text:
    A14A0355.
    PROGRESSIVE ELECTRICAL SERVICES, INC. et al. v. TASK FORCE CONSTRUCTION, INC.
    (760 SE2d 621)
   MCMILLIAN, Judge.

Progressive Electrical Services, Inc. (“Progressive”) and Timmy L. Bush appeal the trial court’s grant of summary judgment and award of attorney fees in an action filed against them by Task Force Construction, Inc. (“TFC”) asserting claims of breach of contract and indemnification. For the reasons set forth below, we affirm the grant of summary judgment.

We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga. App. 590, 591 (746 SE2d 710) (2013). Viewedin that light, the record shows that on or about April 29,2009, Bush executed a “Subcontract Agreement” with TFC (the “Agreement”) on behalf of Progressive. Under the Agreement, Progressive was to provide labor, tools, equipment and insurance necessary to furnish and install an electrical package for the project known as the Sudie A. Fulford Community Learning Center in Swainsboro, Georgia (the “Project”).

Although Bush ostensibly signed the Agreement in his representative capacity as the president of Progressive, the Agreement contained the following provision designed to bind him in his individual capacity to its terms (the “Signature Provision”):

Signing Individual. Each and every individual who signs this [Agreement] or any Attachment or exhibit thereto on behalf of [Progressive] hereby warrants and agrees that such individual is duly authorized 1) to act on behalf of [Progressive]; 2) to enter this [Agreement] on behalf of [Progressive]; and 3) to bind [Progressive] to the terms of [the Agreement]. Each and every individual signing on behalf of [Progressive] also further agrees that, notwithstanding anything contained herein or on any signature line to the contrary, each such individual signing on behalf of [Progressive], in addition to signing in a representative capacity, is also signing [the Agreement] in his or her personal and individual capacity and each such individual signing on behalf of [Progressive], by signing below, hereby individually and personally agrees to be bound by all of the obligations of [Progressive] in [the Agreement] (including, but not limited to, the Attachments hereto).

(Emphasis supplied.)

The Agreement provided that Progressive was to be paid $275,000 for completion of its services, subject to any valid written change orders. Under the Agreement, TFC could make changes to the work to be performed and the materials to be furnished through a written change order signed by both parties, but no changes were valid “except upon written Change Order from [TFC] and signed by authorized representatives of [TFC and Progressive].” The Agreement further expressly provided that

[TFC] shall not be liable to [Progressive] for any additional cost of management, supervision, labor, materials, supplies, equipment, tools, machinery, plant, services, engineering and testing without such written Change Order. No officer, employee or agent of [TFC] is authorized to direct any changed or extra work by oral order. Only written approval from [TFC’s] President, Larry Sailors, or such Project Manager as [TFC] may specifically designate in writing as having authority to make change orders, can authorize changes.

Additionally, Progressive agreed to pay promptly any costs for material or labor furnished by third parties on the Project. In connection with its work on the electrical package, Progressive entered into a separate contract with Hagemeyer North America, Inc. (“Hagemeyer”) for the purchase of materials, and Hagemeyer supplied materials to Progressive under that contract. For reasons that are unclear, TFC ultimately paid Progressive only $245,250 in connection with the Project, and Progressive failed to pay Hagemeyer approximately $120,200 due and owing for materials supplied. Hagemeyer brought suit to recover the amounts owing under its contract with Progressive, naming Progressive, TFC, and Great American Insurance Company (“GAIC”), the surety on the Project’s payment bond (the “Payment Bond”), as defendants. GAIC ultimately settled the suit with Hagemeyer for $116,000, and TFC, as principal on the Payment Bond, reimbursed GAIC in the amount of $118,463.69 (the “Payment”), which included reimbursement of GAIC’s attorney fees and costs.

Under the Agreement, Progressive agreed to indemnify TFC

from all claims, losses, fines, penalties, assessments and damages (including but not limited to reasonable attorney’s fees) arising out of[, inter alia, Progressive’s] breach of any term [of the Agreement], including costs, investigation expenses, expert expenses and attorney’s fees incurred by [TFC] in the investigation and defense of such claims or allegations.

TFC relies upon this provision in seeking to recover the amount it paid to GAIC, less any amounts TFC owes to Progressive under the Agreement, as amended by any valid change orders. The trial court granted TFC’s subsequent motion for summary judgment against Progressive and Bush, jointly and severally.

1. Progressive and Bush assert that the trial court erred in awarding damages jointly and severally against Bush because he did not sign the Agreement in his individual capacity. Bush signed the Agreement on the signature line for the Subcontractor, as follows:

SUBCONTRACTOR: Progressive Electric
BY: Timmy Bush
Title: Pres.

None of the parties disputes that this signature was sufficient to bind Progressive to the terms of the Agreement, but Progressive and Bush dispute that Bush has any individual obligation under the contract. Moreover, they assert that because Bush’s name as an alleged guarantor is not included in the Agreement and the signature block does not indicate that he was signing as an individual guarantor, the Signature Provision, which they contend is an attempt at creating a guaranty, violates the Statute of Frauds.

(a) Progressive and Bush are correct that a single signature in a representative capacity generally does not bind the signing party individually. In Georgia, “an agent who, acting within the scope of his authority, enters into contractual relations for a disclosed principal does not bind himself, in the absence of an express agreement to do so.” (Citation and punctuation omitted; emphasis supplied.) Primary Investments, LLC v. Wee Tender Care III, Inc., 323 Ga. App. 196, 198 (1) (746 SE2d 823) (2013). But the Signature Provision here contains such an express agreement to bind Bush individually, providing that by signing on behalf of Progressive, Bush also “individually and personally [agreed] to be bound by all of the obligations of [Progressive]” under the parties’ contract, “notwithstanding anything contained [in the Agreement] or on any signature line to the contrary.” Accordingly, we find that under the unambiguous language of the Signature Provision, Bush’s single signature bound him in his individual capacity, along with Progressive, under the Agreement. See Gigandet v. Lighting Galleries, Inc., 191 Ga. App. 536, 536-537 (382 SE2d 600) (1989) (physical precedent only).

And although Bush and Progressive argue that such a provision creates a trap allowing for “unbridled liability to be unleashed on unsuspecting victims,” this argument ignores the well-settled legal principle that a party

has the duty to read a contract before signing it and by signing, the party is bound by its terms “unless [he] can show that an emergency existed at the time of signing that would excuse [his] failure to read it, or that the opposite party misled [him] by an artifice or device which prevented [him] from reading it, or that a fiduciary or confidential relationship existed between the parties upon which [he] relied in not reading the contract.

(Citation omitted.) Buckner v. Buckner, 294 Ga. 705, 708 (1) (755 SE2d 722) (2014). Bush has presented no evidence of any emergency, fraud, or confidential relationship to justify any failure on his part to read the Agreement before he signed it. The Signature Provision appears on the same page as the signature line, spaced apart from the preceding provisions of the contract, and with the heading “Signing Indiviclual” in boldface type. Under these circumstances, Bush must be charged with knowledge of the Signature Provision, even if he did not read it, and he is therefore bound, individually, to the terms of the Agreement.

(b) Additionally, we find no violation of the Statute of Frauds. Under OCGA § 13-5-30 (2), “[a] promise to answer for the debt, default, or miscarriage of another” “must be in writing and signed by the party to be charged.” And Georgia courts have interpreted this language “to mandate . . . that a guaranty identify the debt, the principal debtor, the promisor, and the promisee.” (Citations omitted.) Dabbs v. Key Equip. Finance, Inc., 303 Ga. App. 570, 572 (694 SE2d 161) (2010).

But the Signature Provision in this case “does not have the characteristics of a guaranty agreement. [Bush] did not obligate [himself] to pay the debts of [Progressive], if it did not pay, or guarantee its solvency.” (Emphasis omitted.) Rankin v. Smith, 113 Ga. App. 204, 206 (1) (147 SE2d 649) (1966). See also OCGA § 10-7-1. Rather, Bush agreed to assume the same obligations that Progressive had under the Agreement, including, but not limited to, the obligation “to furnish all labor, materials, tools, equipment and insurance necessary to furnish and install a complete Electrical package” on the Project, to pay any materialmen or subcontractors promptly, and to indemnify TFC against any losses arising out of any breach by Progressive under the Agreement. Therefore, Bush is a principal to the contract, not a guarantor.

Even though TFC’s complaint in this case sought repayment of amounts it claims are owing under the Agreement, those claims do not arise from any debt Progressive owes for money or credit extended by TFC to Progressive. Rather, any liability on Bush’s part arises from his individual, direct obligation to indemnify TFC for payments TFC made to a third party, GAIC, arising out of Progressive’s breach of the Agreement. “An indemnity contract differs from a guaranty in that the former is an original rather than a collateral undertaking and generally undertakes to make good the promisee’s loss resulting from his liability to another rather than from another’s liability to him.” (Citations and punctuation omitted.) Thomasson v. Pineco, Inc., 173 Ga. App. 794, 794 (328 SE2d 410) (1985). See also Rankin, 113 Ga. App. at 207 (1). Contracts of indemnity generally fall outside the Statute of Frauds. Copeland v. Belville, 93 Ga. App. 442, 443 (1) (92 SE2d 54) (1956). Therefore, we hold that the Signature Provision is enforceable against Bush.

2. Progressive and Bush next assert that summary judgment was inappropriate because the record demonstrates issues of material fact and conflicts in the evidence.

(a) Progressive and Bush argue that a conflict in the evidence exists as to the amount TFC owes Progressive under the Agreement, thereby creating an issue for a jury.

It is undisputed that the original contract price under the Agreement was $275,000, and the Agreement provides that any changes to the work to be performed required a written change order signed by both parties and that TFC would not be liable to pay any additional amounts for work or materials in the absence of such a change order. The trial court found that the Agreement price increased to $287,184 based on what the court found to be the only valid change order in the record. The trial court states that the change order was dated February 24, 2010, and was attached as an exhibit to Bush’s deposition. But, although the record before us contains that deposition, it does not contain the deposition exhibits.

On appeal, the burden is on the appealing party to show error affirmatively by the record. When that burden is not met, the judgment in issue is assumed to be correct and must be affirmed. When an appellant fails to include evidence considered by the court on summary judgment, that omission is generally fatal.

(Citations omitted.) Ligon v. Lumpkin County, 261 Ga. App. 435, 435 (582 SE2d 504) (2003). Because crucial evidence was omitted from the record, Progressive and Bush have not met their burden of showing error affirmatively by the record. White v. Arthur Enterprises, Inc., 219 Ga. App. 124, 125 (2) (464 SE2d 225) (1995). See also In re Estate of Dorroh, 255 Ga. App. 366, 367 (565 SE2d 565) (2002). In the absence of all the evidence considered by the trial court, we must assume that the trial court was correct in determining that the evidence contained only one valid change order and that it properly calculated the amount of damages based on that change order. Id.

Additionally, we note that in asserting that issues of fact remain as to damages, Progressive and Bush rely only upon a copy of a Progressive billing statement submitted to TFC in the amount of $301,665.15, which was attached to their interrogatory responses. Pretermitting whether this document can be considered as evidence on summary judgment, we note that it is a billing statement unsigned by either party and thus cannot be considered a valid change order. Moreover, Bush testified in his deposition that Progressive performed work that TFC did not approve by valid change orders, and it is possible that the $301,665.15 could include amounts Progressive was seeking to recover for such unapproved work. Because the Agreement specifically provides that TFC is not liable for any unapproved work, we find that the billing statement, even if it could be considered evidence, would be insufficient to create a factual issue for the jury on the amount of damages.

(b) Bush and Progressive next argue that issues of fact remain as to liability because TFC breached the Agreement by admittedly failing to pay Progressive all amounts due and owing thereunder, thereby causing Progressive’s breach in failing to pay Hagemeyer.

Under Georgia law, “[i]f the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” OCGA § 13-4-23. Thus, pretermitting which party was the first to breach the contract, in order

to constitute a defense to this action, [Progressive’s] nonperformance must have been caused by conduct of [TFC] which made [Progressive’s] performance useless or impossible. Nothing in this record, however, raises the issue that [TFC] made [Progressive’s] performance useless or impossible.

(Citations omitted.) Ott v. Vineville Mkt., Ltd., 203 Ga. App. 80, 80 (1) (416 SE2d 362) (1992).

To the contrary, Bush admitted in his deposition that even if TFC had paid Progressive the full amount it claimed, $301,665.15, Progressive nevertheless would have been unable to pay the full amount it owed to Hagemeyer. Progressive contended that TFC still owed it $56,000 under the Agreement, but Bush admitted that Progressive owed Hagemeyer over $120,000. And the trial court found that Progressive was actually entitled to over $ 14,000 less than it claimed. Progressive has presented no evidence or argument to explain how TFC’s failure to pay caused Progressive to breach the Agreement as to the difference between what it was entitled to receive from TFC and what it still owed Hagemeyer. Because the trial court’s damage award credits Progressive with the amount that it determined TFC owed Progressive, only the amount of that difference is at issue. Accordingly, we find that no material questions of fact remain on the question of whether Progressive is liable because TFC’s underpayment allegedly caused the breach.

(c) Progressive and Bush next assert that summary judgment was inappropriate because an issue of fact remains as to whether TFC paid GAIC the amount it claims. They argue that TFC failed to produce evidence showing the amount that it reimbursed to GAIC under the Payment Bond. This argument is without merit.

As TFC notes, Progressive and Bush admitted the fact and amount of the payment below. In its brief in opposition to the motion for summary judgment, Progressive asserted that TFC “paid GAIC $118,463.69 without an action being filed.” Bush adopted that assertion into his own brief in opposition to the motion “as if restated [therein] verbatim.”

It is well established that a party may make admissions in judicio in their pleadings, motions, and briefs. What a party admits to be true in its pleadings may not subsequently be denied. The factual admissions in judicio made by [Progressive and TFC] in their brief[s] are therefore binding.

(Citations and punctuation omitted.) American Arbitration Assn. v. Bowen, 322 Ga. App. 51, 54 (1) (743 SE2d 612) (2013).

(d) Progressive and Bush further assert that an issue of fact remains as to whether Hagemeyer’s release and dismissal with prejudice of Progressive in the prior lawsuit somehow resulted in the release of Progressive and Bush from any liability to TFC. We disagree.

Although Progressive and Bush make assertions regarding pleadings and procedural matters in the underlying Hagemeyer lawsuit, they fail to point us to any admissible evidence of such matters in the appellate record. Hagemeyer apparently filed its suit in the Superior Court of Fulton County, and TFC filed this suit in the Superior Court of Henry County. “Atrial court cannot take judicial notice of pleadings and orders of other courts of this State . . . because such issues are a matter of proof that cannot be judicially noticed.” NationsBank, N.A. (South) v. Tucker, 231 Ga. App. 622, 623 (1) (a) (500 SE2d 378) (1998). See siso Fitzpatrick v. Harrison, 300 Ga. App. 672, 673 (686 SE2d 322) (2009). Rather, “[certified copies of such pleadings would have to be tendered... and received as... evidence.” NationsBank, 231 Ga. App. at 623 (1) (a). Therefore, because Progressive and Bush failed to provide certified copies of the pleadings, we cannot properly consider them on motion for summary judgment.

But even if we were to consider the pleadings cited by Progressive and Bush, we find that their argument on this ground has no merit. In arguing that TFC’s claims have been released, Progressive and Bush rely upon OCGA § 13-4-80, which provides that “[w]hen a creditor releases another who is bound jointly with or primarily to a debtor or accepts from a debtor a higher security for the same debt, not intended to be collateral thereto, a release results by operation of law.” (Emphasis supplied.) Id. But that statute has no application in this case. Even if we consider Progressive, TFC, and GAIC to have been jointly and severally liable on Progressive’s debt to Hagemeyer on open account, Hagemeyer’s dismissal of Progressive with prejudice does not affect the independent liability of Progressive and Bush to indemnify TFC under the Agreement. Cf. Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 477-478 (306 SE2d 290) (1983) (“the right of contribution arises out of, but exists separately from, the rights present in the underlying suit”); Greenhorne & O’Mara, Inc. v. City of Atlanta, 298 Ga. App. 261, 262 (679 SE2d 818) (2009) (“[contribution claims are separate and distinct from the claims asserted in the underlying litigation, and they are not extinguished by release, dismissal, or judgment in the underlying litigation and are not barred by failure to assert them in the underlying litigation”) (citation and punctuation omitted). See also State Farm Fire & Cas. Co. v. Ameri can Hardware Mut. Ins. Co., 224 Ga. App. 789, 794 (4) (a) (482 SE2d 714) (1997) (“[t]he principles set forth in Marchman are equally applicable to claims of indemnity”).

(e) Progressive and Bush also argue that TFC’s payment to its bonding company on the debt from which Hagemeyer had released Progressive in the prior lawsuit somehow bars TFC from recovering against them because TFC failed to appear and assert its indemnification claims in the underlying lawsuit. We find no merit to this argument.

TFC was not required to assert its claim for indemnification in the underlying Hagemeyer lawsuit. See Scott v. Rakestraw, 252 Ga. App. 408, 410 (1) (556 SE2d 492) (2001) (claim for contribution does not have to be brought as either a counterclaim or a cross-claim to the original action, but instead maybe brought by filing a separate action after judgment has been entered in the original tort action); Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 33 (1) (410 SE2d 154) (1991) (Georgia law treats a claim that has not yet accrued as permissive, and not “as a compulsory counterclaim”) (emphasis in original); Carr v. Nodvin, 178 Ga. App. 228, 233 (3) (342 SE2d 698) (1986) (indemnity claim does not accrue until funds are expended relating to such claim). Thus, we find that any arguments that TFC’s failure to assert such a claim in the Hagemeyer action somehow relieves Progressive and Bush of any liability for indemnification under the theories of res judicata, collateral estoppel, waiver, or otherwise are without merit. See, e.g., Greenhorne, 298 Ga. App. at 262; State Farm Fire, 224 Ga. App. at 794 (4) (a) (failure to cross-claim for indemnification does not bar claim under res judicata).

(f) Progressive and Bush also assert that the record presents issues of material fact as to whether any recovery by TFC is barred under the doctrine of voluntary payment set out in OCGA § 13-1-13. The trial court found that the voluntary payment doctrine, “[a]s a practical matter” did not apply in this case because it was not a case “where one party is trying to recover money that it paid to the party that is raising the defense of voluntary payment.” (Emphasis in original.) But even if the doctrine did apply, the trial court found that Bush and Progressive had not “pointed to anything in the record that indicates that [TFC’s] payment was made to [GAIC] for any reason other than the bond provided by [GAIC] required it.” Although we disagree with the trial court’s reasoning in this regard, we find that it properly granted summary judgment to TFC on this issue.

Under OCGA § 13-1-13, a person cannot recover money voluntarily paid, unless one of the conditions listed in the statute is met (e.g., mistake of fact, fraud, or an urgent and immediate necessity). And “[t]he party seeking to recover payment bears the burden of showing that the voluntary payment doctrine does not apply.” (Citation and punctuation omitted.) Southern Mutual Church Ins. Co. v. ARS Mechanical, LLC, 306 Ga. App. 748, 751 (1) (703 SE2d 363) (2010). See also Energy & Process Corp. v. Jim Dally &Assocs., Inc., 291 Ga. App. 772, 775 (1) (662 SE2d 835) (2008). Thus, “[technically, the doctrine is not a defense . . . , [and] the presumption is that all payments are voluntary” unless the payor proves otherwise. (Citations omitted.) John K. Larkins, Jr., Ga. Contracts Law and Litigation § 10.18 (2d ed., updated October 2013). Accordingly, the trial court erred to the extent that it placed the burden on Progressive and Bush to show that the Payment was made for some reason other than that the bond required it.

Additionally, we find that the application of the voluntary payment doctrine is not limited to situations “where one party is trying to recover money that it paid to the party that is raising the defense of voluntary payment” as the trial court found. This Court has previously applied the voluntary payment doctrine in cases in which the payor sought to recover payments made on behalf of someone else to third parties, who were not parties to the litigation, including cases in which the payor is seeking to recover on a theory of indemnity. See, e.g., Southern Mutual, 306 Ga. App. at 752-753 (1); Insurance Co. of North America v. Kyla, Inc., 193 Ga. App. 555, 556 (388 SE2d 530) (1989). See also Larkins, Ga. Contracts Law and Litigation § 10.18.

Moreover, we find that in the context of indemnity, the voluntary payment doctrine can be interpreted as merely a corollary to the “quintessential element” of an indemnity claim, which requires proof of “the legal compulsion to pay on the part of one seeking [indemnity].” GAF Corp. v. Tolar Constr. Co., 246 Ga. 411, 412 (271 SE2d 811) (1980). In other words, an indemnitee bears the burden of showing that it was legally required to make the payment for which indemnification is sought as part of its claim. And, in fact, Georgia courts have denied recovery in indemnity cases where the payor has failed to show that the payment was legally necessary, even without the express application of the voluntary payment doctrine. See, e.g., Emergency Professionals of Atlanta, P.C. v. Watson, 288 Ga. App. 473, 475-476 (1) (654 SE2d 434) (2007); Benton v. Gaudry, 230 Ga. App. 373, 376 (3) (496 SE2d 507) (1998). Cf. Southern Nitrogen Co. v. Stevens Shipping Co., 114 Ga. App. 581, 586 (1) (151 SE2d 916) (1966) (pre-Civil Practice Act case dismissing complaint where plaintiff failed to plead a legal obligation to make payment for which it sought indemnification). Thus, to recover against Progressive and Bush, TFC must show that the Payment was legally necessary (i.e., that the Payment was not voluntary).

TFC alleged in its complaint that it made the Payment in response to GAIC’s threat of litigation after GAIC provided a written demand “outlining that [TFC] and its shareholders were responsible for indemnifying [GAIC] for all amounts paid to Hagemeyer under the [Payment] Bond, including attorney’s fees and costs of litigation,” and it repeated that assertion in its brief in support of the motion for summary judgment. But no copy of that written demand appears in the record. On appeal, TFC argues that it had legal duties under the terms of the Payment Bond and under Georgia law to make the Payment.

We have reviewed the terms of the Payment Bond, however, and find nothing in the four corners of that document binding TFC to indemnify GAIC for any amounts paid thereunder, and TFC has failed to point us to any such provision in the bond. Rather, the Payment Bond provides that TFC and GAIC are bound jointly and severally to the Board of Regents of the University System of Georgia, the owner of and obligee on the bond, and this Court has previously held that a payment bond containing terms similar to the Payment Bond in this case “did not create any liability, contingent or otherwise, as between the principal and the surety.” Goodyear Tire & Rubber Co. v. New Amsterdam Cas. Co., 101 Ga. App. 577, 578 (2) (114 SE2d 546) (1960). We conclude, therefore, that TFC had no legal obligation under the Payment Bond itself to reimburse GAIC for the full amount of the settlement with GAIC, plus attorney fees and costs.

TFC also asserts that it had a legal obligation to GAIC under OCGA § 10-7-56, which provides that “[a] surety who has paid the debt of his principal shall be subrogated, both at law and in equity, to all the rights of the creditor and, in a controversy with other creditors, shall rank in dignity the same as the creditor whose claim he paid.” But TFC fails to explain how that statute creates an obligation between a principal and surety. See Fabian v. Dykes, 214 Ga. App. 792, 794 (449 SE2d 305) (1994) (on motion for reconsideration) (“subrogation by which a guarantor . . . takes rights of the creditor [under OCGA § 10-7-56] is not the same thing as a guarantor’s right to recoup payment of a debt from his principal”), overruled in part on other grounds, Continental Ins. Co. v. State Farm Mut. Ins. Co., 212 Ga. App. 839, 841-842 (1) (443 SE2d 509) (1994). Accordingly, we fail to see how OCGA § 10-7-56 imposes a legal requirement for TFC to pay GAIC.

Nevertheless, GAIC had the statutory right to recoup payment, including attorney fees and costs, from TFC under OCGA § 10-7-41. “Even a voluntary payment by the guarantor entitles him to proceed against the principal,” Fabian, 214 Ga. App. at 793, and a creditor’s prior release of the principal does not affect this right. Id. Although TFC inexplicably fails to cite to OCGA § 10-7-41, it is clear that under that statute, the Payment was made out of legal necessity and thus was not voluntary.

Accordingly, the trial court’s reasoning was erroneous, but its order granting summary judgment to TFC was proper. “Unless the record is so poorly developed as to make legal analysis impossible, a trial court’s grant of summary judgment that is right for any reason will be affirmed.” Chapman v. C. C. Dickson Co., 273 Ga. App. 640, 641 (1) (616 SE2d 478) (2005). See also Abellera v. Williamson, 274 Ga. 324, 326-327 (2) (553 SE2d 806) (2001). We, therefore, affirm the trial court’s grant of summary judgment to TFC on the issue of the voluntary payment doctrine.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

Decided June 18, 2014.

James, Bates, Brannan & Groover, John F. Kennedy, Scott E. Anderson, for appellants.

Smith, Welch, Webb & White, William A. White, for appellee.

       Although Gigandet is only physical precedent, we find it persuasive on the principle that a single signature can bind both a corporate entity and the individual signer where the language of the contract expressly so provides.

       OCGA § 10-7-1 defines a contract of suretyship or guaranty as “one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit or indulgence or other benefit given to his principal, the principal in either instance remaining bound therefor.”

       Although the trial court issued the order in this case in July 2013, the motion and the parties’ briefing were filed in 2012 before the effective date of Georgia’s new Evidence Code. The record does not reflect that any hearing was held on the motion. Accordingly, Georgia’s former Evidence Code applies in this case. See Morrow v. Angkawijana, LLC, 327 Ga. App. 1, 6, n. 6(755 SE2d 561) (2014). See also Ga. L. 2011, pp. 99, 214, § 101.

       The statute provides:
      Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property.
      OCGA§ 13-1-13.

       We note that in Read v. Benedict, 200 Ga. App. 4, 9 (4) (406 SE2d 488) (1991), this Court held, without citation to any authority, that the voluntary payment doctrine did not apply “so as to preclude the award of damages in a suit grounded in tort when the alleged voluntary payment involved was to a third party not involved in a suit for the purpose of satisfying a claim caused....” (Emphasis in original.) Pretermitting whether Read is a correct statement of law in the tort context, it is not binding in this contract case. Additionally, in Hibbard v. McMillan, 284 Ga. App. 753, 756 (2) (645 SE2d 356) (2007), which involved payments pursuant to contract, this Court stated that “[t]he doctrine generally bars the recovery of excess payments, not payments made to a third party who is not involved in the litigation.” (Citations omitted; emphasis in original.) Hibbard cites only to Read in support of this statement, without any analysis regarding the application of that opinion in a contract case. Accordingly, given the use of the word “generally,” the Hibbard statement must be interpreted as merely a recognition that most applications of the voluntary payment doctrine occur in the context of overpayment between the parties to the suit, and not as a holding that it can never apply in a case involving a payment to a third party. Therefore, we find that Hibbard does not compel a different result in this case.

       That statute provides that “[p]ayment by a surety or endorser of a debt past due shall entitle him to proceed immediately against his principal for the sum paid, with interest thereon, and all legal costs to which he may have been subjected by the default of his principal.” OCGA § 10-7-41.

       TFC’s “Motion For Frivolous Appeal and Damages for Appeal Taken for Delay Only” is hereby denied.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A14A0647.
    BRADFORD v. THE STATE.
    (760 SE2d 630)
   ANDREWS, Presiding Judge.

Following a bench trial, Toledo Junius Bradford, Jr., was convicted of three counts of armed robbery (OCGA § 16-8-41 (a)), three counts of possession of a knife during the commission of a crime (OCGA § 16-11-106), and one count of misdemeanor obstruction of an officer (OCGA § 16-10-24 (a)). Bradford appeals from the denial of his motion for new trial, as amended, challenging the sufficiency of the evidence and the effectiveness of counsel for failure to demur to the indictment. For the reasons discussed below, we affirm two of Bradford’s convictions for armed robbery and vacate a third.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Punctuation and footnotes omitted.) Camero v. State, 257 Ga. App. 109, 111 (1) (570 SE2d 405) (2002).

So viewed, the evidence shows that in the early morning of July 24, 2008, Bradford and his longtime friend, co-defendant Lemar Davey, pushed their way into a Warner Robins gift shop demanding money. Shop employee Elsa Laffitte and two video poker customers, Maria Rehig and Siatragul Jriyporn, were present. As they entered the shop dressed in black and masked, Bradford and Davey knocked Jriyporn to the floor, told Laffitte to give them a trash bag, and, while Bradford held a meat cleaver, ordered her to empty the contents of the cash register into the trash bag. This accomplished, Davey attempted to break into a video poker machine, but got only the $50 in cash which Rehig had at the machine she was playing. While Davey did so, he ordered Laffitte and Rehig to join Jriyporn on the floor. Bradford guarded the door he and Davey had entered and held the meat cleaver over the fearful women. All told, Bradford and Davey took “$834.41 in cash and a $200.00 check.”

Unable to get into the video machine, Davey, who testified incident to his plea of guilty, moved the women into the bathroom out of concern for their safety given the meat cleaver which Bradford held. After having Bradford put the meat cleaver down, Davey had the women come out, and ordered Rehig and Jriyporn onto the floor once more. Permitted to sit in a chair opposite the bathroom door because she complained of a back problem, Laffitte observed a friend slip into the shop unobserved. Suspicious that the store was being robbed on seeing Laffitte’s situation, the friend called police. The responding officer arrived shortly thereafter. Bradford and Davey were arrested as they fled the scene.

1. Bradford contends that the evidence is insufficient to support his conviction of armed robbery on Counts 1, 2, and 3 of the indictment because there was no evidence that the meat cleaver was used as an offensive weapon. With respect to Count 3 of the indictment, Bradford also argues that the State’s failure to prove that “any cash or other property was taken from the person or immediate presence of alleged victim Jriyporn” constitutes a further basis for reversing his conviction as to her.

Armed robbery occurs “when, with intent to commit theft, [a person] takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). The “statute clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person.” (Punctuation and footnote omitted.) Jackson v. State, 309 Ga. App. 24, 27-28 (1) (a) (709 SE2d 44) (2011). Likewise, the statute requires, among other elements, that the accused “take property of another from the person or the immediate presence of another.” (Punctuation omitted.) Gutierrez v. State, 290 Ga. 643, 644 (723 SE2d 658) (2012). See also Smith v. State, 244 Ga. App. 165, 168 (4) (534 SE2d 903) (2000); State v. Watson, 239 Ga. App. 482, 484 (2) (520 SE2d 911) (1999); Mathis v. State, 238 Ga. App. 218, 219 (2) (517 SE2d 578) (1999) (“For property to be taken from the presence of the victim, it need not have been in actual contact with the body so long as it was under the victim’s personal protection.”), overruled on other grounds, Wilson v. State, 277 Ga. 195 (586 SE2d 669) (2003).

(a) Counts 1 and 2.

In this case, the evidence revealed that Bradford entered the gift shop wielding a meat cleaver. Evidence also indicated that Bradford held the cleaver over his head. The perpetrators then made repeated demands for money and moved the three victims across the gift shop, all while Bradford either handled the cleaver or had it readily accessible. Indeed, the concern of harm from the cleaver was apparently great enough that Bradford’s confederate urged him to put the cleaver away. As a result of these actions, money was taken from Laffitte and Rehig’s immediate presence. See OCGA § 16-8-41 (a).

Plainly, Bradford and Davey stole the money at issue from the immediate presence of Laffitte and Rehig. See OCGA § 16-8-41 (a). Laffitte and Rehig were present inside the gift shop and held in fear of Bradford’s meat cleaver, whether in hand or readily accessible, when the money was taken from the cash register and the video poker machine. Even had the money been taken during the time the women were forced into the bathroom,

it has long been recognized that when perpetrators forcibly cause the victim to be away from the immediate presence of the property at the time it is stolen, the offense of armed robbery can still be committed. Thus, the immediate presence element of the offense of armed robbery has been held to extend fairly far, and robbery convictions are upheld even out of the physical presence of the victim.

(Citation and punctuation omitted.) Jennings v. State, 292 Ga. App. 149, 152 (1) (a) (664 SE2d 248) (2008). Accordingly, we conclude that any rational trier of fact could have found the essential elements of armed robbery, as charged in Counts 1 and 2 of the indictment, beyond a reasonable doubt. Camero, supra, 257 Ga. App. at 111 (1).

(b) Count 3.

Bradford’s conviction on Count 3 of the indictment (charging that Bradford “did with intent to commit theft, take cash, the property of another, from the person or immediate presence of Siatragul Jriyporn”) is a much closer question. Like Laffitte and Rehig, Jriyporn was present when Bradford and Davey stole the money from the immediate presence of the three victims. Jriyporn was also subjected to the fear of Bradford’s meat cleaver when the money was taken in her immediate presence. What is lacking from the record is any evidence of a taking of property belonging to Jriyporn or over which she exercised some level of control; rather, the State relies upon evidence that Jriyporn was simply in the vicinity when property belonging to others was taken. As discussed below, such a showing is insufficient, as armed robbery requires a taking of “property of another” from the person or the immediate presence of another. See OCGA § 16-8-41 (a). See also Gutierrez, supra, 290 Ga. at 644; Smith, supra, 244 Ga. App. at 168 (4); Watson, supra, 239 Ga. App. at 484 (2); Mathis, supra, 238 Ga. App. at 219 (2) (“For property to be taken from the presence of the victim, it need not have been in actual contact with the body so long as it was under the victim’s personal protection.”) (emphasis supplied).

At first glance, the State’s argument finds some level of support. See Avila v. State, 322 Ga. App. 225, 227 (744 SE2d 405) (2013); Ward v. State, 304 Ga. App. 517, 522 (1) (a) (696 SE2d 471) (2010); Harp v. State, 302 Ga. App. 17, 18 (690 SE2d 424) (2010). In Harp, the defendant and another person approached two victims outside the victims’ home and demanded money. Both victims denied having any money. Id. at 17. The male victim then gave the female victim (his girlfriend) several papers from his shirt pocket and asked her to “show them I don’t have no money.” Id. The papers included a $20 bill, which the female victim gave to the defendant. Id. The defendant was charged with, and ultimately convicted of, two counts of armed robbery. Id. On appeal, the defendant argued that there was insufficient evidence to convict him of two counts of armed robbery. This Court affirmed, first finding that there was sufficient evidence to convict for the armed robbery of the female victim. Id. at 18. Of note, however, this Court also found “[the male victim] was a victim of armed robbery because the $20 bill was taken from his immediate presence at gunpoint.” Id. Our holding recognized the principle that “if property is taken from the immediate presence or the actual or constructive possession of more than one victim, ‘the defendant may be charged with the robbery of each victim.’ ” (Emphasis supplied). Id. In addition, we noted “immediate presence” is to be construed broadly. Id.

In Ward, armed assailants demanded money from “men talking inside” and there was evidence that the defendant “pointed [a] gun ‘at the men.’ ” 304 Ga. App. at 518. Evidence also demonstrated that items were taken from “the men or ‘them’ ” and that each victim had personal property stolen from him. Id. at 522. Similarly, in Avila, this Court noted that property had been stolen from several victims; the defendant argued that there had been no evidence that jewelry taken from the premises belonged to a particular victim. 322 Ga. App. at 227. However, we noted that the victim in question had been locked in a bathroom while the assailants ransacked the residence and stole various items, including jewelry, that was later returned to the victim. Id. at 226, 227.

Adose reading of Harp and related authorities reveals that they are distinguishable from this case and that, as a result, Bradford’s conviction on Count 3 cannot stand. First, unlike Jriyporn, the male victim in Harp exercised some possessory interest in the property that was taken. Likewise, the robbery in Harp occurred in front of the victims’ residence, as opposed to a store or other remote location. See, e.g., Avila, supra, 322 Ga. App. at 227 (armed robbery conviction affirmed where assailants ransacked apartment, including victim’s room, and stole jewelry while victim was forcibly detained elsewhere); Ward, supra, 304 Ga. App. at 522 (1) (a) (evidence sufficient for armed robbery convictions where assailants took various property from different occupants); Ham v. State, 303 Ga. App. 232, 237 (1) (b) (692 SE2d 828) (2010) (evidence sufficient for armed robbery convictions of two victims in apartment, where evidence showed joint possession of property taken, regardless of ownership of property).

Moreover, the binding sinew between Harp, Ward, and Avila is some possessory interest in the property stolen — an element which is lacking in this instance. Here, Jriyporn had no control over the cash register or the money Rehig used to play the video poker machine. To that end, affirming Bradford’s conviction on Count 3 would ignore the principle that “[rjobbery is a crime against possession, and is not affected by concepts of ownership.” (Citation and punctuation omitted; emphasis supplied.) Harp, supra, 302 Ga. App. at 18. Also distinguishable are those cases in which multiple employees of a business were robbed, as the employees each had access to, or constructive possession of, the property that was taken. See Green v. State, 265 Ga. App. 126, 128-129 (2) (592 SE2d 901) (2004); Kelly v. State, 234 Ga. App. 893, 894 (2) (508 SE2d 228) (1998).

Our conclusion is buttressed by other authorities in which, for whatever reason, defendants were convicted of single counts of armed robbery where multiple prospective victims were present. See, e.g., Thompson v. State, 320 Ga. App. 150 (739 SE2d 434) (2013) (single conviction for armed robbery of apartment although multiple victims present); Taylor v. State, 318 Ga. App. 115 (1) (733 SE2d 415) (2012) (armed robbery of store with one employee and three patrons present); Jones v. State, 302 Ga. App. 147, 149, 150 (1) (b) (690 SE2d 460) (2010) (single conviction for armed robbery of restaurant although multiple employees present). Likewise, we are confident that the General Assembly, had it wished to include within the definition of armed robbery instances of the taking of property from the possession of one victim in the presence of a second purported victim who exercised no possessory interest, could have done so. Compare, e.g., OCGA § 16-8-41 (a) with Ala. Code Ann. § 13A-8-43 (a) (2) (“Aperson commits the crime of robbery in the third degree if in the course of committing a theft he: . . . [threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”) (Emphasis supplied). See also Ala. Code Ann. § 13A-8-41.

In conclusion, inasmuch as the record contains no evidence of a taking of property either in Jriyporn’s possession or under Jriyporn’s personal protection, we conclude that Bradford’s conviction for the armed robbery of Jriyporn must be vacated. However, the evidence may support Bradford’s conviction for other offenses. See OCGA §§ 16-4-1, 16-8-41 (a); Watson, supra, 239 Ga. App. at 484 (2). Accordingly, the trial court’s judgment on Count 3 is vacated and, because Bradford’s convictions were imposed following a bench trial, the trial court is directed to consider any lesser included offenses of Count 3 which maybe warranted by the evidence. See OCGA § 16-4-3; Barr v. State, 302 Ga. App. 60, 64 (3) (b) (690 SE2d 643) (2010); Joyner v. State, 267 Ga. App. 309, 311 (2) (599 SE2d 286) (2004) (“In a bench trial, the trial judge sits as the factfinder and must consider a lesser included offense if there is some evidence, no matter how slight, that shows that the defendant committed a lesser offense.” (citation and punctuation omitted)).

2. Bradford also contends that trial counsel rendered ineffective assistance by failing to demur to the armed robbery counts of the indictment, these as alleging the commission of armed robbery by “use of a knife” without “indicat [ing] that the knife was an offensive weapon or that any offensive weapon was involved.” This claim of error is without merit.

In order to support a claim of ineffective assistance, the burden is on the defendant to establish that

(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) [that] there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Punctuation and footnote omitted.) Grimes v. State, 291 Ga. App. 585, 589 (2) (662 SE2d 346) (2008). Pretermitting the question of whether the knife at issue was used offensively, see Hambrick v. State, 174 Ga. App. 444, 445 (1) (330 SE2d 383) (1985) (“Whether or not the [knife] in question constituted a[n] .. . offensive weapon was properly for the [trial judge’s] determination [as the trier of fact].” (punctuation omitted)), no deficient performance of counsel obtains in this case upon counsel’s failure to file a general demurrer to the armed robbery counts of the indictment.

Decided June 18, 2014.

Russell K. Walker, for appellant.

George H. Hartwig III, District Attorney, Daryl E. Manns, Assistant District Attorney, for appellee.

In determining the sufficiency of an indictment to withstand a general demurrer, the following test is applied: If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good. An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer.

(Citation and footnote omitted.) Jackson v. State, 316 Ga. App. 588, 592 (2) (730 SE2d 69) (2012).

The facts set out in the indictment, alleging that Bradford committed armed robbery by taking the property of another from the immediate presence of the victims by using a knife, cannot be admitted and Bradford still found innocent of the offense of armed robbery as charged. Consequently, the indictment was sufficient to put Bradford on notice of the charges against him. Because the armed robbery counts of the indictment were sufficient to survive a general demurrer, counsel’s failure to file a general demurrer thereto cannot be deemed deficient performance. The failure to file a meritless motion does not constitute deficient performance. Cobb v. State, 309 Ga. App. 70, 78 (4) (c) (709 SE2d 9) (2011).

Judgment affirmed in part and vacated in part with direction.

McFadden and Ray, JJ., concur.

       Our holding in this regard is not inconsistent with certain language in Ward in view of our analysis above and the partial quoting of the armed robbery statute in Ward. See Ward, supra, 304 Ga. App. at 522 (“Thus, it does not matter exactly whose property was taken so long as it was taken from a ‘person or the immediate presence of another.’ ”).


author: Ray, Judge.

text:
    A14A0123.
    O’ROURKE v. THE STATE.
    (760 SE2d 636)
   Ray, Judge.

Following a jury trial, Shawn Patrick O’Rourke was convicted of two counts of child molestation (OCGA § 16-6-4 (a) (l)). He appeals from his convictions and the denial of his motion for new trial, contending that the trial court erred (i) in denying his special demurrer as to one of the child molestation counts, and (ii) in admitting certain evidence at trial. O’Rourke also challenges the sufficiency of the evidence. For the following reasons, we affirm.

Viewed in the light most favorable to the verdict, the evidence showed that O’Rourke was the live-in boyfriend of the victim’s mother. On the morning of June 25, 2010, O’Rourke went into the bedroom of the nine-year-old victim, D. C., while she was still sleeping. At trial, D. C. testified that O’Rourke woke her up, told her to remove her shorts, positioned her on the bed, and “put his private in [her] butt.” D. C.’s testimony was corroborated by her brother, who testified that, while walking down the hallway toward the bathroom, he looked through a hole in D. C.’s bedroom door and observed O’Rourke standing at the edge of the bed and D. C. on top of the bed, bent over on her knees with her naked buttocks in front of O’Rourke. The brother further testified that he heard O’Rourke unzip his pants, that both O’Rourke and D. C. were “kind of moving,” that O’Rourke was moving his body “back and forth,” and that D. C. was saying “no” and crying. Based on his observations, the brother testified that he believed O’Rourke was raping D. C.

D. C.’s brother then contacted their mother at work and told her what he had seen. Shortly after arriving at the house, the mother took D. C. to the hospital to be examined. While at the hospital, D. C. was briefly interviewed by Detective Frank Chisholm of the SavannahChatham Metropolitan Police Department. D. C. told Detective Chisholm that O’Rourke had come into her bedroom that morning to administer some medication and that he made her “get on all fours like a dog.” D. C. stated that she heard a “rubber pop” before he put his private part in her butt and that he stopped when they heard a noise at her bedroom door. The results of the subsequent sexual assault examination indicated that there were no visible signs of trauma in or around D. C.’s genital area.

Detective Chisholm also briefly interviewed D. C.’s brother while at the hospital. The brother stated that, when he heard a muffled “no, no, no” coming from D. C.’s bedroom, he peeked through a hole in her bedroom door and saw D. C. on all fours with her face in her pillow and O’Rourke standing behind her. The brother stated that he then heard the sound of a zipper.

Based on the children’s statements, Detective Chisholm obtained a search warrant for D. C.’s residence. While executing the search warrant, the police took various photographs of the residence and removed bed sheets and items of clothing from D. C.’s bedroom for forensic analysis. Seminal fluid containing sperm was found on one of the bed sheets and subsequent testing showed that it contained DNA that matched that of O’Rourke.

Detective Chisholm again interviewed D. C. at an advocacy center. During this interview, D. C. stated that O’Rourke began molesting her by touching her buttocks sometime in early December 2009, although she could not recall the specific date. She also gave a consistent account of the molestation that occurred on June 25, 2010. At trial, D. C. testified that O’Rourke had “put his private in [her] butt” on at least five other occasions before June 25, 2010, but she could not provide any specific dates.

In an interview with the police, O’Rourke denied molesting D. C., but he admitted that on previous occasions he had applied medicine to her legs and buttocks to treat pimples or “sweat bumps.” With regard to the incident that occurred on June 25, 2010, O’Rourke stated that he was putting medicine on D. C. at the time that her brother was looking through the hole in the bedroom door, and that “it must not have looked right from where he was looking, . . . what he saw did not register in his head right.”

After the interview, O’Rourke went to visit his friend, William Murphy. O’Rourke told Murphy that he had just been interviewed by the police regarding the accusations of molestation. At trial, Murphy testified that O’Rourke told him that he had masturbated behind D. C. while he was putting medicine on her and that he was pretty sure that the police were going to find his DNA. Murphy also testified that O’Rourke admitted that he had used the excuse of putting the medicine on D. C. in order to see her naked and to engage in sexual activity.

O’Rourke was subsequently charged with two counts of child molestation and one count of aggravated child molestation. After a jury trial, O’Rourke was convicted on the child molestation counts, and this appeal ensued.

1. O’Rourke contends that the evidence was insufficient to sustain the verdict. We disagree.

When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense [s] beyond a reasonable doubt.

(Citations omitted.) Craft v. State, 324 Ga. App. 7, 7-8 (749 SE2d 16) (2013).

OCGA § 16-6-4 (a) (1) provides that “[a] person commits the offense of child molestation when [he] . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of... the person.”

Count 1 of the indictment charged O’Rourke with child molestation for removing D. C.’s pants and underwear on June 25, 2010, with the intent to arouse and satisfy his sexual desires. Based on D. C.’s testimony that O’Rourke told her to remove her underwear and then placed his “private in [her] butt,” the corroboration testimony of D. C.’s brother, Murphy’s testimony that O’Rourke had admitted to masturbating behind D. C.’s naked body, and the fact that seminal fluid and sperm matching O’Rourke’s DNA profile were found on D. C.’s bedsheet, we find that the evidence is sufficient for the jury to have found beyond a reasonable doubt that O’Rourke committed the offense of child molestation as alleged in Count 1.

Count 2 of the indictment charged O’Rourke with child molestation for touching D. C. on the buttocks during the period between December 1, 2009, and June 25, 2010, with the intent to arouse and satisfy his sexual desires. D. C. testified that, in addition to the sexual abuse that occurred on June 25, 2010, O’Rourke had “put his private in [her] butt” on several previous occasions. Although D. C. was unable to specify the dates upon which these acts occurred, D. C. stated during her forensic interview that O’Rourke began molesting her in December 2009.

O’Rourke argues that the evidence was insufficient to support his conviction on Count 2 because D. C.’s trial testimony concerning the sexual abuse that occurred before June 25, 2010, all involved acts of anal sodomy and the jury found him not guilty of the aggravated child molestation that was alleged to have occurred on June 25, 2010 (Count 3 of the indictment). We find this argument to be unpersuasive.

The fact that O’Rourke was found not guilty of anally penetrating D. C. on June 25, 2010, has no bearing on the sufficiency of the evidence supporting the guilty verdict on the separate offense of child molestation charged in Count 2. See generally Wyley v. State, 259 Ga. App. 348, 348 (1) (577 SE2d 32) (2003) (“the jury’s not guilty verdicts on some offenses have no bearing whatsoever on the sufficiency of the evidence supporting the guilty verdicts on other [separate] offenses”). O’Rourke’s argument in this regard relates more to the credibility of D. C. and, thus, is an attempt to challenge the discrepancy between the jury’s decision to reject her testimony regarding the act of aggravated child molestation that occurred on June 25, 2010, and to accept her testimony that she had been previously molested by O’Rourke. However, “[i]t is the jury’s prerogative to choose what evidence to believe and what to reject.” Trammell v. State, 253 Ga. App. 725, 726 (1) (560 SE2d 312) (2002).

O’Rourke also argues that the only evidence that he previously touched D. C. inappropriately on the buttocks came from D. C.’s statement during her forensic interview that O’Rourke had “smacked her on the butt” sometime in December 2009. This argument is belied by the record.

In addition to D. C.’s trial testimony that O’Rourke had put his penis in her butt on several previous occasions, O’Rourke admitted in his statement to police that he had previously touched D. C.’s buttocks to apply medication to her bumps, and he later admitted to his friend, Murphy, that he had used the excuse of putting medicine on D. C. to arouse his sexual desires or to engage in sexual activity. Whether O’Rourke touched D. C.’s buttocks in this manner with his hands and fingers or with his penis as testified to by D. C., we find that, under either scenario, such evidence is sufficient for the jury to have found beyond a reasonable doubt that O’Rourke committed the offense of child molestation as alleged in Count 2.

2. O’Rourke contends that the trial court erred in overruling his special demurrer as to Count 2 of the indictment because the State presented no evidence showing that it could not more specifically identify the date of the offense. We find no reversible error.

Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates.

(Punctuation and footnotes omitted.) State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005). However, the exception to the specific-date requirement is not applicable where the State fails to present evidence to the trial court to show that the State is unable to identify the specific date on which the offense occurred, as, for example, when the victim is a child who is incapable of adequately articulating exactly when the offense occurred. Blackmon v. State, 272 Ga. App. 854, 854-855 (614 SE2d 118) (2005).

In Count 2 of the indictment, the State alleged that O’Rourke molested D. C. “between December 1, 2009, and June 25, 2010,” by touching her on the buttocks with the intent to arouse and satisfy his sexual desires. To show that it was unable to identify specific dates, or to narrow the range of dates, the State relied on its response brief to the special demurrer. In its brief, the State argued that the date range in Count 2 of the indictment was based on the recorded statement of D. C., which had been previously provided to O’Rourke, in which she stated that the molestation began in December 2009 and ended on July 25,2010. Her statement also indicates that, other than the last incident, she was unable to provide any specific dates for the acts of molestation that occurred within that date range.

Citing Mosby v. State, 319 Ga. App. 642 (738 SE2d 98) (2013), O’Rourke argues that the State was required to present evidence to show that it was unable either to identify a specific date on which an offense occurred or to narrow the range of possible dates, and that the State could not meet this burden by merely relying upon the argument in its brief. Id. at 643-644 (1). O’Rourke’s reliance on Mosby is misplaced.

In Mosby, the defendant pointed out to the trial court that he was entitled to an evidentiary hearing on his special demurrer and called upon the State to present evidence to show that it was unable to narrow the date range in the indictment. The State chose not to present any evidence, and it relied only on its argument that child victims, in general, often cannot provide the precise date of an offense, and that children sometimes cannot remember exact dates. Id. at 644 (1). Based on those facts, we found that the trial court erred in overruling the defendant’s special demurrer.

Here, however, the record indicates that O’Rourke agreed to have the trial court rule on his special demurrer based on the parties’ respective briefs, without the necessity of an evidentiary hearing. “A party cannot participate and acquiesce in a trial court’s procedure and then complain of it.” (Citation omitted.) Davis v. Phoebe Putney Health Systems, 280 Ga. App. 505, 506 (1) (634 SE2d 452) (2006); Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005) (“We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection, even of a constitutional magnitude, which were not raised and determined in the trial court”) (footnote omitted). Furthermore, unlike in Mosby, the State’s argument concerning its inability to specify an exact date for the offense or to narrow the date range was based on specific evidence that both parties had in their possession, albeit not tendered to the trial court, that clearly showed that D. C. was unable to specify any exact dates within the date range that she provided for the offense alleged in Count 2 of the indictment.

To the extent that the State nevertheless was required to introduce such evidence at a hearing, its failure to do so in this case does not warrant reversal. In a post-conviction appeal of a trial court’s pre-trial ruling denying a special demurrer, we apply a “harmless error” standard of review. Howard v. State, 281 Ga. App. 797, 799 (1) (637 SE2d 448) (2006). Accord Blackmon, supra at 855. There is nothing in the record to indicate that the State could have narrowed the dates in Count 2 any further. Having reviewed all of the evidence, we conclude that O’Rourke was not surprised or otherwise prejudiced by any alleged deficiency in Count 2 of the indictment.

3. O’Rourke contends that the trial court erred in admitting State’s Exhibit 9, the bed sheets upon which the DNA evidence was found, over his chain of custody objection. We disagree.

Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not negate every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence.

(Footnote omitted.) Mickens v. State, 318 Ga. App. 601, 602 (1) (734 SE2d 438) (2012).

At trial, Corporal Dennis Malott testified that, after collecting two sets of bed sheets from D. C.’s residence, he placed each set of bed sheets into a separate evidence bag, and stapled and signed each bag before placing the two bags into a larger bag that was marked and sealed. He testified that he placed the sealed bag into the police department property room, where it remained until it was sent to the GBI crime lab for forensic analysis.

Decided June 19, 2014.

Ryan S. Raines, for appellant.

Meg E. Heap, District Attorney, Emily T. Puhala, Assistant District Attorney, for appellee.

Robert Busam, a forensic biologist with the GBI crime lab, testified that he received the sealed bag containing the two bags of bed sheets and that it did not appear to have been opened prior to his receiving it. Busam further testified that the evidence bags that were inside the larger bag “did not appear to be opened or tampered with.”

Corporal Malott identified the bed sheets in State’s Exhibit 9 as the same sheets he recovered from D. C.’s bedroom. He acknowledged that the evidence bag containing these sheets had been opened and resealed twice before trial, first by the GBI crime lab for testing and then later by Malott, himself, to review the evidence with the prosecutor just prior to trial. He further testified that the staples that he had originally used to close the evidence bag were still intact and had not been removed.

O’Rourke argues that, because the evidence bag containing the bed sheets at issue was stapled rather than sealed, the State cannot show with reasonable certainty that the evidence has not been tampered with. However, “[w]hen there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.” (Footnote omitted.) Mickens, supra.

Here, the testimony offered at trial confirmed that the bed sheets had been packaged separately, that each bag had been securely stapled shut and placed in a larger bag that was properly identified and sealed, that the larger bag remained sealed until it arrived at the GBI, and that the evidence bag at issue had been properly handled thereafter. There was no evidence of tampering or contamination. In light of the record before us, we discern no error in admitting State’s Exhibit 9.

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       O’Rourke was found not guilty of aggravated child molestation (OCGA § 16-6-4 (c)).

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The videotape of this interview was played for the jury, but its contents were not transcribed. However, we have reviewed the video in its entirety for the purposes of this appeal.

       The videotape of this interview was played for the jury and was transcribed.


text:
    A14A0180.
    BULLOCK v. STATE OF GEORGIA.
    (760 SE2d 672)
   ANDREWS, Presiding Judge.

The State of Georgia initiated in rem forfeiture proceedings against personal property owned by Keenan Bullock and filed a complaint for forfeiture pursuant to OCGA § 16-13-49 (o). Bullock appeals from the trial court’s denial of his motion to dismiss the complaint on the basis that the State failed to hold a hearing within 60 days after service of the complaint as required by OCGA § 16-13-49 (o) (5). For the following reasons, we reverse.

Bullock was personally served with the complaint on February 5, 2013, and it is undisputed that he filed a timely answer. Under OCGA § 16-13-49 (o) (5), “[i]f an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause. . . .” “[I]t is the duty of the state to obtain a continuance if it does not invoke a hearing within the 60-day period.” State v. Henderson, 263 Ga. 508, 511, n. 7 (436 SE2d 209) (1993). “[A] respondent may seek a continuance of a hearing... [and] [o]f course, the trial court may continue the hearing on its own, for good cause, without a motion by either party.” Id.

The record shows that the hearing was initially scheduled for March 28, 2013, within the 60-day period after service of the complaint. With no objection from Bullock, the State obtained a continuance from the initial hearing date because of a serious illness in the prosecutor’s immediate family. Bullock does not contest that this continuance was granted to the State by the trial court for good cause. After a good cause continuance was granted from the initial March 28 date, “the outermost limits of a continuance would be another 60-day period [running from March 28] before either the matter is heard or another continuance is granted.” McDowell v. State of Ga., 290 Ga. App. 538, 540 (660 SE2d 24) (2008) (citation and punctuation omitted). The hearing was rescheduled for April 18, 2013 (within 60 days after the March 28 continuance) but with the trial court’s understanding that Bullock’s counsel might have a conflict that would necessitate a request for a continuance from that date, and that counsel would inform the trial court in advance if the conflict arose. No conflict arose, Bullock did not inform the trial court of any conflict, and the State and Bullock were prepared to appear for a timely hearing on April 18. No hearing occurred on April 18, however, because the trial court (by admitted administrative error) erroneously thought that Bullock’s counsel had a conflict, and the court continued the hearing on its own without a motion by either party. The State subsequently obtained another hearing date on June 14, 2013 (within 60 days after the April 18 continuance) on the theory that the trial court’s April 18 continuance was for good cause, and therefore a timely hearing could be held during the 60-day period after April 18. Because the trial court was occupied with a jury trial on June 14, the court continued the hearing from that date (acting again on its own without a motion by either party) and rescheduled the hearing for June 21, 2013.

Decided June 19, 2014.

Stephen T. Maples, for appellant.

Robert D. James, Jr., District Attorney, Kenneth L. Hutcherson, Assistant District Attorney, for appellee.

On the June 21, 2013 hearing date, the trial court heard and denied Bullock’s motion for dismissal of the forfeiture complaint for failure to comply with the hearing requirements of OCGA § 16-13-49 (o) (5). We find that the trial court erred by denying the motion. On these facts, the trial court’s own continuance of the hearing from April 18 was not for good cause. In fact, the trial court conceded in its order denying Bullock’s motion that it continued the hearing from April 18 by administrative error. It follows that the last good cause continuance was obtained by the State from the March 28,2013 hearing date, and that, under OCGA § 16-13-49 (o) (5), the State had a duty to invoke a hearing within the 60-day period after March 28, or rely upon another good cause continuance granted within that 60-day period. A failure to comply with the mandatory requirement for a hearing within the 60-day period set forth in OCGA § 16-13-49 (o) (5) requires dismissal of the forfeiture complaint. Goodwin v. State of Ga., 321 Ga. App. 548, 549 (739 SE2d 814) (2013); Rice v. State of Ga., 246 Ga. App. 414, 416 (541 SE2d 58) (2000). Because there was no hearing or good cause continuance within 60 days after the March 28 good cause continuance, the trial court erred by denying Bullock’s motion to dismiss the forfeiture complaint.

Judgment reversed.

McFadden and Ray, JJ., concur.

       The complaint alleged that the property seized by the State — marijuana; United States currency; an automobile; a digital scale; a money counter; and a digital video recorder •— was used to facilitate violation of the Georgia Controlled Substances Act. Bullock claims ownership of the currency, the automobile, and the recorder.


author: Andrews, Presiding Judge.

text:
    A14A0196.
    FED v. BUTLER et al.
    (760 SE2d 642)
   Andrews, Presiding Judge.

We granted Eric S. Fed’s application for discretionary appeal to review an order by the Superior Court of Fulton County dismissing Fed’s petition for judicial review of an administrative decision by the Georgia Department of Labor. Because the superior court incorrectly dismissed Fed’s petition for lack of jurisdiction, we vacate the superior court’s order of dismissal and remand for further proceedings.

Fed was employed by ADP Total Source and was subcontracted to Salvadorini Consulting, Inc. In that capacity, Fed began working as an MRI technologist assistant at the Carl Vinson Veterans Affairs Medical Center in Laurens County on October 1, 2012. On October 29, 2012, Fed and his immediate supervisor, Lisa Gillet, became involved in a verbal exchange which resulted in business owner David Salvadorini placing Fed on paid administrative leave. On October 31, 2012, Salvadorini terminated Fed’s employment. Fed filed a claim for unemployment benefits, which were awarded. ADP, as Fed’s employer, appealed to the judicial review board of the Department of Labor, which ruled in favor of ADP and terminated Fed’s unemployment benefits. Fed appealed to the superior court pursuant to OCGA § 34-8-223 (b), and the superior court dismissed Fed’s appeal for lack of jurisdiction because it concluded that Fed “was last employed in Laurens County, Georgia” and that Fulton County “is therefore not the proper court for the appeal.”

1. Fed argues that the superior court improperly dismissed his petition for lack of jurisdiction because it concluded Fed was last employed in Laurens County rather than Fulton County. We agree.

OCGA § 34-8-223 (b) provides that, within 15 days of a decision by the Department’s board of review, an aggrieved party may seek judicial review “by filing a petition against the Commissioner in the superior court of the county where the employee was last employed.” In this case, evidence revealed that Fed was a contractual employee of ADP Total Source and had been subcontracted to Salvadorini Consulting. Because the actual employment contract was with ADP, which maintains a principal place of business in Fulton County, venue for Fed’s petition for judicial review lay properly in Fulton County. Accordingly, Fed properly filed his petition in the Superior Court of Fulton County.

We note that the record includes a motion for reconsideration by Fed filed after the term of court at which the superior court entered its original order. In addition, the record includes the superior court’s order on Fed’s motion in which it purports to reinstate, and rule upon the merits of, Fed’s petition for judicial review. However, the superior court’s second order is a nullity.

It is well settled that

[although a trial judge has inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate such judgment, this authority does not extend beyond the same term of court, unless a motion to modify or vacate, et cetera, was filed within the same term of court.

(Citations and punctuation omitted.) Levin Co. v. Walker, 289 Ga. App. 299, 300 (656 SE2d 588) (2008). In the same regard,

[a] motion for reconsideration filed within the term of court that a judgment is entered extends the authority of a trial judge to modify its judgment after the term expires; however, such a motion filed after the term in which it was entered, as here, does not, and such authority is then lost.

(Citations and punctuation omitted.) Miranda v. Stewart, 312 Ga. App. 290, 292 (718 SE2d 123) (2011).

In this case, Fed’s motion for reconsideration, and the superior court’s order concerning Fed’s motion, was untimely. The Superior Court of Fulton County has six terms of court that commence the first Monday in January, March, May, July, September, and November. See OCGA § 15-6-3 (3). The superior court entered its order dismissing Fed’s petition during the May 2013 term of court; however, Fed’s motion for reconsideration was not filed until the first day of the July 2013 term of court. It necessarily follows that the superior court’s order on Fed’s untimely motion for reconsideration is a nullity. See Walker, supra, 289 Ga. App. at 300.

Accordingly, the superior court’s order dismissing Fed’s petition for judicial review for lack of jurisdiction is vacated. On remand, the superior court is reminded of its companion duties pursuant to OCGA §§ 34-8-223 (b) and 50-13-19 (g), (h). See, e.g., Barron v. Poythress, 219 Ga. App. 775, 776 (466 SE2d 665) (1996).

Decided June 19, 2014.

Amanda K. Smith, Phyllis J. Holmen, Lisa J. Krisher, Cole Thaler, for appellant.

Samuel S. Olens, Attorney General, for appellees.

2. Because we vacate the superior court’s order on the issue of jurisdiction, we need not address Fed’s remaining claim of error.

Judgment vacated and case remanded.

McFadden and Ray, JJ., concur.

       We note that the appellee, despite our April 4,2014 order to the contrary, has not filed an appellee’s brief as required by our Rule 23 (b) (“Appellee’s brief shall be filed within 40 days after the appeal is docketed or 20 days after the filing of appellant’s brief, whichever is later. Failure to timely file . . . may subject counsel to contempt.”) (emphasis supplied).

       We conclude that this provision of law, rather than OCGA § 50-13-19 (b), governs our inquiry. OCGA § 50-13-19, which as part of the Georgia Administrative Procedure Act applies to the judicial review of administrative decisions by the Department of Labor, see OCGA §50-13-2 (1), provides that a petition for judicial review “may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner” within 30 days of the agency’s decision. However, a specific statute applicable to a particular agency may provide for additional procedures. See generally Hollis v. Tanner, 177 Ga. App. 759, 761 (1) (341 SE2d 290) (1986).

       “The court, upon request, shall hear oral argument and receive written briefs.” OCGA § 50-13-19 (g).


author: Miller, Judge.

text:
    A14A0209.
    BUFFA v. YELLOWBOOK SALES AND DISTRIBUTING COMPANY, INC.
    (760 SE2d 644)
   Miller, Judge.

Yellowbook Sales and Distributing Company, Inc. (‘Yellow-book”), filed suit against Arctic Polar Heating and Air, LLC (“Arctic Polar”), and John Buffa to recover amounts owed on four different advertising contracts. Following a bench trial, the trial court found in favor of Yellowbook and awarded damages, attorney fees, and interest. Buffa appeals,* *contending that he was not personally obligated under the relevant contracts because he signed them in his representative capacity. For the reasons that follow, we affirm.

On appeal from the entry of judgment in a bench trial, we view the evidence in the light most favorable to the trial court’s verdict and affirm the trial court’s findings if there is any evidence to support them. Cox Interior v. Bayland Properties, 293 Ga. App. 612, 613 (1) (667 SE2d 452) (2008).

So viewed, the evidence shows that Buffa formed Arctic Polar in January 2005 and its principal place of business is located at 735 Hembree Place in Roswell, Georgia. Between April 2005 and April 2006, Buffa executed four different contracts in his individual capacity and on behalf of Arctic Polar for print and Internet advertising with Yellowbook. Three of the contracts were for advertising in the Atlanta metro region or surrounding areas, while the fourth contract was for advertising in Florida. The contracts were billed at a monthly rate.

The signature block for the four contracts read as follows:

THIS IS AN ADVERTISING CONTRACT BETWEEN YELLOW BOOK AND
_and
Print Company Name
X_
Authorized Signature Individually and for the Company (Read Clause I5Fonreverseside) Title
Print Signer’s Name SS#(requiredfornewcontractsornewsigner) Date

Clause 15F of the agreement states, “The signer of this agreement does, by his execution personally and individually undertake and assume the full performance thereof including payments of amounts due thereunder.” Buffa signed in the signature block and printed his name underneath. On two of the contracts, Buffa included his title as president of Arctic Polar next to his signature.

Yellowbook then sent invoices to Arctic Polar for the amounts due. The invoices were mailed to the Roswell address on file and marked to Buffa’s attention. Arctic Polar made some payments, but did not pay the full balance due on the invoices. Yellowbook then filed the instant lawsuit.

According to Yellowbook’s corporate representative, Buffa owed the company a principal amount of $96,153.10. Since the contracts also authorized Yellowbook to charge a 1.5-percent late fee if payment was not received within 30 days, Yellowbook’s representative calculated that Buffa owed an additional $53,364.97 in late fee interest. Following a bench trial, the trial court found in favor of Yellowbook and awarded damages against Buffa in the principal amount of $99,795.10, along with $14,422.97 in attorney fees and $53,364.97 in pre- and post-judgment interest on late fees.

On appeal, Buffa does not challenge the existence of a debt incurred by Arctic Polar for Yellowbook advertising. Rather, Buffa contends that he was not personally obligated under the Yellowbook contracts because he was not a party to the contracts and the contracts did not satisfy the Statute of Frauds to be enforceable as a personal guaranty. We disagree.

Generally, a corporation’s officers and the corporation are entirely separate and distinct entities. Contracts maybe signed by one acting in a representative capacity, or a representative may make himself liable for the debt of the corporation; this Court examines the language of the contract to determine in what capacity the representative is bound.

(Citations and punctuation omitted.) Grot v. Capital One Bank (USA), 317 Ga. App. 786, 794 (6) (732 SE2d 305) (2012). When construing the language of a contract, we follow a three-step process,

first determining if the contract language is clear and unambiguous. When a contract contains no ambiguity, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. If, however, the contract is unclear, we attempt to resolve the ambiguity by applying the rules of contract construction. Where the contract remains ambiguous even after we apply the rules of construction, then the parties’ intent must be determined by the factfinder.

(Punctuation and footnotes omitted.) Global Ship Systems v. Continental Cas. Co., 292 Ga. App. 214, 215-216 (1) (663 SE2d 826) (2008).

Here, an examination of the referenced contract language makes clear that Buffa is a party to the contract and is, therefore, liable to pay debts owed thereunder. The language above and below the signature blocks of the relevant contracts reads as follows: “This is an advertising contract between Yellow Book and [printed company name] and [signature],” beneath of which is included the language, “[authorized [signature individually and for the [c]ompany.” (Emphasis supplied.) The signature block also references Clause 15F, which provides that “[t]he signer of this agreement does, by his execution personally and individually undertake and assume the full performance thereof including payments of amounts due thereunder.” (Emphasis supplied.) Consequently, the plain language of the subject contracts expressly identified Buffa as a party to the contract with a primary responsibility for payment. Notwithstanding Buffa’s contention that he signed two of the contracts as an agent of Arctic Polar, he nevertheless agreed to be individually and jointly liable to pay the debt. See Grot, supra, 317 Ga. App. at 795 (6) (“Even though one is acting in the capacity of agent and for the sole benefit of his principal, he may nevertheless by express undertaking bind himself personally.”) (citation and punctuation omitted). See also Yellowbook Sales and Distribution Co. v. Valle, 84 A3d 1196, 1202-1203 (Conn. 2014) (evaluating advertising contracts similar to those at issue here and concluding that the signer, the president of a corporation, was individually and jointly liable for corporation’s advertising debts). Accordingly, the trial court properly concluded that Buffa was personally obligated to pay Arctic Polar’s advertising debts.

Decided June 19, 2014.

Cohen, Cooper, Estep & Allen, Scott A. Schweber, for appellant.

Steven J. Luper, for appellee.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       The trial court also awarded damages against Arctic Polar totaling approximately $176,401.79. Arctic Polar does not appeal the verdict and judgment entered against it.

       To establish a prima facie case for a complaint on an account, the plaintiff must tender an authenticated invoice, along with testimony that the invoice remains unpaid. Imex Intl. v. Wires Engineering, 261 Ga. App. 329, 331-332 (1) (a) (583 SE2d 117) (2003). Yellowbook presented testimony and authenticated invoices that established the existence of the debt, which Buffa does not challenge.

       Since the language employed in the Yellowbook advertising contracts reflects that Buffa agreed to undertake a primary obligation to perform under the contract, we need not address his arguments regarding the Statute of Frauds. See Schwab U.S.A. v. Perpetual Machine Co., 241 Ga. App. 13, 13-14 (1) (525 SE2d 719) (1999) (“A promise to pay the debt of another which is an original undertaking by which the promisor becomes primarily liable is not within the Statute of Frauds.”).