author: PHIPPS, Presiding Judge.

text:
    A11A2177.
    In the Interest of R. W., a child.
    (726 SE2d 708)
   PHIPPS, Presiding Judge.

After the burglary of an Evans County pharmacy, R. W. was adjudicated delinquent and ordered into restrictive custody. R. W. appeals from the juvenile court’s order of adjudication and its order of commitment and restrictive custody. R. W. claims: that the adjudication of delinquency is erroneous because the evidence was insufficient to corroborate the testimony of his accomplice; that his adjudication and disposition were “tainted” by the filing into the record of extraneous and prejudicial material; that the juvenile court was predisposed to order him into restrictive custody and improperly relied on facts not in evidence; and that the juvenile court’s commitment order was not based on a proper analysis of the factors which, by statute, it was required to consider. For reasons that follow, we find no reversible error and affirm.

The evidence presented at the adjudicatory hearing shows that on June 12, 2010, approximately 27 guns were stolen from Kemp’s Pharmacy. According to Jordy Melvin, he, R. W., and Dewayne Evans broke the store window with a barrel, entered the premises, smashed the gun cases inside, and put the guns from the cases, including multiple silver revolvers, into a bag. They divided the proceeds of the crime among themselves, and R. W.’s share was eight or nine guns.

Also on June 12, 2010, officers responded to a report of fighting at the Hillside Apartments. After they arrived, officers saw R. W. running away from the apartments. A door was open to one of the rooms, and officers entered and found a .38 caliber pistol and bags of marijuana inside. The pistol was identified as one of the weapons stolen from the pharmacy. Officers later learned the apartment belonged to a Mr. Freeman.

Charles Freeman testified that on June 12, his girlfriend dropped him and R. W. off at the Hilltop Apartments, where Freeman went to his brother’s room and knocked on the door. When his brother did not answer, Freeman went to another room, identified alternately as his aunt’s room or his uncle’s room. The police later arrived at the apartments. According to Freeman, “I was in my uncle[’s] room getting away from my girlfriend. . . . So I. . . went in there, and my uncle [told me] they was chasing us. . . .” It appears that the police searched Freeman’s brother’s room. Freeman was not specific about where R. W. went after the two arrived at the apartments, testifying that “I was just out there. And [R. W.] was out there too.”

Monique Moody, who considered R. W. “like a nephew,” testified that the morning after the burglary she saw R. W. and Javan Wise in her living room with several guns. According to Moody, she could not count the number of guns, but there were more than two. She was unable to say there were more than five, but there were not more than ten, and one of the guns was “shiny silver.” Moody did not keep any guns in her house, and, upon seeing R. W. and Wise with the weapons, she asked them to leave. According to Moody, they had to “gather them up” before they left.

1. R. W. contends that the evidence was insufficient to corroborate Melvin’s testimony that he participated in the burglary. R. W. asserts that without such corroboration the evidence was insufficient to establish that he was delinquent. We disagree that Melvin’s testimony was not sufficiently corroborated. “To establish delinquency based on acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts.”

Accomplice testimony must be corroborated in felony cases where the only witness is the accomplice. In addition, “testimony which concerns the identity of other participants must be corroborated by some means independent of the testimony of the accomplice.” “But only slight evidence from an extraneous source as to a defendant’s identity and participation is needed to corroborate an accomplice’s testimony. And, such evidence may be entirely circumstantial.” Nevertheless, “the corroborating evidence must do more than cast on the defendant a grave suspicion of guilt.”

Here, the evidence showed that on June 12, 2010, the same day as the burglary, shortly after the arrival of police R. W. ran from apartments where a gun stolen from the pharmacy was later found; thus, a trier of fact could conclude that R. W. fled from police and that his flight showed consciousness of guilt. “The corroborating evidence ... may include defendant’s conduct before and after the crime was committed.” The state, however, did not offer any evidence that R. W. fled from the room containing the weapon, and so R. W.’s flight from police, if that were the only corroborative evidence, may have cast only a suspicion that R. W. was involved in the burglary. But given the peculiar nature of the crime, in which numerous guns were stolen, and the evidence that very shortly after the burglary R. W. was seen in possession of between three and ten guns, the trier of fact could infer that R. W. was in unexplained possession of the proceeds of the crime. Viewed in a light most favorable to the delinquency adjudication, the extraneous evidence, even if slight and entirely circumstantial, connected R. W. to the burglary. “If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient.” Because Melvin’s testimony was corroborated, the evidence was sufficient for any rational trier of fact to find R. W. delinquent.

2. R. W. argues that his trial and disposition were “tainted” by the filing of an “investigation packet” into the record. The packet contained police reports and interviews that R. W. claims were prejudicial and inadmissible. R. W. posits that the state, by filing the investigation packet, invited the trier of fact to consider it, and that prejudice should be presumed and his adjudication reversed. But R. W.’s argument is based on nothing more than unsupported speculation. “Because this was a bench trial, there is a presumption, in the absence of a strong showing to the contrary, that the trial judge sifted the wheat from the chaff, ignored illegal evidence and considered only legal evidence.” The presumption has “no place where it affirmatively appears to the contrary,” but R. W. points to nothing that affirmatively shows the juvenile court improperly considered the investigation packet. Accordingly, we find no error.

3. After R. W. was adjudicated delinquent, the juvenile court held a hearing and thereafter ordered R. W. to be confined in a youth development campus for forty-four months and ten days, and ordered him released on his twenty-first birthday. R. W. argues that the juvenile court erred in its commitment order because the court was predisposed to order him into restrictive custody, made conclusions without a proper basis, relied on facts not in evidence, and failed to properly analyze the factors set forth in OCGA § 15-11-63 (c).

R. W. does not challenge the juvenile court’s conclusion that his adjudication of delinquency constituted a designated felony act. “Where a child is found to have committed a designated felony act, the order of disposition ... shall include a finding based on a preponderance of the evidence as to whether... the child does or does not require restrictive custody under [OCGA§ 15-11-63] .”

[T]he court must consider five factors in determining whether to order restrictive custody, including the needs and best interest of the juvenile; his record and background; the nature and circumstances of the offense; the need for community protection; and the age and physical condition of the victim.

The weight of each factor, and the ultimate decision about whether restrictive custody is warranted, is within the discretion of the juvenile court.

(a) R. W. claims that the juvenile court erred in its commitment order because it was predisposed to order him into restrictive custody. After the delinquency adjudication hearing, the judge remarked that he “planfned] ... to give [R. W] the exact same sentence as the last one,” but must “go through the different things on the record . . . .” Consequently, any alleged predisposition to commit R. W. to restrictive custody is belied by the court’s pronouncement of intent to review the record before issuing any ruling. The juvenile court, following a hearing and “upon considering the evidence presented, made the requisite finding in its order to determine whether restrictive custody was required.” We find no error.

(b) R. W. further complains that the judge made certain statements at the disposition hearing that were not warranted by the evidence. The judge commented during the disposition hearing that incarceration was the only way to protect the county from “all these crimes you’ve done — and probably a bunch of them we don’t know about yet.” The judge also commented that because R. W. helped steal the guns, those guns were used in other crimes, and that “[w]hile I don’t know the exact causation, one girl was shot — and now paralyzed.” While it appears these two statements may have contained speculation on the part of the juvenile court judge, the statements are not replicated in the juvenile court’s written order, which sets forth, at length, the court’s basis for committing R. W. to restrictive custody. “While a judge’s oral statements on the record may provide insight into the intent of [his] subsequent written judgment, any discrepancies between the two must be resolved in favor of the written judgment.” Accordingly, we cannot conclude that the oral statements made by the judge during the hearing show that the juvenile court abused its discretion in placing R. W. in restrictive custody.

(c) R. W. also claims that in its written commitment order the juvenile court drew unwarranted conclusions from the evidence, failed to properly address the five factors set forth by OCGA § 15-11-63 (c), and relied on facts not in evidence.

R. W. contends that the juvenile court drew unwarranted conclusions in finding (i) that the safety of the employees and owner of the pharmacy were not important to R. W. at the time of the burglary and (ii) that no restitution was paid to cover the damages. R. W. admits that the latter is true, and the first finding is an inference that the juvenile court could draw from the evidence. We find no error.

R. W. also maintains that the juvenile court failed to address the initial factor required to be considered under OCGA § 15-11-63 (c), his needs and best interests. The commitment order shows that, under the heading of “The Needs and Best Interests of the Juvenile,” the juvenile court found R. W. to be “in need of secure confinement and rehabilitation before he is allowed to return to the community.” This is sufficient to show that the court considered R. W.’s needs and best interests.

R. W. also argues that in considering the fifth factor, the age and physical condition of the victim, the juvenile court made erroneous findings of fact. Specifically, after noting that Harold Kemp was the owner of the business burglarized, the court found that insurance on Kemp’s store covered all the damages except for a $1,000 deductible, but that Kemp “had additional out of pocket expenses in security enhancements to the store of $16,850.00.” We can find no basis in the record for the court’s findings as to the dollar amount of the insurance deductible, that Kemp made security enhancements to the store, or as to the cost of the security enhancements, and so we agree with R. W. that the trial court’s findings were erroneous in this respect.

“[A]n abuse of discretion occurs where ‘the trial court significantly misapplies the law or clearly errs in a material factual finding.’ ” Here, the juvenile court’s analysis of the five factors rests heavily on its lengthy and detailed discussion of R. W.’s record and background, and on the nature and circumstances of this and the other offenses for which R. W. had been adjudicated delinquent. As the juvenile court notes at the beginning and end of its written analysis, this incident marked the fifth time R. W. had been adjudicated delinquent for offenses which would, if committed by an adult, constitute felonies. Kemp’s insurance deductible and security enhancements are not, in the context of the commitment order, material findings of fact, and the evidence supports the juvenile court’s ultimate finding that restrictive custody was warranted. It follows that the error was harmless, and that the juvenile court did not abuse its discretion in placing R. W. in restrictive custody.

Decided March 27, 2012.

Melissa E. Lawrence, Craig T. Pearson, for appellant.

Tom Durden, District Attorney, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       The Hillside Apartments apparently included motel rooms.

        In the Interest of Q. S., 310 Ga. App. 70, 72 (1) (712 SE2d 99) (2011).

       OCGA§ 24-4-8.

        Hill v. State, 236 Ga. 831, 833 (225 SE2d 281) (1976) (citation omitted).

        Smith v. State, 257 Ga. App. 595, 597 (1) (571 SE2d 817) (2002) (footnotes omitted).

        Smith v. State, 238 Ga. 640, 642 (235 SE2d 17) (1977).

       See Ellison v. State, 265 Ga. App. 446, 448 (1) (594 SE2d 675) (2004) (flight from the residence which had marijuana in many rooms showed consciousness of guilt of possession of marijuana and was sufficient to corroborate accomplice testimony); Davis v. State, 154 Ga. App. 803, 804 (2) (269 SE2d 874) (1980) (testimony of accomplice as to defendant’s participation in burglary corroborated by defendant’s flight on foot after the getaway car was stopped by police several days after the burglary).

        King v. State, 268 Ga. App. 811, 813 (1) (603 SE2d 88) (2004) (citation omitted).

       See, e.g., Inman v. State, 182 Ga. App. 209 (355 SE2d 119) (1987) (recent possession of stolen property, not satisfactorily explained, is sufficient basis for the corroboration of an accomplice’s testimony).

       See In the Interest of A. B., 296 Ga. App. 350 (674 SE2d 401) (2009).

        Kesler v. State, 249 Ga. 462, 466 (2) (291 SE2d 497) (1982) (circumstantial evidence tying the defendant to the crime and justifying an inference of guilt is sufficient to corroborate an accomplice’s testimony).

        Bradford v. State, 262 Ga. 512, 513 (421 SE2d 523) (1992) (citation and punctuation omitted).

        Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010) (independent evidence was sufficient to corroborate testimony of accomplice, and cumulative evidence was sufficient for a rational trier of fact to find defendant guilty of the charged crime).

        Mays v. State, 306 Ga. App. 507, 512 (2) (703 SE2d 21) (2010) (punctuation and footnote omitted).

        In the Interest of A. D., 282 Ga. App. 586, 589 (2) (639 SE2d 556) (2006) (citation and punctuation omitted).

       The juvenile court’s commitment order shows that R. W. had previously been adjudicated guilty of four acts which, if committed by an adult, would constitute felonies. “ ‘Designated felony act’means... [an] act which, if done by an adult, would be a felony, if the child committing the act has three times previously been adjudicated delinquent for acts which, if done by an adult, would have been felonies.” OCGA § 15-11-63 (a) (2) (B) (vii).

       OCGA§ 15-11-63 (b).

        In the Interest of J. W., 306 Ga. App. 339, 341 (3) (702 SE2d 649) (2010). See OCGA § 15-11-63 (c).

        In the Interest ofQ. S., supra at 77 (2).

        In the Interest of S. F., 312 Ga. App. 671, 675 (2) (a) (719 SE2d 558) (2011) (emphasis omitted).

        In the Interest of S. S., 276 Ga. App. 666, 667 (624 SE2d 251) (2005) (footnote omitted).

        In the Interest of J. A. C., 291 Ga. App. 728, 731 (3) (662 SE2d 811) (2008).

       A state’s brief would have been particularly helpful to this court in assessing R. W.’s claim that these facts cannot by supported by the substantial appellate record. The state has not, however, filed an appellee’s brief as required by our Rule 23 (b) (“A brief shall be filed by the appellee in all criminal appeals when the State is the appellee; and upon failure to file such brief, the State’s representative may be subject to contempt.”). After our independent but necessarily limited review, the appellate record appears consistent with R. W.’s claim that the factual findings at issue are unsupported.

        In the Interest of Q. S., supra at 77-78 (2); State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011).

       See In the Interest of I. C., 300 Ga. App. 683 (686 SE2d 279) (2009) (any error as to the court’s challenged specific finding was harmless, as juvenile court’s findings otherwise accurately reflected nature and circumstances of offense); In the Interest of J. A. C., supra (juvenile court’s reference to the defendant’s “previous convictions” was harmless because the remainder of the order showed that the trial court was aware that the defendant’s background included only one delinquency adjudication); C. P. v. State, 167 Ga. App. 374, 377 (4) (306 SE2d 688) (1983) (error in stating number of delinquent adjudications was harmless because “appellant could have received restrictive custody for the designated felony act of aggravated assault alone, and certainly with consideration of his extensive record”).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A11A1940.
    STEVENSON v. CITY OF DORAVILLE et al.
    (726 SE2d 726)
   Miller, Judge.

Kenyatta Stevenson filed suit against the City of Doraville (the “City”), alleging that a Doraville Police Department (“DPD”) officer’s failure to redirect traffic from Stevenson’s disabled vehicle caused a multi-vehicle accident that injured Stevenson. The City moved for summary judgment on the ground that it was insulated from liability under the public duty doctrine. Following a hearing, the trial court granted the City’s motion. Stevenson filed the instant appeal to challenge the trial court’s ruling. Discerning no error, we affirm.

A defendant can prevail on a motion for summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Punctuation and footnote omitted.) Community Newspaper Holdings v. King, 299 Ga. App. 267, 268 (682 SE2d 346) (2009).

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that on the night of February 13, 2007, Stevenson was traveling on Interstate 285 in the lane closest to the median when his car began having mechanical problems. Stevenson attempted to pull over to the shoulder of the interstate, but was unable to do so before his car stalled. Upon seeing Stevenson’s disabled vehicle, the officer activated his flashing lights, which were not roof-mounted. The officer called dispatch, announced his location, and reported that he was attempting to reach the road hazard created by Stevenson’s vehicle. However, because the traffic on the interstate was heavy and moving quickly, the officer was unable to get to Stevenson’s vehicle; he thus called dispatch for additional assistance.

After seeing the officer’s flashing patrol lights, Stevenson decided to remain in his vehicle, because he believed the officer would render aid. After a delay of several minutes, however, Stevenson became unsure as to whether the officer had seen him; as a result, he exited his vehicle to obtain the officer’s attention. While Stevenson was outside his vehicle, he was struck by another vehicle. The driver of the other vehicle indicated that he could not see Stevenson’s vehicle in time to stop, because it was dark and raining.

Stevenson filed suit against the City, asserting that it was liable for the officer’s negligence in failing to redirect traffic away from Stevenson’s disabled vehicle and causing traffic to move into Stevenson’s lane. The City moved for summary judgment, asserting that it was insulated from liability under the public duty doctrine. In response, Stevenson argued that the public duty doctrine did not apply because the officer was actively negligent, Stevenson had a special relationship with the officer, and the officer failed to render aid in violation of DPD’s policies. The trial court granted the City’s motion for summary judgment, finding that the public duty doctrine insulated it from liability.

1. On appeal, Stevenson argues that the trial court incorrectly determined that the public duty doctrine applied, because the case involved an officer’s active negligence, rather than his failure to protect the general public. Stevenson’s argument is without merit.

The public duty doctrine provides that a municipality may not be held liable for the failure to provide police protection to an individual citizen, except where a special relationship exists between the citizen and the municipality. City of Rome v. Jordan, 263 Ga. 26, 28-29 (1) (426 SE2d 861) (1993); Holcomb v. Walden, 270 Ga. App. 730, 731-732 (607 SE2d 893) (2004). The public duty doctrine applies only to “the provision of police protection services, such as requests for emergency help.” (Footnote and emphasis omitted.) Butler v. Carlisle, 299 Ga. App. 815, 824 (4) (683 SE2d 882) (2009).

Relying upon Daley v. Clark, 282 Ga. App. 235 (638 SE2d 376) (2006), Stevenson argues that the public duty doctrine did not apply in this case because the officer was actively negligent in failing to render aid and in hindering Stevenson’s efforts to help himself. The Daley case, however, is distinguishable from this case. In Daley, the officers were present at the scene of a crime, there was an identifiable victim, and the officers were alleged to have actively hindered efforts to assist the victim. Daley, supra, 282 Ga. App. at 235, 237 (1). Under the facts in this instance, Stevenson was not an identifiable victim of a crime when his car broke down. Moreover, despite Stevenson’s claims to the contrary, the record does not show that anyone attempted to help Stevenson, or that the officer actively hindered anyone, including Stevenson himself, from doing so. Consequently, Daley is inapplicable to Stevenson’s case and there is nothing in the record otherwise showing any active negligence on the part of the officer.

Rather, contrary to Stevenson’s contention, this case involves an officer’s alleged failure to protect the general public. Significantly, Stevenson’s claims allege that the officer failed to redirect traffic away from Stevenson’s stalled vehicle and thus failed to comply with his duty as a police officer. Law enforcement officers have the general duty to enforce the law and maintain the peace, see Duncan v. State, 163 Ga. App. 148, 148 (1) (294 SE2d 365) (1982), which often encompasses directing traffic, see Sommerfield v. Blue Cross & Blue Shield of Ga., 235 Ga. App. 375, 376-377 (1) (509 SE2d 100) (1998). When responding to a disabled vehicle on a busy interstate, directing traffic flow is just one of the many elements an officer must consider. Indeed, the officer in this case deposed that he had to call for additional assistance because he could not safely reach Stevenson’s vehicle and would have caused more harm by moving into heavy traffic and attempting to redirect it, especially since his vehicle was not equipped with the more visible roof-mounted emergency lights. Under these circumstances, the officer owed a duty to the general public, not to Stevenson specifically. Thus, the public duty doctrine controls the facts of this case. See Holcomb, supra, 270 Ga. App. at 732; see also Tilley v. City of Hapeville, 218 Ga. App. 39, 40-41 (1) (459 SE2d 567) (1995) (public duty doctrine applied where officer failed to warn or direct a motorist away from an abandoned car that the motorist hit).

2. Stevenson further contends that there was a special relationship between him and the City, which gave rise to a particular duty owed to Stevenson. Again, Stevenson’s contention is without merit.

Decided March 28, 2012

Pope & Howard, J. Marcus Edward Howard, for appellant.

For a special relationship to exist, there must be (1) an explicit assurance by the governmental unit, through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the governmental unit that inaction could lead to harm; and (3) justifiable and detrimental reliance by the injured party on the governmental unit’s affirmative undertaking. City of Rome, supra, 263 Ga. at 29 (2).

Here, Stevenson did not satisfy the first and third elements and therefore could not establish the existence of a special relationship with the City. As to the first element, the evidence does not show that the officer explicitly assured Stevenson that he would act to protect him. Contrary to Stevenson’s claim, the officer’s activation of his patrol lights was not an explicit assurance. Indeed, Stevenson himself conceded that such action was ambiguous — he deposed that he was not certain whether the officer had activated the patrol lights in response to Stevenson’s car breaking down or whether it was for some other reason. Moreover, the reason why Stevenson in fact got out of his vehicle was because he was unsure whether the officer knew he needed help. As to the third element of detrimental reliance, Stevenson’s act of staying in his vehicle was based solely upon his personal belief that the officer would come to his aid, not on any explicit promise made by the officer. “To allow such an expression of reliance to satisfy the reliance requirement in the special relationship test would render the requirement virtually meaningless.” City of Rome, supra, 263 Ga. at 30 (3) (plaintiff’s reliance was not justified, because it was based solely on her belief that police were coming to help her, not on any promise made by the police).

Therefore, no special relationship existed, and the public duty doctrine shielded the City from liability. See Tilley, supra, 218 Ga. App. at 40-41 (1); see also City of Rome, supra, 263 Ga. at 26, 30 (3). Accordingly, the trial court did not err in granting summary judgment to the City on this ground.

3. In light of our holdings in Divisions 1 and 2 above, that there was no duty owed to Stevenson under the public duty doctrine, we need not address Stevenson’s arguments relating to the other elements of his negligence claim. Nor do we need to address Stevenson’s claim that the City allegedly destroyed certain videotape evidence pertinent only in establishing the negligence element of causation.

Judgment affirmed.

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

Gray, Rust, St. Amand, Moffett & Brieske, Harvey S. Gray, for appellees.

       Stevenson also sued the officer individually. The trial court granted summary judgment to the officer on the ground of official immunity, and Stevenson does not challenge that ruling on appeal.

       Accord Lassiter v. Cohn, 607 SE2d 688, 690, 693 (III) (N.C. Ct. App. 2005) (applying public duty doctrine — similar to Georgia’s doctrine — where the officer responding to a traffic accident failed to re-route traffic, causing the motorist to be struck by an oncoming car); Beaver v. Gosney, 825 SW2d 870, 873-874 (Mo. Ct. App. 1992) (public duty doctrine, similar to Georgia’s doctrine, shielded officer from liability for failing to take precautionary measures when responding to disabled vehicle).


text:
    A11A2082.
    RIDLEY v. SOVEREIGN SOLUTIONS, LLC.
    (727 SE2d 135)
   PHIPPS, Presiding Judge.

This litigation arose after Sheila Ridley and her former employer, Sovereign Solutions, LLC parted ways. The parties sued each other, then filed cross-motions for summary judgment. The trial court ruled in Sovereign Solutions’ favor, and Ridley appeals. For reasons that follow, we affirm in part and reverse in part.

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.” “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.”

So viewed, the record shows that Ridley was employed initially by another company, Stafford Development Company (SDC), to evaluate workers’ compensation and health insurance programs. Having enjoyed success thereby, Ridley and SDC formed a new company, (appellee) Sovereign Solutions, that also would engage in the insurance business. Ridley served as Sovereign Solutions’ president and also provided services to certain of Sovereign Solutions’ customers. When discord allegedly arose between Ridley and personnel at SDC and Sovereign Solutions, Ridley (on one hand) and the two companies (on the other) executed a Separation and Services Agreement.

Among its provisions, the Agreement stated that Ridley’s employment with SDC and Sovereign Solutions terminated as of March 16, 2007. The Agreement provided that Ridley would continue, however, to provide consulting services to Sovereign Solutions and to at least one customer, Woodgrain Millworks, Inc.; and that Ridley would receive certain revenues paid by that customer and others. With respect to this arrangement, the Agreement allowed for either party to terminate the Agreement by providing 30 days’ written notice to the other. Additionally, the Agreement set forth that Ridley would receive “a fax machine and copier, with Ridley assuming the lease for this equipment.” It is undisputed that, in October 2008, Sovereign Solutions sent written notice to Ridley terminating the Agreement.

Thereafter, in June 2009, Sovereign Solutions sued Ridley for damages, alleging that Ridley had failed to make payments on the leased equipment. Later, in February 2010, Sovereign Solutions added a count that Ridley was indebted to it for unpaid advances or loans.

Ridley denied liability in her answer. She also counterclaimed that Sovereign Solutions had defamed her by making misleading and discrediting statements to Woodgrain (and other companies) to such an extent that Sovereign Solutions had prevented her from providing services to that customer. Further, she asserted that Sovereign Solutions had violated the covenant of good faith and fair dealing, thereby breaching their Agreement.

Sovereign Solutions sought summary judgment on its two claims against Ridley, as well as on Ridley’s counterclaims asserted against it. As evidentiary support, Sovereign Solutions presented the affidavit of SDC’s chief financial officer. Ridley opposed Sovereign Solutions’ motion and further sought summary judgment on Sovereign Solutions’ claim for repayment of alleged loans/advances. As evidentiary support, Ridley presented her own affidavit.

Sovereign Solutions moved to strike Ridley’s affidavit in its entirety; alternatively, it argued in detail that specified paragraphs should be stricken on various grounds. At a hearing on February 14, 2011, the trial court allowed argument on Sovereign Solutions’ motion to strike and on both parties’ motions for summary judgment. Ridley’s counsel sought and obtained a two-week extension to file a response to the motion to strike.

On March 1, 2011, Ridley filed a pleading captioned “[Ridley’s] Response to Plaintiffs Motion to Strike and Supplemental Response in Opposition to Plaintiffs Motion for Summary Judgment and Brief in Support Thereof.” Therein, she explained that an accompanying affidavit was of a third party and was being filed “in further response to [Sovereign Solutions’] motion for summary judgment.” Further, she explained,

[Ridley] is not going to attempt to address each and every paragraph of Plaintiffs motion to strike. Instead, [Ridley] will show the Court that with respect to the critical allegations set forth in Ms. Ridley’s affidavit, together with [the third-party’s] affidavit and the record of this case, there are material disputed facts to warrant sending this case to the jury.

Without elaboration, the trial court struck 35 of the 46 paragraphs set forth in Ridley’s affidavit. It expressly refused to consider the third-party affidavit submitted by Ridley after the hearing. The court then summarily granted Sovereign Solutions’ motion for summary judgment and denied Ridley’s motion for summary judgment.

1. As a threshold matter, we note that, in her initial brief to this court, Ridley did not enumerate as error the trial court’s ruling on Sovereign Solutions’ motion to strike; she did not cite where in the record she made any argument opposing Sovereign Solutions’ motion to strike; nor did she set forth any argument urging us to conclude, or provide any authority for a conclusion, that the trial court erred in striking, or refusing to consider, any portion of either affidavit she presented.

Sovereign Solutions has posited that, because the only evidence in Ridley’s favor that remained at the time of the summary judgment ruling was comprised of 11 paragraphs of her own affidavit, the contentions on appeal concern whether those paragraphs, alone, were sufficient to establish a genuine issue as to any material fact.

In her reply brief, Ridley stated that the “stricken portions of [her] affidavit and [the third party’s] affidavit are of little consequence to this Appeal.” However, she asserted then (and for the first time on appeal, yet without any argument or citation to authority) that “the trial court erred in striking them.” This claim of error, not made until the reply brief, is untimely and presents nothing for review.

Ridley states further in her reply brief, “As [Sovereign Solutions] correctly points out, the primary issue in this case is whether the un-stricken portions of [her] affidavit were sufficient to establish a dispute of material fact.” We proceed accordingly.

2. Ridley contends that the trial court erred in granting summary judgment to Sovereign Solutions on its claim related to the leased equipment. She has shown, however, no issue as to any material fact.

Sovereign Solutions alleged in its complaint that Ridley had agreed to be responsible for lease payments in connection with a “Savin 3515F copier,” that she had failed to make payments, and that she was indebted to it for $3,283.45. Seeking summary judgment therefor, Sovereign Solutions adduced the affidavit of SDC’s chief financial officer. He recounted that in April 2009, “S S[] began to receive demands from attorneys for the lease company . . . with respect to the lease of the fax/copier machine and we ultimately settled those claims for $3,283.45.”

Ridley briefed to the trial court: “[Ridley] does not dispute that she received from [Sovereign Solutions] a printer and fax machine [and] that she agreed to make certain payments.” She stated similarly in her affidavit that the Agreement allowed her to “continue to use the copier/fax machine” and that she “used the copier/fax machine in the context of performing services under the referenced agreement.”

On appeal, Ridley makes two arguments as to why the grant of summary judgment was not authorized. First, she asserts that during the course of the litigation, Sovereign Solutions provided her with conflicting information regarding the specific office equipment at issue. Thus, she cites an averment in her affidavit — that “[she] does not have and has never had a Savin copier SLP38CD Serial #P6030100998” — as having created an issue of material fact. It did not; as set forth above, Sovereign Solutions’ claim did not include any such description for the office equipment at issue.

Second, Ridley maintains that she met all obligations with regard to assuming the lease. But Ridley has failed to cite any unstricken portion of her affidavit that provides the requisite evidentiary support. Where, as here,

a motion for summary judgment is made and supported as provided in [OCGA§ 9-11-56], an adverse party may not rest upon the mere allegations or denials of his pleading, but [her] response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If [s]he does not so respond, summary judgment, if appropriate, shall be entered against [her].

Under the circumstances shown here, summary judgment in Sovereign Solutions’ favor is affirmed with respect to the company’s claim against Ridley for indebtedness related to the leased office equipment.

3. Ridley challenges the trial court’s rulings on Sovereign Solutions’ claim related to alleged loans and/or advances.

(a) Ridley contends that the trial court erred by granting Sovereign Solutions’ motion for summary judgment.

Sovereign Solutions alleged in its complaint that Ridley owed it approximately $89,100 “in advances for loans made to her during the course of her association with” it. In seeking summary judgment on this claim, Sovereign Solutions relied upon the affidavit of SDC’s chief financial officer, who recounted: “During the course of [Ridley’s] employment, [SDC] made loans and/or advances to Ridley in the amount of $89,178.00. These claims have now been assigned to Sovereign Solutions and Sovereign seeks recovery of these amounts.” We agree with Ridley that Sovereign Solutions was not entitled to summary judgment against her on this claim, in light of her affidavit wherein she stated that she “did not borrow money from [Sovereign Solutions] and does not owe [Sovereign Solutions] money under a promissory note or other advance.”

(b) Ridley contends that the trial court erred by denying her motion for summary judgment, asserting that “the trial court should have found that the loans and advances came within the ‘Covenant Not-to-Sue by Sovereign and Stafford’ ” clause of the Agreement. That clause stated:

Sovereign [Solutions] and [SDC] covenant and agree not to file or initiate a lawsuit against Ridley in regard to claims, demands, causes of actions, suits, damages, losses and expenses, arising from acts or omissions of Ridley made by or before the Effective Date, and will ask no other person or entity to initiate such a lawsuit on its or their behalf.

The Agreement defined “Effective Date” as “the eighth (8th) day after the date on which Ridley signs the Agreement.” Ridley signed the Agreement on April 11, 2007, thereby providing for an Effective Date of April 19, 2007.

However, Ridley concedes (and we agree) that the record lacks “evidence with regard to the nature of the alleged loans and advances, making it impossible to determine whether such loans and advances came within the scope of the” cited clause. Because the record does not show, as a matter of law, whether the cited clause barred Sovereign Solutions’ claim, Ridley has failed to show any error in the trial court’s denial of her motion for summary judgment.

4. Ridley contends that the trial court erred by granting summary judgment to Sovereign Solutions on her counterclaims. However, she has only conclusorily stated that genuine issues of material fact exist. Furthermore, the trial court struck 19 of the 20 paragraphs within Ridley’s affidavit that pertained specifically to her counterclaims, and struck in its entirety the second affidavit filed by Ridley to overcome Sovereign Solutions’ attack upon her counterclaims.

The sole surviving paragraph of the pertinent section of Ridley’s affidavit stated:

From the beginning of the separation agreement, I was asked to send a detail list of open issues with respect to software problems. There are over 500 documented errors that were sent to Mr. Deo and Mr. Lock.

Ridley has made no attempt to argue to this court how that paragraph resuscitates her counterclaims. And her conclusory claim that genuine issues of material fact exist falls short of demonstrating reversible error. As to Ridley’s counterclaims, the trial court’s grant of summary judgment to Sovereign Solutions is affirmed.

Decided March 28, 2012.

Taylor, Odachowski, Schmidt & Crossland, Joseph R. Odachowski, Noah W. Priest-Goodsett, for appellant.

Spurlin & McCorvey, John C. Spurlin, for appellee.

Judgment affirmed in part and reversed in part.

Andrews and McFadden, JJ., concur.

       OCGA§ 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

       (Emphasis supplied.)

       See Court of Appeals Rule 25; see generally Mercer v. Washington Mut. Home Loans, 287 Ga. App. 388-389 (651 SE2d 499) (2007) (granting appellee’s request for sanctions against appellant pursuant to this court’s Rule 15 partly because appellant made no argument on appeal as to why the trial court’s ruling dismissing her pleading was erroneous).

       Compare Dierkes v. Crawford Orthodontic Care, 284 Ga. App. 96, 99 (2) (a), n. 10 (643 SE2d 364) (2007) (where motion to strike affidavit was not ruled upon, appellate review of summary judgment required examination of the affidavit); Kirk v. Ashley, 199 Ga. App. 805, 806-808 (2), (3) (406 SE2d 82) (1991) (appellant contested both the trial court’s ruling that affidavit was legally insufficient and the resulting grant of summary judgment).

       See Willis v. Willis, 288 Ga. 577, 582 (4) (707 SE2d 344) (2011); Potter v. State, 283 Ga. 576, 578 (3), n. 5 (662 SE2d 128) (2008); Court of Appeals Rule 22 (a).

       See Dept. of Transp. v. Calfee Co. &c., 202 Ga. App. 299, 306 (414 SE2d 268) (1991) (the burden is on the party appealing to craft enumerations of error, as well as appellate arguments).

       Citing this averment on appeal, Ridley equates “S S” with “Appellee.” As the record so permits, we will, also. See Cowart, supra at 624 (1) (a) (reviewing court must view evidence, and all reasonable inferences drawn therefrom, in light most favorable to nonmovant).

       See Division 1, supra.

       OCGA§ 9-11-56 (e); Cowart, supra at 623-624 (1) (a).

       OCGA§ 9-11-56 (c); Cowart, supra.

       See OCGA§ 9-11-56 (e).

       See Lau’s Corp. v. Haskins, 261 Ga. 491-493 (405 SE2d 474) (1991) (when a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion).

       Id. at 491 (to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law).

       See generally Clark v. Stafford, 239 Ga. App. 69, 74 (4) (522 SE2d 6) (1999) (“stat[ing] conclusorily that there is no evidence” fell short of proper argument because it merely invited the appellate court to review the entire record and all relevant authority to determine whether the trial court’s ruling was appropriate).

       See Sirdah v. North Springs Assocs., 304 Ga. App. 348, 352 (2) (696 SE2d 391) (2010) (rejecting appellant’s blanket assertion that the trial court erred in granting summary judgment because a genuine issue of material fact existed; appellant must support enumerated error with argument and citations of authority, and mere conclusory statements are not the type of meaningful argument contemplated by Rule 25); see generally Clark, supra.


author: Adams, Judge.

text:
    A11A2287.
    PEACHTREE HOMES, INC. et al. v. BANK OF AMERICA, N.A.
    (726 SE2d 737)
   Adams, Judge.

This case arises from an application for confirmation of four foreclosure sales (the “Foreclosure Sales”) filed pursuant to OCGA § 44-14-161 by Bank of America, N.A. (“BOA”) against Peachtree Homes, Inc. and Hugh W. Morton (collectively “Peachtree”), a residential home builder and its guarantor. Peachtree appeals the trial court’s order confirming the Foreclosure Sales. We affirm for the reasons set forth below.

The four foreclosed properties (the “Properties”) at issue in this case include one completed townhouse and eighteen townhouse lots in the Peachtree Corner subdivision in Clayton County. Peachtree Homes defaulted on four separate promissory notes (the “Notes”) secured by four separate security deeds (the “Security Deeds”). Morton was the guarantor on each of the Notes. BOA was the lender on each of the Notes, and the Security Deeds gave BOA the right to bid at any foreclosure sale on the property. After BOA determined that Peachtree Homes defaulted and Morton failed to pay as guarantor, BOA exercised the power of sale under the Security Deeds. In that regard, BOA placed notices of sale in the legal organ in Clayton County for each of the four Properties. After the advertisements had run for four weeks, the four Properties were sold by public outcry auction on November 2, 2010, before the door of the Clayton County courthouse. BOA was the highest bidder on, and thus the purchaser of, all four Properties at the Foreclosure Sales. BOA paid for the Properties through credit bids, under which the debt from Peachtree Homes on each of the Notes was reduced “dollar for dollar” by the amount bid on the property.

BOA assigned its interest in the Properties, as it did with all foreclosed properties on which it was the highest bidder, to Quality Properties Asset Management Company (“Quality”), its fully owned subsidiary. This assignment was done for liability purposes, and Quality, a management company, maintains such properties until a decision is made to sell them. A Deed Under Power of Sale was recorded on each of the four Properties (the “Deeds Under Power”), conveying the property to Quality. Each of the Deeds Under Power mistakenly indicated that during the public sale, the Properties had been knocked off to Quality, when, in fact, the Properties had been knocked off to BOA as the high bidder.

On November 29, 2010, BOA filed a “Report of Foreclosure and Application for Confirmation of Foreclosure Sales Under Power” (the “Application”) in the trial court. And following a confirmation hearing, the trial court issued an order confirming the sales.

As its sole enumeration of error in this appeal, Peachtree asserts that “[t]he trial court’s findings of fact and conclusions of law respecting the regularity and legality of the Foreclosure Sales are not supported by any competent evidence____” Peachtree argues that the Foreclosure Sales were advertised as cash sales as required under the Security Deeds. But Peachtree contends that because BOA transferred the Properties to Quality without first transferring the property to itself, Quality was in fact the bidder at the sale, with BOA acting as its agent. Because Quality was not the lender, Peachtree argues that Quality was required under the Security Deeds and the law to pay cash for the Properties, which it failed to do. Thus, Peachtree urges that the trial court’s confirmation order be reversed because the Foreclosure Sales “were not legal or regular, or even consummated, without payment for the bid prices, and were effected contrary to the requirements of Georgia law and the advertisements that the sales be ‘for cash.’ ” We find no merit to this argument.

Pursuant to OCGA § 44-14-161 (c), the trial court shall “pass upon the legality of the notice, advertisement, and regularity of [a nonjudicial foreclosure] sale.” “OCGA§ 44-14-161 is in derogation of common law and must be strictly construed.” (Citation and punctuation omitted.) 129 Acres, Inc. v. Atlanta Business Bank, 311 Ga. App. 462, 463 (716 SE2d 536) (2011). In making this determination,

[t]he trial judge in a confirmation proceeding sits as the trier of fact, and its [factual] findings and conclusions have the effect of a jury verdict. Thus, witness credibility and the weight of the evidence proffered by the parties at a confirmation hearing are to be judged by the trial court, and not this Court on appeal. For this reason, we will not disturb the trial court’s decision if there is any evidence to support it, and we view the evidence in the light most favorable to the trial court’s judgment.

(Punctuation and footnotes omitted.) Metro Land Holdings Investments v. Bank of America, 311 Ga. App. 498, 498-499 (716 SE2d 566) (2011).

The trial court found that BOA properly advertised the sales and the sales were properly conducted; the notices were read and the bids properly solicited. The trial court also found that BOA was the only bidder on each of the four Properties and that it had subsequently assigned its interest in the Properties to Quality through the Deeds Under Power. Thus, the trial court determined that the transfer of the Properties from BOA to Quality did not affect the validity of the foreclosure sales:

The unrebutted testimony is that [BOA] was the successful bidder and the post-bid transfer of the property to a subsidiary did not in any way chill the sale or impact the issue of whether the amount bid for the parcels was in fact the fair market value of those parcels on the date of sale.

Based upon these findings, the trial court concluded that BOA had established that the sales were conducted “in accordance with the law.” We agree.

We must accept the trial court’s finding that BOA was the only bidder at the Foreclosure Sales because the evidence at the hearing supports it. Quality, therefore, was not a bidder and thus had no obligation to pay anything, cash or otherwise, in connection with the sales. The evidence also established that the sales were properly advertised and were otherwise conducted within the procedural requirements of OCGA § 44-14-161. And BOA presented uncontradicted evidence that it credited Peachtree Homes with amounts equivalent to its bids at the Foreclosure Sales by applying those amounts to reduce Peachtree Homes’ debt. Peachtree concedes that BOA had the contractual right to follow this procedure. See generally Gibson Constr. Co. v. GAA Acquisitions I, 307 Ga. App. 698, 699 (705 SE2d 913) (2011) (lender employed credit bid in foreclosure sale).

Additionally, Peachtree Homes’ interest in the Properties was conveyed pursuant to the Deeds Under Power in compliance with the Statute of Frauds:

When a person who is conducting a nonjudicial foreclosure sale pursuant to a power of sale in a security deed accepts a bid, an oral contract is created. Because such a contract conveys an interest in land, it is subject to the Statute of Frauds unless it falls into one of the recognized exceptions.

(Citations omitted.) Legacy Communities Group v. Branch Banking & Trust Co., 310 Ga. App. 466, 469 (1) (713 SE2d 670) (2011). The fact that BOA conveyed Peachtree Homes’ interest to its wholly-owned subsidiary, Quality, pursuant to a separate intra-corporate agreement, rather than transferring the Properties to itself, does not undercut the underlying Foreclosure Sales. This procedure met the requirements of the Statute of Frauds, caused no prejudice to Peachtree and had no chilling effect on the sales. The testimony showed that Quality was merely a property management arm of BOA. We agree with the trial court, therefore, that the Foreclosure Sales were properly conducted and consummated. See generally Winstar Dev. v. SunTrust Bank, 308 Ga. App. 655, 662 (708 SE2d 604) (2011) (physical precedent only). Compare Building Block Enterprises v. State Bank and Trust Co., 314 Ga. App. 147 (2) (723 SE2d 467) (2012) (foreclosure sale not consummated where purchaser bank did not transfer buyer’s interest to itself and did not apply proceeds of sale to reduce borrower’s debt); Legacy Communities Group v. Branch Banking & Trust Co., 310 Ga. App. at 470 (1) (sale not consummated where bank did not convey borrower’s interest to itself, did not prove that it applied any foreclosure proceeds to eliminate or reduce the borrower’s debt and notified borrower that it was rescinding any actions taken with regard to foreclosure and that the foreclosures would not be consummated).

Decided March 28, 2012.

Schreeder, Wheeler & Flint, David H. Flint, Jared W. Heald, King & Spalding, Philip R. Green, for appellants.

Troutman Sanders, Thomas E. Reilly, Cory S. Menees, Claiborne B. Smith, for appellee.

In any event, a confirmation proceeding is a limited statutory proceeding and the issue of whether the assignment between BOA and Quality was handled properly is outside the scope of this proceeding. See White Oak Homes v. Community Bank & Trust, 314 Ga. App. 502 (3) (724 SE2d 810) (2012).

The only purpose of the confirmation statute is to subj ect the creditor’s potential deficiency claim to the condition that the foreclosure sale under power be given judicial approval. The confirmation proceeding does not result in a personal judgment and it does not adjudicate the title of the property sold.

(Footnote omitted.) Id.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       Peachtree asserts that in reviewing the trial court’s findings of fact, this Court must set the findings aside if they are clearly erroneous, citing Wheeler v. Coastal Bank, 182 Ga. App. 112,114 (354 SE2d 694) (1987). BOA asserts that this is a misstatement of the proper standard, and we must apply the “any evidence standard.” But as this Court recently noted, “[c]ontrary to the parties’ arguments, the standards are the same. See Harper v. JP Morgan Chase Bank Nat. Assn., 305 Ga. App. 536 (699 SE2d 854) (2010).” White Oak Homes v. Community Bank & Trust, 314 Ga. App. 502, 503, n. 1 (724 SE2d 810) (2012).

       Peachtree does not appeal the trial court’s determination that the amount of BOA’s hids represents the fair market value of the Properties.


text:
    A11A2378.
    McCRARY v. MIDDLE GEORGIA MANAGEMENT SERVICES, INC.
    (726 SE2d 740)
   PHIPPS, Presiding Judge.

Middle Georgia Management Services, Inc., trading as Statesboro Finance Company (“MGM”), filed suit against Brandy Morris McCrary and others, seeking to be awarded a constructive trust on all assets, including the proceeds of a life insurance policy, obtained with funds allegedly embezzled by Barbara Morris, a former employee of MGM who committed suicide after an MGM manager began inquiry of nearly $2 million of missing company funds. McCrary, the daughter of Morris and sole beneficiary of the life insurance policy, filed a counterclaim seeking damages for the wrongful death of her mother and for attorney fees.

McCrary filed a motion for summary judgment, contending that, for various reasons, MGM’s claim for the imposition of a constructive trust over the life insurance proceeds failed. MGM also filed its own motion for judgment on the pleadings or, in the alternative, for summary judgment on McCrary’s counterclaim. The trial court denied McCrary’s motion for summary judgment and grantedMGM’s motion for summary judgment. McCrary appeals the trial court’s ruling on both motions. For the reasons that follow, we reverse the trial court’s denial of summary judgment to McCrary and affirm the trial court’s grant of summary judgment to MGM.

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.” “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.”

The undisputed facts showed that Morris worked for MGM for just over five years, from September 2003 until her death on December 2, 2008. MGM is a finance company, in the business of making loans, and Morris had the authority to make loans. MGM had 17 locations throughout Georgia, and Morris worked in the Statesboro office location with two other employees.

Through an audit, it had come to the attention of MGM management that more than 944 loans issued through the Statesboro office were fictitious. On December 2, 2008, an MGM regional manager traveled to the Statesboro office to investigate the findings of the audit.

The regional manager interviewed Jill Turner, the Statesboro office manager, who told him that Morris was responsible for the fictitious loans. Turner also told the regional manager that she had never done “anything about” Morris issuing the fictitious loans because Morris had told her that “she was going to kill herself if I did.” At some point that day, Morris learned that MGM management had been informed of her alleged embezzlement of company funds. Morris approached the regional manager to discuss the situation, and then later asked him whether she could step outside to smoke and to make a phone call; the regional manager allowed her to do so. But Morris left the premises, drove home, and killed herself.

MGM filed a complaint for, among other things, a constructive trust to be imposed on life insurance proceeds paid to McCrary, who shared them with her brother, Kasey Morris. MGM argued that because Morris

used money stolen from [MGM] to pay premiums on the Life Insurance with the intent to defraud [MGM], and because the proceeds of the Life Insurance have been paid to [McCrary] and shared with [Kasey Morris], a constructive trust in favor of [MGM] should be impressed on all proceeds of the Life Insurance paid to [McCrary] or coming into the hands of [Kasey Morris], and [MGM] should have a judgment against [McCrary] and [Kasey Morris] in the same amount as proven at trial.

MGM claimed recovery under the theory of unjust enrichment and sought attorney fees. MGM also defined itself as a creditor of Morris.

Turner later pled guilty to three counts of theft, was sentenced to serve fifteen years incarceration and thirty years on probation, and was ordered to pay restitution in the entire amount of the fictitious loans, $1,883,542.59.

1. McCrary contends that the trial court erred in denying her motion for summary judgment because Georgia law precludes the claim of a creditor from defeating a designated beneficiary to proceeds of a life insurance policy, and the fraud exception authorized by statute does not apply here. We agree.

OCGA § 33-25-11 pertinently provides:

(a) Whenever any person residing in the state shall die leaving insurance on his or her life, such insurance shall inure exclusively to the benefit of the person for whose use and benefit such insurance is designated in the policy, and the proceeds thereof shall be exempt from the claims of creditors of the insured unless the insurance policy or a valid assignment thereof provides otherwise. Whenever the insurance, by designation or otherwise, is payable to the insured or to the insured’s estate or to his or her executors, administrators, or assigns, the insurance proceeds shall become a part of the insured’s estate for all purposes and shall be administered by the personal representative of the estate of the insured in accordance with the probate laws of the state in like manner as other assets of the insured’s estate.
(c) The cash surrender values of life insurance policies issued upon the lives of citizens or residents of this state, upon whatever form, shall not in any case be liable to attachment, garnishment, or legal process in favor of any creditor of the person whose life is so insured unless the insurance policy was assigned to or was effected for the benefit of such creditor or unless the purchase, sale, or transfer of the policy is made with the intent to defraud creditors.

In moving for summary judgment, McCrary argued, among other things, that MGM had failed to establish that the life insurance policy premiums were paid with the allegedly embezzled funds or that she was otherwise unjustly enriched. MGM, in part, replied that “as a matter of equity, co-mingling stolen funds into a bank account from which the premiums on the policy are paid is enough to create an issue of fact on the constructive trust issue. . . .” In ruling on the motion, the trial court determined that, based on Ambase Intl. Corp. v. Bank South a constructive trust could be imposed on the life insurance proceeds to the benefit of MGM over McCrary under the statutory fraud exception. The court then agreed with MGM’s position that “an issue of fact exits [sic] over whether they can show that [Morris] in fact embezzled funds from [MGM] and whether said funds were commingled with money she used to pay the premiums on the life insurance policy.”

In Bennett v. Rosborough, the Supreme Court of Georgia held that because a statute forbade defeating the direction of the insured as to his beneficiary, a husband who took out a policy payable to his wife was protected even though he paid the premiums with money stolen from his creditors. In reaching its decision, the Court stated that “[w]hether or not this ruling comports with the weight of authority in other jurisdictions does not affect this case.”

Under current statutory law, OCGA § 33-25-11, the claim of a creditor to life insurance proceeds cannot defeat a designated beneficiary, absent fraud; and in the event of fraud, only the cash surrender value of the policy is subject to attachment, garnishment, or legal process in favor of the creditor. To the extent that the trial court relied on Arribase for the proposition that the fraud exception could be applied to this case, it erred. At the time Arribase was decided in 1990, the fraud exception provided in OCGA § 33-25-11 did not apply to only the cash value of a life insurance policy, as it does today. Nothing in this Code section authorizes the imposition of a constructive trust over life insurance proceeds under the facts of this case.

The evidence showed that the life insurance policy was a term life policy, with no cash value. Consequently, the fraud exception was not triggered in this case. And under the plain terms of the statute, MGM is precluded from defeating McCrary’s interest, as designated beneficiary. Accordingly, as there was no issue of material fact, the undisputed facts warrant judgment as a matter of law, and the trial court erred in denying McCrary’s motion for summary judgment on MGM’s claims concerning an imposition of a constructive trust on the life insurance proceeds.

2. Concerning her counterclaim, McCrary contends that the trial court erred in granting MGM’s motion for summary judgment because material issues of fact exist as to whether MGM breached a duty owed to Morris. We disagree.

(a) Specifically, McCrary claims that MGM breached its duty under OCGA § 34-2-10 to take reasonable actions to protect Morris’s well-being. Triable issues of fact, McCrary contends, exist as to whether it was reasonably necessary for MGM,

with full knowledge of Morris’ threats of suicide, to at least attempt to: (1) ensure an adequate support system was in place before confronting Morris; (2) contact nearby family members to warn of Morris’ suicidal statement; (3) contact authorities to have Morris placed in protective custody; or (4) otherwise take some sort of action to protect her well being.

McCrary asserted that “whether [MGM]’s response to Morris’ situation, or lack thereof, comports with societal notions of reasonableness is inherently a jury issue.”

OCGA § 34-2-10 governs, generally, an employer’s duty with respect to safe employment. The statute provides:

(a) Every employer shall furnish employment which shall be reasonably safe for the employees therein, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees.
(b) Every employer and every owner of a place of employment, place of public assembly, or public building, now or hereafter constructed, shall so construct, repair, and maintain such facility as to render it reasonably safe.

This statute has been interpreted to place a duty upon an employer to provide a safe workplace. Indeed, in furnishing employees with a reasonably safe place to work, an employer is held to only an “ordinary care” standard. In Cline v. McLeod, we held:

The employer cannot reasonably be expected to be an absolute guarantor of a physically or emotionally “safe” workplace; his duty is only that of ordinary care. . . . [T]he applicable law, in imposing on the employer the duty to maintain a safe workplace, contemplates “safety” in the physical sense; that is, that the workplace be organized and maintained in such a manner as to minimize the likelihood of physical injury — not (alas!) that it be an utopian place where each employee is guaranteed optimal working conditions and kind, courteous, and supportive treatment at all times by all present.

In Cline, we reversed a trial court’s denial of summary judgment to an employer and held that no genuine issue of material fact existed as to whether the employer discharged its duty to protect two of its employees from harassment by other employees. There, the evidence showed that the employer did “all that it could reasonably be expected to do” to protect the employees from allegedly harassing acts,

short of posting guards to escort them wherever they might go at the workplace — to lunch, to the rest room, to the parking lot, as well as to their work stations — or, for that matter, to accompany them to and from work and even to remain with them in their homes, presumably stationing themselves near the telephone to intercept harassing calls.

There was no allegation that Morris’s physical safety was threatened during the investigation of the stolen money. The allegation is that her emotional well-being was put at risk of harm. Concerning MGM’s duty pursuant to OCGA § 34-2-10 to protect Morris, the undisputed evidence showed that during the investigation, the regional manager made it a point to keep Morris and Turner, who had accused Morris of issuing the fictitious loans, separated from each other. There was no evidence that Morris was ever subjected to harassment or intimidation on account of the allegations by Turner; the evidence showed merely that the regional manager undertook to investigate same and to notify his supervisors. When Morris asked the regional manager for permission to smoke and to call her daughter, he let her do so. Morris then left work without permission and committed suicide at another location.

McCrary has failed to show any set of facts as would sustain a wrongful death cause of action under this statute for Morris’s suicide. There being no genuine issue of material fact as to whether MGM breached its duty to Morris in this respect, as a matter of law, the trial court properly granted summary judgment to MGM.

(b) Nor is McCrary’s contention availing, that pursuant to Alexander v. Harnick, triable issues of fact exist as to whether MGM caused or contributed to Morris’s suicide and as to whether MGM’s failure to make some effort to save Morris was objectively reasonable.

“The elements of a negligence cause of action are: (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a causal connection between the conduct and the injury; and (4) damages from the breach of duty.” “Negligence is not to be presumed, but is a matter for affirmative proof. In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence.” An employer owes a duty of ordinary care to his employees.

[G]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. A plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.

In Alexander, we recognized that “[i]f the defendant’s own negligence has been responsible for the plaintiffs situation, a relation has arisen which imposes a duty to make a reasonable effort to give assistance, and avoid any further harm.” That case involved the drowning death of a guest on a houseboat, and we held that the

decedent’s peril was not merely characterized by her being in the water, it was characterized by her being in the water without a life preserver available, a situation which a jury might find that the defendant helped to create by taking her onto the lake without the required safety equipment.

The evidence did not show that MGM (despite knowing about Morris’s suicidal ideation) accused Morris of embezzlement. Rather, McCrary conceded that it was Turner, Morris’s office-mate, who blamed Morris for the missing money; not MGM’s regional manager, the person in charge that day. The regional manager investigated information supplied to him by Turner, who herself later pled guilty to the theft of the money after she had previously reported that Morris was responsible for stealing the money.

The undisputed evidence showed that during the investigation of the allegedly stolen money, Morris approached the regional manager to discuss the matter, and not the other way around, as McCrary asserts in her appellate brief. Upon request, Morris was then allowed to go outside to smoke and call her daughter. McCrary’s theory that MGM could have prevented Morris from killing herself (at home) if the regional manager had responded differently to the situation is pure speculation and does not create even an inference of fact for consideration on summary judgment.

Because the evidence failed to show that MGM was responsible for creating a situation which McCrary suggests led to Morris’s suicide, MGM had no duty to make a reasonable effort to render aid for her emotional well-being and avoid any (further) harm. Accordingly, we conclude that, on this ground, the trial court properly granted summary judgment to MGM.

3. McCrary contends that the trial court erred in granting MGM’s motion for summary judgment because material issues of fact exist as to whether Morris’s death proximately resulted from MGM’s negligence. But “[n]egligence is not actionable unless it is the proximate cause of the injury.” Because we have determined in Division 2 that the trial court properly found that the evidence failed to show that MGM committed any negligent act, we need not address any issues of proximate cause here.

Decided March 28, 2012.

Coleman Talley, Gregory T. Talley, Alphonso A. Howell IV, for appellant.

Bullard & Wangerin, Daniel Bullard IV, Erin S. Corbett, Hall & Kirkland, Joseph M. Hall, Brown, Rountree & Stewart, George H. Rountree, Jesse A. VanSant, Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, for appellee.

Judgment affirmed in part and reversed in part.

Andrews and McFadden, JJ., concur.

       OCGA§ 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted); Norton v. Budget Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (we review the denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party).

       The complaint also sought imposition of a constructive trust and recovery of damages under the theory of unjust enrichment from Morris’s male companion (Edward Stetson), alleging that Morris transferred to him substantial funds which she had embezzled. This claim, however, is not before us, as McCrary’s motion for summary judgment concerned only the proceeds from the life insurance policy.

       196 Ga. App. 336 (395 SE2d 904) (1990).

       Id. at 340 (4).

       155 Ga. 265 (116 SE 788) (1923).

       Id.; see Aetna Life Ins. Co. v. Weekes, 241 Ga. 169, 173 (1) (244 SE2d 46) (1978).

        Bennett, supra.

       Supra.

       Term life insurance is defined as insurance that pays a fixed benefit to a named beneficiary upon the insured’s death but is not redeemable for a cash value during the insured’s life. Black’s Law Dictionary, 9th Edition (2009).

        Smith v. Ammons, 228 Ga. 855, 858 (188 SE2d 866) (1972) (“The fixed standard of the law that the master shall furnish a safe place for the servant to work does not impose an absolute duty to furnish a safe place, but the duty is placed upon the master to make an effort to do so.”).

       Id.

       180 Ga. App. 286 (349 SE2d 232) (1986).

       Id. at 293 (4) (citations omitted).

       Id.

       Id.

       See id.

       Id.

       142 Ga. App. 816 (237 SE2d 221) (1977).

        Lowry v. Cochran, 305 Ga. App. 240, 246 (2) (c) (699 SE2d 325) (2010) (punctuation and footnote omitted).

        Hunsucker v. Belford, 304 Ga. App. 200, 202 (1) (695 SE2d 405) (2010) (punctuation and footnote omitted).

        Clayton v. Larisey, 190 Ga. App. 512, 512-513 (379 SE2d 789) (1989); OCGA§ 34-7-20.

       Hunsucker, supra at 202-203 (1) (punctuation and footnote omitted).

        Alexander, supra at 817 (3).

       Id.

       McCrary argues that Turner’s act of accusing Morris should be attributed to MGM since Turner was an office manager. We disagree. See Roberts v. Duco Dev., 229 Ga. App. 549,550 (494 SE2d 313) (1997) (“In determining whether an employer is liable for an employee’s tortious conduct, the test is whether the tort was done within the range of employment and for the purpose of accomplishing business authorized by the employer. Where the tort of an employee is wholly personal to himself, it is not within the scope of his employment and the master is not liable.”) (citations omitted); Leo v. Waffle House, 298 Ga. App. 838, 842 (3) (681 SE2d258) (2009) (“The question of whether the servant at the time of an injury to another was acting in the prosecution of his master’s business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases.”) (punctuation and footnote omitted). As evidenced by Turner’s plea of guilty to criminal charges for theft of the money, Turner’s act of accusing Morris was clearly committed for purely personal reasons unconnected with her job. Thus, contrary to McCrary’s assertions, MGM is not liable for Turner’s actions in this regard.

       See Hunsucker, supra; Tuggle v. Helms, 231 Ga. App. 899, 902-903 (2) (499 SE2d 365) (1998).

       See La Quinta Inns v. Leech, 289 Ga. App. 812, 817 (1) (658 SE2d 637) (2008); Alexander, supra.

        See Alexander, supra; Gale v. North Meadow Assoc. Joint Venture, 219 Ga. App. 801, 803 (466 SE2d 648) (1995) (physical precedent only).

        Johnson v. American Nat. Red Cross, 276 Ga. 270, 273 (1) (578 SE2d 106) (2003) (citation and punctuation omitted); Dry Storage Corp. v. Piscopo, 249 Ga. App. 898, 900 (550 SE2d 419) (2001) (punctuation and footnote omitted).

       Id.