author:
ANDREWS, Presiding Judge. Dillard, Judge,
      BOGGS, Judge,

text:
    A12A2415.
    GEORGIA GOVERNMENT TRANSPARENCY AND CAMPAIGN FINANCE COMMISSION et al. v. STATE MUTUAL INSURANCE COMPANY et al.
    (740 SE2d 419)
   ANDREWS, Presiding Judge.

The Georgia Government Transparency and Campaign Finance Commission (formerly the Georgia State Ethics Commission) appeals from an order issued by the Fulton County Superior Court ruling that the expiration of the applicable statute of limitation barred the Commission’s preliminary investigation into whether reasonable grounds existed to believe that State Mutual Insurance Company and Admiral Life Insurance Company (the Companies) made contributions to an election campaign for public office in violation of the Ethics in Government Act (the Act) (OCGA § 21-5-1 et seq.). For the reasons that follow, we find that the court had no jurisdiction to issue the ruling because it was entered after a final order entered in the case at a prior term of the court. Accordingly, the court’s ruling on the statute of limitation was null and void and must be vacated.

This appeal arises from a preliminary investigation initiated by the Commission based on its finding of probable cause to investigate contributions made in 2008 by the Companies to a political action committee which contributed to the campaign of former Georgia Insurance Commissioner, John Oxendine, for the office of Governor of Georgia. During the pendency of the Commission’s investigation into possible violations of the Act, the Companies filed a complaint on May 28, 2010, in the Fulton County Superior Court. The complaint sought a declaration that the Commission lacked authority under the Act to proceed with the preliminary investigation of the Companies, and sought temporary and permanent injunctive relief barring the Commission from proceeding with the investigation and barring the issuance of subpoenas pursuant to the Act in support of the investigation. After a hearing, the court entered an order on July 16, 2010, captioned as its “Final Order” in favor of the Commission. With respect to the requested declaratory and injunctive relief barring the Commission’s investigation and subpoenas issued under the Act, the court’s order denied temporary injunctive relief and further ruled:

Having considered the pleadings, motions, arguments, the entire record and applicable law, the Court finds OCGA [§] 21-5-6 (a) (5) specifically vests in the State Ethics Commission the power to find probable cause to initiate hearings and similarly to issue subpoenas in connection with its investigation of possible violations.

The court’s “Final Order” also included a statement that the clerk of the court was “ordered to reflect upon the record that this case is now ‘inactive’ and ‘disposed.’ ”

After the court entered the July 16, 2010 final order, the Companies filed a pleading on August 2, 2010, denominated as a motion for a new trial. Although called a motion for new trial, the motion asked the court to reconsider legal rulings in the final order and to expressly rule in favor of the Companies on all the issues including declaratory and injunctive relief. Without any ruling on the motion, the investigation recommenced before the Commission, and on or about March 2011 the Companies for the first time raised a statute of limitation defense before the Commission. On March 1, 2011, the Commission issued an order in the investigation stating that the statute of limitation issue raised by the Companies “is hereby severed from the... [investigation proceeding] so that it can be decided by the Fulton Superior Court in its pending action.” On April 25, 2011, the Companies filed the Commission’s order in the prior Court action, followed by a “Motion for Determination of Applicable Statute of Limitation” filed in the same action on June 7, 2011, by which the Companies sought a ruling from the court that the statute of limitation applicable to the Commission’s investigation had expired and the investigation was barred. On March 27, 2012, the court issued an order it captioned as the second “final order” in the same action. The second final order, in effect, vacated the final order issued by the court on July 16, 2010; granted the Companies’ June 7, 2011 motion on the statute of limitation; and ruled that the Commission’s investigation was barred by the applicable statute of limitation. As to the “motion for new trial” filed by the Companies on August 2, 2010, the second final order ruled that it was granted in part by the court’s ruling on the statute of limitation, and otherwise denied as moot.

The Commission claims that, despite having sought a ruling from the superior court on the statute of limitation issue, the court had no jurisdiction to enter the second final order ruling on the statute of limitation issue first raised by the Companies in the June 7, 2011 motion. We agree that, after entering a final order in the action on July 16, 2010, the court had no jurisdiction to consider the statute of limitation issue raised for the first time in a subsequent term of the court.

We conclude that the court’s July 16, 2010 order was a final and appealable judgment in the action which resolved all the issues raised in the Companies’ complaint and reflected that the case was disposed of and no longer pending in the court. See OCGA § 5-6-34 (a) (1). “Whether an order is final and appealable is judged by its function and substance, rather than any magic language.” (Citation and punctuation omitted.) Rhymes v. East Atlanta Church of God, Inc., 284 Ga. 145, 146 (663 SE2d 670) (2008). An order finally adjudicates a pending issue when it does so expressly or by necessary implication. Id. at 146-147; Fraser v. Moose, 226 Ga. 256, 258-259 (174 SE2d 412) (1970).

The court’s order was captioned as a “Final Order” and directed that the Clerk mark the case “Disposed.” In the order, the court (1) expressly denied the temporary injunctive relief sought in the complaint, and (2) entered a ruling that by necessary implication denied the remaining declaratory and permanent injunctive relief sought in the complaint. As to declaratory and permanent injunctive relief, the Companies sought an order from the court: (1) declaring that various portions of the Act showed the Commission lacked statutory authority under the Act to proceed with the investigation initiated on the Commission’s probable cause finding, and (2) permanently barring the Commission from proceeding with the investigation and issuing subpoenas pursuant to the Act. As to those issues, the court ruled:

Having considered the pleadings, motions, arguments, the entire record and applicable law, the Court finds OCGA [§] 21-5-6 (a) (5) specifically vests in the State Ethics Commission the power to find probable cause to initiate hearings and similarly to issue subpoenas in connection with its investigation of possible violations.

By this ruling, the court clearly decided that the Commission had statutory authority under the Act to proceed with the preliminary investigation it initiated against the Companies on a finding of probable cause, and to issue subpoenas in support of the investigation. By necessary implication, this ruling constituted a denial of the declaratory and permanent injunctive relief sought by the Companies on every ground on which the relief was sought. Fraser, 226 Ga. at 258-259; Rhymes, 284 Ga. at 146-147. Moreover, the court’s “Final Order” was preceded by a hearing at which the Companies were allowed to put up their entire case, calling witnesses and arguing that the court should find that the Commission’s investigation was outside the authority of the Act and should be enjoined. The court’s rulings, express and by necessary implication, show that the July 16, 2010 order was a final order appealable by a notice of appeal filed within 30 days of the order’s entry. OCGA §§ 5-6-34 (a) (1); 5-6-38 (a).

The Companies did not file a notice of appeal from the July 16, 2010 final order, but filed a pleading on August 2, 2010, designated as a motion for a new trial. A valid motion for new trial maintains the trial court’s power over its final judgment during the pendency of the motion, and extends the time for filing a notice of appeal until 30 days after the court’s entry of an order granting, overruling, or otherwise finally disposing of the motion. OCGA § 5-6-38 (a); Bagley v. Robertson, 265 Ga. 144, 146 (454 SE2d 478) (1995). “Amotion for a new trial is a proper means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury or a decision by the court thereon.” Bank South Mtg., Inc. v. Starr, 208 Ga. App. 19 (429 SE2d 700) (1993). It is not a proper means to challenge a court’s judgment solely on issues of law. Id. at 19-20. Here, the Companies’ “motion for new trial” pleading did not challenge factual findings but only the court’s legal conclusions. Because the substance of the pleading shows that it sought the court’s reconsideration of legal rulings, it was not a valid motion for a new trial and did not extend the court’s control over the July 16,2010 final order or the time for filing a notice of appeal. Pillow v. Seymour, 255 Ga. 683 (341 SE2d 447) (1986); Houston County v. Harrell, 287 Ga. 162 (695 SE2d 29) (2010) (motion for reconsideration does not extend the time in which appeal may be filed).

Nevertheless, because the August 2, 2010 motion seeking reconsideration of the court’s July 16, 2010 final order was filed during the same term of the Fulton County Superior Court in which the final order was entered (OCGA §§ 15-6-3(3); 15-6-19), the motion remained within the breast of the court, even after the time for appealing the final order expired, and even after the expiration of the term of court. Where not based on a jury verdict, a trial court has inherent power, unchanged by the Civil Practice Act, to change its final judgment during the term of court in which it is rendered. Maxwell v. Cofer, 201 Ga. 222, 226 (39 SE2d 314) (1946); Ammons v. Bolick, 233 Ga. 324, 325 (210 SE2d 796) (1974). As to change to a final judgment at subsequent terms of court, the general rule is that “a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the [original] term.” Miraglia v. Bryson, 152 Ga. 828 (111 SE 655) (1922). This is a general common law rule which applies in civil as well as criminal cases. See Platt v. State, 200 Ga. App. 784-785 (409 SE2d 878) (1991); Moon v. State, 287 Ga. 304, 306 (696 SE2d 55) (2010) (Nahmias, J., concurring). Where no such proceeding is filed during the term in which the final judgment is entered, the trial court has no jurisdiction in the case after the expiration of the term, and any order entered after expiration of the term is null and void. Robinson v. Kemp Motor Sales, Inc., 185 Ga. App. 492, 493 (364 SE2d 623) (1988); Long v. Long, 247 Ga. 624 (278 SE2d 370) (1981).

Although the court retained jurisdiction at subsequent terms of court to consider the August 2, 2010 motion for purposes of changing its July 16, 2010 final order, the court had no jurisdiction to consider the June 7, 2011 motion for this purpose. The June 7, 2011 motion, which raised the statute of limitation issue for the first time, was filed at a term of court subsequent to the court term in which the July 16, 2010 final order was entered. In the second final order entered on March 27, 2012, which granted the June 7, 2011 motion and changed the July 16, 2010 final order, the court considered its ruling on the June 7,2011 motion to be a partial grant of the August 2,2010 motion. In effect, for the purpose of changing the July 16,2010 final order, the court claimed jurisdiction to rule on the June 7, 2011 motion as an amendment to the pending August 2, 2010 motion, which was filed in the original court term and over which the court retained jurisdiction. But even if the June 7, 2011 motion could be considered an amendment to the August 2, 2010 motion, because the June 7 motion set forth a new reason for changing the final order and was filed after the term in which the final order was entered, the court had no jurisdiction to consider it as a basis to change the final order. Matthews v. State, 295 Ga. App. 752, 753-754 (673 SE2d 113) (2009) (where a motion to change the final judgment was filed during the original court term, new claims added by amendment to the motion during a subsequent term did not give the court jurisdiction to change the final judgment). Because the court lacked jurisdiction, its ruling on the statute of limitation issue raised in the June 7, 2011 motion was null and void.

In his separate dissent, Judge Dillard argues that, even if the court’s July 16, 2010 order was a final order, and therefore the court’s March 27, 2012 order on the statute of limitation issue was void for lack of jurisdiction, the Court of Appeals should sua sponte invoke the doctrine of judicial estoppel to preclude the Commission from asserting that the court’s order was void. It does not appear that any Georgia appellate court has raised the doctrine of judicial estoppel on its own motion in an appeal, although, where the doctrine was not raised by the parties, we have declined to address it. Glover v. Ware, 276 Ga. App. 759, 761 (624 SE2d 285) (2005) (“Because the issue has not been raised by the parties, we do not address whether the doctrine of judicial estoppel applies in this case.”) Judicial estoppel was not raised by a party below or on appeal in this case, nor was it ruled on by the trial court. Assuming, without deciding, that the issue could be invoked sua sponte in a proper case on appeal, judicial estoppel is not available in this case to prevent the Commission from asserting that the court’s March 27, 2012 order was void for lack of jurisdiction. “A final judgment cannot be amended at a subsequent term. . . . Jurisdiction of the subject matter of a suit cannot be conferred by agreement or consent, or be waived or based on an estoppel of a party to deny that it exists.” (Punctuation omitted; emphasis supplied.) Redmond v. Walters, 228 Ga. 417 (186 SE2d 93) (1971).

Furthermore, judicial estoppel protects the integrity of the judicial process by preventing a party from manipulating the process to gain an unfair advantage. Dillard-Winecoff, LLC v. IBF Participating Income Fund, 250 Ga. App. 602, 602-604 (552 SE2d 523) (2001). Judicial estoppel does not apply because the Commission took no action designed to give it an unfair advantage. In response to the Companies’ motion to dismiss the Commission’s preliminary investigation on the ground that the statute of limitation had expired, the Commission issued an order which assumed that no final order had been entered in the prior superior court case, and which severed the statute of limitation issue from the pending preliminary investigation “so that it can be decided by the Fulton Superior Court in its pending action.” Although the Commission’s order invited the court to decide the statute of limitation issue, the Commission, which was subsequently represented before the court by the Georgia Attorney General’s office, candidly informed the court that its July 16, 2010 final order divested the court of jurisdiction to address the issue, and that the Commission’s order erroneously assumed the contrary. The court rejected the Commission’s position and issued a second final order on March 27,2012, ruling on the statute of limitation issue. The Commission did not attempt to manipulate the process to its advantage, but correctly informed the court about the effect of the final order and argued that the court should decline the invitation to rule. Contrary to the dissent, the Attorney General’s assertion of the same position on behalf of the Commission on appeal is not “judicial gamesmanship” or “an attempt to play the courts for fools.”

Judgment vacated.

Ellington, C. J., and Phipps, P. J., concur. Barnes, P. J., and Doyle, P. J., concur in judgment only. Dillard and Boggs, JJ., dissent.

Dillard, Judge,

dissenting.

I join Judge Boggs’s well-reasoned and thoughtful dissent. I do so because I agree with Judge Boggs that (1) the trial court’s July 16, 2010 order was not a final judgment precluding its out-of-term review of the statute-of-limitation issue, and (2) the trial court prematurely ruled on that issue. I write separately to emphasize that even if the trial court’s July 16,2010 order was a final judgment, as the majority maintains, the State should nevertheless be judicially estopped from using the finality of that order as a means of voiding the trial court’s March 27,2012 order and, thus, precluding appellate review as to the merits of that decision.

I do not reach the foregoing conclusion lightly. I fully recognize that “courts should exercise special restraint in applying estoppel principles against the government.” Nevertheless, it is incumbent upon judges to invoke the doctrine of judicial estoppel in extraordinary cases when the government’s actions amount to a “knowing assault upon the integrity of the judicial system.” And in my view, that is exactly what the State’s conduct amounts to in the case sub judice.

But before delving into the admittedly murky waters of judicial estoppel, it is important to begin by noting that the State’s jurisdictional “argument” based on the alleged finality of the trial court’s July 16, 2010 order is cursory to the point of being nonexistent and includes no citations of authority in support of same. Indeed, the State does not even list the finality of the trial court’s July 16, 2010 order as a basis for reversal in its enumerations of error.

The majority, however, ably takes up the State’s cause, holding that the trial court “had no jurisdiction to issue the ruling because it was entered after a final order entered in the case at a prior term of the [trial] court.” And I agree with the majority that, absent extraordinary circumstances, a trial court “cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the [original] term.” I also acknowledge that when no such proceeding is filed during the term of court in which the final judgment is entered, the trial court generally has no jurisdiction in the case after the expiration of the term, and any order entered after expiration of the term is null and void. Finally, it is likewise true that a void judgment can usually be attacked at any time.

But while the principles noted supra are no doubt well established, they do have their limits. As we recently explained, the doctrine of judicial estoppel will preclude a party from contending that a trial court’s order is void when the application of that doctrine is necessary to “protect the integrity of the judicial process by prohibiting parties'from deliberately changing positions according to the exigencies of the moment.” Specifically, the judicial-estoppel doctrine “forbids a party, who has successfully maintained a certain position in a legal proceeding, to assume a contrary position simply because his interests have changed . . . especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.”

And here, the State’s conduct is far more egregious than merely assuming a contrary position from one that it took in a prior judicial proceeding. No, in this case, the State issued its own opinion in a quasi-judicial proceeding that it controlled, explicitly ruling that the statute-of-limitation issue was to be decided by the trial court in a “pending” judicial proceeding, and directing the very parties they were investigating to seek resolution of this issue in that forum. But now that the State has received an unfavorable ruling from the trial court, it wishes to disavow its own order and engage in a bit of judicial gamesmanship. Suffice it to say, the State’s position is deeply troubling. Indeed, in my view, the State’s present attack upon the validity of the trial court’s March 27, 2012 order comes across as “an attempt to play the courts for fools, and that is the sort of thing that judges ought not tolerate.” It is the role of the courts to (among other things) serve as a check on governmental power, not to stand idly by while that power is abused.

For all of the foregoing reasons, I respectfully dissent.

BOGGS, Judge,

dissenting.

I respectfully dissent because I do not believe that the trial court’s July 16,2010 order was a final order precluding its out-of-term review of the applicability of the statute of limitation. While titled a “final order,” the order does not expressly, or by necessary implication, dispose of the companies’ claim for- declaratory relief.

The issues considered by the trial court were limited to a pending motion for temporary restraining order and a pending motion for contempt (based upon a hearing scheduled by the Commission in alleged violation of a 30-day stay imposed by the trial court). After noting that “[t]he above-styled action came before the Court on July 8, 2010, for a hearing on Plaintiffs’ Motions for Temporary Restraining Order and Interlocutory Injunction ... and Plaintiffs’ Motion for Contempt,” the trial court stated in its order that it “finds OCGA § 21-5-6 (a) (5)[] specifically vests in the State Ethics Commission the power to find probable cause to initiate hearings and similarly to issue subpoenas in connection with its investigation of possible violations.” It then expressly denied the companies’ pending motions for temporary restraining order, interlocutory injunction, and contempt. The trial court did not expressly rule on the companies’ claim for declaratory judgment regarding a different Code section, OCGA § 21-5-30.1. Indeed, the order makes no mention of the declaratory judgment action whatsoever.

Examination of the arguments made during the hearing before the trial court also support the conclusion that the trial court’s order is not a final order. The companies’ attorney argued that

the subpoenas, as written, were not just overly broad,... but they in fact deviated from the Commission’s own practice and procedure, and the responses thereto would serve irrebuttable harm on both of my clients .... The Rules [of] the Commission ... do not authorize a subpoena prior to the Commission’s finding of probable cause of the occurrence of an ethical violation.

He also asserted that his clients could not receive a fair hearing before a “Commission [that] has lost its moral compass, and become no more than a political conduit for the political aspirations and agenda of certain candidates and government officials.” During the hearing on the motion, the trial court summarized the issue before it as follows:

But the question the Court has to consider, is based on the request that you’re making and the motion that has been filed, whether there is authority for a subpoena to issue, that the Commission is seeking issue [sic]; and whether based on the arguments you have made, this Court finds and believes that your clients would be unable to obtain a fair hearing.

While the order is denominated a “final order” and includes catch-all language at the end directing the clerk of court “to reflect upon the record that this case is now ‘INACTIVE’ and ‘DISPOSED,’ ” the mere designation of a judgment as final is not controlling. See Rhymes v. East Atlanta Church of God, 284 Ga. 145, 146 (663 SE2d 670) (2008). “Whether an order is final and appealable is judged by its function and substance, rather than any ‘magic language.’ ” (Citations and punctuation omitted.) Id. In this case, the substance of the trial court’s order shows that it disposed only of the pending motions before it, not the declaratory judgment claim. Additionally, the “motion for new trial... and for entry of final judgment” filed by the companies within 30 days of the trial court’s ruling points out that the order was not final because it failed to address their claim for declaratory judgment.

Decided March 28, 2013

Reconsideration denied April ll, 2013

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, for appellants.

Bondurant, Mixson & Elmore, David G. H. Brackett, Frank M. Lowrey TV, McKenna, Long & Aldridge, James R. Evans, Daniel R. Meachum, Robert K. Finnell, for appellees.

Based upon the particular facts of this case, the statements made by the trial court limiting the narrow scope of the issues before it, and the summary of the motions listed as being under consideration in the trial court’s written order, I cannot conclude that the trial court’s finding regarding the Commission’s general subpoena power under OCGA § 21-5-6 (a) (5) necessarily implicates a ruling on an unrelated Code section, OCGA § 21-5-30.1. As the entire declaratory judgment action was not resolved by necessary implication, the superior court’s order was not a final order. It was therefore authorized to consider the companies’ later request for a ruling on the statute of limitation, an issue which the Commission expressly severed from its own pending actions so that a ruling could be obtained from the superior court.

Having determined that the companies’ action was still pending before the trial court, this court should consider the merits of the trial court’s ruling. Based upon the record before us, however, it appears that the trial court prematurely ruled on the statute of limitation. While its analysis of the statute of limitation which would apply if the Commission were to seek a penalty from the companies may very well be correct, the record before us demonstrates that the proceedings in the Commission are in the investigatory stage and no penalty has yet been sought. Because the Commission has options other than the imposition of a penalty following an investigation, see OCGA § 21-5-6 (b) (14) (A) and (B); Ga. Comp. R. & Regs., r. 189-2-.08, this court should vacate the trial court’s order finding’ that the statute of limitation bars the Commission’s pending probable cause cases and remand this case for proceedings not inconsistent with our opinion that the declaratory judgment action is still pending below.

I am authorized to state that Judge Dillard joins in this dissent.

       In addition to naming the Commission as a defendant in the superior court action, the former chairman of the Commission, James C. Gatewood, and a former member of the Commission, Patrick N. Millsaps, were named as defendants in their official capacities. All three defendants brought this appeal and are collectively referred to in this opinion as the Commission.

       The Fifth Circuit has concluded it could invoke the doctrine of judicial estoppel sua sponte on appeal in an extraordinary case, but found that, “[ajbsent a flagrant threat to the judicial process, however, we will not disregard the waiver produced by a failure to plead judicial estoppel in conformity with Federal Rule of Civil Procedure 8 (c).” American Bank v. C. I. T. Constr., Inc., 944 F2d 253, 258 (5th Cir. 1991); see OCGA § 9-11-8 (c).

       The appellees do not explicitly argue that the State is judicially estopped from asserting that the trial court’s judgment is void, but this is of no consequence. It is the duty of an appellate court to invoke judicial estoppel sua sponte in appropriate cases because the purpose of the doctrine is “to prevent the perversion of the judicial process” and to “protect the courts rather than the litigants.” In the Matter of Cassidy, 892 F2d 637, 641 (7th Cir. 1990). As such, judicial estoppel is “an equitable doctrine invoked at the court’s discretion.” Richards v. D. R. Horton, Inc., 320 Ga. App. 771 (740 SE2d 732) (2013).

        Reynolds v. C.I.R., 861 F2d 469, 474 (6th Cir. 1988).

        Id.; see also New Hampshire v. Maine, 532 U. S. 742, 749 (121 SC 1808, 149 LE2d 968) (2001) (applying the doctrine of judicial estoppel against a state government).

       The State’s brief lists the following three enumerations of error: (1) “The trial court erred in ignoring the Commission’s own applicable five-year statute of limitations and instead applying an irrelevant ‘informant’limitations period under OCGA § 9-3-28”; (2) “The trial court erred in considering a prior ruling in an unrelated case and the Appellant’s failure to appeal from such ruling in reaching its decision”; and (3) “The trial court erred in acting without jurisdiction by intervening in a pending administrative case as appellees failed to exhaust their administrative remedies and such reme.dies were adequate.”

        Miraglia v. Bryson, 152 Ga. 828, 828 (111 SE 655) (1922).

        See Long v. Long, 247 Ga. 624, 625 (278 SE2d 370) (1981); Robinson v. Kemp Motor Sales, Inc., 185 Ga. App. 492, 492 (364 SE2d 623) (1988).

        See, e.g., Bates v. Bates, 317 Ga. App. 339, 343 (730 SE2d 482) (2012).

        Id. at 344, n. 5.

        Id. (punctuation omitted); see also Goddard v. City of Albany, 285 Ga. 882, 885 (2) (684 SE2d 635) (2009).

       I acknowledge that judicial estoppel may not be used against the State in criminal proceedings, see Roberts v. State, 278 Ga. 610, 612 (604 SE2d 781) (2004), but I am unaware of any Georgia appellate case that would preclude this Court from invoking the doctrine of judicial estoppel against the State in a civil proceeding related to actions taken by an administrative agency.

       The State Ethics Commission’s order provides that “it is hereby ORDERED that the issue of the statute of limitations is hereby severed from the above-styled cases before the Commission, so that it can be decided by the Fulton [County] Superior Court in its pending action.” (Emphasis supplied). And as the appellees aptly note in their responsive brief, “the judicial procedure below is exactly what the Commission intended.” See also Ga. Comp. R. & Regs., r. 189-2-.08 (1) (e) (noting that the Commission may “[pjostpone findings and any possible penalty for rescheduling and consideration of the matter at a future meeting, and subject to the taking of any interim action suggested by the Commission as dispositive in lieu of further proceedings”) (emphasis supplied).

       The majority takes issue with this characterization of the State’s actions, noting its belief that the State “candidly informed the [trial] court that its July 16, 2010 final order divested the court of jurisdiction to address the issue . ...” But having carefully examined the relevant parts of the record, I find the majority’s characterization of the State’s argument below to be charitable to the point of enabling. The appellees filed the Commission’s order severing the statute-of-limitation issue from the ongoing administrative proceeding with the trial court on April 25, 2011, but the first time the State made any argument vaguely resembling that advanced by the majority was on January 17, 2012, at the hearing on the appellees’ motion for a determination of the applicable statute of limitation; and even then, the State only did so in passing with no specific citations of authority in support of its argument.

        Bates, 317 Ga. App. at 344, n. 5.

        Cf. Johnson v. Eisentrager, 339 U. S. 763, 791 (70 SC 936, 94 LE 1255) (1950) (explaining that one of the primary purposes of an “independent judiciary’ is to serve as a “check [on] abuses of executive power”) (Black, J., dissenting); Perdue v. Baker, 277 Ga. 1, 13-15 (586 SE2d 606) (2003) (highlighting the applicability of the separation-of-powers doctrine in Georgia).

       In responding to this dissent, the majority contends that “judicial estoppel is not available in this case to prevent the Commission from asserting that the [trial] court’s March 27, 2012 order was void for lack of jurisdiction,” citing Redmond v. Walters, 228 Ga. 417 (186 SE2d 93) (1971) in support of this proposition. In doing so, the majority relies upon the highlighted language noted below in Section Two of that opinion:

        A final judgment cannot be amended at a subsequent term. The judgment of the trial court on May 20, 1971 awarding the child to the appellee father was a final judgment.
      The attempt of the parties at the subsequent term to confer jurisdiction on the trial court to extend the visitation privileges of the mother does not alter the rule. Jurisdiction of the subject matter of a suit cannot be conferred by agreement or consent, or be waived or based on an estoppel of a party to deny that it exists. It follows that the trial court had no jurisdiction of this case at the subsequent term of court after its final judgment had been entered. Its order on that date was void.

        Id. (citation and punctuation omitted; emphasis supplied).
      Suffice it to say, the foregoing language speaks for itself and in no way supports the majority’s contention that judicial estoppel may not be invoked by this Court in the case sub judice. It is true, of course, that parties are not at liberty to confer jurisdiction on a trial court when no such jurisdiction exists. It is likewise true that any judgment resulting from such a proceeding would be void as a matter of law. This, however, is a separate and distinct question from whether or not a party who is complicit in bringing about a void judgment is judicially estopped from attacking same.

       This Code section provides: “The commission is vested with the following powers:... To issue subpoenas to compel any person to appear, give sworn testimony, or produce documentary or other evidence.”

       OCGA § 21-5-30.1 regulates campaign contributions to “elected executive officers” by “regulated entities,” such as the insurance companies in this case. OCGA § 21-5-30.1 (a) (3) and (a) (5). The Commissioner of Insurance is designated as an “elected executive officer,” but the governor is not. OCGA § 21-5-30.1 (a) (3). In their declaratory judgment action, the companies alleged that their campaign contributions to Oxendine’s campaign for governor were not regulated by OCGA § 21-5-30.1 because it was not a contribution “to bring about the... election of an individual to the office of an ‘elected executive officer’ ” under OCGA § 21-5-30.1 (a).

       In their motion for a temporary restraining order and interlocutory injunction, the companies asserted that hearings before the Commission should be stopped because two Commission members were linked politically with a rival candidate for governor. The companies argued that a necessary recusal of these two members would result in the lack of a quorum necessary to proceed against them.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A2429.
    BOGART v. WISCONSIN INSTITUTE FOR TORAH STUDY.
    (739 SE2d 465)
   Branch, Judge.

On appeal from the trial court’s grant of summary judgment to plaintiff Wisconsin Institute for Torah Study in its action on a promissory note and on account, defendant David Bogart argues that the Institute is not the real party in interest, that the action is time-barred, and that factual inconsistencies in the Institute’s evidence preclude summary judgment. We find no error and affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewed, the record shows that on October 21, 2011, the Institute filed a complaint alleging that Bogart had executed contracts concerning the enrollment of two of his children at the Institute and that he owed $11,142.92 on account, which he had refused to pay. The complaint also alleged that in November 2003, Bogart had executed a promissory note in favor of the Institute in the amount of $19,524.20, with payments to be made “in the amount of $500 per month, beginning in July 2004 until completion, including any future tuition, fees, and pledges,” and that Bogart had defaulted on the note. Attached to the Institute’s complaint were (1) two executed contracts concerning Bogart’s children’s enrollment at the Institute for the 2001-2002 school year; (2) the November 2003 promissory note; and (3) the Institute’s statement of Bogart’s account dated March 28, 2011, and showing an amount due of $11,142.92.

Bogart filed an answer on his own behalf asserting, inter alia, that the Institute was not the real party in interest and that the complaint had failed to state a claim for which relief could be granted. Bogart did not file a motion to dismiss, however, and no discovery was undertaken by either party.

The Institute filed a motion for summary judgment supported by an affidavit from the “Dean-President” of the Institute, who averred that his duties included “being custodian of the accounts receivable and business records of the company” as well as maintaining “the company’s files containing the documents and correspondence” for those accounts and business records. The affidavit described the documents attached to the complaint as “prepared at or near the time of the events appearing on them” and “prepared and/or kept in the normal course of business” of the Institute. Finally, the affiant averred that based on these records and his personal knowledge, “there is now due [to the Institute] the principal sum of $11,142.92 by [Bogart] upon account”; that “no part thereof” had been “paid or satisfied”; and that any payments already made by Bogart “have previously been credited by [the Institute].” Neither party having requested a hearing on the Institute’s motion, the trial court granted summary judgment to it in the amount of $11,142.92 plus interest and costs. This appeal followed.

1. Bogart first asserts that because the Institute has not shown whether it is a corporation, a partnership, or some other legal entity, it was not entitled to summary judgment as the real party in interest. We disagree.

Under OCGA § 9-11-17 (a), “[e]very action shall be prosecuted in the name of the real party in interest.” An objection to a party’s status as the real party in interest “is a matter in abatement and does not go to the merits of the action.” (Citation omitted.) Fleming v. Caras, 170 Ga. App. 579 (1) (317 SE2d 600) (1984). Thus such objections “ ‘are properly disposed of pursuant to [a] motion to dismiss’ ” rather than a defendant’s motion for summary judgment. Id., quoting Primas v. Saulsberry, 152 Ga. App. 88 (2) (262 SE2d 251) (1979).

Although “[t]he defendant bringing a motion in abatement has the burden of proving the facts necessary to support a judgment of dismissal,” Jones Motor Co. v. Anderson, 258 Ga. App. 161, 162 (573 SE2d 429) (2002), a matter raised in abatement of an action is properly disposed of on a plaintiff’s motion for summary judgment when the matter “was not the only issue on which judgment was sought.” Inti. Furniture Distributors v. Lifshultz Fast Freight, 176 Ga. App. 102, 102 (1) (335 SE2d 628) (1985); see also Wirth v. Cach, LLC, 300 Ga. App. 488, 489 (685 SE2d 433) (2009) (a plaintiff moving for summary judgment must establish “the nonexistence of any genuine issue of fact,” including defendant’s assertion that plaintiff was not the real party in interest). Thus this Court has reversed a grant of summary judgment on the basis of a real-party-in-interest objection asserted in a defendant’s answer when plaintiffs had failed to present “any evidence establishing their status as the current holders of an interest in the contract at issue.” Sawgrass Builders v. Key, 212 Ga. App. 138 (1) (441 SE2d 99) (1994).

Here, the Institute provided some evidence that it was the real party in interest when it produced and authenticated its statement of Bogart’s account showing that he owed the Institute, and not any other party, the principal sum of $11,142.92, and Bogart has not provided any evidence that the account has been assigned to a specific third party. Compare Sawgrass, supra at 138 (1) (plaintiff failed to produce evidence that it remained a real party in interest after an assignment of the contract at issue to a third party). Because Bogart failed to produce any evidence in support of his asserted defense that the Institute was not the real party in interest, the trial court did not err when it implicitly rejected that defense and granted the Institute summary judgment. Inti. Furniture, supra at 102 (1) (affirming grant of summary judgment to plaintiff in action on account even though the trial court did not make a separate determination under OCGA § 9-11-12 (d) on the defense of improper service, which was a matter in abatement).

2. Bogart also argues that the trial court erred when it failed to consider whether the applicable statute of limitation barred the Institute’s suit. Even if we are troubled by the complaint’s claim that the contracts were executed in 2009 when their subject matter was the 2001-2002 school year, the record shows that Bogart failed to raise the defense of any statute of limitation either in his answer or in his response to the Institute’s motion for summary judgment.

OCGA § 9-11-8 (c) states that a party filing a responsive pleading “shall set forth affirmatively” defenses including that based on a “statute of limitations,” and it is settled that a defendant “may not avail himself of an affirmative defense which he failed to properly present” to the trial court. Searcy v. Godwin, 129 Ga. App. 827, 829 (1) (201 SE2d 670) (1973). Because Bogart failed to raise the defense of the statute of limitation below, he has waived the issue on appeal. See id. (defendant’s failure to raise a statute of limitation defense by pleading or motion before judgment waived the issue on appeal); see also Inti. Furniture, supra at 103 (2) (affirming grant of summary judgment when defendant’s affidavit attempted to raise affirmative defense of failure of consideration only in opposition to plaintiff’s motion for summary judgment).

3. Finally, Bogart asserts that factual inconsistencies in the Institute’s pleadings and evidence preclude summary judgment. Specifically, Bogart points to (a) the complaint’s assertion that the enrollment contracts were executed in 2009 while the contracts reference the 2001-2002 school year; (b) the account’s specification of amounts due as arising after the term of the enrollment contracts giving rise to the indebtedness; (c) the promissory note’s amount of $19,524.20 and the account’s amount due of $11,142.92; and (d) the Institute’s references to a credit card account as the origin of the indebtedness. These objections to the trial court’s judgment are misplaced.

“In an action on account plaintiff has the burden of proving that defendant is indebted to him and in a definite and correct amount.” (Citation omitted.) White Stores v. Washington, 135 Ga. App. 67 (217 SE2d 391) (1975). Here, the Institute came forward with the March 2011 statement showing a definite amount due on Bogart’s account, and also submitted an affidavit from its president, who was the custodian of accounts receivable, authenticating the statement. See Aon Risk Svcs. v. Commercial and Military Systems Co., 270 Ga. App. 510, 511-512 (1) (607 SE2d 157) (2004) (testimony of witness indicating that he is familiar with a corporate entity’s method of keeping records and that the record was made in the regular course of business at or within a reasonable time of the event was sufficient to authenticate it as a business record). Once the Institute had produced this evidence, Bogart could not rest on his pleadings, but was required to “point to specific evidence giving rise to a triable issue” concerning his indebtedness. Lau’s Corp., supra at 491. “Mere conclusions are not sufficient to withstand specific facts. A party opposing a motion for summary judgment, where the moving party has presented evidence of the necessary certitude, must, in his opposing affidavits, set forth specific facts showing a genuine issue to be decided.” (Citations and punctuation omitted.) Trebor Corp. v. Nutmeg Indus., 208 Ga. App. 697-698 (1) (431 SE2d 402) (1993). See also OCGA § 9-11-55 (a) (although a defendant may obtain a jury trial on unliquidated damages merely by filing a pleading placing them at issue, an action “based upon open account shall not be considered one for unliquidated damages”).

Given his failure to provide any evidence putting the amount due into question or proving an affirmative defense, Bogart’s speculations as to the origins or fluctuations of his indebtedness were not sufficient to overcome the Institute’s prima facie case that he owed a “definite and correct amount” as of March 2011. Neither the date of the enrollment contracts giving rise to some part of the indebtedness nor the terminology by which the Institute has described Bogart’s account are material to the question of whether Bogart could defeat a motion for summary judgment supported by evidence showing that he owed a certain amount. It follows that the trial court did not err when it granted the Institute summary judgment as to the amount proved. Trebor Corp., supra at 697-698 (1) (affirming grant of summary judgment in action on account where defendant’s opposing affidavit failed to refute evidence including defendant’s president’s admission that the sum had not been paid); Big Sandy Partnership v. Branch Banking & Trust Co., 313 Ga. App. 871, 872 (1) (723 SE2d 82) (2012) (affirming grant of summary judgment where debtors failed to produce or point to facts proving their affirmative defenses); Inti. Furniture, supra at 103 (2) (affirming grant of summary judgment in action on account where defendant’s affidavit failed to set forth facts showing that he was entitled to certain credits). Compare Yalanzon v. Citibank, 169 Ga. App. 961, 962 (1) (315 SE2d 677) (1984) (consumer’s affidavits alleging that he had not been credited with various payments made on an account were sufficient to create a genuine issue of material fact as to the actual balance due).

Decided March 7, 2013

Reconsideration denied April ll, 2013.

Kupferman & Golden, Gregory D. Golden, for appellant.

Moskowitz & Martin, Neil A. Moskowitz, for appellee.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.


author: ANDREWS, Presiding Judge.

text:
    A12A2437, A12A2438.
    WILLIS v. ALLSTATE INSURANCE COMPANY; and vice versa.
    (740 SE2d 413)
   ANDREWS, Presiding Judge.

We have consolidated these appeals for disposition because both cases arise from an action on a homeowner’s insurance policy issued by Allstate Insurance Company to Linda Willis. Because Allstate did not act on Willis’s claims on the policy, Willis sued Allstate. After Allstate did not answer Willis’s complaint and the case went into default, the trial court granted summary judgment to Allstate on two of Willis’s allegations and denied Allstate’s motion in limine. These appeals followed.

In Case No. A12A2437, Willis contends the trial court erred by granting summary judgment to Allstate on her claims for fraud and promissory estoppel after it had entered a default judgment against Allstate. In Case No. A12A2438, Allstate contends the trial court erred by holding that Allstate could not introduce evidence at trial disputing its liability to Willis; by precluding Allstate from offering any defense at trial, including policy defenses; by denying its request to have only the well-pled factual allegations of Willis’s complaint read to the jury during the trial of the case; and by denying Allstate’s motion to exclude the opinion testimony of Willis’s expert. For the reasons that follow, we affirm the trial court’s rulings in Case No. A12A2437, and affirm the trial court’s rulings on excluding Willis’s expert, but we reverse the trial court’s rulings on whether Allstate can introduce evidence on liability in Case No. A12A2438.

The record shows that while in the process of remodeling her home, Willis rented a portable storage unit to hold some of her possessions. Because the unit was placed in her front yard, some of Willis’s neighbors complained, and, without notice to Willis, the owner of the storage unit removed it from her yard and put it in the company’s storage yard. Willis reported this to Allstate as a theft. Then, the next day Willis’s home burned, and Allstate boarded up the house because it determined the house was unsafe. Willis contends other property of hers was stolen from the boarded-up house. Although Willis filed claims for the stolen property, the fire damage to her home, and the costs of her temporary living expenses, Allstate never paid any of the claims.

Consequently, Willis filed suit on her policy. After this initial suit was removed to federal court, Willis dismissed the action without prejudice. Sometime later she filed an identical suit in Fulton County Superior Court, and, although Allstate was properly served, Allstate failed to answer the complaint, and was in default. Allstate moved to open the default, which the trial court subsequently denied. Thereafter, the trial court entered a judgment on liability.

Before the hearing on damages, the trial court made several rulings: It denied Allstate’s motion to exclude the opinion testimony of Willis’s expert, denied Allstate’s motion to prevent Willis from arguing to the jury that liability was clear, and granted Willis’s motion preventing Allstate from contesting liability or offering any defense to liability. Then, the trial court vacated its earlier order on Allstate’s motion for partial summary judgment and granted Allstate’s motion on Willis’s claims for fraud and promissory estoppel. The trial court found that, notwithstanding the entry of the default, Willis’s claims for fraud and promissory estoppel failed as a matter of law.

It is well settled in Georgia that

[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.

(Citation and punctuation omitted.) Drug Emporium v. Peaks, 227 Ga. App. 121, 128 (2) (c) (488 SE2d 500) (1997). As we have held,

a defendant in default is in the position of having admitted each and every material allegation of the plaintiffs petition except as to the amount of damages alleged. The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery.

(Citations and punctuation omitted.) Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985). Nevertheless,

[i]t is axiomatic that a default does not result in the admission of allegations that are not well-pled or that are the result of forced inferences. The failure to answer or to appear at trial serves as an admission of the facts alleged in the complaint, but not of the conclusions of law contained therein. So while a default operates as an admission of the well-pled factual allegations in a complaint, it does not admit the legal conclusions contained therein. A default simply does not require blind acceptance of a plaintiff’s erroneous conclusions of law. Nor does a default preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover.

(Punctuation, footnotes and emphasis omitted.) Grand v. Hope, 274 Ga. App. 626, 629 (1) (617 SE2d 593) (2005).

In relevant part, OCGA § 9-11-55 (a) provides that when a case is in default, the plaintiff is entitled to judgment “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence.” The effect of this provision is well settled in Georgia law. As the Supreme Court of Georgia and this Court have consistently held, a default operates as an admission of the well-pled facts alleged in the complaint, but not the conclusions of law contained therein:

A judgment by default properly entered against parties sui juris operates as an admission by the defendant 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 [the] default judgment.

(Punctuation omitted.) Stroud v. Elias, 247 Ga. 191, 193 (1) (275 SE2d 46) (1981); see also Azarat Marketing Group v. Dept. of Admin. Affairs, 245 Ga. App. 256, 257 (1) (b) (537 SE2d 99) (2000); Spears v. Mack & Bernstein, P.C., 227 Ga. App. 743, 744 (1) (490 SE2d 463) (1997).

Case No. A12A2437

1. Willis’s complaint asserted claims for bad faith, breach of contract, fraud, negligence, and promissory estoppel. After setting forth the jurisdictional and venue allegations, the complaint in relevant part alleged the following facts:

Allstate “initially undertook their duty by assigning an adjuster to assess and handle the claim, and by selecting a contractor of [Allstate’s] choosing to secure and board up the uninhabitable burned out home of [Willis].” “During this process, a myriad of [Allstate’s] employees and agents began calling and requesting documents and information from [Willis].” Willis “made diligent efforts to comply with the numerous and often redundant and repetitive requests made by” Allstate. Because of numerous and misleading phone calls, Willis requested that all communications with Allstate be by e-mail, but Allstate “ignored [her] request... and continued sending letters to the address of [Willis’s] destroyed house [and] continued to call the house phone number which could never be answered.”

Willis provided Allstate “with all information necessary and required to process her claim, including sworn statements of loss, detailed inventory list, estimates for repairs, together with an examination under oath.” Allstate continued to make statements to lead Willis to believe the claim was being processed. Allstate

knew each of it’s [sic] statements were false, misleading, and intended solely to lull [Willis] into the false security of believing that liability was clear and that. . . Allstate was solely considering the issue of damages which was thought to be processing through the Allstate beurocracy [sic] and RED TAPE.

Allstate was “merely acting in a manner to delay ‘THE LAYWOMAN/ NON-LAWYER’ plaintiff past the statute of limitation and/or time within which the policy and/or statute required [Willis] to file her action in the [c]ourts.” Allstate knew its “representations to [Willis] during 2006 and 2007 were false and did so with the hope of ultimately denying [Willis’s] claim so as to argue the Statute of Limitation.” Allstate’s “deceptive practice of delay is an exception to the Statute of Limitation.”

In support of her fraud claims, Willis’s complaint alleged that Allstate’s representatives

represented that they were undertaking duties to resolve [Willis’s] claim knowing full well that their intent was to lull [Willis] into a false sense of security regarding their policy, thereby causing [Willis] to falsely believe [Allstate was] operating in good faith, together [with] the misperception that they intended to honor the claim, when the full intent of. . . Allstate was to fraudulently deny the claim.

“Allstate’s denial of the claim was clearly a fraudulent breach of the Policy of Insurance.” “Defendant Allstate is liable for it’s [sic] bad faith denial of the policy of insurance in fraudulent breach of same.” The complaint further alleged in regard to promissory estoppel that Allstate

represented that they were undertaking duties to resolve [Willis’s] claim knowing full well that their intent was to lull [Willis] into a false sense of security regarding their policy, falsely believe [Allstate was] operating in good faith, together with the fact that they intended to honor the claim, when the full intent of... Allstate was to fraudulently deny the claim.

“Allstate’s denial of the claim was clearly a fraudulent breach of the Policy of Insurance for which Allstate should be estopped from denial.” “Allstate is liable for it’s [sic] bad faith denial of the policy of insurance in fraudulent breach of same.”

In ruling on Allstate’s motion for partial summary judgment the trial court, citing Miles v. Great Southern Life Ins. Co., 197 Ga. App. 540 (398 SE2d 772) (1990), found that Willis’s

claims for fraud and promissory estoppel fail as a matter of law. The relationship between an insurer and an insured is contractual. Breach of an obligation to pay arising solely from the contractual relationship created by an insurance contract will not support the bringing of a tort claim for fraud.

“[Willis’s] promissory estoppel claim merely restates her fraud claim and is for that reason subject to the same analysis.”

The general rule in Georgia is that a breach of contract cannot constitute a tort unless a special or confidential relationship exists between the parties. Miles v. Great Southern Life Ins. Co., 197 Ga. App. at 541 (1). And it is well settled that “[t]he party asserting the existence of a confidential relationship has the burden of establishing its existence.” (Footnote omitted.) Canales v. Wilson Southland Ins. Agency, 261 Ga. App. 529, 531 (1) (583 SE2d 203) (2003). Generally, no fiduciary relationship exists between an insured and his or her insurer. Nash v. Ohio Nat. Life Ins. Co., 266 Ga. App. 416, 422 (1) (597 SE2d 512) (2004); Miles v. Great Southern Life Ins. Co., 197 Ga. App. at 541 (1). The posture of an insured making a claim against her own insurer does not fall within this definition of a confidential relationship, but is one of antagonistic interests. Walsh v. Campbell, 130 Ga. App. 194, 198 (202 SE2d 657) (1973).

Although enumerating this ruling as error, Willis has not challenged the premise of the trial court’s ruling, which is a correct statement of the law. This is not a case in which the trial court found the allegations in the complaint insufficient. Willis is not entitled to prevail solely because Allstate is in default.

A default simply does not require blind acceptance of a plaintiff’s erroneous conclusions of law. Nor does a default preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover.

Grand v. Hope, 274 Ga. App. at 629 (1). Accordingly, this enumeration of error is without merit.

Case No. A12A2438

2. Allstate contends the trial court erred by ruling that Allstate cannot introduce evidence to dispute liability. Allstate argues that it is permitted to show that Willis’s claims were not covered by her insurance policy with Allstate or that Willis complied with the terms of the policy.

It is axiomatic that a default does not result in the admission of allegations that are not well-pled or that are the result of forced inferences. The failure to answer or to appear at trial serves as an admission of the facts alleged in the complaint, but not of the conclusions of law contained therein. So while a default operates as an admission of the well-pled factual allegations in a complaint, it does not admit the legal conclusions contained therein.

(Punctuation, footnotes and emphasis omitted.) Fink v. Dodd, 286 Ga. App. 363, 365 (1) (649 SE2d 359) (2007). Evidence which serves to relieve Allstate of liability, however, which it has already admitted by virtue of the default judgment is inadmissible. First Union Nat. Bank of Ga. v. Floyd, 198 Ga. App. 99, 102 (3) (400 SE2d 393) (1990). Consequently, the default did not preclude Allstate from showing that, under the facts as deemed admitted, no claim existed which would allow Willis to recover. Crawford v. Dammann, 277 Ga. App. 442, 453-454 (4) (c) (626 SE2d 632) (2006); ServiceMaster Co. v. Martin, 252 Ga. App. 751, 752 (1) (556 SE2d 517) (2001). Therefore, the trial court erred to the extent it ruled that Allstate was prevented from introducing any evidence on liability.

3. Allstate alleges the trial court erred by preventing Allstate from contesting liability or offering any defenses to liability at trial, including policy defenses. For the reasons set forth in Division 2, supra, the trial court erred by holding that Allstate cannot contest liability or offer defenses, including policy defenses at trial. Nevertheless, by failing to answer timely, Allstate waived its opportunity to assert any affirmative defense included within OCGA § 9-11-8 (c). Azarat Marketing Group v. Dept. of Admin. Affairs, 245 Ga. App. at 257 (1) (a) (failure to assert an affirmative defense in an answer or motion prior to suffering a default judgment acts as a waiver of the defense); Northgate Village Apts. v. Smith, 207 Ga. App. 479, 481-482 (3) (428 SE2d 381) (1993). See also McDade v. McDade, 263 Ga. 456 (1) (435 SE2d 24) (1993).

4. Allstate further contends the trial court erred by denying its request to have only the well-pled factual allegations of Willis’s complaint read to the jury during the trial of the case. Because the trial court denied Allstate’s motion in limine without explanation, we cannot know how the trial court planned to deal with this issue. What the trial court cannot do, however, is merely allow all of Willis’s allegations, well pled or not, and legal conclusions to be presented to the jury as if they imposed liability upon Allstate.

5. Allstate alleges the trial court erred by denying Allstate’s motion to exclude the opinion testimony of Willis’s expert. Allstate moved to exclude the expert’s testimony relying on former OCGA § 24-9-67.1. The expert, abuilder/developer/construction company owner who had been in the business for over 20 years, was asked by Willis to provide an estimate of the cost to restore her home to its pre-fire condition. Allstate asserts the expert’s testimony did not “fit” with the facts of the case and would not help the trier of fact because the expert testified at his deposition that his estimate included repair of some damage caused by termites and not caused by the fire and he cannot separate the cost of fire repair from termite repair. He also testified that the estimate also included charges for building code upgrades, and repair costs for the deterioration of the house since the fire, which also cannot be separated from the cost of repairing fire damage only.

Decided March 27, 2013

Reconsideration denied April 11, 2013

W. Bryant Green III, Sandra F. Lekan, for appellant.

Webb, Zschunke, Neary &Dikeman, MarvinD. Dikeman, Melissa C. Patton, for appellee.

Notwithstanding the points raised by Allstate, a trial court has broad discretion in accepting or rejecting the qualifications of an expert, Williams v. State, 279 Ga. 731, 732 (2) (620 SE2d 816) (2005), and the question of whether a person possesses the qualifications as an expert witness rests entirely in the sound discretion of the trial court. Hunter v. State, 192 Ga. App. 675, 676 (2) (385 SE2d 764) (1989). Given the expert’s long experience in the field, we find no abuse of discretion here. Moreover, the problems with the expert’s estimate relied upon by Allstate go to the weight to be given the expert’s opinion, not its admissibility.

Judgment affirmed in Case No. A12A2437. Judgment affirmed in part and reversed in part in Case No. A12A2438.

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


author: McFADDEN, Judge.

text:
    A12A2484.
    DAVIS v. VCP SOUTH, LLC et al.
    (740 SE2d 410)
   McFADDEN, Judge.

This appeal is from the grant of partial summary judgment on contract claims. Because there exist no genuine issues of material fact, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Layer v. Clipper Petroleum, 319 Ga. App. 410, 411 (735 SE2d 65) (2012).

So viewed, the evidence shows that doctors Keith Davis and Steven Roth formed VCP South, LLC for vein care treatment, and also formed other related limited liability companies. The VCP South operating agreement included a provision that gave each member, following the death of the other member, the option to purchase the deceased member’s interests. The agreement further provided that the purchase price shall be determined by the company’s certified public accountant. It is undisputed that Steven Staley is the longtime company accountant described in the agreement. Dr. Davis died in January 2010, and several months later his wife, Lori Davis, was appointed administrator of his estate. Dr. Roth, VCP South and another of the doctors’ limited liability companies filed a six-count complaint against the estate, seeking, among other things, to enforce the VCP South operating agreement provision authorizing the company’s certified public accountant, Staley, to determine the purchase price. The trial court issued partial summary judgment rulings in favor of the plaintiffs, and Lori Davis, as personal representative of the estate, appeals.

1. Accountant’s authority to determine purchase price.

Davis challenges the trial court’s summary judgment finding that the company’s accountant was authorized to determine the purchase price. The challenge is without merit.

The operating agreement of VCP South expressly provided that “the purchase price for the membership units shall be their fair market value as determined in a commercially reasonable manner by or under the certified public accountant regularly representing the Company, whose decision in this matter shall be conclusive.” The construction of a contract is a question of law for the court, and it is the cardinal rule of contract construction that the court should ascertain the intent of the parties. OCGA §§ 13-2-1; 13-2-3. Here, the intent of the parties to the operating agreement is clear and unambiguous in authorizing the company’s certified public accountant to determine the purchase price. “Thus,... we find no error in the trial court’s construction of this portion of the agreement. [Cit.]” Ledford v. Smith, 274 Ga. App. 714, 721 (1) (a) (618 SE2d 627) (2005).

Moreover, Davis’ challenges to the propriety of the doctors’ operating agreement fail to recognize that the contractual flexibility afforded members of a limited liability company “is consistent with OCGA § 14-11-1107 (b) of the LLC Act which provides that: ‘It is the policy of this state with respect to limited liability companies to give maximum effect to the principle of freedom of contract and to the enforceability of operating agreements.’ ” Stoker v. Bellemeade, LLC, 272 Ga. App. 817, 825 (3) (615 SE2d 1) (2005), reversed on other grounds, Bellemeade, LLC v. Stoker, 280 Ga. 635 (631 SE2d 693) (2006).

2. Waiver.

Davis contends that the trial court erred in granting partial summary judgment because the plaintiffs waived enforcement of the contract provision authorizing the company accountant to determine valuation and purchase price by first obtaining a valuation of Dr. Davis’ interest from another accounting firm. However, the record shows that valuation was performed solely for the purpose of assisting Dr. Roth in negotiating with Davis’ estate. After those negotiations apparently ended unsuccessfully, the plaintiffs filed their complaint expressly seeking to enforce the operating agreement provision authorizing the company’s certified public accountant to conclusively determine the fair market value. Davis has shown no waiver of that provision.

Further, in support of this enumerated error, Davis relies on cases involving arbitration clauses. However, the instant case involves a contract provision concerning the method of appraising value. “The law is clear that appraisement does not constitute either a common law or a statutory arbitration____Appraisement is nothing more than a contractual method of ascertaining the amount of loss.” (Citations and punctuation omitted.) Aaron v. Ga. Farm Bureau Mut. Ins. Co., 297 Ga. App. 403, 407 (b) (677 SE2d 419) (2009). Moreover,

an appraisal clause can only resolve a disputed issue of value. It cannot be invoked to resolve broader issues of liability. To invoke an appraisal clause to eliminate the larger issues of liability . . . would be impermissible, as it would expand the scope of the appraisal clause beyond the issue of value. It would be tantamount to converting the appraisal clause into an arbitration clause, which is the type of clause that would be invoked to address such broader issues.

(Citations omitted.) McGowan v. Progressive Preferred Ins. Co., 281 Ga. 169, 172 (637 SE2d 27) (2006). Here, the provision in question was an appraisal clause set forth only to resolve an issue of value, not broader issues, so contrary to Davis’ claims, it cannot be converted into an arbitration clause.

3. Fraud and commercial reasonableness.

In two enumerations of error, Davis argues that the trial court erred in granting partial summary judgment because there exist genuine issues of material fact as to fraud and whether Staley determined fair market value in a commercially reasonable manner. However, she has not indicated what particular facts show fraud or a lack of commercial reasonableness. Rather, she attempts to incorporate by reference “[t]he deficiencies in Staley’s appraisal that are delineated in the [defense] affidavits,” and claims that the estate submitted “evidence challenging the adequacy, fairness and commercial reasonableness of Staley’s appraisal and his methodology.” She refers to over 240 pages of the record, without specifying what evidence in those pages supports her claims. Generally, “we decline to look in the record for matters which should have been set forth in the brief.” Ellison v. Burger King Corp., 294 Ga. App. 814, 815 (1) (670 SE2d 469) (2008). Indeed, “[t]his court has no duty to cull the record in search of evidence to support the contentions of parties.” Cox v. Southern Guaranty Ins. Co., 254 Ga. App. 776, 778 (2) (563 SE2d 882) (2002). The failure to point to specific evidence in the record “hinder [s] this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown.” (Citation and punctuation omitted.) Williams v. State, 318 Ga. App. 744, 745 (734 SE2d 745) (2012). Nevertheless, we have reviewed the pages of the record cited by the appellant and find no evidence of fraud or that the appraisal was not commercially reasonable. The pages contain pleadings and other court documents, as well as affidavits. While the affidavits critique Staley’s appraisal methodology, we agree with the trial court’s finding that they do not rise to the level of showing fraud or that the appraisal was not done in a commercially reasonable manner.

Where the parties to a contract agree that the decision of a third person on a matter connected with the execution of a contract shall be final and conclusive, his decision is binding on the parties, as to those matters he is authorized to determine, except in the case of fraud, gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment. [Cit.]

Skinner v. Smith, 120 Ga. App. 35, 36 (169 SE2d 365) (1969). Here, given the absence of evidence showing fraud or bad faith, the trial court correctly ruled that the determination by accountant Staley, which the contracting parties expressly agreed would be conclusive, is binding.

Judgment affirmed.

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

Decided March 26, 2013

Reconsideration denied April 11, 2013.

Bell & Brigham, John C. Bell, Jr., Allgood & Mehrhof, Thomas F. Allgood, Jr., for appellant.

Wall & Ellison, James B. Wall, Donsbach & King, John A. Donsbach, for appellees.


author: McFadden, Judge. BARNES, Presiding Judge,

text:
    A12A1773.
    BURDETTE v. McDOWELL et al.
    (739 SE2d 28)
   McFadden, Judge.

Scott Blaine Burdette appeals from the judgment on a defense verdict and from the denial of his motion for new trial in this personal injury action. Burdette argues that the trial court erred in admitting hearsay; but, because his objection to that evidence below was on grounds other than hearsay, he has not preserved the hearsay issue for consideration on appeal. He argues that the trial court erred in refusing to give a requested jury instruction, but the charge the court gave accurately and sufficiently covered the issue addressed in the rejected instruction. Finally, he argues that the trial court erred in refusing his request to poll the jurors after the verdict, but the decision whether to poll the jury is discretionary, and he cannot show by the appellate record that the trial court abused its discretion.

This case arises out of a series of collisions on a rainy afternoon in March 2003 along a portion of Interstate 20 in Columbia County. Burdette was driving a Mazda Miata, heading east toward Augusta. Ten to fourteen accidents had occurred in a thirty-minute period on that portion of 1-20. That portion of 1-20 East is two lanes. Burdette was in the right lane, behind a tractor-trailer truck with a blue cab. Another tractor-trailer truck was to his left.

The circumstances leading up to the collision at issue are disputed. According to Burdette, the tractor-trailer to his left started moving into his lane. But the driver of that truck, Seth Graves, contended he was stopped in the left lane behind a box truck driven by Johnnie Earl Horne. Horne, on the other hand, testified that Graves had told him that Graves was moving at the time.

The truck with the blue cab in front of Burdette began braking, eventually colliding with the truck in the left lane driven by Graves. Burdette drove to the right, into the emergency lane, and collided with another truck, a tanker, which was parked there. The tanker truck had pulled into the emergency lane after it had been clipped by yet another truck. The driver of the tanker truck had not used any emergency illuminating triangles to warn of his truck’s presence. Burdette was severely and permanently injured.

1. The admission of a diagram attached to a police report.

Burdette enumerates as error the trial court’s decision to admit “hearsay police report diagrams for the jury in this case.” Specifically, he argues about a diagram prepared by an investigating officer, which reinforced defense testimony as to a disputed fact. It showed that the truck driven by Graves was stopped behind a box truck, as Graves testified, rather than moving, as Burdette and Horne testified.

Burdette contends that the trial court erred by admitting improper hearsay testimony, in the form of the diagram, from the investigating officer who prepared it. Burdette’s counsel did object at trial to the admission of the diagram, but not on hearsay grounds. Rather, Burdette objected to the proffered police reports as a group, arguing that they were irrelevant because some of them concerned accidents that occurred in the westbound lanes of Interstate 20 and because they concerned accidents that occurred miles away from the scene of Burdette’s accident. Burdette’s relevancy objection was not “sufficient to notify the trial court of the legal ground at issue here so that its applicability could be measured and error avoided.” (Citation and punctuation omitted.) Slade v. State, 287 Ga. App. 34, 35 (1) (651 SE2d 352) (2007). “To preserve an objection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived.” (Punctuation omitted.) Holloway v. State, 278 Ga. App. 709, 713 (4) (629 SE2d 447) (2006). Because Burdette failed to object on hearsay grounds to the admission of the accident report, he failed to preserve this issue for appeal. Edwards v. State, 282 Ga. 259, 260 (4) (646 SE2d 663) (2007).

2. The failure to give Burdette’s requested jury charge.

Burdette was cited for traveling too fast for conditions, and he forfeited his bond on the citation. At trial, he explained his reasons for failing to contest the charge: his injuries had incapacitated him and his recovery was the focus of his concern.

The trial court instructed the jury that “ [f ] orfeiting one’s bond on a traffic citation is an admission of guilt. However, it is not conclusive evidence that the individual was negligent. It is only one circumstance for you to consider, along with all the other evidence.” Burdette argues that the court should have added that he was legally entitled to introduce evidence about his reasons for failing to contest the citations. He does not deny that the trial court allowed him to introduce such evidence, and that he, in fact, did so.

In reviewing a trial court’s refusal to give a requested jury instruction,

we must look to the jury charge as a whole, and if the jury charge as a whole accurately and fully apprised the jury of the law to be applied in its deliberations, then the refusal to give an additional instruction, even if that additional instruction were accurate, does not amount to error.

(Citation omitted.) Harrison v. State, 309 Ga. App. 454, 457 (2) (a) (711 SE2d 35) (2011). In this instance, “we discern no error in the trial court’s refusal to give [Burdette’s] requested charge on forfeiture because the trial court fully and fairly charged the jury on the issue.” Coleman v. Fortner, 260 Ga. App. 373, 375 (1) (b) (579 SE2d 792) (2003).

The court charged the jurors that the bond forfeiture was “not conclusive evidence that the individual was negligent. It is only one circumstance for you to consider, along with all the other evidence.” That charge provided a foundation sufficient to enable Burdette to argue to the jurors that they should disregard his bond forfeiture in light of his explanation of that forfeiture.

The trial court’s charge accurately stated the law regarding the effect of a party’s bond forfeiture and made clear that the jury should consider all evidence to determine the issues in the case. We find no error.

3. The denial of Burdette’s request to poll the jurors.

After the jury returned its verdict, counsel for Burdette asked to poll the jury, but the trial court denied the request. Burdette argues that the trial court erred in refusing that request. He argues that to the extent the law does not mandate a jury poll in civil cases upon request, it should be changed. He argues that civil litigants have the right to a unanimous verdict and without a poll of the jury to determine unanimity, the right is meaningless.

Regardless of the merits of Burdette’s argument that civil litigants should have a right to a jury poll, we are constrained to reject that argument by long-standing Supreme Court precedent that whether or not to poll the jury in a civil case is a matter within the discretion of the trial court. See Peavey v. Crawford, 192 Ga. 371, 373 (2) (15 SE2d 418) (1941); Bell v. Hutchings, 86 Ga. 562, 571 (12 SE 974) (1891). See also McNeil v. Cowart, 186 Ga. App. 411, 414 (2) (367 SE2d 291) (1988); White v. Seaboard Coast Line R. Co., 139 Ga. App. 833, 835 (1) (229 SE2d 775) (1976); Ludwig v. J. J. Newberry Co., 78 Ga. App. 871, 875 (1) (c) (52 SE2d 485) (1949). “Polling the jury, in a civil case, is a matter within the discretion of the trial judge,... and we will not undertake to control his discretion upon these matters of practice.” Bell, 86 Ga. at 571.

A trial court should have “good reason” for exercising its discretion to deny a request for a jury poll. See Smith v. Mitchell, 6 Ga. 458, 465 (1849) (“[Although it is not the right of the parties, necessarily, to poll the [j]ury, yet it is a privilege within the discretion of the [c]ourt, which it will not, without good reason, deny to them.”). If the record reflected that the trial court had refused to poll the jury on the basis of an inflexible rule or policy, its decision would have been an unsustainable refusal to exercise its discretion. See Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013); Brown v. State, 65 Ga. 332, 337 (1880); Ramage v. State, 259 Ga. App. 616, 617 (578 SE2d 245) (2003).

But “[t]he burden of showing an abuse of discretion [is] upon the party attacking the judge’s order, and no such showing has been made.” (Citation and punctuation omitted.) Lowe v. Taylor, 180 Ga. 654, 660 (180 SE 223) (1935). Here the record shows the following colloquy occurred after the court read the jury’s verdict:

The court: Counsel, do you want to review the form of the document?
Plaintiff’s counsel: Yes, Your Honor. At the appropriate time, we would ask for a poll.
The court: And that’s going to be denied.
Plaintiff’s counsel: A poll of the jury?
The court: Yes.
Plaintiff’s counsel: We can’t poll the jury?
The court: No sir. Anything else? Do you want to look at the verdict form?
Defense counsel: Your Honor, may I — may we approach the bench for a second?
The court: Sure.
(untranscribed bench conference)
The court: Ladies and gentlemen, as I said earlier, thank you for your service. If anyone wants to speak to you about your service, you may, but I’m going to give you a head start. So, I’m going to let you leave. If you choose to speak with anyone, you may. You may elect not to. Thank you again for your service. You’re free to go. Please rise for the jury.
(jury retires from courtroom)

We recognize that the purpose of polling the jury is to unearth problems that would not otherwise come to light and that it is therefore difficult to make a particularized argument for polling a jury in a specific case. We do not undertake today to prescribe what must be done in order to preserve error in such cases. Our decision today is controlled by the rule that, “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” (Punctuation omitted.) McKissick v. Aydelott, 307 Ga. App. 688, 692 (1) (705 SE2d 897) (2011); Renshaw v. Feagin, 199 Ga. App. 148, 151 (4) (404 SE2d 457) (1991).

Decided February 26, 2013

Reconsideration denied April 12, 2013.

Greer, Klosik, Daugherty & Swank, Frank J. Klosik, Jr., for appellant.

Here, Burdette cannot show by the record that the trial court abused its discretion in denying his request to poll the jury. He therefore has not demonstrated that he is entitled to a reversal on this ground. See Luke v. Luke, 159 Ga. 551, 555 (126 SE 374) (1925) (absent a showing on the record, appellate courts “must presume that there was no abuse of discretion”); Brown v. State, 148 Ga. 264, 266 (96 SE 435) (1918) (“[I]n the absence of any showing to the contrary, we presume the court’s discretion . . . was judiciously exercised.”).

Judgment affirmed.

Ellington, C. J., concurs. Barnes, P. J., concurs fully and specially.

BARNES, Presiding Judge,

concurring specially.

I concur fully in the majority opinion in this case. However, I write separately to emphasize that while trial courts have the discretion to decide whether to poll the jury in civil cases under our Supreme Court’s precedent, I believe that trial courts should routinely exercise their discretion in favor of allowing jurors to be polled. The polling of jurors in open court is an important safeguard to ensure that the jury’s verdict was unanimous. A juror may initially assent to a verdict in the privacy of the jury room out of pressure from other jurors, a desire to end prolonged deliberations, or a misunderstanding of the facts or the law, but then, upon further reflection, be unwilling to continue to give his or her assent when individually questioned in open court. Consequently, I believe that, absent unusual circumstances, the better and more prudent practice is for trial courts in civil cases to poll the jury when a party timely requests for them to do so.

Cruser & Mitchell, William T Mitchell, Richard R Hamilton, Christopher T. Conway, Carlock, Copeland & Stair, Thomas S. Car-lock, Scott D. Huray, Hull Barrett, Floyd M. Taylor, Neal W. Dickert, Drew, Eckl & Farnham, Andrew D. Horowitz, Charles C. Mayers, for appellees.