Thomas B. Cox v. Bank of America, N. A.

• Court: Court of Appeals of Georgia
• Decided: April 23, 2013
• Docket: A13A0362
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

April 23, 2013

In the Court of Appeals of Georgia A13A0362. COX v. BANK OF AMERICA, N.A.

MILLER, Judge.

Thomas Cox sued Bank of America (the “Bank”) to collect amounts he paid

the Bank when it allegedly informed him that certain money transfers were

fraudulent. The Bank moved to dismiss Cox’s complaint for failure to state a claim

upon which relief could be granted. Following a hearing, the trial court granted the

Bank’s motion. Cox appeals pro se, contending that the trial court erred in failing to

provide adequate discovery, relying on hearsay evidence to make its judgment, and

granting the Bank’s motion to dismiss. Finding no error, we affirm.

As an initial matter, we note that Cox’s brief fails to comport with the rules of

this Court in several ways. First, Cox fails to make a single citation to the record to

support any of his assertions. “Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the

Court will not . . . consider such enumeration.” Court of Appeals Rule 25 (c) (2) (i).

Second, Cox has listed three enumerations of error, but the argument in his brief fails

to follow the order and number of the enumeration of errors, as required by Court of

Appeals Rule 25 (c) (1). The argument itself does not even address each enumeration

of error. “As this Court has noted in the past, such briefs hinder this Court in

determining the substance and basis of an appellant’s contentions both in fact and in

law and may well prejudice an appellant’s appeal regardless of the amount of leniency

shown to a pro se appellant.” (Punctuation and footnote omitted.) Slmbey v. State, 288

Ga. App. 717, 718 (655 SE2d 223) (2007). Nevertheless, because the record in this

case is fairly small, and the Bank has provided sufficient citations to the record, we

will address the merits of Cox’s appeal.

1. Cox contends that the trial court erred in not allowing adequate discovery

because it should have granted his motion for production of documents. The trial

court ordered the Bank to respond more completely to two of Cox’s interrogatories.

After the Bank responded to these interrogatories, Cox moved for production of

documents. The trial court found that the Bank had complied with its discovery

obligations. “[W]e will not reverse a trial court’s ruling on discovery matters absent

2 a clear abuse of discretion.” (Citations and punctuation omitted.) Norfolk Southern

R. Co. v. Hartry, 316 Ga. App. 532, 533 (729 SE2d 656) (2012). Cox fails to show

a clear abuse of discretion here.

2. Cox contends that the trial court erred in dismissing his complaint and

improperly relied upon hearsay evidence to do so. Cox does not cite to anything in

the record or order to show that the trial court relied upon hearsay evidence in

dismissing his complaint. “We will not presume the trial court committed error where

that fact does not affirmatively appear in the record.” (Citation omitted.) Johnson v.

Equicredit Corp., 238 Ga. App. 380 (1) (517 SE2d 353) (1999).

As for Cox’s complaint, to the extent we can determine his cause of action, it

appears to be one based on fraud. Notably, in a few sentences, Cox appears to allege

that the Bank gave him false information that he relied upon to his detriment. Even

if we construe the pleading in the light most favorable to Cox, fraud requires “five

essential elements: a false representation, scienter, inducement, reliance, and injury

resulting from reliance on the false representation. Further, fraud must be pled with

particularity. OCGA § 9-11-9 (b).” (Citation and punctuation omitted.) Little v. Fleet

Finance, 224 Ga. App. 498, 500 (1) (481 SE2d 552) (1997). In this case, even if

Cox’s allegations are considered as true on a motion to dismiss, he has not alleged

3 sufficient facts to make out a prima facie case of fraud. Id. Therefore, we affirm the

trial court’s dismissal of Cox’s complaint.

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