author: ANDREWS, Presiding Judge.

text:
    A12A2322.
    BRINKLEY v. THE STATE.
    (739 SE2d 703)
   ANDREWS, Presiding Judge.

Jonas A. Brinkley was found guilty by a jury of kidnapping with bodily injury (by rape) against a female victim; rape of the female victim; kidnapping against a male victim; and armed robbery against the male victim. The rape conviction was vacated by operation of law by merger into the conviction for kidnapping with bodily injury. Brinkley was sentenced to the mandatory minimum of life imprisonment (with the possibility of parole) for kidnapping with bodily injury (OCGA § 16-5-40 (d) (4)); 20 years to serve consecutive for kidnapping; and 20 years to serve concurrent for armed robbery. Brinkley appealed his convictions and sentences to the Supreme Court of Georgia claiming his constitutional rights were violated in a variety of ways. Among other claims, Brinkley contended that the life sentence violated the constitutional prohibition against cruel and unusual punishment because he was only 14 years old at the time of the offenses, and that his due process rights were violated because his competency to stand trial was not assessed before he stood trial in the superior court at only 15 years of age. The Supreme Court transferred the appeal to this Court on the basis that the cruel and unusual punishment constitutional claim was not timely raised and was waived, and that, because the other constitutional claims “all involve the application of well-established constitutional law to the particular facts of this case ... jurisdiction over those issues is also properly in the Court of Appeals.” Brinkley v. State, 291 Ga. 195, 195-196, 199-200 (728 SE2d 598) (2012). For the following reasons, we affirm.

1. The evidence was sufficient to support the convictions.

The female victim identified Brinkley as the person who pointed a pistol at her and her boyfriend as they sat on the front porch of her house, forced them to go inside the house, robbed her boyfriend of cash at gunpoint, forced her into another room of the house, forced her to disrobe and lie on the kitchen floor, and then raped her. The victim testified that she was crying and pleading with Brinkley to stop, but he threatened to kill her. She testified:

He was just telling me to f_k him back, that I knowed I liked it. And that he wanted me to make noise to show him that I liked what he was doing. He said, what do you want me to do, f_k you in your ass, suck your titties. And I told him no, I just wanted him to stop.

Evidence also showed that Brinkley had an accomplice during the commission of these offenses, Lakendrick D. Carter, age 19 at the time of the trial, who was co-indicted along with Brinkley. Carter testified for the State and identified Brinkley as the person who held the pistol on both victims and forced them to move about the house, who demanded and took the cash at gunpoint from the male victim, and who raped the female victim. A DNA analysis of semen found on the floor at the scene of the rape and a blood sample taken from Brinkley revealed that the semen came from Brinkley or his identical twin.

Brinkley testified in his defense that the female victim invited him over to her house and that they had consensual sex. Brinkley testified:

So she had started feeling on my penis; right. And so I had told her that I was young and plus she had said age ... don’t matter. . . . [S]o she was like well... we really need to go inside of my room. And I was like, naw, because . . . your boyfriend might have came back. You know what I’m saying, didn’t want to start nothing. She had said ... [s]o we can go inside of the kitchen. So we had done went inside the kitchen and we had sex. And I had done been and came up out of her and she — it was ejaculation. And so when I had seen it on the floor I heard the door knob pop so I had ran out of the back door and somehow she had convinced the boyfriend that, you know, that I had raped her and robbed her and kidnapped her. And so, you know what I’m saying, because she had got caught and she was in the shock I guess.

Brinkley also said that he was alone and that he did not know Carter.

The testimony of the female victim and the accomplice, along with the DNA evidence, was sufficient for the jury to find beyond a reasonable doubt that Brinkley was guilty of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Brinkley contends that, even though he did not pursue a claim that he was incompetent to stand trial, the trial court erred by failing to sua sponte assess whether he was competent, and that this failure violated his constitutional right to due process.

A trial court is to conduct, sua sponte, a competency hearing when there is information which becomes known to it, prior to or at the time of the trial, sufficient to raise a bona fide doubt regarding the defendant’s competence. The salient question is whether the trial court received information which, objectively considered, should reasonably have raised a doubt about the defendant’s competency and alerted the trial court to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense.

(Citations and punctuation omitted.) Lytle v. State, 290 Ga. 177, 179 (718 SE2d 296) (2011). To answer this question, the focus is on “any evidence of the defendant’s irrational behavior, the defendant’s demeanor at trial, and any prior medical opinion regarding the defendant’s competence to stand trial.” Traylor v. State, 280 Ga. 400, 404 (627 SE2d 594) (2006).

Brinkley claims that a written statement he gave to police prior to trial and a remark he made to the Court at the sentencing hearing raised bona fide doubts regarding his competency. Prior to trial, Brinkley gave a written statement denying guilt that was grammatically incorrect and contained numerous misspellings. At the sentencing hearing, Brinkley told the Court that the evidence did not prove his guilt; that he was not that type of person because he had respect for other people; that all he used to do was go to school and stay home with his family and “[j]ust do what a child supposed to do.” He claimed that the rape victim lied; that he had no reason to lie about anything; and added that “I was going to ask about probably 10 to 15 years on probation.”

According to Brinkley, a bona fide doubt as to his competency was raised because the pre-trial statement showed a “severe literacy impairment” and raised doubts about his education level and intelligence, and the request at the sentencing hearing for “10 to 15 years on probation” showed that he did not understand the nature of the proceedings. We find that the statements raised no reasonable doubt as to whether Brinkley was competent — they did not alert the trial court to the possibility that he could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense. The record shows no irrational behavior at trial and no prior medical opinion regarding competency that would have caused the trial court to have reasonable doubts about Brinkley’s competency to stand trial. The statements themselves were not evidence of irrational or other behavior that would have raised reasonable doubts about Brinkley’s competency. What the statements did show, in conjunction with Brinkley’s trial testimony, is that he understood the charges and maintained his innocence before, during, and after the trial. The trial court did not err by failing to hold a hearing sua sponte regarding Brinkley’s competency.

Brinkley also claims that, because his age alone —15 years at the time of trial — showed his “developmental immaturity,” due process mandated that the trial court sua sponte conduct a hearing to assess his competency to stand trial on criminal charges in superior court. This claim has been previously raised on appeal and rejected. In Lewis v. State, 279 Ga. 69, 70-71 (608 SE2d 602) (2005), the Supreme Court rejected a similar claim made on the basis of age alone by a 14-year-old defendant tried on criminal charges in superior court. Lewis held that, “we decline appellant’s request that we adopt a rule mandating competency hearings for children under 17 who face trial in superior court under OCGA § 15-11-28 (b) (2) (B).” Id. at 71.

3. Brinkley contends that the trial court erred by denying his motion for a new trial made on the basis that his trial counsel provided ineffective assistance.

To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Terry v. Jenkins, 280 Ga. 341, 342 (627 SE2d 7) (2006). To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. Strickland, 466 U. S. at 689-690; Franks v. State, 278 Ga. 246, 250 (599 SE2d 134) (2004). In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U. S. at 690. “A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” Franks, 278 Ga. at 250.

Connelly v. State, 295 Ga. App. 765, 768-769 (673 SE2d 274) (2009). Applying this standard, we find no error in the trial court’s refusal to grant a new trial because of alleged ineffectiveness of counsel.

Brinkley claims that his trial counsel was ineffective because counsel failed to assess his competency to stand criminal trial even though counsel “knew that his client failed to understand the punishment or consequences of his criminal trial.” Brinkley contends that the statement he made at his sentencing hearing requesting that he be sentenced to ten to fifteen years on probation raised doubts as to his competency, and that trial counsel was ineffective by not taking steps to assess his competency. Brinkley’s trial counsel testified at the hearing on the motion for new trial that, in his interactions with Brinkley in preparation for and during the criminal proceedings, he observed nothing that caused him to believe that Brinkley was not competent to stand trial on the charges. In denying the motion for new trial, the trial court found that trial counsel’s failure to assess Brinkley’s competency was not deficient performance. As set forth in Division 2, supra, we find nothing in the record that would have required the trial court to sua sponte assess Brinkley’s competency to stand trial. For that reason, and based on the testimony given by trial counsel, we find no error in the trial court’s ruling that counsel’s performance was reasonable and not deficient.

4. Brinkley claims that, because the entire jury selection process was not reported and transcribed as part of the trial record, this deprived him of the constitutional right to assert that his trial counsel may have been ineffective during jury selection for failing to make an objection that should have been made.

Although objections and rulings thereon made during jury selection are required to be reported and made part of the trial record, there is no requirement that the entire jury selection be reported and made part of the record in a nondeath penalty felony case. State v. Graham, 246 Ga. 341 (271 SE2d 627) (1980); OCGA § 5-6-41. Trial counsel may request that the entire jury selection process be reported and made part of the record, but it is within the broad range of professional conduct, and no basis for an ineffective assistance claim, if counsel does not do so in a nondeath penalty case. Dunlap v. State, 291 Ga. 51, 53 (727 SE2d 468) (2012). “[Brinkley’s] speculation that error may have occurred is insufficient to show any deficiency on the part of counsel, or prejudice therefore, and is insufficient to show reversible error.” Id. “Merely asserting a general unspecified hope of reversible error during voir dire is insufficient to warrant a new trial on the ground that a transcript of the proceeding should have been made so as to accommodate a search for error now buried in unrecorded history.” (Citation and punctuation omitted.) McFarlane v. State, 291 Ga. 345, 346-347 (729 SE2d 349) (2012); Primas v. State, 231 Ga. App. 861 (501 SE2d 28) (1998). This claim of error is without merit.

5. Brinkley contends that the more than ten-year delay between his conviction in January 2000 and this appeal violated his right to due process.

“[Substantial delays experienced during the criminal appellate process implicate due process rights.” Chatman v. Mancill, 280 Ga. 253, 256 (626 SE2d 102) (2006). To assess claims involving appellate delay, we use an analysis based on the four speedy trial factors set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972) — “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Citation and punctuation omitted.) Chatman, 280 Ga. at 256.

In its order denying Brinkley’s April 2010 amended motion for a new trial, the trial court found that there was an inordinate delay after Brinkley timely moved for a new trial in February 2000 which weighed in his favor; that the delay was caused by inaction by a succession of post-conviction lawyers which weighed in his favor; and that evidence showed Brinkley attempted to assert his right to an appeal during the delay which also weighed in his favor. The State does not dispute these findings. Nevertheless, the trial court concluded that, even though the first three factors weighed in Brinkley’s favor, he failed to show that he was prejudiced by the delay, and that considering all the factors, the appellate delay did not violate Brinkley’s due process rights.

[T]he prejudice necessary to establish a due process violation based on post-conviction direct appeal delay is prejudice to the ability of the defendant to assert his arguments on appeal and, should it be established that the appeal was prejudiced, whether the delay prejudiced the defendant’s defenses in the event of retrial or resentencing.

Chatman, 280 Ga. at 260. “[U]nlike in the speedy trial context, [prejudice] is not presumed but must be shown.” Payne v. State, 289 Ga. 691, 693 (715 SE2d 104) (2011). “[A]ppellate delay is prejudicial when there is a reasonable probability that, but for the delay, the result of the appeal would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations and punctuation omitted.) Chatman, 280 Ga. at 260-261. Moreover, “[t]here can be no prejudice in delaying a merit-less appeal.” (Citation and punctuation omitted.) Simmons v. State, 291 Ga. 664, 668 (732 SE2d 65) (2012).

Brinkley claims that the delay prejudiced his appeal because it deprived him of the ability to assert on appeal that he was not competent to stand trial in superior court. He argues it was apparent at the time of trial that, at age 15, he was not competent; that if his February 2000 motion for new trial had been timely heard when he was still age 15, defense counsel would have been able to assess his competency; and that the delay of over ten years before a hearing on the motion deprived him of the opportunity to develop evidence of incompetency that he could have asserted on appeal. This argument essentially reasserts enumerations raised on appeal that the trial court and trial counsel erroneously failed to assess Brinkley’s competency at the time of trial. As we held in Divisions 2 and 3, supra: (1) there was nothing in the record which should reasonably have raised a doubt about Brinkley’s competency and required the trial court to sua sponte assess competency; (2) trial counsel’s failure to assess competency was not deficient performance; and (3) the fact that Brinkley was only 15 years old at the time of trial was not alone reason to mandate a competency assessment. Because those enumerations of error have no merit, Brinkley demonstrated no prejudice resulting from appellate delay.

Brinkley claims that the delay prejudiced his appeal because it deprived him of the ability to recreate a record of jury selection and possibly show that some error in jury selection might have occurred. As set forth in Division 4, supra, the enumerations on appeal underlying this claim are without merit, so Brinkley demonstrated no prejudice resulting from appellate delay.

Brinkley “failed to offer the specific evidence required to show that the delay has prejudiced his appeal or that the result of the appeal would have been different but for the delay.” Loadholt v. State, 286 Ga. 402, 406 (687 SE2d 824) (2010). The trial court did not abuse its discretion in ruling that Brinkley showed no violation of his due process rights resulting from appellate delay. Id.

6. Brinkley claims that imposing a life sentence on him for an offense he committed at the age of 14 violates the cruel and unusual punishment clause of the Georgia Constitution. Ga. Const, of 1983, Art I, Sec. I, Par. XVII. This claim was waived for appellate review because it was not timely raised in the trial court. Brinkley, 291 Ga. at 196.

7. As to the charge that he kidnapped the male victim, Brinkley claims that the failure to give jury instructions which used the four-factor test for asportation established in Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), was reversible error.

Because Brinkley’s acts occurred prior to the July 1, 2009 effective date of the amendment to the kidnapping statute at OCGA § 16-5-40 (b), the Garza asportation test applies retroactively. Hammond v. State, 289 Ga. 142, 143-144 (710 SE2d 124) (2011).

We therefore must determine whether the failure to charge the jury according to the Garza rule on asportation was harmless or whether it constituted reversible error. [To do so, we apply] the highly probable test to nonconstitutional error in criminal cases, asking whether it is highly probable that the error did not contribute to the judgment.

(Citations and punctuation omitted.) Id. at 144. Applying this test, we find that the failure to instruct the jury to consider the asportation element of kidnapping using the Garza test was harmless because it is highly probable that this failure did not contribute to the judgment of guilt.

Garza sets out four factors to be considered to determine whether the asportation element of kidnapping has been satisfied:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Hammond, 289 Ga. at 144. It is not required that all four factors be satisfied to establish that asportation has occurred. Id.

Here, the male and female victims were outside the house on the front porch when Brinkley pointed a gun at them and forced them inside the house to a bedroom where Brinkley robbed the male victim at gunpoint. Brinkley then forced the male and female victims from the bedroom to the living room of the house; then forced the male victim to a bedroom away from the female victim, and forced the female victim to the kitchen where he raped her. Even if the first factor was not satisfied because the duration of the movement was brief, we find that the remaining three factors were satisfied. The movement did not occur during the armed robbery and was not an inherent part of that offense. And the movement presented a significant danger to the victim because it enhanced Brinkley’s control by moving the victim from a location open to public view on the front porch to an isolated position away from protection or rescue which increased the risk of injury in the event of attempted escape. Jones v. State, 290 Ga. 670, 671 (725 SE2d 236) (2012). Accordingly, the evidence was sufficient under the Garza test to establish the element of asportation beyond a reasonable doubt.

8. On the offense of kidnapping with bodily injury, the indictment charged that Brinkley kidnapped the female victim and caused her bodily injury by raping her. Brinkley claims that, when the trial court instructed the jury on the charge of kidnapping with bodily injury, the court gave an erroneous charge which misled the jury to believe that proof of consensual sex with the victim was sufficient to establish the necessary element of bodily injury.

The trial court instructed the jury that the indictment charged that Brinkley kidnapped the female victim and caused her bodily injury by raping her. With respect to this charge, the trial court correctly instructed the jury as follows:

I charge you that a person commits the offense of kidnapping with bodily injury when he abducts or steals away any person without lawful authority or warrant and holds such person against their will and the person kidnapped as a result of the kidnapping or during the kidnapping or arising out of the kidnapping, received bodily injury. I charge you that having carnal knowledge of a female, forcibly and against her will, constitutes as bodily injury. I charge you further that the State contends that this defendant committed the offense of kidnapping with bodily injury against [the female victim]. The injury which the State contends [the female victim] suffered was rape. In that connection, I charge you that a person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.

Immediately after giving the above instructions, the trial court gave the following instruction:

If you find that the State has proven to you beyond a reasonable doubt that [the female victim] was kidnapped by the defendant, as I have previously defined that offense for you, and if you further find that the defendant had carnal knowledge of [the female victim] and that such carnal knowledge occurred during or arising out of, or was a result of a kidnapping of [the female victim], then you would be authorized to find the defendant guilty of kidnapping with bodily injury.

Brinkley argues that the latter instruction erroneously referred only to carnal knowledge of the female victim during the kidnapping without adding that, to constitute bodily injury by rape as alleged in the indictment, the carnal knowledge must also have been by force and against the victim’s will. He contends that the instruction misled the jury to believe that consensual sex with the victim was sufficient to show the “bodily injury” necessary to find him guilty on the charge that he kidnapped the victim and caused bodily injury by raping her.

The trial court’s latter instruction incorrectly failed to inform the jury that carnal knowledge of the victim must be with force and against the victim’s will to constitute bodily injury by rape as alleged in the indictment. Nevertheless, “[i]t is a fundamental rule of law that jury instructions must be viewed as a whole.” Felts v. State, 244 Ga. 503, 504-505 (260 SE2d 887) (1979). Taking the jury instructions as a whole, and considering the jury’s guilty verdict on the separate rape charge, we find that the incorrect portion of the instructions was harmless and did not mislead or confuse the jury as to the proof necessary to find Brinkley guilty on the charge of kidnapping with bodily injury.

Decided March 11, 2013

Stephen M. Beba, for appellant.

C. Paul Bowden, District Attorney, for appellee.

Sandra L. Michaels, amicus curiae.

Prior to giving the incorrect instruction, the trial court correctly instructed the jury that the State alleged rape as the bodily injury that occurred during the kidnapping, and “that a person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will.” The trial court also instructed the jury that the State had the burden to prove each element of the charged crimes beyond a reasonable doubt. After the incorrect instruction, the trial court correctly repeated all the elements of rape in its instructions on the separate rape charge. Moreover, on the separate rape charge, the trial court instructed the jury that the defendant contended that the victim freely consented to sexual intercourse with him; that the State had the burden to show lack of consent; and that consent on the part of the alleged victim is fatal to a conviction for rape. After hearing all of these instructions, the jury found Brinkley guilty of both rape and kidnapping with bodily injury (by rape). The guilty verdict on the rape charge demonstrates that the jury considered and rejected Brinkley’s consent defense. Under these circumstances, it is clear that the incorrect instruction was simply a misstatement corrected by the remainder of the instructions. Because the trial court’s instructions, taken as a whole, did not confuse or mislead the jury to believe that proof of consensual sex with the victim was sufficient to establish bodily injury on the charge of kidnapping with bodily injury, no reversal is required. Williams v. State, 267 Ga. 771, 774 (482 SE2d 288) (1997).

Judgment affirmed.

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

       The Superior Court of Tift County had exclusive jurisdiction to try Brinkley on the charged offenses. Under OCGA § 15-11-28 (b) (2) (A), “[t]he superior court shall have exclusive jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed any of the following offenses: (i) Murder; (ii) Voluntary manslaughter; (iii) Rape; (iv) Aggravated sodomy; (v) Aggravated child molestation; (vi) Aggravated sexual battery; or (vii) Armed robbery if committed with a firearm.” Under OCGA § 15-11-28 (b) (2) (B),
      [ajfter indictment, the superior court may after investigation and for extraordinary cause transfer any case involving a child 13 to 17 years of age alleged to have committed any offense enumerated in subparagraph (A) of this paragraph which is not punishable by loss of life, imprisonment for life without possibility of parole, or confinement for life in a penal institution.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A12A2406.
    HOWELL v. THE STATE.
    (739 SE2d 700)
   Ray, Judge.

Following a jury trial, Jason Howell was convicted of statutory rape, possession of a controlled substance, and possession of drugs not in original container. After a hearing, the trial court denied Howell’s motion for new trial. Howell appeals, contending that the evidence was insufficient to support the verdict and that the trial court erred in denying his motion to sever offenses. For the reasons that follow, we affirm.

Properly viewed, the evidence shows that on June 9, 2011, the 14-year-old victim, S. R., was staying with a family friend, Kimberly Mills, while her mother was out of town. Mills and S. R. were drinking beer and watching a movie when Howell and a friend came over to the house. Howell was 21 years old at the time. After introducing Howell to S. R., Mills spoke privately to Howell and then went to her bedroom and fell asleep. Howell’s friend eventually left, leaving Howell and S. R. alone.

Shortly thereafter, Howell grabbed S. R. and began forcibly kissing her. After attempting to force S. R. to perform oral sex on him, Howell pinned S. R. to the floor and had intercourse with her against her will. After the incident, Howell forced S. R. into Mills’ car and drove her to Taco Bell. When they returned, S. R. ran inside Mills’ house, got her cell phone, and left.

After leaving Mills’ residence, S. R. called Jared Barfield and informed him that she had just been raped. Barfield told her to call the police. S. R. proceeded to run down the street, and Barfield remained on the phone with S. R. until she reached a fire station. Once at the fire station, S. R. got off the phone with Barfield and called the police.

S. R. accompanied police officers to Mills’ house where they found Howell asleep on the couch and arrested him. The police discovered Alprazolam pills hidden inside a cigarette package in Howell’s possession during a search incident to his arrest.

S. R. was taken to the hospital where she was examined by medical personnel. The examining physician, Dr. Keith Blanks, testified at trial that he observed fresh bruising around S. R.’s neck and chest, as well as internal and external injuries to her vaginal area which were consistent with a sexual assault. Brina Janssen, a registered nurse, testified that she heard S. R. state during the examination that Howell had attempted to force her to perform oral sex, and that he raped her by grabbing her arms and forcibly penetrating her vagina. DNA swabs were taken from S. R. and Howell, and Howell’s DNA profile was found on the sample taken from S. R.’s breast area.

After leaving the hospital, S. R. was formally interviewed by Corporal Valerie Holder of the Columbus Police Department. In her testimony at trial, Corporal Holder confirmed that S. R. stated during the interview that she and Howell “tussled or struggled” on the couch before ending up on the floor, where Howell pinned her down and had intercourse with her.

1. Howell contends that the evidence was insufficient to support his conviction for statutory rape. We disagree.

Howell argues that S. R. failed to adequately explain how the sexual assault could have occurred as she alleged and that portions of her testimony were inconsistent with her previous statements.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. 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.

Under OCGA § 16-6-3 (a), “[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.”

In this case, S. R. testified that Howell “grabbed” her and attempted to force her to perform oral sex on the couch, then took her pants off, pinned her down on the floor, and had intercourse with her against her will. Additionally, S. R.’s testimony about the incident was corroborated by other witnesses who testified at trial. The doctor who performed the sexual assault medical examination testified that S. R.’s injuries were consistent with a sexual assault, and law enforcement personnel testified that Howell’s DNA was found on S. R.’s breast. Accordingly, we find that the evidence was sufficient to support Howell’s conviction for statutory rape.

To the extent Howell contends that S. R.’s testimony was inconsistent with or contradicted by other evidence, we do not weigh the evidence or judge the credibility of witnesses, as those tasks rest squarely with the jury.

2. Howell contends that the trial court erred in denying his motion to sever the counts alleging sexual offenses from the counts alleging drug offenses. Specifically, Howell argues that the drug possession and sexual offenses were not based on the same conduct or on a series of connected or related acts, and that severance was necessary to achieve a fair determination of his guilt or innocence for each offense. We disagree.

Where, as here, the joinder of charges is based on the fact that the charges comprise a series of connected acts, whether to sever the charges for trial is a matter for the trial court’s discretion. The trial court does not abuse its discretion in denying a severance motion where evidence of one charge would be admissible in the trial of the other. Evidence of the circumstances of a defendant’s arrest is admissible in the trial of the charge for which he was arrested. When the circumstances of that arrest result in additional criminal charges, it is not an abuse of discretion to refuse to sever the trial of those charges from the trial of the charge for which appellant was arrested.

In Coleman v. State, our Supreme Court upheld the denial of a motion to sever drug possession charges from murder charges where the drug charges resulted from a search of the defendant’s vehicle that he abandoned as he fled from deputies shortly before he was arrested. The Court found that the drug charges were a circumstance of the arrest for homicides for which the defendant was tried.

Decided March 11, 2013.

Clark C. Adams, Jr., for appellant.

Julia Fessenden Slater, District Attorney, Waldrep, Mullin & Callahan, David R. Helmick, for appellee.

Here, the evidence shows that, shortly after the sexual assault, the police discovered the drugs hidden inside a cigarette package in Howell’s possession during a search incident to his arrest on the sexual offenses. Thus, the drug possession charges were related because they were an immediate circumstance of Howell’s arrest for the sexual offenses for which he was being tried.

Furthermore, Howell failed to establish that severance was required. The evidence corroborating the victim’s testimony was overwhelming, and the “case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense.”

Accordingly, the trial court did not abuse its discretion in denying the motion to sever the charges.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-6-3 (a).

       OCGA § 16-13-30 (a), (g).

       OCGA § 16-13-75 (a).

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

       See OCGA § 16-13-28 (a) (1) (identifying Alprazolam, commonly known as Xanax, as a Schedule IV controlled substance).

       Howell does not challenge the sufficiency of the evidence regarding his convictions for possession of a controlled substance and possession of drugs not in original container, so we will not address them. See Ambati v. Bd. of Regents of the Univ. System of Ga., 313 Ga. App. 282, 283 (721 SE2d 148) (2011) (“It is the function of this Court to address only those claims of error raised on appeal”).

         (Citations and punctuation omitted; emphasis in original.) Williamson v. State, 315 Ga. App. 421, 422 (1) (727 SE2d 211) (2012).

        Jackson, supra; Williamson, supra at 423-424 (1) (a).

       See Williamson, supra at 425 (1) (c).

       (Citations omitted.) Miller v. State, 270 Ga. 741, 744 (3) (512 SE2d 272) (1999).

       286 Ga. 291, 302 (10) (687 SE2d 427) (2009).

        Roundtree v. State, 270 Ga. 504, 505 (2) (511 SE2d 190) (1999).

       (Citation omitted.) Jones v. State, 318 Ga. App. 342, 345 (1) (733 SE2d 400) (2012).

        Coleman, supra.


author: Dillard, Judge.

text:
    A12A2464.
    ARNOLD v. NEAL.
    (738 SE2d 707)
   Dillard, Judge.

In this personal-injury action arising from a motor-vehicle accident, Donna Arnold appeals the trial court’s orders granting Danny Neal’s motion to enforce settlement and his motion for summary judgment. Specifically, Arnold contends that Neal’s insurance company’s tender was not identical to the terms of her settlement offer and, therefore, did not constitute an acceptance. For the reasons set forth infra, we conclude that the parties entered into an enforceable settlement agreement and, thus, we affirm the trial court’s orders.

The record in this case shows that on December 20,2010, Arnold and Neal were involved in a motor-vehicle accident, in which Neal’s vehicle crossed the road’s double yellow line and collided head-on with Arnold’s vehicle. As a result, Arnold suffered injuries so severe that she incurred over $700,000 in medical expenses. Neal’s vehicle was covered by an insurance policy issued by Allstate Fire & Casualty Insurance Company (“Allstate”), and the applicable policy limit was $100,000 for bodily-injury claims.

On February 14, 2011, Arnold’s attorney sent a letter to an Allstate claims adjuster entitled “Policy Limit Demand In Exchange of a Limited Release.” The letter, in relevant part, noted:

It is my understanding that your insured’s policy limits are only $100,000. If I am incorrect, please contact me immediately. However, relying on this information, Ms. Arnold has authorized me to demand your insured’s policy limits of $100,000. We will only agree to this pursuant [sic] a limited release and you must not deny any liability on behalf of Allstate or your insured in said release. Additionally, the release must not contain any indemnification language as we are unwilling to provide indemnification, however, [Ms. Arnold] is on Medicaid and we will take care of any Medicaid lien as a result of this wreck. Finally, afterwards, we ask to speak to your insured for the sole purpose of seeking any other insurance policies he may hold that would potentially cover this incident.
We must receive the policy limits no later than February 28, 2011 [,] by 5:00 p.m. at my office (fourteen days). Again the limited release must not contain any indemnification language other than for Medicaid Liens. All communication must be in writing after receipt of this demand.

On February 18, 2011, the Allstate claims adjuster responded to Arnold’s attorney’s demand letter with correspondence noting that “Allstate is extending an offer of policy limits of $100,000 as full and final settlement of the bodily injury claim.” In addition, the claims adjuster’s letter requested that Arnold’s attorney contact her to discuss the manner in which to issue the check. And on February 22, 2011, Arnold’s attorney replied, informing the claims adjuster as to how to issue the check and adding “Please note the conditions that must be met that were made in our initial demand. These conditions must be met.”

On February 24, 2011, Allstate’s counsel, who had been retained the day before for purposes of preparing the limited release, sent a letter to Arnold’s attorney, which provided, in relevant part, as follows:

I understand that your client has accepted Allstate’s $100,000.00 policy limits, pursuant to a Limited Liability Release, to settle and compromise the claims of your client arising out of the December 20,2010 motor vehicle accident. In that regard, please find enclosed our proposed[ ] form Limited Liability Release and Lien Affidavit for your review. As you requested I have taken out all indemnification language, but have indicated that Medicaid liens will be satisfied, negotiated and/or resolved out of the settlement proceeds. If you are not agreeable to my proposed language I am sure we can agree to language agreeable to all parties. I have also taken out the language concerning denial of liability as you requested.

The letter included a limited-liability release and lien affidavit that had been drafted as characterized by Allstate’s counsel. And the following day, Arnold’s attorney received the $100,000 check from Allstate, which had been hand-written by the claims adjuster and included the following notation: “Full + final settlement of any and all claims for bodily injury arising from loss 12/20/10.”

Arnold’s attorney did not immediately respond after receiving the settlement check. Instead, on March 4, 2011, Arnold filed a personal-injury lawsuit against Neal and several John Doe defendants for injuries and other damages that she suffered as a result of the motor-vehicle accident. Subsequently, on March 11,2011, Arnold’s attorney sent a letter to Allstate’s counsel, noting that by writing “Full and Final Settlement of any and all claims for bodily injury arising from her loss on 12/20/10,” Allstate attempted to preclude Arnold from pursuing “any other remedies that the law would allow,” and, therefore, rejected Arnold’s settlement offer. Allstate’s counsel responded with correspondence a few days later, which noted the following:

Allstate certainly does not contend, and has never contended, that the settlement in this case was for anything other than a limited release as is clear from my February 24, 2011 letter to you. Allstate further denies that the language on the settlement check contains any kind of counter offer. This case has been settled pursuant to a limited release and the language on the check does not affect that.

Allstate’s counsel further added that Arnold could cash the check as written with full knowledge that the settlement was pursuant to the limited release, but that in light of Arnold’s attorney’s concerns, a second check without the objectionable language would be immediately issued. Nevertheless, Arnold’s attorney responded the same day via e-mail, maintaining that “[h]ad Ms. Arnold cashed the check, she would have been prohibited to pursue any other claims for her injuries, which is the only reason to have a limited release.”

Thereafter, Neal filed an answer to Arnold’s complaint. And on June 8, 2011, Neal filed a motion to enforce settlement, arguing that Allstate settled with Arnold on Neal’s behalf by its letter of February 24, 2011, which accepted all the terms of Arnold’s offer and enclosed the limited release. On July 28, 2011, the trial court granted Neal’s motion to enforce settlement, finding that Allstate counsel’s February 24, 2011 letter and the accompanying limited release constituted an acceptance of Arnold’s offer. But because Arnold had claims remaining against the John Doe defendants, the trial court did not immediately dismiss the case. Several months later, however, Neal filed a motion for summary judgment, arguing that the settlement extinguished all of Arnold’s claims against him. The trial court granted Neal’s motion, and this appeal follows.

1. Arnold contends that the trial court erred in granting Neal’s motion to enforce settlement, arguing that Allstate’s tender was not identical to the terms of her settlement offer and, therefore, did not constitute an acceptance. We disagree.

At the outset, we note that in reviewing the trial court’s order on both a motion to enforce a settlement agreement and a motion for summary judgment, “we apply a de novo standard of review and, thus, view the evidence in a light most favorable to the nonmoving party.” Bearing this standard of review in mind, well-established principles also guide our inquiry into whether the parties entered into a settlement agreement. Specifically, in order to prevent litigation, “compromises of doubtful rights are upheld by general policy.” But courts are certainly limited to “those terms upon which the parties themselves have mutually agreed.” And apart from such mutual agreement, “no enforceable contract exists between the parties.” In fact, settlement agreements must “meet the same requirements of formation and enforceability as other contracts.” Accordingly, an answer to an offer will not amount to an acceptance, so as to result in a contract, unless “it is unconditional and identical with the terms of the offer.” Indeed, the offer must be accepted unequivocally and without variance of any sort, and “if a purported acceptance of the plaintiffs settlement offer imposes any new conditions, it constitutes a counteroffer rather than an acceptance.” Finally, the party asserting the existence of a contract has “the burden of proving its existence and its terms.”

Importantly, Georgia law holds that an offer may be accepted “either by a promise to do the thing contemplated therein, or by the actual doing of the thing.” And if an offer calls for an act, “it can be accepted only by the doing of the act.” Here, Arnold, via her attorney’s February 14,2011 letter, offered to settle her bodily-injury claim against Neal for the $100,000 Allstate policy limit and subject to a limited release, which did not deny liability and did not contain any indemnification language other than language pertaining to her Medicaid liens. Allstate, on Neal’s behalf, accepted this offer by providing a limited release that adhered to Arnold’s specifications and by tendering a check for $100,000. Thus, Neal and Allstate’s compliance with the demands of Arnold’s offer constituted an acceptance.

Nevertheless, ignoring the language contained in the limited release, Arnold argues that by writing “Full and Final Settlement of any and all claims for bodily injury arising from her loss” on the settlement check, Allstate deviated from the conditions of her offer and, in fact, added a new condition or counteroffer that would have precluded her from pursuing other claims had she endorsed the check. But this argument lacks merit. As previously noted, the release that Allstate provided was limited in scope, exactly as Arnold had requested, and “where the terms of a written release are clear and unambiguous, the court will look to the release alone to find the intention of the parties.” Given that the release explicitly stated that it did not apply to Arnold’s claims against any other tortfeasor or insurance carrier, Arnold’s assertion that the check precluded such claims is misplaced.

Moreover, Arnold’s contention that Allstate’s inclusion of a lien affidavit with the limited release constituted a counteroffer is likewise without merit. To begin with, based on our review of the record, it appears that Arnold never argued in the trial court that the lien affidavit included with the li mited release rendered Allstate’s response a counteroffer rather than an acceptance. And it is well established that “[f]airness to the trial court and to the parties demands that legal issues be asserted in the trial court.” Consequently, absent special circumstances, “an appellate court need not consider arguments raised for the first time on appeal.”

However, pretermitting whether Arnold raised this contention before the trial court, we do not find it persuasive. As previously mentioned, Arnold’s attorney’s settlement offer in his February 14, 2011 letter explicitly provided that Arnold would “take care of any Medicaid lien as a result of this wreck” and indicated that the release could reference this understanding. In his February 24,2011 response letter, which included the lien affidavit, Allstate’s counsel confirmed the agreement that “Medicaid liens will be satisfied, negotiated and/or resolved out of the settlement proceeds.” Under these circumstances, Allstate’s “proffering the [lien] affidavit and requesting that it be signed was merely an attempt to memorialize this understanding^]” and, therefore, cannot properly be construed as a counteroffer. Accordingly, the trial court did not err in granting Neal’s motion to enforce settlement.

Decided February 22, 2013

Reconsideration denied March 12, 2013.

Michael L. Werner, Sidney L. Moore III, for appellant.

Fain, Major & Brennan, Thomas E. Brennan, Elliot D. Tiller, for appellee.

2. Arnold also contends that the trial court erred in granting Neal’s motion for summary judgment, but she concedes that this contention is contingent upon her argument that the trial court erred in granting Neal’s motion to enforce settlement. Thus, in light of our holding in Division 1, supra, we further conclude that the trial court did not err in granting Neal’s motion for summary judgment.

Judgment affirmed.

Ellington, C. J., and Phipps, P. J., concur in judgment only.

       Torres v. Elkin, 317 Ga. App. 135, 140 (2) (730 SE2d 518) (2012) (footnote omitted); see Anderson v. Benton, 295 Ga. App. 851, 852 (673 SE2d 338) (2009); DeRossett Enters., Inc. v. Gen. Elec. Capital Corp., 275 Ga. App. 728, 728 (621 SE2d 755) (2005).

        See Anderson, 295 Ga. App. at 854 (1).

        Torres, 317 Ga. App. at 140 (2) (punctuation omitted); see Herring v. Dunning, 213 Ga. App. 695, 696 (446 SE2d 199) (1994).

        Herring, 213 Ga. App. at 696-97 (punctuation omitted).

        Torres, 317 Ga. App. at 141 (2).

         Id.

        Id. (punctuation omitted).

        Id. (footnote and punctuation omitted).

        Id.

        Herring, 213 Ga. App. at 699 (punctuation omitted).

        Id. (punctuation omitted).

        See id.

       Because the complained-of language was used on the settlement check, rather than in the controlling settlement documents, Arnold’s reliance on Kitchens v. Ezell, 315 Ga. App. 444, 449 (1) (b) (726 SE2d 461) (2012) (physical precedent only) and Penn v. Muktar, 309 Ga. App. 849, 850 (711 SE2d 337) (2011) is misplaced. See n. 15, infra.

        Carey v. Houston Oral Surgeons, LLC, 265 Ga. App. 812, 816 (1) (595 SE2d 633) (2004) (emphasis supplied).

        See Williams v. Physicians & Surgeons Cmty. Hosp., Inc., 249 Ga. 588, 592 (292 SE2d 705) (1982) (“Unless a party is specifically named or identified in a release, he is presumed not to be covered by the release.”); see also OCGA § 33-24-41.1 (d) (1) (“The limited release of the settling carrier... shall not... [b] ar a claimant’s recovery against any other tort-feasor or under any other policy of insurance or release any other insurance carrier providing applicable coverage unless specifically provided for in such release. . . .”). Compare Blitch v. Walker Pharmacy, Inc., 295 Ga. App. 347, 349 (671 SE2d 842) (2008) (holding that plaintiff settled its claim against defendant and could not argue otherwise when plaintiff endorsed check that was accompanied by letter stating that check was tendered in “full payment and satisfaction of the settlement”); Yeager v. Poole Truck Lines, Inc., 162 Ga. App. 803, 803 (2) (293 SE2d 64) (1982) (holding that defendant’s check, which stated that it was for full and final settlement of any and all claims and which plaintiffs accepted, constituted a release of plaintiffs’ claims in the absence of any other writing between the parties) (emphasis supplied).

        Safe Shield Workwear, LLC v. Shubee, Inc., 296 Ga. App. 498, 500 (2) (675 SE2d 249) (2009) (punctuation omitted); see Pfeiffer v. Ga. Dep’t of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002).

        Safe Shield Workwear, LLC, 296 Ga. App. at 501 (2) (punctuation omitted); see Pfeiffer, 275 Ga. at 829 (2).

        Mealer v. Kennedy, 290 Ga. App. 432, 436 (659 SE2d 809) (2008).


author: Andrews, Presiding Judge.

text:
    A12A1714.
    NELSON v. THE STATE.
    (739 SE2d 754)
   Andrews, Presiding Judge.

Following a jury trial, Joseph Nelson appeals his conviction for child molestation. He contends the trial court erred by instructing the jury, in violation of his constitutional due process rights, that child molestation was a lesser included offense of statutory rape. Because we find that child molestation is not a lesser included offense of statutory rape under the required evidence test, we must reverse Nelson’s conviction.

Viewed most favorably to the verdict, the evidence shows that Nelson was charged with one count of statutory rape and one count of indecent exposure. At trial, however, because of the lack of direct evidence of penetration, the State requested a charge on child molestation as an included offense of statutory rape. Over Nelson’s objection, the trial court instructed the jury that child molestation was a lesser included offense of statutory rape. Thereafter, the jury acquitted Nelson of statutory rape and indecent exposure, and convicted him of child molestation. After the trial court denied Nelson’s motion for a new trial, this appeal followed.

Citing McCrary v. State, 252 Ga. 521, 524 (314 SE2d 662) (1984), Nelson contends the trial court erred by charging the jury that child molestation was a lesser included offense of statutory rape because due process of law requires that the indictment put the defendant on notice of the crimes with which he is charged and against which he must defend. He asserts:

It is an elementary principle of criminal procedure, that no person can be convicted of any offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense.

Goldin v. State, 104 Ga. 549, 550 (30 SE 749) (1898). Nelson contends that neither exception to the general rule applies in his case. His premise is that he was wrongly convicted of a lesser included offense because his indictment for statutory rape did not necessarily include within itself all of the essential elements of child molestation. The indictment charged Nelson with “on or about the 12th day of December, 2008, [Nelson] did, while being 18 years of age, engage in sexual intercourse with [T. B.], a 13 year old female child, and not being the spouse of the accused.” The facts alleged in this indictment are not sufficient to establish the crime of child molestation because they do not raise the intent to arouse or satisfy the sexual desires of either the child or the accused which is an essential element of the crime of child molestation.

Further, statutory rape is not included within child molestation as a matter of law because the crimes have different elements, e.g., child molestation does not require that sexual intercourse occur, but statutory rape does. Compare OCGA § 16-6-3 (a) (“[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim”) with OCGA § 16-6-4 (a) (“[a] person commits the offense of child molestation when such person: (1) Does 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 either the child or the person”). See also Stulb v. State, 279 Ga. App. 547, 549 (631 SE2d 765) (2006), rev’d on other grounds, Stuart v. State, 318 Ga. App. 839 (734 SE2d 814) (2012) (statutory rape is not a lesser included offense of child molestation because the crimes have different elements).

Decided March 12, 2013.

Kevin C. Armstrong, Leisa G. Johnson, for appellant.

Gregory W. Edwards, District Attorney, Arkesia S. Jenkins, Assistant District Attorney, for appellee.

A crime, however, may be included as a lesser included offense of the crime charged as a matter of fact when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). In Drinkard v. Walker, 281 Ga. 211, 214 (636 SE2d 530) (2006), our Supreme Court disapproved the “actual evidence” test and adopted the “required evidence” test for determining when one offense is included in another under OCGA § 16-1-6 (1). Further, this test is appropriate when considering whether jury charges are appropriate. Stuart v. State, 318 Ga. App. at 843.

In applying the required evidence test

the important question is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.

Drinkard v. Walker, 281 Ga. at 216. Under the test, we examine “whether each offense requires proof of a fact which the other does not.” Lucky v. State, 286 Ga. 478, 481 (689 SE2d 825) (2010). Clearly, statutory rape and child molestation require proof of facts which the other does not, and therefore child molestation is not a lesser included offense of statutory rape. The State’s reliance on Burgess v. State, 189 Ga. App. 790 (377 SE2d 543) (1989), is misplaced because it was decided under the actual evidence test, which was rejected in Drinkard. Accordingly, as the trial court erred by charging the jury that child molestation is a lesser included offense of statutory rape, Nelson’s conviction must be reversed.

Judgment reversed.

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


author: Branch, Judge.

text:
    A12A1765.
    KROGER et al. v. TAYLOR et al.
    (739 SE2d 767)
   Branch, Judge.

The Kroger Company and its agent, Sedgwick CMS, appeal the denial of their motion to intervene in a workers’ compensation suit, arguing that the trial court erred because their subrogation claim is not barred by the applicable statute of limitation and because they are not adequately represented by the existing parties to the litigation. We agree with these contentions and reverse.

“[Wjhether a motion to intervene is timely is a decision entrusted to the sound discretion of the trial court.” (Citations and punctuation omitted.) Payne v. Dundee Mills, 235 Ga. App. 514, 515 (1) (510 SE2d 67) (1998). “But where intervention appears before final judgment, where the rights of the intervening parties have not been protected, and where the denial of intervention would dispose of the intervening parties’ cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion.” (Citations omitted.) Id.; see also OCGA § 9-11-24 (a) (a party “shall be permitted to intervene in an action” when (1) “a statute confers an unconditional right to intervene” or (2) the party is “so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest”).

The relevant facts are not in dispute. On February 19, 2009, plaintiff-appellee Betty Taylor was struck by a pallet jack while employed at a Kroger store in Waycross. At the time of Taylor’s accident, Kroger was a qualified self-insurer under the Workers’ Compensation Act, OCGA § 34-9-1 et seq. As a result of injuries she sustained in the accident, Kroger and Sedgwick paid Taylor more than $26,000 in workers’ compensation benefits. On February 15, 2011, just prior to the two-year anniversary of her accident, and within the applicable statute of limitation, Taylor sued New Bern Transport Corporation, Pepsi Bottling Group, Inc., and other Pepsi entities, alleging that an employee of one of them negligently caused her injuries by running the pallet jack into her. Less than three months later, Kroger and Sedgwick filed a motion to intervene in Taylor’s action. The trial court denied the motion to intervene, finding that because it was filed after the expiration of the applicable statute oflimitation, it was untimely under OCGA § 34-9-11.1 (c). As aresult of its order denying intervention, the trial court entered judgment in favor of New Bern on this issue. This appeal followed.

OCGA § 34-9-11.1 (a) provides:

When [an] injury or death for which [workers’] compensation is payable ... is caused under circumstances creating a legal liability against some person other than the employer, the injured employee or those to whom such employee’s right of action survives at law may pursue the remedy by proper action in a court of competent jurisdiction. . . .

Under subsection (b) of the same statute, “the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against [a] recovery” by an employee. (Emphasis supplied.) And subsection (c) sets out an employer’s right to intervene in an action timely filed:

Such action against such other person by the employee must be instituted in all cases within the applicable statute of limitations. If such action is not brought by the employee within one year after the date of injury, then the employer or such employer’s insurer may but is not required to assert the employee’s cause of action in tort, either in its own name or in the name of the employee. The employer or its insurer shall immediately notify the employee of its assertion of such cause of action, and the employee shall have a right to intervene. If after one year from the date of injury [an] employee asserts his or her cause of action in tort, then the employee shall immediately notify the employer or its insurer of his or her assertion of such cause of action, and the employer or its insurer shall have a right to intervene. . . .

(Emphasis supplied.) OCGA § 34-9-11.1 (c). Finally, a trial court is deprived of discretion to deny a motion to intervene under OCGA § 34-9-11.1 as long as “the employer or insurer has met the statutory prerequisites, e.g., fully or partially paid workers’ compensation benefits because of an injury or death caused under circumstances which created the alleged legal liability for which the worker is suing.” (Citation and punctuation omitted.) Intl. Maintenance Corp. v. Inland Paper Bd. & Packaging, 256 Ga. App. 752, 754 (1) (569 SE2d 865) (2002).

Taylor brought her tort action within the applicable statute of limitation, and Georgia law imposes no additional requirement that once the suit is timely filed, the subsequent motion to intervene must be filed or granted within the statute of limitation. Taylor also filed her action “after one year from the date” of her injury such that Kroger had an affirmative “right to intervene.” OCGA §§ 34-9-11.1 (c); 9-11-24 (a) (1). Finally, Kroger is also entitled to intervene pursuant to OCGA § 9-11-24 (a) (2) because it claims an interest in the property or transaction that is the subject of the suit, because its subrogation rights are not protected by the existing parties to Taylor’s suit (as the existing parties have consistently opposed Kroger’s pursuit of its subrogation claim), and because the trial court’s denial of Kroger’s motion to intervene disposed of the only legal remedy for that claim. See Payne, supra at 515 (1) (noting that denial of employee’s motion to intervene would bar his independent tort claim).

Defendants seek to forestall these conclusions by citing Newsome v. Dept, of Administrative Svcs., 241 Ga. App. 357 (526 SE2d 871) (1999), where we held an employer’s subrogation claim was time-barred by OCGA § 34-9-11.1 (c). In that case, however, the employee herself had never brought any action concerning her automobile collision, with the result that the employer’s subrogation claim, brought outside of the applicable two-year statute of limitation, was itself time-barred. Id. at 358; see also OCGA § 34-9-11.1 (c) (regardless of whether an employee or an employer brings an action, it must be brought within the applicable statute of limitation). Here, by contrast, Taylor made a timely claim, with the result that Kroger and Sedgwick’s intervention on behalf of their subrogation claim was a matter of “right.” OCGA § 34-9-11.1 (c); see also Stephens v. McGarrity, 290 Ga. App. 755, 757-759 (1) (b) (660 SE2d 770) (2008) (trial court abused its discretion when it denied a shareholder’s timely motion to intervene in another shareholder’s derivative action because the disposition of the action without his presence might “impair or impede his ability to protect that interest”) (punctuation and footnote omitted).

Defendants’ citation to AC Corp. v. Myree, 221 Ga. App. 513 (471 SE2d 922) (1996), is also unavailing. There, the injured employee filed a motion to intervene before the expiration of the statute of limitation in his employer’s timely suit to recover workers’ compensation benefits already paid. We concluded that whether or not a motion under OCGA § 9-11-21 to join the employee as a proper party was proper, the trial court did not abuse its discretion when it granted the employee’s motion to intervene under OCGA § 9-11-24. Id. at 514-515. Here, likewise, we hold that the more specific provision of OCGA § 34-9-11.1 (c), which grants an interested party an “unconditional right to intervene,” id. at 514, supplants any less specific provisions of the Civil Practice Act “for adding parties and claims.” Id.

Decided March 12, 2013.

Gardner, Willis, Sweat & Handelman, ToddS. Handelman, Tami Peavy-Owen, for appellants.

Forbes, Foster & Pool, Morton G. Forbes, Douglas L. Gibson, for appellees.

For all these reasons, the trial court abused its discretion when it denied Kroger and Sedgwick’s motion to intervene in the timely action brought by Taylor. See Payne, supra at 515 (1) (reversing trial court’s denial of employee’s motion to intervene under OCGA § 34-9-11.1 when the denial barred employee’s independent tort claim against defendant subcontractors).

Judgment reversed.

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

       See OCGA § 9-3-33 (actions for personal injury “shall be brought within two years after the right of action accrues”).

       Taylor later entered into a consent order to drop all of the Pepsi entities as party defendants.

       Our conclusion that Kroger satisfies both prongs of OCGA § 9-11-24 (a) (intervention of right) disposes of defendants’ assertion, not ruled on below, that Kroger should have proceeded under that statute’s subsection (a) (1) rather than (a) (2).


author: Boggs, Judge.

text:
    A12A1999.
    PROGRESSIVE PREMIER INSURANCE COMPANY OF ILLINOIS v. NEWELL et al.
    (739 SE2d 756)
   Boggs, Judge.

In this insurance coverage case, Progressive Premier Insurance Company of Illinois (“Progressive”) appeals from the trial court’s grant of summary judgment in favor of American Insurance Company and R0H0H0, Inc. d/b/a Papa John’s Pizza (“Papa John’s”) as well as the denial of its motion for summary judgment in its favor. For the reasons explained below, we reverse.

On appeal from the denial or grant of summary judgment, [the appellate court] must conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Northwest Carpets v. First Nat. Bank, 280 Ga. 535, 538 (1) (630 SE2d 407) (2006). So viewed, the record shows that Progressive issued an automobile insurance policy to Philip Newell with limits of $25,000 per person and $50,000 per accident for bodily injury liability and $25,000 per accident for property damage liability. This policy contained the following exclusion:

Coverage under this Part I [Liability to Others], including our duty to defend, will not apply to any insured person for . . . bodily injury or property damage arising out of the ownership, maintenance, or use of any vehicle or trailer while being used to carry persons or property for compensation or a fee. This exclusion does not apply to shared-expense car pools.

On March 7, 2008, Newell was driving his Jeep Cherokee when he collided with a car occupied by Michael and Kaitlin Lepper. At the time of the accident, Newell was delivering a pizza for his employer, Papa John’s. The record shows that Papa John’s paid Newell $4.00 per hour when he was making deliveries and $7.25 an hour when he was working inside the store. Newell would also keep any tips he received from customers. Generally, if Newell was not delivering pizza, he would have been working inside the store. Papa John’s also paid Newell $1.20 “per house” for deliveries. A Papa John’s representative testified that the purpose of this payment was “to cover their gas and wear and tear on their vehicle.” In its brief, Papa John’s asserts that the “per house payment was not some random fee that was disproportionate to the actual expenses incurred by the driver. Rather, this amount was generated by a computer program that addressed delivery mileage and other factors in setting the reimbursement.” But this assertion does not reflect the testimony of a Papa John’s representative, who testified that large arbitrary mileage numbers were plugged into the computer to ensure that the computer paid each driver $1.20 per delivery.

After the Leppers filed a personal injury action against Newell and Papa John’s, Progressive filed a declaratory judgment action against Newell, Papa John’s, the Leppers, Nationwide Insurance Company, and American Insurance Company (“American”) seeking a declaration that it had no duty to provide coverage or a defense under its policy. Papa John’s and American asserted a counterclaim seeking coverage and a defense for Papa John’s, in addition to a declaration that Progressive’s policy was primary. Progressive filed a motion for summary judgment, and Papa John’s and American filed a cross-motion for summary judgment with regard to the exclusion in Progressive’s policy. The trial court concluded that the policy language was ambiguous and therefore construed it in favor of coverage. It also concluded that Newell’s Progressive policy was “primary to all other coverage” and denied Progressive’s motion and granted summary judgment in favor of Papa John’s and American.

On appeal, the parties point to cases from other jurisdictions addressing similar exclusions in the context of pizza delivery, in addition to a nonbinding Georgia decision addressing different facts. Progressive asserts that its exclusion language (“carry . . . property for compensation or a fee”) is broader than the language at issue in the cases relied upon by Papa John’s and American (“carry property for a fee”). It also asserts that the $1.20 per delivery payment to Newell unequivocally triggers application of its exclusion.

Based upon our review of relevant cases from other jurisdictions, it appears a majority have concluded that the “for a fee” language is ambiguous and must therefore be construed in favor of the insured. See Prudential Property & Cas. Ins. Co. v. Sartno, 588 Pa. 205 (903 A2d 1170) (2006); United States Fidelity & Guaranty Co. v. Lightning Rod Mut. Ins. Co., 80 Ohio St. 3d 584, 586 (687 NE2d 717) (1997); Progressive Cas. Ins. Co. v. Metcalf, 501 NW2d 690, 692 (Minn. App. 1993); RPM Pizza v. Automotive Cas. Ins. Co., 601 S2d 1366, 1368-1369 (La. 1992); Pizza Hut of America v. West Gen. Ins. Co., 36 Ark. App. 16, 21 (816 SW2d 638) (1991). Compare Dhillon v. Gen. Accident Ins. Co., Case No. C14-90-00714, 1991 Tex. App. LEXIS 891 (Tex. App. April 11, 1991); Krauss v. DeRocili, Case No. 86C-NO-60, 1988 Del. Super. LEXIS 276 (Del. Super. August 2, 1988). The explanation of the ambiguity varies somewhat from jurisdiction to jurisdiction. For example, “the meaning of ‘fee’ may be construed narrowly to encompass only specific contracts of carriage such as when a person makes a definite payment to another to carry a specific piece of property.... On the other hand, the meaning sometimes might contemplate that a ‘fee’ could be compensation for labor.” RPM Pizza, supra, 601 S2d at 1368. See also Metcalf, supra, 501 NW2d at 692.

The Pennsylvania Supreme Court found the “for a fee” language ambiguous because

there are at least two perspectives that are reasonable: (1) using a broad interpretation, [the driver] did carry property for a fee because his deliveries occurred during the course of his employment, for which he received wages; or (2) under a narrower interpretation, [the driver] did not carry property for a fee because there was no delivery charge.

Sartno, supra, 903 A2d at 1177.

The Ohio Court of Appeals also concluded that the “for a fee” language can be read in two ways: “[F]irst, as excluding from coverage use of a vehicle to transport property when there is any kind of payment to the insured, and second, as excluding coverage only when a fee is paid specifically for the particular act of transporting property.” (Emphasis in original.) Lightning Rod, supra, 687 NE2d at 719. In a special concurrence, Judge Cook noted:

Although the decisions that find the “for a fee” exclusions ineffective to deny coverage typically on their faces narrowly rely on an “ambiguity” analysis focusing on the word “fee,” many of the decisions, often without directly so stating, appear to be influenced by the practical implications that would accompany allowing the exclusion to operate.

Id. at 720. The Pennsylvania Supreme Court agreed, listing examples of the “many potentially absurd results that could arise with a contrary holding.” Sartno, supra, 903 A2d at 1178.

Coverage would be excluded for anyone carrying persons or property during the course of their employment, and Appellants describe the following examples: (1) an attorney taking a motion to the courthouse; (2) judges bringing briefs from the courthouse to their offices; (3) employees driving co-workers to seminars; and (4) teachers carrying exams home to grade.

(Footnote omitted.) Id.

In a case not involving pizza delivery, this court concluded that a “for a fee” policy exclusion was ambiguous in the context of a Salvation Army employee driving kettle workers to and from their job sites. The employee received an hourly wage and 20 cents per mile reimbursement for gasoline and wear and tear on her automobile. First Ga. Ins. Co. v. Goodrum, 187 Ga. App. 314, 316 (370 SE2d 162) (1988) (physical precedent only). We reasoned:

[I]n the case at hand it is ambiguous whether the exclusion for carriage of persons “for a fee” covers only the situation where passengers pay an amount for their own transport or whether the exclusion also covers the situation where, as here, an employee is being paid by his employer to carry other employees and receives only an hourly rate plus mileage reimbursement.

(Punctuation omitted.) Id.

The policy exclusion now before us, however, applies to property carried “for compensation or a fee.” (Emphasis supplied.) The few courts that have addressed this newer exclusion in the context of pizza delivery found the addition of the word “compensation” significant and concluded that the exclusion unambiguously applied to the particular facts of the case before them. See Progressive Paloverde Ins. Co. v. Bishop, CaseNo. 1:11-cv-00290-TWP-DKL, 2012 U. S. Dist. LEXIS 87428 (S.D. Ind. June 25, 2012) (driver “appears” to have received a fee based upon payment of 50 cents per pizza and also received compensation based upon hourly wage); Discover Property & Cas. Co. v. Progressive Cas., Case No. 96125, 2011 Ohio App. LEXIS 3236 (Ohio App. August 4, 2011) (exclusion applies if “payment to drivers in any form for the deliveries, not just a specific sum” because use of word “compensation” resolved ambiguity caused by use of word “fee”); Progressive Cas. Ins. Co. v. Chalfant, Case No. 1:-09-cv-56, 2010 U. S. Dist. LEXIS 4955 at *11 (N.D. Ind. January 22, 2010) (delivery was insured’s primary responsibility at Pizza Hut; separate payment for delivery not required); Bristol West Ins. Co. v. Tzortinis, Case No. 06-cv-14158, 2007 U. S. Dist. LEXIS 80460 at *14 (E.D. Mich. October 31, 2007) (insured received “compensation” for delivery based upon hourly wage, $1.50 payment per delivery, and tips for deliveries).

Decided March 12, 2013.

Worsham, Cor si, Scott & Knighten, Hugh M. Worsham, Jr., for appellant.

Callaway, Braun, Riddle & Hughes, Edward M. Hughes, Brannen, Searcy & Smith, Daniel C. Cohen, for appellees.

In this case, it is undisputed that Newell was paid a different hourly wage while delivering pizzas and that he received a per delivery payment of $1.20. Based upon these particular facts and circumstances, as well as the broader policy language of “for compensation or a fee,” we conclude that the exclusion unambiguously applies to the accident at issue in Progressive’s petition for declaratory judgment. We note, however, the potential for absurd results that could result from a broad application of our holding in this case to one involving a different factual scenario, such as those described in Sartno, supra. We therefore reiterate that our holding in this case should not be expanded beyond the particular facts and circumstances now before us.

Based upon our conclusion that the exclusion unambiguously applies in this case, we reverse the trial court’s grant of summary judgment in favor of Papa John’s and American and the denial of summary judgment in favor of Progressive.

Judgment reversed.

Doyle, P. J., and Andrews, P. J., concur.

       Nationwide issued an uninsured motorist insurance policy to the Leppers.

       American Insurance Company admitted that it issued a commercial liability policy to Papa John’s covering Newell’s accident with policy limits equal to or greater than the policy issued to Newell by Progressive. Progressive provided a defense to Newell in the Leppers’ action, while American defended Papa John’s.

       Progressive represents on appeal that Newell, the Leppers, and Nationwide Insurance “have resolved their claims and are not expected to take an active role in this litigation.” None of these parties filed a brief in this court.

       We note that some of the exclusions at issue in these cases contained additional language following the use of the words “for compensation or a fee,” but the court’s analysis nonetheless turned on application of the word “compensation.” See, e.g., Bishop, supra, 2012 U. S. Dist. LEXIS 87428 at *6 (exclusion for “bodily injury or property damage arising out of the . . . use of any vehicle . . . while being used to carry person or property for compensation or a fee, including, but not limited to pickup or delivery of. . . food”).

       In a case not involving pizza delivery, one court noted “[w]e can see no real difference between the two different phrases. Whether it is called ‘compensation’ or is called a ‘fee,’ the Supreme Court has instructed that the exclusion is not triggered unless the insured is being paid exclusively and specifically for carrying or delivering persons or property.” Progressive Max Ins. Co. v.Matta, 2008 Ohio App. LEXIS 971 (Case No. 07 MA 30, decided March 11, 2008). A different Ohio appellate court, however, disagreed with the holding in Matta, see Discover Property & Cas. Co. v. Progressive Cas., Case No. 96125, 2011 Ohio App. LEXIS 3236 (Ohio App. August 4, 2011), and it has not been relied upon by other jurisdictions.

       While Papa John’s and American assert that this payment was simply for mileage and wear and tear, as noted above, the record shows without dispute that the payment was made on a per delivery basis with no correlation to actual miles driven by Newell.

       We express no opinion on whether the exclusion at issue here would violate public policy to the extent of the compulsory insurance coverage required by Georgia law. See Woody v. Ga. Farm Bureau Mut. Ins. Co., 250 Ga. App. 454 (551 SE2d 836) (2001). The issue has not been raised or ruled upon in the trial court, and evidence in the record shows other insurance may be available.


author: MCMILLIAN, Judge.

text:
    A12A2291.
    GRIFFIN BUILDERS, LLC et al. v. SYNOVUS BANK.
    (739 SE2d 760)
   MCMILLIAN, Judge.

Griffin Builders, LLC, Brenda Griffin, and Eric Griffin appeal the trial court’s order granting summary judgment to Synovus Bank on their complaint seeking, inter alia, monies derived from excess proceeds allegedly obtained at a foreclosure sale. We affirm for the reasons set forth below.

On January 26, 2005, Griffin Builders signed a note in the amount of $502,688, in favor of CB&T Bank of Middle Georgia, Synovus’s predecessor in interest (CB&T and Synovus hereinafter collectively referred to as the “Bank”). This note was secured by a security deed on Lot 5 of the Mill Pond Plantation Subdivision (the “Mill Pond Security Deed”). On May 16,2008, Griffin Builders signed a renewal note, which reduced this debt to $455,527 (“Note 20”) and which was also secured by the Mill Pond Security Deed, as well as individual guaranties signed by Eric and Brenda Griffin. The purpose of Note 20, as referenced on its face, was to “refinance [a] spec loan.”

On April 29, 2005, Griffin Builders signed a separate note in the amount of $35,525 in favor of the Bank. This note was secured by a security deed with respect to Lots 1, 2, 3, 4, 5, 6, and 7 of the Griffin Walk Subdivision (the “Griffin Walk Security Deed”). On May 16, 2008, Griffin Builders executed a renewal note in favor of the Bank in the amount of $121,108, with the stated purpose of renewing a “spec loan” (“Note 18”). Note 18 states that it is secured by guaranties signed by Eric and Brenda Griffin, as well as by the Griffin Walk Security Deed, with a parenthetical reference to “(Lot 5 Griffin Walk S/D).” Under the terms of the Note, default occurs if Griffin Builders fails to make a payment under the note or fails “to pay, or keep any promise [ ] on any debt or agreement [Griffin Builders has with the Bank].” The same day, Griffin Builders signed a separate $1,200 renewal note to refinance a spec loan with respect to construction on Lot 2, Griffin Walk Subdivision (“Note 21”). As with Note 18, Note 21 states that it was secured by the Griffin Walk Security Deed, but with a parenthetical reference to “(Lot 2 Griffin Walk S/D),” as well as by guaranties signed by the Griffins. Note 21 contains the same default provisions as Note 18.

Both the Mill Pond and the Griffin Walk Security Deeds provide, in relevant part:

This Security Instrument secures to [the Bank]: (a) the repayment of the Loan, and all renewals, extensions and modifications of the Note; [and] (b) the repayment of any and all other Indebtedness now owing or which may hereafter be owing by [Griffin Builders] to [the Bank], however incurred.

At some point, Griffin Builders apparently failed to meet its obligations, at least under Notes 18 and 20, because the Bank made two written demands for payment on an outstanding balance of $479,214.40 on Note 20 and a balance of $75,525.75 on Note 18. In addition, the Bank sent Griffin Builders a “Notice of Sale Under Power,” on each of the two security deeds. The Bank also placed notices of the sales in the appropriate legal organ with regard to each security deed. At a foreclosure sale on June 2, 2009, the Bank purchased Lot 5 of the Mill Pond Plantation Subdivision under the Mill Pond Security Deed, for $281,320. The Bank attempted to obtain confirmation of this foreclosure sale, but confirmation was denied. At a foreclosure sale on June 2, 2009, the Bank acquired Lots 2 and 5 of the Griffin Walk Subdivision for a bid of $76,352, which the Bank asserts is the approximate amount of the debt owed under both Note 18 and Note 21. On June 30, 2009, the Bank sold Lots 2 and 5 of Griffin Walk to a third party for a total purchase price of $80,000.

Griffin Builders and the Griffins (hereinafter collectively referred to as “Griffin Builders”) filed their complaint seeking to recover “excess proceeds” on August 16, 2010. The complaint alleges that the Bank paid less than the appraised fair market value for the properties and then sold them to a third party and pocketed the difference. Griffin Builders seeks to recover these “excess proceeds” from the Bank. The Bank moved for summary judgment on April 1, 2011, and Griffin Builders filed its opposition to the summary judgment motion on May 19, 2011. The next day, May 20, 2011, the trial court entered an order granting the Bank’s motion for summary judgment, after finding that the motion was unopposed. This appeal ultimately resulted.

On appeal, Griffin Builders asserts that the grant of summary judgment was improper because genuine issues of material fact exist as to whether (1) the Bank was obligated under the terms of the parties’ security agreement to disburse excess proceeds from its foreclosure sale with regard to the Griffin Walk properties; and (2) the Bank was unjustly enriched by its retention of the proceeds of the sale of the Griffin Walk properties to a third party after confirmation was denied on the Mill Pond foreclosure sale.

We note first that Griffin Builders failed to file a timely response to the Bank’s motion for summary judgment. Under a scheduling order issued by the trial court, Griffin Builders was required to respond to the Bank’s motion by May 6,2011, and their response, filed on May 19, was 18 days late.

Nevertheless, there is no such thing as a default summary judgment. By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and the evidence that the party so moving is entitled to prevail.

(Citation and punctuation omitted.) Ackerman & Co. v. Lostocco, 216 Ga. App. 242, 244 (1) (454 SE2d 792) (1995).

In any event, Griffin Builders’ responsive filings contain no additional evidence in opposition to the Bank’s motion. In particular, Griffin Builders failed to file any evidence relating to the Bank’s resale of the Griffin Walk properties to the third party. Although the “Plaintiffs’ Concise Statement of Material Facts For Which There Exists Material Facts to Be Tried” filed by Griffin Builders references “deed records obtained from the Superior Court attached collectively as ‘Exhibit B,’ ” purportedly relating to these resales, no such exhibit appears in the appellate record.

To the extent that the record is somehow incorrect, we note that [Griffin Builders], as appellant[s], bore the burden of ensuring an accurate and complete record on appeal. In order for an appellate court to make a determination about the correctness of a judgment at issue, it is the appellant’s duty to include in the record on appeal the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment.

(Citation and punctuation omitted.) Strickland v. Leake, 311 Ga. App. 298, 303 (715 SE2d 676) (2011) (on motion for reconsideration). Thus, in considering Griffin Builders’ arguments on appeal, we are left with only an admission by the Bank that it sold Lots 2 and 5 of Griffin Walk for $80,000 to a third party on June 30, 2009, approximately four weeks after the foreclosure sale.

1. The loans on the Griffin Walk properties were governed by the terms of the Griffin Walk Security Deed, which granted the Bank the power to sell the properties “at public auction to the highest bidder,” and further provided that the Bank itself could purchase the properties. “It is well settled that a [lender] may purchase the mortgaged property at a sale by him under a power of sale in the [security deed], if by the terms of the [deed] he is expressly authorized to do so.” (Citations and punctuation omitted.) Miller Grading Contractors v. Ga. Fed. Sav. & Loan Assn., 247 Ga. 730, 732 (1) (e) (279 SE2d 442) (1981). Although Georgia law requires that the power of sale be fairly exercised, that requirement does not include a duty to sell the property at the property’s fair market value. Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 328 (1) (270 SE2d 867) (1980); OCGA § 23-2-114. And “[i]f the creditor has no intention of seeking a deficiency against the debtor there is little reason for the creditor to be concerned with the relationship between the sales price and market value of the property.” Frank S. Alexander, Ga. Real Estate Finance and Foreclosure Law § 8:5 (2012-2013 ed.). Therefore, “when a power of sale is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.” (Citation and punctuation omitted.) Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. at 330 (1). An inadequate price standing alone, therefore, is not sufficient to find that the sale was not conducted in good faith. Rather,

[i]t is only when the price realized is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price that such a sale may be set aside by a court of equity.

(Punctuation omitted.) Id. See also Cartersville Developers v. Ga. Bank & Trust, 292 Ga. App. 375, 377 (664 SE2d 783) (2008).

In this instance, the Bank bid $76,352, which it asserts was the amount of Griffin Builders’ outstanding debt on Notes 18 and 21. And indeed, the Bank’s demand letters to Griffin Builders reflect that the amount due and owing on Note 18 at the time was $75,525.75. Although the Bank did not make a formal demand under Note 21, that note was originally for $1,200 and also was securedby the Griffin Walk Security Deed, which provided that the Griffin Walk property referenced in the deed, including Lots 2 and 5, secured any and all indebtedness that Griffin Builders owed to the Bank. Griffin Builders presented no evidence to dispute the Bank’s figures regarding the amount of the indebtedness owed on Notes 18 and 21 relating to Lots 2 and 5 of Griffin Walk. Thus, Griffin Builders has failed to point to any evidence establishing that the Bank acquired any excess proceeds in the foreclosure sales on these properties.

The Griffin Walk Security Deed further provides that the Bank “shall convey to the purchaser indefeasible title to the Property” and that Griffin Builders appointed the Bank its “agent and attorney-in-fact to make such conveyance.” And under Georgia law, the effect of the foreclosure sale is to transfer the borrower’s rights to the purchaser. As one commentator explained:

The effect of the foreclosure sale is to terminate the debtor’s equity of redemption and transfer it to the foreclosure sale purchaser. Assuming that a foreclosure is conducted in accordance with contractual and statutory requirements, the foreclosure sale purchaser acquires the rights that the former owner had at the time the former owner executed the security deed which was the subject of the foreclosure.

Alexander, Ga. Real Estate Finance and Foreclosure Law § 8:8. See Hornsby v. Holt, 257 Ga. 341, 342-343 (1) (359 SE2d 646) (1987); Interchange Drive, LLC v. Nusloch, 311 Ga. App. 552, 556 (716 SE2d 603) (2011). Following the foreclosure sale, therefore, Griffin Builders had no further rights in the property.

Accordingly, the approximately $3,648 the Bank realized in the third-party sale cannot be considered excess proceeds under the terms of the Griffin Walk Security Deed, and Griffin Builders has no claim against the Bank as to these funds.

2. We find no merit to Griffin Builders’ argument that the denial of confirmation as to the Mill Pond property somehow affected the Bank’s rights with regard to the Griffin Walk properties. Even if the failure to obtain confirmation of the foreclosure sale on the Mill Pond property may prevent the Bank from pursuing a deficiency judgment under Note 20 with regard to that property, we find no authority to support the argument that the denial of that confirmation had any effect on the Bank’s ability to sell the Griffin Walk property, which was financed under separate notes and purchased in a separate foreclosure sale, pursuant to a separate security deed.

The only purpose of [confirmation proceedings under] OCGA § 44-14-161 is to subject the creditor’s potential deficiency claim to the condition that the foreclosure sale under power be given judicial approval. Its purpose is to pass upon the notice, advertisement and regularity of the sale and to re-insure that the property was sold for a fair value. It provides debtors with formidable protection against gross deficiency judgments.

Decided March 12, 2013.

Robert A. Fricks, for appellants.

Page, Scrantom, Sprouse, Tucker & Ford, Travis C. Hargrove, Robert C. Brand, Jr., for appellee.

(Footnote omitted.) Howser Mill Homes v. Branch Banking and Trust Co., 318 Ga. App. 148, 151 (1) (733 SE2d 441) (2012). The record contains no evidence that the Bank sought to confirm the foreclosure sale as to the Griffin Walk properties or has sought to recover any deficiency against Griffin Builders arising out of Notes 18 and 21. The issue of confirmation, therefore, simply has no relevance to the sale of the Griffin Walk properties.

“Thus, we affirm the trial court, because a grant of summary judgment must be affirmed if right for any reason, whether stated or unstated.” (Punctuation and footnote omitted.) Pinnacle Properties V v. Mainline Supply of Atlanta, 319 Ga. App. 94, 99-100 (1) (b) (735 SE2d 166) (2012).

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       Although Griffin Builders presented appraisals showing a value of $104,000 on Lot 2 and $116,000 on Lot 5 of Griffin Walk, such evidence would go to the fair market value of the properties, which is not at issue here. Moreover, Griffin Builders presented no evidence of fraud, mistake, misapprehension, surprise or other circumstances sufficient to undercut the foreclosure sale itself.