author: Ray, Judge.

text:
    A16A1843.
    RAY v. THE STATE.
    (798 SE2d 82)
   Ray, Judge.

After a stipulated bench trial, Nicholas Ray was convicted on four counts of sexual exploitation of children and one count of tampering with evidence. He appeals from the judgment of conviction and sentence, asserting error in the trial court’s denial of his motion to suppress. For the reasons that follow, we affirm.

The evidence presented at the hearing on the motion to suppress shows that in September 2014, Agent Harrell of the Georgia Bureau of Investigation (GBI) was able to obtain downloads of child pornography from a computer that had an Internet protocol (IP) address that was associated with a house located at 9 Couch Road in Senoia, Georgia. Agent Harrell turned his findings over to Agent Jackson, who was assigned to the GBI’s Child Exploitation and Computer Crimes Unit. After viewing the downloads personally to determine that they were child pornography, Agent Jackson sought and obtained a search warrant for the residence, which was determined to belong to Shelly Dvorak.

When Agent Jackson executed the search warrant at Dvorak’s residence, Dvorak and her three children were present. Dvorak informed Agent Jackson that neither she nor her children had ever viewed any child pornography or made any searches on the Internet for anything related to child pornography. After questioning Dvorak and her children, and after examining all of their computers and digital devices, Agent Jackson confirmed that there was no evidence of child pornography at Dvorak’s residence. Nor was there any evidence that there had been any attempt to access child pornography on any of their computers or digital devices. After determining that Dvorak’s wireless Internet router was password-protected, Agent Jackson asked Dvorak if she had given anyone else the password to access her Internet router, and Dvorak stated that she had given the password to her neighbor, Ray Although Dvorak stated that other neighbors had used her Internet in the past, Dvorak specifically identified Ray as the neighbor who would often park his vehicle in her driveway and sit there for hours using her Internet and that he had recently done so in the days preceding the issuance of the search warrant for her residence.

Based on the information that Dvorak had given her, Agent Jackson and two other GBI agents went to Ray’s residence to conduct a “knock and talk.” When Agent Jackson approached Ray and informed him that she wanted to speak with him about an investigation involving computers, Ray declined to speak with her and closed his front door. Accordingly, Agent Jackson went to get a search warrant for Ray’s residence.

In her application and sworn affidavit in support of the search warrant for Ray’s residence, Agent Jackson stated, in pertinent part, as follows:

On Friday, October 3, 2014, SPECIALAGENT (SA) CYNTHIA JACKSON received a peer to peer case from SA JOHN HARRELL. Previously, SA HARRELL downloaded videos of suspected child pornography by using Ares, a file sharing program_The suspect IP address was 24.159.106.241 [.]... SA JACKSON viewed the videos. One of the videos depicted a boy, approximately between the ages of 11 and 13, masturbating. Another video depicted a boy, approximately between the ages of 11 and 13, with another person ejaculating his penis. File names of the downloads included the following: 14 y o boy in boxers, webcam jack off.mpeg [and] bibcam - boy 12 cums with sound kdv pjk.mpg[.] The IP address 24.159.106.241 was associated with Charter Communications. SA HARRELL sent Charter Communications a subpoena and requested subscriber information for specific dates and times for the aforementioned IP address. The results showed SHELLY DVORAK as the subscriber with an address of 9 Couch Rd., Senoia, Georgia. . . . On Friday, October 17, 2014, SA JACKSON, along with other GBI Agents executed a search warrant at 9 Couch Rd., Senoia, Georgia. Upon entry, SA JACKSON made contact with SHELLY DVORAK and her 3 children. . . . SA JACKSON interviewed DVORAK who essentially stated the following: She had been living at the residence for approximately 7 years. She was divorced [from her former husband] in May of 2014. DVORAK confirmed Charter Communications as her Internet Service Provider. Only DVORAK and her 3 sons . . . lived at the residence. DVORAK stated that there were multiple digital devices in the residence including an iPad, Kindle, laptop [computer], desktop [computer], and 3 phones. . . . She had never viewed or searched for pornography or child pornography. DVORAK stated that her Wi-Fi was password protected. However, she stated that her neighbor, NICHOLAS RAY, had her Wi-Fi password and often parked in her driveway and/or sat at her house for hours using her internet service. It was not uncommon for RAY to be at DVORAK’S residence for hours throughout the week using her internet service. DVORAK had known RAY for approximately 7 years and he had been using DVORAK’S internet service for approximately 5 years. DVORAK stated that RAY had recently used the internet service this week. SA JACKSON spoke to [DVORAK’S] 3 children and they did not use the internet to view pornography or child pornography. SA JACKSON along with SA BROOKE LINDSEY and SA ROBERT DEVANE went to 285 Couch Rd., Senoia, Georgia to make contact with NICHOLAS RAY RAY refused to answer any of SA JACKSON’S questions. SA JACKSON received intelligence results for RAY RAY was previously arrested for false imprisonment and sexual battery. Based on the information provided by SHELLY DVORAK and the fact that NICHOLAS RAY used DVORAK’S internet service nearly every week for hours at a time, SA JACKSON is requesting a search warrant for 285 Couch Rd., Senoia, Coweta County, Georgia.

In addition to her affidavit, Agent Jackson gave sworn oral testimony to the magistrate judge in support of her application for the search warrant for Ray’s residence. She offered testimony about the details of her investigation leading up to the request for the search warrant, the evidence that she obtained, her questioning of Dvorak and her children, Dvorak’s level of cooperation, the fact that no evidence of child pornography or attempts to access such material was found on the computers and digital devices at Dvorak’s residence, and the fact that Ray had used Dvorak’s password-protected Internet service while parked in her driveway during the time frame the child pornography was downloaded. After considering Agent Jackson’s affidavit and testimony, the magistrate issued the search warrant.

As Agent Jackson was executing the search warrant at Ray’s residence, another GBI agent initiated a traffic stop of Ray’s pickup truck. During this traffic stop, the GBI agent observed a laptop computer in Ray’s truck, and he relayed that information to Agent Jackson. This information was consistent with Dvorak’s statement that Ray had recently accessed her Internet service while sitting in his truck in her driveway. Accordingly, Agent Jackson sought and obtained a separate search warrant for the search of the truck. The affidavit for the search warrant for the truck was based largely on the same information that was presented to the magistrate in support of the search warrant for Ray’s residence, with the additional fact that the GBI agent had observed the laptop in Ray’s truck.

GBI agents completed their search after Ray arrived at the residence. When GBI agents seized the laptop computer from Ray’s truck, they discovered that a file-shredding program was running on the laptop, actively erasing files from the hard drive. Nevertheless, the GBI was able to recover several files containing child pornography from the laptop, including one of the videos that was specifically referenced in the affidavits for the search warrants.

Ray asserts that the trial court should have granted his motion to suppress evidence obtained during the execution of search warrants for his home and his vehicle, contending that the information presented to the magistrate judge by law enforcement was inadequate to establish probable cause to support the warrants. We disagree.

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit [and testimony] before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the magistrate’s decision in this case is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrants. A magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.

(Citations and punctuation omitted.) Galloway v. State, 332 Ga. App. 389, 389-390 (772 SE2d 832) (2015). Where, as here, the affiant for the search warrant relies on information obtained from an informant,

probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. However, a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

(Citations and punctuation omitted.) Id. at 390.

(a) After the execution of the initial search warrant at Dvorak’s residence failed to produce any evidence of child pornography, the GBI relied on the information provided by Dvorak to turn their investigation toward Ray Ray argues that the information provided to the magistrate judge in support of the subsequent search warrants for his residence and truck failed to establish Dvorak’s reliability We disagree.

As an initial matter, we note that the unique circumstances of this case create somewhat of an ambiguity as to whether Dvorak should be deemed a “concerned citizen” or an “informant.” If the person providing information regarding possible criminal activity to law enforcement is a law-abiding “concerned citizen” whose identity is known to the police, the information provided to law enforcement is presumed tobe reliable. See Durden v. State, 320 Ga. App. 218, 221 (1) (739 SE2d 676) (2013). In contrast, if the person providing such information is an anonymous informant or a person of unknown reliability, the information provided must be independently corroborated by law enforcement. Manzione v. State, 312 Ga. App. 638, 641 (a) (719 SE2d 533) (2011). We need not make this distinction here, however, as the information provided to the magistrate was sufficient to establish reliability under either standard.

Although Dvorak may have been previously unknown to Agent Jackson before the execution of the search warrant at her residence, Agent Jackson was able to assess Dvorak’s credibility during questioning. She learned that Dvorak was a divorced mother of three children and that she and her children were the only ones who lived at her residence. Dvorak denied having any child pornography, and Agent Jackson was able to corroborate this information upon searching her residence and examining all of the computers and digital devices located there. Agent Jackson noted that Dvorak was “[v]ery cooperative, [and] very straight forward,” and that Dvorak “offered any and all information [that was requested].” Implicit in these facts is that Dvorak was a law-abiding woman who would be justifiably concerned upon learning that her wireless Internet router was being used to distribute child pornography. Accordingly, she immediately informed Agent Jackson that she had given Ray access to her password-protected Internet service, that he would often park his vehicle in her driveway and sit there for hours using her Internet, and that he had recently done so in the days preceding the issuance of the search warrant for her residence.

We have held that face-to-face communication between an informant and a law enforcement officer is inherently more reliable than information from an anonymous source because the officer receiving the information “had the opportunity to observe the informant’s demeanor and perceived credibility.” (Citation and punctuation omitted.) Durden, supra at 222 (1). Furthermore, when a person observes certain activity and then later learns that such activity is relevant to a criminal investigation and immediately reports it in person directly to a law enforcement officer, we see no reason why that person cannot be deemed a concerned citizen. See generally id. (“a citizen who witnesses criminal activity and then immediately reports it in person directly to a police officer also can be deemed a concerned citizen, even if her identity is not known to the police”) (citations omitted). Furthermore, Dvorak’s information that Ray used her Internet service while sitting in his truck in her driveway during the relevant time frame was corroborated when a GBI agent observed the laptop computer in Ray’s truck during a traffic stop.

As all of the above facts were provided to the magistrate judge during the warrant application process, we find no error in the magistrate judge’s determination, under the totality of the circumstances, that the information supplied by Dvorak was reliable.

(b) Ray also asserts that the information provided by Dvorak was insufficient to establish probable cause to believe that he was in possession of child pornography He argues that there were other possible explanations for his use of Dvorak’s Internet service, that Dvorak never stated that she observed him searching for or downloading child pornography, and that other neighbors may have accessed her Internet service. His arguments are unpersuasive.

In making such arguments, Ray apparently wishes to equate the standard required for probable cause for a search warrant with the standard required for conviction. This is incorrect. A magistrate does not analyze the information in a warrant affidavit using the “beyond a reasonable doubt” standard but rather makes a common-sense decision whether, given all the circumstances set forth in the affidavit, a “fair probability” exists that evidence will be found in a particular place. Galloway, supra at 389. Although Dvorak stated that other neighbors had used her Internet in the past, Dvorak specifically identified Ray as the neighbor who had accessed her password-protected Internet service during the approximate time frame the child pornography was downloaded.

Decided March 8, 2017

Brody Law Firm, Bernard S. Brody, for appellant.

Peter J. Skandalakis, District Attorney, Kevin T. McMurry, Robert L. Creech, Assistant District Attorneys, for appellee.

Furthermore, the establishment of probable cause was not limited to the information provided by Dvorak. Here, the information provided to the magistrate judge shows that the GBI detected child pornography being distributed from Dvorak’s IP address, that no evidence of child pornography was located during the search of Dvorak’s residence, computers, and digital devices, and that Ray accessed her password-protected Internet service during the time frame when the GBI detected the distribution of child pornography through Dvorak’s IP address. Based on the totality of the circumstances, we conclude that the magistrate judge had a substantial basis for concluding that probable cause existed to issue the search warrants at issue.

(c) Lastly, Ray contends that the information that Agent Jackson provided in her affidavit to the magistrate judge concerning Ray’s prior arrest for sexual battery and his refusal to speak with the GBI agents was irrelevant to the determination of probable cause for the search warrants. However, the magistrate judge testified at the hearing on the motion to suppress that he did not consider Ray’s prior arrest in determining the issue of probable cause. Furthermore, we have reviewed the magistrate judge’s testimony in its entirety, and it is clear that he focused on the information concerning Ray’s frequent use of Dvorak’s Internet during the time frame in which the child pornography was downloaded in determining probable cause. Accordingly, we find no basis for reversal.

Judgment affirmed.

Doyle, C. J., and Andrews, J., concur.

       Ray does not challenge the sufficiency of the search warrant for Dvorak’s residence.

       The evidence shows that Dvorak was divorced, and that she and her three children were the sole occupants of the residence.

       As to the application for the search warrant for Ray’s vehicle, there was the additional evidence that the GBI officer had seen a computer in his pickup truck.


source: Caselaw Access Project

author: McFADDEN, Presiding Judge.

license: Public Domain

text:
    A16A2014.
    JONES v. THE STATE.
    (798 SE2d 87)
   McFADDEN, Presiding Judge.

Following a jury trial in December 2012, Schleiermacher Jones was convicted of the 2003 rape and child molestation of A. M., who was then ten years old. The trial court denied his motion for new trial. On appeal, Jones challenges the sufficiency of the evidence and the trial court’s denial of his motion for new trial on evidentiary grounds, but the evidence authorized the jury’s verdict. Jones argues that the trial court erred in allowing hearsay testimony from four outcry witnesses, but he did not preserve his objection to the testimony of two of the witnesses, and the trial court was authorized to admit the testimony of the other two witnesses as evidence of A. M.’s prior consistent statements. Jones argues that the trial court erred in sustaining the state’s objections to other testimony, but the Rape Shield Statute in effect at the time authorized the rulings. Finally, Jones argues that the trial court erred in denying one of his requested jury charges, but he has not shown plain error in the denial of his request to give the charge. For these reasons, we affirm.

1. Sufficiency of the evidence and denial of motion for new trial.

Jones argues that the evidence was insufficient to authorize his convictions and that the trial court erred in denying his motion for new trial because the verdict was against the weight of and contrary to the evidence and the law, and it was contrary to principles of justice, fairness, and equity. When a defendant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). We review a lower court’s refusal to grant a new trial under the same standard. Batten v. State, 295 Ga. 442, 444 (1) (761 SE2d 70) (2014). In applying this standard, we do not resolve conflicts in the testimony, weigh the evidence, or draw inferences from the evidence, as those are functions of the jury. See Jackson, supra. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

Viewed in this light, the evidence showed that in August 2003, Jones lived in a home with various relatives, including his ten-year-old cousin, A. M. One night, A. M. awoke to find Jones rubbing her vagina with his hand. A few nights later, A. M. awoke to find Jones holding her at her waist and penetrating her vagina with his penis. This occurred against A. M.’s will, and she was scared. The next day, after seeing blood in her underwear, A. M. told several relatives that Jones had touched her inappropriately, but she did not reveal that he had penetrated her. A. M.’s relatives made Jones move out of the home, but they did not notify the police or seek medical attention for A. M. at that time. Several years later, in 2007, A. M. wrote in her personal journal that, when she was in the fifth grade, Jones had had sexual intercourse with her while she was in bed asleep; she wrote that this event had ruined her life and that she could not forgive Jones for it. And in 2009, A. M. told a cousin that, when she was ten years old, Jones had “mess[ed] with her” and that, when she was asleep in bed, he had “forced his forearm in her back and penetrated her.”

After A. M.’s 2009 outcry, some of her relatives confronted Jones and his mother with A. M.’s allegations and journal entry Jones became extremely upset, and his mother called 911 because she was worried that Jones would harm himself. When the police arrived they found Jones crying and apologizing.

This evidence authorized the jury to find that Jones committed the offense of rape, which occurs when a person “has carnal knowledge of. . . [a] female forcibly and against her will[.]” OCGA § 16-6-1 (a) (1). See Haynes v. State, 326 Ga. App. 336, 338-339 (1) (756 SE2d 599) (2014) (evidence that defendant restrained child victim’s hands and “forced” his penis inside her, hurting her and making her feel sick, supported conviction for rape); Wynn v. State, 322 Ga. App. 66, 68 (1) (744 SE2d 64) (2013) (evidence that defendant pushed victim’s legs open as she pretended to be asleep, and that she remained motionless during sexual intercourse because she was scared to move, supported conviction for rape). See also Wightman v. State, 289 Ga. App. 225, 228 (1) (656 SE2d 563) (2008) (“only minimal evidence of force is required in order to prove rape of a child”). So the evidence in this case authorized the jury to find that Jones committed the offense of child molestation, which occurs when a person “[djoes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.j” OCGA § 16-6-4 (a) (1). See Howard v. State, 319 Ga. App. 621, 622-623 (737 SE2d 722) (2013) (victim’s testimony that defendant rubbed his hand on her leg, put his hand under her shorts and underwear, and touched her genital area was sufficient to support his conviction for child molestation). Consequently, Jones has not shown that the evidence was insufficient to support his convictions or that the trial court erred in rejecting his arguments for a new trial.

2. Outcry witness testimony.

Jones argues that the trial court erred in allowing four outcry witnesses “to testify in a cumulative and bolstering fashion as to the [sjtate’s alleged [vjictim’s hearsay statements.” But as to two of these witnesses (A. M.’s mother and one of A. M.’s cousins), Jones did not preserve this issue for appellate review because he did not both object to and obtain a distinct ruling from the trial court on the admissibility of the witnesses’ testimony

Standard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal, and standard practice also allows parties to raise on appeal only the same objections that were properly preserved below.

Jeffers v. State, 290 Ga. 311, 314 (4) (a) (721 SE2d 86) (2012) (citation and punctuation omitted). Merely raising the issue in a motion for new trial does not preserve the claim for appellate review. See Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914) (1989). Although Jones states in his appellate brief that he timely objected to these two witnesses’ testimony, the record does not support this assertion. Consequently, Jones failed to preserve for appellate review his objections to the testimony of the two witnesses. See Jeffers, 290 Ga. at 314 (4) (a).

Jones did object at trial to the testimony of the other two outcry witnesses (a church acquaintance and a friend of A. M.). The trial court denied the objection, ruling the testimony admissible as evidence of prior consistent statements by A. M.

At the time of Jones’s trial in 2012, Georgia law

allowed certain prior consistent statements of a witness to be admitted as substantive evidence. ... [A] witness’s prior consistent statement is admissible only where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.

Cowart v. State, 294 Ga. 333, 339 (4) (a) (751 SE2d 399) (2013) (citation and punctuation omitted). As to the first of these requirements, we have explained:

A witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. . . . [T]o be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive.

Cowart, 294 Ga. at 339-340 (4) (a) (citations and punctuation omitted).

During her cross-examination of A. M., Jones’s trial counsel challenged the veracity of A. M.’s trial testimony and questioned her about a meeting between her and the district attorney that had taken place shortly before trial, implying that the meeting might have shaped A. M.’s testimony The trial court held that this line of questioning raised the issue of recent fabrication, thereby permitting the admission of evidence of A. M.’s earlier statements that were consistent with her testimony at trial. Jones makes no argument in his appellate brief for why it was improper for the trial court to admit the evidence under the prior consistent statement exception to the hearsay rule, and we find no abuse of discretion. See Kidd v. State, 292 Ga. 259, 260-261 (2) (736 SE2d 377) (2013).

3. Sustained objections to testimony.

Jones argues that the trial court erred in sustaining the state’s objections to three cross-examination questions posed by his trial counsel. But as detailed below, Georgia’s Rape Shield Statute barred the evidence that Jones’s trial counsel sought to elicit with these questions — evidence relating to the past sexual behavior of A. M.’s sister, K. R.

The trial court sustained objections to the following questions: (1) “But around this time [K. R. was] having sex with boys?” (2) “You had heard rumors about [K. R.] having sex with the boys, hadn’t you?” (3) “Did [A. M.] ever tell you about a situation with her and her sister at school that she was starting to get in trouble for?” With these questions, Jones’s trial counsel sought to show that A. M. and her sister, K. R., had been charging boys money to have sex with K. R.; Jones’s counsel wished to use this evidence to argue that A. M. made a false outcry of rape against Jones as a way to deflect attention from these activities involving K. R. and avoid getting in trouble.

In this case, the state prosecuted Jones for the rape of K. R., among other charges. The Rape Shield Statute in effect in Georgia at the time of trial, former OCGA § 24-2-3, barred evidence that “relate[d] to the past sexual behavior of the complaining witness in a prosecution for rape [or other specified offenses] and [did] not come within an exception in [former] OCGA § 24-2-3.” Green v. State, 291 Ga. 287, 290 (3) (728 SE2d 668) (2012) (citation omitted). Those exceptions permitted the admission of such evidence only when

the court, following [a statutorily-specified] procedure [found] that the past sexual behavior directly involved the participation of the accused and [found] that the evidence expected to be introduced supported] an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.

Former OCGA § 24-2-3 (b). See Turner v. State, 312 Ga. App. 315, 318 (1) (718 SE2d 545) (2011) (former OCGA § 24-2-3 (b) contains only exceptions to Rape Shield Statute’s bar).

The former Rape Shield Statute barred the evidence sought by Jones, because that evidence related to the past sexual behavior of K. R. and did not fall within the statutory exceptions — the past sexual behavior (K. R.’s having sex with boys for money) did not involve the participation of Jones and did not support an inference that J ones reasonably believed that K. R. consented to J ones’s alleged sexual activities with her. Jones cites Olden v. Kentucky, 488 U. S. 227 (190 SCt 480, 102 LE2d 513) (1988), and Villafranco v. State, 252 Ga. 188 (313 SE2d 469) (1984), in support of his arguments that the Rape Shield Statute did not bar the evidence in this case and that, consequently, the trial court’s exclusion of the evidence violated his constitutional rights. But the defendants in those cases, unlike Jones, argued that the victims had consented to sexual activity, and the challenged evidence pertained to the issue of consent. Olden, 488 U. S. at 232; Villafranco, 252 Ga. at 194 (1). In this case, the Rape Shield Statute barred the evidence, and the trial court did not abuse his discretion in sustaining the state’s objections. See Mooney v. State, 266 Ga. App. 587, 592 (4) (597 SE2d 589) (2004).

4. Jury charge.

Jones argues that the trial court erred in refusing to give one of his requested jury charges. It appears from transcripts in the record that Jones filed a written request for the charge, but the appellate record does not contain a copy of the charge at issue (or any other charge requested by either the prosecution or the defense). Nevertheless, in their briefs the state and Jones agree that the requested charge read as follows:

Delay in reporting [alleged/a] crime is one circumstance that you must consider in determining the credibility of the alleged victim. That delay maybe explained, however, with the decision on credibility left to the jury

The trial court declined to give the charge on the ground that it was not a pattern charge and it was “inappropriate for [him] to charge on specific evidence^]”

Although Jones’s trial counsel argued at the charge conference that the trial court should give the charge, she did not object to the jury charge that the trial court eventually gave. Our Supreme Court has explained the limits of our appellate review in this circumstance:

Because an objection voiced at the charge conference does not preserve objections to the charge as subsequently given, the failure to object to the charge as given precludes appellate review unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Despite the lack of objection below, the omission of the jury instruction . . . was raised on motion for new trial and enumerated as error and argued on appeal in this case. Consequently, we will review the failure to [give the requested charge], but we review only for plain error, meaning an error that is obvious, that likely affected the outcome of the proceedings, and that seriously affects the fairness, integrity or public reputation of judicial proceedings.

Merritt v. State, 292 Ga. 327, 330-331 (2) (737 SE2d 673) (2013) (citations and punctuation omitted).

Decided March 8, 2017.

Kenneth W. Sheppard, for appellant.

Robert D. James, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Applying this standard, we find the trial court’s failure to give the requested charge was not plain error. The trial court charged the jury on its duty to evaluate witness credibility, and he informed the jury that it could “consider all the facts and circumstances of the case” in making that evaluation. And the trial court did not prevent the defense from arguing to the jury that delay in reporting a crime was a circumstance that pertained to a victim’s credibility Under these circumstances, we cannot say that the trial court’s refusal to give Jones’s requested charge on one particular circumstance pertaining to credibility was an obvious error that likely affected the outcome of the trial and that seriously affected the fairness, integrity or public reputation of the judicial proceedings. See Thomas v. State, 297 Ga. 750, 754-755 (4) (778 SE2d 168) (2015) (“Failure to give a requested jury charge in the precise language requested does not warrant reversal where the charge given substantially covers the applicable principles of law.”) (citation and punctuation omitted); Damerow v. State, 310 Ga. App. 530, 537 (4) (a) (i) (714 SE2d 82) (2011) (jury’s acquittal of defendant on two of three child molestation offenses “reflects that the jury was able to objectively consider the evidence of the charges, despite the improper bolstering” of the victim’s credibility) (citations omitted).

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.

       The jury acquitted Jones of several other charges: that he raped A. M. again when she was 14 years old and that he committed the crimes of rape, statutory rape, and aggravated child molestation against A. M.’s sister, K. R.

       Georgia’s new Evidence Code, which took effect in 2013, addresses prior consistent statements in OCGA § 24-6-613 (c).

       Georgia’s new Evidence Code contains a Rape Shield Statute at OCGA § 24-4-412.

       Jones’s brief uses the word “alleged” while the state’s brief uses the word “a” in setting forth the requested charge.


text:
    A16A2036.
    AUTO-OWNERS INSURANCE COMPANY v. SMITH et al.
    (798 SE2d 93)
   McFADDEN, Presiding Judge.

This appeal is from a trial court order denying summary judgment to an insurer in its declaratory judgment action. The insurer claims that various defendants were not covered by an insurance policy. As to the named insured, the sole owner of the named insured, and an additional insured named in an endorsement to the policy, there are genuine issues of material fact; so the trial court correctly denied summary judgment. But because the other defendants were not insureds under the policy or endorsement, and those defendants failed to point to specific evidence otherwise creating genuine issues of material fact, the trial court erred in denying summary judgment to the insurer as to them. So we affirm in part and reverse in part.

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. Ade novo standard of review applies to an appeal from a denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280, 281 (682 SE2d 369) (2009) (citations omitted).

So viewed, the evidence shows that CSYG, Inc., operated an Avis car rental lot in downtown Atlanta. CSYG hired Byron Perry to clean cars at the location. On the night of August 23, 2013, after the Avis lot had closed, Perry stole (or, according to his deposition testimony, helped a mysterious and elusive homeless person steal) a Ford Edge sport utility vehicle from the lot. Shortly before midnight, the driver of the vehicle was fleeing from police when the vehicle crashed into a brick wall. Adrienne Smith was sitting on the wall at the time of the collision and was injured. Perry, who was in the vehicle, fled from the scene and later pled guilty to multiple crimes arising from the incident, including theft by taking, failure to maintain a lane, attempting to elude police, reckless driving, and hit and run.

Smith subsequently filed a complaint against Avis Rent A Car System, LLC; Avis Budget Group, Inc.; PV Holding Corp., which owned the vehicle; CSYG and its sole owner, Yonas Gebremichael; Peter Duca, a regional security manager for Avis; and Perry. The complaint alleged that Perry was the driver of the vehicle, set forth various claims of negligence against the defendants, and sought damages for the injuries sustained by Smith in the collision.

Thereafter, Auto-Owners Insurance Company, which had issued a commercial general liability insurance policy to CSYG, filed a declaratory judgment action against Smith and all of the defendants named in her tort suit, claiming that the policy did not cover the causes of action brought by Smith against those defendants. Auto-Owners moved for summary judgment, asserting that the defendants in Smith’s action were not insureds under the policy or, alternatively, that the policy expressly excluded claims arising out of automobile accidents from coverage. The trial court denied the motion, and this appeal followed.

1. Byron Perry.

Auto-Owners contends that the trial court erred in failing to grant it summary judgment as to defendant Perry on the ground that Perry was not insured under the policy at the time of the accident. We agree.

It is undisputed that Perry was not a named insured under the policy, which identified only CSYG as the primary insured. The policy provided that CSYG employees were insured, “but only for acts within the scope of their employment by [CSYG] or while performing duties related to the conduct of [CSYG’s] business[.]” Although Perry was a CSYG employee, he unquestionably was not within the scope of his employment or performing duties related to the conduct of CSYG’s business when, after business hours, he allegedly stole a vehicle from CSYG’s lot and later drove it into a brick wall. Indeed, Perry himself deposed that when he was in the Ford Edge on the night in question he was not on the job, and the incident was “[n]ot in any way” connected with his employment with CSYG. See Hankerson v. Hammett, 285 Ga. App. 610, 613 (1) (647 SE2d 319) (2007) (employee’s operation of employer’s truck for personal trip had no connection whatsoever with his employment).

We note that although Perry admitted in his deposition that he had pled guilty to multiple criminal offenses arising from the vehicle theft and collision, he also claimed in his deposition that a homeless man he knew as N. O. had actually stolen the vehicle; that he and N. O. planned to sell the stolen vehicle; and that N. O. was driving the vehicle, while Perry was a passenger in the vehicle, at the time of the collision. While Perry’s self-serving deposition testimony, which contradicted his guilty pleas, may create a question of fact as to whether he was actually driving the vehicle as alleged in Smith’s complaint, it does not create a genuine issue of material fact that alters the analysis or outcome of Auto-Owners’ motion for summary judgment. Regardless of whether Perry was driving the stolen vehicle or was a passenger in it at the time of the collision, it is still undisputed that he was not in the scope of his employment or performing duties for CSYG’s business. Whether he was the driver or a passenger at that time, his use of the vehicle had no connection whatsoever with his employment. Accordingly, under the plain terms of the policy, he was not an insured entitled to coverage, and the trial court therefore erred in denying summary judgment to Auto-Owners on this ground. See Hicks v. Heard, 297 Ga. App. 689, 691 (1) (678 SE2d 145) (2009).

2. Avis Budget Group, PV Holding Corp., and Peter Duca.

Auto-Owners asserts that the trial court erred in denying summary judgment in its favor as to defendants Avis Budget Group, PV Holding Corp., and Peter Duca because none of them were insureds under the policy or an endorsement to the policy that named additional insured entities. We agree.

Auto-Owners has pointed to the undisputed fact that Avis Budget Group, PV Holding Corp., and Duca were not named insureds under the policy, which, as noted above, named only CSYG as an insured. Likewise, none of those three defendants was named in an endorsement which amended the policy to include Avis Rent A Car and Budget Rent A Car as additional insured entities under the section of the policy entitled “WHO IS AN INSURED.” Moreover, those three defendants have not pointed to any evidence showing that they were otherwise included within the WHO IS AN INSURED section, which identified additional insured parties, such as employees or executive officers. We note that Avis Budget Group has attempted to show that it was an additional insured because Avis Rent A Car was named as an insured under the policy endorsement discussed above, and the policy provided that the members of a limited liability company such as Avis Rent ACar were also insureds. However, Avis Budget Group, while claiming that it was the parent company of Avis Rent A Car, has not pointed to any evidence establishing as a matter of fact that in that corporate structure it was also a member of Avis Rent A Car System, LLC.

When a motion for summary judgment is made and supported by evidence, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”OCGA § 9-11-56(e).Thus,“[t]owithstand[Auto-Owners’] motion for summary judgment, [Avis Budget Group, PV Holding Corp., and Duca] must come forward with specific evidence giving rise to a triable issue on [their being insured under the policy].” Travelers Home and Marine Ins. Co. v. Castellanos, 297 Ga. 174, 177 (1) (773 SE2d 184) (2015) (citation and punctuation omitted). Because they have failed to do so, Auto-Owners is entitled to summary judgment as to Avis Budget Group, PV Holding Corp., and Duca.

3. Avis Rent A Car.

Although Avis Rent A Car was expressly named as an additional insured in the policy endorsement discussed above, Auto-Owners argues that Avis Rent A Car was still not entitled to coverage under the policy Auto-Owners cites language in the endorsement providing that Avis Rent A Car was insured “only with respect to their liability as grantor of a franchise to [CSYG].” Auto-Owners then points to an operating agreement between Avis Rent A Car and CSYG which provided that CSYG was not a franchisee. Thus, Auto-Owners reasons, because that agreement stated that CSYG was not a franchisee and the insurance policy endorsement provided that Avis Rent A Car was insured only with respect to liability as grantor of a franchise, then “Avis Rent A Car cannot be an insured under the terms of the [endorsement.” We disagree.

As an initial matter, Auto-Owners has not pointed to any definitions of the term “grantor of a franchise,” which appears in the insurance policy endorsement between Auto-Owners and CSYG, or the term “franchisee” which appears in the operating agreement between Avis Rent A Car and CSYG. And without citing any authority, Auto-Owners contends that the word “franchisee” is capable of only one commonly understood meaning. However, Auto-Owners has failed to provide any such common meaning for us. Given the lack of pertinent definitions in the two separate contracts and the failure to provide a purportedly common definition for either the word “franchise” or “franchisee,” Auto-Owners has not definitively shown that those similar, but different, terms were intended by the different, parties of those two contracts to mean precisely the same thing.

Moreover, “[a]n insurance policy is governed by the ordinary rules of contract construction, and the cardinal rule of construction is to ascertain the intent of the parties.” Grange Mut. Cas. Co. v. Snipes, 298 Ga. App. 405, 407-408 (2) (680 SE2d 438) (2009) (citations omitted). Here, the clear intent of CSYG and Auto-Owners, as evinced in the plain language of the endorsement, was to include Avis Rent A Car as an additional insured under certain circumstances. However, Auto-Owners’ interpretation would contravene that clear intent by forfeiting any coverage for Avis Rent A Car under any circumstances, which “would violate the rule that an insurance policy is construed liberally to provide coverage and avoid forfeitures.” Id. at 408 (2) (citation and punctuation omitted). See also Hoover v. Maxum Indem. Co., 291 Ga. 402, 407 (3) (730 SE2d 413) (2012) (“Georgia courts do not favor forfeitures in construing insurance contracts.”) (citation omitted). Similarly, Auto-Owners’ interpretation of the insurance policy endorsement would render it meaningless and “it is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless.” ALEA London v. Woodcock, 286 Ga. App. 572, 576 (2) (649 SE2d 740) (2007) (citation and punctuation omitted). Accordingly, Auto-Owners has failed to show that there exist no genuine issues of material fact and that it is entitled to judgment as a matter of law as to Avis Rent A Car being an insured under the policy.

Alternatively, Auto-Owners argues that if Avis Rent A Car was an insured under the policy, then an exclusion from coverage applied because the car in question was rented or loaned to Avis Rent A Car. That exclusion provided, in pertinent part, that “[t]his insurance does not apply to ... ‘[b]odily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any . . . ‘auto’. . . owned or operated by or rented or loaned to any insured.” (Emphasis supplied.) In support of its argument, the only evidence cited by Auto-Owners is deposition testimony by an Avis representative who stated that cars in the local market were owned by PV Holding Corp. and were leased to Avis. This testimony did not explicitly clarify the local market being referred to; did not specify that “Avis” necessarily meant Avis Rent A Car, as opposed to some other Avis entity; and did not expressly state that the specific vehicle in question, the Ford Edge involved in this case, was in fact “loaned or rented” to Avis Rent A Car.

Decided March 8, 2017.

“Where the insurer seeks to invoke an exclusion contained in its policy, it has the burden of proving the facts come within the exclusion.” Interstate Life & Acciden t Ins. Co. v. Wilmont, 123 Ga. App. 337 (1) (180 SE2d 913) (1971) (citations omitted). At most, the evidence relied on by Auto-Owners creates genuine issues of material fact as to whether or not the specific vehicle at issue in this case was loaned or rented to an insured and thus triggered the exclusion. Because there exist genuine issues of material fact, summary judgment was not appropriate on this basis. See OCGA § 9-11-56 (c).

4. CSYG.

Auto-Owners argues that even though CSYG is the named insured covered by the policy, the trial court should have entered summary judgment against CSYG and its sole owner on the ground that the exclusion discussed above was triggered because the Ford Edge at issue in this case was rented to CSYG. In support of this contention, Auto-Owners cites language in the operating agreement between CSYG and Avis Rent A Car indicating that Avis vehicles “may be rented by [CSYG] ” and that Avis Rent A Car will “furnish” vehicles to CSYG. However, this general contractual language does not necessarily prove that the Ford Edge involved in this case was, without question, rented to CSYG. While this contractual language may, at most, create a question of fact as to whether or not that particular vehicle was rented to CSYG, the existence of such a genuine issue of material fact supports the trial court’s denial of summary judgment in favor of Auto-Owners as to CSYG and its sole owner on this basis. See OCGA § 9-11-56 (c).

Judgment affirmed in part and reversed in part.

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

Kendall Law Group, Michael C. Kendall, Maureen E. Murphy, for appellant.

Law Office of Michael Neff, Michael L. Neff, D. Dwayne Adams, T. Shane Peagler; Hall & Lampros, Peter A. Lampros; Lewis Brisbois Bisgaard & Smith, W. Daniel Floyd, P. Michael Freed, for appellee.


author: REESE, Judge.

text:
    A16A1530.
    MASHBURN CONSTRUCTION, L.P. et al. v. CHARTERBANK.
    (798 SE2d 251)
   REESE, Judge.

In this action seeking a deficiency judgment on a note following a foreclosure sale, the trial court granted summary judgment to CharterBank and against Mashburn Construction, L.R, and two guarantors of the note, Ray Mashburn and Philip Denney On appeal, Mashburn Construction and the guarantors (collectively, “Appellants”) contend that the trial court’s evidentiary rulings constituted error and that jury issues existed as to whether CharterBank (“Appel-lee”) was entitled to a deficiency judgment and, if so, the amount to which it was entitled. For the reasons set forth infra, we affirm in part and reverse in part, and remand this case for further proceedings.

Viewed in the light most favorable to Appellants, as the parties opposing summary judgment, the record shows the following facts. In June 2007, Mashburn Construction borrowed $958,690 from McIntosh Commercial Bank (“MCB”). Mashburn and Denney executed unconditional personal guarantees of the note. In addition, the note was secured by real property in Fulton County.

Mashburn Construction defaulted on the note, and Appellee, as MCB’s successor-in-interest, instituted foreclosure proceedings. On September 7, 2010, the property was sold at a foreclosure sale for $725,000. Appellee filed a petition to confirm the sale in the Fulton County Superior Court, pursuant to OCGA § 44-14-161 (a). The Fulton County court conducted a hearing on the petition and confirmed the sale, finding, inter alia, that the sales price was at least equal to the true market value of the property at the time of the sale.

Appellee then filed the instant action, seeking a deficiency judgment against Appellants for the difference between the amount they owed on the note and the proceeds from the foreclosure sale. After Appellants answered the complaint and denied any further liability on the note, Appellee filed a motion for summary judgment. Appellee supported its motion with the affidavit of its manager, James Chandler. Attached to Chandler’s affidavit were several documents, including one (hereinafter, “Exhibit G”) generated from MCB’s computerized account record for the note that showed the payment history for the note since its inception. Also attached to the affidavit was a daily interest calculation on a spreadsheet (“Exhibit H”) that was produced by Appellee and showed the principal and interest due and payable on the note, as well as the variable interest rate that applied each day during the term of the note.

In opposition to the motion for summary judgment, Appellants asserted, among other things, that Appellee had failed to present competent evidence of the amount due on the note because Exhibit H contained errors and constituted inadmissible hearsay In response, Appellee submitted a second affidavit by Chandler in which he admitted that there were incorrect calculations in Exhibit H, explaining that the proceeds of the foreclosure sale should have been applied to interest charges first. According to this second affidavit, Chandler had corrected the “typo” in Exhibit H and had created a revised spreadsheet, which was attached to the affidavit (“Exhibit O”). In addition, Chandler attached to the affidavit a new document (“Exhibit P”) showing the loan transaction history with all interest rate changes since the note’s inception.

After conducting a motion hearing, the trial court granted summary judgment to Appellee, awarding it $581,420 in principal and interest, plus accrued interest, late charges, and attorney fees.

This appeal followed.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment^] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

With these guiding principles in mind, we turn now to Appellants’ specific claims of error.

1. Appellants contend that the trial court erred when it disregarded evidence that, prior to the foreclosure sale, Appellee breached an agreement to accept the proceeds of a “short sale” of the property to a third party and to forgive the balance of the note. They argue that they presented evidence during the summary judgment hearing to show that the agreement provided that, after Appellee accepted the proceeds of the short sale, it would release its mortgage on the property and release Appellants from any further obligations that existed under the note and guarantees, including any potential deficiency Appellants claim that they also showed that Appellee breached the agreement and improperly proceeded with the September 2010 foreclosure sale. Appellants argue that, because they presented evidence of Appellee’s breach during the summary judgment hearing, a jury issue existed as to whether Appellee was estopped from seeking a deficiency judgment for the balance due on the note.

Appellants cannot prevail on this argument, however, because they have failed to include a transcript of the summary judgment hearing in the record on appeal. “Without a transcript, we must assume the trial court had an adequate basis for its findings, as we cannot assume from a nonexistent transcript that the trial court failed to consider any relevant evidence or arguments.” Consequently, this alleged error presents no basis for reversing the trial court’s order.

2. Citing OCGA § 24-8-803 (6), the business records exception to the hearsay rule, Appellants contend that the trial court erred in considering Exhibit O, the calculation of damages attached to Chandler’s second affidavit, because it constituted inadmissible hearsay. Appellants have failed, however, to show by the record that they raised this hearsay objection in the court below. The record contains no motion challenging the admissibility of Chandler’s second affidavit or Exhibit O, and, without a transcript, Appellants are unable to show that they raised the issue during the summary judgment hearing. Moreover, the trial court’s order does not include a ruling on the admissibility of “Exhibit O.”

“There is no more fundamental principle of appellate review than that preventing consideration of evidentiary objections not raised before the trial court and contained in the record on appeal.”

A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed. It cannot be presumed from a silent or nonexistent transcript of a hearing below that a proper objection was interposed^]

Consequently, if a party fails to show that it properly preserved its hearsay objection, the objection shall be deemed waived, and the evidence shall be considered legal and admissible.

In this case, Appellants have failed to show that they raised a hearsay objection to Exhibit O under OCGA § 24-8-803 (6), and that it was overruled by the trial court. Consequently, this issue is deemed waived for the purposes of the instant appeal.

3. Appellants contend that the trial court erred in granting summary judgment to Appellee, arguing that it failed to prove its damages as a matter of law.

Where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty. Thus, in a suit to enforce a promissory note or guaranty, the plaintiff has the burden of proving that the defendant is indebted to him and in a definite and correct amount.

(a) According to Appellants, they presented evidence that conflicted with Appellee’s evidence of the base rate that MCB, the original creditor and Appellee’s predecessor-in-interest, used to calculate the variable interest rate on the note. The note contained the following language:

INTEREST: I agree to pay interest on the outstanding principal balance from 06/27/2007 at the rate of 8.750 % per year until INDEX RATE CHANGES.
Variable Rate: This rate may then change as stated below.
Index Rate: The future rate will be 0.50 % ABOVE the following index rate: Lender’s Prime, the base rate used by Lender to set interest rates at which loans are made to various borrowers. . . .
Frequency and Timing: The rate on this note may change as often as daily A change in the interest rate will take effect the day the index rate changes.

Appellants argue that the affidavit of William H. Gafford, Jr., creates a question of fact as to what is meant by “Lender’s Prime.” Gafford served as MCB’s president and chief executive officer, and was a director from November 2002 until August 2008. In his affidavit, he testified that MCB used the term “Lender’s Prime” to refer to the United States prime interest rate as published by the Wall Street Journal, and that the United States prime interest rate changed to 3.25percent onDecember 16,2008, and had remained at 3.2 5 percent since that time.

Gafford’s testimony, however, simply contradicted the unambiguous definition of “Lender’s Prime” in the note itself: “the base rate used by Lender to set interest rates at which loans are made to various borrowers.” “A promissory note is an unconditional contract to pay, and parol evidence cannot be admitted to alter its terms.” Here, the rate of interest was clearly set out in the note as 0.5 percent above MCB’s base lending rate. And Appellee presented evidence of the base lending rate during the life of the loan, including the affidavit of Nicholas Clark, who was the chief financial officer of MCB from November 2002 until March 26, 2010, before becoming a senior vice president of Appellee. Clark testified that MCB’s Lender’s Prime was the same as the Wall Street Journal prime rate until December 2008, when the executive committee of the bank voted to hold “Lender’s Prime at 4.00 percent while WSJ Prime declined to 3.25 percent.” According to Clark, in February 2009, the executive committee of the bank increased Lender’s Prime to 6 percent. Clark testified that Gafford was not privy to the rates the bank set for Lender’s Prime following his August 2008 departure from the bank.

Clark attached to his affidavit the minutes of a December 16, 2008 executive committee meeting, which reflected the decision to hold the rate at 4 percent; the minutes of a December 30, 2008 executive committee meeting, which reflected a proposal to increase Lender’s Prime from 4 percent to 6 percent; the minutes of a January 6, 2009 executive committee meeting, which reflected the decision to increase Lender’s Prime to 6 percent; and the minutes of a January 13, 2009 executive committee meeting, which reflected that the change in Lender’s Prime became effective on January 12, 2009. Clark also attached a January 14,2009 schedule of interest rates that reflected the Wall Street Journal Prime Lending Rate of 3.25 percent and the Lender’s Prime Rate of 6 percent.

“Although [at the time they entered the note] the future monthly-determined rate could not be known in advance, the parties agreed that it be this particular rate, for which there was an established mechanism for its determination.” “[W]here a written contract is plain and unambiguous, it is the only evidence of what the parties intended and understood by it. In the absence of fraud, accident or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note.”

The promissory note at issue here is not ambiguous, and Gaf-ford’s representations regarding the interest rate are inadmissible to contradict or vary its terms. Consequently, this alleged error lacks merit.

(b) Appellants also argue that there are conflicts and gaps in the evidence regarding the calculation of damages on the note and, therefore, summary judgment was not authorized. We agree.

As an initial matter, the second affidavit submitted by Appellee’s manager, Chandler, asserted that Appellants owed $563,155.11 in principal and interest on the note “[a]s of November 1, 2014,” and referenced Exhibit O as the source of those figures. However, the calculation of damages spreadsheet in Exhibit O ends on October 15, 2011, so it does not support Chandler’s assertion.

[Wjhere records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient. . . . Where an affidavit is based in part on records, the balance owed on the debt cannot be established on summary judgment by means of an affidavit which referred to the records but did not have the records attached.

Even pretermitting whether portions of Chandler’s second affidavit were invalid as to any date after October 15, 2011, the record shows discrepancies in the evidence relied upon by Appellee. For example, Appellee’s records show a substantial inconsistency between figures in Exhibits O and P, which were attached to Chandler’s second affidavit. Appellee’s calculation of damages in Exhibit O shows that, on May 14, 2010, the principal balance on the note was $956,572.11, the accrued interest was $181,916.02, and the payoff balance was $1,138,488.13. In contrast, Exhibit P, the Loan History Card, shows that, on May 14,2010, the principal balance on the note was $948,805, the accrued interest was $60,649.37, and the payoff amount was $1,009,704.37.

Moreover, according to Exhibit O, the principal due on the note on October 15, 2011, was $434,878.14, and the accrued interest was $34,162.09, which should have totaled $469,040.23. Yet, in the column purporting to show the payoff amount for the note on October 15, 2011, Exhibit O gives a total of $468,955.68.

Decided March 9, 2017

Smith Conerly, Charles S. Conerly, David, A. Luzum, for appellants.

Hartley, Rowe & Fowler, Kenneth B. Crawford, for appellee.

“While there may be an explanation for these discrepancies, [Appellee] does not offer one, even though it bears the burden of proving its damages in a definite and certain amount.” Because the discrepancies are material to the amount of unpaid principal (as foreclosure proceeds were applied to interest first), interest, and contractual attorney fees (which are calculated as a percentage of the principal and interest) owed by Appellants, we conclude that material issues of fact exist as to the amount of damages.

Accordingly, we affirm the grant of summary judgment to Appel-lee on Appellants’ liability on the note and guarantees and as to the interest rates to be applied to the outstanding principal, but we reverse the grant of summary judgment to Appellee as to the amount of damages owed on the note and guarantees, and we remand the case for proceedings not inconsistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

Andrews and Ray, JJ., concur.

       See Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

       On appeal, Appellants do not dispute that Appellee is the successor-in-interest to MCB or that Appellee is the proper plaintiff in this action.

       OCGA § 44-14-161 (a) provides:
      When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds ... and at the sale the real estate does not bring the amount of the debt secured by the deed, ... no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

       See OCGA § 44-14-161 (b), (c) (at the hearing, the court shall require evidence to show that the property brought its true market value at the foreclosure sale and shall also pass upon the legality of the foreclosure sale notice, the advertisement, and the regularity of the sale).
      In May 2012, this Court affirmed the Fulton County order in the foreclosure confirmation action.

       Appellants did not file a transcript of the hearing on the motion for summary judgment to be included in the appellate record.

        Benton, 280 Ga. at 470 (citations omitted).

        Tullis Devs. v. 3M Constr., 282 Ga. App. 335, 339 (2) (638 SE2d 787) (2006) (punctuation and footnote omitted).

       See id.

       See Champion Windows of Chattanooga v. Edwards, 326 Ga. App. 232, 242 (2), n. 9 (756 SE2d 314) (2014) (“Issues and objections not raised in the trial court and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal.”) (citation and punctuation omitted).

        Shuford v. Aames Plumbing & Heating, 327 Ga. App. 844, 847 (1) (761 SE2d 395) (2014) (citation and punctuation omitted).

        Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999) (footnotes omitted).

       See OCGA § 24-8-802; see also Shuford, 327 Ga. App. at 846-847 (1) (In a company’s action to recover for services performed, the company failed to object to affidavits supporting the debtors’ defense of fraud by the company and, therefore, the company waived its objection to alleged hearsay under OCGA § 24-8-802.).

        Patrick Malloy Communities v. Community & Southern Bank, 334 Ga. App. 76, 82 (2) (778 SE2d 242) (2015) (citations and punctuation omitted).

        Kothari v. Patel, 262 Ga. App. 168, 175 (4) (585 SE2d 97) (2003) (citation omitted).

        1600 Capital Co. v. Bankers First Fed. Sav. & Loan Assn., 187 Ga. App. 504, 506 (370 SE2d 668) (1988).

        Parker v. Cook, 248 Ga. App. 621, 622 (548 SE2d 387) (2001) (citations and punctuation omitted).

       See id.

        Powers v. Hudson & Keyse, 289 Ga. App. 251, 252 (1) (656 SE2d 578) (2008) (punctuation andfootnotes omitted). See OCGA § 9-11-56 (e) (“Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”).

       See Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 250 (2) (758 SE2d 145) (2014) (“[E]ven where a portion of [a party’s] affidavit is inadmissible, that fact does not invalidate the entire affidavit.”) (citation omitted).

        Patrick Malloy Communities, 334 Ga. App. at 83 (2) (citation omitted).

       See id.; see also Fowler v. Ford Motor Credit Co., 180 Ga. App. 738, 739 (350 SE2d 319) (1986) (In a suit on a lease contract, the creditor submitted a document that purported to show the amount owed by the debtor on the contract. The document, however, contained an obvious calculation error that resulted in an amount greater than the maximum amount the debtor could have possibly owed on the contract. Consequently, the trial court erred in granting summary judgment to the creditor and awarding it an amount that was not supported by competent evidence.).


author: Branch, Judge.

text:
    A16A1606.
    CLINTON v. THE STATE.
    (798 SE2d 101)
   Branch, Judge.

On appeal from his conviction after a bench trial for habitually impaired driving and other crimes, Courtney Clinton argues that the evidence was insufficient as to the habitually impaired driving charge because he had not received sufficient notice of his status as a habitual violator. We agree and reverse.

Where, as here, the facts at a bench trial are not in dispute, “this Court conducts a de novo review of the record in determining whether the trial court committed plain legal error.” Greene County Bd. of Commrs. v. Higdon, 277 Ga. App. 350, 350 (626 SE2d 541) (2006) (citation and punctuation omitted). This record shows that on February 24, 2014, Clinton was driving a vehicle in Richmond County when he was stopped on suspicion of a window tint violation (OCGA § 40-8-73.1). The window tint measured 21 percent light transmission, or 11 percent less than the statutory minimum. In addition to this window tint violation, Clinton was also charged with habitual impaired driving (OCGA § 40-5-58 (c) (2)), driving without registration (OCGA § 40-6-15), and driving without insurance (OCGA § 40-6-10).

At a bench trial, Clinton stipulated guilt as to the window tint, registration and insurance violations. Clinton also stipulated to the facts underlying the habitual impaired driving charge, including his driving under the influence (DUI) on February 18, 2011, March 8, 2012, and September 15, 2012. These facts included that on September 17,2012, Clinton signed an “official notice of revoca tion/suspension” advising him that his license was being revoked or suspended “upon conviction for” offenses including DUI and driving with a suspended license for a period “[to] be determined by [the Department] for the term authorized by law.” The form did not indicate, however, that Clinton’s license was being suspended because he was a habitual violator. The same form ordered Clinton to surrender his license, but Clinton had not brought it to court. On the same day, September 17, 2012, Clinton pled guilty to all three DUI charges. After the presentation of this stipulated evidence, Clinton argued that he was not guilty of the habitual impaired driving charge because he had not received notice of his status as a habitual violator. Although the State showed that the Georgia Department of Driver Services had attempted to notify Clinton of his status as a habitual violator in October 2012, Clinton produced a May 2014 letter from the Department showing that it had not so notified him.

After hearing argument from both sides, the trial court accepted Clinton’s stipulation of guilt as to the first three counts and also found him guilty of being a habitual impaired driver. Because the trial court postponed sentencing in the case, this Court dismissed Clinton’s first direct appeal on the ground that he had not followed the interlocutory appeal procedures of OCGA § 5-6-34 (b). On remand, the trial court entered a sentence of three years on probation.

On this appeal, Clinton argues that the evidence was insufficient as to his conviction as a habitual impaired driver because he was not given actual or legally sufficient notice of his status as a habitual violator. We agree.

The Supreme Court of Georgia has recently repeated the guidelines for examining the meaning of a statute, as follows:

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). Thus “if a statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” Id. at 173 (1) (a) (citation and punctuation omitted).

The statute governing habitual violators of Georgia’s driving laws is OCGA § 40-5-58, which provides in relevant part:

(a) As used in this Code section, “habitual violator” means any person who has been arrested and convicted within the United States three or more times within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained, of [offenses including DUI].
(b) When the records of the department disclose that any person is a habitual violator as defined in subsection (a) of this Code section, the department shall forthwith notify such person that his or her driver’s license has been revoked by operation of law and that it shall be unlawful for such habitual violator to operate a motor vehicle in this state unless otherwise provided in this Code section. Notice shall be given by certified mail or statutory overnight delivery, with return receipt requested; or, in lieu thereof, notice may be given by personal service upon such person.
(c) (1) Except as provided in paragraph (2) of this subsection ..., it shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his or her driver’s license has been revoked as provided in subsection (b) of this Code section, if such person has not thereafter obtained a valid driver’s license. Any person declared to be a habitual violator and whose driver’s license has been revoked under this Code section and who is thereafter convicted of operating a motor vehicle before the department has issued such person a driver’s license or before the expiration of five years from such revocation, whichever occurs first, shall be punished by a fine of not less than $750.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both. Any person declared to be a habitual violator and whose driver’s license has been revoked and who is convicted of operating a motor vehicle after the expiration of five years from such revocation but before the department has issued such person a driver’s license shall be guilty of a misdemeanor.
(2) Any person declared to be a habitual violator as a result of three or more convictions of violations of Code Section 40-6-391[, the DUI statute,] within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained, and who is thereafter convicted of operating a motor vehicle during such period of revocation, prior to the issuance of a probationary license under subsection (e) of this Code section or before the expiration of five years, shall be guilty of the felony of habitual impaired driving and shall be punished by a fine of not less than $1,000.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both.

(Emphasis supplied.)

On their face, the three subsections of OCGA § 40-5-58 respectively (a) define the category of the “habitual violator,” (b) require notice to such a person “that his or her driver’s license has been revoked by operation of law,” and (c) set out the elements and penalties for the offenses of misdemeanor and felony driving by “[a]ny person declared to be a habitual violator.” Specifically, subsection (a) defines a “habitual violator” as “any person who has been arrested and convicted . . . three or more times within a five-year period” of traffic offenses including DUI. And subsection (b) mandates that when the Department’s records “disclose that any person is a habitual violator,” the Department “shall forthwith notify such person” that his or her license has been revoked “by operation of law and that it shall be unlawful for such habitual violator to operate a motor vehicle” in Georgia. (Emphasis supplied.) Thus, as we noted in a case where the Department had provided a driver with notice of his habitual violator status, “the essence of the offense of driving while a habitual violator is driving after being notified that one may not do so.” Munna v. State, 331 Ga. App. 410, 412 (1) (771 SE2d 106) (2015) (punctuation omitted).

As amended in 1992, OCGA § 40-5-58 (c) established the new offense of felony “habitual impaired driving,” with changes surviving into the present version of the statute, which provides that “[a]ny person declared to be a habitual violator” and “who is thereafter convicted of operating a motor vehicle” without permission or before five years have passed is guilty of either (1) the misdemeanor offense of driving as a habitual violator or (2), in the special case of “three or more” DUI convictions, “the felony of habitual impaired driving.” The defined category of the “habitual violator,” as well as the consequences flowing from the Department’s declaration of a person as such, is thus the subject common to all three subsections of the statute. See, e.g., Smith v. State, 248 Ga. 828, 830 (3) (286 SE2d 709) (1982) (“The offense of violating [OCGA § 40-5-58] by driving a motor vehicle after revocation of a license upon being declared a habitual violator is an offense separate and distinct from the offenses which led to the driver’s being declared a habitual violator.”).

The State seeks to avoid the plain terms of OCGA § 40-5-58 (b), which requires the Department to “notify” a habitual violator of his status as such, on the ground that Clinton acknowledged the suspension of his license. This argument ignores the statute’s often-repeated distinction between license revocation, which occurs “by operation of law,” and notice of a person’s status as a “habitual violator,” which notification enables the State to prosecute that person when later found to be driving a vehicle in Georgia. OCGA § 40-5-58 (b), (c). In sum, when a driver qualifies as a “habitual violator” under OCGA § 40-5-58 (a), the State must show that it provided notice to the driver of his status as such before it can obtain a conviction for either the misdemeanor of driving while a habitual violator or the felony of “habitual impaired driving.” OCGA § 40-5-58 (c) (1), (2). Here, the State conceded that it failed to notify Clinton of his status as a “habitual violator” as required by OCGA § 40-5-58 (b). We must therefore reverse Clinton’s conviction for the felony of “habitual impaired driving” as defined in OCGA § 40-5-58 (c) (2).

Decided March 9, 2017.

Rodney A. Quesenberry, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

Judgment reversed.

Ellington, P. J., and Mercier, J., concur.

       OCGA § 40-8-73.1 (b) provides in relevant part:
      [I]t shall be unlawful for any person to operate a motor vehicle in this state: (1) Which has material and glazing applied or affixed to the front windshield, which material and glazing when so applied or affixed reduce light transmission through the windshield; or (2) Which has material and glazing applied or affixed to the rear windshield or the side or door windows, which material and glazing when so applied or affixed reduce light transmission through the windshield or window to less than 32 percent, plus or minus 3 percent, or increase light reflectance to more than 20 percent.

       See Ga. L. 1992, p. 2556, § 1 (S.B. 487).


text:
    A16A1665.
    LA MARA X, INC. v. BADEN.
    (798 SE2d 105)
   Branch, Judge.

La Mara X, Inc., appeals the denial of its motion to open default. For the reasons shown below, we reverse.

“The sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55[] have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.” K-Mart Corp. v. Hackett, 237 Ga. App. 127, 128 (1) (514 SE2d 884) (1999) (citations and punctuation omitted).

The record shows that on August 19, 2015, Karl Douglas Baden allegedly fell at the El Rodeo Mexican Restaurant in Marietta and died days later as a result of his fall. On September 4, 2015, an attorney for Karl sent a letter regarding the incident via overnight delivery to the restaurant at an address of 2719 Canton Road in Marietta, requesting the name and policy number of any applicable liability policies and demanding preservation of possible evidence. Someone signed for the letter at 2727 Canton Road, apparently the correct address for the restaurant, but no one ever responded. On October 22, 2015, Catherine Baden (hereinafter “Baden”), acting as the surviving spouse of her husband, filed suit against “El Rodeo Mexican Restaurant, Inc.,” located at the 2719 address, based on her husband’s alleged fall and death. The complaint named Rafael Jaime as the “owner and/or registered agent” of the corporate entity, and on November 4, 2015, Jaime was served with the summons and complaint, both of which named El Rodeo Mexican Restaurant, Inc., as the defendant.

As it turns out, however, Jaime was in fact the CEO and registered agent of two different Georgia corporations named La Mara X, Inc., and El Rodeo Restaurant #3, Inc. And on December 1, 2015, an attorney for one or both of these entities wrote to Baden’s attorney informing him that he had sued the wrong entity and stating that, “as discussed, the El Rodeo Mexican Restaurant in Marietta, GA has no relationship with El Rodeo Mexican Restaurant, Inc.”; that the restaurant “is owned by La Mara X, Inc. d/b/a El Rodeo Restaurant #3, Inc.” (“La Mara”); and that, therefore “we will not be answering on behalf of El Rodeo Mexican Restaurant, Inc.” The letter invited Baden’s attorney to contact La Mara’s counsel to discuss the matter further. Ultimately, La Mara did not answer.

For 76 days, Baden took no further action until, on January 19, 2016, Baden filed an amendment to the complaint to “correct [a] corporate misnomer” by identifying La Mara as the correct defendant and moved that the court enter default against La Mara for failing to answer the complaint. The court signed an order that day, granting default judgment against La Mara after finding that La Mara had been properly served on November 4, 2015, through Jaime, its registered agent; that La Mara had failed to answer; and that Baden was therefore entitled to a judgment by default, with a hearing on damages to follow at a later time. The style of the order does not show La Mara as the defendant.

One week later, La Mara filed a special appearance and “without submitting itself to the jurisdiction or venue of this Court,” answered the amended complaint, responded to Baden’s motion for default, paid costs, and moved to open default. In its filings, La Mara presented documents from the Secretary of State’s office showing that the original defendant was a separate entity with a different address, a different CEO, and a different registered agent. And Jaime stated under oath in an affidavit that he is the owner of La Mara, which owns the restaurant; that the restaurant is located at 2727 Canton Road in Marietta; and that he has never been employed by or had any affiliation with the original defendant. Jaime also averred that he understood that La Mara had not been properly served and that he had no knowledge of a slip and fall occurring at his restaurant; rather, he had been told that “a customer had fainted or passed out, that an ambulance was called by my employees, and that the customer was transported to the hospital.” Finally, Jaime averred that he was “prepared to assist in the defense of this matter” and that his restaurant’s insurer had retained attorneys. Following a hearing, and in an order now identifying La Mara as the defendant, the trial court denied La Mara’s motion to open default. We granted La Mara’s application for appeal.

1. In its order denying La Mara’s motion to open default, the trial court noted that three questions were posed by the motion: (1) “Was there a misnomer?”; (2) “Was it corrected?”; and (3) “Should the Default Judgment be set aside under OCGA § 9-11-55?” La Mara first challenges the trial court’s determination that the naming of the original defendant was a mere misnomer for which the plaintiff was authorized to correct by amendment without leave of court. We agree with La Mara.

Because the correction of the defendant’s name added a new party defendant, leave of court was required:

OCGA § 9-11-15 (a) allows a party to amend his or her pleadings “as a matter of course and without leave of court at any time before the entry of a pretrial order.” But, as our appellate courts have held on numerous occasions, when a party seeks to amend his complaint to add a new party, OCGA § 9-11-15 (a) must be read in pari materia with OCGA § 9-11-21, which requires a court order to add or drop parties.

Wright v. Safari Club Intl., 322 Ga. App. 486, 493 (5) (745 SE2d 730) (2013) (citations omitted). “Thus, an amendment to a complaint adding a new party without first obtaining leave of the court is without effect.” Id. at 494 (5) (citation and footnote omitted).

For example, in Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452 (428 SE2d 379) (1993), where the plaintiff named Dollar Construction Company (“DCC”) as the sole corporate defendant but personally served the complaint on Muriel Dollar, the registered agent of Dollar Concrete Construction Company (“DCCC”), this Court held that a court order was required to amend the complaint to add DCCC as the real party defendant. Id. at 453. In so ruling, this Court held that where the incorrectly sued entity and the true defendant are actually in existence when the action was filed, the naming of the incorrect entity is no misnomer for which leave of court is not required. Id. Rather, leave of court was required because DCCC had never been properly served:

The Watsons are asking this court to allow service on a non-party [DCCC] to an action and later allow them to amend the complaint to include the non-party in the action without leave of court, claiming that they can do so because service was valid. Such an end-run approach to joining proper parties to a suit flies in the face of even the most liberal application of the Civil Practice Act. Dollar Concrete Construction Company, who would have been the proper party, has never been served in this action and the trial court erred in denying its motion to dismiss.

Id. at 454. See also Nat. Office Partners v. Stanley, 293 Ga. App. 332, 333-335 (667 SE2d 122) (2008) (court order required to correct defendant’s name even though CT Corporation, which was served with original complaint, was the registered agent of the unnamed real defendant; “CT was not the registered agent of the corporation described in the complaint”; “the change in the name of the defendant was not a mere correction of a misnomer”); Smith v. Vencare, Inc., 238 Ga. App. 621, 629 (3) (a) (519 SE2d 735) (1999) (“where there is an actual corporation by the same name as the alleged misnomer, there is no simple correction of the name as a misnomer . . . because the plaintiff has sued the wrong corporate entity”) (citations omitted). Compare Foskey v. Vidalia City School, 258 Ga. App. 298, 303 (c) (574 SE2d 367) (2002) (holding that a trial court order is necessary to substitute the correct defendant who has not been served, for a real but wrong defendant); U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730, 731 (391 SE2d 707) (1990) (amendment allowed without court order where defendant was misidentified in the complaint, the real party was served with the original complaint, and there was no evidence that original defendant was an existing corporation wholly different, from the real defendant).

Accordingly, the trial court erred by concluding that there was a misnomer for which Baden could amend the complaint to add La Mara without leave of court. Baden’s amendment to add La Mara was therefore ineffective.

2. La Mara next contends the trial court erred by denying its motion to open default. OCGA § 9-11-55 provides that default maybe opened on one of three grounds if four conditions are met.

The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case. The four conditions are: (1) a showing made under oath, (2) an offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense.

Wright v. Mann, 271 Ga. App. 832, 832 (611 SE2d 118) (2005) (footnote omitted). “Compliance with the four conditions is a condition precedent and once met the question of whether to open the default on one of the three grounds rests within the sound discretion of the trial court.” Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 547 (629 SE2d 260) (2006) (citation omitted).

In opposing La Mara’s motion to open default, Baden argued that La Mara had failed to show two conditions and failed to establish any of the grounds. Baden argued that La Mara failed to announce ready to proceed with a trial; failed to set up a meritorious defense; failed to provide a reasonable excuse for not filing a timely answer; and failed to show that it was a “proper case” for opening default. Without expressly ruling on the four conditions, the trial court held that La Mara had not shown any grounds for opening default. Accordingly, the trial court denied La Mara’s motion to open default.

(a) The record shows that La Mara met the four conditions. Together with its motion to open default, La Mara raised a meritorious defense. La Mara presented an affidavit of Jaime, made under oath, in which he averred that he had information that no customer had slipped and fallen at the restaurant. Further, La Mara filed an answer in which it asserted numerous defenses to Baden’s claims, including that it acted with reasonable and ordinary care, that it did not cause or contribute to the alleged injuries, that the decedent failed to exercise ordinary care, that the act that allegedly caused the decedent’s death was unforeseeable, that the decedent voluntarily assumed the risk, and that there was no dangerous condition on the premises at the time. See Exxon Corp. v. Thomason, 269 Ga. 761 (1) (504 SE2d 676) (1998) (“A defendant meets this requirement by showing that if relief from default is granted, the outcome of the suit may be different from the result if the default stands.”) (footnote omitted).

In addition, Jaime paid costs, in fact pled instanter, requested a trial by jury in the answer, and averred that he was “prepared to assist in the defense of this matter,” which taken together was a sufficient statement of readiness to proceed with the trial. See Powell v. Eskins, 193 Ga. App. 144, 145 (387 SE2d 389) (1989) (attorney’s appearance demanding a trial by jury and stating that defendant “was ready to plead and proceed with adjudication of the case” satisfied the condition that defendant announce ready to proceed with the trial); cf. Exxon, 269 Ga. at 763 (3) (trial court has broad discretion to allow defendant to conduct discovery even after default has been opened and the defendant has announced ready for trial). Neither of the cases cited by Baden that state that OCGA § 9-11-55 (b) requires an “express announcement” of readiness to proceed to trial actually examines whether certain representations constitute such an announcement. See Cotton v. Lamb, 265 Ga. App. 73, 75 (1) (593 SE2d 19) (2003) (defendant’s pleadings did not contain either a motion to open default or an express announcement that defendant was ready to proceed to trial); Roberson v. Gnann, 235 Ga. App. 112, 116 (4) (508 SE2d 480) (1998) (neither verified answer, accompanying affidavit, or other filing contain an announcement of ready to proceed with trial or a legal excuse for late filing).

(b) As La Mara met the four conditions, we now proceed to the three grounds for opening a default. OCGA § 9-11-55 (b) permits the opening of default upon a showing of “providential cause,” “excusable neglect,” or a “proper case.” “In keeping with the policy of deciding cases on their merits, this provision should be liberally applied.” Exxon, 269 Ga. at 762 (2) (footnotes omitted).

With regard to the grounds for opening default, the trial court made specific findings regarding only excusable neglect: it found that La Mara should have known from the complaint that it was the real party in interest; that La Mara’s attorney’s decision not to file an answer was not excusable neglect but rather a strategic decision; and that the neglect of the attorney was the neglect of the client. As we have already held above, however, La Mara was not properly served, and Baden’s attempt to amend the complaint to add La Mara without leave of court was ineffective. Accordingly, La Mara never has been properly made a party to this action. Moreover, because La Mara was not properly served, it was not under an obligation to answer, Clark v. Dennis, 240 Ga. App. 512, 513 (2) (522 SE2d 737) (1999), and it promptly informed Baden’s counsel of the misidentification of the defendant in the complaint. “For purposes of OCGA § 9-11-55 (b), excusable neglect has been defined as referring to where there is a reasonable excuse for failing to answer.” Patel v. Gupta, 234 Ga. App. 441, 443 (1) (507 SE2d 763) (1993) (citation and punctuation omitted; emphasis in original). “Excusable neglect means a reasonable excuse or justification for failure to answer timely; it is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” COMCAST Corp. v. Warren, 286 Ga. App. 835, 838 (1) (650 SE2d 307) (2007) (citation and punctuation omitted). As is already sufficiently shown above, here, La Mara plainly had a reasonable excuse for failure to answer timely Accordingly the trial court abused its discretion in finding otherwise. The denial of La Mara’s motion to open default is reversed.

Decided March 9, 2017.

Huff Powell & Bailey, Brian K. Mathis, for appellant.

The Sullivan Law Firm, Robert B. Sullivan, Patrick B. Sullivan, for appellee.

Judgment reversed.

Mercier, J., concurs. Ellington, P. J., concurs in judgment only.

       OCGA § 9-11-55 (b) provides:
      At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.

       Entry of default judgment on liability alone does not amount to a final judgment for purposes of OCGA § 9-11-55 (b), and therefore La Mara correctly sought to open default without having to seek to set aside the judgment. Cryomedics, Inc. v. Smith, 180 Ga. App. 336, 337 (349 SE2d 223) (1986).

       Baden quotes Foskey for the proposition that “where there has been actual service on the correct defendant but the defendant has been denominated by the wrong name in the pleadings, even if there exists another by such name, correction by amendment of this misnomer may be done, which does not constitute a substitution of parties.” Foskey, 258 Ga. App. at 300 (a). But the quote is taken from a series of hypothetical factual scenarios used to illustrate the variety of misnomer and substitution cases, and the factual scenario addressed in the quote was not addressed in Foskey, that case therefore is not controlling. Although Foskey cites two Supreme Court decisions as authority for this quotation, each is also distinguishable from the present case as shown in the emphasized portions of the following parentheticals. See Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984) (Supreme Court affirmed trial court’s grant of plaintiff’s motion to substitute the correct corporate party plaintiff tor the incorrectly named individual plaintiff)'. Block v. Voyager Life Ins. Co., 251 Ga. 162, 163 (1) (303 SE2d 742) (1983) (holding that “where the party plain t iff named in a complain t is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer may be corrected by amendment”) (emphasis supplied).