554, 559 (1) (b) (ii) (726 SE2d 521) (2012) for the proposition that the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty contributed to Polite’s injury. Notwithstanding the fact that Union Carbide was reversed by Georgia-Pacific v. Fields, 293 Ga. 499 (748 SE2d 407) (2013), as discussed above, there is some evidence creating jury issue on the question of whether the Chevron station contributed to Polite’s injuries.

       Former OCGA § 24-2-2 “was superseded by OCGA § 24-4-404.” Johnson v. State, 293 Ga. 641, 644 (6), n. 3 (748 SE2d 896) (2013) (citation omitted), but because this case was triedbefore January 1, 2013, our new Evidence Code did not apply. See Ga. L. 2011, pp. 99, 214, § 101.


author: Ray, Judge.

text:
    A13A2187.
    STALLINGS et al. v. SYNOVUS BANK.
    (757 SE2d 187)
   Ray, Judge.

In this case, Ronald and Elizabeth Stallings appeal from the trial court’s grant of summary judgment in favor of Synovus Bank on its suit to recover on a note, contending that the trial court erred when it ruled on the motion without allowing them 30 days to respond. The Stallings also contend that the trial court erred in awarding default interest to Synovus. For the reasons that follow, we reverse the grant of summary judgment and remand the case with direction.

1. In their first enumeration of error, the Stallings contend that the trial court erred in ruling on Synovus’ motion for summary judgment without giving them 30 days to respond to the motion. We agree.

The record demonstrates that the trial court’s order was entered on the twenty-eighth day following the filing of Synovus’ motion. “OCGA § 9-11-56 (c)... mandates that any party have thirty days to respond to a motion for summary judgment.” Dixon v. Midland Ins. Co., 168 Ga. App. 319, 321 (2) (309 SE2d 147) (1983). “The purpose of the so-called 30-day notice is to inform timely the opposing party as to the material relied upon by the movant so that the opposing party might have sufficient opportunity to prepare his response.” (Citation and punctuation omitted.) Segrest v. Intown True Value Hardware, 190 Ga. App. 588, 589 (2) (379 SE2d 615) (1989).

Decided March 26, 2014.

Darrel L. Hopson, for appellants.

Kutak Rock, Brian F. Hansen, Elizabeth L. Fite, for appellee.

The record reflects that the Stallings did not respond to Synovus’ motion for summary judgment prior to the trial court’s order granting the motion. Thus, the Stallings were not heard on Synovus’ motion prior to the time that the trial court issued its order before the 30-day waiting period had expired. As this order was entered prematurely and without the Stallings’ consent or waiver, it constituted error. Segrest, supra at 589-590 (2).

Furthermore, the Stallings, both proceeding pro se, filed an initial answer and counterclaim in response to Synovus’ complaint. The counterclaim, when construed liberally under OCGA § 9-11-8 (c), asserts various defenses to Synovus’ claims. Based on the record before us, however, we are unable to determine whether those defenses are wholly meritless or frivolous. Although Synovus contended in its motion for summary judgment that the Stallings had failed to adequately respond to discovery requests, Synovus did not file a motion to compel discovery, and the Stallings did not have a full opportunity to respond to this allegation. As the Stallings may have some evidence to support their defenses, the trial court erred in ruling on Synovus’ motion for summary judgment prior to the expiration of the statutory response period.

Accordingly, we must reverse the trial court’s order, and we remand the case to the trial court for further proceedings on the motion not inconsistent with this opinion. In so doing, we direct the trial court to enter an order specifying a date by which the Stallings must file their response to the motion for summary judgment.

2. Based on our holding in Division 1, we do not address the Stallings’ remaining enumeration of error.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Miller, J., concur.

       We note that Synovus also alleged in its motion for summary judgment that the Stallings’ answer was insufficient. However, the avenues of relief from an insufficient answer include a motion to strike, a motion to dismiss, or a motion for judgment on the pleadings. See OCGA § 9-11-12 (b) (6), (c), (f). Had any such motions been filed, the Stallings would have been entitled to a full opportunity to respond. See M & M Mobile Homes of Ga. v. Haralson, 233 Ga. App. 749, 750 (1) (505 SE2d 249) (1998).

       In so holding, we emphasize that we are not intimating any opinion regarding the merits of the motion.


text:
    A13A2407.
    In the Interest of M. J.
    (757 SE2d 184)
   BARNES, Presiding Judge.

M. J. appeals the juvenile court’s order transferring his delinquency case to superior court for prosecution, arguing that the juvenile court abused its discretion by reversing a previous juvenile court order denying the State’s motion to transfer. We find no abuse of discretion and, therefore, affirm the juvenile court’s order.

A “delinquent felony” petition was filed in juvenile court alleging that 16-year-old M. J. was in need of supervision, treatment, or rehabilitation for having committed acts which would be crimes if committed by an adult, specifically, aggravated assault by shooting the victim three times; obstruction of an officer; and giving a false name to a law enforcement officer who was discharging his official duties. The petition was amended on July 5, 2012 to add additional charges for aggravated assault, aggravated battery, possession of a firearm during the commission of a crime, and possession of a firearm by a minor.

After a hearing, an associate juvenile court judge issued an order binding the matter over to superior court. The order contained the findings of fact and conclusions of law required by former OCGA § 15-11-30.2 (a) (3). That Code section provided that the juvenile court may transfer such a case to the appropriate court for prosecution if the court finds in its discretion that reasonable grounds existed to believe three things: (1) that the child committed the act alleged; (2) that the child was not committable to an institution for the'mentally ill or retarded; and (3) that the interests of the child and community required that the child be placed under legal restraint and the transfer be made. Former OCGA § 15-11-30.2 (a) (3).

Former OCGA § 15-11-21 (e) gave either party aggrieved by an associate juvenile court judge’s transfer decision the right to a rehearing by a juvenile court judge upon timely request, and M. J. made such a request in this case. The chief juvenile court judge granted the motion for a rehearing and issued an order denying the State’s request to bind the case over to superior court. The order stated that after conducting “a de novo review of the transcript [,] pleading[s,] and evidence of the original proceeding” before the associate juvenile court judge, “and after careful consideration of the same,” the court found:

It is the opinion of this court that the circumstances surrounding this child do[ ] not warrant treating this child as an adult nor [do they] meet the criteria established by the Code for bindovers. The child’s alleged actions though egregious do not rise to the level of being heinous enough to warrant treating him as an adult.

The State moved the juvenile court to reconsider the order denying its motion to bind the matter over to superior court. The State argued that the court failed to examine the evidence de novo but improperly limited its review to the associate judge’s findings in a manner akin to an appellate review. See In the Interest of J. C., 308 Ga. App. 336, 340 (708 SE2d 1) (2011) (in response to juvenile’s motion for rehearing, juvenile court judge authorized and required to make de novo determination); In the Interest of M. E. T., 197 Ga. App. 255, 256-257 (398 SE2d 30) (1990) (while juvenile not entitled to de novo evidentiary hearing, he was entitled to have judge make de novo determination rather than merely confirming prior findings and conclusion). The State further argued that the court did not indicate a basis for its claim that the case did not meet the requirements for transfer under former OCGA § 15-11-30.2, and did not articulate a determination under former OCGA § 15-11-30.2 (a) (3) of whether reasonable grounds existed to believe that the child committed the act alleged, that he was not committable to an institution, and that the interests of the child and community required that the child be placed under legal restraint and the transfer be made.

The juvenile court held a hearing on the State’s motion for reconsideration and granted it under its inherent authority to correct its own errors, finding that the order denying the State’s bindover request was insufficient, was more akin to an appellate review, and did not include findings of fact addressing the factors to be considered under former OCGA § 15-11-30.2 (a) (3) or conclusions of law. The court then stated its intention to review the evidence and transcript of proceedings that the associate juvenile court judge had considered and make findings of fact and conclusions of law regarding whether the matter should be bound over to superior court.

Finally, the juvenile court issued a detailed order granting the State’s motion to transfer M. J. to superior court for prosecution. The court reviewed the evidence regarding each of the three factors in former OCGA § 15-11-30.2 (a) and found that there was reason to believe that (1) M. J. committed the offenses, (2) he was not commit-table to an institution, and (3) the interests of M. J. and the community required that he be placed under legal restraint and the transfer be made. The court also found that evidence was presented thatM. J. committed the unprovoked assault on a stranger as a member of a street gang, which resulted in a serious injury with a lifelong impact on the victim, and that M. J. bragged about his gang associations. Further, while M. J. might derive some benefits from efforts toward his rehabilitation as a juvenile, the community’s need to place him under sufficient legal restraint was compelling. The court found:

The gang’s actions and this defendant’s actions within it, have cast a net of fear and intimidation over the community which members of the community must confront every day. The Court finds that in balancing the interests of the community and the child, the interests of the community to control gang violence and reduce the fear it nurtures within the community are the prevailing interests in this matter.

M. J. properly filed a direct appeal of the transfer order to this court. See J. T M. v. State, 142 Ga. App. 635, 636 (1) (236 SE2d 764) (1977) (transfer order is final because it operates to transfer the case to superior court, leaving nothing pending in juvenile court). He argues that the juvenile court abused its discretion by granting the State’s motion for reconsideration of the order denying the State’s motion to transfer. He further argues that the court erroneously held that the previous order denying the motion for transfer should have contained findings of fact pursuant to former OCGA § 15-11-30.2, because such findings are only required when a matter is transferred to superior court, not when transfer is denied. He argues that the juvenile court erroneously held that the previous court failed to conduct a de novo review, despite language in the previous court’s order stating that it was conducting a de novo review. Finally, M. J. concludes that the rehearing statute only allowed for one rehearing and the juvenile court’s basis for a second rehearing was erroneous.

Pretermitting whether former OCGA § 15-11-30.2 required a juvenile court judge to include specific findings of fact when denying a motion to transfer, we will affirm the juvenile court’s ruling if it is right for any reason. In the Interest of N. C., 293 Ga. App. 374, 377 (667 SE2d 181) (2008). Former OCGA § 15-11-21 (e) gave the juvenile court judge the authority to order a rehearing “at any time.” While former OCGA § 15-11-21 addressed issues involving associate juvenile court judges, subsection (e) did not specifically limit the juvenile court judge’s ability to order a rehearing only in response to an associate judge’s order, nor did it provide that only one such rehearing is permissible.

Decided March 26, 2014.

April L. Williams, for appellant.

PaulL. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Substantively, we find no error in the juvenile court’s decision to transfer the matter to superior court. “The juvenile court properly relied on the heinous nature of the offense in determining that the community’s interest in treating [M. J.] as an adult outweighed [M. J.’s] interest in being treated in the juvenile system.” In the Interest of J. H., 260 Ga. 447, 449 (1) (396 SE2d 885) (1990). Thus, the juvenile court did not abuse its discretion by issuing the transfer order.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Ga. L. 2013, p. 294, § 1/HB 242, significantly revised Chapter 11 of Title 15, effective January 1,2014 for “all offenses which occur and juvenile proceedings commenced on and after such date.” The provisions of the new code addressing the transfer of a juvenile to superior court for criminal trial are found in OCGA §§ 15-11-561 and 15-11-562.

       This provision was not reenacted in the new Juvenile Code. See OCGA § 15-11-60 (2013).

       The new Code section provides:
      (a) The decision of the court regarding transfer of the case shall only be an interlocutory judgment which either a child or the prosecuting attorney, or both, have the right to have reviewed by the Court of Appeals.
      (b) The pendency of an interlocutory appeal shall stay criminal proceedings in superior court. A child transferred for trial as an adult in superior court shall be detained only in those places authorized for the preadjudication detention of a child as set forth in Code Section 15-11-504.
      OCGA § 15-11-564 (2014).