*1 warranty attorney contract, breach of breach fees,1 and it damages laundry seeks for list of a “deficiencies and defects” record, construction of the house. from however, It unclear strictly damages which of these claimed relate to the work contem- plated by parties’ Agreement might and which relate to other property. Thus, we cannot determine as matter law that State potential responsibility coverage provide Farm no has on at least Goldbergs’ Accordingly, some of claims. affirm the trial grant summary judgment regard any court’s Farm State construction defects that constitute breach contract or breach of warranty, grant judgment summary but we reverse the as it any damages property. for relates to claim to other Judgment part. Smith, J., reversed E and affirmed Mikell, J., concur.
Decided November Gray, King, Gray Martineau, II, & Chamberlin William E. appellant. Adle, Sarah G. for appellee. Currie, Hiers, Cave,
Swift, McGhee & Moren R. A10A1106. BORING et al. v. STATE BANK AND TRUST
COMPANY. Presiding Judge. BARNES, Equipment Supply, M. and Mechanical Inc. (hereinafter collectively “Boring”), appeal from the trial court’s confirming properties order the foreclosure sale of certain State Company Bank and Trust held as loans commercial Boring guaranteed. Upon review, we affirm. confirming nonjudicial foreclosure sale under OCGA require
44-14-161, “shall show the true powers market value of under the and shall not confirm the sale unless it is satisfied that so sold brought its true market value such foreclosure sale.” hearing summary judgment, Goldbergs’lawyer argued At on the motion for “negligent component” put their claims contained a construction Forster on notice Goldbergs seeking damages independent [wouldbe] “the of. . their house . their contractual parties’ planned proceeding. expressly claim” in the arbitration We do not address potential may may parties’ proceeding, claims that asserted in arbitration those are not us. claims *2 proceedings, trier sits as the
44-14-161 In the trial court jury findings the of a verdict. fact, its and conclusions have effect and (1) (622 Properties, Ga. Indus. See Wilson v.Prudential 890) (2005), Galloway, citing McCain v. 449) (2004). decision Thus, will not disturb the court’s support Bank, 172 it. Oates v. Sea Island if there is evidence to Additionally, do “we weigh credibility we view the the evidence and determine witness judgment.” light in favorable to the trial court’s evidence the most omitted.) (Citation supra. Galloway, McCain v. 2005, SouthBank viewed, the evidence shows that March So gave LLC, loan the Habersham, a commercial Sierra Vista purchase property in Habersham certain real $1,420,000 amount of County, company gave debt on the SouthBank a deed secure and the promissory Contemporaneously property. with the execution agent managing Boring, registered and note, Sierra Vista’s Richard personally guaranty SouthBank, member, in favor of executed a changed guaranteeing 2005, In name to June SouthBank its the debt. Boring’s guaranty Security were Bank of Metro. The note and North September during 2007, In 2006 and 2007. renewed several times Equipment Supply, Inc., each Mechanical and and guaranty of Sierra Vista loan renewal. executed a the July Security and FDIC was 2009, Bank was closed In appointed bank, Receiver for the and became the successor-in- security guaranty, deed, renewals. Note, and interest September assigned Sierra Vista the FDIC its interest Boring’s guaranty, deed, to State note, and renewals August loan, Vista on the State Bank. Sierra defaulted declaring principal loan, balance due Bank accelerated the immediately. property, in October foreclosed on the
State Bank approximately purchased land the note ten acres of secured highest Bank, thereafter, $600,000 for filed bidder cash. State as the approved petition for the to have the sale confirmed and against Boring. Boring deficiency judgment purposes pursuing challenging standing dismiss, filed and a motion its answer Bank seek confirmation. State legality parties stipulated notice and the
The as to the hearing, State foreclosure sale itself. At the confirmation Bank property through presented on the true market value of George Galphin, general testimony a certified of its witness the appraiser. Galphin at his valuation of testified that he had arrived comparison approach,” property through “sales the comparing the use of the recently properties. similar, to five comparable properties, only Galphin that, also testified of the five required one them had sale,” been a “distressed which him to adjustments property’s make comparison to the sale value order to use it as a issue. Galphin’s testimony appraisal The trial court admitted into prima evidence and found that Bank had State made out its facie price represented case that the foreclosure sale the true market entering confirming approving value of an order pursuant the sale to OCGA 44-14-161. *3 Boring holding
1. first contends that the trial court erred that requisite “legal bring standing” State Bank had the its confirma- against guarantors, holding tion action and in that the issue of standing proceeding was irrelevant to a confirmation under OCGA agree. 44-14-161. doWe (a) provides: OCGA 44-14-161 foreclosure,
When real estate is sold on without legal process, powers security and under contained may deficiency deeds, ... no action be taken to obtain a judgment person instituting pro- unless the the foreclosure ceedings days report shall, sale, within 30 after the the sale judge superior county court in which the approval land is located for confirmation and and shall approval obtain an order of confirmation and thereon.
(Emphasis supplied.) hearing, Boring challenged At the confirmation standing bring State Bank’s the confirmation action because State properly assigned guaran- Bank did not show that it had been standing tees. The found that such were issues “outside scope hearing,” citing opinion of confirmation this court’s Sparti agree. Joslin, v. We
Regarding applicability statute, narrow of the confirmation Supreme explained: Court has only purpose subject The of the confirmation statute is to potential deficiency the creditor’s claim to the condition power judicial given that foreclosure sale under approval. proceeding The confirmation does not result in a personal judgment adjudicate and it does not the title of the Except sold. as to the confirmed amount of the liability any party sale, it does not establish regards to the indebtedness. (Citation punctuation emphasis supplied.) omitted; Vlass v.
Security Bank, Nat. Pacific (1993). Galloway, supra, McCain v. McCain County Galloway prove
argued assigned Bank had that Bartow failed him he foreclosed on deed to note and standing bring Galloway lacked and thus Citing Sparti, that the this court reaffirmed action. confirmation proceeding, statutory proceeding in which is a limited confirmation proceed- assignment to the confirmation issue was not relevant ing. [State Bank] [of]
Similarly was a real here, whether issue proceeding, party to this confirmation is not relevant interest (a) by § 44-14-161 with OCGA accordance which was commenced Sparti instituting proceedings.” person Joslin, the foreclosure supra, 230 at 346 finding Accordingly, the issue did not err in the trial court proceeding. standing to the confirmation challenges was not relevant Although Boring evidence, we the valuation also appraiser, Galphin, the did not find contends no error. *4 comparables, accuracy regarding testify specificity of his valuing accuracy verify he of information utilized did conclusions and he relied on inadmissible but that parties opinions from his file. of third unidentified permitted merely “expert not be serve an witness must While (V) (A) Terry, hearsay,” Whatley 555, 565 v. 284 Ga. as a conduit 651) (668 (2008), expert of market assessment an witness’s SE2d “exclusively special category placed a matter of it is in a as value is though expressed opinion Athens- a fact.” Govt. as even of Unified (564 453) (2002). (2) App. County 4 Watson, 1, SE2d v. Clarke upon hearsay, provided “may wholly opinion or in rest Such an opinion.” forming opportunity Id. a correct has had an the witness Galphin relied on the factual data Here, record reflects that opinions valuation, his not on their as his staff for collected value of the valuation his being question. properties his There no evidence that second-guess speculation, will not was based on sheer Fayette Banking methodology. Co., &c. 258 v. Branch Promenade (2002). (574 319) App. 323, 327 SE2d Ga. public brought general price sale, after at a “As a rule the prima proper advertisement, market facie the and lawful anything property sold, to indicate that of the absent value adversely chilling bidding, fraud, like or the there was App. Thompson affecting 758, 127 Maslia, v. Ga. the sale.” (195 238) [(1972)], and cit. 764 SE2d (225 460) (1976), Mtg. 101 SE2d Moore, Co. v. Ga. Wachovia Ivey-Matherly grounds, Deposit Corp. v. Ins. on other Fed. overruled 264) (1977). Co., 144 Constr. Based fully on above, the evidence more set forth sufficient evidence supported the trial court’s confirmation the foreclosure sale. (419 Properties Mtg. Co.,
Marett Centerbank Boring argues great that due to “the current real reces- estate evidentiary sion” court an this should establish rule effect that expert foreclosing party rely witness for must introduce or comparable properties admissible evidence show that used property assessment the value of the foreclosure were not “dis- suggest, authority however, tressed sales.” He does not under what might except generalized based, a rule for some notion of the gatekeeper judge admissibility evidence, such as that expert Orthopaedic Group, related to witnesses in v.Atlanta Condra (b) simply Moreover, OCGA 44-14-161 states that require shall to show the true market value [in foreclosure] and shall not confirm the sale unless it is brought satisfied that the so sold its true market value on preclude any specific such foreclosure sale.” The statute does property appraisal. method of Judgment fully J., Smith, Blackwell, J., P. concur affirmed. specially. Judge, concurring fully specially.
BLACKWELL, *5 fully majority opinion, separately I concur in the but I write to explain why carefully methodology we do not scrutinize more the appraisal expert majority opinion, that the we in this case In used. the say expert testimony that, because there is no that evidence the speculative, second-guess [the about valuation was “we will expert’s] methodology.” appropriate case, think, And that is I this testimony expert, no because one filed a motion exclude the of to this objected hearing testimony no valuation, one at the to his on no and testimony one to Instead, moved strike his on valuation. after the expert objection,1 testified about the of the value without Boring simply argued expert testimony that the was insufficient methodology expert according was, establish value because the of the Boring, Accordingly, only sufficiency flawed. the of the evidence 1 Boring object grounds hearsay expert explaining did once on when the was his officials, methodology relating public and he had discussions that with certain and the trial objection. objection, however, pertain testimony the overruled This did not the about — — given objection not, therefore, expert already valuation which the it had without and is material to our assessment of whether the evidence of valuation was sufficient to the sustain confirmation the sale. — admissibility hearing that not the the confirmation
adduced at — appeal. preserved our these was for review specifies no statute circumstances, and because the confirmation appraising particular the the market value of means for true correctly refrain from second- issue, I think that we expert. methodology by appraisal guessing used the the objection timely properly to the admissi is made But when § testimony bility expert 24-9-67.1, in a civil action under OCGA methodology expert precisely second-guessing is what the of the supposed Tort Reform Act do. Enacted as of the is trial court expert permits admit a trial court to 2005, OCGA 24-9-67.1 of testimony testimony only “will assist in a civil case when or to to understand the evidence cause action trier fact “[t]he only to the extent a fact in issue” and determine testimony principles product and methods” and of reliable reliably applied principles methods witness has timely objection is case.” 24-9-67.1 When facts of the testimony expert properly witness, the trial of an made to gatekeeper, Atlanta Ortho a see Condra v. court must function as (681 (2009), Group, paedic and the trial expert methodology used court must scrutinize scientifically and, therefore, valid reliable whether it is determine expert testimony. admitting Dow See Daubert v. Merrell LE2d Pharmaceuticals, S. SC 509 U. 592-593 469) (1993).2 today
Nothing be understood as retreat decision should our obligation courts their role as to ensure that the trial fulfill from our today nothing gatekeeper. be construed And in our decision should admissibility holding ordinary standards as a appraisal experts testimony apply expert inor in civil do not cases admissibility expert proceedings. confirmation testimony Because preserved review, we are not in this was case things. required to, not, and we do address Judge joins Presiding in this I state Smith am authorized to *6 opinion. 24,
Decided November appellants. George II, E. Butler
24-9-67.1 [2] We look to Daubert (f); Mason v. Home and its Depot U.S.A., progeny construing [279] OCGA 24-9-67.1. See (5) (658 § 603) § Kathryn Quirk Baird, Parnell, Quirk, & E. H. Brendan Dreger, appellee. Robin, J. Kenneth P. v. THE
A10A1183. BROWN STATE. Judge. Doyle, jury trafficking trial, After a Samuel Brown was convicted (electronic scales) possession cocaine1 of tools for the commission appeal, challenges sufficiency a crime.2 On Brown contending equal evidence, that other individuals had access to (1) argues premises. by also Brown the trial court erred (2) admitting impermissible recusing evidence; character not from (3) excusing juror motion; Brown’s trial employed by new trial for cause a (4) department; admitting sheriffs (5) denying home; from contraband seized motion for Brown’s Brown’s trial on new the basis that Brown received ineffective assistance of each counsel related to of the above-listed For errors. regard allegation affirm; follow, reasons with to Brown’s hearing pursuant the trial failed to conduct a to Uniform (“USCR”) Superior 31.3, Rule Court we remand to the trial court direction stated in as Division
Viewing light verdict,3 evidence in most favorable to the Probation Holli Officer Braden and other officers conducted a field January only visit of Brown’s residence on 2008. Brown was the talking home, individual at the and while he to Braden, was Brown suspicious, told her he needed to use the restroom. Braden became and she went to search the while restroom other officers searched object the home. She discovered in toilet tank she could identify immediately, present which another officer identified normally officer, scales used to That measure narcotics. other Investigator Kelly, trial, A1 who deceased was time of quantities large uncovered cocaine crack covered unused toilet restroom, tissue the trash can of the Braden and while a third photographed discovery. officer, evidence, who Also witnessed system, closed discovered was a circuit surveillance which monitored approaches, currency $3,542 all home’s on Brown’s person.
Virginia, See Lott v. OCGA 16-7-20. OCGA 16-13-31 U. S. 307 State, (a) (1). SC 61 LE2d See also Jackson