author: Eldridge, Judge.

text:
    A00A2230.
    A00A2231.
    A00A2232.
    ROGERS v. THE STATE. MONTALVO v. THE STATE. BETTENCOURT v. THE STATE.
    (543 SE2d 81)
   Eldridge, Judge.

Jay Shannon Rogers, Stephen Allen Montalvo, and Paul Bettencourt were charged with the offenses of armed robbery (Count 1) and kidnapping (Count 2). Bettencourt was also charged with the offense of aggravated sodomy (Count 3). Following a jury trial, the jury found all three defendants guilty of armed robbery; Montalvo and Bettencourt guilty of kidnapping, Rogers not guilty of kidnapping; and Bettencourt guilty of aggravated sodomy. Defendants appeal from the denials of their respective motions for new trial. Because these appeals arise from the same trial, we consolidate them. We find no error and affirm.

The three defendants and the victim knew one another prior to the events which gave rise to this appeal. The victim considered Montalvo a friend, and the victim, Rogers, and Bettencourt had been roommates for a period of time. On March 28, 1999, at around 8:00 p.m., the victim was leaving work at McDonald’s and walking toward the Genesis Gym in Rabun County. Bettencourt, who was driving a pickup truck, pulled in front of the victim and stopped. Montalvo was a passenger in the truck. Bettencourt exited the truck and talked with the victim in a friendly manner for one to two minutes, but suddenly pulled a shotgun from the truck and forced the victim inside. With the victim thus secured, Bettencourt and passenger Montalvo picked up Rogers at his home and proceeded to “Stonewall.”

At Stonewall the victim was forced to give up his wallet at gunpoint. All three defendants held the gun at some point. Rogers and Bettencourt started to force the victim to commit oral sodomy on Rogers, but released him after the victim begged them to stop. Rogers hit the victim in the back of the head.

The victim was forced back in the truck at gunpoint, and they left Stonewall. They stopped for gas, and, while Rogers and Montalvo pumped and paid for the gas, Bettencourt held the victim in the truck at knifepoint. After leaving the gas station, Bettencourt dropped Rogers off at his house. Bettencourt stopped the truck down the road from Rogers’ house, asked Montalvo to hand him some rope, and tied up the victim. When the victim asked Montalvo what was happening, Montalvo replied, “[T]his is between you and Bettencourt.” After dropping Montalvo off at his house, Bettencourt drove up Screamer Road, stopped the truck, and attempted to force the victim to perform oral sodomy on him. When the victim resisted, Bettencourt put a plastic bag on the victim’s head. After the victim tore a hole in the bag, Bettencourt forced the victim at knifepoint to perform oral sodomy on him and to allow him to perform oral sodomy on the victim. Bettencourt then drove the victim back into town, stopped near the post office, untied the victim, and let him out of the truck.

Case No. A00A2230

1. Rogers claims that juror Barnett was not a resident of Rabun County and, therefore, was not qualified to be a competent juror. We disagree.

When the defendants’ case was called for trial, the venire panel was sworn and all jurors were asked to state where they lived, where they worked, if they were married, and where their spouses worked. In response to these questions, juror Barnett stated that he lived on Betty’s Creek Road, Rabun Gap; worked for the Department of Natural Resources; and traveled all over the staté. No further inquiry was made during voir dire concerning Barnett’s residence. Barnett was selected as a deliberating petit juror and was the foreperson of the jury. During voir dire, defendants’ counsel could have questioned Barnett further about his residency, but elected not to do so. “A juror incompetent propter defectum is made specially competent by the act of the parties in allowing him to serve without challenge, and a verdict will not be set aside for such cause.” (Citations and punctuation omitted.) Vaughn v. State, 173 Ga. App. 716, 718 (327 SE2d 747) (1985); Parris v. State, 125 Ga. 777 (1) (54 SE 751) (1906).

Further, under the testimony given at the motion for new trial hearing, we find no error in the trial court’s finding that Barnett was domiciled in Rabun County at the time of the trial.

2. Rogers alleges that the State failed to prove beyond a reasonable doubt that the alleged crime occurred in Rabun County. We disagree. The victim testified that the events set forth in our statement of facts occurred in Rabun County. Such testimony is sufficient to prove venue. OCGA § 24-4-8 (testimony of a single witness sufficient to establish a fact).

3. Rogers contends that the trial court erred in failing to charge on the law of circumstantial evidence, even though the defense did not make a request for such charge. Rogers argues that such charge is mandated because the only direct evidence that he committed the offense of armed robbery came from the victim’s testimony, which was impeached by witnesses for the defense who testified that the alleged victim had made prior inconsistent statements and that the victim’s reputation in the community was one of dishonesty. We disagree. This issue was decided adversely to Rogers in Carter v. State, 240 Ga. App. 203 (523 SE2d 47) (1999).

When the State’s case includes both direct and circumstantial evidence, a defendant is not relieved from the necessity of requesting a charge on circumstantial evidence. In the absence of a request to charge on circumstantial evidence, it is not error to fail to give it. Yarn v. State, 265 Ga. 787 (1) (462 SE2d 359) (1995).

Whether [the victim’s] testimony was impeached was a jury question, and even if the jury determined that he had been impeached, his credibility was a matter for that jury. Chapman v. State, 263 Ga. 393, 394-395 (3) (435 SE2d 202) (1993). As stated in Chapman, “the impeachment of a witness does not change the direct evidence given by that witness into circumstantial evidence.” Id. at 395 (3).

Carter v. State, supra at 206.

Regardless of whether the victim’s testimony was impeached, because there was direct evidence of Rogers’ guilt, and there was no request made by the defense for a charge on circumstantial evidence, the trial court did not err in refusing to give a charge on this issue.

4. Rogers alleges that the trial court erred in failing to charge the jury, without request, on the lesser included offense of simple robbery.

“A charge on a lesser included offense is waived in the absence of a written request.” Pearson v. State, 216 Ga. App. 333, 334 (454 SE2d 205) (1995). Rogers asserts that the charge should have been given even absent a request because simple robbery was his sole defense. Rogers argues that even though the victim testified that his money was taken at gunpoint, he denied possessing a weapon and admitted only that he used his hands to take the money in his statement to police.

“A trial court must charge the jury on a defendant’s sole defense, even without a written request, if the circumstances support the charge. Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) [(1991)].” Green v. State, 240 Ga. App. 774, 779 (525 SE2d 154) (1999) (McMurray, P. J., dissenting). Assuming, without deciding, that a lesser included offense is a “sole defense” as used in Tarvestad, contrary to Rogers’ assertion, there was no evidence to support a jury charge on simple robbery. The victim testified that while they were at “Stonewall” all three defendants at some point held the gun on him. Initially, Montalvo held the gun on him while Rogers and Bettencourt talked. Then Montalvo passed the gun to Rogers, and Montalvo and Bettencourt began to ask the victim how much his life was worth. Montalvo then gave the gun to Bettencourt who walked behind the victim and pointed the gun at his head and told him to get down on his knees. After the victim was allowed to stand back up, Rogers took the victim’s money and, then, hit him on the head.

Officer Cary Thomas was called to the stand by the State and testified to the statements given by all three defendants. While Officer Thomas testified that Rogers denied holding the gun, he also testified that Rogers stated there was a shotgun there that night, which would make him a party to the crime of armed robbery. Rogers and his co-defendants did not testify. Therefore, neither the evidence presented by the State nor the evidence presented by the defense reasonably raised the issue that Rogers may have been guilty of simple robbery.

5. In four separate enumerations of error, Rogers asserts that the prosecutor made improper comments and arguments during closing argument. However, he did not object below, and therefore, he did not invoke a ruling by the trial court.

An objection to improper closing argument must be voiced when the alleged impropriety occurs at trial in order that the trial court may take remedial action, if necessary. Todd v. State, 261 Ga. 766 (2) (a) (410 SE2d 725) (1991). In the case at bar, appellant did not interpose an objection to the assistant district attorney’s argument. Such failure to act has been held to constitute a waiver of the right to raise the issue on appeal (Wyatt v. State, 267 Ga. 860 (2) (a) (485 SE2d 470) (1997); Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996)); in other cases, the failure to object to improper closing argument has resulted in a review of the questioned argument to determine if there is a “reasonable probability” that, but for the improper argument, the result of the trial would have been different. See, e.g., Todd, supra; Mize v. State, 269 Ga. 646 (8) (501 SE2d 219) (1998); Bright v. State, 265 Ga. 265 (19) (455 SE2d 37) (1995). Recently, [the Supreme Court] resolved the seeming discrepancy in the standard of appellate review by holding that the “reasonable probability” test is applicable only to the review of a criminal case in which the death penalty was imposed. Mullins v. State, 270 Ga. 450 (2) (511 SE2d 165) (1999).

Metts v. State, 270 Ga. 481, 484-485 (511 SE2d 508) (1999). See also Billups v. State, 272 Ga. 15 (523 SE2d 873) (1999). Therefore, Rogers’ failure to object at trial to allegedly improper argument precludes appellate consideration of the merits of his contentions.

6. Rogers asserts that the trial court erred by giving confusing, inconsistent, and conflicting jury instructions concerning what evidence could be considered against each of the defendants. Initially, the trial court charged the jury that they could “consider all the evidence as a whole, conviction of one defendant does not necessarily require conviction of another or all of them.” Later in the charge, the trial court instructed the jury that

[a]ny statement made by one of the [defendants on trial in this case after the alleged criminal act has ended is admissible only against the person who made the statement, if the statement was freely and voluntarily made. Now if you find that a statement was made to the police freely and voluntarily by a [defendant on trial in this case, then you are to consider that statement only as against the particular [d]efendant who made it.

Rogers argues that these statements were in direct conflict and because no contemporaneous or additional instructions were given by the trial court to clarify the misleading jury charges, the jury was sent to deliberate with confusing and irreconcilable instructions which led the jury to wrongfully convict Rogers based on the statements of his two co-defendants. We disagree.

The earlier instruction stated a general rule that all evidence could be considered. The later instruction clarified the general rule that any statements made by one of the defendants could be used only against the declarant.

It is well-established that the charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of the same. Further, it is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required.

(Citations and punctuation omitted.) Roberson v. State, 236 Ga. App. 654, 655 (1) (512 SE2d 919) (1999). Considering the charge as a whole, we find no error.

7. Rogers alleges the trial court erred in granting the State’s motion in limine to exclude evidence concerning a prior altercation between the defendants and the victim’s parents, in which the victim’s parents pulled guns on the defendants. At trial, Rogers, while conceding that the victim was not present, argued that: (1) the victim sent the defendants to his parents’ home to retrieve some compact discs which the victim had taken when he moved out of the residence he had shared with two of the defendants; and (2) evidence of the encounter between the defendants and the victim’s parents would show the victim’s “motive in maybe bringing these charges here today.” On motion for new trial and on appeal, Rogers argues that such actions on the part of the victim showed his willingness to put the defendants in harm’s way to avoid his debts and to keep the compact discs he took when he moved out.

Assuming, without deciding, that the trial court erred in granting the State’s motion in limine, the question that remains is whether the exclusion of this evidence was harmful error requiring a reversal of defendants’ convictions and a new trial. “The Supreme Court of Georgia has adopted the highly probable test when determining if an error is harmless. If it is highly probable that the error did not contribute to the judgment then the error is harmless.” (Citations and punctuation omitted.) Letlow v. State, 222 Ga. App. 339, 343 (474 SE2d 211) (1996). “Where there is other evidence relating to the same issues the error addresses, especially where it is overwhelming, it is highly probable the error did not contribute to the judgment.” (Citations and punctuation omitted.) Nixon v. State, 234 Ga. App. 797, 800 (507 SE2d 833) (1998).

In this case, the defendants were allowed a thorough and sifting cross-examination of the victim on the issues of whether he took compact discs belonging to Rogers and Bettencourt when he moved out, if he owed them rent money, and if he had made statements to others that he had the defendants locked up for something they did not do. Additionally, defendants were allowed to put into evidence the testimony of three witnesses who testified that the victim had stated in their presence that he made up the incident between him and defendants to get defendants in trouble because he owed them money and could not pay it. Consequently, it is highly probable that error, if any, in the trial court not allowing evidence of the altercation between the defendants and the victim’s parents did not contribute to the judgment.

8. Rogers argues that the trial court erred in failing to charge the jury that the existence of a conspiracy must be proved before a jury can consider one co-defendant’s statements against another co-defendant. See OCGA § 24-3-5.

Our review of the record reveals that Rogers did not request such a charge. Rogers nevertheless maintains this omission was reversible error. We do not agree.

OCGA § 5-5-24 (b) places a duty on the defendant to request jury instructions. The defendant is relieved of this duty only in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

(Citations and punctuation omitted.) Prine v. State, 237 Ga. App. 679, 681 (515 SE2d 425) (1999). Rogers relies on the victim’s testimony at trial as requiring a conspiracy charge. Pertinently, the victim testified that: (1) while he was being held at gunpoint, co-defendant Bettencourt asked if he wanted to live, if he cherished his life, if he wanted to keep on living, how much was his life worth, and for him to get on his knees; and (2) co-defendant Bettencourt told co-defendant Montalvo to give him a knife that was on the floorboard of Bettencourt’s truck. However, this evidence was admissible as part of the res gestae of the crime.

Acts are pertinent as part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it.

(Citations and punctuation omitted.) Berry v. State, 235 Ga. App. 35, 37 (508 SE2d 435) (1998). And “[t]he state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged.” (Citation and punctuation omitted.) Myrick v. State, 242 Ga. App. 892, 894 (531 SE2d 766) (2000). Since the evidence was admissible as part of the res gestae of the crime, the evidence did not support a charge based on OCGA § 24-3-5.

9. Rogers contends that on three separate occasions the State improperly bolstered the credibility of the alleged victim. Initially, Rogers complains of the victim’s affirmative response when the prosecutor asked the victim if the victim was telling the truth. Next, Rogers complains of the testimony of Officer Thomas on recross-examination by co-defendant Bettencourt’s counsel where Thomas responded that the victim’s emotional trauma could account for the victim’s failure to state all the details of the incident in his initial statement to police. Finally, Rogers alleges as error defense witness Scott Newmire’s response to the prosecutor’s question, “How was he emotionally holding up at this point?” Newmire replied, “That would be hard to give a definitive answer. He was ... he was upset as most victims would be on any sexual assault case.”

Rogers did not object to any of this testimony at trial. While Rogers started to raise an objection to Thomas’ response, he did not complete his objection. Rogers’ counsel merely stated, “I object,” and when the trial court inquired on what grounds, Rogers’ co-counsel stated, “Let him finish judge. I’m interested in this.” Rogers’ counsel did not continue his objection. As a general rule, it is necessary to object at the time evidence is actually offered, or the objection is waived. Moreover, an objection different from that made below may not be claimed on appeal; appeal is limited to the ground advanced below. Cherry v. State, 230 Ga. App. 443, 446 (496 SE2d 764) (1998).

Rogers contends that even though he did not object to the testimony at trial, the admission of such constituted plain error and, thus, comes outside the general rule. We disagree. “Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Buice v. State, 239 Ga. App. 52, 56 (520 SE2d 258) (1999); see also Lynd v. State, 262 Ga. 58 (414 SE2d 5) (1992); United States v. Fuentes-Coba, 738 F2d 1191, 1196 (11th Cir. 1984). Error which is examined under the plain error standard is that “which is obvious and affects the appellant’s substantial rights and ‘where exceptional circumstances make it necessary to avoid a clear miscarriage of justice.’ [Cit.]” Id. at 1197. The United States Supreme Court has held that in order to apply the plain error rule, there must be (1) error that has not been waived, (2) error that is plain, and (3) error which affects the substantial rights of the appellant. Only if these three conditions are met and the error seriously affects the fairness, integrity, or public reputation of the judicial proceeding may an appellate court exercise its discretion to notice a forfeited error. United States v. Olano, 507 U. S. 725, 732-736 (113 SC 1770, 123 LE2d 508) (1993).

Pretermitting that such testimony was error, such testimony does not meet the plain error standard for review. Under the evidence, such testimony, if in error, was not harmful and does not affect the substantial rights of Rogers. Rogers was convicted of armed robbery. He was not convicted of or charged with any crime involving sexual assault. In addition to the victim’s testimony, Rogers in his own statement admitted that he was at Stonewall; that he knew there was a gun there; that he hit the victim; and that he took $20 from the victim. Further, Officer Newmire testified that at the hospital he observed a lump on the victim’s head and ligature marks on the victim’s wrists. Additionally, a shotgun, knife, and rope were found in co-defendant Bettencourt’s truck. As this is not a case of plain error, Rogers waived the error by failing to object at trial.

Case No. A00A2231

10. We reject Montalvo’s contention that the admission of his two co-defendants’ statements to the police violated his Sixth Amendment rights and constituted a violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968) (“Bruton”).

Bruton held that the admission of a statement of a non-testifying co-defendant which inculpates the defendant unconstitutionally deprives that defendant of the Sixth Amendment right to cross-examine witnesses, even where the jury is instructed to limit its consideration of the statement to the co-defendant who made it. While a non-testifying co-defendant’s statement which is redacted so that it eliminates any reference to the existence of the defendant will withstand scrutiny under Bruton so long as it is accompanied by instructions limiting its use to the case against its maker, a non-testifying co-defendant’s statement which is redacted by merely replacing the defendant’s name with a blank or symbol violates Bruton regardless of whether limiting instructions are given.

(Footnotes omitted.) Davis v. State, 272 Ga. 327, 330-331 (528 SE2d 800) (2000). See also Gray v. Maryland, 523 U. S. 185 (118 SC 1151, 140 LE2d 294) (1998); Richardson v. Marsh, 481 U. S. 200 (107 SC 1702, 95 LE2d 176) (1987); Hanifa v. State, 269 Ga. 797 (505 SE2d 731) (1998).

In this case, while co-defendant Bettencourt’s initial statement mentioned Montalvo by name, it denied any involvement of either of them in the crime. Bettencourt’s denial could in no way be considered inculpatory of Montalvo. Bettencourt’s subsequent oral statement, “If I was there and if we had sex it was consensual!,]” is not inculpatory of either co-defendant. The oral statement did not mention either of Bettencourt’s co-defendants by name or refer to another person whom the jury could infer to be either of his co-defendants. Further, only Bettencourt was charged with any sexual crime.

Likewise, when Officer Thomas testified to the content of Rogers’ statement, the questions and answers were formed in such a way as to indicate only the actions of Rogers and the victim. The names of the co-defendants were not used, nor did the statements refer to another person the jury could infer to be either co-defendant.

The fact that the jury might infer from the contents of the co-defendant’s statement in conjunction with other evidence, that the defendant was involved does not make the admission of the co-defendant’s statement a violation of the Confrontation Clause. Richardson v. Marsh, [supra at 211].

Hanifa v. State, supra at 803-804.

Montalvo further argues that the trial court failed to give a limiting instruction that the redacted statements should be considered only against the maker contemporaneously with the introduction of the statements. However, no request was made by defendants at trial for such a contemporaneous limiting instruction. The jury was given a proper limiting instruction during the trial court’s final instructions to the jury before the jury began its deliberations. At such time, the trial court instructed the jury that the guilt or innocence of each defendant must be determined separately and that any statement made by one of the defendants was admissible only against the person who made the statement. Hence, there was no error. See Stanford v. State, 272 Ga. 267 (528 SE2d 246) (2000) (request for contemporaneous limiting instructions with prior act evidence waived by acquiescing to trial court’s ruling denying such contemporaneous request); Stone v. State, 236 Ga. App. 365 (511 SE2d 915) (1999); Johnson v. State, 236 Ga. App. 252 (511 SE2d 603) (1999) (absent a request, a trial court has no obligation to give a contemporaneous limiting instruction on similar transaction evidence).

11. At trial, defense counsel sought to introduce evidence through cross-examination of the victim and through the testimony of a witness that the victim had stated he fantasized of having a sexual relationship with a man. Montalvo alleges that the trial judge abused his discretion in excluding evidence of the victim’s homosexual fantasies because such evidence would impeach the victim’s credibility and showed a “motive or scheme” for the victim making up the acts he claims the defendants committed against him. We disagree.

(a) Montalvo was not charged with a sexual offense. Thus, such claim of error cannot establish the requisite harm as to Montalvo. Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972).

(b) Any fantasy which the victim may have had was collateral to the issues being tried. The defense may not make “a collateral attack upon the witness’ credibility, impeaching in nature.” (Citation and punctuation omitted.) Bledsoe v. State, 236 Ga. App. 796, 798 (513 SE2d 768) (1999).

(c) Assuming arguendo that this alleged “fantasy” was an act of bad character, specific acts showing bad character are not admissible to impeach a witness’ credibility. Hollis v. State, 225 Ga. App. 370, 371 (484 SE2d 54) (1997).

(d) Finally, any previous consensual homosexual fantasies the victim may have had would in no way support an inference that the accused could have reasonably believed that the victim consented to the conduct complained of in the prosecution which included armed robbery and kidnapping, as well as nonconsensual aggravated sodomy at knifepoint. See OCGA § 24-2-3; Martin v. State, 219 Ga. App. 277, 280 (3) (464 SE2d 872) (1995).

12. Montalvo alleges error that a juror was not a resident of Rabun County. This enumeration has been decided adversely to Montalvo in Division 1.

13. Montalvo alleges that the victim’s testimony was improperly bolstered by the admission into evidence of Officer Newmire’s entire police report to the jury. However, this objection was never made at trial. Officer Newmire was called as a witness by the defense and was questioned about the statement the victim had given him. At the State’s request and without initial objection by defense counsel, Officer Newmire began reading the entire report into the record. After Officer Newmire had read the portion of his report where he had recorded the victim’s statement of the events which had transpired, defense counsel objected to Officer Newmire reading that portion of the statement which “talks about ultraviolet lighting — fluorescent white splotches on [the victim’s] chin and throat” because counsel did not “believe the witness has the expertise — to testify what that was.” “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citations and punctuation omitted.) Workman v. State, 235 Ga. App. 800, 801 (510 SE2d 109) (1998).

14. Montalvo claims that the trial court erred in denying his new trial motion because trial counsel was ineffective due to counsel’s failure to: (1) request a charge on robbery; (2) proffer evidence of the victim’s alleged sexual fantasy; and (3) preserve any Bruton issues for appeal.

To prevail on a claim of ineffective assistance of trial counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The defendant must overcome the strong presumption that counsel’s performance fell within the broad range of reasonable professional conduct and must show that there is a reasonable probability that, absent counsel’s deficiency, the result of the trial would have been different. Cross v. State, 271 Ga. 427, 430 (3) (520 SE2d 457) (1999).

(a) Pursuant to our holding in Division 4, Montalvo was not entitled to a charge on robbery. Hence, counsel’s failure to request such a charge was not ineffective assistance of counsel.

(b) Further, pursuant to our holding in Division 11, the alleged “fantasy” of the victim was not admissible. Therefore, trial counsel was not ineffective for his failure to make a proffer of such evidence.

(c) Lastly, Montalvo alleges that his trial counsel was ineffective in failing to preserve any Bruton issues. We have addressed the Bruton issues raised by Montalvo in Division 10. Hence, this enumeration provides nothing for us to review.

Case No. A00A2232

15. Bettencourt alleges error in the admission of statements his co-defendants made to police. This enumeration of error has been decided adversely to Bettencourt in Division 10. Neither of the statements made by Bettencourt’s co-defendants was inculpatory of Bettencourt. Neither statement referred to Bettencourt by name or referred to another person whom the jury could infer to be Bettencourt.

16. Bettencourt alleges error in the trial court’s refusal to allow the victim to be impeached with evidence of his sexual fantasies. This enumeration has been decided adversely to Bettencourt in Division 11.

17. Bettencourt alleges as error that the juror foreperson was not a resident of Rabun County. This enumeration of error has been decided adversely to Bettencourt in Division 1.

18. Bettencourt alleges he was denied effective assistance of counsel at trial.

(a) Bettencourt argues that his trial counsel was ineffective because counsel: (1) did not move to strike or request a mistrial when Officer Newmire testified that the victim “was upset as most victims would be on any sexual assault case”; and (2) failed to object to improper remarks made by the prosecutor during closing argument.

Bettencourt did not raise an ineffective assistance of counsel claim on these specific grounds at the trial level. Post-trial, Bettencourt obtained new counsel who filed a motion for new trial on general grounds on December 10, 1999. On February 10, 2000, counsel filed an amended motion for new trial which raised ineffective assistance of counsel, but which did not include these specific grounds. Further, at the hearing on the motion for new trial, these grounds were not argued or ruled on by the trial court.

Our Supreme Court has stated that an ineffective assistance of trial counsel claim must be raised at the first practicable moment. Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1991). The Court has further held that a claim of ineffective counsel must be raised before appeal if an opportunity to do so is available. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996). If the opportunity to present such a claim was available, “the failure to seize that opportunity is a procedural bar to raising that issue at a later time.”

Wilcox v. State, 236 Ga. App. 235, 239 (4) (511 SE2d 597) (1999). Here, Bettencourt had an opportunity to raise any ineffective assistance of counsel claims at the trial level and did so. However, his failure to include these specific grounds at trial precludes our review of them on appeal.

(b) Bettencourt further alleges his counsel was ineffective in failing to request a severance of his trial from his co-defendants. However, at the motion for new trial hearing, trial counsel testified that he did not file a motion for severance because as a matter of trial strategy he felt that if all three defendants were tried together, the State would have problems with the admission of the defendants’ statements under Bruton. Trial strategy and tactics do not equate with ineffective assistance of counsel. Phillips v. State, 233 Ga. App. 557, 559 (504 SE2d 762) (1998).

Decided November 28, 2000

Reconsideration denied December 8, 2000

Brian Steel, L. Allyn Stockton, Jr., for appellant (case no. A00A2230).

Kenneth D. Kondritzer, for appellant (case no. A00A2231).

Douglas L. Henry, for appellant (case no. A00A2232).

Michael H. Crawford, District Attorney, Robert D. Cullifer, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       On motion for new trial, Barnett testified as follows: At the time of trial, he was employed by the Department of Natural Resources (“DNR”) as the interpreter specialist for the state. His job required him to travel throughout the state, and he usually stayed in a different place each night. He did not own or rent a house or apartment anywhere within the state. When he went to the main office of DNR in Atlanta, he stayed with his aunt and helped pay part of her utilities. When he was not working, he spent most of his time in Rabun County. He was in Rabun County anywhere from one to three days each week and usually camped. The address he gave at trial was for the Hambidge Center where he has a permanent “association,” and he considers it to be his local home. Barnett further testified that he considers Rabun County to be his home and is registered to vote, pays ad valorem tax on two vehicles, banks, buys insurance, and gets his personal mail in Rabun County. No additional witnesses were called.

       At trial, when Rogers’ and his co-defendants’ statements were introduced into evidence, they were introduced in such a manner so that they did not implicate anyone other than the declarant.

       Waiver is the “ ‘intentional relinquishment or abandonment of a known right,’ ” as opposed to a forfeiture which is “the failure to make the timely assertion of a right.” (Citations omitted.) United States v. Olano, supra at 733.

       Plain error is that where the law is settled at the time of trial and clearly contrary to the law at the time of appeal. Johnson v. United States, 520 U. S. 461, 468 (117 SC 1544, 137 LE2d 718) (1997).

       “[I]n most cases [‘affects substantial rights’] means that the error must have been prejudicial: It must have affected the outcome of the [trial] court proceedings. [Cits.]” United States v. Olano, supra at 734.


source: Caselaw Access Project

license: Public Domain

text:
    A00A2582.
    BROWNS MILL DEVELOPMENT COMPANY, INC. et al. v. DENTON et al.
    (543 SE2d 65)
   Eldridge, Judge.

Browns Mill Development Company, Inc. and Peach State Development Group, Inc. sued William Douglas Denton, individually and d/b/a DeKalb Citizens for a Better Environment, for trespass and for defamation in written opposition to its rezoning petition. The trial court dismissed the entire action for failure to verify the complaint under OCGA § 9-11-11.1, the anti-SLAPP (Strategic Litigation Against Public Participation) statute. Since (a) the defamation action arose under OCGA § 9-11-11.1, we affirm the dismissal of the defamation action; and (b) the trespass is a common law tort action that occurred outside the ambit of OCGA § 9-11-11.1, we reverse the dismissal of the trespass count.

Browns Mill had an application for rezoning before the DeKalb County Board of Commissioners. On July 28, 1999, Denton sent to the DeKalb County Board of Commissioners a memorandum opposing the rezoning application of Browns Mill and all future zoning applications by any developer, regarding negative environmental impact by development in the county.

On September 3,1999, Denton released to the media and certain governmental officials, including the Governor, a document in opposition to “irresponsible land use patterns in DeKalb County as it affects soil and water” and targeted certain projects, i.e., Waldrop Hills owned by Peach State. In support of his claims of various environmental violations, Denton included extensive photographs. Plaintiffs’ contention is that such photographs could not be made without Denton going onto the plaintiffs’ property and thereby he committed an actionable trespass.

1. Plaintiffs contend that the trial court erred in dismissing its complaint for defamation and trespass under OCGA § 9-11-11.1. We agree in part and disagree in part.

In 1996, the General Assembly passed the limited anti-SLAPP statute, because it wanted to protect the constitutional right of freedom of speech as it involved the direct and indirect petition of government for redress of grievances and to avoid the chilling of such rights through abuse of the judicial process arising from the exercise of such specific rights. OCGA § 9-11-11.1; Ga. L. 1996, p. 260, § 1. Under the clear and unambiguous language of OCGA § 9-11-11.1, the General Assembly expressed the statutory meaning of an “act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” as to petition to a “legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” in connection with an issue under consideration or review before such body by any written or oral statement, writing, or petition, which applies only to certain First Amendment rights and not all exercise of First Amendment rights. OCGA § 9-11-11.1 (b), (c); Great Western Bank v. Southeastern Bank, 234 Ga. App. 420, 422 (507 SE2d 191) (1998). See generally Natron v. Land, 242 Ga. App. 259, 260 (529 SE2d 390) (2000). The statute deals only with “abusive litigation that seeks to chill exercise of certain First Amendment rights” based upon defamation, invasion of privacy, breach of contract, and intentional interference with contractual rights and opportunities arising from speech and petition of government. Great Western Bank v. Southeastern Bank, supra at 422. Thus, conduct protected within the statute is that free speech and petition of government directed to or made before a legislative, executive, or judicial body in regard to an executive, legislative, or judicial proceeding or other official proceeding authorized by law involving an issue of public interest or concern to influence its actions in such regard. OCGA § 9-11-11.1 (b), (c); Providence Constr. Co. v. Bauer, 229 Ga. App. 679, 680 (1) (494 SE2d 527) (1997) (physical precedent only). See generally Nairon v. Land, supra at 260. The anti-SLAPP statute does not safeguard extrajudicial action that constitutes tortious misconduct to gather information for use in free speech or petition.

(a) On the face of the alleged facts of this case contained in the complaint, Denton’s memorandum to the DeKalb County Board of Commissioners and his dissemination of his environmental report to the media and to governmental officials clearly come within the ambit of OCGA § 9-11-11.1, because these documents constitute a petition to an executive branch of government; made in opposition to the application for rezoning now and in the future before such body; and involved alleged issues of county-wide soil and water environmental protection and alleged violations of environmental laws in the county, which were matters of general public concern and interest. See Providence Constr. Co. v. Bauer, supra at 680 (written petition opposing rezoning, letters to county officials, and exercise of free speech before the county planning commission in opposition to the rezoning, as constituting a petition of government). Thus, the defamation action should have been verified under the statutory requirements of OCGA § 9-11-11.1, and such action was properly dismissed for failure to comply with this verification condition precedent to filing or within ten days of the motion to dismiss.

(b) The count of the complaint for trespass, however, does not come within OCGA § 9-11-11.1, because it did not involve free speech as part of a petition to government. See OCGA § 9-11-11.1 (b). Statutes in derogation of common law must be strictly construed against the party asserting the right under the statute. Davis v. Emmis Publishing Corp., 244 Ga. App. 795, 799 (536 SE2d 809) (2000) (Eldridge, J., concurring specially); Corner v. State, 223 Ga. App. 353, 355 (477 SE2d 593) (1996); Hester v. Chalker, 222 Ga. App. 783, 784 (476 SE2d 79) (1996). Therefore, this Court may not construe this clear, plain, and unambiguous statute as including a common law action which is not prohibited expressly by the statute and does not directly involve free speech and petition. See Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981); Davis v. Emmis Publishing Corp., supra. Thus, the trial court committed plain error in dismissing the trespass count for not being verified. Wilson v. State Farm &c. Ins. Co., 239 Ga. App. 168, 171-172 (520 SE2d 917) (1999).

(c) Plaintiffs contend that they do not come under OCGA § 9-11-11.1, because the statements contained in the Denton materials are false, and “there is no constitutional value in false statements of fact,” i.e., defamation of a private person who has not injected himself or herself into the public eye through the news media is subject to the common law standards without First Amendment protection. Gertz v. Robert Welch, Inc., 418 U. S. 323, 339-340 (94 SC 2997, 41 LE2d 789) (1974).

While this is all true and defamation may be proven at trial, the General Assembly, as a matter of Georgia public policy, has created a condition precedent for filing certain lawsuits that are based upon an alleged exercise of free speech and petition through

any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

OCGA § 9-11-11.1 (c); Providence Constr. Co. v. Bauer, supra at 680. The General Assembly has created a procedure by which a party’s fundamental constitutional rights to be afforded the opportunity to be heard and to present one’s claim or defense is protected and, at the same time, is made subject to a reasonable condition precedent to avoid frivolous and abusive litigation that is intended to chill the exercise of free speech and right to petition government. OCGA § 9-11-11.1. See generally In re Lawsuits of Carter, 235 Ga. App. 551, 552-553 (1) (510 SE2d 91) (1998).

Clearly the memorandum of July 28, 1999, came within this statutory definition of free speech and to petition government, because it constituted a petition addressed to the DeKalb County Board of Commissioners to influence their action on a rezoning of one plaintiff’s land and all similar rezoning petitions in the future and was in opposition for alleged environmental reasons with alleged county-wide effect. OCGA § 9-11-11.1 (b), (c). The September 3, 1999 Denton report was directed to the media and government personnel and officials regarding the same issues that were before the Commissioners and was intended to dramatize and indirectly influence the Commission action in regard to Denton’s initial petition through negative publicity over similar development with alleged environmental problems in DeKalb County, i.e., issues of public interest and concern. All such writings came within OCGA § 9-11-11.1 (b); Providence Constr. Co. v. Bauer, supra at 680.

If the facts and circumstances giving rise to the alleged cause of action prima facie meet the definition of OCGA § 9-11-11.1 (c), then plaintiffs and their attorney of record are mandated, as a precondition of filing an action based upon such facts, to satisfy OCGA § 9-11-11.1 (b) or risk their complaint being stricken or dismissal without prejudice. A trial court, not the party, must determine if there is a bona fide action for defamation brought in good faith and not as abusive litigation to chill constitutional rights of freedom of speech and right of expression as defined by the statute. The written verification shall certify in substantial compliance that the party and the attorney of record are aware of the content of the complaint by reading it, having it read to them, or described to them; that they, under oath or affirmation, do in good faith represent to the court that to the best of their knowledge and belief formed after reasonable inquiry the complaint is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that such action is not interposed for any improper purpose, i.e., to suppress a right of free speech or to petition government, to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. See OCGA §§ 1-3-1 (c); 9-11-11.1 (b); Providence Constr. Co. v. Bauer, supra at 680. In short, the verification is not to be treated as a technical trap for the dismissal of actions.

2. Plaintiffs contend that the trial court erred in failing to require Denton to meet the burden of proof that OCGA § 9-11-11.1 applied prior to dismissing their action. We do not agree.

If a plaintiff fails to verify the complaint in compliance with OCGA § 9-11-11.1, then the General Assembly has afforded such party, after notice, ten days within which to do so or risk the complaint being stricken. Such requirement is not an unreasonable burden to satisfy the public policy of this State, and the risk of the complaint being stricken only comes after ten days notice that such statutory protection has been invoked; therefore, no surprise exists, creating an undue hardship on the plaintiff.

Decided November 28, 2000

Reconsideration denied December 8, 2000

Quirk & Quirk, Neal J. Quirk, Joseph P. Farrell, Brendan H. Parnell, for appellants.

Smith, Gambrell & Russell, Andrew M. Thompson, Stephen E. O’Day, for appellees.

Gerald R. Weber, Jr., Robert Tsai, amici curiae.

Neither party has the burden of proof on a motion to dismiss or strike under OCGA § 9-11-11.1 (b), because this issue is a matter of law for the trial court’s determination based upon the pleadings, rather than upon evidence presented by either party. OCGA § 9-11-11.1 (b); Davis v. Emmis Publishing Corp., supra; Providence Constr. Co. v. Bauer, supra at 680. If on an evidentiary motion there is a showing that the verification was made in violation of the Code section, then the trial court shall impose appropriate sanctions. OCGA § 9-11-11.1 (b).

Judgment affirmed in part and reversed in part.

Blackburn, P. J., concurs. Barnes, J., concurs as to Divisions 1 (a) and (c) and 2 and concurs in judgment only in Division 1 (b).

        Field v. Kearns, 43 Conn. App. 265 (682 A2d 148, 153) (1996); see also Beatty, The Legal Literature on SLAPPs: A Look Behind the Smoke Nine Years After Pring and Canan First Yelled “Fire!”, 9 U. Fla. J. L. & Pub. Pol’y, 85, 86 (1997); Baruch, If I Had a Hammer: Defending SLAPP Suits in Texas, 3 Tex. Wesleyan L. Rev. 55, 57 (1996); Hargus, Civil Practice Act: Prohibit a Civil Litigant from Interposing a Claim for an Improper Purpose, 13 Ga. St. U. L. Rev. 23, 28 (1996).

       Dismissal of the complaint or being “stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim” is set forth as a sanction under OCGA § 9-11-11.1 (b) and (f), but is not stated to be a dismissal on the merits. Thus, the statute treats such defect as a matter of abatement as in OCGA § 9-11-12 (b) (1) through (5) and (7), which affects the trial court’s jurisdiction only and can be waived by not being timely raised. OCGA § 9-11-12 (h). Under OCGA § 9-11-41 (b), such dismissal or being stricken is in the order of “a dismissal fhr lack of jurisdiction or for improper venue or for lack of an indispensable party [and] does [not] operate as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise.” “Subject matter jurisdiction is simply a power that is conferred by law upon a class of cases that authorizes a court within such class to grant a particular form of relief that might be sought by, or accorded to, a party before it.” Wallace v. Meyer, 260 Ga. 253, 255 (5) (b) (394 SE2d 350) (1990). In this case, the dismissal is in the nature of a dismissal for lack of subject matter jurisdiction as an abatement of the action rather than an adjudication on the merits, because a condition precedent to suit has not been complied with by the plaintiff. See generally Rehco Corp. v. California Pizza Kitchen, 192 Ga. App. 92, 94 (383 SE2d 643) (1989); see also Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 483 (379 SE2d 6) (1989); Empire Fire &c. Co. v. Metro Courier Corp., 234 Ga. App. 670, 673 (2) (507 SE2d 525) (1998).

       Plaintiffs urge that this Court adopt the practice and procedure of California and Massachusetts that require the defendant to initially carry the burden of proof that the conduct comes under the protection of the anti-SLAPP statute prior to dismissing a complaint. See Marich v. QRZ Media, 73 Cal. App.4th 299 (86 Cal. Rptr.2d 406) (1999); McLarnon v. Jokisch, 431 Mass. 343 (727 NE2d 813) (2000). The simple answer is that this was not the statutory scheme adopted by the General Assembly of Georgia and that the foreign statutes, i.e., Cal. Civ. Proc. Code § 425.16 and Mass. Gen. Laws Ch. 231, § 59H, are not the same as OCGA § 9-11-11.1; thus, importing foreign case law interpreting a dissimilar foreign statute and jurisprudence can lose the true legislative intent of the Georgia General Assembly.


text:
    A00A2436.
    SKIPPER SAMS, INC. v. ROSWELL-HOLCOMB ASSOCIATES, LTD. et al.
    (543 SE2d 765)
   Eldridge, Judge.

Plaintiff-appellant Skipper Sams, Inc. (“Skipper Sams”) appeals from the trial court’s grant of summary judgment to defendantsappellees Roswell-Holcomb Associates, Ltd., Ben F. Kushner, and James Bader (collectively “Roswell-Holcomb”) on Skipper Sams’ contract action seeking recovery for alleged fraud, negligent misrepresentation, and breach of contract. After conducting a de novo review of the trial court’s judgment, it is affirmed.

Viewing the evidence and all inferences drawn therefrom in a light most favorable to nonmovant Skipper Sams, the record shows that Robert Weinberg, Sam Weinberg, and Fred Weinberg (the “Weinbergs”) expressed interest in assuming a lease from George Sarris (“Lease”) for a restaurant that Sarris operated out of Cross-ville Village Shopping Center (“shopping center”) in Roswell. Roswell-Holcomb is the landlord of the shopping center, and it employs as its leasing agent Ben F. Kushner Company, Inc. (“leasing company”). Kushner is a general partner of Roswell-Holcomb, as well as an employee of the leasing company. Bader was also employed by the leasing company.

While negotiating with Sarris on a purchase price for the restaurant, the Weinbergs also met twice with Bader and/or Kushner between the middle of August and the end of September 1991 in order to discuss assuming Sarris’ Lease. At the meetings, Bader and/ or Kushner told the Weinbergs: (1) that Roswell-Holcomb had signed a lease with TGI Fridays (“Fridays”) to open a restaurant in the shopping center; (2) that Roswell-Holcomb would then renovate the shopping center to provide a new, updated facade; (3) that Roswell-Holcomb would then erect a large new pylon sign near the highway; and (4) that currently Roswell-Holcomb was “working” on obtaining a major, national tenant to move into the shopping center’s vacant anchor space (hereinafter referred to as “the four representations”). The Weinbergs were told that “as soon as they would start construction for Fridays, that’s when everything else was going to happen.” At both these meetings, the Weinbergs made it clear to Roswell-Holcomb that, “in the event the parties contract with each other,” the Weinbergs would organize and charter a corporation to be called “Skipper Sams, Inc.” and that Skipper Sams would be the party assuming the Lease.

Thereafter, the Weinbergs continued negotiations with Sarris in order to reduce the price of his restaurant. The Weinbergs did not mention Fridays to Sarris because they “didn’t want him to know that [they] knew it”; they were “trying to get his price down.” Finally, Sarris and the Weinbergs reached a price which was acceptable to both parties, and on October 30, 1991, they entered into a purchase agreement.

On November 1, 1991, the Weinbergs chartered and incorporated Skipper Sams. Later that same day, November 1, 1991, Roswell-Holcomb, Sarris, and Skipper Sams entered into a consent agreement assigning the Lease to Skipper Sams. The consent agreement specifically states that

this Consent does not constitute recognition of any deviations, alterations or substitutions from the terms and conditions of the Lease. The terms, conditions and covenants contained in the Assignment of Lease are subordinate in all respects to those contained in the Lease. . . . The consent to the assignment herein by Landlord shall not be deemed a waiver of any provisions of the Lease.

In that respect, the Lease contains a merger clause which states

[tjhis Lease supersedes and revokes all previous negotiations, arrangements, letters of intent, offers to lease, lease proposals, brochures, representations, and information conveyed, whether oral or in writing between the parties hereto or their respective representatives or any other person purporting to represent Landlord or Tenant. The Tenant acknowledges that it has not been induced to enter into this Lease by any representations not set forth in this Lease. It has not relied on any such representations, no such representations shall be used in the interpretation or construction of this Lease, and Landlord shall have no liability for any consequences arising as a result of any such representations.

Skipper Sams acknowledged that it would be bound by all the terms and conditions of the Lease. In addition, Skipper Sams agreed it would not include a lounge area in the seafood restaurant so as not to compete with Fridays’ type of operation. Also on November 1, 1991, Skipper Sams closed on the purchase of Sarris’ restaurant, with a purchase price of $45,000.

In the middle of January 1992, Skipper Sams opened a seafood restaurant in the shopping center. Approximately two months later, in March or April 1992, Skipper Sams was informed by Roswell-Holcomb that the lease agreement with Fridays had failed because certain contingencies contained therein were not met. Thus, plans were scrapped to renovate the facade on the shopping center and to erect the pylon sign. In addition, Roswell-Holcomb had been unable to rent the anchor space to a major, national tenant.

Despite being informed of the failure of the four representations, Skipper Sams did not seek to rescind the Lease but, instead, “kept operating” and “kept trying to make the business profitable.” Although improvements were not made to the shopping center, Skipper Sams’ restaurant “experienced satisfactory growth for eight or ten months after opening.” During this time, however, numerous nationally franchised restaurants began to open in the general area of the shopping center, i.e., Macaroni Grill, Brookwood Grill, Olive Garden, and Black-Eyed Pea. Also, the Mansell Road exit off Highway 400 opened, causing a significant decrease in traffic in front of the shopping center. In order to compete and “attract more customers,” Skipper Sams renovated the restaurant, putting in a large lounge area in order to “convert it into more of a ‘cocktail bar’ operation,” as Fridays would have been. In addition, Skipper Sams put in a large screen television and a new five-ton, roof-top air conditioning unit. Apparently, however, business did not boom.

On January 22, 1993, Skipper Sams sent Roswell-Holcomb a letter requesting a reduction in rent under the Lease because Roswell-Holcomb did “not tell[ ] the truth” about its lease with Fridays. Skipper Sams did not seek to rescind the Lease, but sought to lower the rent to five percent of net sales. In this letter, Skipper Sams maintained that “[w]hen TGI Fridays or an equivalent national restaurant and bar opens on this property, and when the renovation is completed, and when national tenants occupy the [anchor] space, then we will pay the rent as per the lease, beginning that month.” Replying immediately, Roswell-Holcomb refused to reduce the rent. Skipper Sams continued to operate for another year. It closed the restaurant in December 1993, at which time Skipper Sams ceased paying rent under the Lease.

Immediately thereafter, Skipper Sams sold its business and assets to Chatham Gourmet for $65,000 and entered into a consent agreement with Roswell-Holcomb and Chatham Gourmet to assign the Lease. Chatham Gourmet defaulted in their agreement with Skipper Sams, and Skipper Sams repossessed the business. Shortly thereafter, Skipper Sams again sold the business to Table for Two for $65,000 and again entered into a consent agreement with Roswell-Holcomb and the new owner to assign the Lease. In the consent agreements with both Chatham Gourmet and Table for Two, Skipper Sams asserted that there was “no existing default under the Lease.”

Table for Two then defaulted on its agreement with Skipper Sams, and Skipper Sams again repossessed the business. Meanwhile, Roswell-Holcomb had received rent under the Lease only sporadically since December 1993 and thus directed Skipper Sams to vacate the leased premises. Skipper Sams sold off the restaurant assets and vacated the premises.

Thereafter, on August 10, 1994, Skipper Sams filed the instant action, claiming (1) fraud, in that the four representations by Roswell-Holcomb were false and fraudulent and were made in order to induce Skipper Sams to enter into an agreement for the assignment of the Lease; and (2) breach of contract, in that the four representations allegedly constituted material parts of a contract or agreement between the parties, separate from the Lease, which separate agreement was breached when the four representations did not occur. Skipper Sams sought damages for lost expenses, punitives, and attorney fees. The complaint was later amended to include a claim of negligent misrepresentation.

Roswell-Holcomb cross-claimed for back due rent, late fees, and attorney fees. Pursuant to Roswell-Holcomb’s subsequent motion for summary judgment as to the complaint and cross-claim, the trial court issued an order granting same. Skipper Sams appeals from this order. Held:

1. The trial court determined that Skipper Sams lacks standing to bring the instant action because the four representations that are the crux of the complaint were made to the Weinbergs before Skipper Sams was in existence. We agree.

The four representations were made during the two meetings between Roswell-Holcomb and the Weinbergs in August and September 1991, and it is undisputed that Skipper Sams was not incorporated until over a month later, on November 1, 1991. Since Skipper Sams was nonexistent at the time of the August/September meetings, it could not have relied upon Roswell-Holcomb’s four representations so as to sustain an action for fraud or negligent misrepresentation. Nor could a nonexistent corporation have reached a contractual agreement with Roswell-Holcomb at the time of the August/September meetings so as to sustain an action for breach of contract based on the four representations.

Skipper Sams contends, however, that Roswell-Holcomb is estopped from denying its corporate existence because during the August/September meetings Roswell-Holcomb knew that Skipper Sams, not the Weinbergs, would be assuming Sarris’ Lease. “The general rule in this state is that a person who contracts or deals with a corporation as such will be estopped to deny its corporate existence in an action arising out of or involving the. contract.”

However, the above principle has no application here. While the Weinbergs did inform Roswell-Holcomb during the August/September meetings that they intended to form Skipper Sams in order to assume the Lease, the record is clear that such corporate formation was only if the Lease was to be assumed at all. During the August/ September meetings, it was not at all certain that the Lease would be assumed, and so it was not at all certain that Skipper Sams would ever come into existence. The corporate formation of Skipper Sams was contingent upon the Weinbergs’ personal decision to assume the Lease, and that decision was contingent upon the Weinbergs’ personal negotiations with Sarris for the purchase of his business. “[W]here an individual purports to act for a non-existent corporation, the doctrine of corporation by estoppel will not be applied.” The four representations may have persuaded the Weinbergs to continue their negotiations with Sarris and may even have played a part in the Weinbergs’ personal decision to go forward with the formation of Skipper Sams and ultimately assume the Lease, but it cannot be said that, at the time the representations were made, Roswell-Holcomb knew at all times it was dealing with the Weinbergs as “agents” of a corporation the formation of which had yet to be decided upon. Accordingly, Skipper Sams does not have standing to bring the instant action.

2. A party claiming it was fraudulently induced to enter a contract has two possible remedies: (1) to promptly rescind the contract after discovering the fraud and sue in tort for the recovery of the contract’s consideration, as well as any other damages resulting from the fraud; or (2) affirm the contract and sue for damages resulting from the contract.

Where the party elects the second option and affirms the contract, however, he or she is bound by its terms. . . . [And] the contract’s merger provision would estop a party bound by the terms of the contract from arguing that he or she relied on representations other than those contained in the contract.

With these general principles in mind, it is clear that the Weinbergs never attempted to rescind the Lease at issue, but affirmed such by continuing to exercise their rights under the Lease, i.e., occupying the premises; operating the restaurant; improving the subject property; and paying rent. Thereafter, they represented to subsequent assignees that there existed no default under the Lease. Thus, any claims that sound in tort must fail.

Decided December 8, 2000.

Curtis R. Richardson, for appellant.

Bodker, Ramsey & Andrews, Robert D. Wildstein, Arnall, Golden & Gregory, Ann S. Infinger, for appellees.

As to the breach of contract claim, the parties are bound by the terms of the Lease pursuant to the plain language of the consent to the assignment of the Lease agreement. The Lease includes a merger clause which specifically states that the Lease supersedes and revokes all previous negotiations and that Skipper Sams was not induced to enter into the Lease by any representations not set forth therein. The Weinbergs acknowledged such. Thus, any contentions regarding the breach of a separate, oral agreement consisting of the four representations must also fail.

3. Skipper Sams also claims error in the trial court’s grant of summary judgment to Roswell-Holcomb on its counterclaim. Our decision in Divisions 1 and 2 renders this contention meritless.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

        Rubin v. Cello Corp., 235 Ga. App. 250, 251 (510 SE2d 541) (1998).

       The original tenant of the premises was Leo Efstathiou, a/k/a Leo Stathis, who signed the original lease on August 1, 1987; he assigned the lease to Sarris in connection with the operation of Sarris’ restaurant, the Roswell Diner, on the premises.

       It is undisputed that at the time of the meetings, Fridays had, in fact, signed a lease with Roswell-Holcomb to open a restaurant in the shopping center, such lease having been signed on August 15, 1991.

        Cahoon v. Ward, 231 Ga. 872, 873 (1) (204 SE2d 622) (1974). See OCGA § 14-5-4.

        Goodwyne v. Moore, 170 Ga. App. 305, 307 (316 SE2d 601) (1984); Don Swann Sales Corp. v. Echols, 160 Ga. App. 539, 541 (287 SE2d 577) (1981).

       (Citations and punctuation omitted.) Estate of Sam Farkas v. Clark, 238 Ga. App. 115, 117-118 (1) (517 SE2d 826) (1999).

        See Allen Housemovers v. Allen, 135 Ga. App. 837, 839 (1) (219 SE2d 489) (1975).

        Southern Prestige Homes v. Moscoso, 243 Ga. App. 412, 416 (532 SE2d 122) (2000).


author: Smith, Presiding Judge.

text:
    A00A1101, A00A1102.
    HOPKINS v. VIRGINIA HIGHLAND ASSOCIATES, L.P. et al.; and vice versa.
    (541 SE2d 386)
   Smith, Presiding Judge.

The central issue in these appeals is whether Jerry Hopkins purchased his property with notice of a sewer easement in favor of Virginia Highland Associates, L.P. and Stuart Meddin as general partner of Virginia Highland Associates (hereinafter referred to as “Meddin”). On motion for summary judgment, the trial court concluded as a matter of law that an easement existed, of which Hopkins was on notice when he purchased the property. The trial court further concluded Meddin’s improper maintenance of the sewer constituted a nuisance. All parties appeal from these rulings. Because we conclude that several genuine issues of material fact exist, particularly as to whether Hopkins purchased the property with notice of the easement, we reverse.

These cases arose after residential property owned by Hopkins began experiencing sewer problems. Hopkins’s property abutted Meddin’s property, which consisted of restaurant and retail businesses. In August 1997, Hopkins notified Meddin that he had discovered sewer line connections to his property from at least three restaurants and that these restaurants were dumping grease and other items through the sewer system. Believing these to be illegal sewer connections, Hopkins asked Meddin to produce documentation showing access to the property or terminate the sewer connection. After Hopkins and Meddin unsuccessfully attempted to resolve any dispute as to repair of the sewer line, Hopkins threatened to terminate the connection. Meddin filed a petition for declaratory and injunctive relief seeking, among other things, a declaration that he had obtained an easement on Hopkins’s property and that any interference with the easement constituted a private nuisance. The trial court granted temporary injunctive relief, enjoining Hopkins from interfering with Meddin’s use of the sewer line. Hopkins answered and counterclaimed, alleging that operation of the sewer line constituted a trespass and a nuisance. He also sought bad faith penalties.

Following the parties’ subsequent motions for summary judgment and partial summary judgment, the trial court entered an order concluding as a matter of law that Meddin had a valid easement for the sewer line by virtue of a July 1988 letter to him from Hopkins’s predecessor in title, Gerald Hogan. The trial court found that the letter constituted a license that “thereafter became irrevocable due to subsequent expenditure” under OCGA § 44-9-4. Alternatively, according to the trial court’s order, Meddin obtained a parol license that could be construed as an easement running with the land after Meddin, acting pursuant to the license, incurred expenses of approximately $9,000 during an uninterrupted ten-year period of use. The trial court further concluded that Hopkins had notice of the easement when he purchased his property. The court found that Hopkins was entitled to a trial on damages on his nuisance claim, but because the court found that a valid easement existed, it concluded that Hopkins could not maintain a trespass claim.

1. In Case No. A00A1101, Hopkins contends the trial court erroneously found that a valid easement existed and that Hopkins was on notice of the easement when he purchased his property.

The trial court correctly concluded that Meddin obtained an easement running with the land. In the July 1988 letter, Hogan, Hopkins’s predecessor in title, gave permission to Meddin to cross his property with Meddin’s sewer line in order to connect with the City of Atlanta system, provided Meddin met certain conditions. Among other things, Meddin was to correct a fresh water storm drain problem on Hogan’s property. Meddin indicated acceptance of the terms by signing and returning a copy of the letter. Hogan’s signature also appears on the letter, and the letter appears to have been notarized. In an affidavit filed in support of his motion for summary judgment, Meddin testified that he agreed to allow the sewer line from Hogan’s property to “tie into” the new line to be constructed by Meddin, although this agreement was not included in the July 1988 letter. In his affidavit, Meddin testified that the agreement to provide this “tap” was reached while construction was occurring. The July 1988 letter was filed with the Fulton County Clerk’s Office on July 14, 1988, although it is undisputed that this copy was misindexed.

Even though the copy of the 1988 letter from Hogan to Meddin was improperly indexed in the clerk’s office, the record shows, at the very least, that Meddin obtained a parol license to construct a sewer line through Hogan’s property. And acting on this permission, Med-din expended in excess of $9,000 in construction expenses. While a parol license generally is revocable at any time, it “is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easement running with the land.” (Citations and punctuation omitted.) Bell Indus. v. Jones, 220 Ga. 684, 686 (141 SE2d 533) (1965). See also OCGA § 44-9-4; Waters v. Pervis, 153 Ga. App. 71 (264 SE2d 551) (1980).

Our conclusion that Meddin acquired an easement running with the land does not end our inquiry, however. For the verbal agreement between Hogan and Meddin to have been effective against subsequent purchasers, the record must show that any such purchaser “took with notice of the agreement.” Meadows v. Page, 187 Ga. 686, 689 (1) (1 SE2d 656) (1939). See also Rome Gas-Light Co. v. Meyerhardt, 61 Ga. 287 (1878). The trial court concluded that Hopkins

was on notice that an easement existed in that [Hopkins] was on inquiry notice due to the “ ‘unusual’ ” box that was attached to his sewer. He was also on record notice since the letter granting the easement was filed, though improperly indexed through no fault of the Plaintiffs. Further, [Hopkins] had constructive notice since the existence of the sewer line could have been determined upon reasonably prudent investigation.

The grant of summary judgment is appropriate only after the movant has established “that no issues of material fact remain to be tried and the undisputed facts, viewed in the light most favorable to the non-movant, warrant judgment as a matter of law. [Cit.]” Terry v. Collins, 230 Ga. App. 646, 647 (497 SE2d 395) (1998). Here, contrary to the trial court’s conclusion and Meddin’s arguments on appeal, we conclude that the facts do not warrant a ruling, as a matter of law, that Hopkins was on notice of the easement.

As for the “unusual box” mentioned in the trial court’s order, Meddin testified by affidavit in the trial court that “[a] water-meter type cast-iron box designated ‘Sanitary Sewer Clean Out’ is located in the driveway in such a way that it is obvious upon visual inspection that an unusual condition exists as to the location and type of sewer line which serves” Hopkins’s property. But, in our view, whether this “box” should have placed Hopkins on notice of any unusual condition or whether the sewer line could have been discovered upon reasonable and prudent investigation are inherently questions of fact for the jury to decide. See generally Rome Gas-Light, supra. This is not a case such as Webster v. Snapping Shoals Elec. Membership Corp., 176 Ga. App. 265, 266-267 (335 SE2d 637) (1985), in which the purchaser admitted she had notice of utility poles, and we concluded that visible utility poles were sufficient to put the purchaser on notice of the existence of an easement as a matter of law. Unlike the clearly visible conditions showing an easement in Webster, the sewer line was hidden from view, and Meddin’s affidavit simply offered his nonexpert opinion as to one of the ultimate issues in the case. We cannot say that Meddin has shown that any metal “box” was of such a size or was so unusual as to place a purchaser on notice, as a matter of law, of the presence of a sewer line easement. For example, while the “unusual box” might have placed a property owner on notice of the existence of a sewer line on his own property, it is at least a question of fact as to whether this box indicated the presence of a sewer line running from another’s commercial establishment or merely an additional “clean out” access on his own sewer line.

Nor can we agree that the misfiled July 1988 letter constituted record notice to Hopkins as a matter of law. Assuming, as argued by Meddin, the letter created an express easement granted by Hogan to Meddin, that easement is subject to the rules governing the construction of deeds. Barton, supra, 143 Ga. App. at 293 (2) (a). A deed, among other things, must be “attested by at least two witnesses.” OCGA § 44-5-30. Even if an improperly attested deed may be valid and binding between the parties themselves, “[a] deed not executed in precisely the manner prescribed in OCGA § 44-5-30 is not properly recordable and therefore does not give constructive notice to all the world. [Cit.]” Duncan v. Ball, 172 Ga. App. 750, 752 (2) (324 SE2d 477) (1984). As stated in Coniff v. Hunnicutt, 157 Ga. 823, 836 (1) (122 SE 694) (1924), “[t]he registry of a deed, not attested, proved, or acknowledged according to law, is not constructive notice to a subsequent bona fide purchaser. [Cits.]” Compare Leeds Bldg. Products v. Sears Mtg. Corp., 267 Ga. 300, 301-302 (477 SE2d 565) (1996) (holding that deed that facially complies with statutory requirements is constructive notice but reaffirming rule that patently defective deed not constructive notice to subsequent purchasers).

While the July 1988 letter contained the signatures of the parties, Meddin and Hogan, as well as the acknowledgment required by OCGA § 44-5-30, the record before us does not show that it was attested by two witnesses. The copy of the letter attached to Meddin’s complaint shows these signatures of the parties and the acknowledgment, without any other signatures. Inexplicably, the copy of the letter submitted by Meddin supporting his motion for summary judgment contains a third person’s signature under which appears the word “witness.” But whether the letter contained no signature of an additional attesting witness or contained one such signature, it is not clear as a matter of law that the letter comported with OCGA § 44-5-30 requiring the attestation of two witnesses. See OCGA § 44-2-21 (b) (one of two required attesting witnesses may be notary public). Accordingly, we cannot say, as a matter of law, that the letter served as constructive notice to Hopkins of the agreement.

We note that in the trial court, Meddin submitted the affidavit of an attorney, along with copies of two warranty deeds concerning the property. Those deeds recite that they are subject to “all easements and restrictions of record” and to “covenants, restrictions, [and] easements of record.” In the affidavit, a real estate attorney testified that on behalf of a buyer, he “would as a matter of due diligence . . . inquire regarding the intent and purpose of this language.” Just as we cannot conclude that the “unusual box” on Hopkins’s property placed him on notice of the easement as a matter of law, we cannot conclude that this evidence served as such notice to Hopkins. Even assuming that the language in the warranty deeds should have prompted research as to the existence of the easement, whether the misfiled July 1988 letter could have been found upon due diligence is a question of fact, and even if found, as discussed above, issues exist as to the validity of the letter as a recordable deed.

Meddin advances other bases for affirming the trial court’s ruling that a valid easement existed and that Hopkins had notice of it, citing the “right for any reason” rule. See, e.g., Gwinnett County Bd. of Tax Assessors v. Gwinnett I Limited Partnership, 265 Ga. 645, 647 (458 SE2d 632) (1995). He first contends that he obtained a prescriptive easement under OCGA §§ 44-5-161 and 44-9-1. But even assuming, without deciding, that such an easement existed, the property purchased by Hopkins would be burdened by the easement only if he purchased it with notice of the easement.

Though a bona fide purchaser from the grantor without knowledge or constructive notice of the existence of the easement would take title free from the easement, and he may assume that there is no easement except as shown of record or by open and visible indications on the land itself, such purchaser will be charged with notice of the easement where an inspection of the premises would have readily revealed such physical facts as would, in the exercise of ordinary diligence, put him upon inquiry. [Cits.]

Burk v. Tyrrell, 212 Ga. 239, 243 (3) (91 SE2d 744) (1956). As discussed above, whether Hopkins was placed on inquiry as to the existence of an easement cannot be summarily resolved as a matter of law. Simpson v. Colonial Pipeline Co., 269 Ga. 520 (499 SE2d 634) (1998) is not controlling on this issue, as some evidence in that case obviously showed that the existence of a 75-foot-wide pipeline right-of-way was ascertainable by visual inspection because the appellee had “at all relevant times inspected, cleared, and marked its right of way.” Id. at 521 (2).

We note Meddin’s reliance on Stinchcomb v. Clayton County Water Auth., 177 Ga. App. 558 (340 SE2d 217) (1986), which, as stated by Meddin, discusses “a sewer line in terms of necessity.” But contrary to Meddin’s argument that the sewer line across Hopkins’s property was necessary “to obtain gravity flow access,” no such evidence was presented to the trial court. Similarly, Eagle Glen Unit Owners Assn. v. Lee, 237 Ga. App. 240 (514 SE2d 40) (1999), cited by Meddin, is inapplicable here, as a showing was made in that case that the easement at issue was the sole means of accessing the appellees’ property. Id. at 243.

Meddin also maintains the trial court’s order should be affirmed on equitable principles, arguing generally that the sewer line has become part of the city’s public utility system. But Orford v. City Council of Augusta, 167 Ga. 865 (147 SE 63) (1929), cited by Meddin, addresses a different issue from that presented here: the power of a private landowner to interfere with a sewer line placed, as a health measure, across the landowner’s property by a city. We also note Meddin’s argument that Hopkins was not harmed by the placement of the sewer line. But evidence, although contradicted, was presented below belying this argument.

Finally,

the first maxim of equity is that equity follows the law. Thus, a court of equity has no more right than a court of law to act on its own notion of what is right in a particular case. Where rights are defined and established by existing legal principles, they may not be changed or unsettled in equity. Although equity does seek to do complete justice, it must do so within the parameters of the law.

(Citations and punctuation omitted.) Dolinger v. Driver, 269 Ga. 141, 143 (4) (498 SE2d 252) (1998). Our law provides that property is not burdened by an easement when a subsequent bona fide purchaser takes without notice of the easement. Consequently, we are not bound by the equitable principles relied on by Meddin. Because questions of fact exist as to whether Hopkins purchased his property with notice of any easement, we must reverse the trial court’s ruling that he had such notice as a matter of law. And because we conclude that genuine issues of fact exist as to whether Hopkins’s property is burdened by the easement, we must also reverse the trial court’s ruling concerning Hopkins’s trespass claim.

2. In Case No. A00A1102, Meddin appeals from the trial court’s ruling that its operation of the sewer line constituted a nuisance. But questions of fact exist as to whether the sewer line was operated in such a way as to cause harm to Hopkins’s residential property. Med-din testified by affidavit that his plumber investigated the line running between his property and the City of Atlanta trunk line and found no blockage. The plumber also testified by affidavit that he found no evidence of a previous blockage and that he “observed a normal working sewer which had no abnormal scaling or build-up on the walls of the pipe based upon its age.”

Hopkins, however, also presented evidence showing that blockages originating from the use of Meddin’s commercial property did cause harm to and interfere with the use of Hopkins’s property. For example, Hopkins testified by affidavit that the property experienced six backups during the first seven months of 1997 and that periodically, generally on weekends, he had “been forced to dredge through ankle-deep waste water, filled with grease, food remnants, feminine hygiene products, used toilet paper, and human feces.” He testified that at first, not knowing about the sewer easement, he believed the backups may have been caused by deposits left from prior use of the property but that he later learned that commercial properties were connected to his line. Upon making this discovery, he dropped dye into the toilets at these establishments and watched for this dye in the sewer clean-out opening on his property. According to Hopkins, “[t]his test confirmed that at least three of the restaurants were running sewage through the line tied to [his] home.” He also stated that although Meddin’s plumber inspected the pipe and found no problems, the plumber did discover “a heavy amount of grease in the pipe.” And Hopkins stated that he once “discovered a grease clog . . . that was so large that the workers had to chisel [it] into pieces before it would wash down the sewer line” and that each instance of overflow was caused by “grease clogs in the line.” This was at least some evidence showing that operation of the line connected to Meddin’s commercial properties caused backups onto Hopkins’s property.

Our law is well settled that only when the “facts conclusively show by plain, palpable and undisputed evidence that one or the other party is entitled to judgment that the case properly may be resolved as a matter of law through the vehicle of summary judgment.” (Citations and punctuation omitted.) Godwin v. Johnson, 197 Ga. App. 829, 831 (1) (399 SE2d 581) (1990). The facts here are not “plain, palpable and undisputed” that the maintenance of the sewer line connecting Meddin’s property to the city line did or did not cause harm to Hopkins’s property. The trial court consequently erred in granting summary judgment on Hopkins’s nuisance claim. We therefore reverse on this ground as well.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.

On Motion for Reconsideration.

On motion for reconsideration Meddin contends that under Leeds Bldg. Products v. Sears Mtg. Corp., 267 Ga. 300 (477 SE2d 565) (1996), once accepted by the clerk for recordation, the July 1988 letter constituted constructive notice of the easement. In Leeds, the Supreme Court of Georgia did state unequivocally that in the absence of fraud, a deed that complies on its face “with all statutory requirements is entitled to be recorded, and once accepted and filed with the clerk of court for record, provides constructive notice to the world of its existence.” Id. at 302. Security deeds in Leeds were improperly attested or acknowledged because the person whose signature appeared as an unofficial witness to the instruments did not actually observe execution of the documents. Id. at 300. This improper attestation was not apparent on the face of the deeds. But a distinction exists between Leeds and this case: The record here does not show as a matter of law that the July 1988 letter, on its face, complied with OCGA § 44-5-30.

Decided September 28, 2000

Reconsideration denied December 11, 2000

Weissman, Nowack, Curry & Wilco, Jeffrey H. Schneider, Derek W. Johanson, Wagner, Johnston & Rosenthal, Kristofer R. Schleicher, for appellant.

Maddox, Nix, Bowman & Zoeckler, Thomas A. Bowman, Robert L. Zoeckler, for appellees.

In a footnote in his motion for reconsideration, Meddin also contends that under OCGA § 44-2-20, the July 1988 letter “served the same function as an affidavit affecting title.” OCGA § 44-2-20 (a) provides that “[rjecorded affidavits shall be notice of the facts therein recited . . . where such affidavits show” any of several enumerated facts. Subsection (c) recites that these affidavits “shall contain a caption referring to the current owner and to a deed or other recorded instrument in the chain of title of the affected land.” (Emphasis supplied.) This Code section must be strictly construed. Dollar v. Thompson, 212 Ga. 831, 834 (96 SE2d 493) (1957). No such caption appears in the recorded letter from Hogan to Meddin in this case. Accordingly, we cannot conclude that the letter served as notice to the world of the existence of an easement.

Motion for reconsideration denied.

       These appeals were transferred here from the Supreme Court on the grounds that any equitable issues were ancillary to the central legal issue of Meddin’s claim to an easement over Hopkins’s property and that the appeal did not fall within that Court’s title to land jurisdiction.

       We note that Meddin testified in his affidavit in support of his motion for summary judgment that he presented a copy of the letter for fifing on July 14, 1998, but the date stamp on the copy attached to Meddin’s affidavit shows that it was filed on July 14, 1988.

       In an affidavit submitted in response to Meddin’s motion for summary judgment, a real estate attorney who “examined and reexamined the Grantor and Grantee Indexes of Fulton County” for the period beginning January 1, 1988, and ending December 31, 1988, found that the Grantor Index did not contain a fisting for an easement from Hogan to Med-din. The witness concluded that the recording clerk apparently indexed the letter by two methods: from Stuart Meddin to Stuart Meddin and from Turner Broadcasting System, Inc. to Stuart Meddin.

       “[A] license . . . confers a . . . privilege to do some act or acts on the land without possessing any estate therein.” Barton v. Gammell, 143 Ga. App. 291, 293 (2) (a) (238 SE2d 445) (1977). Further, a license “ ‘is a mere permissive use, generally in parol and revocable.’ ” Id.

       To the extent that Meddin argues that the July 1988 letter constituted an express easement, such easements are subject to rules concerning validity and construction of deeds. See Pindar, Ga. Real Estate Law, § 8-17 (5th ed.); Barton v. Gammell, 143 Ga. App. 291, 293 (2) (a) (238 SE2d 445) (1977).


author: Ellington, Judge.

text:
    A99A1010.
    CITY OF GRIFFIN v. McKEMIE et al.
    (543 SE2d 785)
   Ellington, Judge.

Following the City of Griffin’s dismissal of a condemnation action to acquire a sewer easement across property owned by Dorothy, James, and Warren McKemie, the trial court awarded the McKemies $5,281.36 in attorney fees. In City of Griffin v. McKemie, 240 Ga. App. 180 (522 SE2d 288) (1999), we found that the condemnees, given the circumstances of this case, could not recover fees pursuant to OCGA § 22-4-7 or § 9-15-14. We also concluded that the trial court’s factual findings regarding the City’s conduct would not support the award under OCGA § 9-15-14 (b). City of Griffin v. McKemie, 240 Ga. App. at 182.

Decided December 11, 2000.

Mullins & Whalen, Andrew J. Whalen III, Jacob A. Maurer, for appellant.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellees.

The Supreme Court agreed that the award of fees was insupportable under either OCGA § 22-4-7 or § 9-15-14 (a). McKemie v. City of Griffin, 272 Ga. 843-844 (1), (2) (537 SE2d 66) (2000). The Court also agreed that OCGA § 9-15-14 (b) would permit an award of fees if the trial court found the requisite conduct supporting a recovery under that section. Id. at 844 (3). However, the Supreme Court concluded that the trial court’s award was “devoid of such findings [and] must be vacated and the case . . . remanded for reconsideration.” Id. at 845 (4). Accordingly, we adopt the opinion of the Supreme Court, vacate the award of attorney fees, and remand this matter to the trial court to reconsider the award of fees and to make express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize it.

Judgment vacated and case remanded.

Blackburn, P. J., and Barnes, J., concur.


author: Ruffin, Judge.

text:
    A99A2162.
    WARD v. DEPARTMENT OF HUMAN RESOURCES.
    (543 SE2d 786)
   Ruffin, Judge.

In Ward v. Dept. of Human Resources, we affirmed an order of the Superior Court of Henry County directing Cindy Ward to pay child support for her noncustodial minor child. After granting certiorari, the Supreme Court reversed our decision.

The facts of this case are fully set forth in our prior opinion and need not be detailed here. For present purposes, we reiterate that DHR filed a petition at the behest of Ward’s ex-husband seeking the establishment of a support obligation from Ward. On appeal, we held that (1) a 1991 divorce decree had already established child support obligations for Ward with respect to her noncustodial child; (2) DHR had erroneously filed a petition to establish a support obligation where one already existed, rather than following the procedures set forth in OCGA § 19-11-12 for modifying a support obligation; and (3) DHR’s error was harmless because Ward received notice and a full and fair hearing in the superior court. The Supreme Court affirmed our first two holdings, but not the third. Instead, the Court ruled that under OCGA § 19-11-12, DHR may “file modification actions on behalf of children not receiving public assistance only in cases where DHR can show the child’s need for additional support.” Because DHR failed to make that showing in this case, the Supreme Court disagreed that DHR’s erroneous procedure was harmless.

Decided December 11, 2000.

Crumbley & Crumbley, Jackson E. Cox II, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Katherine S. Davis, Assistant Attorney General, Charles L. Cash, Jr., for appellee.

Accordingly, to the extent that the decision of the Supreme Court reverses the opinion of this Court, our original judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the child support order of the superior court is reversed. Our previous opinion is affirmed in all other respects.

Judgment reversed.

Andrews, P. J, and Ellington, J., concur.

       241 Ga. App. 298 (527 SE2d 3) (1999).

        Ward v. Dept. of Human Resources, 273 Ga. 52 (537 SE2d 70) (2000).

       Id. at 53 (2).