The full text of the decision follows:

Alpha Nursing Servs. Inc. v. Vickery, Case No. A12A0927 (Ga.App. 8/30/12)

Text: Mikell, Charles B., Presiding Judge

Following a bench trial, Alpha Nursing Services, Inc., and Saheed Ashogbon appeal from the judgment entered in favor of Dr. Samuel Vickery on his claims for specific performance of a lease/buy contract for an office building, and for attorney fees.

The evidence was that Saheed Ashogbon operated several businesses involved in the provision of home care and home healthcare services to Medicare recipients. These businesses were Alpha Nursing Services, Alpha Healthcare Systems, Alpha Nursing Training Institute, and Alpha Durable Medical Supply. According to Ashogbon, all of these businesses operated from 777 Cleveland Avenue, Atlanta, Georgia, with the only difference in their addresses being different suite numbers. All of these businesses were incorporated in Georgia and all had the same officers, boards of directors, and shareholders.

In 2008, Ashogbon was looking for office space in Commerce, in Jackson County, because he had filed an application to expand his business into northeast Georgia, including Jackson County. He saw a “for sale” sign in front of the building at 1981 North Elm Street, which had housed Dr. Samuel Vickery’s medical practice for decades until his retirement in October 2007. Ashogbon contacted Dr. Vickery and it is undisputed that, on February 19, 2008, a “Deed to Secure Debt with Power of Sale (Short Form) No. 140″ was prepared by Dr. Vickery and signed by Ashogbon and Dr. Vickery. The body of the document stated:

The following agreement is a rent buy agreement between Samuel A. Vickery, M.D. and Mr. Saheed Ashogbon, President/CEO of Alpha Nursing Services, Inc. for the tract or parcel of improved property [property legal description]. The property is being leased for one year at the rate of $1,000.00 per month for twelve months at which that time the property will be purchased for $150,000. . . . The first month’s rent will be due at the signing of this contract and on the 5th day of each month thereafter. If renter buyer of this property does not pay due rent within fifteen days of due date this contract will be declared null and void and the business will be asked to vacate the property. (Emphasis supplied.)

The signatures of Dr. Vickery and Ashogbon were witnessed by Oduola Adegoke and Michael Awosanya, associates of Ashogbon, and Shirley Martin, a long time employee of Dr. Vickery. Martin heard Ashogbon say that he was going to lease the property for a year and, after that year, buy it. Neither Adegoke nor Awosanya testified. Ashogbon acknowledged that he signed the document and that he read it before he signed it.

Martin last worked in Dr. Vickery’s office the last week of February, 2008. At that time, there were no problems with bugs, rodents, or mold. Mike Vickery, a second cousin of Dr. Vickery, ran a pest control company and had treated the office building monthly during Dr. Vickery’s occupancy of it. He was unaware of any infestation problems on the property. Someone from Alpha Nursing Services contacted Orkin Pest Control seeking treatment of Suite 100 at 1981 North Elm Street in Commerce in July 2008. A service agreement was signed on July 22, 2008, so that service could begin. When Orkin started servicing the building, no notation of any type of infestation was noted. Between July 23, 2008 and January 8, 2009, Orkin serviced the property four times. Orkin terminated the contract because Alpha Nursing failed to pay.

The city of Commerce requires that buildings be inspected when the occupant changes and a city inspector did that before Alpha Nursing Services occupied the building. No insect infestation or mold problems were found.

Ashogbon acknowledged that a flyer was prepared by his companies and distributed from the Atlanta offices, reflecting that Alpha Nursing Services, Inc., and Alpha Healthcare System, Inc., were operating an office at 1981 North Elm St., Commerce, and were hiring certified nursing assistants, registered nurses, and van drivers. The Commerce address was listed on the website of Alpha Nursing and Alpha Healthcare as one of its offices when Alpha Nursing applied for its expansion into Jackson County. Also, the Commerce phone directory contained listings at that address for both Alpha Nursing and Alpha Healthcare Systems.

Because Ashogbon was out of the country and did not appear for trial, Badetito Obafemi, the accountant and Assistant CEO for Alpha Nursing Services, Inc., Alpha Healthcare Systems, Inc., and Alpha Durable Supply, represented Alpha Nursing Services, Inc., at trial. Obafemi acknowledged that, although all corporate minutes had been requested during discovery and that he had seen some minutes, none were produced by Alpha Nursing. He also acknowledged that no one was going to testify concerning any mold or other health hazard presented by the building.

A letter, dated January 29, 2009, and signed by Awosanya on “Alpha Nursing Services, a Division of Alpha Healthcare System, Inc.” letterhead, was sent to Dr. Vickery stating that the 1981 North Elm Street building was being vacated due to mold infestation. A second undated letter, also signed by Awosanya on “Alpha Nursing Services, Inc. & Healthcare Systems” letterhead, was sent to Dr. Vickery seeking a release of lease based on mold, infestation of fleas and rodents, and HVAC problems. Appellants failed to pay the remaining rental payments and did not purchase the property.

On appellate review of a bench trial, the factual findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. In bench trials, the judge sits as trier of fact and the court’s findings are analogous to a jury’s verdict and should not be disturbed if there is any evidence to support them.1

1. Our review has been hindered by appellants’ filing of numerous compound enumerations of error as well as enumerations which are unclear and unsupported by any citation of authority in violation of this Court’s rules.2 We remind counsel that

[o]ur requirements as to the form of appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.3

2. In enumerations 1, 2, and 5, appellants argue that the trial court erred in finding that venue was proper in Jackson County, in failing to transfer the case to Fulton County, and in concluding that “venue is proper in Jackson County in regards to Alpha Nursing Services, Inc. in regards to this lawsuit.” They are addressed together.

In suits found on contracts, venue is proper in the county where the subject contract was made or to be performed if the corporation has an office and transacts business in that county.4

All three of these enumerations are premised on the appellants’ disagreement with the trial court’s factual conclusions that Alpha Nursing Services, Inc., had an office and did business in Jackson County; that Ashogbon failed to observe any corporate formality with regard to Alpha Nursing; and that Ashogbon was the alter ego of Alpha Nursing. These factual findings are not clearly erroneous and these three enumerations are without merit.5

3. The third enumeration is that the “trial court erred in finding that the plaintiff made a mistake in suing Alpha Healthcare instead of Alpha Nursing.”

While Alpha Healthcare was named in the original complaint, the trial court entered an order allowing substitution of Alpha Nursing for Alpha Healthcare following a hearing on the defendants’ motion to dismiss.

There is no written finding by the trial court that plaintiff made a mistake, only colloquy between court and counsel. Neither is there any specific ruling contained in any order of the court to this effect. Therefore, there is nothing presented by this enumeration for our review.6

4. In enumerations 4 and 6, appellants argue that the trial court erred in concluding that Alpha Nursing was a party to the alleged contract and that appellants owe seven months rent.

These are arguments regarding the facts found by the trial court and we cannot say that the trial court’s findings were clearly erroneous.7

5. Appellants argue, in their seventh enumeration, that the trial court erred in ruling that the “alleged contract constituted a contract to buy and a contract to sell when ordinary reading of [it] does not so lend itself. Further the court concluded that the alleged contract is enforceable despite a clear and unambiguous language in the contract to the contrary.”

[T]he construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. The existence or nonexistence of an ambiguity is a question of law for the court. If the court determines that an ambiguity exists, however, a jury question does not automatically arise, but rather the court must first attempt to resolve the ambiguity by applying the rules of construction in OCGA § 13-2-2. 8

Appellants’ argument is centered on the provision of the document which states that “[i]f the renter buyer of this property does not pay due rent within fifteen days of the due date this contract will be declared null and void and the business will be asked to vacate the property.” Having considered this argument, the trial court “implicitly finds that this right to declare the contract void was vested in the Plaintiff-Owner and that the Plaintiff never declared the contract void and thus permissibly waived this term of the contract.”

We find the trial court’s analysis of this provision consistent with the rules of contract construction and find no error.

6. In their eighth and ninth enumerations, appellants argue that the trial court erred in entering a judgment of specific performance where there is an adequate remedy at law and where specific performance “is at best an exercise in futility.” They are addressed together.

Since at least 1873, it has been the law of this state that “in written contracts for land, where they are certain, fair and capable of being performed, equity will decree their performance.”9 We find no error in the trial court’s ruling.

7. Appellants’ tenth enumeration sets out no ruling made by the trial court and contains no authority in support of their position, presenting nothing for our review.10

8. In their eleventh and twelfth enumerations, appellants argue that the trial court erred in awarding attorney fees and costs and in finding plaintiff’s evidence of these fees and costs adequate.

The trial court awarded attorney fees and costs based on its factual finding that Ashogbon never intended to go through with the purchase of the office building and, since he was also found to be the alter ego of Alpha Nursing, liability for the attorney fees and costs is joint. As set out above, there is evidence to support these findings and we find no error.

Also, we find evidence to support the trial court’s compilation of the attorney fees and costs and there was no error in this regard.

9. The thirteenth enumeration is that the trial court erred in not dismissing the case for want of prosecution when Dr. Vickery was not present at trial due to his being in a nursing home.11

No motion to dismiss for want of prosecution or any other objection to the absence of Dr. Vickery was voiced at trial and we will not consider this issue for the first time here.12

10. In their fourteenth and fifteenth enumerations, appellants contend that the trial court abdicated its role as a neutral and impartial arbiter and was prejudiced and biased towards Ashogbon.

No motion to recuse was filed below, nor were any objections made on the record to the trial court’s impartiality. Therefore, any such objections have been waived.13

11. Finally, appellants complain of the trial court’s denial of their renewed motion for judgment on the pleadings.

Appellants’ initial motion for judgment on the pleadings was denied by the trial court’s order of January 20, 2011. The renewed motion, filed July 20, 2011, was denied by the trial court’s order of August 2, 2011. The bench trial was conducted on August 22-23, 2011, and judgment entered on September 13, 2011. Given that appellants did not obtain a certificate of immediate review of the orders entered prior to final judgment, and given that they participated in the introduction of evidence before the fact finder, there is nothing for us to review regarding denial of the renewed motion.

Judgment affirmed. Miller and Ray, JJ., concur.

1(Footnote omitted.) Zhou v. LaGrange Academy, 266 Ga. App. 445, 449 (1) (597 SE2d 522) (2004).

2See Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 706 (1) (618 SE2d 621) (2005).

3(Punctuation and footnote omitted.) Id.

4OCGA § 14-2-510 (b) (2).

5See Mariner Healthcare v. Foster, 280 Ga. App. 406, 411 (4) (634 SE2d 162) (2006).

6(Citations omitted.) Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

This Court and the Court of Appeals are courts of review. 1983 Ga. Const., Art. VI, Sec. V, Par. III; Art. VI, Sec. VI, Par. II. As appellate courts, we are courts for the correction of errors of law made by the trial courts. Mills v. State, 188 Ga. 616, 623 (4 S.E.2d 453) (1939). In appellate practice, an error of law is “a false or mistaken conception or application of the law. Such a mistaken or false conception or application of the law to the facts of a cause as will furnish ground for a review of the proceedings.” Black’s Law Dictionary (5th ed.). An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § 5-6-40.

7Zhou, supra.

8(Citations and punctuation omitted.) Woody’s Steaks, LLC v. Pastoria, 261 Ga. App. 815, 817 (1) (584 SE2d 41) (2003).

9(Citations and punctuation omitted.) Forsyth v. McCauley, 48 Ga. 402, 405 (1873). See also CDM Custom Homes v. Windham, 280 Ga. App. 728, 731-732 (1) (634 SE2d 780) (2006).

10See Felix, supra.

11He was represented at trial by his daughter, a physician, who had Dr. Vickery’s power of attorney for business matters.

12See Hunter v. Hunter, 289 Ga. 9, 10, n. 1 (709 SE2d 263) (2011).

13Id.

Trial Judge: Currie M. Mingledorff, Jackson Superior Court.,

Attorneys: Kunle Ogundele, Atlanta, for appellants. John Brown, Commerce, for appellee.

The Georgia Court of Appeals, in the case of Anderson v. Canup, reiterated the general rule:

In Georgia, an owner or occupier of land is liable to its invitees for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe.

Of course, it must be shown that the owner/occupier of land was negligent.  In this case, the plaintiff Anderson slipped and fell from a sidewalk after she went to Canup’s insurance agency.  However, there was no evidence of why she fell.  Mrs. Anderson was alone at the time, and she could not articulate any reason for the fall.

Because it could not be shown that Canup failed to exercise ordinary care, summary judgment was entered in favor of Canup.

Georgia real estate and litigation lawyer Jim Fletcher was not involved in this particular case, but he does advise landowners and injured persons regarding premises liability claims.  To discuss your case, please contact us.

The full text of the decision follows:

Anderson v. Canup, Case No. A12A1527 (Ga.App. 8/31/12)

Text: Doyle, Sara L., Presiding Judge

Linda Anderson brought suit against Lamar Canup, individually and doing business as ALC Properties, seeking to recover damages for injuries she sustained when she fell while exiting Canup’s business. The trial court granted summary judgment to Canup, and Anderson appeals. We affirm, for the reasons that follow.

To prevail on summary judgment, the moving party must establish

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.1

So viewed, the record shows that on February 13, 2008, Anderson went to Canup’s insurance agency. Anderson parked her vehicle, stepped up onto the sidewalk, stepped up one step onto the concrete landing immediately outside the office, and entered the premises. After she completed her business, Anderson exited the office and stepped onto the landing. As she attempted to step down from the landing to the sidewalk, Anderson stumbled and fell, seriously injuring herself.

Anderson was alone at the time of her fall. At her deposition, Anderson testified that she did not know how she fell:

Q: . . . Do you believe that you could have placed your foot on either the front edge or the side edge of that landing or stoop and that the placement of your foot there resulted in you falling? Do you understand what I’m asking?

A: I do not remember what happened.

Q: Okay. So you’re not sure?

A: I’m not sure. All I know is I fell as I was coming off the stoop. I don’t know if I stepped on the edge or the fact that€”well, the stoop is not that high, but it’s . . . a good step.

Q: Okay.

A: I don’t€”I may have misjudged the height of the step.2 Anderson conceded that numbness in her legs resulting from diabetic neuropathy may have played a part in her fall, and she also testified that approximately two months before her fall, she visited Canup’s office and traversed the sidewalk and landing as she entered and exited the building.

Canup filed a motion for summary judgment on multiple grounds, including that Anderson failed to establish that he breached any duty owed to her and that Anderson’s knowledge of the conditions of the premises was equal to his. The trial court granted Canup’s motion for summary judgment, concluding that Anderson failed to establish causation, and Anderson appeals.

In Georgia,

an owner or occupier of land is liable to its invitees for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe. It is axiomatic that causation is always an essential element in slip or trip and fall cases, and, therefore, where the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven.3

“A mere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture, it is appropriate for the court to grant summary judgment to the defendant.”4

Here, Anderson admitted that she does not know what caused her to fall, and there is no evidence in the record as to the cause of her fall. Accordingly, the trial court did not err by granting summary judgment to Canup.5

Judgment affirmed. Andrews and Boggs, JJ., concur.

1(Citation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). See also OCGA § 9-11-56 (c).

2(Emphasis supplied.)

3(Punctuation omitted). Willingham Loan & Realty Co. v. Washington, 311 Ga. App. 535, 536 (716 SE2d 585) (2011), citing OCGA § 51-3-1.

4(Citation and punctuation omitted.) Pinckney v. Covington Athletic Club & Fitness Center, 288 Ga. App. 891, 893 (655 SE2d 650) (2007).

5See Willingham, 311 Ga. App. at 536 (summary judgment proper because the record contained no evidence of causation); Pickney, 263 Ga. App. at 893 (same); Pennington v. WJL, Inc., 263 Ga. App. 758, 760 (1) (589 SE2d 259) (2003) (same); Shadburn v. Whitlow, 243 Ga. App. 555, 556 (533 SE2d 765) (2000).

Trial Judge: Murphy C. Miller, White Superior Court.,

Attorneys: Andrea Bennett (Bennett & Assocs.) and Michael Bennett, Atlanta, for appellant. Lloyd Hedrick (Hedrick Law LLC), Atlanta, for appellee.

The debtors’ filed an answer, but the Court of Appeals held that it was untimely.  The law governing foreclosures on personalty provides a specific procedure for opening defaults, which limits the time to reopen the default as a matter of right to 7 days instead of the 15 days typically allowed in other cases.

It is important to consult counsel to promptly respond to any lawsuits, including for a writ of possession in a real property foreclosure.

Georgia creditors’ rights and debtors’ rights attorney Jim Fletcher was not involved in this particular case, but he represents parties in cases regarding writs of possession and foreclosure of real and personal property.   To discuss your case, please contact us.

The full text of the decision follows:

Mathis v. River City Bank, Case No. A12A1403 (Ga.App. 8/31/12)

Text: Miller, M. Yvette, Judge

Christopher W. Mathis and Paula K. Mathis (the “Mathises”) filed an untimely answer and counterclaim to a foreclosure on personalty action pursued by River City Bank (the “Bank”). The Bank moved to dismiss the Mathises’ answer and counterclaim, arguing that it was untimely filed under OCGA § 44-14-267. The trial court granted the Bank’s motion to dismiss. The Mathises appeal from that order, contending that the trial court erred in not applying OCGA § 9-11-55 (a), which permits the opening of a default as a matter of right, in this case. For the reasons that follow, we affirm.

This appeal presents a question of law concerning the applicability of OCGA § 9-11-55 (a) to the filing of defenses to an immediate writ of possession as provided by OCGA § 44-14-267. As such, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review. See Deere Park & Assoc. v. C H Furniture Source, LLC, 296 Ga. App. 382 (674 SE2d 635) (2009).

The record shows that in return for a $425,000 loan, the Mathises gave the Bank a security interest in their farm equipment and cattle. When the Mathises defaulted on their loan, the Bank filed a petition of immediate writ of possession. The trial court granted the Bank’s petition and issued an immediate writ of possession. The Mathises were served with the immediate writ of possession on March 31, 2011. They filed their answer and counterclaim on May 13, 2011, which was more than 30 days after service was effectuated. The Bank subsequently moved to dismiss the Mathises’ answer and counterclaim on the grounds that it was untimely filed. The trial court granted the Bank’s motion to dismiss, from which the Mathises appeal.

The Mathises contend that the trial court erred in not applying the provisions of the Civil Practice Act (“CPA”), namely OCGA § 9-11-55 (a), to the special statutory proceeding of immediate writs of possession. The Mathises assert that although their answer was untimely filed, they were entitled to have a default opened as a matter of right since their answer was filed within the 15-day grace period provided for in OCGA § 9-11-55 (a).1 We disagree.

“Generally, the provisions of the Civil Practice Act (CPA) apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict therewith are expressly prescribed by law. OCGA § 9-11-81.” (Punctuation omitted.) Anderson v. Flake, 270 Ga. 141, 141-142 (1) (508 SE2d 650) (1998). To determine whether OCGA § 9-11-55 (a) applies to immediate writs of possession, we must first look to the literal meaning of the statutes governing such writs. See Clayton County Bd. of Tax Assessors v. City of Atlanta, 299 Ga. App. 233, 234 (682 SE2d 328) (2009). “If the language is plain and does not lead to any absurd or impractical consequences, the [C]ourt simply construes it according to its terms and conducts no further inquiry.” (Footnote omitted.) Id.

Applying these principles, we examine the relevant statutes governing immediate writs of possession. OCGA § 44-14-267 pertinently provides that

no later than 30 days after service has been provided for under Code Section 44-14-265, the defendant may appear and file any legal or equitable defense or counterclaim to the petitioner’s claim for writ of immediate possession.

(Punctuation omitted; emphasis supplied.)

Upon the failure of the defendant to appear and answer within the time provided by Code Section 44-14-267, . . . a default judgment shall be entered against the defendant for the full amount of the petitioner’s claim.

(Emphasis supplied.) OCGA § 44-14-269. There is nothing that suggests that the legislature intended to use the word “shall” in OCGA § 44-14-269 to denote a permissive rather than a mandatory meaning. See Ring v. Williams, 192 Ga. App. 329, 330 (2) (384 SE2d 914) (1989) (noting that the term ” ‘[s]hall’ ordinarily denotes command and not permission”) (citation and punctuation omitted); State v. Brantley, 147 Ga. App. 569, 570 (249 SE2d 365) (1978) (“The word ‘shall’ is in its ordinary signification a word of command.”) (citation omitted).

Relying on Ford v. State, 271 Ga. 162 (516 SE2d 778) (1999), the Mathises argue that they were entitled to a open a default as a matter of right under OCGA § 9-11-55 (a). They assert that nothing in the statutory language concerning foreclosures on personalty precludes parties from seeking relief from default judgments. In Ford, the Supreme Court of Georgia considered whether OCGA § 9-11-55 (a) applied to the special statutory proceeding of forfeiture actions under OCGA § 16-13-49 (o) (4), which requires the trial court to order the disposition of seized property if no answer has been filed within the statutory 30-day time period. Id. at 162. The Supreme Court held that because OCGA § 16-13-49 (o) (4) was silent concerning relief from judgments entered after default, the statutory language did not expressly describe a procedure that was contrary to the default provisions of OCGA § 9-11-55, and therefore the defendants were entitled to open their default under OCGA § 9-11-55. Id. at 163.

Unlike the forfeiture actions at issue in Ford, however, the provisions concerning foreclosures on personalty do expressly conflict with the provisions of OCGA § 9-11-55 (a). Notably, the applicable statutes governing foreclosures on personalty provide a specific procedure for opening defaults. In this regard, OCGA § 44-14-233 (a) provides that a defendant who fails to timely answer a writ of possession “may reopen the default as a matter of right by making an answer within seven days after the date of the default notwithstanding the provisions of Code Section 9-11-55.” (Punctuation omitted.) OCGA § 44-14-233 (a). Consequently, the plain language of OCGA § 44-14-233 (a) expressly states that OCGA § 9-11-55 does not apply to foreclosures on personalty. Since the Mathises failed to open default as a matter of right within seven days under OCGA § 44-14-233 (a), the case remained in default. Accordingly, the trial court’s decision granting the motion to dismiss was proper.

Judgment affirmed. Mikell, P.J., and Ray, J., concur.

* Footnotes Begin *

1OCGA § 9-11-55 (a) states in pertinent part:

If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers[.]

* Footnotes End *

Trial Judge: S. Lark Ingram, Cobb Superior Court.,

Attorneys: W. Wright Gammon Jr. (Gammon, Anderson & McFall), Cedartown, for appellants. Thomas Richardson (Brinson, Askew, Berry, Seigler, Richardson & Davis), Rome, for appellee.

This point was made clear through the recent decision by the Supreme Court of Georgia in the case of Karlen v. Reliance Equities LLC, Case No. S12A1056 (Ga. 9/10/2012).

Reliance Equities, LLC acquired title to a Property in an August 2009 tax sale.  The redemption period then expired, and Reliance filed a quiet title action to establish that it had clear title.  The quiet title action was opposed by Nancy Karlen, who had purchased the 2001-2003 tax liens on the Property.

The Georgia Supreme Court held:

[W]ith respect to Karlen’s 2001-2003 tax liens, where, as here, the tax sale purchaser gives valid notice under the barment statutes and the competing tax lienholder allows the redemption period to mature and pass without taking any action, [her] lien is divested from the property and no longer encumbers the tax sale purchaser’s title interest. [] Accordingly, the trial court did not err in adopting the special master’s report and concluding that fee simple title had vested in Reliance.

Georgia real estate litigation attorney Jim Fletcher was not involved in this particular case, but he regularly represents parties in cases involving tax liens, tax sales, and redemption periods.  To discuss your case, contact us.

The full text of the decision follows:

Karlen v. Reliance Equities LLC, Case No. S12A1056 (Ga. 9/10/2012).

Text: Melton, Harold D., Justice

In January 2011, Reliance Equities, LLC (“Reliance”) acquired title to an Atlanta property (the “Property”) pursuant to an August 2009 tax sale and a subsequent foreclosure of all rights of redemption. See OCGA §§ 48-4-40 and 48-4-45. Nancy Karlen claimed to have had an interest in the Property based on 2001-2003 tax liens on the Property that she had purchased in 2004. In February 2011, Reliance filed a quiet title action in the Superior Court of Fulton County to establish that it was the fee simple owner of the Property free and clear of all adverse claims. OCGA § 23-3-40. Reliance requested that the matter be submitted to a special master, and the Superior Court granted the request. OCGA § 23-3-43. Following a May 2011 hearing which was not transcribed, and after Karlen acknowledged that she had received proper service of the quiet title action, the special master allowed Karlen additional time to file an amended answer and extended the time for Karlen to assert her right to redeem the Property through September 27, 2011. Karlen neither amended her answer nor made a tender of the statutory redemption amount within the required time period, and following a November 15, 2011 hearing which also was not transcribed, the special master found that any potential rights held by Karlen had been divested. See OCGA § 48-4-45 (a) (1) (“After 12 months from the date of a tax sale, the purchaser at the sale or his heirs, successors, or assigns may terminate, foreclose, divest, and forever bar the right to redeem the property from the sale by causing a notice or notices of the foreclosure, as provided for in this article . . . [t]o be served upon all of the . . . persons [referenced in this statute] who reside in the county in which the property is located”). The special master also ruled that Karlen was prohibited from challenging the validity of the tax sale due to her failure to tender the statutory redemption amount. See OCGA § 48-4-47 (a) (after notice of foreclosure of right of redemption, title conveyed by tax deed will not be invalidated unless plaintiff legally tenders the full amount of the property redemption price). The trial court adopted the special master’s findings and entered a final order and decree vesting title in Reliance. Karlen appeals pro se from the trial court’s order, and, for the reasons that follow, we affirm.

1. Karlen contends that the trial court erred in concluding that she held no interest in the Property based on adverse possession or her 2001-2003 tax liens. However, as an initial matter, this Court cannot evaluate Karlen’s adverse possession claim without a transcript of the hearings before the special master. Indeed, because “no transcript was made of the proceeding before the special master in which the facts of the case were established, the special master’s findings on which the trial court’s judgment was based cannot be reviewed.” (Citation omitted.) Johnson v. Red Hill Ass’n., 278 Ga. 334, 336 (3) (602 SE2d 572) (2004). Furthermore, with respect to Karlen’s 2001-2003 tax liens, where, as here,

the tax sale purchaser gives valid notice under the barment statutes and the competing tax lienholder allows the redemption period to mature and pass without taking any action, [her] lien is divested from the property and no longer encumbers the tax sale purchaser’s title interest.

(Citation omitted.) DRST Holdings, Ltd. v. Agio Corp., 282 Ga. 903, 906 (655 SE2d 586) (2008). Accordingly, the trial court did not err in adopting the special master’s report and concluding that fee simple title had vested in Reliance.

2. To the extent that Karlen argues that she was improperly denied her right to a jury trial, the record reveals that Karlen never made this argument below, nor was there any ruling on such an argument below. Accordingly, the issue has been waived on appeal. Tharp v. Harpagon Co., 278 Ga. 654 (3) (604 SE2d 156) (2004). In any event, even if the issue had been properly preserved, “because [Reliance's] action was brought ‘to remove clouds on [its] title’ pursuant to the conventional quia timet statute, OCGA § 23-3-40, [Karlen] had no right to a jury trial.” (Citation and punctuation omitted.) Human v. Harpagon Co., LLC, 281 Ga. 372 (637 SE2d 684) (2006).1

Judgment affirmed. All the Justices concur.

1We note that Reliance’s motion for a frivolous appeal penalty is hereby denied.

Trial Judge: Craig L. Schwall, Fulton Superior Court.,

Attorneys: Nancy A. Karlen, Atlanta, proceeded pro se. Adam C. Caskey and John C. Clark (Clark Caskey LLC), Atlanta, for appellees. Other party representation: William A. Castings Jr. (City of Atlanta Law Dep’t), Frances C. Mulderig, Assistant Attorney General, Richard B. North Jr. (Nelson Mullins Riley & Scarborough LLP), Atlanta, and Barry L. Zimmerman, Norcross.,

In affirming a judgment against a debtor on a credit card debt, the Georgia Court of Appeals in the 2012 case of Grot v. Capital One Bank (USA) NA, has answered that question with an emphatic “NO”.  Therefore you need a lawyer.

The Court of Appeals held that, although the debtor asked for a hearing on the motion for summary judgment in his brief, because he did not file a document with the title “Request for Oral Hearing” as required by the Uniform Rules of Superior Court, that he did not properly request the hearing, although he was pro se.  Similarly, though the defendant did properly invoke his right to arbitration, he then lost that right by failing to timely initiate the arbitration proceeding.

The Court of Appeals was clear in stating:

While it is true that pro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers, it is not the trial court’s responsibility to make out a pro se party’s case, or to rewrite an otherwise deficient pleading in order to sustain an action. … [The Defendant's] status as a pro se litigant does not relieve him of the obligation to comply with the substantive and procedural requirements of the law, including the court rules.

This case is a reminder of the need to retain a competent and experienced lawyer who can assist you.  It is not enough to be ‘right’, if your position gets lost in procedural technicalities.

Georgia creditors’ rights and debtors’ rights attorney Jim Fletcher was not involved in this particular case, but he regularly represents parties in cases involving unpaid credit cards, loans, and other debts.  To discuss your case, contact us.

The full text of the decision follows:

Grot v. Capital One Bank (USA) NA, Case No. A12A1626 (Ga.App. 9/19/2012)

Text: Miller, M. Yvette, Judge

Capital One Bank (USA) Bank, N. A. (“the Bank”) filed suit against John B. Grot to recover an unpaid debt on an open account. Grot, appearing pro se, filed a “Motion to Dismiss and Compel Arbitration.” The trial court denied the motion to dismiss, but entered an order staying the suit and granting Grot’s unopposed motion to compel arbitration. The stay order, however, was subsequently vacated when arbitration was not timely pursued. The trial court overruled Grot’s objections to the stay order and did not grant Grot’s subsequently filed motion for reconsideration on the matter. The Bank filed a motion for summary judgment, which the trial court granted. Grot appeals, contending that the trial court erred (1) in denying his “Motion to Dismiss and Compel Arbitration;” (2) in entering the Bank’s proposed stay order; (3) in failing to grant his motion for reconsideration of the stay orders; (4) in failing to conduct a scheduling hearing; (5) in failing to schedule oral arguments on the motion for summary judgment; and (6) in granting the motion for summary judgment. For the reasons that follow, we affirm.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We review the trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.

(Footnote omitted.) Melman v. FIA Card Svcs., N.A., 312 Ga. App. 270 (718 SE2d 107) (2011).

The record evidence in this case shows that the Bank filed the instant collection action against Grot, alleging that Grot was liable for the repayment of a debt in the amount of $8,728.67 in principal, $3,753.01 in accrued interest, and $257.50 in court costs. As part of the suit, the Bank also provided notice under OCGA § 13-1-11 (a) (3) that it intended to enforce the provisions of the parties’ “Customer Agreement” (the “cardholder agreement”) providing for all collection costs, including attorney fees, and that Grot would be liable for $1,273.17 in attorney fees unless payment in full was tendered within ten days from Grot’s receipt of the complaint and notice.

Grot filed an answer generally denying his liability and the amount of the debt. Grot also filed a motion to dismiss the case and to compel arbitration, electing to enforce the arbitration provisions of the cardholder agreement. The Bank opposed dismissal of the case, but stated that it had no objection to a stay so that Grot could initiate arbitration proceedings as authorized by the cardholder agreement. The Bank presented a proposed order granting a stay of the case, further mandating that Grot would have 30 days to file an arbitration action, and providing that the case would be reinstated if Grot failed to comply with the time limitation for pursuing arbitration. On September 28, 2011, the trial court denied Grot’s motion to dismiss, but entered the Bank’s proposed order staying the case for arbitration. On December 1, 2011, after arbitration was not pursued within the mandated 30-day period, the trial court vacated the stay order and reinstated the case.

The Bank thereafter filed a motion for summary judgment, asserting that the undisputed evidence established Grot’s liability for the liquidated amount of the debt. To support its motion, the Bank submitted the affidavit of its authorized agent, who averred that she had personal knowledge of the Bank’s manner and method of maintaining its accounts receivable and business records; the Bank’s records were kept in the ordinary course of business and record entries were made at the time of the transaction; the records showed that Grot applied for and was issued a credit card account by the Bank; the Bank issued the cardholder agreement, which delineated the terms and conditions of the account; Grot proceeded to make charges on the account and was provided with monthly account billing statements setting forth the account activity and requesting payment; and that Grot defaulted by failing to make payments, which resulted in an unpaid principle balance owed of $8,728.67, interest accruing at the applicable statement rate of 19.08% in the amount of $3,753.01, and reasonable attorney fees of $1,273.17. Copies of the cardholder agreement and the monthly account billing statements were included as exhibits to the affidavit. In addition, the Bank’s motion attached an offer agreement executed by Grot as the “Authorizing Signatory” on November 10, 2001, reflecting that he was the President of International Consultants of GA (“the Company”). Above the signature line for acceptance of the offer agreement was a provision stating in pertinent part, “I have read the Important Disclosures and Terms of Offer on the back of the letters. . . and I agree on behalf of the Company and myself that the Company and I will be bound as specified therein.”

In response to the Bank’s motion, Grot generally denied the claims, contending that the cardholder agreement was “not a factual document pertaining to th[e] [c]ase,” that he was not personally liable for the debt, and that the amount due was in dispute. Grot also filed a motion for reconsideration of the stay orders, contending that he was never served with the signed orders. Grot filed a “Request for a Scheduling Hearing,” which asserted that “there are a significant number of issues that need to be reviewed and/or heard by the Court in oral arguments.”

The trial court entered an order overruling Grot’s objection to the stay orders. The trial court granted the Bank’s motion for summary judgment. Grot filed the instant appeal to challenge the trial court’s decisions.

1. Grot contends that the trial court erred in denying his “Motion to Dismiss and Compel Arbitration.” We discern no error.

Contrary to Grot’s contention, the trial court granted his motion for arbitration and granted a stay of the action to allow arbitration proceedings to be initiated. The record establishes that the Bank did not oppose Grot’s motion for arbitration, and pointed out that the parties’ cardholder agreement contained an arbitration clause that gave either party the option to elect arbitration as a means to resolve the dispute. The arbitration clause pertinently stated that “[Grot or the Company] or [the Bank] may elect arbitration . . . with respect to any [c]laim,even if the [c]laim is part of a lawsuit brought in court. [Grot or the Company] or [the Bank] may make a motion or request in court to compel arbitration of any [c]laim brought as part of any lawsuit.” (Emphasis supplied.) The emphasized language of the arbitration clause reflects that arbitration was optional rather than mandatory, and the filing of a lawsuit was authorized notwithstanding the fact that the claim was arbitrable. The arbitration clause further provided that it was “made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (“FAA”).” Section 3 of the FAA provides in part that

[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement[.]

9 U.S.C. § 3. In accordance with the procedure set forth under the FAA, the trial court’s decision to stay the pending suit to allow the parties the opportunity to proceed to arbitration based upon the parties’ agreement was proper. Cf.GF/Legacy Dallas, Inc. v. Juneau Constr. Co., LLC, 282 Ga. App. 14, 16-17 (637 SE2d 511) (2006) (ruling that the trial court was required to stay the action when the claim was referable to arbitration under the parties’ agreement);H.R.H. Prince &c. v. Batson-Cook Co., 161 Ga. App. 219, 222 (3) (b) (291 SE2d 249) (1982) (ruling that “[s]ince the trial court correctly ordered arbitration, the correct procedure is to stay judicial proceedings in the . . . action and proceed to arbitration.”). It thus follows that the trial court did not err in granting a stay, rather than a dismissal, while affording Grot an opportunity to pursue arbitration.

2. Grot asserts that the trial court erred in entering the Bank’s proposed stay order without affording him “the normal 30 day period” to respond to the proposed order and causing him to be responsible for the filing fees associated with the arbitration. Again, no basis for reversal has been shown.

The record shows that on September 28, 2011, the Bank filed its response consenting to Grot’s motion for arbitration, along with a proposed order staying the action for arbitration for the trial court’s consideration. On that same date, the trial court entered the Bank’s proposed order. Several days later, on October 3, 2011, Grot filed an objection to the Bank’s proposed order. Grot’s objection did not contest the proposed order’s provisions for arbitration; rather, Grot argued that the lawsuit was required to be dismissed. Thereafter, the trial court overruled Grot’s objection to the order.

As an initial matter, Grot has cited no legal support for his contention that the trial court should have afforded 30 days for his response to the proposed order. But even if Grot did not receive sufficient notice of the proposed order prior to its entry, the alleged error was harmless.

Even when a trial court adopts a proposed order verbatim, the findings of fact therein are those of the court and may be reversed only if they are clearly erroneous. Anderson v. City of Bessemer City, 470 U. S. 564, 572 (II) [(105 SC 1504, 84 LE2d 518)] (1985)[.] . . . Orders prepared ex parte do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.

(Citations and punctuation omitted.) Fuller v. Fuller, 279 Ga. 805, 806 (1) (621 SE2d 419) (2005). Here, Grot requested the opportunity to arbitrate the dispute, the Bank did not oppose his request, and the trial court entered the proposed order granting him the relief that he had requested. Notably, the parties did not raise any question as to which party would be responsible for paying the filing fee associated with initiating the arbitration proceedings.1 Nor did the trial court’s order address the issue. As such, Grot’s arguments have failed to show that the proposed order was clearly erroneous or resulted from a fundamentally unfair process.

3. Grot further argues that the trial court erred in failing to grant his motion for reconsideration of the stay orders. He asserts that the orders should have been vacated since he was not served with copies of the orders upon their execution and entry by the trial court.2

The Bank argues that it served its pleadings and proposed orders upon Grot, and that it was the trial court’s duty to notify the parties of its decision after the orders were entered pursuant to OCGA § 15-6-21 (c).3 Notwithstanding any question regarding who bore the duty to ensure service of the trial court’s orders upon their entry, Grot has failed to show that the alleged error was harmful in this case. The initial stay order favorably granted Grot’s request for arbitration. Although the subsequent order vacated the stay due to the failure to timely initiate the arbitration proceedings, Grot did not request that the order be vacated to allow him additional time to pursue arbitration.4 Rather, Grot’s only challenge to the stay orders was based upon his desire that the lawsuit be dismissed instead of stayed. As explained in Divisions 1 and 2 herein, the basis for Grot’s challenge to the stay orders was meritless. Moreover, since Grot was afforded the opportunity to challenge the merits of the stay orders during the trial court’s proceedings and in this appeal, and his challenges present no basis for reversal, no harm has been shown from the alleged error. Cf. Glennco, Inc. v. Silver Shoes, Inc., 164 Ga. App. 30, 31-32 (295 SE2d 357) (1982) (concluding that the appellant failed to present any grounds for reversal and the trial court properly exercised its discretion in refusing to set aside a judgment when the party claimed that he had no notice of the court’s published calender); see generally, Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.”).

4. Grot next argues that the trial court erred in failing to conduct a “scheduling hearing” or conference pursuant to his request. Again, no error has been shown.

Grot has not pointed to any legal authority that required the trial court to conduct a “scheduling hearing” or conference in this civil action. We note that “[i]t is error to refuse to grant a pre-trial hearing and order pursuant to [OCGA § 9-11-16 (a)] where a timely motion to this effect has been entered.” (Citation omitted.) Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 761-762 (11) (242 SE2d 483) (1978). Significantly, however, Grot’s request for a “scheduling hearing” does not appear to be a request for a pretrial conference leading toward the preparation of a pretrial order under OCGA § 9-11-16. Grot did not request the entry of a pretrial order; rather, he “request[ed] that the [trial] [c]ourt set a date for a Scheduling Conference with both the [p]laintiff and the [d]efendant and their respective attorneys” and reflected that “there [were] a significant number of issues that need[ed] to be reviewed and/or heard by the [trial] [c]ourt in oral arguments.” Since Grot has failed to show that a “scheduling hearing” or conference was mandated, his claim presents no basis for reversal. Cf. Velasco v. Chambless, 295 Ga. App. 376, 377 (1) (671 SE2d 870) (2008) (concluding that the trial court’s scheduling order was not intended as a pretrial order governed by OCGA § 9-11-16 (b)).

This Court recognizes the difficulty that the trial courts face in attempting to decipher ambiguous pro se pleadings. “While it is true that pro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers, it is not the trial court’s responsibility to make out a pro se party’s case, or to rewrite an otherwise deficient pleading in order to sustain an action.” (Citations, punctuation, and footnotes omitted.) Campbell v. McLarnon, 265 Ga. App. 87, 90 (2) (593 SE2d 21) (2003). The trial court did not err by failing to read Grot’s request for a “scheduling hearing” as a request for a pretrial conference and pretrial order.

5. Grot further contends that the trial court erred in failing to schedule oral arguments on the motion for summary judgment.

“[O]ral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled ‘Request for Oral Hearing’[.]” (Punctuation omitted.) Uniform Superior Court Rule 6.3. “We have held before that the failure to hold a hearing on a motion for summary judgment is not error if the party requesting a hearing fails to comply with Uniform Superior Court Rule 6.3, which requires that any such request be made by a separate and distinct pleading.” (Citation omitted.)Windham & Windham, Inc. v. Suntrust Bank, 313 Ga. App. 841, 844 (2) (723 SE2d 70) (2012). Here, Grot did not file a separate and distinct pleading to request an oral hearing. Rather, his request was buried in his response to the Bank’s motion for summary judgment.5 Grot’s status as a pro se litigant does not relieve him of the obligation to comply with the substantive and procedural requirements of the law, including the court rules. See Woods v. Hall, 315 Ga. App. 93, 95 (726 SE2d 596) (2012); see also Campbell, supra, 265 Ga. App. at 90 (2) (a trial court is not required to rewrite an otherwise deficient pleading in order to sustain an action). Since Grot failed to comply with the requirements of the court rule, the trial court did not err when it failed to conduct oral arguments on the motion for summary judgment. SeeWindham & Windham, Inc., supra, 313 Ga. App. at 844 (2).6

6. Lastly, Grot contends that the trial court erred in granting the Bank’s motion for summary judgment. Contrary to Grot’s contention, no error has been shown.

Summary judgment is proper when the pleadings and evidence show that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c);Melman, supra, 312 Ga. App. at 270. “Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court.” (Punctuation and footnote omitted.)Elwell v. Keefe, 312 Ga. App. 393, 394-395 (718 SE2d 587) (2011).

In support of its debt collection claim, the Bank presented the affidavit of its agent, whose averments, as fully set forth above, laid a proper foundation for admission of the Bank’s business records and account entries. See Melman, supra, 312 Ga. App. at 271-272 (1) (a). The Bank’s motion and affidavit also attached copies of the cardholder agreement, account billing statements, and the offer agreement executed by Grot as the “Authorizing Signatory.” The affidavit and the attached documents reflected that the charges and fees incurred on the account amounted to $8,728.67, with interest accruing at the applicable statement rate of 19.08% in the amount of $3,753.01. The cardholder agreement also provided for the Bank’s recovery of all collection costs, including attorney fees. The Bank had provided the requisite notice for the collection of $1,273.17 in attorney fees under OCGA § 13-1-11 (a) (2), (3). See Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511, 513-514 (4) (398 SE2d 749) (1990); Gen. Elec. Credit Corp. of Ga. v. Brooks, 242 Ga. 109, 119 (249 SE2d 596) (1978). The above evidence established the existence of the debt.

Significantly, although the Bank’s evidence clearly established that the debt was owed, Grot argued that the evidence failed to establish that he was personally liable as the debtor. In denying that he was personally liable for payment of the account, Grot pointed to evidence that the account was in the name of the Company, International Consultants of GA.7

Generally, a corporation’s officers and the corporation are entirely separate and distinct entities. See Elwell, supra, 312 Ga. App. at 395. “Contracts may be signed by one acting in a representative capacity, or a representative may make himself liable for the debt of the corporation; this Court examines the language of the contract to determine in what capacity the representative is bound.” (Punctuation and footnotes omitted.) Id. The offer agreement that Grot executed referenced the Company, and reflected that he was the President of the Company. The offer agreement further affirmed as follows:

“I have read the Important Disclosures and Terms of Offer on the back of the letters. . . and I agree on behalf of the Company and myself that the Company and I will be bound as specified therein.”8

Although the offer agreement referred to Grot using the terms of “I” and “myself,” it is unclear whether Grot was being referred to in his corporate representative capacity or in his personal capacity. Neither the title nor the body of the offer agreement clearly express whether Grot was executing a personal guaranty of the debt, or whether he was executing the agreement in his representative capacity or in his personal capacity.

Nevertheless, the cardholder agreement stated as follows: “In this Agreement, the words ‘you,’ ‘your,’ and ‘yours’ refer to each person who signed the application for the account . . . and to anyone else who is authorized to use the account in any way. Except as specifically stated herein, each of you is individually and jointly obligated under this Agreement.” (Emphasis supplied.) The cardholder agreement further stated that “You promise to pay . . . and are liable for all amounts due resulting from the authorized use of your card or account, including any finance charges or other charges due under the terms of this Agreement.” To the extent that Grot signed the offer agreement, whether in his personal or corporate capacity, he agreed to be individually and jointly liable for the debt under the cardholder agreement.9 See Upshaw, supra, 197 Ga. App. at 513 (3) (“Even though one is acting in the capacity of agent and for the sole benefit of his principal, he may nevertheless by express undertaking bind himself personally.”) (citations and punctuation omitted.) Since the language employed in the cardholder agreement reflects that Grot agreed to be individually and joint liable for the debt, the trial court did not err in granting summary judgment in favor of the Bank. Id.

Judgment affirmed. Ray and Branch, JJ., concur.

1The cardholder agreement provided that “[t]he party initiating arbitration [would] pay the initial filing fee,” but that the party could “seek a waiver of the initial filing fee or any of the Administrator’s other fees (collectively, ‘Administrator’s Fees’) under any applicable rules of the Administrator.” The cardholder agreement further provided procedures for requesting that the Bank pay or reimburse all or part of the Administrator’s fees.

2We note that Grot attaches several exhibits to his appellate brief that cannot be considered in our review. “Documents attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court, shall not be considered on appeal.” Court of Appeals Rule 24 (g).

3OCGA § 15-6-21 (c) pertinently provides that “[w]hen he or she has so decided, it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision.”

4It is undisputed that Grot received the proposed order containing the 30-day time limitation for initiation of the arbitration proceedings, and he did not object to the time limitation.

5Otherwise, Grot filed a “Request for a Scheduling Hearing” seeking a “Scheduling Conference” with the parties. Grot challenges the denial of his request for a scheduling hearing in a separate enumeration of error, which has been addressed in Division 4 above. Grot’s ambiguous request for a “scheduling hearing” likewise did not comply with the requirements of Uniform Superior Court Rule 6.3 for requesting an oral hearing on the motion for summary judgment.

6Although the trial court was not required to allow oral arguments on the motion for summary judgment in the absence of a request compliant with Uniform Superior Court Rule 6.3, we nevertheless note that it may have been prudent and beneficial for the trial court to hear oral arguments in this case. Perhaps a hearing would have allowed the parties an opportunity to more clearly define and address the issues that existed in this matter.

7The Bank’s suit was filed against Grot personally, and the Bank made no reference to the Company or Grot’s representative capacity. Neither the Bank’s appellate brief, nor the affidavit upon which it relied to establish the debt, point to any provisions in the parties’ written agreements addressing the issue as to whether Grot could be held personally or individually liable for the debt. The cardholder agreement contained in the appellate record is in barely legible small print, which places this Court at a disadvantage in attempting to decipher the applicable terms.

8The “Important Disclosures and Terms of Offer” referenced in the offer agreement have not been included in the record, and thus, we are unable to determine whether those disclosures and terms required Grot to be a co-debtor or personal guarantor of the debt.

9Grot failed to show that an exception to individual and joint liability applied in this case.

Trial Judge: Frank J. Jordan, Harris Superior Court.,

Attorneys: John Grot, Midland, proceeded pro se. Clayton Moseley (Frederick J. Hanna & Assocs. PC) and William Salter, Marietta, for appellee.

The problem is, the affidavit did not attach those business records, when rendered the statements ‘hearsay.’  As a matter of evidence, Georgia law provides that:

Where 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.

In this case, because the affiant referred to and relied upon business records which were not attached to his affidavit, the Georgia Court of Appeals reversed the trial court’s decision, because it held that the affidavit could not be used to support the motion for summary judgment.

Georgia real estate and business attorney Jim Fletcher was not involved in this particular case, but he regularly represents parties in filing and responding to motions for summary judgment.  To discuss your case, contact us.

The full text of the decision follows:

Brown v. Seaboard Constr. Co., Case No. A12A0871 (Ga.App. 9/25/2012)

Text: Boggs, Michael P., Judge

Marietta Brown and Oscar Mangram appeal from the trial court’s grant of Seaboard Construction Company’s (“Seaboard’s”) motion for summary judgment. The issue on appeal is whether the trial court erred in granting summary judgment based upon Seaboard’s affidavits. We hold that the court did err, and we reverse.

On appeal from a grant of summary judgment, we apply a de novo standard of review. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). “[T]he moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see OCGA § 9‑11‑56 (c).

The record reveals that Brown and Mangram filed a complaint for negligence against Seaboard alleging that they were seriously injured in 2005 due to “the dangerous and defective condition” of a road paved by Seaboard. Seaboard answered and asserted certain affirmative defenses, including a defense based upon the expiration of the applicable statute of limitation. Seaboard later moved for summary judgment based upon an affidavit and supplemental affidavit of its president, Stephen Swan.

Swan averred that Seaboard had not done paving or repair work on the road any time other than 1997 and 2006, and that any care and maintenance of the road after 1997 would have been the responsibility of the Georgia Department of Transportation (“DOT”). The trial court denied Seaboard’s motion for summary judgment based upon issues of fact as to whether Brown and Mangram’s claim was within the limitation period, and concluded that the question of whether “the loss of control of the vehicle was the fault of a defect in the roadway” or due to some other cause, could not be adjudicated on summary judgment.

Six months after the denial of its motion for summary judgment, Seaboard filed a renewed motion for summary judgment based upon a third affidavit filed by Swan. The trial court granted the renewed motion, finding that any defects in the road would be the responsibility of the DOT based on Seaboard’s completion of the project pursuant to DOT standards. See OCGA § 32-2-2 (a) (1); Fraker v. C. W. Matthews Contracting Co., 272 Ga. App. 807, 810 (2) (614 SE2d 94) (2005) (Georgia law dictates that DOT has control and responsibility for all construction and maintenance of state highway system). The trial court’s ruling was based upon averments in this third affidavit.

1. Brown and Mangram first contend that the affidavits submitted by Swan were contradictory and therefore should not be considered. See Prophecy Corp. v. Charles Rossignol Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986) (testimony of party who offers himself as witness in his own behalf is construed most strongly against him when it is self‑contradictory). Swan’s first affidavit averred that Seaboard “had not done any asphalt or repair work” on the road “at any time other than 1997 and 2006.” His supplemental affidavit explained that in 2001, Seaboard submitted a subcontractor proposal to the DOT for a different road on behalf of an “independent sister company of Seaboard.” And in a third affidavit, Swan averred that Seaboard contracted with the DOT to repave the road in 1997, the repaving was completed in 1998, the DOT accepted the work in 1998, and Seaboard repaved the road in accordance with “the plans and specifications provided by the Georgia DOT.” Contrary to Brown and Mangram’s argument, the third affidavit is not contradictory to the first two affidavits, but rather clarifies that while Seaboard contracted to do the repaving work in 1997, it was not completed and accepted until 1998. See, e.g., Cornelius v. Hutto, 252 Ga. App. 879, 882 (1) (558 SE2d 36) (2001) (testimony did not contradict affidavit where it simply provided additional information). The contradictory testimony rule of Prophecy, supra, therefore does not apply.

2. Brown and Mangrum argue that Swan’s third affidavit is based upon hearsay and therefore could not be relied upon in support of Seaboard’s motion for summary judgment. In this affidavit, Swan averred that “in addition to his personal knowledge concerning the operations of Seaboard Construction, he has access to its records which were maintained in the ordinary course of its business, as well as having reviewed records of the Georgia DOT concerning the repaving.” He averred further that “Seaboard’s contract with the DOT, contract number TCC-507(1) 01 . . . provided that the repaving was to be done in accordance with the plans and specifications provided by the Georgia DOT.” Swan concludes this third affidavit with the statement that “[t]his affidavit is based upon my personal knowledge and the facts recited herein are true and correct.”

While Swan averred that the statements in the affidavit are based upon his personal knowledge, he refers to and relies upon documents that were not attached to the affidavit. In particular, “records which were maintained in the ordinary course of [Seaboard's] business,” “records of the Georgia DOT concerning the repaving,” and “Seaboard’s contract with the DOT, contract number TCC-507(1)01.” “[W]here 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.” (Citations, punctuation and footnote omitted.) Powers v. Hudson & Keyse, LLC., 289 Ga. App. 251, 252 (1) (656 SE2d 578) (2008) (affidavit based in part on personal knowledge and in part on business records insufficient where business records not attached); Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443, 444 (2) (393 SE2d 728) (1990) (affidavit based on business records and manager’s personal knowledge could not be used to support motion for summary judgment where business records were not attached).

Because the business records referred to and relied upon by Swan were not attached to his affidavit, the affidavit could not be used to support Seaboard’s motion for summary judgment. See Powers, supra; Val Preda Motors, supra. And the remaining evidence, which includes the depositions of the parties, does not demonstrate that Seaboard was entitled to summary judgment. The trial court therefore erred in granting summary judgment to Seaboard based upon the record before it.

Judgment reversed. Doyle, P.J. and Andrews, J., concur.

Trial Judge: Stephen G. Scarlett, Glynn Superior Court.,

Attorneys: Walter Adams, Brunswick, for appellants. Richard Brown (Brown, Readdick, Bumgartner, Carter, Strickland), Brunswick, for appellee.

So how much should be awarded in ‘nominal’ damages?  There is no set amount, and little guidance available.  Generally, the amount should be ‘trivial’, but in a given case it will ‘depend largely upon the vastness of the amount involved what sum would be considered trivial.’  Amounts which were previously upheld in other cases have included $150, $3,000, and other amounts.

In the 2012 case of Fowler’s Holdings LLLP v. CLP Family Invs. LP, however, the Court of Appeals held that an award of $150,000 was not ‘trivial’ and sent the case back to be tried again.

Georgia business litigation attorney Jim Fletcher was not involved in this particular case, but he represents clients in cases regarding breach of contract, including those with alleged ‘nominal’ damages.  To discuss your case, contact us.

The full text of the decision follows:

Fowler’s Holdings LLLP v. CLP Family Invs. LP, Case No. A12A1268 (Ga.App. 9/27/2012)

Text: Andrews, Gary Blaylock, Judge

CLP Family Investments, L.P., and the estate of Claude L. Pennington, Sr. (“CLP”), sued Fowler’s Holdings, LLLP (“Fowler’s”), for specific performance and damages arising from the parties’ easement agreements on the parking lot of a Macon shopping center where each owned a building. CLP’s original complaint alleged that Fowler’s had failed to maintain the parking lot and had violated its promise not to create additional points of entry to the lot; its amended complaints added claims for rescission, nominal damages, and attorney fees. After a bench trial, the court awarded CLP $120,000 in nominal damages and $55,000 in attorney fees. On appeal, Fowler’s argues that the award of nominal damages was erroneous as a matter of law and that the fee award was not supported by the evidence. We agree with the first of these contentions and therefore affirm in part and reverse in part.

1. (a) According to Fowler’s own account of the proceedings below, it attempted to show that as a result of CLP’s breaches, it incurred damages in the amounts of (a) $215,000 for the proposed amount of a tenant’s renewed lease minus a reduction in both term and amount caused by the poor condition of the parking lot; (b) $225,000 for the cost of fixing the parking lot; (c) $22,000 for the cost of replacing the parking lot lighting; and (d) $33,490 for the decrease in the property’s value caused by heavier traffic as a result of additional and unauthorized entryways made to the lot. By this account, then, Fowler’s claimed damages, some portion of which it admits were not proved with enough specificity to justify an award of actual damages, amounting to approximately $595,000. Although the trial court found that “the damages suffered by [CLP] are not trivial but are substantial,” it awarded $120,000 as nominal rather than actual damages.

In its seminal 1901 decision on nominal damages, the Supreme Court of Georgia construed the term as one “purely relative, [carrying] with it no suggestion of certainty as to amount,” and also as “a trivial sum awarded where a mere breach of duty or infraction of right is shown, with no serious loss sustained.”Sellers v. Mann, 113 Ga. 643, 643-644 (39 SE 11) (1901). The Court continued:

It is apparent that this trivial sum might, according to the circumstances of each particular case, vary almost indefinitely. In some cases a very small amount might constitute the trivial sum contemplated by the term “nominal damages;” in others a much larger amount might measure down to the same standard of triviality.It would depend largely upon the vastness of the amount involved what sum would be considered trivial.

(Emphasis supplied.) Id. at 644. The following year, our Supreme Court also noted that nominal damages “are not given as compensation for the breach of a contract, but simply in vindication of the right of a person who brings an action upon a good cause, but fails to prove that he has sustained any actual damage, and to prevent his being mulcted in the costs after he has established his cause of action.”Foote & Davies Co. v. Malony, 115 Ga. 985, 988 (4) (42 SE 413) (1902) (emphasis supplied), citing the predecessor to OCGA § 13-6-6 (where a breach of contract results in “no actual damages,” nominal damages may be given “to cover the costs of bringing the action”); see also King v. Brock, 282 Ga. 56, 58 (646 SE2d 206) (2007) (noting sister states’ majority view of nominal damages as “a peg to hang costs on”); Ransone v. Christian, 56 Ga. 351, 357 (1876); Western Union Telegraph Co. v. Glenn, 8 Ga. App. 168, 169 (68 SE 881) (1910). As to specific awards of nominal damages, the parties have cited cases authorizing nominal damages in amounts up to $3,000, with the latter held not excessive when “viewed in conjunction with the evidence of actual damage.”Ponce de Leon &c. v. DiGirolamo, 238 Ga. 188, 190 (3) (232 SE2d 62) (1977); see also Atlantic Coast Line R. Co. v. Stephens, 14 Ga. App. 173, 175-178 (80 SE 516) (1914); Duckworth v. Collier, 164 Ga. App. 139, 140 (3) (296 SE2d 640) (1982); First Fed. Sav. & Loan Assn. v. White,168 Ga. App. 516, 517 (309 SE2d 858) (1983).

An award of nominal damages in the amount of $120,000 in a case in which actual damages amounted at most to five times that amount is neither absolutely nor relatively “trivial.” The parties’ dispute over fees shows that they do not consider the amount at issue there€”ranging somewhere between $30,000 and $70,000€”to be trivial in itself. Compare Atlantic Coast Line R. Co., 14 Ga. App. at 176-179 (award of $150 was not excessive even when actual damages amounted to only $3.80). Likewise, an award of nominal damages amounting to approximately one-fifth of an amount of total damages claimed, the latter not itself trivial, cannot meet the “standard of triviality” set out in longstanding Georgia law. See Sellers, 113 Ga. at 643-644; compare White, supra, 168 Ga. App. at 517 (in the absence of a transcript of the relevant hearing, an award of $3,000 in nominal damages concerning a dispute over mobile home was not excessive); Glenn, supra, 8 Ga. App. at 169-170 (award of $250 in nominal damages was not excessive in light of claim for $3000 in actual damages).

Thus we conclude that the trial court erred when it denied Fowler’s motion for new trial as to the amount of nominal damages awarded here, and thus remand the case for a new trial on damages.

(b) In light of our reversal of the trial court’s award of nominal damages as excessive, we leave the question of whether its particular finding of fact as to the costs of repair was erroneous for any further proceedings.

2. Fowler’s also argues that the evidence did not support the trial court’s award of attorney fees under OCGA § 13-6-11. We disagree.

In order to recover attorney fees as expenses of litigation pursuant to OCGA § 13-6-11, the plaintiff must show that the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. We will affirm an award of attorney fees under OCGA § 13-6-11 if there is any evidence to support it.

Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 450 (6) (638 SE2d 879) (2006). Awards for fees under OCGA § 13-6-11 “must be apportioned to those attorney fees attributable to claims on which the plaintiff prevailed,” however. Id. at 453 (6); see also Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104, 112 (4) (676 SE2d 728) (2009).

Construed in favor of the trial court’s judgment, the record shows that CLP’s complaint stated claims for breach of contract and rescission. Counsel for CLP testified that the fees charged, as reduced by the amount expended on the unsuccessful rescission claim, were “normal hourly rates,” “reasonable, necessary and appropriate,” and amounting to $32,980.39. Counsel also provided an affidavit from co-counsel explaining that he had adjusted his fees to exclude that portion expended on the rescission claim and that his rate was “reasonable” for the Middle Georgia legal market. Co-counsel also provided itemized billing statements of the fees as thus adjusted, as well as a summary yielding a total of $33,436.34. The record also shows that Fowler’s did not object to the admissibility of co-counsel’s affidavit or documents and waived cross-examination on the issue of fee apportionment.

We are not persuaded by Fowler’s assertion that CLP may recover fees for only one of its three theories of breach of contract because the trial court found in CLP’s favor on that theory alone. If the claim for breach of contract was successful, fees expended in pursuit of that claim are recoverable. See Ga. Dept. of Transp. v. Douglas Asphalt Co., 297 Ga. App. 470, 475 (2) (677 SE2d 699) (2009) (factfinder need not prorate fees between various aspects of a single cause of action). Nor do we agree that we are bound to reverse the award as not supported by sufficient evidence under Southern Cellular Telecom v. Banks, 209 Ga. App. 401 (433 SE2d 606) (1993). In that case, plaintiff Banks herself presented her attorneys’ time sheets and affidavits, none of which distinguished between successful and unsuccessful claims, and the defendants in that case were not given the opportunity to cross-examine counsel as to either “reasonableness and value or on the allocation of time and expenses among the various claims.” Id. at 402. Here, by contrast, the trial court had substantial evidence, including affidavits, testimony, and billing statements, concerning the proportion of fees expended on the breach-of-contract and rescission claims, and made an award within the range of the evidence before it. Fowler’s also waived any objections or cross-examination as to the apportionment of CLP’s fees. It follows that the trial court did not err when it granted CLP $55,000 in fees under OCGA § 13-6-11.

Judgment affirmed in part, reversed in part, and case remanded for a new trial on damages. Doyle, P.J., and Boggs, J., concur.

Trial Judge: S. Phillip Brown, Bibb Superior Court.,

Attorneys: John McGoldrick and Stuart Walker (Martin Snow LLP), Macon, for appellant. Thomas James (James, Bates, Pope & Spivey) and G. Grant Greenwood, Macon, for appellees.

Mr. Copeland did not file a ‘traverse’ or otherwise oppose the propriety of the garnishment.

Seven years and four months later, Mr. Copeland sued Wells Fargo (Wachovia’s successor through mergers) for the amounts of the CD.

The Superior Court properly found that the 2003 garnishment had determined the propriety of the funds being transferred to Copeland’s creditor, and that the doctrine of res judicata barred Copeland from suing Wells Fargo for the funds.

This case serves as a reminder of the importance of seeking experienced counsel in garnishment proceedings.

Georgia collection and garnishment attorney Jim Fletcher was not involved in this particular case, but he represents individuals and companies in cases regarding garnishments, creditors’ rights and debtors’ rights.  To discuss your case, contact us.

The full text of the decision follows:

Copeland v. Wells Fargo Bank NA, Case No. A12A1032 (Ga.App. 9/25/2012)

Text: Boggs, Michael P., Judge

In this action seeking the proceeds of a certificate of deposit originally issued by Georgia Federal Bank, Elmore Copeland appeals from the trial court’s grant of summary judgment in favor of defendant Wells Fargo Bank, N.A.1 Because the trial court correctly held that Copeland’s action is barred by res judicata, we affirm.

On September 18, 2003, a judgment was entered on a jury verdict in Fulton County Superior Court against Copeland and in favor of James Harris and Mark Underwood in the amount of $115,800. A writ of fieri facias was issued on October 2, 2003. Harris and Underwood filed a garnishment proceeding in Fulton County State Court, naming Wachovia Bank, N.A. as the garnishee. Copeland was served with copies of the garnishment proceeding on October 10, 2003. On November 5, 2003, Wachovia answered that it held a certificate of deposit, Copeland’s property, and paid the sum of $42,344.58 into the registry of the court. Wachovia received no traverse to the garnishment or any other objection from Copeland.

On March 18, 2011, seven years and four months after the deposit of the garnished sums into court, Copeland filed this action in Fulton County Superior Court against “Wells Fargo/Wachovia”, seeking the proceeds from the certificate of deposit. Appellee Wells Fargo answered and moved for summary judgment on August 18, 2011, asserting good faith compliance with a garnishment proceeding under OCGA § 18-4-92.1, res judicata, the statute of limitation applicable to conversion claims, and failure to demonstrate the elements of a claim for conversion. On September 6, 2011, Copeland moved for a “30-45 days” extension of time to respond to the motion, which was opposed by Wells Fargo. Copeland never responded to Wells Fargo’s motion for summary judgment.

On October 11, 2011, the trial court granted summary judgment to Wells Fargo, finding that Copeland’s claim was barred by the statute of limitation and by the doctrine of res judicata, and Copeland appeals.2

1. We first consider Copeland’s contention that the trial court erred in failing to rule on his request for an extension of time to respond to Wells Fargo’s Motion for Summary Judgment. But “[p]retermitting whether the trial court failed to timely rule on [Copeland's] motion, in order to obtain the reversal of the judgment herein, [Copeland] must prove both harm and error. [Cit.]” Lewis v. Uselton, 224 Ga. App. 428, 430 (4) (480 SE2d 856) (1997).

Copeland asserted in his motion that the “litigation [has] become more [co]mplicated” and that “lega[l] representation is needed” and claims that he “knew he was in well over his capacity and was in dire need of retaining counsel” as well as having several other legal matters pending. But Wells Fargo asserted essentially the same defenses in its answer as in its motion for summary judgment, and further averred in response to Copeland’s motion that its counsel discussed the case and the impending motion for summary judgment with Copeland in June and July of 2011, that Copeland elected at that time to proceed without counsel, and that “nothing has changed.” Moreover, Copeland received the 30 days he requested, as the trial court did not rule on the motion for summary judgment until 36 days after his motion, but he never obtained counsel and never filed a brief in response.

Under OCGA § 9-11-6, a trial court has the discretion to extend the time period in which a party may respond to a motion for summary judgment upon a showing of good cause. Broad discretion is vested in the trial court to determine whether good cause exists and what constitutes good cause. The determination of good cause is within the sound discretion of the trial court, and we will not reverse a decision of the trial court unless such discretion was manifestly abused.

(Citations and punctuation omitted.) Abe Engineering v. Fulton County Bd. Of Ed.,214 Ga. App. 514, 514-515 (448 SE2d 221) (1994). We therefore conclude that even if the trial court failed to rule on Copeland’s motion for extension of time, he has failed to show harm.

2. Copeland asserts that the trial court erred in granting summary judgment on the ground of res judicata. In a brief and conclusory argument, he contends that the present action lacks identity of parties and subject matter with the prior garnishment proceeding and that there was no prior adjudication on the merits. But

a judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside. OCGA § 9-12-40. When several requirements are met, the prior action operates as a bar to a subsequent action: the first action must have involved an adjudication by a court of competent jurisdiction; the two actions must have an identity of parties and subject matter; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action.

(Citations and punctuation omitted.) Lamb v. First Union Brokerage Svcs., 263 Ga. App. 733, 736 (1) (589 SE2d 300) (2003). Here, those requirements are met by the earlier garnishment proceeding. “[A] final judgment has the effect of res judicata between the parties and their successors in interest.” (Citations and punctuation omitted.) Brookins v. Brookins, 257 Ga. 205, 207 (2) (357 SE2d 77) (1987).

“As the debtor in the garnishment action, [Copeland] was required to assert any claim superior to [Harris and Underwood] to the funds held by the garnishee” in that action, and res judicata bars not only issues that were litigated but “all issues which could have been litigated in the prior action.” Lamb, supra, 263 Ga. App. at 736-737 (1). Copeland had the opportunity to oppose the garnishment action and become a party to the garnishment by filing a traverse, which would have allowed him to challenge the existence of the judgment and amount claimed or plead another matter in bar of the judgment. See OCGA § 18-4-65; 18-4-93. However, he failed to do so, and res judicata bars any claim against Wells Fargo. Id. The trial court did not err in granting summary judgment to Wells Fargo on this ground.

3. We need not reach the alternative grounds for summary judgment asserted by Wells Fargo, ruled on by the trial court, or contested by Copeland. “A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” (Citations, punctuation, and footnote omitted.) Pollman v. Swan, 314 Ga. App. 5, 5-6 (723 SE2d 290) (2011).

Judgment affirmed. Doyle, P.J. and Andrews, J., concur.

1 Through a series of acquisitions and mergers, Georgia Federal Bank became First Union National Bank, which became Wachovia Bank, N.A., which became Wells Fargo Bank, N.A., the successor in interest to its predecessors.

2 Copeland also filed a motion for reconsideration, which was denied because he had already filed a notice of appeal.

Trial Judge: Ural Glanville, Fulton Superior Court.,

Attorneys: Elmore Copeland, Atlanta, proceeded pro se. Erin Moore and Trishanda Treadwell (Parker, Hudson, Rainer & Dobbs LLP), Atlanta, for appellee.

In a recent case, American General Financial Services moved the Cherokee State Court to compel arbitration of a counterclaim for breach of a loan agreement filed by one Daniel Jape.  When the trial court denied the motion to compel arbitration, American General appealed to the Georgia Supreme Court.  However, because the order denying arbitration was not final under O.C.G.A. 9-11-54, then the Supreme Court held that American General’s failure to follow the interlocutory appeal procedures deprived it of jurisdiction to hear the appeal.

Georgia collection and arbitration attorney Jim Fletcher was not involved in this particular case, but he does represent creditors and debtors in cases involving loan disputes and in arbitrations.  To discuss your case, contact us.

The full text of the decision follows:

American Gen. Fin. Servs. v. Jape, Case No. S12G0463 (Ga. 10/1/2012)

Text: Thompson, Hugh P., Presiding Justice

We granted certiorari in this appeal to determine whether 9 USC § 16 (a) (1) (B) of the Federal Arbitration Act, 9 USC § 1 et seq., (the “FAA”), which grants federal litigants the right to directly appeal a trial court’s order refusing to compel arbitration, preempts OCGA § 5-6-34 (b), a statute which requires parties seeking to appeal from such an order in state courts to follow interlocutory appeal procedures. Because we conclude § 5-6-34 (b) is a procedural statute not preempted by § 16 (a) (1) (B), the Court of Appeal’s order dismissing the direct appeal filed in this case is affirmed.

In September 2010, appellant American General filed an action against appellee Daniel Jape to recover monies he allegedly owed pursuant to a loan agreement between the parties. The agreement contains an arbitration provision authorizing either party to elect to resolve by binding arbitration claims and disputes arising thereunder. It further provides that the FAA applies to and governs the agreement.

Jape subsequently counterclaimed for breach of contract. Several months after the filing of the counterclaim, American General filed a motion under § 4 of the FAA to compel arbitration only of Jape’s counterclaim. See 9 USC § 4 (authorizing parties to a written arbitration agreement to petition court of competent jurisdiction to compel arbitration). The trial court denied the motion to compel, finding that American General waived its right to compel arbitration by seeking judicial resolution of its arbitrable claim against Jape. See Taft v. Burttram, 254 Ga. 687, 688 (333 SE2d 585) (1985) (in choosing judicial forum rather than arbitration to sort out dispute, party waived right to compel arbitration); American Car Rentals v. Walden Leasing, 220 Ga. App. 314, 318 (469 SE2d 431) (1996) (party waived arbitration provision by taking actions inconsistent with arbitration clause). The trial court subsequently denied American General’s motion for reconsideration and its request for a certificate of immediate review. See OCGA § 5-6-34 (b). American General filed a direct appeal in the Court of Appeals. The Court of Appeals determined it did not have jurisdiction because American General failed to follow the interlocutory appeal procedures found in § 5-6-34 (b) and dismissed the appeal. See Langfitt v. Jackson, 284 Ga. App. 628, 634 (1) (644 SE2d 460) (2007) (order denying motion to compel arbitration not appealable except under interlocutory appeal provisions of OCGA § 5-6-34 (b)). We granted American General’s petition for certiorari.

1. As an initial matter, we must determine whether the FAA has any applicability to the parties’ agreement to arbitrate. Section 2 of the FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 USC § 2. The FAA applies in state and federal courts to all contracts containing an arbitration clause that involves or affects interstate commerce. Perry v. Thomas, 482 U.S. 483, 489 (107 SC 2520, 96 LE2d 426) (1987). The contract between American General and Jape specifically states that the FAA applies to and governs their agreement to arbitrate and the parties do not dispute that the financial contract involves or affects interstate commerce. Accordingly, we conclude the FAA applies to the enforcement of the arbitration agreement at issue. The fact that the parties may have agreed to additional procedural rules not found in the FAA in the event they were required to arbitrate does not render the FAA inapplicable.

2. Having determined that the FAA is generally applicable to the contract between the parties, we turn to the issue of whether American General has a right to a direct appeal from the trial court’s order denying its motion to compel arbitration. American General argues that a direct appeal is mandated by § 16 (a) (1) (B) of the FAA, which provides that an appeal may be taken from an order denying a motion to compel arbitration to proceed.1 Jape argues that under Georgia law, prior to final judgment an order denying a motion to compel arbitration is subject to the interlocutory appeal provisions of OCGA § 5-6-34 (b). It is this apparent conflict in laws that forms the issue in this appeal.

Because the FAA contains no express preemptive provision and does not reflect a congressional intent to occupy the entire field of arbitration, its provisions will preempt state law only to the extent it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (61 SC 399, 85 LE2d 581) (1941). See Volt Information Sciences v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 477 (109 SC 1248, 103 LE2d 488) (1989); American Gen. Fin. Svcs. v. Vereen, 282 Ga. App. 663, 665-666 (639 SE2d 598) (2006). The purpose of the FAA was ” ‘to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate,’ [Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-220 (1985)] and place such agreements ‘upon the same footing as other contracts.’ [Cits.].” Volt, supra 498 U.S. at 478. The FAA thus requires courts, both federal and state, to enforce arbitration agreements in negotiated contracts involving interstate commerce in accordance with their terms. Southland Corp. v. Keating, 465 U.S. 1, 11 (104 SC 852, 79 LE2d 1) (1984), quoting Metro Industrial Painting Corp. v. Terminal Constr. Co., 287 F2d 382, 387 (2d Cir. 1961) (Lumbard, C.J., concurring) (“the purpose of the act was to assure those who desired arbitration and whose contracts related to interstate commerce that their expectations would not be undermined by federal judges, or . . . by state courts or legislatures”).

Consistent with Congress’ intent to insure the enforceability of arbitration agreements, the United States Supreme Court has held the FAA preempts state laws requiring a judicial forum for the resolution of disputes pertaining to a particular subject matter or which require judicial resolution of a claim the parties have agreed to resolve by arbitration. See AT&T Mobility v. Concepcion, U.S. (131 SC 1740, 179 LE2d 742) (2011) (state law prohibiting arbitration of class action claims preempted by FAA); Preston v. Ferrer, 552 U.S. 346 (128 SC 978, 169 LE2d 917) (2008) (state law referring dispute initially to administrative agency preempted); Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 52, 58 (115 SC 1212, 131 LE2d 76) (1995) (if parties agree punitive damages claim will be arbitrated, FAA ensures agreement will be enforced notwithstanding state law excluding such claims from arbitration); Perry, supra, 482 U.S. at 490-491 (state statute requiring resolution of wage disputes in judicial forum preempted). In such cases, the United States Supreme Court predictably has held the FAA preempts the relevant state law because the law undermined the FAA’s objective of enforcing arbitration agreements according to their terms. While recognizing in these cases that the FAA creates a body of federal substantive law of arbitrability applicable in both federal and state courts, the Supreme Court has not had the occasion to determine whether the FAA’s procedural provisions are applicable in state courts. See Perry, supra, 482 U.S. at 489 and Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S.1, 25, n.32 (103 SC 927, 74 LE2d 765 (1983) (recognizing FAA “creates a body of federal substantive law” applicable in state and federal courts); Southland Corp. v. Keating, 465 U.S. 1 n.10 (“In holding that the Arbitration Act preempts a state law that withdraws the power to enforce arbitration agreements, we do not hold that [the Act's procedural provisions] apply to proceedings in state courts). It has acknowledged, however, that the procedural provisions found in §§ 3 and 4 of the Act appear to apply by their terms only in federal court.2 Volt, supra, 489 U.S. at 477 n.6 (“we have never held that [the FAA's procedural provisions], which by their terms appear to apply only to proceedings in federal court, [] are nonetheless applicable in state court”). Moreover, the Court clearly has stated both that there is no federal policy favoring arbitration under a certain set of procedural rules and that the procedures to be used in an arbitration are not prescribed by the Act itself. Id. at 476, 478-479; Southland Corp., supra, 465 U.S. at 11 n.6.

Although the Supreme Court has not addressed the exact issue before us, our Court of Appeals has twice held that the FAA does not preempt § 5-6-34 (b)’s jurisdictional requirements because the provision sets forth procedural rules which do not undermine the purposes and objectives of the FAA. Vereen, supra, 282 Ga. App. 663; Simmons Co. v. Deutsche Fin. Svcs. Corp., 243 Ga. App. 85 (532 SE2d 436) (2000). More specifically, the court concluded in Vereen that

because our procedural law permits a trial court to certify [an order denying a motion to compel arbitration] for immediate appeal pursuant to OCGA § 5-6-34 (b), parties, such as those here, are provided with an avenue for seeking appellate review that is not inconsistent with the objectives of the FAA to enforce legitimate arbitration agreements. [Cit.] While the denial of an application for interlocutory appeal, as occurred here, may delay arbitration, such delay is not tantamount to the failure to enforce valid arbitration agreements contrary to congressional objectives. [Cit.]

Vereen, supra, 282 Ga. App. at 666. A number of foreign jurisdictions similarly have held that state procedural laws addressing the timing of appeals are not preempted by the FAA. See Southern Cal. Edison Co. v. Peabody W. Coal Co., 977 P2d 769, 775-776 (Ariz. Sup. Ct. 1999) (applying state procedural rule prohibiting direct appeal from grant of motion to compel arbitration; recognizing trial court may nevertheless certify judgment for interlocutory appeal in keeping with policy favoring arbitration); Saavedra v. Dealmaker Dev., 8 So3d 758, 762 (La. Ct. App. 2009) (“Louisiana procedural rule limiting the review of an interlocutory judgment denying arbitration to a discretionary supervisory writ does not undermine the goals and principles of the FAA”); Wells v. Chevy Chase Bank, 768 A2d 620, 629 (Ct. App. Md. 2001) (Maryland appeals statute allowing appeal from grant of motion to compel, which is contrary to FAA’s procedural rules, not preempted because it “does not focus on, or discriminate against, arbitration”); Weston Securities Corp. v. Aykanian, 703 NE2d 1185, 1189 (App. Ct. Mass. 1998) (state procedural appellate rule not preempted because “[t]here is no reason to suppose that the timing of the exercise of the right of appeal from an order compelling arbitration is other than a procedural matter”); Bush v. Paragon Prop., 997 P2d 882, 888 (Ct. App. Or. 2000) (state jurisdictional statute denying court jurisdiction over interlocutory appeal from order denying motion to compel arbitration not preempted).

We find the rationale of these cases persuasive and conclude that §5-6-34 (b) is not preempted by the FAA. “[I]n enacting § 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” Southland Corp., supra, 465 U.S. at 10. In doing so, “Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements.” (Footnote omitted.) Id. at 16. Section 5-6-34 (b) is not a legislative attempt to undercut the enforceability of arbitration agreements. It does not place limitations specifically and solely on arbitration provisions; it does not discriminate between appeals involving arbitration agreements and those involving the enforcement of any other agreement; and unlike the provisions in many of the arbitration cases decided by the Supreme Court, it does not create a blanket rule prohibiting or otherwise affecting the enforceability of arbitration agreements.

Rather, §5-6-34 (b) is a procedural rule concerning the jurisdiction of our state courts to review all non-final orders. Like the provision in Volt, it determines “only the efficient order of proceedings” and does “not affect the enforceability of the . . . agreement itself.” Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 688 (116 SC 1652, 134 LE2d 902) (1996) (discussing state rule at issue in Volt). As such, agreements to arbitrate are treated under the provisions of §5-6-34 (b) like all other contracts consistent with the intent and objectives of the FAA. See Doctor’s Assoc., supra, 517 U.S. at 687 (by enacting § 2, “Congress precluded States from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed ‘upon the same footing as other contracts.’ ” [Cit.]); Allied-Bruce Terminix Co. v. Terminix Int’l Co., 513 U.S. 265, 281 (115 SC 834, 130 LE2d 753) (1995) (states may regulate and invalidate arbitration clauses based on general contract principles applicable to any contract; what FAA makes unlawful is any state policy that places arbitration clauses on unequal footing contrary to Congress’ intent).

Relying on Preston v. Ferrer, 552 U.S. 346, 357 (128 SC 978, 169 LE2d 917) (2008), American General argues application of §5-6-34 (b) interferes with the FAA’s goal of achieving ” ‘streamlined proceedings and expeditious results.’ ” We disagree. In Preston, the Supreme Court determined a state statute which grants an administrative agency initial jurisdiction over disputes involving a particular subject matter was preempted by the FAA because the statute precluded arbitration regardless of the existence of an enforceable agreement to arbitrate. In so holding, the Court rejected the argument that placing primary jurisdiction in the state agency did not deny arbitration because either party could move to compel arbitration after the agency ruled. Justice Ginsburg, speaking for the majority, stated, “A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and expeditious results.’ [Cits.] That objective would be frustrated even if [a party] could compel arbitration [after agency review because r]equiring initial reference of the parties’ dispute to the Labor Commissioner would, at the least, hinder speedy resolution of the controversy.” Id. at 357-358.

While we, like the Preston Court, acknowledge that delay in the proceedings may in some circumstances be a hindrance to the objectives of an arbitration agreement, and in turn, to the objectives of the FAA, we cannot agree with American General’s contention that any delay in the proceedings caused by an arbitration neutral procedural statute sufficiently undermines the primary objectives of the FAA so as to warrant federal preemption. See Dean Witter Reynolds, supra, 470 U.S. at 220 (rejecting suggestion that overriding goal of FAA was to promote expeditious resolution of claims); Moses H. Cone, supra, 460 U.S. 1 (affirming order enforcing arbitration agreement, consistent with objectives of FAA, notwithstanding the presence of other persons who were parties to the underlying dispute but not the arbitration agreement and who were affected by delay caused by bifurcated proceedings). Preston simply does not stand for this proposition.

In the present appeal, we address a non-discriminatory procedural statute which may, in some cases, delay the parties’ proceedings by denying them the right to a direct appeal from a non-final order. This result, however, is not inconsistent with the FAA’s primary objectives of overruling the judiciary’s refusal to enforce arbitration agreements and to enforce arbitration agreements according to their terms. Nor does it create such a burden upon interstate commerce to require preemption.3 As stated by the Supreme Court in Nippert v. Richmond, 327 U.S. 416, 425 (66 SC 586, 90 LE2d 760) (1946), “[n]ot all burdens upon commerce, but only undue or discriminatory ones, are forbidden.” Because the effect of §5-6-34 (b) on interstate commerce is neither undue nor discriminatory and is not inconsistent with the objectives of the FAA, we conclude it is not preempted. Accordingly, American General was not entitled to a direct appeal from the trial court’s order denying its motion to compel arbitration and the order of the Court of Appeals dismissing the direct appeal is affirmed.

Judgment affirmed. All the Justices concur, except Nahmias and Blackwell, JJ., who concur specially.

19 USC § 16 provides:

(a) An appeal may be taken from€”

(1) an order€”

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

(C) denying an application under section 206 of this title to compel arbitration,

(D) confirming or denying confirmation of an award or partial award, or

(E) modifying, correcting, or vacating an award;

(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or

(3) a final decision with respect to an arbitration that is subject to this title.

(b) Except as otherwise provided in section 1292 (b) of title 28, an appeal may not be taken from an interlocutory order€”

(1) granting a stay of any action under section 3 of this title;

(2) directing arbitration to proceed under section 4 of this title;

(3) compelling arbitration under section 206 of this title; or

(4) refusing to enjoin an arbitration that is subject to this title.

2For example, §4 provides that the Federal Rules of Civil Procedure apply in proceedings to compel arbitration. It is beyond dispute, however, that these federal rules do not apply in state court proceedings. See also 9 USC § 3 (referring to proceedings “brought in any of the courts of the United States”) and § 4 (referring to “any United States district court”).

3Because we recognize that an incorrect determination that a dispute is not subject to arbitration may cause the parties unnecessary expense and delay, we urge courts, except in the clearest cases, to certify orders denying a motion to compel arbitration. See Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538) (1983) (recommending that trial courts certify orders granting or denying motions to stay judicial proceedings pending arbitration).

NAHMIAS, Justice, concurring specially.

I concur in the result of the majority opinion and in most of its reasoning, although I believe it downplays the weight of Congress’ intent, expressed through the Federal Arbitration Act (FAA), ” ‘to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.’ ” Preston v. Ferrer, 552 U.S. 346, 357 (128 SC 978, 169 LE2d 917) (2008) (quoting Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 (103 SC 927, 74 LE2d 765) (1983)). See also AT&T Mobility LLC v. Concepcion, __U.S.__, __ (131 SC 1740, 1749, 179 LE2d 742) (2011). In my view, there is considerably more tension than the majority opinion admits between Georgia’s interlocutory appeal statute, OCGA § 5-6-34 (b), and the FAA’s direct appeal provision, 9 USC § 16 (a) (1), as applied to a party’s right to appeal immediately from an interlocutory order denying a motion to compel arbitration.

I nevertheless think this is a fairly easy case to decide, due to a factor the majority opinion mentions only in passing. Our interlocutory appeal statute is not a run-of-the-mill procedural provision applicable in state court. It is a jurisdictional law by which the General Assembly has limited the authority of Georgia’s appellate courts to hear certain cases. “[W]hen the order appealed from is an interlocutory order, the appellate court does not acquire jurisdiction unless the procedure of OCGA 5-6-34 (b) for interlocutory appeal is followed.” Cherry v. Coast House, Ltd., 257 Ga. 403, 404 (359 SE2d 904) (1987). See also Fife v. Johnston, 225 Ga. 447, 447 (169 SE2d 167) (1969) (holding, in reference to the interlocutory appeal statute, that “the right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts”).

It is one thing to find that Congress intended to impose federal substantive or procedural rules on a type of case that a State has opened its courts to hear. It would be quite another thing to find that Congress intended to require a State to open its courts to hear such a case. Doing so would raise significant constitutional concerns, particularly where Congress was acting under its Article I Commerce Clause power, see U.S. Const, Art. I, Sec. 8, Cl. 3, as it did in enacting the FAA. See Bush v. Paragon Property, Inc., 997 P2d 882 (Or. App. 2000) (holding that FAA § 16 did not preempt Oregon’s interlocutory appeal statute to allow a direct appeal of an order denying arbitration because Congress lacks power under Article I to require a State to modify its normal judicial procedures, at least when those procedures do not absolutely defeat the congressional purpose). See also Johnson v. Fankell, 520 U.S. 911, 918-921 (117 SC 1800, 138 LE2d 108) (1997) (holding that the federal statute allowing interlocutory appeal of an order denying summary judgment on the ground of qualified immunity in a 42 USC § 1983 action brought in federal court does not preempt a neutrally applicable Idaho appellate rule barring interlocutory appeal of such orders in § 1983 cases brought in state court); Alden v. Maine, 527 U.S. 706, 754 (119 SC 2240, 144 LE2d 636) (1999) (holding that Congress may not abrogate by Article I legislation a State’s immunity from private suit in the State’s own courts). Indeed, the United States Supreme Court has emphasized that the respect owed to the States in ” ‘a system of federalism in which the state courts share responsibility for the application and enforcement of federal law’ ” is “at its apex when we confront a claim that federal law requires a State to undertake something as fundamental as restructuring the operation of its courts.” Johnson, 520 U.S. at 922 (citation omitted). See also id. n.13 (citing cases that have “made it quite clear that it is a matter for each State to decide how to structure its judicial system”).

We need not go so far as to decide that Congress could not constitutionally require Georgia’s appellate courts to hear interlocutory appeals from orders denying arbitration. The federalism questions that would be raised by such preemption are significant enough to counsel a finding that FAA § 16 was not intended to trump OCGA § 5-6-34 (b). A finding of preemption forcing a state court to hear interlocutory appeals of certain orders on arbitration cases would be even more aggressive where the State’s jurisdictional statute shows no hostility to arbitration agreements and is not “outcome determinative,” Johnson, 520 U.S. at 921. Here, OCGA § 5-6-34 (b) does not discriminate against arbitration agreements but applies equally to all contract cases; many parties whose motion to compel arbitration is denied should be able to obtain an interlocutory appeal (particularly given the Court’s firm direction to trial courts to certify such orders for immediate review “except in the clearest cases,” Maj. Op. at 14 n.3); and the parties who cannot obtain an immediate appeal of the denial of a non-frivolous motion to compel arbitration will remain entitled to a direct appeal of the issue when their case is final, see OCGA § 5-6-34 (a) (1), so that the fundamental Congressional objective of enforcing arbitration agreements may still be served. See Maj. Op. at 11, 14. I therefore agree that the Court of Appeals correctly dismissed American General’s appeal for failure to comply with the interlocutory appeal requirements of OCGA § 5-6-34 (b).

I am authorized to state that Justice Blackwell joins in this special concurrence.

Trial Judge: A. Dee Morris, Cherokee State Court.,

Attorneys: Ashley F. Cummings, Charlotte M. Ritz, and Rhani M. Lott (Hunton & Williams LLP), Atlanta, for appellant. John T. Longino (The Longino Law Firm LLC), Canton, for appellee.

In a recent case, the Georgia Court of Appeals held that the Kroger in Stone Mountain was not liable because the accumulated water was not unusual, the store had not failed to follow reasonable inspection and cleaning procedures, and the store’s knowledge of the condition was not ‘superior’ to the customer’s.

Georgia real estate and litigation attorney Jim Fletcher was not involved in this particular case, but he does represent landowners and customers in cases involving premises liability.  To discuss your case, contact us.

The full text of the decision follows:
Hayward v. Kroger Co., Case No. A12A0877 (Ga.App. 10/4/2012)

Text: Andrews, Gary Blaylock, Judge

On appeal from the trial court’s grant of summary judgment to The Kroger Company in this rainy-day slip-and-fall case, plaintiff Frances Hayward argues that the trial court erred in its handling of witness affidavits when it denied her motion to compel production of a videotape and photographs of the accident scene, and when it concluded that no question of material fact remained on the merits of her claim. We find no error and affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the non-movant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law.Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

So viewed, the record shows that at approximately 1:00 p.m. on a Sunday afternoon following several days of rain, including that morning, Frances Hayward walked through a first set of double doors at the entrance to a Kroger supermarket in Stone Mountain. Hayward, who was 78 years old and wearing high-heeled demi-boots, noticed that the foyer between the first and the second set of double doors was damp. As she walked toward the second set of doors, she slipped and fell, suffering injury.

Kroger’s wet floor policy, which store manager Stella Rodriguez knew of and was responsible for implementing, included the following general directives as to spills and wet floors: (1) “Never leave the area unattended and verbally warn those nearby of the hazard”; (2) “Block off the area if no other associate is around” (emphasis omitted); (3) “Place caution signs around the perimeter of the wet area so they are visible from all directions to warn every customer”; and, as applicable to inclement weather, the further directives: (4) Place rugs “at all entrance doors and other appropriate front-end areas”; (5) “Keep a mop and bucket at the front end and aggressively clean up excess water; and (6) “Swap out wet rugs with dry rugs as necessary.” Rodriguez testified that because it had been raining for days, it was wet everywhere outside resulting in tracked in water and in accordance with Kroger policy, she had placed caution signs just outside the first set of doors and at least one sign just outside the second set of doors. Although Hayward testified that she did not see any mats or caution signs on entering the store, photographs taken at the scene show Hayward’s lower body lying on a mat as well as caution signs placed in front of both sets of doors.

Rodriguez testified that she had replaced the usual entranceway mats with a longer produce mat laid lengthwise between the sets of doors. Rodriguez also testified that she had replaced the produce mat between the two sets of doors with a dry one at one point during the morning and had mopped the floor periodically. And while Rodriguez testified that only one other person was helping her monitor the front entrance on that day, her assistant manager, Deborah Klein, filed an affidavit in which she stated that she had assisted Rodriguez in placing entranceway mats in and outside the front entrance, that they had replaced a long produce mat “at least once” before Hayward fell, and that she, Rodriguez, and another employee had mopped the front entrance “as often as every ten to fifteen minutes because of customer traffic and the wet shopping carts moving in and outside the store.”

1. Hayward first argues that the trial court abused its discretion when it (a) denied her motion to strike Klein’s affidavit, and (b) granted Kroger’s motion to strike the affidavits of her expert witness, Rosanne Masone, concerning Kroger’s safety procedures. We disagree.

We review a trial court’s decision on a motion to strike only for an abuse of discretion. See CNL APF Partners v. Dept. of Transp., 307 Ga. App. 511, 513 (2) (705 SE2d 862) (2010).

(a) The record shows that Kroger identified assistant manager Klein as a potential witness in the course of discovery and before manager Rodriguez’s deposition. The fact that Kroger filed Klein’s affidavit after both the Rodriguez’s deposition and the filing of expert witness Masone’s affidavits does not authorize a conclusion that the trial court abused its discretion when it concluded that Kroger properly identified Klein “in response to all applicable discovery requests.” See id. at 513 (2) (affirming denial of motion to strike).

(b) Hayward tendered the Masone affidavits as an expert in risk management for grocery stores generally, which Hayward argues is a “profession shrouded in the mystery of professional skill and knowledge.” See Fordham v. State, 254 Ga. 59, 60 (4) (325 SE2d 755) (1985); OCGA § 24-9-67.1 (a), (b) (setting out criteria for admission of expert testimony). On the contrary, and as the trial court held, Masone’s testimony was not necessary on the question of whether Kroger’s procedures were adequate to meet the common problem of accumulated rainwater at the entrance to a store during rainy weather.Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (322 SE2d 304) (1985); see also Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 689-690 (12) (689 SE2d 62) (2009) (that rainwater soaks into the earth and can erode soil did not require expert testimony). Moreover, the affidavits as conclusory and unsupported by factual evidence, were insufficient to avoid summary judgment. “Nothing inDaubert [v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993)] or OCGA § 24-9-67.1 ‘requires a trial court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.’ ” (Citation omitted.)HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 644 (1) (697 SE2d 770) (2010). Accordingly, there was no abuse of discretion in the trial court’s grant of Kroger’s motion to strike these affidavits as more prejudicial than probative.

2. Hayward argues that the trial court abused its discretion when it denied the portion of her motion to compel concerning a videotape and original photographs of the scene. We disagree.

“The trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” (Citation and punctuation omitted.) Reeder v. GMAC, 235 Ga. App. 617, 620 (3) (510 SE2d 337) (1998).

The record shows that Hayward filed a motion to compel answers to four of her interrogatories and five of her requests for production, including videotapes of the store entrance on the date of the accident. The motion to compel did not seek review of Kroger’s response to Hayward’s request for photographs, however. The record also shows that although Kroger could not locate the originals of the photographs, it had produced at least two copies of them before Hayward brought her motion to compel. The trial court granted the motion only as to two interrogatories and a request concerning incident reports. Kroger complied with the court’s order, and Hayward did not take any further action concerning these discovery requests.

(a) Hayward never sought to compel any response to its request for photographs. Because no issue concerning them was presented to the trial court for its ruling, we have nothing to review on appeal.Arreola-Soto v. State of Georgia, 314 Ga. App. 165, 168 (2) (723 SE2d 482) (2012).

(b) Further, according to store manager Rodriguez, no videotape camera recorded the incident itself, and produced photographs showed a mat and caution cones at the scene. In light of these facts, we cannot say that the trial court abused its discretion when it denied Hayward’s motion to compel production of any videotape depicting the store foyer before or after the accident.Reeder, supra, 235 Ga. App. at 620 (3) (noting absence of evidence that order granting plaintiff’s motion to compel was incorrect “or that the trial court abused its discretion in denying the motion”).

3. Hayward contends that a question of fact remains concerning Kroger’s superior knowledge of the water hazard on which she fell. We disagree.

(a) As a preliminary matter, we note that Hayward contradicted herself on the question of whether she knew the entrance floor was wet before she fell. When asked whether “[b]efore you fell did you see anything on the floor?”, she replied, “The floor was wet. . . . It had rained. People walking from my side€”it had stopped raining, but the floor was still wet, you know, like damp.” After a break in the deposition, however, Hayward revised her testimony to state that she did not realize the floor was wet until after she fell, when she noticed that her “coat was soaking wet on the floor.”

The rule of self-contradictory testimony, discussed in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) is a rule for construing testimony separate from those rules allocating burdens of proof at trial and on motion for summary judgment. Whether such testimony is contradictory, and whether a reasonable explanation has been offered is a question of law.

(Citations and punctuation omitted.)Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 214 (1) (483 SE2d 671) (1997). Here, Hayward offered no satisfactory explanation for her change in testimony; instead, she repeated her earlier answer that “it had been raining.” We therefore apply the Prophecy rule against Hayward and discount her later testimony to the effect that she did not know that the floor was wet as she entered the store. Sunlink Health Systems v. Pettigrew, 286 Ga. App. 339, 341 (649 SE2d 532) (2007); see also Hallberg, supra, 225 Ga. App. at 214-215 (rejecting plaintiff’s attempt to correct deposition testimony that she was “not quite sure” how her fall occurred).

(b) As the Supreme Court of Georgia has held,

in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff€”i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997). Moreover, as our Supreme Court has recently reiterated, there can be no recovery in a premises liability case without evidence tending to show that the owner/occupier has “superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property.” (Emphasis supplied.)The Landings Assn. v. Williams, 291 Ga. 397, (728 SE2d 577, 580, 2012 Ga. Lexis 566) (2012).

It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.

(Citations and punctuation omitted.) Id. More specifically, and as this Court has held in the wake of Robinson, “[s]tore proprietors are not liable to patrons who slip and fall on floors made wet by rain conditions unless there has been an unusual accumulation of water and the proprietor has failed to follow reasonable inspection and cleaning procedures.” (Emphasis supplied.)Walker v. Sears Roebuck & Co., 278 Ga. App. 677, 680 (2) (629 SE2d 561) (2006).

Pretermitting whether Kroger was negligent in failing to follow its rainy day procedures satisfactorily, there is nothing in the evidence to suggest that there was an “unusual” accumulation of water at the particular spot where Hayward fell notwithstanding the rains which preceded it. Rodriguez’s testimony stating that water had been tracked into the store by customers and shopping buggies due to rainwater as “everywhere” outside cannot reasonably be taken as putting this matter in issue. Moreover, construing her original deposition testimony as we must under Prophecy, the floor was not more than damp at the time Hayward fell, a fact of which she was then aware. Consequently, no jury question arises regarding the issues of equal knowledge and accumulated water as unusual. As we have often held: “The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate.” (Citations and punctuation omitted.)Walker, supra, 278 Ga. App. at 680 (2). And, even were there no admission here, in rainy day slip and fall cases plaintiffs “are charged with equal knowledge that water is apt to be found in any area frequented by people coming in from the rain outside.” (Citation and punctuation omitted.)Emory Univ. v. Smith, 260 Ga. App. 900, 902, n. 5 (581 SE2d 405) (2003).

Given the foregoing, Hayward cannot show that Kroger had superior knowledge of a wet condition at the entrance of its store exposing Hayward to an unreasonable risk of harm, and the trial court did not err when it granted summary judgment to Kroger.Walker, supra, 278 Ga. App. at 680 (2); Emory Univ., supra, 260 Ga. App. at 902, n. 5.; compare Edwards v. Ingles Market,234 Ga. App. 66, 67 (1) (506 SE2d 205) (1998) (reversing grant of summary judgment where “defendant but not plaintiff knew that the puddle in which plaintiff slipped had formed prior to plaintiff’s fall”).

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

Trial Judge: Pamela South, Gwinnett State Court.,

Attorneys: Catherine G. McCauley (The Gibson Law Firm LLC), Tucker, for appellant. Douglas Wilde and Catherine Semler (Law Office of Douglas A. Wilde LLC), Tyrone, for appellee.