author: MILLER, Presiding Judge. McMlLLIAN, Judge,

text:
    A16A1625.
    AKINTOYE v. THE STATE.
    (798 SE2d 720)
   MILLER, Presiding Judge.

Following a jury trial, Joseph Akintoye was convicted of two counts of theft by taking (OCGA § 16-8-2), two counts of theft by deception(OCGA § 16-8-3), twocounts of exploitation ofan elder person (OCGA § 30-5-8 (2012)), one count of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO) (OCGA § 16-14-4 (2012)), and three counts of money laundering (OCGA § 7-1-915). Akintoye appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to support his convictions. Akin-toye also contends that the trial court erred in allowing improper hearsay testimony, allowing a text message exhibit to go with the jury during deliberations, and allowing a witness to testify as an expert with regard to evidence of other bad acts. Finally, Akintoye argues that his trial counsel was constitutionally deficient. For the reasons that follow, we affirm.

Viewed in the light most favorable to his convictions, the evidence shows that Akintoye resided in Jacksonville, Florida, where he ran an international car sales business, and he conspired with Liza-beth Crawford (“Crawford”) to scam money from the elderly. Crawford would receive wired money into her bank account, from Akin-toye’s victims and other sources, then withdraw and deposit a similar or slightly lesser amount into Akintoye’s bank account according to his instructions. Over a period of eighteen months, Crawford received approximately $200,000, which she then withdrew as cash or wired out of her account.

On several occasions, money was withdrawn from Crawford’s account and deposited into Akintoye’s account very soon thereafter. Each time Crawford transferred funds into Akintoye’s account, she retained approximately $650 to $1,500 of the original funds.

In this case, Akintoye was charged with crimes involving three victims, D. R., J. R. and J. M. With regard to these victims, the evidence pertinently showed:

D. R.

In 2012, D. R., a 74-year-old widow who lives in New York, began corresponding with someone through Match.com. This individual misled D. R. into believing that he was an American father and businessman, who was having financial difficulty in Malaysia and was trying to return to his children in New York City On February 14 and 19, 2013, D. R. was directed to wire $35,000 into Crawford’s bank account under the auspice that this man needed this money for his hotel and if he did not pay the money he would be arrested. D. R. sent two wire transfers to Crawford’s account — one for $25,000 and one for $10,000.

Crawford withdrew the first payment of $25,000 and deposited it into another account, and most of that money was then wired to Nigerian and Malaysian banks. With regard to the $10,000 payment, all but $100 was withdrawn and deposited into another of Crawford’s accounts, from which it was wired to the same foreign bank accounts.

J. M.

J. M. died about one month prior to trial; therefore, his grandson testified about the scam. The grandson testified that, on April 18, 2013, 91-year-old J. M. received a phone call at his home from a caller who identified himself as J. M.’s grandson. The caller told J. M. that he was in prison and needed J. M. to wire him money to secure his release. At trial, the grandson testified that J. M. immediately went to Wells Fargo, as instructed by the caller, and wired $6,250 to Crawford’s bank account. Later that evening, J. M. spoke to the grandson and was “very surprised” when he learned that the grandson had neither been in prison, nor spoken to him earlier that day When the embarrassed, confused, and “distraught” J. M. learned that the earlier caller was not his grandson, they promptly notified Wells Fargo seeking to stop the transfer.

That same day, Crawford went to a Cobb County Wells Fargo branch and withdrew $6,175 of the funds J. M. had wired, and Crawford then deposited $5,555 into Akintoye’s account. Akintoye then texted Crawford asking, “Have you sent the money yet?” The withdrawal and deposit slips were later found in Crawford’s possession, and the $5,555 deposit appeared in Akintoye’s bank account records.

J. R.

On April 22, 2013, 82-year-old J. R. received a phone call at her New Jersey home from a caller who identified himself as her grandson. The caller told J. R. that he had a cold and would not sound like himself, and said he was in jail and needed bail money. The caller informed J. R. that a deputy needed to speak with her. J. R. then spoke to a man who said he was the deputy, and who told her that her grandson needed $6,500 to secure his release. Based on the caller’s instructions, J. R. went to Wells Fargo and deposited $6,500 into Crawford’s account.

That same day, Crawford received a text message from Akintoye instructing her to check her Wells Fargo account for a “6 K five deposit.” Meanwhile, J. R. spoke with her actual grandson and learned that the prior phone call had been a scam, so she promptly notified Wells Fargo and the police. Wells Fargo’s video surveillance system recorded Crawford trying to withdraw J. R.’s funds from a Cobb County branch.

Following his trial, Akintoye was convicted of two counts of theft by taking, based on D. R.’s $25,000 and $10,000 transfers; two counts of theft by deception based on the $6,250 wire transfer from J. M. and the $6,500 wire transfer from J. R.; two counts of exploitation of an elder person based on the funds taken from 91-year-old J. M. and 82-year-old J. R.; one count of violating RICO; and three counts of money laundering. This appeal ensued.

1. Akintoye contends that the evidence was insufficient to support his convictions. We disagree.

As an initial matter, we note that each count in Akintoye’s indictment included language stating that he committed the crimes as a co-conspirator and party to the crime.

A person who does not directly commit a crime may nevertheless be convicted as a party to that crime upon proof that he or she intentionally aided or abetted the commission of the crime, or intentionally advised, encouraged, hired, counseled, or procured another to commit the crime. All of the participants in a plan to [commit a crime] are criminally responsible for the acts of each, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan.

(Citations omitted.) Cisneros v. State, 299 Ga. 841, 846-847 (2) (792 SE2d 326) (2016). With regard to co-conspirators,

[t]he question of the existence of a conspiracy is ultimately for the jury to determine. The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence. It may be shown by conduct as well as by direct proof or express agreement, by inference as well as deduction from conduct which shows common design on the part of persons charged to act together for the accomplishment of the unlawful purpose.

(Citations and punctuation omitted.) Brown v. State, 177 Ga. App. 284, 295 (9) (339 SE2d 332) (1985). “It is well settled that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation the act of all.” (Citation and punctuation omitted.) Id. Moreover,

[t]he type of agreement necessary to form a conspiracy is not the meeting of the minds necessary to form a contract and may be a mere tacit understanding between two or more people that they will pursue a particular criminal objective.

(Citation and punctuation omitted.) Kilgore v. State, 251 Ga. 291, 299 (3) (c) (305 SE2d 82) (1983).

(a) Theft by Taking

A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.

OCGA § 16-8-2. The evidence as set forth was sufficient to support Akintoye’s convictions as a co-conspirator and party to the crimes of theft by taking for unlawfully taking $25,000 from D. R. on or about February 14, 2013, and taking $10,000 from D. R. on or about February 19, 2013. See Williams v. State, 297 Ga. App. 150, 151 (1) (676 SE2d 805) (2009) (affirming defendant’s theft by taking convictions based on evidence that defendant participated in scheme to transfer victim’s cash into a third-party account and then withdrew the cash); Cisneros, supra, 299 Ga. at 847 (2) (jury was authorized to convict defendant as a co-conspirator to sexual battery).

(b) Theft by Deception

“A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property” OCGA § 16-8-3 (a). Here, the evidence as set forth above was sufficient to sustain Akintoye’s convictions as a party to the crimes of theft by deception for taking $6,250 from J. M. and $6,500 from J. R. by deceitful means with the intention of depriving the victims of their property. See, e.g., Harris v. State, 324 Ga. App. 411, 414 (1) (c) (750 SE2d 721) (2013) (evidence supported defendant’s conviction for theft by deception where he deceived tenants into paying rent where he lacked authority to rent premises).

(c) Exploitation of an Elder Person

Exploitation is the illegal or improper use of an elder person’s resources for profit or advantage. OCGA § 30-5-8; see also Marks v. State, 280 Ga. 70, 72 (1) (a) (623 SE2d 504) (2005). Here, the evidence showed that Akintoye deceived 91-year-old J. M. and 74-year-old D. R. into wiring money to Crawford’s account. Specifically, Akintoye falsely convinced J. M. that J. M.’s grandson needed bail money and he falsely convinced D. R. that he was in financial difficulty in Malaysia and was trying to return to his children in the United States. This evidence was sufficient for the jury to find Akintoye guilty of two counts of exploitation of an elder person. See Marks, supra, 280 Ga. at 72 (1) (a) (defendant’s use of elder person’s credit card to wire more than $5,000 by Western Union to defendant’s relative supported his conviction for elder abuse).

(d) RICO

Georgia’s RICO statute, OCGA § 16-14-4 (a) (2012) provided: “It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money” Racketeering activity includes the commission of theft by taking and theft by deception. See OCGA § 16-14-3 (5) (A) (xii). Here, Akintoye’s RICO conviction was predicated on his commission of theft by receiving and, because the evidence was sufficient to sustain his convictions for these predicate acts, the evidence was also sufficient to sustain Akintoye’s RICO conviction. Kilby v. State, 335 Ga. App. 238, 242 (1) (a) (780 SE2d 411) (2015).

(e) Money Laundering in Violation of OCGA § 7-1-915

Neither this Court, nor the Supreme Court of Georgia, has addressed the sufficiency of the evidence necessary to support a conviction for money laundering under OCGA § 7-1-915; therefore, this is an issue of first impression. Accordingly, we look to the plain language of the statute and, under the rules of statutory construction, we presume that the General Assembly means what it says and says what it means. Williams v. State, 299 Ga. 632, 633 (791 SE2d 55) (2016).

To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citation omitted.) Id.

With regard to the specific language in Akintoye’s indictment, each of the money laundering counts charged that he

did conduct and attempt to conduct a currency transaction, knowing that [monies] involved in the transaction represented proceeds of some form of unlawful activity, and the transaction did in fact involve the proceeds of specified unlawful activity[.]

Moreover, in two of the money laundering counts, the State charged that Akintoye caused the specified victim

to wire money into the Wells Fargo bank account of Lizabeth Crawford..., whereupon the money was withdrawn and sent to a different individual, and these transactions, both the deposits and withdrawals, involved proceeds of theft in an amount greater than $1,500.00 and acts constituting a pattern of racketeering activity[.]

(Emphasis supplied.) The third count charged that Akintoye caused the specified victim

to wire money into the Wells Fargo bank account of Lizabeth Crawford..., whereupon [Akintoye] attempted to withdraw the money for purposes of sending to another individual, and these transactions, both the deposits and attempted withdrawal, involved proceeds of theft in an amount greater than $1,500.00 and acts constituting a pattern of racketeering activity [.]

(Emphasis supplied.)

As is pertinent to this appeal, the plain language of OCGA § 7-1-915 provides that a person commits the offense of money laundering when that person

knowing that the [monies] involved in a currency transaction represent the proceeds of some form of unlawful activity, conducts or attempts to conduct such a transaction which in fact involves the proceeds of specified unlawful activity: . . . [w]ith the intent to promote the carrying on of specified unlawful activity[.]

OCGA § 7-1-915 (c).

Accordingly, Akintoye’s indictment created four elements that the State had to prove: (1) Knowledge that the funds involved in a currency transaction represented the proceeds of unlawful activity; (2) Conducting or attempting to conduct a transaction which involves the proceeds of the specified unlawful activity; (3) Using the funds or proceeds from the specified unlawful activity; and (4) Acting with the intent to promote the carrying on of the specified unlawful activity In this case, the specific unlawful activity was the deposit and withdrawal, or the attempted withdrawal, of more than $1,500 in funds obtained through theft or deception from D. R., J. M., and J. R.

Here, the evidence met the first two elements — knowingly conducting a transaction involving the proceeds of the specified unlawful activity — because the jury was authorized to find that Akintoye was part of a conspiracy which knowingly deceived D. R., J. M. and J. R. into believing that they had to wire funds into Crawford’s accounts which resulted in the victims effectuating those wire transfers.

The evidence also met the third and fourth elements — using the funds from the specified unlawful activity with the intent to promote the carrying on of that activity The evidence showed that Akintoye intentionally had Crawford withdraw or attempt to withdraw and then deposit or attempt to deposit the funds which were obtained through Akintoye’s and Crawford’s conspiracy to scam the victims, into accounts which Akintoye controlled. Moreover, each of these actions promoted Akintoye’s illegal activities of scamming the elderly including his pattern of racketeering. Consequently, the evidence was sufficient to support Akintoye’s convictions for three counts of money laundering.

2. Akintoye contends that the trial court violated his Sixth Amendment right to confrontation by allowing improper hearsay evidence concerning J. M. We discern no error.

“The [Confrontation [Cjlause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant.” (Citations and punctuation omitted.) Jackson v. State, 291 Ga. 22, 24 (2) (727 SE2d 106) (2012); see also Crawford v. Washington, 541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004).

At issue is the trial court’s admission of testimony by J. M.’s grandson. Pretermitting whether Akintoye waived this issue, J. M.’s statements to his grandson were not testimonial in nature and therefore did not implicate the Sixth Amendment. Wilson v. State, 295 Ga. 84, 86 (2), n. 4 (757 SE2d 825) (2014) (“[A] conversation between family members with no expectation that it would be used at a criminal trial was clearly not testimonial and therefore did not implicate the Sixth Amendment.”) (citations omitted).

3. Akintoye also contends that the trial court erred in admitting J. M.’s grandson’s testimony on the ground that it constituted inadmissible hearsay. We do not agree.

(a) Excited Utterance

J. M.’s statements to his grandson were admissible under the excited utterances exception to Georgia’s hearsay rule, which defines an excited utterance as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” OCGA § 24-8-803 (2). In determining whether statements are made under the stress of the exciting event, this Court may consider the time lapse between the exciting evidence and whether the declarant made the statement spontaneously and in the absence of prompting. See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 582 (4th ed. 2016).

While the declarant must still be under the stress or excitement that the startling event caused, the excited utterance need not be made contemporaneously to the startling event. It is the totality of the circumstances, not simply the length of time that has passed between the event and the statement, that determines whether a hearsay statement was an excited utterance.

Robbins v. State, 300 Ga. 387, 389-390 (2) (793 SE2d 62) (2016). Moreover, “[t]estimony that the declarant appeared nervous and upset, combined with a reasonable basis for emotional upset, will usually suffice for admission under the excited utterance exception.” (Citation and punctuation omitted.) Daniel v. State, 285 Ga. 406, 410 (6) (677 SE2d 120) (2009) (reviewing admissibility of an excited utterance under Georgia’s old Evidence Code).

Here, the evidence shows that J. M. was 91 years old; he made the statements in question to his grandson immediately after learning that he had been scammed into wiring more than $6,000 by a man who falsely posed as his grandson; and when J. M. made the statements, he was confused and very distraught. Under the totality of the circumstances, these statements were made under the stress of excitement caused by a startling event and the statements related to the startling event. See Daniel, supra, 285 Ga. at 410-411 (6). Consequently, J. M.’s statements were admissible under the excited utterance exception to the hearsay rule. See Robbins, supra, 300 Ga. at 390 (2) (statement victim made while under stress following a beating was admissible as an excited utterance); Wilson, supra, 295 Ga. at 87 (2) (statements made while declarant was upset and emotional due to an attack on his stepson were admissible as excited utterances).

(b) Residual Exception

The residual exception to the hearsay rule, which is now set forth in OCGA § 24-8-807 provides:

A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence. . . .

There are six requirements for the admissibility of evidence under the residual hearsay exception:

(1) The hearsay declarant is unavailable as a witness; (2) The statement is evidence of a material fact; (3) No comparable evidence is available to the proponent through reasonable efforts; (4) The statement shows circumstantial guarantees of trustworthiness; (5) The proponent provides pre-trial notice of intent to offer the statement under this exception; and, (6) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.

Paul S. Milich, Georgia Rules of Evidence, § 19:32 (October 2016).

First, J. M. died prior to trial and, therefore, he was clearly unavailable to testify as a witness. Second, his statements to his grandson provided evidence of a material fact — that he wired money under false pretense. Third, the circumstances provided sufficient guarantees of trustworthiness, given J. M.’s close relationship with his grandson, the absence of any indication that J. M. had a reason to be untruthful, and the similarity between what was told to J. M. and to J. R. Fourth, there was no other comparable evidence that J. M.’s wire transfer was induced by fraud. Fifth, the State gave pretrial notice of its intent to offer J. M.’s statements. Sixth, the general purposes of the evidence rules and the interests of justice were best served by admission of J. M.’s statements because otherwise the State could not prosecute the crime against J. M.

Moreover, the evidence of J. M.’s statements was more probative than any other evidence because the State had no other evidence showing why J. M. wired the money into Crawford’s account. Consequently, the grandson’s testimony regarding J. M.’s statements was admissible under the residual exception to the hearsay rule. See OCGA § 24-8-807; Williams v. State, 299 Ga. 209, 212-213 (2) (787 SE2d 187) (2016) (victim’s statement to his cousin was admissible under residual exception to old hearsay rule, because victim was close to his cousin, victim had no apparent motive to fabricate statement, statement was relevant to material fact and statement was the only evidence providing a necessary link in the case).

4. Akintoye contends that the trial court erred in allowing a text message exhibit to go back to the jury room during deliberations in violation of the continuing witness rule.

Without citing to the record, Akintoye contends that the trial court should not have allowed the exhibit containing Crawford’s text messages to go back to the jury room. Akintoye did not raise a continuing witness objection, either when the exhibit was admitted or when it was included in the exhibits sent to the jury room. Consequently, Akintoye has not preserved this argument for appeal. See Zellars v. State, 278 Ga. 481, 482-483 (2) (604 SE2d 147) (2004); Flournoy v. State, 266 Ga. 618, 618-619 (2) (469 SE2d 195) (1996).

5. Akintoye contends that the trial court erred in allowing the State’s forensic accounting and fraud expert to testify about extrinsic acts evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”) relating to Akintoye’s bank account records. We disagree.

(a) Akintoye first contends that the trial court erred in failing to rule on the State’s tender of the expert; however, Akintoye specifically stated that he had no objection when the State tendered the expert. Accordingly, this argument presents nothing for us to review.

(b) Akintoye’s contention that the trial court erroneously allowed the expert to testify about extrinsic acts is equally unavailing, because the State did not tender Rule 404 (b) evidence through the testimony of its forensic expert. Rather, the expert testified that he reviewed Akintoye’s and Crawford’s bank accounts for evidence of money laundering and he found that the accounts had unusual transactions, such as large amounts of money going in via cash deposits or electronic transfers and nearly the same amount being withdrawn as cash within two to three days. Although the expert also testified about Akintoye’s car sales business, tax issues, and offshore bank accounts, he did so only after Akintoye opened the door to that evidence on cross-examination.

Upon consideration, we find that this evidence was admissible as intrinsic evidence related to the charged offenses. See Baughns v. State, 335 Ga. App. 600, 602-603 (1) (782 SE2d 494) (2016). Evidence is intrinsic if it is necessary to complete the story or is inextricably intertwined with the charged offense. Satterfield v. State, 339 Ga. App. 15, 19 (1) (a) (792 SE2d 451) (2016). Moreover, intrinsic evidence is not subject to Rule 404 (b)’s limitations. Baughns, supra, 335 Ga. App. at 602 (1); see also United States v. Ford, 784 F3d 1386, 1393 (II) (C) (11th Cir. 2015) (evidence of uncharged conduct that is necessary to complete the story of the crimes or is inextricably intertwined with the charged offenses falls outside of Rule 404 (b)). Here, all of the expert’s testimony that Akintoye challenges was intrinsic evidence, which was inextricably intertwined with proving the charged offenses and was necessary to complete the story of Akintoye’s pattern of criminal activity Consequently, the trial court did not err in allowing the expert’s testimony.

6. Finally, Akintoye contends that his defense counsel was constitutionally deficient for failing to preserve the record of jury selection. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. See Strickland v. Washington, 466 U. S. 668, 687 (104 SC[t] 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citation and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3) (729 SE2d 442) (2012).

Here, trial counsel testified at the motion for new trial hearing that he did not recall any issues or improprieties during jury selection and that the State asked no improper questions. “[A] general unspecified hope of reversible error during voir dire does not win a new trial on the ground a record should have been made so as to accommodate a search for error now buried in unrecorded history.” (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 859 (6) (e) (596 SE2d 597) (2004). Accordingly, Akintoye has not met his burden of showing that his trial counsel was constitutionally deficient, and we therefore affirm his convictions.

Judgment affirmed.

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

Decided March 16, 2017.

Brown Law, Angela Z. Brown, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, Amelia G. Pray, Assistant District Attorneys, for appellee.

McMlLLIAN, Judge,

concurring in judgment only.

While I concur with the result reached by the majority in this case, I do not agree with all that is said. Accordingly, I concur in the judgment only, and as a result, the majority’s opinion is not binding precedent. See Court of Appeals Rule 33 (a).

       Akintoye was also convicted of an additional theft by taking charge, three additional money laundering charges and an additional RICO charge. The trial court merged these additional charges for sentencing purposes.

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

       Crawford also worked with others to receive and then resend funds.

       Crawford, who testified for the State at Akintoye’s trial, pled guilty to two counts of theft by deception (OCGA § 16-8-3), involving two of the three victims in this case.

       As set forth above, the trial court merged Akintoye’s remaining convictions.

       Although Crawford deniedAkintoye’s role in this scam, he was charged as a co-conspirator in this case and the jury was authorized to find that he conspired with Crawford to scam his elderly victims. Brown, supra, 177 Ga. App. at 295 (9).

       Webster’s Dictionary pertinently defines the transitive verb “promote” as follows: “to advance; to contribute to the growth ... of; [or] to help bring (as an enterprise) into being.” See https://www.merriam-webster.com/dictionary/promote.

       With regard to the third victim, J. R., the evidence showed that Akintoye intentionally had Crawford attempt to withdraw the funds for the purpose of sending the funds to another individual.

       Because the evidence supported Akintoye’s convictions, the trial court did not err in denyingAkintoye’s motion for a directed verdict. See Stratacos v. State, 293 Ga. 401, 412 (4) (748 SE2d 828) (2013) (this Court reviews the denial of a directed verdict under the same standard used in evaluating the sufficiency of the evidence).

       Because Akintoye was tried after January 1, 2013, Georgia’s new Evidence Code was in effect and applicable to his case.

       Documents subject to Georgia’s continuing witness rule include: “affidavits, depositions, written confessions, statements, dying declarations, or other instruments of evidence whose sole value depends upon the credibility of the maker.” (Citations omitted.) McBurrows v. State, 325 Ga. App. 303, 310-311 (4) (750 SE2d 436) (2013).

       The record shows that the expert was a certified fraud examiner and he had worked on more than 100 cases related to forensic accounting.

       Without citing to the record or any authority, Akintoye also contends that trial counsel was deficient for failing to object to the trial court’s expert jury instruction and the State’s closing reference to the forensic expert. Each of these arguments is based on his contention that no expert testified because the trial court failed to rule on the State’s tender of its forensic expert. Although trial counsel objected to the jury instruction and closing argument, he did not object at trial to the expert’s qualification, and Akintoye does not argue on appeal that his trial counsel was deficient for failing to object to the State’s tender of its expert. Accordingly, Akintoye has not shown error in this regard.


source: Caselaw Access Project

author: Branch, Judge. ELLINGTON, Presiding Judge,

license: Public Domain

text:
    A16A1633.
    FAIR et al. v. CV UNDERGROUND, LLC et al.
    (798 SE2d 358)
   Branch, Judge.

After Mychal Fair was shot and killed on the premises of the Underground Atlanta shopping and entertainment district, his parents Michael Fair and Elizabeth Flynn (“appellants”) brought this wrongful death action in the Superior Court of Fulton County against CV Underground, LLC, and Underground Management, LLC (collectively, “Underground”), as the occupier of the property, and IPC International Corporation, which was under contract to provide security services. Michael Fair also asserted personal injury claims on behalf of the decedent’s estate. In this Court, appellants argue that the trial court erred when it granted summary judgment to Underground and IPC because genuine questions of fact remain as to their responsibility for the decedent’s death. We find no error and affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted).

Although we view the record in the light most favorable to appellants, the relevant facts are not in dispute. On the afternoon of August 12, 2013, 23-year-old Fair was shopping at Underground Atlanta with a friend. At 3:47 p.m., surveillance video captured a brief altercation just inside the entrance from the fountains plaza to the indoor shopping area. The surveillance video, recorded at a low frame rate, shows Fair leaving through the glass doors, immediately followed by his friend. The video also shows the eventual shooter, Brandon Barnes, approaching, addressing, and walking beside a man in a blue-striped shirt; the two men looking out onto the fountains plaza, where the victim had just gone; and walking back to and out of the bottom left of the frame.

Twenty seconds later, Fair’s friend reenters the lobby and throws a fire extinguisher at three men who face him: a man in a red shirt, a man in a white shirt, and the man in the blue-striped shirt, with whom Barnes had previously communicated. Less than ten seconds after the fight begins, Fair can be seen throwing punches to the left of a floor-mounted sign in the lobby. As Fair continues fighting, Barnes moves from behind the floor-mounted sign to the front of the sign, where he watches the fight, gesturing as he does so. Barnes soon walks back behind the floor-mounted sign, but reemerges as the victim exits the lobby. Shortly afterward, the man in the white shirt and Barnes leave the lobby, walking out to the plaza one behind the other. Approximately 30 seconds later, judging from the alarm shown by onlookers, the shooting takes place out of view.

It is undisputed that Barnes shot Fair on the stairs leading from the fountains plaza to the street level above, although there is no direct evidence of precisely how much time elapsed between the time Fair and Barnes exited the indoor shopping area onto the fountains plaza and the shooting. There is no evidence regarding any interaction between Barnes and Fair after they exited the indoor shopping area, and the record contains no eyewitness account of the shooting itself. No one from IPC’s security staff was in the area inside the entrance during the fight, and no one was outside in the fountains plaza.

After a hearing, the trial court granted Underground’s motion for summary judgment, based on its determination that, as a matter of law, Fair was a mutual combatant in the incident that caused him injury and, therefore, had knowledge of the danger that was superior to Underground’s knowledge. In the same order, the trial court granted IPC’s motion for summary judgment on the grounds that IPC did not owe Fair any duty as a third-party beneficiary to its contract with Underground and that there was no evidence that IPC committed any act that increased the risk of harm to Fair. This appeal followed.

1. Appellants contend that the trial court erred in granting Underground’s motion for summary judgment because a question of fact remains as to whether Fair voluntarily entered into conflict with Barnes, and thus as to whether Fair had superior knowledge of any risk of harm posed by any of the fight’s participants, including Barnes. We disagree.

Under Georgia law, an owner or occupier of land owes its invitees a duty “to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. A proprietor is not the insurer of the safety of its invitees, but is bound to exercise ordinary care to protect its invitees from unreasonable risks of which it has superior knowledge. Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). Generally, an intervening criminal act by a third party insulates a proprietor from liability unless such criminal act was reasonably foreseeable. Lau’s Corp., 261 Ga. at 492 (1); see also Six Flags Over Georgia II v. Martin, 335 Ga. App. 350, 360-361 (2) (a) (780 SE2d 796) (2015), cert. granted on other grounds, Case Nos. S16C0743 and S16C0750 (September 6, 2016).

“If [a] proprietor has reason to anticipate a criminal act,” however, that proprietor “then has a duty to exercise ordinary care to guard against injury from dangerous characters.” Lau’s Corp., 261 Ga. at 492 (1) (citation omitted); see also Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997). A plaintiff may establish that a criminal act was reasonably foreseeable on the part of the proprietor by showing the proprietor’s knowledge of a pattern of prior “substantially similar” crimes on the premises “so that a reasonable person would take ordinary precautions to protect his or her [invitees] against the risks posed by that type of activity.” Sturbridge Partners, 267 Ga. at 786; see also Double View Ventures v. Polite, 326 Ga. App. 555, 560-561 (1) (a) (757 SE2d 172) (2014).

“But even if an intervening criminal act may have been reasonably foreseeable, the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” Ratliff v. McDonald, 326 Ga. App. 306, 313 (2) (a) (756 SE2d 569) (2014) (citation and punctuation omitted; emphasis in original); Vega v. La Movida, Inc., 294 Ga. App. 311, 315 (2) (670 SE2d 116) (2008). Specifically, when a person is injured in the course of mutual combat, the combatants are deemed to have superior knowledge of the risk of harm, because “by their voluntary participation, [the combatants] have selected the time, date, and place for the altercation.” Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1) (459 SE2d 465) (1995); see also Habersham Venture v. Breedlove, 244 Ga. App. 407, 411 (4) (535 SE2d 788) (2000). “Mutual combat exists where there is a fight with dangerous or deadly weapons and when both parties are at fault and are willing to fight because of a sudden quarrel.” (Citation omitted.) Sailors, 217 Ga. App. at 813 (1). In such a case, “[a]ny injuries to the combatants resulted from their own conduct[;] under such circumstances, the existence of prior criminal acts on the premises is irrelevant and cannot form a basis for liability on the premises owner.” Id.

Here, Fair had already engaged in combat, and thus had knowledge superior to Underground’s of any danger of retaliation by any of those persons participating at any point in the combat, including the shooter Barnes. Although appellants and the dissent would have it otherwise, nothing in our case law authorizes the reversal of summary judgment to a property owner on the grounds that a fighting plaintiff had no previous acquaintance with his attackers or was attacked by a person different, from those who initiated the fight. Thus in Rappenecker v. L. S. E., Inc., 236 Ga. App. 86 (510 SE2d 871) (1999), we held that even when a plaintiff who enters a fight is attackedby more than one person, he is held as a matter of law to have “knowledge superior to that of [the property owner] of the possible risk of additional trouble,” id. at 88 (2), including a second assailant who “joined in the ensuing criminal assault” and later pled guilty to aggravated battery. Id. at 87. Likewise, in Fagan v. Atnalta, Inc., 189 Ga. App. 460 (376 SE2d 204) (1988), we affirmed a grant of summary judgment to a bar owner when a patron who intervened to protect a female bartender from a group of men being ejected from the bar was beaten by the same group of men as a result. Without making any distinction between the stages of the brawl inside and outside the bar, we held that “an adult of ordinary intelligence will be held to be aware of manifest risk or danger of possible injury when he deliberately and voluntarily joins in an affray, as a matter of law.” Id. at 461 (citations omitted); see also Habersham, 244 Ga. App. at 409, 411 (4) (reversing denial of summary judgment to a bar owner and its operator when the plaintiff “voluntarily chose to enter into mutual combat with the assailants,” including not only the man the plaintiff hit with a baseball bat but also the man who stabbed the plaintiff in the back moments afterward).

Further, as the trial court aptly noted, “a momentary pause in the fight does not alter the relative knowledge of the parties.” Here, while the victim did exit the premises, he was immediately followed by the shooter and shot within 30 seconds. Thus in Porter v. Urban Residential Dev. Corp., 294 Ga. App. 828 (670 SE2d 464) (2008), we affirmed a grant of summary judgment to a property owner when a plaintiff entered a fight with a group which eventually included not only his initial assailant, but also, after a pause in the conflict, that assailant’s companions, who “ganged up on the decedent, who then sought to escape the confrontation.” Id. at 832 (2). We applied the familiar rule that “[a]ny injuries to the combatants resulted from their own conduct,” rendering the subject of prior criminal acts on the premises “irrelevant.” Id. (emphasis omitted).

In short, the undisputed facts here show that the decedent was “an active participant in a brawl that left him injured.” Sailors, 217 Ga. App. at 813 (1) (citation and punctuation omitted). It follows that the trial court did not err when it granted summary judgment to Underground, which did not, as a matter of law, have knowledge equal to the decedent’s as to the risks posed by this violent encounter. Id.; see also Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165) (1994) (even if hosts were negligent and could be liable to an innocent bystander, they could not be liable to a guest who was an initiator or active participant in a brawl resulting in the guest’s injury); Ratliff, 326 Ga. App. at 313 (2) (a) (affirming grant of summary judgment when plaintiff had previously received threats from attacker, and thus had direct and “at least an equal, if not a superior, knowledge” of the threat posed).

2. Appellants also contend that Fair was a third-party beneficiary to IPC’s contract with Underground to whom IPC owed a duty of care. Specifically, appellants contend that material issues of fact remain regarding whether IPC breached its duty to provide adequate security and, therefore, that the trial court erred in granting IPC’s motion for summary judgment. Again, we disagree.

Under Georgia law,

in personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury

(Citation and punctuation omitted.) Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 117 (4) (537 SE2d 345) (2000). See also OCGA § 9-2-20 (b) (authorizing actions by third-party beneficiaries).

Although the third-party beneficiary need not be specifically named in the contract, the contracting parties’ intention to benefit the third party must be shown on the face of the contract. The mere fact that the third party would benefit from performance of the agreement is not alone sufficient. We recognize that whenever a premises owner contracts with a private security company the parties may expect the security services provided to benefit invitees who visit the property. As we have held, however, an injured invitee may not recover against the security company for negligent performance if the contract is silent as to the parties’ intent to confer that benefit.

(Citations and punctuation omitted; emphasis in original.) Brown v. All-Tech Investment Group, 265 Ga. App. 889, 897 (2) (a) (i) (595 SE2d 517) (2004). See also Anderson, 273 Ga. at 117-118 (4); Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994) (“[I]n personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury”) (citations and punctuation omitted).

In this case, the service contract provides that IPC agreed, as an independent contractor, “to provide . . . Interior/Exterior Security” and “on-site security and public safety services” for the Underground Atlanta property according to a specified manpower schedule. The contract does not mention “patrons,” “customers,” “shoppers,” “visitors,” or any other term that describes Underground’s invitees. Thus we conclude that the general descriptor “public safety services,” which designates the type of services to be provided under the contract, does not show a clear intent to confer a direct benefit to patrons of Underground. Accordingly, the trial court did not err in ruling that IPC did not owe Fair any duty as a third-party beneficiary to IPC’s contract with Underground. Anderson, 273 Ga. at 117-118 (4); Brown, 265 Ga. App. at 897 (2) (a) (i); Armor Elevator Co., 213 Ga. App. at 30 (2).

3. Appellants contend, in the alternative, that IPC undertook an extra-contractual duty to protect members of the public and, through its conduct, increased the risk of harm to Fair and, therefore, that the trial court erred in granting IPC’s motion for summary judgment, citing Restatement (Second) of Torts, Section 324A.

As the Supreme Court of Georgia has explained, however,

Section 324A (a) applies only to the extent that the alleged negligence of the defendant exposes the injured person to a greater risk of harm than had existed previously. Accordingly, Section 324A (a) applies when a nonhazardous condition is made hazardous through the negligence of a person who changed its condition or caused it to be changed. Liability does not attach for failing to decrease the risk of harm. Put another way, the mere failure to abate a hazardous condition — without making it worse — does not trigger the application of Section 324A (a).

Herrington v. Gaulden, 294 Ga. 285, 288 (751 SE2d 813) (2013) (citations and punctuation omitted). Regardless whether IPC’s performance may have allowed a hazardous condition to continue and failed to make Underground’s patrons any safer, appellants have not even alleged that a nonhazardous condition existed at Underground that was made into a hazardous condition through any acts or omissions on the part of IPC. Accordingly, appellants’ argument based on subsection (a) of Section 324A of the Restatement lacks merit. Herrington, 294 Ga. at 288; see also BP Exploration & Oil, Inc. v. Jones, 252 Ga. App. 824, 830 (2) (a) (558 SE2d 398) (2001) (physical precedent only). Moreover, appellants do not allege that IPC’s performance was to be substituted completely for that of the party on whose behalf the undertaking is carried out, that is, Underground; nor do they contend that Fair actually relied on IPC’s undertaking, and, therefore, subsections (b) and (c) of Section 324A do not apply. BP Exploration, 252 Ga. App. at 830-832 (2) (b), (c).

For all these reasons, the trial court did not err when it granted summary judgment to both Underground and IPC.

Judgment affirmed.

Doyle, C. J., Dillard, P. J., Andrews, Ray, Mercier and Bethel, JJ., concur. Ellington, P. J., and Reese, J., concur in part and dissent in part.

ELLINGTON, Presiding Judge,

concurring in part and dissenting in part.

I concur in Divisions 2 and 3. Because the evidence of record does not establish as a matter of law that Fair was injured as the result of mutual combat, however, a jury question remains regarding whether CV Underground, LLC, and Underground Management, LLC (collectively, “Underground”), as the occupiers of the property where Fair was shot, are liable for his death. Accordingly, I dissent to Division 1.

In a small subset of premises liability cases where the plaintiff claims that he was injured as a result of the owner/occupier’s failure to provide adequate security on the property to prevent third-party criminal attacks, Georgia courts have recognized a “mutual combat” defense. In these cases, our courts have held that those who engage in mutual combat are deemed to have knowledge of the risk of harm they might suffer from their own conduct that is superior to the knowledge of the risk that the owner/occupier may have based on prior criminal attacks on the property. Thus, one who deliberately interjects himself into an affray assumes the risk of injury from the brawl. In such a case, “the existence of prior criminal acts on the premises is irrelevant and cannot form a basis for liability on the premises owner.” Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1) (459 SE2d 465) (1995). Although, as the trial court noted, and the majority agrees, a momentary pause in a fight would not alter the relative knowledge of parties who engaged in mutual combat, it is clear that the mutual combat defense applies only when there is a causal connection between a fight and the plaintiff’s injury.

In this case, however, contrary to the conclusion in the majority opinion, the evidence does not establish the requisite causal connection as a matter of law. Given the paucity of evidence, reasonable minds can differ regarding whether Fair’s injuries resulted from the mutual combat he voluntarily participated in. Since Fair, the injured party, died at the scene, there is of course no statement from him about the circumstances surrounding the fight. The record contains no statement from Brandon Barnes, the person who injured Fair, about his reason for shooting Fair, whether he had any quarrel with him, or whether he even knew the combatants depicted in the surveillance video. There is no statement from Fair’s friend, who threw the fire extinguisher, about the circumstances surrounding the fight. The men who engaged in the fight, other than Fair, are not identified by name in the record and provided no evidence that connects Barnes to the altercation. The testimony of Walter Gilbert, the sole eyewitness to the fight who gave evidence, contained nothing that connected Barnes to the altercation. In short, the only evidence relating to the question whether Fair’s injuries arose from the fight among Fair and the other men is the surveillance video, and that evidence is equivocal at best.

As the majority’s description of the images depicted in the video indicates, the video shows that before the fight Barnes was in the area where the fight occurred, just inside the glass doors leading to the fountains plaza, that he exchanged a few words with one of the combatants (the man in the blue-striped shirt), that he observed the fight, just as Walter Gilbert and multiple other bystanders did, and that he exited the building just after one of the combatants (the man in the white shirt). After viewing the video, a jury could conceivably infer (as the appellees, the trial court, and the majority have inferred) that Barnes, the man in the blue-striped shirt, the man in the red shirt, and the man in the white shirt were all companions together, and that, even if the video did not capture Barnes’s physical involvement in the fight inside the shopping area, his shooting of Fair outside flowed directly out of the fight that Fair willingly engaged in. But the video is also consistent with a scenario in which Barnes was completely unacquainted with any of the combatants, merely observed the fight, and, for reasons unconnected to the fight, decided to shoot Fair.

Although the surveillance video shows that Barnes very briefly walked beside and apparently spoke a few words to one of the combatants, and that he later exited the building just after another one of the combatants, the timeline and the images on the video, standing alone, do not establish anything more than a temporal connection between the combat and the homicide. Such evidence cannot establish as a matter of law even that Barnes was acquainted with those combatants, much less that he shot Fair as some continuation of their fight with Fair and his friend. Yet the majority finds as a matter of law that Barnes participated in the fight, despite the absence of competent evidence of that fact, and from that finds that the combat was causally related to Fair’s death. Although the video shows that Fair engaged in mutual combat on the premises, it is clear that the majority can only find as a matter of law that Fair’s injuries resulted from the brawl by drawing inferences to favor the movants (the appellees). Regardless whether the appellees’ interpretation of the video may seem more likely to the trial court, or to members of this Court, our Constitution reserves to the jury the power of finding facts from inconclusive evidence, and the law does not permit judges to usurp that power. McCurry v. Bailey, 224 Ga. 318, 320 (1) (162 SE2d 9) (1968); Collins v. Newman Machine Co., 190 Ga. App. 879, 884 (3) (380 SE2d 314) (1989). When the evidence that was presented to the trial court in support of the appellees’ motions for summary judgment is viewed in the light most favorable to the nonmovants (the appellants), as required, I conclude that there remains a genuine issue as to whether Fair’s death resulted from his voluntary participation in mutual combat. Because a jury question remains regarding the proximate cause of Fair’s death, the trial court erred in granting Underground’s motion for summary judgment based on the mutual combat defense.

Decided March 16, 2017

Turkheimer & Hadden, John D. Hadden; Stewart, Seay & Felton, L. Chris Stewart; Timothy J. Santelli, for appellants.

Moreover, this is not a case where the grant of summary judgment may be affirmed as having been right for a reason the trial court chose not to address.

Accordingly, I dissent to Division 1.

I am authorized to state that Judge Reese joins me in this opinion.

Freeman Mathis & Gary, Sun S. Choy, Jacob E. Daly; Swift, Currie, McGhee & Fliers, Terry O. Brantley, Steven R. Wilson, for appellees.

       In light of this discussion, we need not reach Underground’s contention that no evidence showed that its failure to provide adequate security was the proximate cause of Fair’s death.

        Cornelius v. Morris Brown College, 299 Ga. App. 83, 86 (3) (681 SE2d 730) (2009); Habersham Venture v. Breedlove, 244 Ga. App. 407, 410 (4) (535 SE2d 788) (2000); Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1) (459 SE2d 465) (1995); Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165) (1994).

        Cornelius v. Morris Brown College, 299 Ga. App. at 86 (3); Sailors v. Esmail Intl., 217 Ga. App. at 813 (1); Driver v. Leicht, 215 Ga. App. at 695.

        See Porter v. Urban Residential Dev. Corp., 294 Ga. App. 828, 832-833 (2) (670 SE2d 464) (2008) (injuries resulting from the decedent’s “active, voluntary participa[tion] in the fight’s commencement and its continuation”); Sailors v. Esmail Intl., 217 Ga. App. at 813 (injuries to combatants “result [ing] from their own conduct [,] that is, “their voluntary participation in” an altercation); Driver v. Leicht, 215 Ga. App. at 695 (injuries resulting from a person’s active participation in a brawl).

       Gilbert, who operates an outdoor attraction near the entrance where the fight occurred, vie wed the video and testified that he was the man in the green shirt, that he saw the fight and went inside to try to break it up, and that he saw four young men fighting. After Fair walked out into the fountains plaza, Gilbert heard the shots, looked out, and saw Fair fall.

       The majority described Barnes as “gesturing” while he watched the fight. As I see it, the gesture, which consisted of him extending his left arm to the side, does little, if anything, to indicate he was a participant in the altercation.

       Although Underground labels the man in the blue-striped shirt, the man in the white shirt, and the man in the red shirt as Barnes’s “friends,” there is no evidence in the record to support this characterization, apart from Underground’s subjective interpretation of the video.

       By contrast, the cases cited in the majority opinion contained direct evidence of the circumstances of the altercation in the testimony of the plaintiff or eyewitnesses. See, e.g., Rappenecker v. L.S.E., Inc., 236 Ga. App. 86 (510 SE2d 871) (1999) (The plaintiff was injured following an argument with another man, when the man attacked him as he tried to walk away and then another man joined in the assault, as described by multiple eyewitnesses.); Fagan v. Atnalta, Inc., 189 Ga. App. 460 (376 SE2d 204) (1988) (The plaintiff personally testified that he knew he might be hurt if he intervened in a developing altercation involving bar employees and belligerent customers who were being ejected, and one of the bartenders also testified about the plaintiff’s intervention and resulting injuries.).

       The majority misconstrues my position. I do not propose reversing the grant of summary judgment because there is no evidence that Fair had previous acquaintance with Barnes or because there is no evidence that Barnes was the person who initiated the fight. Rather, because the evidence does not establish as a matter of law that Barnes participated at any point in the combat, it is not undisputed that Fair’s death resulted from his participation in combat, which precludes summary judgment on that basis.

        See Six Flags Over Georgia II v. Martin, 335 Ga. App. 350, 360-361 (2) (a) (780 SE2d 796) (2015) (accord), cert. granted on other grounds, Case Nos. S16C0743 and S16C0750 (September 6, 2016) (Evidence that included a history of gang activity inside the defendant theme park and numerous assaults that began on the premises, particularly at closing time, and spilled over to areas surrounding the park raised issue of material fact as to whether the proprietor’s lack of adequate security around the adjacent bus stop was the proximate cause of a park visitor’s injuries from an attack at the bus stop.); Double View Ventures v. Polite, 326 Ga. App. 555, 560-561 (1) (a) (757 SE2d 172) (2014) (Evidence of numerous armed robberies and assaults inside a convenience store and a high crime rate in the surrounding area raised an issue of material fact as to whether the proprietor’s lack of adequate security and failure to maintain its fence was the proximate cause of a customer’s injuries from an attack at the edge of the property.); McNeal v. Days Inn of America, 230 Ga. App. 786, 787-788 (498 SE2d 294) (1998) (Evidence of several criminal acts in a hotel’s parking lot, including a violent melee that spilled over from a nearby housing project, raised an issue of material fact as to whether a hotel’s lack of adequate security was the proximate cause of a guest’s injuries from an attack in the parking lot.); Killebrew v. Sun Trust Banks, 221 Ga. App. 679, 680 (1) (472 SE2d 504) (1996) (Because “[t]he dangers of ATMs are well known and undeniable!,]” case presented a material question regarding whether a bank’s inadequate parking lot security was the proximate cause of a customer’s injuries from an attack at an ATM.) (physical precedent only); Matt v. Days Inns of America, Inc., 212 Ga. App. 792, 793-796 (443 SE2d 290) (1994), aff’d, Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995) (Evidence of frequent criminal incidents on a hotel’s premises, and of serious violent crimes in the parking lots of nearby hotels, raised an issue of material fact as to whether a hotel’s lack of adequate security was the proximate cause of a guest’s injuries from an attempted armed robbery in the hotel’s parking lot.); Confetti Atlanta v. Gray, 202 Ga. App. 241, 243-244 (1) (414 SE2d 265) (1991) (Evidence of prior fights inside and outside a night club raised an issue of material fact as to whether the club’s lack of adequate security after closing while customers remained in the parking lot was the proximate cause of a customer’s injuries from a fight in the parking lot.).

       See Georgia-Pacific v. Fields, 293 Ga. 499, 503-504 (2) (748 SE2d 407) (2013) (“A grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” The nonmovant is not required, however, to produce any counter evidence or materials in affirmative support of its side of an issue that the movant did not urge as a reason for entry of summary judgment, and it is error for an appellate court to affirm a grant of summary judgment on such a basis.) (citations and emphasis omitted); City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369) (2002) (The appellate court correctly applied the “erroneous legal theory” exception to the “right for any reason” rule and refused to address grounds for summary judgment which the trial court had not ruled upon and which all parties had not properly briefed on appeal.). Notably, Underground did not argue that it was entitled to summary judgment on the basis that there was no evidence that there had been prior substantially similar crimes on the premises creating a known dangerous condition, and the trial court did not reach this issue in its summary judgment ruling. The appellants argued that Underground opted not to raise this argument “because everybody knows that Underground Atlanta is a cesspool” and that there was evidence, known to Underground, of a large number of previous wilful killings, armed robberies, and other violent crimes on the Underground premises and in the surrounding vicinity. Both Underground Management’s general manager, William Ciccaglione, and two public safety directors for IPG, Patrick Salmon and Robert Reid, were aware of two prior murders at Underground from 2008 to the time of Fair’s death. The business owner, Walter Gilbert, testified that he has seen many fights at Underground and described the fountains plaza as a “hot area.” In addition, Salmon testified that Fair’s assailant, Barnes, had previously been banned from the property.


author: Self, Judge.

text:
    A16A1708.
    DOUGLAS COUNTY v. HAMILTON STATE BANK.
    (798 SE2d 509)
   Self, Judge.

In May 2014, Douglas County (the “County”) sued Hamilton State Bank (“Hamilton”) to recover under a series of performance bonds issued by Hamilton’s predecessor, Douglas County Bank. Hamilton moved to dismiss the County’s complaint, alleging that the County’s action was barred due to its failure to exhaust administrative remedies as required by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”). See 12 USC § 1821 (d) (13) (D); OCGA § 9-11-12 (b) (1). Following a hearing, the State Court of Douglas County granted Hamilton’s motion and dismissed the County’s action for lack of subject matter jurisdiction. The County appeals and, for the reasons that follow, we affirm.

Amotion pursuant to OCGA § 9-11-12 (b) (1) asserts the defense of “lack of jurisdiction over the subject matter...“When a defendant challenges a plaintiff’s standing by bringing a... 12 (b) (1) motion, the plaintiff bears the burden to establish that jurisdiction exists.” McCabe v. Daimler AG, No. 1:12-CV-2494-MHC, 2015 U. S. Dist. LEXIS 182877 (II), *6 (N.D. Ga. 2015).

A motion to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1) can allege either a facial challenge, in which the court accepts as true the allegations on the face of the complaint..., or a factual challenge, which requires consideration of evidence beyond the face of the complaint. . . .

(Citations and punctuation omitted.) Bobick v. Community & Southern Bank, 321 Ga. App. 855, 860 (3), n. 4 (743 SE2d 518) (2013). On appeal, we review “de novo a trial court’s grant of a motion to dismiss” due to lack of subject matter jurisdiction. Id. at 856. We also “construe the pleadings in the light most favorable to the nonmoving party with any doubts resolved in that party’s favor.” Id.

So viewed, the record demonstrates that a Douglas County ordinance required subdivision developers to obtain bonds to protect the County in the event the developers were unable to complete their work. Relevant to this case, two developers —Anneewakee Falls, LLC and Windermere Development, Inc. — secured a series of maintenance and performance bonds from Douglas County Bank in 2011 and 2012, listing the Bank as surety. Some of the bonds were set to expire in August 2012, others in February 2013. Prior to the expiration date of each bond, the County contacted the Bank to demand that work by the developers be completed to satisfy the bonds or that the Bank either issue payment on the bonds or extend the terms of the bonds. It does not appear from the record that the Bank responded to the County

On April 26, 2013, the Georgia Department of Banking and Finance closed the Bank and named the Federal Deposit Insurance Corporation (“FDIC”) as the receiver, which transferred the Bank’s assets and liabilities to Hamilton on the same date via a Purchase and Assumption Agreement (“Agreement”). The Agreement defined certain terms, including “Assets,” “Credit Documents,” and “Loans.” In particular, a “Loan” is defined as “all of the following owed to or held by the Failed Bank as of the Bank Closing Date:

(a) loans . . . , participation agreements, interests in participations, overdrafts of customers . . . , revolving commercial lines of credit, home equity lines of credit, Commitments, United States and/or State-guaranteed student loans and lease financing contracts; [and]
(b) all Liens, rights (including rights of set-off), remedies, powers, privileges, demands, claims, priorities, equities and benefits owned or held by, or accruing or to accrue to or for the benefit of, the holder of the obligations or instruments referred to in clause (a) above, including but not limited to those arising under or based upon Credit Documents, . . . standby letters of credit, . . . payment bonds and performance bonds at any time. . . .

Section 2.1 of the Agreement identifies the “Liabilities Assumed by [Hamilton]” and provides that Hamilton

expressly assumes . . . and agrees to pay, perform and discharge[ ] all of the following liabilities of the Failed Bank . . . : (g) liabilities for any acceptance or commercial letter of credit. . . ; [and] (h) liabilities for any “standby letters of credit” as defined in 12 CFR § 337.2 (a) issued on the behalf of any Obligor of a Loan acquired hereunder by [Hamilton], but excluding any other standby letters of credit. . . .

To help offset Hamilton’s losses as a result of assuming the Bank’s liabilities, the FDIC paid Hamilton approximately $21 million and entered into a loss-sharing agreement in which the FDIC agreed to reimburse Hamilton up to 80% of any losses Hamilton suffered related to the Bank’s assets and liabilities.

After the transfer, the County contacted the FDIC concerning the status of the bonds; the FDIC indicated that it would retain four bonds not at issue in this case and that the County should contact Hamilton to determine how Hamilton intended to proceed on the remaining bonds. In December 2013, the County demanded payment on the bonds from Hamilton; Hamilton refused, asserting that the bonds had expired prior to the transfer from Douglas County Bank and that the bonds “were not a Hamilton liability.”

This action followed, and Hamilton moved for summary judgment on the issue of expiration of the bonds. The trial court denied Hamilton’s motion in a brief order, finding that genuine issues of material fact precluded summary judgment in Hamilton’s favor. Hamilton then filed a motion to dismiss the County’s complaint for lack of subject matter jurisdiction, alleging that the County failed to exhaust administrative remedies with the FDIC pursuant to 12 USC § 1821 (d) (13) (D), which provides that

[ejxcept as otherwise provided in this subsection, no court shall have jurisdiction over (i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the [FDIC] has been appointed receiver, including assets which the [FDIC] may acquire from itself as such receiver; or (ii) any claim relating to any act or omission of such institution or the [FDIC] as receiver.

(Punctuation omitted.) The trial court determined that the bonds “at issue were all part of the [Agreement]”; that “[t]he bonds at issue became assets of the FDIC at the time of receivership”; that “[t]hose assets were then sold to [Hamilton]”; and that “the exhaustion of administrative remedies requirement was not met. . . As a result, the trial court concluded that its jurisdiction “must cede to the administrative process.” See Bobick, 321 Ga. App. at 863 (3) (“[I]f a claim . . . falls within 12 USC § 1821 (d) (13) (D), courts are divested of subject matter jurisdiction if the claimant failed to exhaust [its] administrative remedies before the FDIC.”). Accordingly, the trial court dismissed the County’s action.

1. In its first enumeration of error, the County contends that the trial court erred in determining that the performance bonds first issued by Douglas County Bank were “assets” rather than “liabilities.” We agree.

Although FIRREA does not include a definition of the term “asset,” it may be generally defined as “[a]n item that is owned and has value.” Black’s Law Dictionary (7th ed. 1999), p. 112. In contrast, a “liability” is “[a] financial or pecuniary obligation; DEBT.. .Id. at 925. Of particular relevance to this case, authorities in other jurisdictions have concluded that a performance bond is similar to a standby letter of credit, which is a liability. See, e.g., Murphy v. Fed. Deposit Ins. Corp., 38 F3d 1490, 1500 (II) (B) (9th Cir. 1994) (“A letter of credit is not an asset of the bank[;] [i]t is a liability. A standby letter of credit is a contingent liability.”); Arbest Constr. Co. v. First Nat. Bank & Trust Co., 777 F2d 581, 585 (II) (10th Cir. 1985) (standby letter of credit payable “only if the account party fails to pay or perform[;] [t]he standby letter of credit is therefore quite similar to a surety bond”); Guangzhou Consortium Display Prod. Co. v. PNC Bank, 924 FSupp.2d 800, 805 (III) (E.D. Ky. 2013) (“A standby letter of credit is a security device, which operates like a surety or performance bond. ... A standby letter of credit is used secondarily in a nonsales transaction ‘as a guarantee against default on contractual obligations.’ ”). Compare Kaysville City v. Fed. Deposit Ins. Corp., 557 Fed. Appx. 719, 722 (II) (A) (10th Cir. 2014) (where neither municipality nor developer surrendered any assets to the bank, note at issue was not a hard asset but a contingent liability under 12 USC § 1813 (1) (!))•

We find the logic of these authorities persuasive and therefore find that, in view of Douglas County Bank’s obligation to submit payment to the County in the event of default by the developers, the performance bonds at issue in this case are “liabilities” rather than “assets.” Accordingly, we conclude that the trial court erred when it characterized the bonds as “assets.”

2. Next, the County argues that the trial court erroneously applied FIRREA’s administrative exhaustion requirement. In particular, the County asserts that the exhaustion requirement does not apply to “liabilities” under the plain language of subpart (i) of 12 USC § 1821 (d) (13) (D) or to the enforcement of liabilities that have been expressly assumed by a successor bank. While we agree that subpart (i) does not apply to the County’s claim, we conclude that the County could not proceed on its claims against Hamilton without first exhausting its administrative remedies with the FDIC under the plain language of subpart (ii).

(a) In Division 1, supra, we concluded that the performance bonds issued by Douglas County Bank were “liabilities” rather than “assets.” 12 USC § 1821 (d) (13) (D) (i) provides that a court will lack jurisdiction as to “any claim or action for payment from .. . the assets of any depository institution for which the [FDIC] has been appointed receiver... .’’Accordingly, under the plain language of the statute, we conclude that the trial court erred in applying subpart (i) to hold that FIRREA’s administrative exhaustion requirement barred the County’s action against Hamilton to enforce the performance bonds. However, as explained in Division 2 (b), infra, the trial court nevertheless correctly dismissed the County’s action for lack of subject matter jurisdiction. See 12 USC § 1821 (d) (13) (D) (ii).

(b) Next, the County contends that its claims are against Hamilton for Hamilton’s failure to remit payment under the performance bonds, rather than claims for any acts or omissions attributable to Douglas County Bank prior to its failure. As a result, the County asserts that subpart (ii) of 12 USC § 1821 (d) (13) (D) does not apply. We do not agree.

We recently discussed FIRREA’s administrative exhaustion provision in Bobick. ... As we explained in Bobick, Congress, in enacting FIRREA, established an administrative review process for claims against failed banks for which the FDIC had been appointed as receiver. Furthermore, Congress “anticipated that, as a receiver for failed lending entities, the FDIC would face numerous claims from various parties,” and, as a result, “established limits on judicial review of such claims.”

(Citations omitted.) Olde Towne Tyrone, LLC v. Multibank 2009-1 CRE Venture, LLC, 326 Ga. App. 322, 325 (1) (756 SE2d 558) (2014). More specifically, Congress enacted 12 USC § 1821 (d) (13) (D) to divest courts of jurisdiction over specified types of claims and actions. As previously noted, 12 USC § 1821 (d) (13) (D) (ii) requires administrative exhaustion of “any claim relating to any act or omission of [the failed] institution or the [FDIC] as receiver.”

Here, Hamilton correctly notes that the County’s complaint alleges that it demanded payment from Douglas County Bank and that Hamilton, as the successor to Douglas County Bank, “assumed liability for the [bonds] [and] is liable to [the County] as obligee on the [bonds].” Moreover, the County asserted in its portion of the parties’ consolidated pretrial order that

Douglas County Bank as surety had defaulted on all the bonds by failing either (1) to complete the work in the subdivisions, (2) to pay Douglas County for the completion of the work, or (3) to extend the time to do either option (1) or (2) by delivering new bonds to Douglas County The Coun ty seeks to recover damages on the bonds from [Hamilton] as successor to Douglas County Bank, the surety.

(Emphasis supplied.) Therefore, the County’s pleadings demonstrate that its claims are rooted in the alleged failure of Douglas County Bank to remit payment under the performance bonds following a proper demand for payment. It is well settled that actions taken by a failed bank “before it was closed and placed in receivership . . . are claims relating to an act or omission of an institution for which the FDIC was appointed as receiver.” (Citation and punctuation omitted.) Bobick, 321 Ga. App. at 863 (3). Such claims “come within the ambit of 12 USC § 1821 (d) (13) (D) and are subject to the administrative exhaustion requirement imposed by FIRREA.” Id. It follows that the County’s claims were subject to FIRREA’s administrative exhaustion requirement, and in light of the County’s undisputed failure to comply with that requirement, its claims were correctly dismissed by the trial court for lack of subject matter jurisdiction. See id. at 863 (3), 866 (3) (d); Gravitt v. Bank of the Ozarks, 326 Ga. App. 461, 468 (2) (756 SE2d 695) (2014).

(c) In possible recognition of the harsh effect of the strict application of 12 USC § 1821 (d) (13) (D) (ii), the County cites several foreign decisions for the proposition that “liabilities that have been expressly assumed by a successor bank . . . are not subject to FIRREA’s administrative exhaustion requirement.” See, e.g., Caires v. JPMorgan Chase Bank, 745 FSupp.2d 40 (D. Conn. 2010); Front Street Constr. v. Colonial Bank, 2012 NCBC 25, 2012 NCBC LEXIS 25 (III) (A) (2) (N.C. Super. 2012). Indeed, “FIRREA is silent, and case law is largely unsettled, on whether FIRREA’s exhaustion requirement must be satisfied before a party can bring an action against an entity that purchases assets and liabilities of a failed institution from the FDIC.” Front Street, 2012 NCBC 25 (III) (A) (1) at *38.

However, the few cases that have faced this issue “have reviewed the specific language of the particular purchase and assumption agreement entered into between the FDIC and a successor bank to determine whether the successor bank assumed liability for acts committed by the failed bank.” Front Street, 2012 NCBC 25 (III) (A) (2) at *46. In general terms, these authorities reason that, if the FDIC and the successor bank have already reviewed the failed bank’s assets and liabilities and have agreed that the successor bank will assume certain liabilities, administrative review is unnecessary — a court will simply look to the purchase and assumption agreement to determine what the successor bank obtained in the transaction. See Rundgren v. Washington Mut. Bank, No. 09-00495, 2010 U. S. Dist. LEXIS 126803 (IV) (A), *11-*12 (D. Haw. 2010); Caires, 745 FSupp.2d at 48; Front Street, 2012 NCBC 25 (III) (A) (1) at *38, (III) (A) (2) at *46-*52. Underlying these authorities’ reasoning is the fact that the FDIC’s powers as receiver include

the authority to “transfer any asset or liability of the institution in default . . 12 USC § 1821 (d) (2) (G) (i) (II). Accordingly, the FDIC is empowered to determine which assets and liabilities of a failed bank are to be sold and transferred, and which assets it should keep. Such a design facilitates the sale of a failed institution’s assets (and thus helps to minimize the government’s financial exposure) by allowing the FDIC to absorb liabilities itself and guarantee potential purchasers that the assets they buy are not encumbered by additional financial obligations. It is this intermediate step, the FDIC’s ability to designate specific assets and liabilities for purchase and assumption that reflects a distinction between the FDIC and a subsequent purchaser, and why a subsequent purchaser does not necessarily benefit from the FDIC’s claim exhaustion process. Instead a Court should look to the purchase and assumption agreement governing the transfer of assets between the FDIC and a subsequent purchaser of assets of a failed bank to determine which assets and corresponding liabilities are being assumed. Absent a transfer of liability by the FDIC and assumption of liability by a subsequent purchaser,... the liability remains with the FDIC and subject to the claim exhaustion procedures.

(Citations and punctuation omitted.) Caires, 745 FSupp.2d at 48-49. While none of the foreign authorities cited by the County found that a successor bank expressly assumed a failed bank’s liabilities, the authorities’ significance is that the courts looked to the terms of the purchase and assumption agreement in making that determination. Neither the County nor Hamilton has cited any Georgia authority, and we have found none, that squarely addresses this issue.

To be sure, the County’s argument is not without appeal. In this case, the record reveals that Hamilton expressly assumed the performance bonds in the Agreement. Compare Caires, 745 FSupp.2d at 49-50; Front Street, 2012 NCBC 25 (III) (A) (2) at *50. Section 2.1 of the Agreement identifies the “Liabilities Assumed by [Hamilton]” and provides that Hamilton

expressly assumes . . . and agrees to pay, perform and discharge[ ] allofthefollowingliabilitiesoftheFailedBank... : (g) liabilities for any acceptance or commercial letter of credit . . . ; [and] (h) liabilities for any “standby letters of credit” as defined in 12 CFR § 337.2 (a) issued on the behalf of any Obligor of a Loan acquired hereunder by [Hamilton], but excluding any other standby letters of credit. . . .

(Punctuation omitted.) As noted in Division 1, supra, the performance bonds originally issued by Douglas County Bank satisfy the definition of “standby letter[s] of credit” pursuant to 12 CFR § 337.2 (a). Moreover, Hamilton’s OCGA § 9-11-30 (b) (6) representative agreed that certain letters of credit, including the ones at issue in this case, were passed on to Hamilton by the FDIC. In addition, the “Obligor [s]” in this case are the developers whose work was addressed by the performance bonds. Finally, the record contains evidence that the performance bonds formed one link of a tripartite relationship between the County, the developers and Douglas County Bank, and that, in the event of default by the developers, letters of credit would be funded “and then the [developers] would be obligated for that amount of money.” Accordingly, under the plain language of the Agreement, Hamilton expressly assumed the performance bonds.

But regardless of the appeal of the County’s argument, and of the seeming absurdity that the County exhaust administrative remedies related to liabilities which the FDIC had already transferred to Hamilton and which Hamilton had already expressly assumed in the Agreement, we conclude that the County’s argument is foreclosed by the plain language of 12 USC § 1821 (d) (13) (D) (ii). Nothing in 12 USC § 1821 (d) (13) (D) (ii) carves out an exception for claims relating to the liabilities of a failed bank that have been assumed by a successor bank under a purchase and assumption agreement with the FDIC as receiver. Rather, the statutory subsection broadly covers, without any words of limitation or restriction, “any claim relating to any act or omission” of a failed bank placed in receivership. (Emphasis supplied.) 12 USC § 1821 (d) (13) (D) (ii). “Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden,” and “[i]n the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.” (Citations and punctuation omitted.) Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003).

As we have emphasized, courts are without authority to engraft exceptions upon a statute “absent statutory language allowing such an exception.” In the Interest of J. H., 335 Ga. App. 848, 851 (783 SE2d 367) (2016). In short, it is for Congress, and not this Court, to craft the exception upon which the County seeks to rely See generally Ross v. Blake, _ U. S. _ (136 SCt 1850, 1857 (II) (A), 195 LE2d 117) (2016) (“courts have a role in creating exceptions [to statutory exhaustion provisions] only if Congress wants them to[;] [f]or that reason, mandatory exhaustion statutes . . . establish mandatory exhaustion regimes, foreclosing judicial discretion”); Keys Jet Ski v. Kays, 893 F2d 1225, 1229 (V) (B) (11th Cir. 1990) (“if, indeed, anything is broken, it is up to Congress to fix it”) (citation and punctuation omitted); Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408, 413 (1) (696 SE2d 663) (2010).

3. In its remaining enumeration of error, the County contends that the FDIC essentially advised it that FIRREA’s administrative exhaustion requirement did not apply since the FDIC instructed the County to contact Hamilton to determine how Hamilton intended to proceed on the performance bonds. Irrespective of the absence of authority cited in support of this enumeration, we need not consider the County’s argument in view of our discussion in Divisions 1 and 2, supra.

In sum, we find that the County was not required to exhaust its administrative remedies pursuant to 12 USC § 1821 (d) (13) (D) (i) because it sought to enforce a liability rather than obtain payment from an asset of Douglas County Bank. However, because the County’s allegations were based upon acts and omissions of Douglas County Bank prior to the Bank’s failure, the County was required to exhaust its administrative remedies pursuant to 12 USC § 1821 (d) (13) (D) (ii) before filing an action against Hamilton. In view of the County’s failure to exhaust its remedies, we conclude that the trial court lacked subject matter jurisdiction to consider the County’s causes of action. We therefore affirm the trial court’s order granting Hamilton’s motion to dismiss for lack of subject matter jurisdiction.

Decided March 16, 2017.

Freeman Mathis & Gary, T. Bart Gary, Michael M. Hill, Neil L. Wilcoue; Sherrod & Bernard, Kenneth R. Bernard, Jr., for appellant.

Bryan Cave, Curtis J. Romig, Aiten M. McPherson, for appellee.

Judgment affirmed.

Barnes, P. J., and Rickman, J., concur.

       See, e.g., Ga. Dept. of Revenue v. Moore, 328 Ga. App. 350, 352, n. 10 (762 SE2d 184) (2014) (where a Georgia statute is patterned after a federal rule of civil procedure, Georgia courts may look to federal cases for guidance in construing Georgia statute).

       This case involves a “factual challenge” since the trial court considered “evidence beyond the face of the complaint. . . .” See Bobick, 321 Ga. App. at 860 (3), n. 4.

       Specifically, Anneewakee Falls obtained a performance bond for Riverside Ridge Unit 1 ($68,000) and a maintenance bond for the same property ($38,500); a performance bond for Creekview ($73,500); a performance bond for Chaparral Ridge Unit 3 ($42,750) and a maintenance bond for the same property ($26,220); and a performance bond for Chaparral Ridge Unit 4 ($75,525) and a maintenance bond for the same property ($44,500). Windermere Development obtained a performance bond for Windermere Unit Two ($165,300) and a maintenance bond for the same property ($145,145).

       12 CFR § 337.2 (a) defines a standby letter of credit as
      any letter of credit, or similar arrangement however named or described, which represents an obligation to the beneficiary on the part of the issuer: (1) To repay money borrowed by or advanced to or for the account of the account party, or (2) to make payment on account of any indebtedness undertaken by the account party, or (3) to make payment on account of any default (including any statement of default) by the accoun t party in the performance of an obligation.

      (Emphasis supplied.)

       The FDIC ultimately disaffirmed each of the four bonds it retained and disallowed the County’s proofs of claim concerning the four bonds.

       The propriety of the trial court’s summary judgment ruling is not before us in this appeal, and we express no opinion concerning the merits of the motion.

       Although the trial court’s order did not indicate whether its decision was based upon subpart (i) or (ii) of 12 USC § 1821 (d) (13) (D), the trial court’s characterization of the performance bonds as “assets” suggests that its decision was based upon subpart (i).

       Contrary to Hamilton’s argument, we find that the County sufficiently raised this argument in the trial court. As a result, we will consider the County’s enumeration. Compare Pinnacle Properties V v. Mainline Supply of Atlanta, 319 Ga. App. 94, 100 (2) (735 SE2d 166) (2012) (“issues presented for the first time on appeal furnish nothing for us to review”).

       See generally CPF Investments v. Fulton County Bd. of Assessors, 330 Ga. App. 744, 746 (769 SE2d 159) (2015) (“if the language of the statute is plain and unambiguous, we simply apply the statute as written”).

       See, e.g., Bobick, 321 Ga. App. at 869-870 (4) (b) (order of dismissal will be affirmed if right for any reason).

       See Rockwell v. Chase Bank, No. C10-1602RSL, 2011 U. S. Dist. LEXIS 61279 (W.D. Wash. 2011); Rundgren v. Washington Mut. Bank, No. 09-00495, 2010 U. S. Dist. LEXIS 126803 (D. Haw. 2010); Federici v. Monroy, No. C 09-4025 PVT, 2010 U. S. Dist. LEXIS 45335 (N.D. Cal. 2010); Moldenhauer v. Fed. Deposit Ins. Corp., No. 2:09-CV-00756 TS, 2010 U. S. Dist. LEXIS 25315 (D. Utah 2010).

       See generally Fort Bragg Unified School Dist. v. Colonial American Cas. and Surety Co., 194 Cal. App. 4th 891, 910 (II) (B) (Cal. App. 2011) (“a performance bond creates a tripartite relationship between the surety [Douglas County Bank], the principal [the developers], and the obligee [the County]”; in other words, “the performance bond protects the obligee against the principal’s default”). See also Kaysville City, 557 Fed. Appx. at 723 (II) (A).

       This interpretation is buttressed by the general common law principle that banks cannot act as sureties. See OCGA § 7-1-290 (a) (“a bank shall not lend its credit, bind itself as a surety to indemnify another, or otherwise become a guarantor”).

        See Front Street, 2012 NCBC 25 (III) (A) (2) at *50:
      [AJssets and liabilities that have been expressly assumed shall not be subject to FIRREA or its exhaustion requirements, and the court will have subject matter jurisdiction over those claims relating to those assets and liabilities. However, the FDIC retains all liability for those assets and liabilities not assumed. Any claim relating to the retained assets and liabilities must be brought before the FDIC, subject to the exhaustion requirements of FIRREA.
      See also Caires, 745 FSupp.2d at 49-50 (court examined purchase and assumption agreement and concluded successor bank did not assume liabilities of failed bank).

       See Court of Appeals Rule 25 (a) (3), (c) (2).

       In view of our discussion in Division 2, supra, we do not reach the County’s argument that affirming the trial court’s order would permit “a successor bank ... to disregard any and all contractual obligations assumed from a failed bank through the FDIC receivership process. . . .”