author: McMILLIAN, Judge. MILLER, Presiding Judge,

text:
    A16A1692.
    VIF/VALENTINE FARMS BUILDING ONE, LLC et al. v. WRIGHT.
    (798 SE2d 376)
   McMILLIAN, Judge.

This case arises out of a boundary dispute involving a 60.85-acre tract of land (the “Tract”) with alleged boundaries once marked by hog wire fencing. This is the third appearance of this case in this Court, and the facts underlying the dispute are fully summarized in this Court’s opinion in the first appeal. Wright v. VIF/Valentine Farms Bldg. One, LLC, 308 Ga. App. 436, 436-37 (1) (708 SE2d 41) (2011) (“ Wright I”). We give a brief background here to identify the parties and the issues on appeal.

Prior to 1992, Dr. Herbert E. Valentine, Jr., and the family of J. B. Wright owned large contiguous tracts of rural property in Jackson County. Wright I, 308 Ga. App. at 436 (1). This litigation arises out of a dispute regarding the proper boundary between these two properties, which we described in Wright I:

In dispute is the position of the boundary running from [a] beech tree stump to an agreed southern endpoint. The appellees contend the boundary continues on a precisely straight line for 717.10 feet from the beech tree stump to the southern endpoint, and that, as late as the 1990s, a hog wire fence existed along this line. Wright alleges that errors in the Valentine chain of title and associated surveys fail to reflect that beginning at the beech tree stump, the property line runs along or parallel to a different hog wire fence built by his father in the 1950s that curved to the west, carving out a 0.86-acre, crescent-shaped area ending at the southern endpoint [the “Disputed Property”], and that this fence existed until the defendants destroyed it, which precipitated this litigation.

Id.

In 1992, Valentine sold all of his property to Possum Creek Properties, L.P (“PCP”), a Valentine family-controlled limited partnership. Wright I, 308 Ga. App. at 437 (1). PCP decided to use this property to create an industrial park, and to that end, it entered into an agreement to sell a portion of the land, i.e., the Tract, which encompasses the Disputed Property, to Grove Street Partners, LLC (“GSP”). GSP later assigned its interest in the sales agreement to Valentine Farms Land, LLC (“VFL”), and PCP conveyed the Tract to VFL in 2005. Id. VFL, in turn, conveyed its interest in the Tract to VIF/Valentine Farms Building One, Inc. (“VIF”). Id.

In October 2007, after development of the Tract began and a warehouse was constructed on the property, Wright filed the complaint in this case against the Valentine Interests and WDI, alleging, inter alia, that the warehouse encroached on his property Wright I, 308 Ga.App. at 438 (1). After the suitwas filed, on December 28, 2007, VIF transferred its interest in the Tract to First Industrial Investment, Inc. (“FI, Inc.”), and Wright subsequently added FI, Inc. as a defendant in the lawsuit. Id.

In Wright I, Wright appealed the trial court’s order granting summary judgment to the Valentine Interests. The trial court found that because the Valentine Interests had relinquished title and control of the Tract, they could not be liable for any trespass on Wright’s land by their successors in title. 308 Ga. App. at 438 (1). This Court reversed the grant of summary judgment, however, finding that because there was some evidence that the Valentine Interests had sold land they did not own, a jury issue existed as to whether they could be liable in trespass. Id. at 441 (1).

Wright also contended that the trial court erred in issuing two orders imposing sanctions on him for spoliation of evidence. The record showed that Wright had admitted performing work on the Disputed Property, including digging in the area with a backhoe and removing some hog wire fencing into a nearby debris pile, in contravention of an order of the trial court, even though he knew that the hog wire fence and natural features and contours of the property were important evidence in the boundary line dispute. Wright I, 308 Ga. App. at 442 (2) (a). This Court affirmed the trial court’s finding of spoliation, concluding that it was supported by some evidence and thus was not clearly erroneous. Id. at 443 (2) (a).

As sanctions for this spoliation, the trial court dismissed Wright’s claims, including a claim for ejectment, against FI, Inc. Wright I, 308 Ga. App. at 443 (2) (b). The trial court also ordered that “the jury be instructed as to a rebuttable presumption that the existence of the underbrush, vegetation and hog wire fence would have been harmful to Wright in connection with the Warehouse Development Interests’ defenses.” Id. This Court upheld the trial court’s imposition of these sanctions, finding that the trial court “properly considered the relevant requirements for applying sanctions and weighed the prejudice to the defendants against Wright’s culpability” Id. at 444 (2) (b).

In this appeal, the Valentine Interests and WDI appeal the trial court’s denial of their joint motion to limit Wright’s claims for damages. Defendants assert that the dismissal of Wright’s claims against FI, Inc. should also limit his claims for damages against them, asserting that (1) Wright’s damages for trespass should be limited to the date the trial court dismissed his ejectment claim against FI, Inc.; (2) Wright should be precluded from recovering the cost of restoring trees on the Disputed Property “post-ejectment”; and (3) he should also be precluded from recovering mesne profits, or in the alternative, that the recovery of such profits should be capped as of the date his ejectment claim against FI, Inc. was dismissed. The trial court construed this portion of the Defendant’s Joint Motion as a motion for partial summary judgment and denied the motion on those grounds without explanation.

Our standard of review of the denial of summary judgment is well established.

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.

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

Defendants describe the gist of their motion to limit Wright’s damages as asserting that

the Spoliation Order judicially established the boundary line between the properties by denying [Wright’s] right to challenge it as to the party that he identified in [this case] as the Disputed [Property] ’s current owner, and because that is true, no trespass could have possibly occurred after the claim to eject that defendant was dismissed.

The trial court entered the Spoliation Order, dismissing “all counts and claims for relief” against FI, Inc. based on Wright’s willful spoliation of evidence on March 27, 2009, and on May 14, 2009, it entered a final order and judgment dismissing all claims against FI, Inc. with prejudice. This Court later affirmed those orders in Wright I, 308 Ga. App. at 444 (2) (b). The Defendants argue that the dismissal of Wright’s ejectment claim prevented any claim for damages arising thereafter based on any assertion by Wright of an interest in the Disputed Property. We agree.

Under OCGA § 9-11-41 (b), a dismissal “operate[s] as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise.” Although the dismissal order in this case was issued as a sanction for spoliation of evidence, Georgia courts have held that orders dismissing claims or striking pleadings as a sanction for willful discovery violations function as an adjudication on the merits unless the order specifies otherwise. Bagwell v. Bagwell, 290 Ga. 378, 380 (721 SE2d 847) (2012) (dismissal of husband’s petition for modification as a sanction for his failure to comply with discovery constituted an adjudication on the merits); Georgia Cash America, Inc. v. Greene, 318 Ga. App. 355, 358 (1) (734 SE2d 67) (2012) (trial court’s order striking arbitration defense for discovery violations was an adjudication on the merits); Brantley v. Sparks, 167 Ga. App. 323, 324 (306 SE2d 337) (1983) (sanction of dismissal of complaint based on a finding of willful violation of discovery order operates as an adjudication on the merits). We see no reason to treat a dismissal based on spoliation any differently

Therefore, because neither the Spoliation Order nor the judgment issued thereon provides otherwise, the dismissal of Wright’s claims against FI, Inc. operated as an adjudication on the merits of his ejectment claim. And in Georgia, “[a] judgment in ejectment shall be conclusive as to the title between the parties thereto unless the jury awards the plaintiff less than the fee.” OCGA § 44-11-13. Thus, the entry of judgment on the Spoliation Order established title in the Disputed Property in favor of FI, Inc., thus eliminating Wright’s claim of right to the property as of May 14, 2009, and we find that Wright has no claim for damages against the Defendants arising after that date.

Moreover, it is well settled that a plaintiff in an ejectment action must establish that he has title to the disputed property in order to set out a prima facie case. See Mathews v. Cloud, 294 Ga. 415, 417 (1) (754 SE2d 70) (2014) (plaintiff carried burden of showing good record title to establish prima facie ejectment case); Evans v. Elder, 219 Ga. 566, 567 (134 SE2d 803) (1964) (“It is fundamental that the plaintiff must, in order to recover, show that the legal title, or its equivalent, as well as a right of entry at the time the suit is filed, rests in him[.]”) (citation and punctuation omitted); OCGA § 44-11-1 (“A plaintiff in ejectment must recover on the strength of his own title and not on the weakness of the defendant’s title.”). See also OCGA § 44-2-22 (a prima-facie case respecting title to land requires proof of good record title for a period of 40 years). Since Wright has no ground to assert a claim for ejectment, it necessarily follows that he cannot pursue a claim for “post-ejectment” damages for the replacement of trees on the Disputed Property.

Likewise, we find that Wright no longer has a claim for mesne profits, which is an element of damages that must be pled as a separate count in an ejectment action. See OCGA § 44-11-7 (a). Wright cites no authority to support a claim for mesne profits independent of a claim for ejectment, nor have we uncovered any. To the contrary, OCGA § 44-11-7 (b) provides that “[n]o plaintiff in ejectment shall have and maintain a separate action in his behalf for the recovery of mesne profits[] which may have accrued to him from the premises in dispute.” See also 3 Ga. Jur. Property § 30:9 (updated March 2017) (“An action for mesne profits is available only when there has been an ouster of the plaintiff, as this is a prerequisite to an action in ejectment, and there can be no recovery or damages unless there is recovery of the land.”).

Accordingly, we reverse the trial court’s denial of the Defendant’s Joint Motion as to Wright’s claim for damages.

Judgment reversed.

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

Decided March 16, 2017

Reconsideration denied March 28, 2017

Smith, Gilliam, Williams & Miles, Steven P Gilliam, R. Brent Hatcher, Jr.; Johnson Marlowe, Spence Johnson, Dustin R. Marlowe; McLain & Merritt, M. David Merritt, Ernest L. Beaton TV, for appellants.

George E. Butler II; Mahaffey Pickens Tucker, Matthew P Benson, J. David Gussio, for appellee.

MILLER, Presiding 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).

       In the second appeal, this Court vacated the trial court’s order granting summary judgment on Wright’s slander of title claim because it was entered while the first appeal was pending. We remanded the case with the instruction that the trial court reconsider its ruling in light of the opinion in Wright I.

       The conveyed property’s boundary lines “did not recognize and extended past the hog wire fence asserted by Wright” as the traditional and proper boundary between his property and the old Valentine property. Wright I, 308 Ga. App. at 437 (1).

       Valentine’s estate was substituted for Valentine as a party defendant in this case following his death on January 6, 2009. The estate and PCP will be referred to collectively herein as the “Valentine Interests.” Inthefirst appeal, this Court referred to GSP, VFL, and VIF, none of which is related to or controlled by the Valentine family, collectively, as the “Warehouse Development Interests.” 308 Ga. App. at 437 (1). In this appeal, we shorten that reference to “WDI.” We will refer to the Valentine Interests and WDI collectively as the “Defendants.”

       Wright dismissed an earlier lawsuit without prejudice before filing the complaint in this litigation. Wright I, 308 Ga. App. at 437-38 (1).

       Although Wright also asserted a slander of title claim, following the remand from the second appeal, the trial court granted summary judgment on Wright’s slander of title claim against the Valentine Interests and GSR Wright did not appeal the order regarding GSP and although Wright cited the order regarding the Valentine Interests in his N otice of Appeal, he did not enumerate that ruling as error in his related appeal in this case.

       The Defendants invited the trial court to treat the Joint Motion as one for summary judgment to the extent it considered matters outside the pleadings, and Wright submitted additional documentation as exhibits to his brief in opposition.

       “Mesne profits” are “intermediate profits — that is, the profits which accrue between two given times, and is defined as the value of use or occupation of land during the time it is held by one in wrongful possession of it.” 3 Ga. Jur. Property § 30:9 (updated March 2017).

       Nothing in this opinion is intended to address other damages that Wright may still be able to recover on any remaining claims.


source: Caselaw Access Project

author: MERCIER, Judge.

license: Public Domain

text:
    A16A1877.
    LEWIS v. GRADY MEMORIAL HOSPITAL CORPORATION, INC.
    (798 SE2d 629)
   MERCIER, Judge.

Jovan Lewis filed a complaint against Grady Memorial Hospital Corporation, Inc. f/k/a The Fulton-DeKalb Hospital Authority d/b/a Grady Health System (“Grady Memorial”), based on theories of premises liability, ordinary negligence, and professional negligence, in connection with a sexual assault and battery allegedly committed upon her when she was a patient at the hospital Grady Memorial owned and operated (the “hospital”). Lewis’s complaint alleged, essentially, that Grady Memorial was liable because a hospital employee failed to properly monitor a hallway leading to Lewis’s private room and, as a result, another patient was able to enter the room and assault her. Grady Memorial moved for summary judgment on all of Lewis’s claims, asserting the claims were precluded as a matter of law by the common law doctrine of charitable immunity The trial court granted the motion, and Lewis appeals. Because the evidence does not establish as a matter of law that Grady Memorial extended charity to Lewis, or that the “paying patient” exception to the doctrine of charitable immunity does not apply here, we reverse.

Lewis contends that the trial court erred by granting summary judgment to Grady Memorial based on charitable immunity because Grady Memorial failed to prove that it extended charity to her. We agree that a genuine issue of material fact exists in this regard, precluding summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. This Court reviews de novo a grant or denial of summary judgment, viewing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Avion Systems v. Bellomo, 338 Ga. App. 141, 142 (1) (789 SE2d 374) (2016) (citations omitted).

It has long been the rule in Georgia that “an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees.” There is, however, an exception to the doctrine of charitable immunity “Where a patient in such an institution is not the recipient of its charity, but is able to pay and does pay for the services, and is injured on account of carelessness, negligence, or incompetence of an officer or employee of the institution, the corporation is liable therefor.”

Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517, 518 (1) (385 SE2d 436) (1989) (citations and punctuation omitted); see Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1) (353 SE2d 515) (1987). In other words, “a charitable hospital may be liable for negligence to a paying patient.” Fulton-DeKalb Hosp. Auth. v. Fanning, 196 Ga. App. 556, 557 (1) (396 SE2d 534) (1990) (citations and emphasis omitted). Where

the hospital produce[s] evidence that it had extended its charity to the patient,. .. the burden shift[s] to [the patient] to produce evidence showing that the patient came within the exception to the charitable immunity doctrine and that [she] was a “paying patient” with a secondary source for paying the [charges].

Id. at 559 (1) (citation and punctuation omitted). Under the “paying patient” exception to the doctrine, “[a] charitable institution may not assert the immunity against a person who (1) enters the hospital under an agreement to pay for services, (2) is able to pay for services, and (3) does pay for services.” Bagley v. Fulton-DeKalb Hosp. Auth., 216 Ga. App. 537, 539 (2) (455 SE2d 325) (1995) (citation and punctuation omitted).

In this case, viewing the evidence most favorably to Lewis as nonmovant on summary judgment, the record discloses the following. Lewis was admitted to the hospital on June 23, 2010 for mental health treatment. On that date, she executed an “Authorization of Treatment” form, which pertinently provided: “I understand and agree that lam financially responsible for any charges not covered by this assignment [to Grady Memorial of any Medicaid, Medicare, or insurance payments] and agree to pay the full balance that is not payable by medical insurance plan. . . Lewis received in-patient treatment at the hospital through June 29, 2010. The charges totaled $10,172.98.

Lewis deposed that, at the time of her hospitalization in 2010, she was employed and had health insurance coverage through her employer. Her testimony is not clear as to whether she provided the hospital with her insurance information or if the hospital verified her insurance coverage during that hospitalization. Lewis testified that she believed her health insurance would pay and did pay for her treatment. Lewis deposed that the hospital sent bills for the treatment to her residence, but that it was no longer sending them.

In 2012, Lewis’s account with the hospital had an outstanding balance of $10,172.98. Beginning around 2012, Lewis’s attorney gave the hospital Lewis’s health insurance information and requested that the hospital submit an insurance claim for the hospitalization. The hospital then submitted an insurance claim for the full amount of the bill, but the insurer apparently denied the claim (the reason for which is not clear from the record). In May 2014, Lewis’s attorney tendered to the hospital the outstanding balance on the account ($10,172.98), which payment the hospital accepted. Lewis thereafter filed this renewal action.

In its motion for summary judgment, Grady Memorial asserted it was immune from suit because it had extended charity to Lewis, maintaining that Lewis had not agreed, arranged, expected or intended to pay the charges, and she was unable to pay the charges.

However, the record contains evidence that Lewis entered the hospital under an agreement to pay for her treatment. See Morton v. Savannah Hosp., 148 Ga. 438, 440 (96 SE 887) (1918), cited in Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167, 167-168 (384 SE2d 205) (1989). Compare Walker v. Fulton-DeKalb Hosp. Auth., 200 Ga. App. 750, 750-751 (2) (409 SE2d 529) (1991) (despite hospital’s designation in its admission record that patient was a “full pay patient,” as designated by an “X,” there was no showing that she entered the hospital under an agreement to pay for services). Lewis also deposed that she had health insurance at the time of her admission and believed that it would pay for her treatment. In 2012, Lewis’s account showed a balance of the full amount of the charges, and the hospital accepted payment of the charges. Although Grady Memorial points to an affidavit in which its witness stated that the hospital had “written off” the charges, the record does not show when the charges were written off or why (e.g., for a charitable purpose versus some other purpose). See generally Fanning, supra. As explained in Fanning, a patient who is able to pay charges but refuses to do so is not a charity patient — such charges constitute a bad debt. Id. at 558-559 (1). Nor is a patient who is herself unable to pay, but whose total expenses are paid by some other source, a charity patient, as the charges are not borne by the public as an expression of charity Id. Grady Memorial did not meet its burden of proving, asa matter of law, that Lewis was a recipient of its charity See generally id.

Lewis also contends that the “paying patient” exception to the charitable immunity defense applies here, regardless of the fact that the bill was paid on her behalf by a third party (her attorney). The trial court based its grant of summary judgment on its conclusion that Lewis was not a “paying patient” because the payment was made by her attorney Importantly, it was in the first instance Grady Memorial’s burden to produce evidence that it extended its charity to Lewis; only then did the burden shift to Lewis to produce evidence showing that she came within the exception to the charitable immunity doctrine as a “paying patient.” See Fanning, supra at 559 (1); Cults, supra at 518-519 (1). Given that Grady Memorial did not meet its burden of proving it extended its charity to Lewis, the burden did not shift to Lewis to prove that the payment of the bill in full satisfied the “paying patient” exception to the charitable immunity defense. See Fanning, supra.

Nonetheless, Grady Memorial failed to show that it was entitled to judgment as a matter of law on the issue of whether Lewis was a “paying patient.” Notably, this Court has held that the “paying patient” exception can be applied to Grady Memorial. See Fulton-DeKalb Hosp. Auth. v. Alexander, 193 Ga. App. 505, 506 (1) (388 SE2d 372) (1989).

There was evidence that Lewis entered the hospital under an agreement to pay for treatment, that she was able to pay for treatment (she was employed and had health insurance), and that the charges were paid in full. The “paying patient” exception may apply even where the payment was made by an entity other than the patient herself or her health insurance provider. See Fanning, supra at 557 (1) (in determining that appellant was not a “paying patient,” this Court noted that “[n]one of the[ ] charges was paid, either by decedent’s administratrix, by insurance, or otherwise”); Cutts, supra at 518 (1) (affirming grant of judgment notwithstanding verdict where undisputed evidence of record showed that hospital extended its charity to patient; “[tjhere was no evidence that the [charge] was paid or payable from any secondary source and was not charitably absorbed by appellee Hospital.” (emphasis in original)). The costs of Lewis’s care were paid in full — they were not charitably absorbed by the hospital or borne by the public as an expression of charity See Fanning, supra at 559 (1).

Decided February 22, 2017

Reconsideration denied March 28, 2017

Townes, Davis & Associates, KwameL. Townes, KeishanJ. Davis, for appellant.

Grady Memorial argues that it “would be a fair extension of the case law” to hold that the “paying patient” exception can only be satisfied where the patient, her family member, or friend made the payment “in the ordinary course of paying medical bills.” Grady Memorial cites Patterson, supra, to support its position that the paying patient exception applies only where the payment came from a source to which the patient contributed. However, in Patterson, the fact that the patient had not personally contributed to the partial payment made on the bill was just one part of the Court’s analysis. In that case, the evidence established that the patient had been admitted without any agreement to pay and did not have assets sufficient to pay, and that only a portion of the charges had been paid. Patterson, supra at 168. Thus, Patterson is distinguishable, and Grady Memorial’s reliance thereon for the stated principle is misplaced.

Although Grady Memorial points to evidence that contradicts some of the evidence relied upon by Lewis, it has not shown that it was entitled to charitable immunity as a matter of law. Genuine issues of material fact remain regarding whether Lewis was the recipient of the hospital’s charity, and whether Lewis comes within the paying patient exception to the charitable immunity doctrine. The motion for summary judgment should have been denied. See generally Morton, supra at 441. Compare Patterson, supra at 168.

Judgment reversed.

Ellington, P J., and Branch, J., concur.

Alston & Bird, Bernard Taylor, Theodore B. Eichelberger, Catherine D. Payne, for appellee.

       Lewis had filed a complaint arising from the same incident against Grady Memorial in June 2012, but dismissed that complaint without prejudice in November 2013.


author: McMILLIAN, Judge.

text:
    A16A2129.
    A16A2130.
    KENNESTONE HOSPITAL, INC. v. CARTERSVILLE MEDICAL CENTER, INC. et al. GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. CARTERSVILLE MEDICAL CENTER, INC. et al.
    (798 SE2d 381)
   McMILLIAN, Judge.

Kennestone Hospital, Inc. d/b/a WellStar Kennestone Regional Medical Center (“Kennestone”) and the Georgia Department of Community Health (“DCH”) each challenge the trial court’s order reversing the final decision of DCH awarding a Certificate of Need (“CON”) to Kennestone for an ambulatory surgery center in Acworth, Georgia. The trial court ruled in favor of Cartersville Medical Center, Inc. (“CMC”) and Marietta Outpatient Surgery, Ltd. (“MOS”), which had objected to the issuance of the CON. We granted both applications for discretionary appeal and consolidated the cases for review. Kenne-stone and DCH assert that the trial court’s order is void because it was issued after the trial court lost jurisdiction, and, in the alternative, that the trial court misapplied the atypical barrier exception in several respects. As further set forth below, because the trial court issued its order after DCH’s final decision had been affirmed by operation of law, the order was a nullity and must be vacated.

In March 2013, DCH issued a CON batching review cycle notification for ambulatory surgery services. The CON notification stated that there was no numeric need for ambulatory services, but that DCH would consider applications under the atypical barrier exception. On May 28, 2013, Kennestone submitted a CON application in which it proposed to develop a 20,000 square-foot multi-specialty, freestanding ambulatory surgery center in Cobb County that would provide a minimum percentage of its services to care for indigent patients. On September 24, 2013, DCH issued an initial decision on Kennestone’s application, finding that a CON was warranted. CMC and MOS sought administrative review of this initial decision with the Certificate of Need Appeal Panel (the “Panel”), and following a full evidentiary hearing, the Panel’s hearing officer reversed DCH’s initial decision, thereby denying the CON. After Kennestone appealed the Panel’s decision to the DCH commissioner pursuant to OCGA § 31-6-44 (i), the commissioner, by way of his designee, issued a final decision reversing the hearing officer and granted a CON to Kennestone (“Final Decision”).

On October 15, 2014, CMC and MOS filed a petition for judicial review in the Superior Court of Fulton County pursuant to OCGA § 31-6-44.1. Kennestone and DCH moved to dismiss the petition’s declaratory judgment action, and while that motion was pending, the parties requested that the trial court schedule a hearing date within the 120-day window required by OCGA § 31-6-44.1 (b) and then continue the hearing to a later date. On March 31, 2015, the trial court conducted a judicial review hearing. The trial court did not enter its order reversing the Final Decision until May 18, 2015 (the “Order”). This appeal followed.

1. As an initial matter, Kennestone and DCH assert that the trial court’s Order is a nullity because it was not issued until after the Final Decision had been affirmed by operation of law pursuant to OCGA § 31-6-44.1 (b). “In construing [the CON judicial review statute], we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms [and] to give words their plain and ordinary meaning. . . (Citation and punctuation omitted.) Lakeview Behavioral Health System, LLC v. UHS Peachford, LP, 321 Ga. App. 820, 822 (1) (743 SE2d 492) (2013). “Thus, a statute should be read according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation.” (Citation and punctuation omitted.) Id.

Turning to the language ofthe statute at issue, OCGA § 31-6-44.1 (b) sets out a specific time line for the judicial review of an order on a CON, including when DCH is required to transmit certified copies of the record and transcript to the superior court clerk to which the case is appealed, timing for notice of the hearing, and when the superior court must hear the case. Relevant to this case, OCGA § 31-6-44.1 (b) provides that:

if the court does not hear the case within 120 days of the date of docketing in the superior court, the decision of the department shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 120 days has been continued to a date certain by order of the court. In the event a hearing is held later than 90 days after the date of docketing in the superior court because same has been continued to a date certain by order of the court, the decision of the department shall be considered affirmed by operation of law if no order of the court disposing of the issues on appeal has been entered within 30 days after the date of the continued hearing.

Here, the trial court conducted the hearing more than 90 days after the date of docketing on October 15, 2014 because the hearing was continued to March 31, 2015 by order of the court. But the trial court did not enter the Order until May 18, 2015, 48 days following the hearing. Thus, it appears that under the plain language of OCGA § 31-6-44.1, the Final Decision was affirmed by operation of law on May 1, 2015, 30 days after the date of the hearing. See Tanner Medical Center, Inc. v. Vest Newman, LLC, 337 Ga. App. 884, 889 (1) (789 SE2d 258) (2016) (“When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant.”) (citation omitted).

Although we have not previously addressed when a decision is affirmed by operation of law under OCGA § 31-6-44.1, this Court has reviewed a virtually identical statutory framework found in the Workers’ Compensation Act, OCGA § 34-9-105 (b). In Buschel v. Kysor, 213 Ga. App. 91, 93 (1) (444 SE2d 105) (1994), this Court held that an order that was signed on the twentieth day after the hearing but entered one day later failed to meet the 20-day deadline found in OCGA § 34-9-105 (b) and was therefore a nullity. See also Brassfield & Gorrie v. Ogletree, 241 Ga. App. 56, 57 (526 SE2d 103) (1999) (superior court lost authority to award attorney fees under OCGA § 9-15-14 (b) after expiration of affirmance by operation of law deadline in Workers’ Compensation Act); Pine Timber Trucking Co. v. Teal, 230 Ga. App. 362, 362 (496 SE2d 270) (1998) (order entered by superior court on twenty-second day after hearing was a nullity).

Moreover, although not directly considering the issue, our Supreme Court has also reviewed similar statutory frameworks, noting that the administrative decision is affirmed by operation of law if the trial court fails to enter an order by the statutory deadline. See, e.g., Center for a Sustainable Coast v. Coastal Marshlands Protection Committee, 284 Ga. 736, 737 (670 SE2d 429) (2008) (noting that, in the context of the Coastal Marshlands Protection Act, where the trial court did not act upon the matter in the time specified by OCGA § 12-2-1 (c), the decision of the administrative law judge was affirmed by operation of law); Rouse v. Department of Natural Resources, 271 Ga. 726, 727 (524 SE2d 455) (1999) (where superior court held a hearing to review the administrative law judge’s decision but did not enter an order within 30 days of the hearing, the case was affirmed by operation of law). See also Labovitz v. Hopkinson, 271 Ga. 330, 332-33 (2) (519 SE2d 672) (1999) (general discussion regarding various statutes demanding automatic dismissals or affirmance by operation of law). We find these cases persuasive in construing OCGA § 31-6-44.1.

CMC and MOS seek to avoid this outcome by asserting that the hearing did not close on March 31,2015 because the trial court did not declare the hearing to be closed at that time and asked the parties to prepare proposed findings of fact and conclusions of law and submit them within two weeks of the hearing. The parties by consent and with approval by the court then extended that date even further, but still within the 30-day time frame. Thus, according to CMC and MOS, the hearing did not close until the proposed findings of fact and conclusions of law were submitted to the trial court on April 22, 2015.

This question turns factually on whether the March 31, 2015 hearing was closed at its conclusion on that day and legally whether requiring parties to submit findings of fact and conclusions of law extends the hearing. At the end of the hearing on March 31,2015, the following exchange occurred:

Trial Court: Okay, I will take the matter under advisement.
I’m going to ask both sides to prepare a proposed order. I guess that ten days, is that enough? Do you need more?
Counsel for Kennestone: Would two weeks be —
Trial Court: Yes, that’s fine.
Counsel for CMC and MOS: Acceptable to us.
Trial Counsel: Okay. Two weeks.

The transcript then indicates that the proceeding was concluded at 5:01 p.m. Subsequently, counsel interacted by electronic mail to come to an agreement to extend the time for filing the proposed orders.

While we agree with CMC and MOS that the trial court did not explicitly state that the hearing was closed at its conclusion on March 31, 2015, CMC and MOS do not provide any law on what is required procedurally to close a hearing, nor have we found any. And we further decline to impose any particular verbiage that the trial court must say in order to formally close a hearing. To the contrary, the trial judge stated that he was taking the matter under advisement, which supports that the trial court considered the hearing closed and that the court was starting the process of evaluating the evidence and arguments to render a decision.

Nor are we persuaded by CMC and MOS’s assertion that the hearing remained open because the trial court requested proposed orders at a later date. We find nothing in the language of OCGA § 31-6-44.1 (b) itself to suggest that the submission of proposed orders could serve the same function as an order continuing a hearing to a date certain. And although CMC and MOS point to Ga. Comp. R. & Regs., r. 274-l-.il (3) for support, this rule governs the conclusion of a hearing in front of a Panel hearing officer and not a hearing conducted during the judicial review phase. Similarly, their reliance on Jones v. Winn-Lovett Grocery Co., 47 Ga. App. 293 (170 SE 393) (1933), which did not involve the judicial review of an administrative agency decision or the construction of a statute providing for affir-mance by operation of law, is misplaced.

Although this Court has previously acknowledged that a party seeking judicial review may be powerless to force a superior court to issue a timely order, we have nevertheless explained “the language of the statute is clear and this court is without power to avoid the ill-effect created by the statute as written.” (Citation and punctuation omitted.) Coronet Carpets v. Reynolds, 199 Ga. App. 383, 384 (405 SE2d 103) (1991). See also Truckstops of America, Inc. v. Engram, 229 Ga. App. 616, 617 (494 SE2d 709) (1997) (“regardless of whose fault it was or what caused the delay, the court lost jurisdiction of the case” when it did not timely enter an order) (citation and punctuation omitted). Accordingly, we are constrained to find that the trial court lost jurisdiction of the case on May 1, 2015, and its subsequent order was a nullity

Decided March 16, 2017

Reconsiderations denied March 28, 2017

Parker, Hudson, Rain er & Dobbs, C. Edward Dobbs, Armando L. Basarrate II, David B. Darden, Elizabeth C. Murphy, for Kennestone Hospital.

Robbins Ross Alloy Belinfante Littlefield, Joshua B. Belinfante, Kimberly K. Anderson, for Cartersville Medical Center et al.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney Gen eral, Daniel S. Walsh, Senior Assistant Attorney Gen eral, Mon ica A. Sullivan, Assistant Attorney General; Clyde L. Reese III, Rachel L. King, Roxana D. Tatman, for Georgia Department of Community Health.

2. Based on our holding in Division 1, we cannot address Kenne-stone or DCH’s remaining enumerations of error. See Borden, Inc. v. Holland, 212 Ga. App. 820, 822 (2) (442 SE2d 916) (1994). And because CMC and MOS did not apply for discretionary appeal from the statutory affirmance of the Final Decision, nothing remains for our consideration. See Pine Timber Trucking Co., 230 Ga. App. at 363 (2).

Judgments vacated.

Miller, P. J., and McFadden, P. J., concur.

       Georgia’s CON program, codified at OCGA § 31-6-40 et seq.,
      establishes a comprehensive system of planning for the orderly development of adequate health care services throughout the state. DCH is the lead planning agency for all health issues in Georgia. OCGA § 31-6-42 (a) specifies that DCH will issue a CON that is consistent with a list of general considerations, including the establishment of a need for the services. Under DCH regulations, need is based on several factors, including area population and the use of existing services.
      (Citations and punctuation omitted.) Tanner Medical Center, Inc. v. Vest Newnan, LLC, 337 Ga. App. 884, 884-85 (789 SE2d 258) (2016).

       The atypical barrier exception standard is an alternative to the numeric need standard set forth in DCH Rule 111-2-2-.40 (3) (b).

       The Certificate of Need Appeal Panel is a separate agency whose purpose is “to serve as a panel of independent hearing officers to review [DCHJ’s initial decision to grant or deny a certificate of need application.” OCGA § 31-6-44 (a).

       CMC and MOS later voluntarily dismissed the count seeking declaratory judgment.

       No party asserts that this procedure was improper under OCGA § 31-6-44.1 (b).

       OCGA § 34-9-105 (b) provides in relevant part:
      if the court does not hear the case within 60 days of the date of docketing in the superior court, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court. In the event a hearing is held later than 60 days after the date of docketing in the superior court because same has been continued to a date certain by order of the court, the decision of the board shall be considered affirmed by operation of law if no order of the court disposing of the issues on appeal has been entered within 20 days after the date of the continued hearing. If a case is heard within 60 days from the date of docketing in the superior court, the decision of the board shall be considered affirmed by operation of law if no order of the court dispositive of the issues on appeal has been entered within 20 days of the date of the hearing.