text:
    A13A0807.
    In the Interest of S. M., a child.
    (745 SE2d 863)
   Dillard, Judge.

S. M., a minor, appeals the juvenile court’s dispositional order following his adjudication of delinquency on several counts, including one act which, if committed by an adult, would constitute the crime of theft by taking a motor vehicle. After determining that this was S. M.’s second adjudication of delinquency for motor-vehicle theft, a designated felony act under OCGA § 15-11-63 (a) (2) (E), the juvenile court conducted a dispositional hearing and imposed restrictive custody pursuant to OCGA § 15-11-63 (b). S. M. argues, inter alia, that the juvenile court erred in adjudicating him as a designated felon because he did not knowingly and voluntarily waive his right to counsel in the prior adjudication. For the reasons set forth infra, we vacate the disposition order and remand this case to the juvenile court for the entry of a new disposition order.

In pertinent part, the designated felony statute, OCGA § 15-11-63, defines a “designated felony act” as an act which constitutes “a second or subsequent violation of Code Sections 16-8-2 through 16-8-9, relating to theft, if the property which was the subj ect of the theft was a motor vehicle.” Designated felony acts are those which the General Assembly has deemed serious enough to authorize the juvenile court, after conducting a hearing and making certain statutory findings of fact, to confine the juvenile to restrictive custody.

Here, in addition to the present delinquency adjudication, S. M. had been adjudicated delinquent in December 2011 after admitting to an act which, if committed by an adult, would have been the crime of theft by taking a motor vehicle. It is this prior adjudication that rendered S. M.’s current motor-vehicle theft a designated felony act.

S. M. argues on appeal, as he did in the juvenile court, that the prior adjudication could not be used to render his present act a designated felony because he was unrepresented by counsel at the December 2011 hearing and did not knowingly and voluntarily waive his right to counsel. We agree.

It is well established that a juvenile has a right to counsel during a dispositional hearing, although that right can be waived. But the State has a “heavy burden” of proving, under the totality of the circumstances, that a juvenile knowingly and voluntarily understood and waived his or her right to counsel. The standard for determining whether the waiver of a non-indigent juvenile, such as S. M., was valid is the same as that used for an adult; namely,

when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.

Moreover, the juvenile court must make the juvenile “aware of the danger of proceeding without counsel.”

In the case sub judice, during the December 2011 dispositional hearing, the sole inquiry into S. M.’s lack of counsel came from the assistant district attorney:

[The State]: [S. M.], do you wish to represent yourself today and proceed with this matter or do you want an opportunity to hire a lawyer?
[S. M.]: I’ll go on — myself.

S. M. then proceeded to admit to the acts set forth in the delinquency petition, including theft by taking of a motor vehicle.

This brief and cursory exchange was not sufficient to ensure that S. M. understood his right to an attorney, or that he knowingly and intentionally waived that right. No inquiry was made into the reason for S. M.’s lack of counsel, nor was any information given to ensure that he understood the danger of proceeding without legal representation. S. M. has therefore met his burden of proving that his waiver of counsel in the prior dispositional hearing was neither knowing nor voluntary.

The issue remains, however, whether S. M.’s collateral attack on the December 2011 delinquency adjudication renders that adjudication inadmissible in the present case for the purposes of the designated felony statute. We conclude that it must. As this Court stated in In the Interest of L. J., “a first or prior violation is an element of the designated felony act that must be proven beyond a reasonable doubt before restrictive custody may be imposed under OCGA § 15-11-63 (a) (2) (E).” And an admission of guilt that is itself invalid cannot constitute proof beyond a reasonable doubt of the acts admitted therein. The State otherwise tendered no evidence of the prior adjudication except that of the dispositional hearing transcript. It follows then, that the juvenile court’s imposition of restrictive custody based upon its rendering of S. M.’s current adjudication of delinquency as a designated felony act pursuant to OCGA § 15-11-63 (a) (2) (E) cannot stand. We therefore vacate the dispositional order and remand this case to the juvenile court for entry of a new disposition order consistent with this opinion.

Judgment vacated and case remanded.

Andrews, P. J., and McMillian, J., concur.

Decided July 3, 2013.

Renata M. Newbill-J allow, Robert L. Persse, for appellant.

Richard A. Mallard, District Attorney, Kathy A. Bradley, Assistant District Attorney, for appellee.

       OCGA § 16-8-2, the Code section at issue in this case, provides that, “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

       OCGA § 15-11-63 (a) (2) (E).

       When a juvenile court orders restrictive custody, the child must he placed in the custody of the Department of Juvenile Justice for an initial period of five years, must he confined in a youth development center for a time certain, initially not less than 12 months and not more than 60 months, and must he placed under intensive supervision for 12 months thereafter. See OCGA § 15-11-63 (e) (1) (A)-(C).

        See In the Interest of S. H., 220 Ga. App. 569, 571 (469 SE2d 810) (1996) (“The juvenile charged with delinquency is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial[;] [wjithout question, these include the right to adequate notice of the charges, appointment of counsel, the constitutional privilege against self-incrimination, and the right to confront opposing witnesses.” (citation, emphasis, and punctuation omitted)); see also Application of Gault, 387 U. S. 1, 34-42 (III)-(V) (87 SCt 1428, 18 LE2d 527) (1967).

        See In the Interest of T. S., 211 Ga. App. 46, 46 (1) (438 SE2d 159) (1993) (juvenile waived right to counsel when he and his mother signed a written acknowledgment of his right to counsel, he was warned of the possible dispositions upon a finding of delinquency and of the hazards of proceeding without an attorney, and both he and his mother failed to retain counsel for hearing despite having been granted two continuances to do so).

        See Crawford v. State, 240 Ga. 321, 323 (1) (240 SE2d 824) (1977) (“Confessions of juveniles are scanned with more care and received with greater caution.”); In the Interest of T.D.W., 229 Ga. App. 273, 275 (493 SE2d 736) (1997) (“[When] a defendant proceeds to trial and represents himself the record should reflect that the trial court made the defendant aware of the danger of proceeding without counsel];] [t]his is particularly true in juvenile cases as the [S]tate has a heavy burden in showing that the juvenile did understand and waive his rights.” (punctuation omitted)).

        In the Interest of T. D. W., 229 Ga. App. at 275-76.

        In the Interest of B. M. H., 177 Ga. App. 478, 478 (339 SE2d 757) (1986) (punctuation omitted); see also Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981); In the Interest of W. M. F., 180 Ga. App. 397, 399 (3) (349 SE2d 265) (1986).

        See In the Interest of T. D. W., 229 Ga. App. at 276 (vacating adjudication of delinquency of unrepresented juvenile because the court made no attempt to ascertain whether juvenile or his parents acted with reasonable diligence in obtaining an attorney and whether the absence of counsel was attributable to reasons beyond juvenile’s control).

        See In the Interest of W. M. F., 180 Ga. App. at 399 (3) (holding juvenile’s decision to proceed without counsel was not knowing and voluntary because the court failed to warn her or her mother of the danger of proceeding without counsel); In the Interest of B. M H., 177 Ga. App. at 478 (holding that juvenile did not validly waive her right to counsel because the court did not warn her of the dangers of proceeding alone).

        See Beck v. State, 283 Ga. 352, 354 (2) (658 SE2d 577) (2008) (allocating the respective burdens of production in collateral attacks on guilty pleas); Nash v. State, 271 Ga. 281, 284 (519 SE2d 893) (1999) (same).

       We note that the admission in the December 2011 delinquency adjudication was not directly appealed and is before this Court only to the extent that S. M. is mounting a collateral attack on the adjudication for its use pursuant to OCGA § 15-11-63 (a) (2) (E).

       279 Ga. App. 237 (630 SE2d 771) (2006).

        Id. at 239-40.

       See Boykin v. Alabama, 395 U. S. 238, 243 n.5 (89 SCt 1709, 23 LE2d 274) (1969) (“[I]f a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.”). Cf. Nash, 271 Ga. at 282 (“[A] plea of guilty that is invalid under Boykin may not be used to enhance punishment in a subsequent trial....” (punctuation omitted)). We note that we previously held in In the Interest ofL. J. that the designated felony statute is not a “traditional recidivist statute” such as that at issue in Nash, but we nonetheless reaffirmed the burden of proof required to establish the prior violation for purposes of the designated felony statute. See 279 Ga. App. at 239-40.

       Although the State was not required to prove a formal adjudication of delinquency on the charges for the purposes of OCGA § 15-11-63 (a) (2) (E) - merely a prior violation- that fact does not change our analysis, because proof of both the violation and adjudication were based solely upon the transcript of the dispositional hearing. See generally In the Interest of L. J., 279 Ga. App. at 239 (“[W]e hold that OCGA § 15-11-63 (a) (2) (E) does not require proof of a second or subsequent adjudication of delinquency (although such would suffice) to authorize the imposition of restrictive custody. Rather, OCGA § 15-11-63 (a) (2) (E) authorizes restrictive custody when a child is found to have committed a second or subsequent violation.. . .”).


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A13A0054.
    MORRIS v. THE STATE.
    (746 SE2d 162)
   MCFADDEN, Judge.

Vincent Troy Morris was convicted of criminal street gang activity, criminal attempt to commit armed robbery, two counts of aggravated assault, and possession of a firearm during the commission of a felony. He appeals his convictions, arguing that the trial court erred in denying in part his motion to suppress; that the trial court erred in ruling that the state could use statements Morris made during proffer negotiations to impeach him, if he presented any evidence or defense that contradicted the proffer; and that he received ineffective assistance of counsel.

We find that the trial court did not err in denying in part Morris’s motion to suppress because the comment about which he complains did not express a hope of benefit; that the trial court did not err in enforcing the proffer agreement; and that Morris has not shown that trial counsel’s performance was deficient. We therefore affirm Morris’s convictions.

1. The evidence supports the convictions.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Cordy v. State, 315 Ga. App. 849 (1) (729 SE2d 13) (2012) (citation omitted).

So viewed, the evidence shows that Morris was a member of a gang that referred to itself as the International Robbing Crew or IRC, and which was engaged in numerous criminal activities, including robbery, burglary, and murder. On May 22, 2007, the gang, including Morris, intended to rob Randy Griffin. One car of gang members followed Griffin as he left a club to go home. A second car of gang members, including Morris, was lying in wait at Griffin’s apartment complex. A gang member in the first car alerted the gang members in the second car that Griffin was approaching his residence. The gang members in the second car, including Morris, engaged in a shootout with Griffin during which Griffin’s girlfriend Lacey Magee suffered a gunshot wound to her hand. Morris and co-defendant Carlos Drennon were also shot. Meanwhile, the first car arrived just outside Griffin’s complex as the shootout was occurring. In a panic, Randy Griffin ran outside the complex, entered the first gang car, and told the occupants that someone had tried to rob him and that his girlfriend had been shot. When the vehicle in which Morris was riding drove out of the complex, Griffin exited the first gang car and started shooting at the second vehicle as it drove away.

Drennon, the injured co-defendant, sought treatment at the same hospital as the victim Magee. While at the hospital, Griffin identified Drennon to police. Less than a month later, on June 10, 2007, three gang members encountered Griffin at a club and two of them shot and killed him.

At trial, several witnesses, including Atlanta Police Detective David Quinn and IRC member Marciell Easterling, testified to the facts and circumstances of the IRC’s criminal activities, corroborating Morris’s participation in the attempted armed robbery of Griffin as well as the armed robbery and murder of Clarence Hargrave and the armed robbery and murder of Dwayne Osby. The state also admitted into evidence Morris’s statement, in which he admitted to participating in the Clarence Hargrave and Dwayne Osby murders, and a gun he had sold to a pawn shop and which ballistics tests showed had been used in the attempted armed robbery of Griffin. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find Morris guilty beyond a reasonable doubt of criminal street gang activity, OCGA § 16-15-4; criminal attempt to commit armed robbery, OCGA §§ 16-4-1,16-8-41; aggravated assault, OCGA § 16-5-21; and possession of a firearm during the commission of a felony, OCGA § 16-11-106. Jackson v. Virginia, supra, 443 U. S. 307.

2. The trial court did not err in denying Morris’s motion to suppress.

Morris moved to suppress in part the statement he gave to Detective Quinn and Agent Marcos Bess because, he argues, Agent Bess offered a hope of benefit. During the interview with Morris, Agent Bess said:

We sitting here asking you about two murders and your role in it, man. Whatever you tell us, it ain’t gonna make you no more or no less than what, what you got. You ain’t gonna get no more charges from this interview, man, but you can — you can at least clarify what your role was and the extent of it.

The trial court denied the motion, rejecting Morris’s argument that he was offered a hope of benefit.

“[W]hen we review the denial of a motion to suppress a statement, we owe no deference to the way in which the trial court resolved questions of law, but we generally accept its findings about questions of fact and credibility unless clearly erroneous.” Edenfield v. State, 293 Ga. 370, 374 (2) (744 SE2d 738) (2013) (citation and footnote omitted). An accused’s statement to law enforcement is admissible only if the statement was voluntary, which “means that the statement must not have been induced by ‘hope of benefit,’ among other things— As we have explained before, a ‘hope of benefit’ arises from promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all.” Id. at 373 (2) (citations and punctuation omitted). “The promise of a benefit that will render a confession involuntary . . . must relate to the charge or sentence facing the suspect. Generally, the ‘hope of benefit’. . . has been construed as a hope of lighter punishment.” Sosniak v. State, 287 Ga. 279, 286 (1) (B) (695 SE2d 604) (2010) (citation omitted).

Applying these principles to this case, we conclude that the “statement that there would be ‘no [more] charges’... was made in the context of encouraging [Morris] to be truthful. . . . The detectives never promised or gave hope to [Morris] that he would receive a lighter punishment in exchange for a confession to the crimes with which he was charged.” Id. at 287. The trial court did not err in denying Morris’s motion to suppress.

3. The trial court properly enforced the proffer agreement.

On February 11, 2008, Morris entered a proffer agreement with the District Attorney’s Office. The agreement provided that if Morris

subsequently [took] a position in any legal proceeding that [was] inconsistent with the proffer — whether in pleadings, oral argument, witness testimony, documentary evidence, questioning of witnesses, or any other manner — the [s]tate [could] use [Morris’] proffer statements, and all evidence obtained directly or indirectly therefrom in any responsive pleading and argument, and for cross-examination, impeachment, or rebuttal evidence.

Morris argues that the proffer agreement was unenforceable because it was superseded by a later-entered and withdrawn plea agreement. “[I]t does not appear that [Morris] preserved this issue for appellate review, insofar as our review of the record reveals that it was raised for the first time in his motion for a new trial.” Edenfield, supra, 293 Ga. at 391 (9) (citation omitted).

Morris also argues

that the enforcement of this proffer agreement hindered his ability to challenge the [s]tate’s case. This enumeration is without merit because there is nothing in the record indicating that any evidence divulged pursuant to the [February] 2008 proffer agreement was presented at trial. [Morris’] November 2007 custodial interview, which was played to the jury at trial, pre-dated the proffer agreement and was not subject thereto. Accordingly, this enumeration of error fails to state any basis to reverse the conviction.

Stevens v. State, 286 Ga. 692, 694 (3) (690 SE2d 816) (2010) (involving one of Morris’s co-defendants).

4. Morris has not shown that trial counsel’s performance was deficient.

To prevail on his claim of ineffective assistance of counsel, Morris was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Morris “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted).

(a) Proffer agreement.

Morris argues that trial counsel improperly advised him concerning the potential uses of the proffer agreement. Morris did not testify at the motion for new trial hearing. Nor did the attorney who represented him at the time he entered the proffer agreement testify at the motion for new trial hearing.

In evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Where trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption.

Russell v. State, 269 Ga. 511 (1) (501 SE2d 206) (1998) (citations omitted).

The trial court expressly found that Morris entered the proffer agreement freely, knowingly and voluntarily, with the assistance of competent counsel. Absent his own testimony regarding his attorney’s advice or the testimony of the attorney who allegedly failed to advise him, Morris has not overcome the presumption that counsel rendered reasonable assistance in advising him of the consequences of entering the proffer agreement, particularly given the trial court’s explicit findings.

Morris also enumerates as error that trial counsel was ineffective for failing to object to the trial court’s ruling regarding the use of the proffer agreement. Morris does not argue that the proffer agreement was unenforceable (other than to the extent it was superseded by the withdrawn plea agreement), and the trial court found that Morris entered the agreement freely, knowingly and voluntarily, with the assistance of competent counsel. Therefore, the trial court did not err in enforcing the terms of the proffer agreement. See United States v. Pielago, 135 F3d 703, 709 (11th Cir. 1998) (“The construction of proffer agreements, like plea agreements, is governed generally by the principles of contract law, as . . . adapted ... for the purposes of criminal law.”) (citations omitted); Glover v. State, 258 Ga. App. 527, 529 (574 SE2d 565) (2002) (“Public policy and the great ends of justice require that the arrangement between the public prosecutor and the defendant be carried out.”) (citation and punctuation omitted). Consequently, counsel’s failure to raise in the trial court the objections he now raises on appeal to the enforcement of the proffer agreement was not deficient performance. McCoy v. State, 285 Ga. App. 246, 249 (4) (b) (645 SE2d 728) (2007) (“failure to make a meritless argument does not constitute ineffective assistance of counsel”) (citations omitted).

(b) Trial counsel’s failure to cross-examine witnesses.

Morris argues that trial counsel inadequately cross-examined certain witnesses and failed to cross-examine key witnesses. Trial counsel testified at the motion for new trial hearing that after researching the issue extensively, he concluded that even cross-examination of witnesses could trigger the proffer agreement. Therefore, as a matter of trial strategy, he chose not to cross-examine certain witnesses. “In general, a matter of reasonable trial strategy does not amount to ineffective assistance of counsel.” Vanstavern v. State, 293 Ga. 123, 125 (3) (a) (744 SE2d 42) (2013) (citation omitted). Morris has not shown that this strategy, particularly given the enforceability of the proffer agreement, was unreasonable.

Decided July 5, 2013.

Thomas S. Robinson III, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

(c) Trial counsel’s failure to object to the admission of a co-defendant’s guilty plea.

Morris argues that trial counsel was ineffective because he failed to object to the admission of Drennon’s guilty plea. This claim is belied by the record, which shows that counsel did object to the admission of Drennon’s plea.

As Morris has failed to show that trial counsel’s performance was deficient, his ineffective assistance claims are without merit. Gandy v. State, 290 Ga. 166, 172 (4) (b) (718 SE2d 287) (2011).

Judgment affirmed.

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


author: ANDREWS, Presiding Judge.

text:
    A13A0154.
    EXCELSIOR ELECTRIC MEMBERSHIP CORPORATION v. GEORGIA PUBLIC SERVICE COMMISSION et al.
    (745 SE2d 870)
   ANDREWS, Presiding Judge.

This case is before us for the second time after remand to the Superior Court for a determination of whether one of Excelsior Electric’s arguments on appeal was properly raised before the Public Service Commission (PSC). The Superior Court determined that the argument was not raised, and Excelsior appeals that determination as well as the original judgment. After reviewing the record, we conclude that there was no error and affirm.

The underlying facts are undisputed and are set out in detail in the Hearing Officer’s Decision. The premises at issue, the Campus Club Apartments in Statesboro, is located within Excelsior’s assigned service territory and consists of multiple detached buildings. The premises had a connected electrical load over 900 kilowatts at the time of initial full operation, qualifying as a customer choice load under the “large load exception” provision which states that an electric supplier other than the primary supplier may provide service to

. one or more new premises (but if more than one, such premises must be located on the same tract or on contiguous tracts of land), if utilized by one consumer and having single-metered service and a connected load which, at the time of initial full operation of the premises, is 900 kilowatts or greater. . . .

OCGA § 46-3-8 (a).

Under this large load exception, the owner of the complex selected Georgia Power as its electrical supplier, and Georgia Power began servicing the premises in December 2001. The developer and original owner, Stokes Property Company, continued single-metered service during the entire time of its ownership, through August 2004, when the complex was sold. The new owners eventually installed meters for each apartment unit, assessing utility service fees to each unit, while Georgia Power continued to serve the complex through a single meter.

Excelsior filed a complaint alleging that the conversion of the complex’s metering from a single master meter to individual meters at each apartment, coupled with individual and independent calculation of charges for each apartment’s electrical service, eliminated Georgia Power’s right to serve the apartment complex under the large load exception because none of the individually metered apartments had a connected load exceeding 900 kilowatts. Therefore, Excelsior requested that the PSC find that Georgia Power was in violation of the Territorial Act; that Excelsior was the lawful supplier of electricity to the apartment complex; and, order Georgia Power to disconnect and transfer service.

Georgia Power moved to dismiss, or in the alternative, for summary judgment, arguing that, having lawfully established service to a premises, it may continue serving the premises under OCGA § 46-3-8 (b), the “grandfather clause.” That Code section provides:

Notwithstanding any other provision of this part, but subject to subsections (c) and (h) of this Code section, every electric supplier shall have the exclusive right to continue serving any premises lawfully served by it on March 29, 1973, or thereafter lawfully served by it pursuant to this part, including any premises last and previously served by it which before or after March 29, 1973, have become disconnected from service for any reason, and including premises which before or after March 29, 1973, have been destroyed or dismantled and which are reconstructed after March 29, 1973, in substantial kind on approximately the same site.

OCGA § 46-3-8 (b).

Excelsior responded and filed its own motion for summary judgment, contending that under Sawnee Elec. Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. 702, 705 (544 SE2d 158) (2001), the aggregation of separately metered apartments by means of a master meter would not meet the large load exception.

The Hearing Officer determined that, as defined by the Georgia Territorial Electric Service Act (the “Territorial Act”), OCGA § 46-3-3 (6), “[i]t is clear that by law the individual units at Campus Club are each new premises.” The Hearing Officer concluded, however, that, under the grandfather clause, Georgia Power had the right to continue service to the apartments.

Excelsior petitioned for a full commission review of the Hearing Officer’s decision. After a hearing, the PSC issued an order adopting the Hearing Officer’s Initial Decision, stating that it agreed that the individual units at Campus Club are each new premises and concluding that the grandfather clause allowed Georgia Power to continue service to the apartments because there was no authority for determining that a lawful extension of service could be undone by a subsequent metering change occurring years later. Accordingly, there was no basis under the Territorial Act upon which to require Georgia Power to relinquish service to the apartment complex.

Excelsior petitioned the Superior Court for judicial review of the PSC’s final decision. The Superior Court held that “Respondent [the PSC] properly applied the ‘grandfather clause’establishedby O.C.G.A. § 46-3-8 (b) which is dispositive of the issue in dispute.”

Excelsior then filed its first appeal in this Court. Among its arguments was the claim that Georgia Power was not entitled to the protection of the grandfather clause because it no longer provides “retail electric service” as defined by the Territorial Act. Excelsior pointed to the relevant portion of the grandfather clause which states that although the supplier has the exclusive right “to continue serving any premises lawfully served by it,” the grandfather clause only protects the utility that provides “service,” defined in OCGA § 46-3-3 (9) as retail electric service and not wholesale service and sales for resale. Excelsior contended that Georgia Power’s service to the complex was now wholesale or sale for resale and therefore was excluded.

Georgia Power and the PSC argued that this issue was waived because it was not raised during the administrative proceedings as required by OCGA § 50-13-19 (c). This Court found that although Excelsior had “briefly” brought up the retail electric service or sale for resale argument before the PSC Hearing Officer, the Hearing Officer had not explicitly ruled on the issue; furthermore, Excelsior did not raise the issue in its brief in support of its petition for full Commission review of the Hearing Officer’s Initial Decision, nor in its reply brief, and the PSC had not made any explicit finding on the issue. Accordingly, we remanded the case to the Superior Court for “determination of the waiver issue.” The remand order provided that “once this issue is resolved, the parties may, within 30 days, appeal any adverse ruling resulting from the determination of the waiver and resale issue, as well as the order and issues now appealed in this case, to the extent those issues remain extant.”

The Superior Court issued a Final Order After Remand on May 22, 2012, finding that “the sale for resale argument was not properly raised and urged before the Public Service Commission.” Excelsior now appeals.

Neither our review nor the trial court’s review of the PSC’s decision is de novo. They are reviews made with deference to the factual findings of the agency. The reviewing courts may reject those findings only if they are “[cjlearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or [arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” OCGA § 50-13-19 (h) (5), (6); Dept. of Com0mu nity Health &c. v. Gwinnett Hosp. System, 262 Ga. App. 879, 882-883 (586 SE2d 762) (2003). “[0]ur duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the ... administrative agency.” (Citation and punctuation omitted.) Sawyer v. Reheis, 213 Ga. App. 727, 729 (1) (445 SE2d 837) (1994). Moreover, the superior courts cannot substitute their judgment for that of the hearing officer as to the weight of the evidence on questions of fact. Emory Univ. v. Levitas, 260 Ga. 894, 898 (1) (401 SE2d 691) (1991).

Douglas Asphalt Co. v. Ga. Public Svc. Comm., 263 Ga. App. 711, 712 (589 SE2d 292) (2003).

We note also that “[u]nder the APA, the Commission is the finder of fact and weighs the credibility of the evidence,” Ga. Public Svc. Comm. v. Southern Bell, 254 Ga. 244, 246 (327 SE2d 726) (1985), and “[t]he court in reviewing administrative decisions shall not substitute its judgment for that of the board if there is any evidence to support its findings.” Id. Further, “[t]he PSC, as the agency charged with . . . enforcement and administration of the Georgia Territorial Electric Service Act, is entitled to great deference in its interpretation oftheAct.” City of LaGrange v. Ga. Power Co., 185 Ga. App. 60 ,63 (363 SE2d 286) (1987), and “[t]he administrative interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight.” Id.

1. Excelsior raises the argument that because new meters were installed in the apartments, they became “new premises” for purposes of the Act and were no longer a portion of the one premises initially served by Georgia Power. Thus, Excelsior argues, each apartment at Campus Club is a new premises as defined by the Act and cannot constitute “one premises” to satisfy the large load exception to the Act. Therefore, it claims that it has the exclusive right to provide service to these new premises. Excelsior cites Sawnee Elec. Membership Corp. v. Ga. Public Svc. Comm., supra at 705, as authority for this argument. But, as the hearing officer and the PSC determined, Sawnee does not apply in this instance. In Sawnee the Court held that because “the electric service to the individual apartments is separately metered and the charges for service to each tenant are calculated independently, the complex cannot be considered ‘one premises’ within the statutory definition.” Id. at 705. But as the PSC pointed out, in Sawnee, the test of what constitutes a premises was applied at the time the customer made its selection of electrical suppliers, and the “grandfather clause” was therefore not part of the consideration. Thus, nothing in Sawnee requires that Georgia Power discontinue service that was lawfully provided at the time the determination was made.

2. The grandfather clause allows Georgia Power to continue serving newly created premises. The clause gives suppliers the right to continue serving any premises lawfully served by it on March 29, 1973 or thereafter, with four exceptions. Those are: (1) failure to provide adequate or dependable service; (2) a requested transfer of service; (3) municipal acquisition and condemnation; and (4) where a premises has been destroyed or dismantled and not reconstructed in substantial kind. See OCGA § 46-3-8.

The Hearing Officer found that none of these conditions existed at the time and it was never alleged that they did. The PSC agreed, and there was evidence in the record to support this decision. See, e.g., Ga. Public Svc. Comm., supra at 246.

3. Excelsior argues that the Superior Court erred on remand when it found that Excelsior did not properly “urge” before the commission that the grandfather clause does not apply because the term “service” as used in the clause, excludes “sales for resale.” The law is that “a party aggrieved by a state agency’s decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency’s decision.” Cerulean Companies v. Tiller, 271 Ga. 65, 66 (516 SE2d 522) (1999) “The scope of judicial review is limited to those objections which were presented to the agency.” Southern Bell, supra, citing Dept. of Public Safety v. MacLafferty, 230 Ga. 22 (195 SE2d 748) (1973).

OCGA § 50-13-19 (b) provides in pertinent part that

. . . [c]opies of the petition shall be served upon the agency and all parties of record. The petition shall state the nature of the petitioner’s interest, the fact showing that the petitioner is aggrieved by the decision, and the ground as specified in subsection (h) of this Code section upon which the petitioner contends that the decision should be reversed or modified. . . .

Decided July 5, 2013

Tisinger Vance, Richard G. Tisinger, Jr., for appellant.

Samuel S. Olens, Attorney General, Alex F. Sponseller, Assistant Attorney General, Troutman Sanders, Heather S. Smith, Robert P. Edwards, Jr., for appellees.

The Georgia Administrative Code provides:

All applications, petitions and complaints made to the Georgia Public Service Commission must plainly and distinctly state the grounds thereof, all being set forth in writing. In like manner, all defenses must be distinctly made in writing and must plainly and distinctly state the grounds thereof. These specifications may be accompanied, if the parties so desire, by any explanation or argument or by any suggestion, touching the proper remedy or policy. The parties may also be heard in person, or by attorney or by written argument, upon such written statements being first filed.

Ga. Comp. R. & Regs. r. 515-2-1-.04 (1).

Excelsior acknowledges that it did not raise the issue in writing before the PSC. It contends that it raised the “sale for resale” argument orally at the hearing before the PSC but admits that there is no transcript of the hearing. In any event, the rules clearly require that all grounds must be plainly and distinctly made in writing. It is undisputed that this was not done. Accordingly, Excelsior has not shown that the Superior Court erred in determining that this issue was waived. See Ga. Public Svc. Comm. v. Southern Bell, 254 Ga. 244, 247 (327 SE2d 726) (1985) (the scope of judicial review is limited to those objections which were presented to the agency); Ga. Power Co. v. Ga. Public Svc. Comm., 196 Ga. App. 572, 573 (396 SE2d 562) (1990) (failure to raise the issue before the PSC precluded the court’s consideration of it).

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       “Premises” means the building, structure, or facility to which electricity is being or is to he furnished, provided that two or more buildings, structures, or facilities which are located on one tract or contiguous tracts of land and are utilized by one electric consumer shall together constitute one premises; provided, however, that any such building, structure, or facility shall not, together with any other building, structure, or facility, constitute one premises if the permanent service to it is separately metered and the charges for such service are calculated independently of charges for service to any other building, structure, or facility; provided, further, that an outdoor security light, or an outdoor sign requiring less than 2200 watts, shall not constitute a premises.
      OCGA §46-3-3 (6).

       The PSC also pointed out that there is no evidence in the record that Georgia Power is selling electricity to the premises owner at a wholesale rate or that the owner has become a retail seller of electricity.

       OCGA § 50-13-19 (c) provides:
      Irrespective of any provisions of statute or agency rule with respect to motions for rehearing or reconsideration after a final agency decision or order, the filing of such a motion shall not be a prerequisite to the filing of any action for judicial review or relief; provided, however, that no objection to any order or decision of any agency shall be considered by the court upon petition for review unless such objection has been urged before the agency.


author: McFadden, Judge.

text:
    A13A0454.
    GRAHAM et al. v. HHC ST. SIMONS, INC.
    (746 SE2d 157)
   McFadden, Judge.

James Alvin Graham, Sr., appeals the order denying his motion to enforce a settlement agreement as well as the grant of summary judgment to HHC St. Simons, Inc., a mental health facility. Graham argues that he could accept HHC’s offer to settle this wrongful death action after the trial court had granted HHC summary judgment. He also argues that the trial court erred in granting HHC summary judgment.

We find that there was no meeting of the minds on the essential element of consideration, so there was no enforceable contract, and the trial court did not err in denying the motion to enforce a settlement agreement. But we find that the trial court erred in granting summary judgment to HHC on the basis of a letter agreement that specified the allegedly negligent doctor was an independent contractor, because HHC has not shown that the agreement applies to this case. We therefore affirm in part and reverse in part.

1. Facts.

Graham filed this action on May 18, 2010, against HHC and others, alleging that they discharged his son from HHC when his son was a suicide risk. The son committed suicide within eight hours of his discharge.

HHC moved for summary judgment on June 21, 2012. On June 27, HHC sent Graham an OCGA § 9-11-68 offer of settlement for $100,000, stipulating that the offer remained open for 30 days, that is until July 27. Graham made a counteroffer of $200,000, which HHC rejected on August 2, 2012. However, in its letter rejecting the counteroffer, HHC wrote that it “reiterate[d] [its] previous offer of One-Hundred Thousand Dollars ($100,000) on behalf of the Defendant facility, [HHC].” On August 22, 2012, the trial court granted HHC’s motion for summary judgment.

The next day, Graham sent by facsimile a purported acceptance of the August 2, 2012 offer. He later filed a motion to enforce settlement. The trial court denied the motion, and Graham filed this appeal, challenging the denial of his motion to enforce settlement as well as the grant of summary judgment to HHC.

2. Motion to enforce settlement agreement.

“In reviewing the trial court’s order on both a motion to enforce a settlement agreement and a motion for summary judgment, we apply a de novo standard of review and, thus, view the evidence in a light most favorable to the nonmoving party.” Torres v. Elkin, 317 Ga. App. 135, 140 (2) (730 SE2d 518) (2012) (citations omitted). We conclude that the undisputed evidence shows that the minds of the parties did not meet at the same time and in the same sense on the essential contractual element of consideration. Therefore, the trial court properly denied the motion to enforce a purported settlement agreement.

The ordinary rules of contract construction apply to this issue. The June 27, 2012 offer of settlement was made under OCGA § 9-11-68, which imposes specific requirements for making such offers and establishes specific consequences for rejecting such offers. But by its express terms, that offer expired within 30 days, and it is undisputed that Graham did not accept it within that period. Thus, the crucial offer is the offer in the August 2, 2012 letter “reiterating” the expired June 27, 2012 offer to settle. That offer is not itself an OCGA § 9-11-68 offer of settlement, because it was sent by facsimile and e-mail, not by certified mail or statutory overnight delivery as OCGA § 9-11-68 (a) (8) requires. Therefore, to determine whether the parties reached a contract, we must apply the ordinary rules of contract construction, not any rules specific to OCGA § 9-11-68 offers of settlement. See UniFund Fin. Corp. v. Donaghue, 288 Ga. App. 81, 82 (653 SE2d 513) (2007).

“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. “A contract is unenforceable where there is no meeting of the minds between the parties regarding a material element thereof.” Coca-Cola Bottlers’ Sales and Svcs. Co. LLC v. Novelis Corp., 311 Ga. App. 161, 167 (4) (715 SE2d 692) (2011). And all essential elements, including the element of consideration, must be certain. Drake v. Wallace, 259 Ga. App. 111, 113 (576 SE2d 87) (2003) (citation omitted).

“[T]he cardinal rule of construction is to determine the intention of the parties.” UniFund, 288 Ga. App. at 82.

In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable [person] in the position of the other contracting party would ascribe to the first party’s manifestations of assent.

Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982).

In making that determination, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence.

Frickey v. Jones, 280 Ga. 573, 575 (630 SE2d 374) (2006) (citations and punctuation omitted). Similarly, “parol evidence is admissible to show want or failure of consideration.” Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529, 534 (3) (677 SE2d 328) (2009) (citations omitted). “Parol evidence is admissible, not for the purpose of showing that a promise different from the written one was made, but that it is different in legal effect as a consequence of the want, cessation, or shrinkage of the consideration.” A. E. Speer, Inc. v. McCorvey, 77 Ga. App. 715, 719 (3) (49 SE2d 677) (1948).

The offer that was “reiterated” in the August 2, 2012 letter expressly defined the consideration: in exchange for HHC’s payment of $100,000, Graham would dismiss with prejudice “each and every claim that [Graham] ha[d] made, or that could have been made in the above-styled action against [HHC], as well as any claims which [had] arisen between the parties during the course of this litigation” and would provide a fully executed release of all such claims. It is objectively reasonable to conclude that HHC expected to receive a dismissal with prejudice of the pending lawsuit in exchange for its payment of $100,000. See Cox, supra, 250 Ga. at 395 (citations omitted) (courts must apply an objective, reasonable person theory of intent when determining if parties had a meeting of the minds required to reach agreement).

Graham counters that the consideration for HHC’s proposed payment of $100,000 was not only the release of liability, but also the cessation of litigation, including the right to pursue an appeal. But when HHC made its proposal on August 2, 2010, Graham’s action was still pending and HHC’s summary judgment motion — while ripe to be decided at any time — had not yet been granted. Graham’s position is not objectively reasonable. It is clear that when Graham attempted to accept the offer of settlement, the parties did not agree as to what they intended the consideration to be.

Extrinsic evidence bolsters the conclusion that the consideration described by Graham was not HHC’s intent. Graham attached to his motion to enforce settlement a letter from HHC in response to his purported acceptance of the offer. Four days after Graham’s purported acceptance, HHC wrote to Graham’s attorney that Graham’s

claims against the Defendant facility were dismissed as of August 22, 2012, prior to [his] client’s attempt to settle said claims on August 23, 2012. As such, any invitation to continue settlement negotiations was no longer on the table at the time [his] client attempted to reach a settlement agreement, due to a lack of consideration as that phase is interpreted under applicable Georgia law.

“[I]t is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense.” Powerhouse Custom Homes v. 84 Lumber Co., 307 Ga. App. 605, 607 (705 SE2d 704) (2011) (citation omitted). The evidence belies Graham’s claim that the parties agreed on the crucial element of consideration at the same time, in the same sense.

Moreover, if an offer does not contain a specified expiration date, the offer must be accepted within a reasonable time. Wilkins v. Butler, 187 Ga. App. 84 (369 SE2d 267) (1988). “What constitutes a reasonable time in any given case must depend upon its own peculiar facts.” Id. (citation omitted). Given the fact that the summary judgment motion was pending and ripe for resolution when HHC made its offer, a reasonable time for acceptance of the offer was before the trial court granted summary judgment.

The trial court correctly denied Graham’s motion to enforce the purported settlement agreement. Drake, 259 Ga. App. at 113 (some evidence that parties did not agree on consideration meant promissory note was unenforceable). See also Hamilton v. Harper, 404 SE2d 540 (W. Va. 1991); Mott v. Wal-Mart Stores, 2011 Conn. Super. LEXIS 2844 (Conn. Super. Ct. Nov. 8, 2011).

3. Summary judgment.

The trial court granted HHC summary judgment on the ground that there was “no evidence that any employee or agent of HHC did anything which influenced or affected the medical judgment” of the doctor who made the decision to discharge Graham’s son and that the doctor was not an employee of HHC. Graham argues that the court erred in finding as a matter of law that the doctor was not an employee.

In making its ruling, the trial court relied on OCGA § 51-2-5.1, which limits a hospital’s vicarious liability for the negligence of a non-employee physician or other health care professional. In pertinent part, the statute provides:

Whether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital. In the absence of such a contract, or if the contract is unclear or ambiguous, a health care professional shall only be considered the hospital’s employee or actual agent if it can be shown by a preponderance of the evidence that the hospital reserves the right to control the time, manner, or method in which the health care professional performs the services for which licensed, as distinguished from the right to merely require certain definite results.

OCGA § 51-2-5.1 (f). OCGA § 51-2-5.1 (g) lists factors that the trial court may and may not consider in determining whether a health care professional is an agent, employee or independent contractor, should it find that there is no contract or that the contract is unclear or ambiguous.

Here, the trial court stated that it had reviewed the “relevant documents and conclude [d] that the relationship they created between HHC and [the doctor] is unambiguous” and that the doctor was acting as an independent contractor when he made the decision to discharge Graham’s son. The court did not specify the documents upon which it relied, but HHC argues that only one contract existed between it and the doctor, a January 1, 2007 letter of agreement that describes the doctor as an independent contractor, stating that “[a]s an independent contractor, [the doctor would] use [his] own professional judgment in carrying out the duties and responsibilities identified in [the ajgreement.” Graham agrees that the only relevant document is the letter agreement.

The first two paragraphs of that document provide:

Thank you for your support with patient coverage and rounds for the psychiatric program at our hospital when the managed care rate is inclusive of physician fees or the patient meets the hospital’s indigent care definition. This letter is intended to set forth the agreement between you and HHC St. Simons, Inc. dba Focus by the Sea (“Hospital”) with respect to such services.
You agree by signing this document that you will provide patient coverage, rounds, and attend treatment teams at the Hospital for patients when the managed care rate is inclusive of physician fees.

Pretermitting whether the letter agreement establishes the doctor’s status as that of an independent contractor, HHC has not shown that the letter agreement applies to this case. It has pointed to no evidence that Graham’s son’s “managed care rate [was] inclusive of physician fees” or that he was indigent. The doctor himself testified that he did not know the terms of the insurance agreement between Graham’s son and HHC, so he did not know what the billing arrangement was between him and the hospital in that particular case. HHC’s representative testified that there was no letter agreement that covered the situation when the doctor billed directly for his own services. Nor could the doctor remember any such agreement. Accordingly, whether the letter agreement governed the relationship between the doctor and HHC apropos of the doctor’s treatment of Graham’s son is an issue of fact. The trial court therefore erred by finding that, as a matter of law, the doctor was an independent contractor under OCGA § 51-2-5.1.

Decided July 5, 2013.

Vincent D. Sowerby, for appellants.

Hall Booth Smith, Michael G. Frick, Christina S. Jones, for appellee.

Slappey & Sadd, James N. Sadd, Hawkins, Parnell, Thackston & Young, Martin A. Levinson, amici curiae.

Judgment affirmed in part and reversed in part.

Doyle, P. J., concurs. Boggs, J., concurs in judgment only.

       We thank the amici, the Georgia Defense Lawyers Association and the Georgia Trial Lawyers Association, for filing excellent briefs on this issue.


author: Miller, Judge.

text:
    A13A0065.
    PULTE HOME CORPORATION v. SIMERLY et al.
    (746 SE2d 173)
   Miller, Judge.

Tim and Adele Simerly and Richard and Susan Trent sued Pulte Home Corporation (“Pulte”), raising claims of trespass, nuisance, negligence, negligence per se, riparian rights, unjust enrichment, and ejectment based on the company’s actions in causing excess storm water and sediment to enter the Simerlys’ and Trents’ properties. Pulte filed third-party complaints against Sally and Dwayne Lawson and Ruth Benefield (collectively, the “Lawsons”), alleging that a bridge on the Lawsons’ property was the cause of damage to the properties owned by the Simerlys and Trents. The Lawsons filed counterclaims against Pulte that were similar to the claims asserted by the Simerlys and Trents. The suits were consolidated and proceeded to a jury trial, where the jury found in favor of the Simerlys, Trents, and Lawsons (collectively, the “Plaintiffs”) and awarded them $2.49 million in damages and attorney fees. Pulte filed a motion for new trial following the entry of judgment, which the trial court denied. Pulte appeals, contending that the trial court erred in (1) denying Pulte’s motion in limine to preclude Plaintiffs’ counsel from testifying at trial; (2) failing to enforce the Georgia Rules of Professional Conduct requiring counsel to elicit only truthful evidence and failing to give a requested curative instruction following the presentation of false testimony; and (3) denying Pulte’s motion in limine to preclude Plaintiffs from referencing Pulte’s violations of the Clean Water Act (“CWA”) and state statutes implementing the CWA. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that in January 2004, Pulte purchased property in Forsyth County to develop single-family residences for what would become the Notting Hill and Fieldstone subdivisions (“Pulte Development”). The Pulte Development discharged water into Harris Creek and was located upstream of the Plaintiffs’ properties. Pulte had purchased the property from Macauley Properties, which previously hired Lowe Engineering to complete a hydrology and storm water management study (“Lowe Study”). The Lowe Study was completed in January 2004, and Pulte relied upon the study to design and construct the Pulte Development. The Lowe Study recommended that storm water discharges from future developments could be controlled with the construction of a weir on Harris Creek, which consisted of a partial wall across the creek, above Drew Campground Road located within Fieldstone. The weir on Harris was constructed by Macauley Properties.

Pulte began mass grading and other land disturbing activities at Fieldstone in March 2004. Shortly thereafter, excessive amounts of storm water, dirt, sediment, and development debris were discharged into Harris Creek and ultimately into the ponds located on the Plaintiffs’ properties. Investigations revealed that the discharged sediment and pollutants were caused by Pulte’s activities upstream and its failure to install and maintain erosion control devices required by law. The Pulte Development also caused a dramatic increase in the rate and flow of storm water discharge into Harris Creek that caused flooding to the Plaintiffs’ properties. During a subsequent study, it was discovered that the weir was inadequate to control the storm water discharge from the Pulte Development because the Lowe Study, upon which Pulte had relied for storm water management, was based upon flawed assumptions and analysis.

1. Pulte contends that the trial court erred in denying its motion in limine to preclude the Simerlys’ counsel from testifying at trial as to what occurred during a May 2009 document review. We disagree.

“In reviewing the denial of a motion in limine, this Court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment, and we cannot reverse a trial court’s ruling absent an abuse of discretion.” (Citations omitted.) Hood v. State, 291 Ga. App. 881, 882 (663 SE2d 297) (2008). “A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Punctuation and footnote omitted.) Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010).

During litigation, the trial court found that Pulte had engaged in spoliation by deleting e-mails relevant to the litigation, and enjoined Pulte from engaging in further destruction of evidence. The trial court had appointed a Special Discovery Master to oversee compliance with the court’s injunction and to resolve other discovery issues, including the attempted recovery of spoliated evidence through a computer forensic investigation. The Special Discovery Master issued a report outlining that the computer forensic investigation revealed that Pulte had engaged in further spoliation of electronic evidence after the trial court’s order and recommended that Pulte be sanctioned for its violations. The trial court adopted the Special Discovery Master’s report and recommendation.

The Special Discovery Master also informed the trial court that the Simerlys’ counsel and Pulte’s counsel had provided conflicting statements relating to Pulte’s removal of discovery documents during a May 2009 document review at Pulte’s offices. At a subsequent hearing before the trial court, Simerlys’ counsel, Michael Carvalho, testified that he and an associate attorney, Christine Westberg, had a scheduled document review at Pulte’s offices in May 2009. Carvalho testified that during the document review, he had stacked a number of documents in a pile that were deemed relevant in order to copy them. Before taking a break for lunch, Carvalho informed Pulte’s counsel that they planned to copy the documents in the stack. When Carvalho returned from lunch, he noticed that the stack of documents was smaller. Carvalho testified that he asked Pulte’s counsel about the missing documents, and she told him that she took the documents because they were privileged. Following the hearing, the trial court found that Pulte’s counsel had taken documents during the document review.

About two weeks prior to trial, Pulte filed the instant motion in limine seeking to preclude the Plaintiffs from mentioning what transpired during the May 2009 document review. Pulte argued that any evidence with respect to the May 2009 document review would rely either on Carvalho’s testimony, which was improper under Rule 3.7 (a) of the Rules of Professional Conduct, or the trial court’s order, which would amount to an impermissible comment on the evidence. The trial court denied Pulte’s motion in limine and allowed Carvalho to testify about spoliation during the May 2009 document review, finding that forcing him to withdraw at the late stage of the proceedings would cause a substantial hardship to the Simerlys and would allow Pulte to benefit from its discovery violations.

Under these circumstances, we cannot say that the trial court abused its discretion in denying Pulte’s motion in limine. Notably, while Rule 3.7 (a) of the Georgia Rules of Professional Conduct provides that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness,” Rule 3.7 (a) specifically provides an exception where the testimony relates to the nature and value of legal services rendered in the case. Georgia Rules of Professional Conduct, Rule 3.7 (a) (2). In this case, the Plaintiffs sought expenses of litigation and attorney fees under OCGA § 13-6-11 for stubborn litigiousness and unnecessary trouble and delay, and they argued that Carvalho’s testimony regarding spoliation was relevant to this issue. At trial, the Plaintiffs elicited Carvalho’s testimony about the May 2009 document review while he testified about the expenses of litigation and his attorney fees. If the documents removed by Pulte would show its liability, then the Plaintiffs were forced to undergo unnecessary trouble and expense to prosecute their claims in this case, and the evidence was properly admitted as it related to the issue of attorney fees. See Kroger Co. v. Walters, 319 Ga. App. 52, 57-58 (2) (a) (i) (735 SE2d 99) (2012) (affirming denial of motion in limine seeking to exclude evidence of spoliation because such evidence was relevant in jury’s determination of whether plaintiff was entitled to attorney fees under OCGA § 13-6-11); see also Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737 (1) (458 SE2d 711) (1995) (an award of attorney fees is unauthorized if a plaintiff fails to prove the actual costs of attorneys and the reasonableness of those costs).

Moreover, while Pulte’s motion in limine did not specifically seek to disqualify Carvalho as counsel for the Simerlys, Rule 3.7 (a) also allows an attorney to testify at a trial where his disqualification would work substantial hardship on the client. Georgia Rules of Professional Conduct, Rule 3.7 (a) (3). Carvalho represented the Simerlys from the outset of the dispute with Pulte and was involved in the case for more than three years before it went to trial. Based on Carvalho’s substantial participation in the case, along with the fact that Pulte filed its motion in limine only weeks prior to trial, we cannot say that the trial court erred in concluding that disqualifying Carvalho would have worked a substantial hardship to the Simerlys. See Schaff v. State, 304 Ga. App. 638, 640 (697 SE2d 305) (2010) (the curtailment of an individual’s right to counsel of choice is to be approached with great caution, and the trial court is vested with the discretion to determine whether to disqualify counsel). Accordingly, the trial court did not abuse its discretion in denying Pulte’s motion in limine.

2. Pulte also argues that it was entitled to a new trial based upon the Plaintiffs’ knowing elicitation of false testimony from their expert witness and the trial court’s failure to provide a curative instruction. We disagree.

At trial, the Plaintiffs called a hydrology expert, Dr. Brian Wellington, to testify that Pulte’s reliance upon the flawed Lowe Study was the cause of sedimentation and flooding on the Plaintiffs’ properties. Dr. Wellington testified that he reviewed “the hydrology study that was done by Pulte’s engineer for the site. Now the study was done by Lowe Engineer[s] in 2004.” Although Macauley Properties, not Pulte, hired Lowe Engineers, Pulte did not object to Dr. Wellington’s incorrect statement that Pulte commissioned the Lowe Study. Dr. Wellington further testified that Pulte was required to put in a water detention structure prior to developing its properties, and that it had to design a structure to account for future growth and development. Dr. Wellington explained that Pulte assumed, through the Lowe Study, that the substantial majority of the property around the Pulte Development would remain undeveloped. Pulte failed to object when Plaintiffs’ counsel asked whether Lowe Engineers designed the weir for Pulte or to Dr. Wellington’s affirmative response. Without objection from Pulte, Dr. Wellington continued to testify about Pulte’s flawed analysis and opined that the weir structure that Pulte designed, by way of the Lowe Study, was inadequate to control storm water discharge. Only later, when Plaintiffs’ counsel asked Dr. Wellington about conclusions he drew from evaluating Pulte’s analysis as performed by Lowe Engineering, did Pulte finally object to Plaintiffs’ counsel’s characterization of the question, arguing that counsel knew that Macauley Properties had commissioned the Lowe Study and installed the weir. The trial court sustained Pulte’s objection, ordered Plaintiffs’ counsel to rephrase the question, and denied Pulte’s request for a curative instruction. Plaintiff’s counsel asked Dr. Wellington whether the fact that Macauley Properties paid for the Lowe Study changed his analysis, and he testified in the negative.

On appeal, Pulte complains that Plaintiffs’ counsel violated the rules of professional conduct by eliciting false testimony and failing to correct the false testimony given by Dr. Wellington when he stated that Pulte designed the weir. As shown above, Pulte made only one objection to the challenged testimony or to counsel’s questioning that elicited such testimony, and this objection occurred after several misstatements that Pulte commissioned the Lowe Study and designed the weir. Consequently, even if the admission of Dr. Wellington’s statements were in error, any error was harmless in light of Pulte’s failure to object at the first instance of error. “Where a party fails to object to certain inadmissible evidence, but later objects to substantially the same evidence, the objection should be overruled because the failure to object the first time makes this harmless error.” (Citations and punctuation omitted.) Phelps v. Huff, 214 Ga. App. 398, 402 (2) (a) (448 SE2d 64) (1994); see also Bell v. Bell, 210 Ga. 295, 296-297 (4) (79 SE2d 524) (1954) (there is no ground for reversal where challenged evidence was previously admitted without objection). Furthermore, even after Pulte objected to the questioning that indicated that Pulte commissioned the Lowe Study, Dr. Wellington later made two additional statements that the weir was designed by Pulte, and Pulte did not object. “Even if counsel timely objects to certain testimony, its admission is not error where substantially the same evidence is subsequently admitted without objection.” (Citation and punctuation omitted.) Francois v. State, 309 Ga. App. 692, 694 (1) (a) (711 SE2d 45) (2011). Therefore, we hold that the admission of the challenged testimony was harmless and does not require reversal.

3. Pulte also contends that the trial court erred in denying its motion in limine to preclude the Plaintiffs from presenting evidence that Pulte committed violations of the federal Clean Water Act (“CWA”) because the CWA did not provide a private cause of action, a consent decree involving Pulte and several states — but not Georgia — shielded Pulte from additional liability, and the evidence was prejudicial as it urged the jury to punish Pulte even though the Plaintiffs could not directly sue for CWA violations. The trial court was vested with considerable discretion in ruling on Pulte’s motion in limine, and we disagree with Pulte’s contention that the trial court abused its discretion in this case.

First, the Plaintiffs did not assert a CWA claim directly. Rather, the Simerlys and the Trents alleged that Pulte violated its duty under the Georgia Water Quality Control Act (“GWQCA”), the Georgia Waste Control Act, the Georgia Erosion and Sedimentation Control Act (“Sedimentation Control Act”), and regulations issued under these statutes when it failed to abide by a permit issued by the State to discharge storm water. Similarly, the Lawsons alleged that Pulte’s discharge of excessive amounts of storm water and sedimentation violated the above state statutes, along with the CWA.

The GWQCA (OCGA § 12-5-20 et seq.) is the state’s statutory scheme implementing the CWA to regulate the discharge of pollutants into the waters of the state. See Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App. 499, 502-503 (1) (734 SE2d 242) (2012). Under the GWQCA, an entity seeking to erect a facility of any type that will result in the discharge of pollutants into the waters of the state is required to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit. Id. at 503 (1); see also OCGA § 12-5-30. Generally, any discharge is unlawful unless performed pursuant to and in accordance with a NPDES permit. 33 USC §§ 1311 (a), 1342. Similarly, a discharge of storm water runoff from construction activities where best management practices have not been properly implemented violates the Sedimentation Control Act. OCGA §§ 12-7-2; 12-7-6 (a).

It is well settled that Georgia law allows the adoption of a statute or regulation as a standard of conduct so that its violation becomes negligence per se. See Rockefeller v. Kaiser Foundation Health Plan of Ga., 251 Ga. App. 699, 702 (1) (554 SE2d 623) (2001); Hubbard v. Dept. of Transp., 256 Ga. App. 342, 349-350 (3) (568 SE2d 559) (2002).

OCGA § 51-1-6 authorizes a plaintiff to recover damages for the breach of a legal duty even when that duty arises from a statute that does not provide a private cause of action. OCGA § 51-1-6 does not create a legal duty but defines a tort and authorizes damages when a legal duty is breached.

(Citation omitted.) Jenkins v. Wachovia Bank, 314 Ga. App. 257, 259 (1) (a) (724 SE2d 1) (2012). Specifically, OCGA § 51-1-6 provides:

When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.

The duties imposed by the GWQCA, Sedimentation Control Act, and the CWA fall within the ambit of OCGA § 51-1-6. See, e.g., Jenkins, supra, 314 Ga. App. at 259 (1) (a) (violations of federal statutes pertaining to financial institutions would support state negligence claim under OCGA § 51-1-6); Dupree v. Keller Indus., 199 Ga. App. 138, 141 (1) (404 SE2d 291) (1991) (violation of federal OSHA regulations are admissible as evidence of and give cause of action under OCGA § 51-1-6); cf. McLain v. Mariner Health Care, 279 Ga. App. 410, 412-413 (2) (631 SE2d 435) (2006) (violations of federal statutes and regulations support claim of breach of legal duty in both traditional negligence and negligence per se actions). Under these circumstances, the Plaintiffs were allowed to present evidence regarding Pulte’s noncompliance with the above statutes to establish their negligence per se claims.

Pulte nevertheless argues that the Plaintiffs could not maintain the instant lawsuit because CWA statutes governing private citizen lawsuits require individuals to provide notice prior to filing suit and that there be an absence of any state or federal enforcement action. However, the fact that the Plaintiffs’ negligence per se claims were predicated upon violations of the CWA or the GWQCA, which implemented the CWA in this State, did not transform such claims into CWA claims. Pulte has not cited authority, nor can we find any, that a plaintiff, who pursues a negligence per se action based on violations of the CWA or state statutes implementing the CWA, is subject to the CWA’s requirements regarding private citizen lawsuits. Indeed, under OCGA § 51-1-6, the state and federal statutes merely provide the source of duty that is owed, but do not govern the right of action available or the course of the proceedings. See Jenkins, supra, 314 Ga. App. at 259 (1) (a) (although federal statute requiring financial institution to protect security and confidentiality of customers did not provide private right of action, statute established duty to support state negligence claim under OCGA § 51-1-6); see also Stephens County v. Wilbros, LLC, Civ. A. No. 2:12-CV-0201-RWS, 2012 WL 4888425 at *2-3 (N.D. Ga. Oct. 6, 2012) (plaintiff’s state negligence per se claim based, in part, upon CWA and corresponding regulations did not morph claim into federal claim and were insufficient to authorize removal from state court).

Decided July 8, 2013.

Bryan Cave, Christopher P. Galanek, Laura A. Williams, Eric P. Schroeder, for appellant.

Moreover, while Pulte argues that the Plaintiffs’ claims were barred because it entered into a consent decree to resolve its violations of the CWA across the nation, the consent decree does not show that the Plaintiffs’ claims were foreclosed. The consent decree relied upon by Pulte shows that it was the result of a lawsuit filed by the EPA and several states, not including Georgia. The consent decree binds the United States government, the state plaintiffs, and Pulte. Although the consent decree provides that the state plaintiffs — neither of which are defined to include Georgia or the Plaintiffs in this case — released their claims and promised not to sue for CWA violations at Pulte’s development sites, including those at issue here, nowhere in the consent decree does it state that rights of third-party plaintiffs, such as the Plaintiffs in this case, would be subject to the provisions of the consent decree. Rather, the consent decree expressly states that it “does not limit the rights of third parties, not party to this [c]onsent [djecree, against [Pulte].” Since the Plaintiffs were not party to the consent decree, it did not preclude them filing suit in this case.

We conclude that the evidence relating to Pulte’s violations of the GWQCA and the Sedimentation Control Act was relevant to the Plaintiffs’ negligence per se claims. Accordingly, the trial court did not err in denying Pulte’s motion in limine to exclude this evidence. The verdict of the jury stands in this case.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

Bloom, Sugarman & Everett, Simon H. Bloom, Scroggins & Goodman, Martin A. Shelton, Michael P. Carvalho, Donald D. J. Stack, for appellees.

        Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 593-594 (693 SE2d 873) (2010).

       Relying upon Stolte v. Fagan, 291 Ga. 477, 481 (2) (731 SE2d 653) (2012), Pulte argues that once the trial court sustained its objection, the trial court was required under OCGA § 9-10-185 to issue a curative instruction. Pulte’s reliance upon Stolte or OCGA § 9-10-185 does not alter our analysis, because even under the statute, Pulte was still required to make a timely objection to counsel’s statements that itbelieved were improper. See Hamilton v. Shumpert, 299 Ga. App. 137, 143-144 (3) (682 SE2d 159) (2009) (objections to counsel’s improper statements under OCGA § 9-10-185 are waived unless they are made contemporaneously). “When, as here, no timely objection is interposed, the test for reversible error is whether the improper [comment] in reasonable probability changed the result of the trial.” (Punctuation and footnote omitted.) Id. at 144 (3). In light of counsel’s clarifying comments that Pulte did not design the weir, Dr. Wellington’s testimony that his opinions regarding the adequacy of the weir remained unchanged, and the undisputed evidence that Pulte relied upon the flawed design of the weir in its storm water management, Pulte cannot establish a reasonable probability that outcome of trial would have been different had counsel not stated that Pulte designed the weir.

       The regulated discharges include storm water runoff originating from sources such as residential developments. See Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518, 528-529 (2) (649 SE2d 619) (2007). The State of Georgia, through its Department of Natural Resources, Environmental Protection Division (“EPD”), has been delegated authority to issue NPDES permits in compliance with the applicable requirements of the CWA, the regulations issued thereunder, and applicable state law and state rules and regulations. See Upper Chattahoochee Riverkeeper, supra, 318 Ga. App. at 503 (1).

       “The [CWA] permits any [private citizen] who has an interest which is or may be adversely affected to sue to enforce any limitation established by a NPDES permit. [33 USC] § 1365 (a) and (g).” Ailor v. City of Maynardville, Tenn., 368 F3d 587, 590 (I) (A) (6th Cir. 2004). The CWA provides that a citizen suit may be brought only where there is an absence of federal or state enforcement proceedings and after the plaintiff has given proper notice to the EPA, to the state in which the violation occurs, and to the alleged violator. 33 USC § 1365 (b) (1).

       The Plaintiffs moved to strike Pulte’s supplemental reply brief for being untimely filed. In light of our resolution of the claims presented, the motion is denied as moot.


author: Dillard, Judge.

text:
    A13A0352.
    MASON LOGGING COMPANY v. GENERAL ELECTRIC CAPITAL CORPORATION.
    (746 SE2d 180)
   Dillard, Judge.

Mason Logging Company (“Mason Logging”) appeals the trial court’s grant of summary judgment in favor of General Electric Capital Corporation (“GECC”), contending that the trial court erred in holding that there were no genuine issues of material fact for a jury and making an express determination that GECC’s evidence was more credible. Because we agree with Mason Logging that genuine issues of material fact remain, we reverse the trial court’s judgment in favor of GECC.

Viewed in the light most favorable to the nonmovant, the record reflects that GECC repossessed two pieces of heavy logging equipment after Mason Logging defaulted on payments for same. GECC then resold the equipment and sought to recover the deficiency from Mason Logging. In response, Mason Logging challenged the commercial reasonableness of the equipment sale in both its answer to GECC’s complaint for breach of contract and attorney fees and in its response to GECC’s subsequent motion for summary judgment.

In support of its motion for summary judgment and contention that the repossessed property was disposed of in a commercially reasonable manner, GECC submitted three affidavits from various employees.

The first affidavit, which was from an employee responsible for remarketing repossessed assets, averred that his opinion was based upon a review of business records regarding the subject equipment, including the “time, place and manner of sale”; his training and employment with GECC; his “experience, knowledge, and familiarity with the business records and routine business practices” of the company; and his “experience, knowledge and familiarity with the manner in which equipment similar to, or the same as, the collateral ... is sold.” And based upon this, he opined that the sale of the first piece of equipment “was conducted in conformity with reasonable commercial practices among dealers in property that is similar to, or the same as, the collateral..., and that the manner of sale was commercially reasonable.” Additionally, based upon his “review of business records regarding the year, make, model, and condition at time of the collateral [sic] . .. and [his] knowledge of and familiarity with the resale price of used equipment similar to the collateral, including the published resale value of such equipment,” the affiant further opined that the first piece of equipment was sold at a commercially reasonable price of $115,000.

The second GECC affidavit was from an employee responsible for determining the value of and disposing of reposséssed collateral. And based upon the same criteria listed by the first affiant, the second affiant opined that the sale of the second piece of equipment was commercially reasonable and that it drew a commercially reasonable price of $50,000. This employee also averred that GECC had, “[u]pon repossession and in connection with its subsequent sale,” assigned an “as is” value to each piece of equipment and that he agreed with those values, those being $99,000 for the first piece and $33,000 for the second piece. He further averred that GECC assigned a “repaired condition” value of $37,500 to the second piece of equipment and authorized the repair of same.

Finally, GECC’s third affidavit was from an employee who had access to Mason Logging’s account information, and who detailed Mason Logging’s default on payments for the equipment and explained what remained due after application of the proceeds from the resale, that being $41,406.02 as to the first piece of equipment and $72,592.25 as to the second piece of equipment.

In response, Mason Logging submitted the affidavit of the company’s owner, who averred that he had worked in the logging industry for 22 years, had experience buying and selling heavy logging equipment, had purchased the subject equipment, and had personal experience inspecting and operating the subject equipment after purchase. And based on his “training and experience in the logging industry and [his] personal knowledge of the condition” of the equipment, he opined that the value of the pieces at the time of sale was $160,000 for the first and $90,000 for the second. Accordingly, Mason Logging contended that the sale of the equipment did not bring its full value.

After considering the above evidence, the trial court granted summary judgment in favor of GECC, determining that the sale of the equipment was commercially reasonable as a matter of law because “[s]imply providing a conflicting opinion as to value is not sufficient to create a material issue of fact.” And as an aside, the trial court commented that Mason Logging’s owner made an “unreasonable assertion” when he opined that the first piece of equipment was valued in used condition at $160,000 when it had been purchased in new condition more than a year before at $180,000, and the trial court accordingly “[found] the value evidence furnished by [GECC] to be more credible.” Ultimately, the trial court concluded that Mason Logging’s “assertion that summary judgment should be precluded because it contends the equipment could have been sold for a better price through sale at a different time or through a different method than that selected by [GECC] is not sufficient.” This appeal by Mason Logging follows.

Mason Logging argues in two separate enumerations that the trial court erred in holding that there were no genuine issues of material fact to be resolved by the factfinder and by making a credibility determination regarding Mason Logging’s affidavit. We agree that the trial court erred by concluding that there were no genuine issues of material fact and address these enumerations together.

To begin with, we note that every aspect of a disposition of collateral, “including the method, manner, time, place, and other terms, must be commercially reasonable.” A disposition is made in a commercially reasonable manner if done “[i]n the usual manner on any recognized market; . . . [a]t the price current in any recognized market at the time of the disposition; or ... [o]therwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.” And while it is normally a question of fact, “the commercial reasonableness of the sale of collateral may be determined as a matter of law [when] the creditor offers prima facie, uncontradicted evidence that the sale was reasonable.” Thus, to avoid a grant of summary judgment in favor of the secured party, “the debtor must support his challenge to the sale by presenting evidence of specific facts to show the existence of a genuine issue for trial.”

When the commercial reasonableness of a sale is challenged by a debtor, “the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral.” Additionally, the secured party must also “prove the value of the collateral at the time of repossession and that the value of the goods does not equal the value of the debt.” And if this proof is not forthcoming, “it is presumed that the value of the goods is equal to the amount of the debt.” Finally, the fact that a better price could have been obtained “by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.”

As to the issue of the value of the collateral, it is well established that “value is generally proven by opinion evidence.” And for such evidence to have probative value, it must be based upon “a foundation that the witness has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.”

Here, although the trial court characterized Mason Logging’s argument against summary judgment as asserting “that summary judgment should be precluded because ... the equipment could have been sold for a better price through sale at a different time or through a different method than that selected by [GECC],” this was incorrect. Instead, Mason Logging argued that there was a question of fact as to whether the resale price was the fair and reasonable value of the collateral, which GECC was required to establish as part of its burden to prove commercial reasonableness. And the trial court cited nothing to support its bare contention that “[s]imply providing a conflicting opinion as to value is not sufficient to create a material issue of fact” before stating that it found GECC’s value-opinion evidence more credible.

Indeed, in contrast with the trial court’s determination, conflicting evidence of value can be sufficient to overcome summary judgment so long as the opinion evidence has probative value. And we note that here, unlike in previous cases that have appeared before this Court, the trial court did not determine that Mason Logging’s affidavit was insufficient for lack of probative value. Instead, the trial court found GECC’s evidence “more credible.” But in the case sub judice, Mason Logging’s owner gave his opinion as to the value of the equipment, which was based on 22 years in the logging industry, his experience buying and selling heavy logging equipment, his purchase of the subject equipment, his personal experience inspecting and operating the subject equipment, his “training and experience in the logging industry,” and his “personal knowledge of the condition” of the equipment. And viewed in the light most favorable to Mason Logging, this lay-opinion evidence was sufficient to preclude summary judgment.

Decided July 8, 2013.

Brown Rountree & Stewart, George H. Rountree, Robert F.Mikell, for appellant.

Wargo & French, Joseph D. War go, Windy A. Hillman, for appellee.

Accordingly, for all the foregoing reasons, we reverse the trial court’s grant of summary judgment.

Judgment reversed.

Andrews, P. J., and McMillian, J., concur.

        See AKA Mgmt., Inc. v. Branch Banking & Trust Co., 275 Ga. App. 615, 616 (62l SE2d 576) (2005) (“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.” (punctuation omitted)).

        Id.

       We note that although Mason Logging’s brief contains only one listed enumeration of error, the argument section of the brief actually contains two, as stated supra.

       OCGA § 11-9-610 (b).

       OCGA § 11-9-627 (b) (l)-(3).

        Southeast Recovery Servs., LLC v. Northen, 255 Ga. App. 516, 519 (1) (565 SE2d 861) (2002).

        Id.

        Brewer v. Trust Co. Bank, 205 Ga. App. 891, 893 (3) (424 SE2d 74) (1992) (punctuation omitted; emphasis supplied); accord Versey v. Citizens Trust Bank, 306 Ga. App. 479, 482 (2) (702 SE2d 479) (2010); see also Vines v. Citizens Trust Bank, 146 Ga. App. 845, 849 (4) (247 SE2d 528) (1978) (holding that secured party cannot establish its burden “without establishing affirmatively that the ‘terms’ of the sale were commercially reasonable” and that “[t]his includes a burden upon the secured party to show that the resale price was the fair and reasonable value of the collateral”); Granite Equip. Leas. Corp. v. Marine Dev. Corp., 139 Ga. App. 778, 779 (1) (230 SE2d 43) (1976).

        Brewer, 205 Ga. App. at 893 (3) (punctuation omitted); accord Versey, 306 Ga. App. at 482 (2).

        Brewer, 205 Ga. App. at 893 (3) (punctuation omitted); accord Versey, 306 Ga. App. at 482 (2).

        Granite Equip. Leas. Corp., 139 Ga. App. at 778 (1).

        Versey, 306 Ga. App. at 483 (2) (punctuation omitted).

        Id. (punctuation omitted).

        See supra note 8.

        See John Deere Constr. & Forestry Co. v. Mark Merritt Constr., Inc., 297 Ga. App. 743, 746 (678 SE2d 183) (2009) (holding that subject affidavit was “at least minimally sufficient to show that [the affiant] had some knowledge, experience, or familiarity with the value of the property in question or similar property, and he did not use a patently flawed valuation methodology or make express assumptions as to the condition of the property contradicted by undisputed record evidence”); Hill v. Fed. Employees Credit Union, 193 Ga. App. 44, 47 (2) (d) (386 SE2d 874) (1989) (holding that affidavits by nonexperts “must be based upon a foundation that the witness has some knowledge, experience, or familiarity with the value of the property in question or similar property and she must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion” (punctuation omitted)).

        Compare Dowdell v. Volvo Commercial Fin., LLC, 286 Ga. App. 659, 661 (649 SE2d 750) (2007) (holding that affidavit lacked probative value when it “contained no information regarding [affiant’s] knowledge, experience, or familiarity with the value of the vehicle”); AKA Mgmt., 275 Ga. App. at 620-21 (2) (b) (agreeing with trial court’s conclusion that “opinion lacked probative value and was inadmissible, as it amounted to nothing more than an unsupported conclusion or guess”); Monroe v. Hyundai Motor Am., Inc., 270 Ga. App. 477, 479 (606 SE2d 894) (2004). Cf. Northen, 255 Ga. App. at 520 (1) (holding that speculative testimony as to value “was not legally sufficient to disprove” that amount brought at sale was commercially reasonable).

        See Hill, 193 Ga. App. at 47 (2) (d) (holding that affidavits by nonexperts “must be based upon a foundation that the witness has some knowledge, experience, or familiarity with the value of the property in question or similar property and she must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion” (punctuation omitted)).

        See id. (“Giving appellant as respondent the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence, we find that appellant’s affidavit meets the requirements for lay opinion as to value, sufficiently rebutting the evidence offered by appellee as to value to create a genuine issue of material fact for resolution by a jury.” (citation omitted)); Gilbert v. Farmers & Merchants Bank, 192 Ga. App. 700, 702 (1) (385 SE2d 782) (1989) (“[Tjhere exists a genuine issue of material fact as to whether the sale price equalled the fair market value of the equipment, and consequently, whether appellee was entitled to a deficiency judgment and, if so, in what amount.”). Cf. Johnson v. Rooks, 116 Ga. App. 394, 396-97 (1) (157 SE2d 527) (1967) (holding that opinion evidence as to value had sufficient foundation to be considered by jury).