Georgia case law updates and legal news
Edited By George Washington

The Atlanta Gleaner.

January 15, 2023.

Sanders v. TD Auto Fin., LLC, No. A22A1457, 2023 WL 127930 (Ga. Ct. App. Jan. 9, 2023)
#breach of contract #evidence #hearsay #privity of contract
TD Auto Finance, LLC (“TDAF”) is the financing company for a retail installment contract (“Contract”) for the purchase of a 2015 Audi S8 between Advantage BMW and Dale Sanders.

In its complaint filed March 2019, TDAF alleged Sanders owed the principal sum of $84,355.76 under the Contract. TDAF also sought interest, attorney fees and costs. Sanders filed a timely answer stating the vehicle had been stolen. Sanders testified he had contracted to lease the vehicle to a third party, who “made like two payments and ... disappeared with the car.” Sanders found out later the FBI was involved. He and his attorney were working on obtaining the FBI's records so that Sanders could file a claim on his insurance policy, which would pay the debt.

Following a bench trial, the State Court of Fulton County entered a final judgment in the amount of $113,816.82 in favor of TDAF and against Sanders. Court of Appeals REVERSES.

The Contract itself identifies Advantage BMW as the “Seller/Creditor” but makes no mention of TDAF. In their bench trial, TDAF attempted to prove assignment via the affidavit of a loss mitigation specialist, who averred she had reviewed the relevant records and that Advantage BMW had assigned its rights and interest to TDAF. However the affiant did not state whether the assignment was in writing and she did not attach to her affidavit a copy of such assignment. Most importantly, she lacked personal knowledge (she did not testify to being employed at TDAF at the time of the assignment).

Testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay. Nyankojo v. N. Star Cap. Acquisition, 298 Ga. App. 6 (2009). Absent personal knowledge, TDAF's affidavit concerning the assignment constituted inadmissible hearsay. As a result, the record failed to show TDAF has a contractual right to collect payment, including the right to sue to enforce that right.

Davis v. Greensboro Ests., LLC, No. A22A1166, 2023 WL 141223 (Ga. Ct. App. Jan. 10, 2023)
#personal injury #tree #mobile home park #dangerous conditions
Mobile home occupants brought action against mobile home park and manager after oak tree fell and destroyed mobile home and injured occupants, alleging simple and gross negligence and misrepresentation. The Superior Court, Greene County, granted defendants' motion for summary judgment and mobile home occupants appealed. REVERSED.

The Court of Appeals held that:
(1) genuine issue of material fact as to whether oak tree constituted a dangerous condition precluded summary judgment;
(2) genuine issue of material fact as to mobile home park's and manager's actual knowledge that oak tree constituted a dangerous condition, and thus whether they had a duty to remove the tree, precluded summary judgment; and
(3) manager's statement that he would take down oak tree did not constitute a false representation.

Early in the morning on September 17, 2020, when the occupants of Davis's mobile home were in bed, a tree uprooted and fell onto the mobile home. It crashed through the roof and ceiling of the living area, in which three of Davis's grandchildren were sleeping, with such force that it pushed two of the grandchildren through the floor. Davis’s adult daughter Braddy also had a bedroom where the tree crashed, badly injuring and trapping her and her young child. The tree broke the gas main and some of the occupants of the mobile home had to escape through broken windows as gas and insulation filled the air. The mobile home was destroyed, along with some of the occupants’ personal property. Several of the occupants suffered physical injuries and some were taken to the hospital in an ambulance.

On the day the tree fell, strong weather caused by a hurricane had passed through parts of the state of Georgia. But while it had been raining heavily at the mobile home park, it had not, in Davis's words, been “storming” and it was not windy when the tree fell. There was a substantial amount of water in the back yard of the mobile home.

In January 2021, a certified arborist analyzed remnants of the tree. He found no evidence of decay, rot, or other damage and opined that the tree “was overall healthy at the time it fell” and that it fell due to a combination of oversaturated soil and strong winds caused by the hurricane.

Davis's mobile home was located near a number of trees, which had limbs overhanging the mobile home. A dry creek and hill were behind there and rainwater often drained into the area and collected in the back yard near the trees.

There was evidence in the record of two prior instances in 2020 when large limbs fell from the same tree, causing injury and property damage. In January 2020, a large limb approximately 20 feet long and 15 inches wide broke off the tree and fell on Davis's mobile home, crashing through the roof and through his bedroom ceiling while Davis and his wife were lying in bed. Davis was injured in this incident; he went to the hospital in an ambulance and has suffered recurring physical problems.

After the January 2020 incident, mobile park management met with Davis and other members of his family. They discussed the condition of the tree that had dropped the limb and surrounding trees. Managers inspected the trees near Davis's mobile home and marked several for removal, including the tree from which the limb had fallen, discussed the issue several times, advised they would remove the trees, and quote knew “there was a danger” and “the trees were bad.”

On several occasions after the first limb fell, Braddy told management she thought the tree at issue was a problem and that the trees near the mobile home needed to be addressed to prevent other injuries.

No removal work was done. In late July 2020 another large limb fell from the same tree, landing on two vehicles near Davis's mobile home, blocking a door to the mobile home and damaging the mobile home. At the time, management described the occupants of Davis's mobile home as “super scared.”

In August 2020, other trees fell on two other mobile homes near Davis's mobile home, damaging one and destroying the other. Management arranged for some trees involved in this incident to be removed, but not any of the marked trees near Davis's mobile home, including the tree from which the two large limbs had fallen.

Others in the neighborhood expressed concerns about the safety of the tree that had dropped the limbs on Davis's mobile home. Shortly before the tree fell, Braddy observed the tree swaying and one of Davis's grandchildren also saw it swaying in the wind. She pointed the swaying out to another person, who replied, “that's going to be the next tree.”

Court of Appeals held a genuine issue of material fact exists as to the defendants’ knowledge of the existence of a dangerous condition posed by the tree. But there is no evidence that the defendants provided false information to the plaintiffs that would be actionable under a theory of negligent misrepresentation. Court of Appeals also reversed the trial court's implicit grant of summary judgment on the plaintiffs’ derivative claims for punitive damages and attorney fees and costs.

January 13, 2023.

Pittman v. State, No. A22A1247, 2023 WL 127932 (Ga. Ct. App. Jan. 9, 2023)
#DUI #void sentence #modify sentence
After Matthew Douglas Pittman was convicted of several misdemeanor traffic violations, simple assault and DUI, he was sentenced to serve 180 days in a probation detention center (“PDC”), followed by a term of probation, fine and community service.

After he had started his community service, but before starting his incarceration at the detention center, probation notified the State the PDC could not accept Pittman because he had not been convicted of a felony, as required by OCGA § 42-8-35.4.  The trial court held a hearing at which both Pittman and his counsel were present, but did not issue its amended sentence in open court. Instead the order was e-mailed to the parties whereby Pittman’s sentence to serve time in the PDC was converted to 170 days in the county jail, followed by probation.

Pittman contends the trial court could not increase his sentence because he had started serving it by paying his fine and meeting with a probation officer. Court of Appeals disagrees. Assuming the modified sentence was an increase, as Pittman argued, a defendant has no legitimate expectation of finality where the sentence was void (as here because misdemeanor sentences cannot be served in the PDC per statute) and thus the trial court was authorized to impose a new, and more severe, sentence even though Pittman had started serving it. Moreover, because Pittman did not have a legitimate expectation of finality in his original sentence, the modified sentence did not violate double jeopardy.

Pittman also contends the trial court erred by failing to resentence him in open court.  AFFIRMED. Court of Appeals vacates and remands for the trial court to resentence Pittman in open court.

Ussery v. State, No. A22A1708, 2023 WL 128025 (Ga. Ct. App. Jan. 9, 2023)
#DUI #blood test #evidence #foundation
Columbus Ussery appeals from his conviction of DUI per se in Gwinnett County. Ussery contends the State failed to show the person who drew his blood at the county jail was qualified per OCGA § 40-6-392(e)(1), and therefore the evidence was improperly admitted. Court of Appeals disagrees and affirms.

OCGA § 40-6-392 (a) (1) (B) (2) provides:
When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens.

OCGA § 40-6-392 (e) provides a procedure for laying the foundation that such person was qualified:
(1) A certification by the office of the Secretary of State or by the Department of Public Health that a person who drew blood was a licensed or certified physician, physician assistant, registered nurse, practical nurse, medical technologist, medical laboratory technician, or phlebotomist at the time the blood was drawn;

(2) Testimony, under oath, of the blood drawer; or

(3) Testimony, under oath, of the blood drawer's supervisor or medical records custodian that the blood drawer was properly trained and authorized to draw blood as an employee of the medical facility or employer

shall be admissible into evidence for the purpose of establishing that such person was qualified to draw blood as required by this Code section.

In this case, the State presented testimony from the owner of Ten-Eight Forensic Service, the company hired to draw Ussery's blood at the Gwinnett County jail. The owner testified her company began providing blood-draw services to police agencies in 2007, and at the time of trial, she provided services to 18 counties and 32 law enforcement agencies. She testified extensively to her operating protocols, including hiring standards, training and certification requirements, and quality control.  

Court of Appeals affirms. State met its burden of showing through the testimony that the blood drawer was properly trained and authorized to draw blood.

Woodruff v. Jones, No. A22A1551, 2023 WL 141227 (Ga. Ct. App. Jan. 10, 2023)
#personal injury #service #deceased defendant
Diamond Woodruff brought a personal injury action against Terrance Jones, who died before resolution. Jones's counsel filed a suggestion of death with the court on August 10, 2021, containing a certificate of service indicating that it was only served upon counsel for Woodruff and counsel for Woodruff’s insurance company. Acting sua sponte and in reliance on OCGA § 9-11-25 (a) (1), the trial court dismissed the action because Woodruff had not filed a motion to substitute a proper party for Jones within 180 days of the filing of a suggestion of Jones's death with the court. Court of Appeals reverses, because this 180-day period does not begin to run until the suggestion of death is personally served upon the nonparty representative of the decedent's estate.

The statute on which the trial court relied sets out a method for substituting a proper party for a party who is deceased. It provides:

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of the hearing, shall be served on the parties as provided in Code Section 9-11-5 and upon persons not parties in the manner provided in Code Section 9-11-4 for the service of a summons. Unless the motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.

OCGA § 9-11-25 (a) (1) provides for how time runs. “It is well established that the 180-day period during which a motion to substitute must be made to avoid possible dismissal of a deceased party to litigation does not commence to run until service is made upon the nonparty representative of the estate of the deceased and that service is reflected upon the record.”

Because the suggestion of death was not served on a nonparty representative of Jones's estate, the 180-day period set forth in OCGA § 9-11-25 (a) (1) had not yet begun to run.