text:
    A12A0198.
    685 PENN, LLC et al. v. STABILIS FUND I, L.P.
    (728 SE2d 840)
   DOYLE, Presiding Judge.

This case arises from a suit for breach of a promissory note and personal guarantees originally filed by Branch Banking & Trust Company (“BB&T”) against 685 Penn, LLC, Adam Gaslowitz, and Gerie Gilbert (collectively “the Defendants”). During pendency of the suit, BB&T sold the note to Stabilis Fund I, L.P, which thereafter moved to substitute itself as the real party in interest and renewed BB&T’s motion for summary judgment, which the trial court previously had granted. The Defendants appeal the trial court’s order granting Stabilis Fund’s renewed motion for summary judgment, arguing that the trial court erred because (1) Stabilis Fund failed to offer proof of possession of the original note; and (2) issues of material fact remain as to whether BB&T was estopped from enforcing the original terms of the note based on its representations to refinance the debt. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that 685 Penn executed a $1,500,000 promissory note to BB&T in October 2008. In addition to executing a deed to secure debt granting BB&T a security interest in certain real property in exchange for the loan, Gaslowitz and Gilbert provided personal guaranties for the debt. Although the note became due one year later in October 2009, the real property in which the money had been invested had not been sold, and the Defendants were not able to repay the debt. Although the Defendants did not contest that they had entered into the agreement, they argued in their defense that between October 2009 and December 2009, BB&T negotiated with them to extend the loan and issue a new note that would subsume the original obligations while waiting for the properties to sell. In January 2010, however, BB&T issued a demand letter to the Defendants based on the default on the note and personal guaranties.

On March 10, 2011, the trial court entered an order granting BB&T’s motion for summary judgment, finding that the Defendants had not provided sufficient evidence of reasonable reliance upon statements by BB&T that it intended to extend or change the original agreement, and therefore, the Defendants’ defense of promissory estoppel failed as a matter of law. Later that month, Stabilis Fund filed a motion to substitute itself as the real party in interest because it had purchased from BB&T the rights to collect on the note and personal guaranties. The trial court granted the motion and vacated the original order granting summary judgment to BB&T. Stabilis Fund then filed a motion for summary judgment (“renewed motion for summary judgment”), which the trial court granted based on its findings that Stabilis Fund established itself as the holder of the note and personal guaranties and its previous finding that the Defendants could not establish promissory estoppel as a matter of law. This appeal followed.

1. The Defendants first contend that the trial court erred by granting Stabilis Fund’s renewed motion for summary judgment because Stabilis Fund failed to offer proof of possession of the original promissory note. The Defendants contend that because of the trial court’s failure to require Stabilis Fund to produce the original promissory note, they lack protection against a subsequent action by a “true” owner entitled to recover.

In a suit instituted by a person claiming to be the owner and holder of a promissory note, for the purpose of recovering thereon against the maker and another person alleged to have assumed the debt, it is permissible for the latter to inquire into the plaintiff’s title to the note, if necessary either for his protection or to let in any valid defense which he seeks to make.

As an initial matter, the Defendants admitted in their answer that the copies of the promissory note, deeds to secure debt, and personal guaranties attached to the complaint filed by BB&T were true and accurate copies of the original documents and that the Defendants executed said documents at the terms alleged within. In support of the original motion for summary judgment filed by BB&T, Steven Paulk, a representative of the company, executed an affidavit in which he stated that the copies of the promissory note and personal guaranties attached thereto were true and correct copies of the documents, which were in possession of BB&T and kept in the ordinary course of business. This was competent evidence that BB&T was the holder of the note and guaranties.

After Stabilis Fund’s motion to substitute itself as the real party in interest was granted by the trial court, Stabilis Fund filed a renewed motion for summary judgment to which it attached the affidavit of its representative, Salman A. Akbar Khan, in which he attested that BB&T had assigned on March 3, 2011, its rights to the security deed related to the property to Stabilis Fund. While Stabilis Fund did not provide an affidavit or testimony stating that it was in possession of the note or guaranties, the attached copy of the Assignment of Security Instrument stated that “all of the Grantor’s right, title and interest in and to those Loan Documents described [in the deed] and also the indebtedness described therein and secured thereby . . . the notes evidencing said indebtedness” were transferred to Stabilis Fund. Although the language does not include “guaranties” along with “notes,” this Court previously has determined that “transfer of the underlying principal obligation operates as an assignment of the guaranty.” Accordingly, this enumeration is without merit.

2. The Defendants also contend that the trial court erred by finding that no issue of material fact existed as to the issue of whether they reasonably relied to their detriment on statements made by BB&T’s representatives to extend the original promissory note. We disagree.

Under Georgia law, the defense of promissory estoppel consists of

[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

“Promissory estoppel does not apply to vague, indefinite promises.”

Decided June 14, 2012.

Craig M. Frankel, LeAnne M. Gilbert, for appellants.

Arnall, Golden & Gregory, Matthew T. Coveil, for appellee.

“Although BB&T’s alleged promises contemplated a loan for a certain duration, the promise was vague and indefinite as to other material terms, particularly the interest rate.” The Defendants’ assumptions that BB&T would extend the original loan at the same terms without any definite statement by BB&T “about the terms of the proposed loan do not create an issue of fact for the jury.” Nothing in the Defendants’ testimony establishes evidence of anything beyond negotiations to extend the note, and thus, the trial court did not err by finding a lack of a genuine issue of fact as to whether the Defendants reasonably relied on any promises made by BB&T to extend the original loan.

Accordingly, there was no error in the trial court’s grant of summary judgment against the Defendants as to their claims of the defense of promissory estoppel.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Austell Bank v. Nat. Bondholders Corp., 188 Ga. 757 (2) (4 SE2d 913) (1939). See also OCGA § 9-11-17 (a); NationsBank of Ga. v. Green, 218 Ga. App. 665, 667 (1) (462 SE2d 761) (1995) (“every action shall he prosecuted in the name of the real party in interest”).

       See Salahat v. Fed. Deposit Ins. Corp., 298 Ga. App. 624, 628 (2) (680 SE2d 638) (2009).

       (Emphasis supplied.)

        Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 899 (4) (324 SE2d 746) (1984).

       OCGA § 13-3-44 (a). See also Hendon Properties v. Cinema Dev., 275 Ga. App. 434, 438-439 (3) (620 SE2d 644) (2005).

       (Punctuation omitted.) Jones v. White, 311 Ga. App. 822,830(2) (b) (717 SE2d322) (2011).

        Ga. Investments Intl. v. Branch Bank & Trust Co., 305 Ga. App. 673, 675-676 (I) (700 SE2d 662) (2010), citing Jackson v. Ford, 252 Ga. App. 304, 308 (1) (c) (555 SE2d 143) (2001) (failure to establish sufficient evidence of a promise to support a claim of breach of contract was also insufficient evidence to establish a claim of promissory estoppel); Reuben v. First Nat. Bank of Atlanta, 146 Ga. App. 864, 867 (247 SE2d 504) (1978) (promise to make loan with no specification of interest rate or maturity date was unenforceably vague).

       (Punctuation omitted.) Ga. Investments Intl., 305 Ga. App. at 676 (1).

       See, e.g., id.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A0625.
    BLAKELY v. THE STATE.
    (729 SE2d 434)
   DOYLE, Presiding Judge.

Michael Bernard Blakely was charged with possession of cocaine,* two counts of obstruction of a law enforcement officer, and driving under the influence of alcohol to the extent that it was less safe (“DUI”). Blakely filed a motion to suppress, arguing that the police did not have probable cause to effect a traffic stop, and the trial court denied the motion following a hearing. At the conclusion of the bench trial, the trial court found Blakely guilty of possession of cocaine and two counts of obstruction, but found him not guilty of DUI. Blakely appeals the denial of his motion for new trial, arguing that the trial court erred by denying his motion to suppress. We affirm, for the reasons that follow.

When the evidence at a suppression hearing is uncon-troverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts. To the extent an issue concerns a mixed question of fact and law, we accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

So viewed, the record shows that on April 19, 2008, the Elbert County Sheriff’s Department held a sobriety checkpoint, at which police had positioned marked patrol vehicles with their blue lights flashing. At approximately 10:00 p.m., Major Shane Bennett noticed the headlights on Blakely’s vehicle approach the roadblock, at which point Blakely “immediately’ made a “kind of sudden turn” into a driveway, backed out, and drove away from the checkpoint. Bennett testified that Blakely was “probably less than a quarter of a mile” from the checkpoint when he turned around, and Bennett “could barely see to where [Blakely] pulled in the drive.” Bennett explained that the road curved, “with a hill,” between the driveway where Blakely turned around and the roadblock.

Because Bennett believed that Blakely “appeared [to be] evading our checkpoint,” Bennett followed Blakely in his patrol car and initiated a traffic stop. Blakely advised the officer that he turned around because he left his driver’s license at a family member’s house, and he repeatedly asked Bennett to “give him a break,” explaining that he was a truck driver. According to Bennett, he smelled “a real strong odor of alcohol coming from [Blakely’s] vehicle,” and he could smell alcohol on Blakely’s breath after he exited his vehicle. Bennett administered Blakely a field test for alcohol, which tested positive. When Bennett advised Blakely that he was under arrest and tried to handcuff him, Blakely physically resisted, and another officer had to use a taser on Blakely twice before they could get the handcuffs on him. When police searched Blakely incident to his arrest, they discovered in his sock a small, clear baggie containing cocaine.

At the suppression hearing, Bennett testified that Blakely “could probably barely see our blue lights when he turned into the drive[way],” and Bennett then clarified on cross-examination that “I’m not sure if he could see [the blue lights] or not. I mean, I don’t know.” At trial, the officer testified that the roadblock “[could] be seen from where [Blakely] turned around.” Bennett conceded that Blakely did not commit a traffic offense or an unsafe traffic maneuver, but Bennett testified that department policy required him to stop anyone who “turn[ed] around while we have [a] road check.”

At the suppression hearing, Blakely testified that he left his father’s house and was headed toward his girlfriend’s house when he realized that he had left his wallet at his father’s house. Blakely stated that he turned into a driveway, turned around, drove back in the opposite direction, and was then pulled over. According to Blakely, he never saw the roadblock.

The trial court denied Blakely’s motion to suppress, and the case proceeded to a bench trial, after which Blakely was acquitted of DUI and convicted of possession of cocaine and two counts of obstruction of an officer.

On appeal, in a single enumeration of error, Blakely argues that the trial court erred by denying his motion to suppress because Bennett lacked a reasonable suspicion that Blakely had committed a crime when the officer effected the traffic stop. We disagree.

Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops[] and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.

In Jorgensen v. State , the defendant turned into the entrance to an apartment complex, “in a normal fashion,” approximately 200 feet from a roadblock. An officer decided to stop the defendant based on his intuition that the defendant, who was driving a BMW, did not live in the apartment complex, which the officer testified housed people without much money. This Court reversed the trial court’s denial of the defendant’s motion to suppress because

[t]he record [was] devoid of any articulable fact which would support the officer’s intuition that the appellant was avoiding the roadblock. For example, there was no indication in the record of any sharp driving maneuver, sudden turn[,] or reduction in speed or other facts which might tend to show that the appellant’s actions were evasive. The officer indicated in his response to a question posed to him by the trial judge that “it was just his intuition” that the appellant was turning into the apartment complex to avoid the roadblock. .. . [I]ntuition is insufficient to give rise to an articulable suspicion. The officer’s stop of the appellant after he exited the car was unjustified in that the officer did not observe the commission of a crime by the appellant before the stop and during his testimony, did not state any facts that would indicate that the appellant was about to violate the law in any manner.

We subsequently noted that

[t]he rule thus established in Jorgensen is that completely normal driving, even if it incidentally evades a roadblock, does not justify a Terry-type stop. Consistent with Jor-gensen, we have[,] however[,] held in subsequent cases that abnormal or unusual actions taken to avoid a roadblock may give an officer a reasonable suspicion of criminal activity even when the evasive action is not illegal.

Decided June 14, 2012

Jana W. Jacobson, for appellant.

In Jones v. State, a state trooper participating in a roadblock stopped a vehicle, which had turned into the parking lot of a shopping center near the roadblock. Citing Jorgensen, the Supreme Court of Georgia held that

[although the trooper noticed [the defendant] as he turned into the parking lot, the trooper did not recall that [the defendant] made an abrupt turn. Without evidence of a specific driving violation or maneuver to support the officer’s belief that [the defendant] was trying to avoid the roadblock, we conclude that the trooper lacked reasonable suspicion to stop [the defendant].

Here, it is undisputed that Blakely did not commit any traffic offense. He did, however, make an immediate, sudden turn into the driveway, reverse course, and drive away from the checkpoint at the same time that the police officer noticed his headlights. Although Blakely testified that he did not see the police lights at the checkpoint and was merely turning around to retrieve his wallet, we are required to “accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous.” Under these circumstances, where there was some evidence that Blakely attempted to avoid the roadblock, the trial court did not err by denying the motion to suppress and the subsequent motion for new trial.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

Robert W. Lavender, District Attorney, Leon Jour olmon, Assistant District Attorney, for appellee.

       OCGA§ 16-13-30 (a).

       OCGA§ 16-10-24 (a).

       OCGA§ 40-6-391 (a) (1).

       (Citation omitted.) Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012).

       “[W] e consider both the transcript of the hearing and the trial transcript in reviewing the evidentiary basis for the denial of a motion to suppress.” (Punctuation omitted.) Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993).

       Id.

       See id. at 545.

       See id. at 546.

       (Citation and punctuation omitted; emphasis supplied.) Id. at 546-547.

       (Punctuation omitted; emphasis supplied.) Terry v. State, 283 Ga. App. 158, 159 (640 SE2d 724) (2007), citing Taylor v. State, 249 Ga. App. 733, 735 (549 SE2d 536) (2001) and Richards v. State, 257 Ga. App. 358, 360 (1) (571 SE2d 172) (2002).

       291 Ga. 35.

       207 Ga. App. at 546.

        Jones, 291 Ga. at 38 (2).

       Id. at 37 (1).

       See Terry, 283 Ga. App. at 160 (police “authorized to conclude that in turning off the roadway, engaging in a possibly illegal backing maneuver, and then driving away in the opposite direction, [the defendant] was attempting to avoid the road check”); Jones v. State, 259 Ga. App. 506, 507-508 (1) (578 SE2d 165) (2003) (traffic stop authorized based on the officer’s observation that the defendant stopped abruptly and unsafely backed up the street to avoid roadblock); Richards, 257 Ga. App. at 359 (1) (officer had reasonable, articulable suspicion to stop the defendant, who, upon seeing a roadblock, stopped abruptly, reversed approximately 50 feet, and turned onto a side street); Taylor, 249 Ga. App. at 734 (traffic stop authorized because the defendant attempted to drive over a curb and turned abruptly into a closed shopping center upon seeing the roadblock). Cf. Jorgensen, 207 Ga. App. at 546; Jones, 291 Ga. at 38 (2).


author: McFADDEN, Judge.

text:
    A12A0235.
    OKELLEY v. ATLANTA HEART ASSOCIATES, P.C.
    (728 SE2d 313)
   McFADDEN, Judge.

Jan OKelley appeals the dismissal of her lawsuit against Atlanta Heart Associates, P.C. because of her failure to file an OCGA § 9-11-9.1 malpractice affidavit. OKelley argues that her lawsuit is based on simple negligence, not malpractice, and she therefore was not required to file a malpractice affidavit. To the extent OKelley’s complaint alleges professional negligence, the trial court properly granted Atlanta Heart Associates’ motion to dismiss. To the extent the complaint can be construed to state a claim based on ordinary negligence, the trial court erred in granting the motion to dismiss. We therefore affirm in part and reverse in part.

In her complaint, OKelley alleged that she was a patient of Atlanta Heart Associates and underwent a treadmill stress test at Atlanta Heart Associates’ offices. A medical technician employee, whom OKelley named and sued as Jane Doe, was controlling the treadmill. The technician began increasing the speed, requiring OKelley to run. OKelley twice asked the technician to reduce the speed or to stop the treadmill because she was afraid she would fall, but the technician did not do so. OKelley collapsed and sustained injuries, including a fractured nose.

OKelley filed suit alleging that the technician was negligent for failing to stop the treadmill; for failing to warn of the test’s danger; and for failing to follow the operating procedures she had been directed to follow. She alleged that Atlanta Heart Associates was negligent for failing to institute safe operating procedures for medical equipment, specifically the treadmill; for failing to adhere to any such operating procedures that had been formulated; for failing to sufficiently instruct and train the technician operating the treadmill; and for negligently entrusting the technician to conduct stress tests. Finally, OKelley alleged that Atlanta Heart Associates was liable under respondeat superior for the technician’s negligence.

OKelley argues that the trial court erred by granting Atlanta Heart Associates’ motion to dismiss for her failure to file an expert affidavit because the question of whether the medical technician was negligent in failing to reduce the speed or to stop the treadmill at OKelley’s request is a question of ordinary negligence, not medical negligence. OCGA § 9-11-9.1 (a) requires a plaintiff alleging medical negligence to file contemporaneously with the complaint an expert affidavit setting forth at least one negligent act or omission supporting each claim. Kerr v. OB/GYN Assoc. &c., 314 Ga. App. 40, 41 (1) (723 SE2d 302) (2012). But the requirement does not apply to claims of ordinary negligence.

The determination of whether a claim is one for medical negligence and therefore whether it requires expert support at filing is determined on the basis of whether the act or omission was made regarding a medical question. Medical questions have been defined as those concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence. In cases involving a person’s fall while in the care of medical professionals, it can be difficult to distinguish professional negligence from ordinary negligence. This distinction is a question of law for the court.

(Punctuation and footnotes omitted.) Id. See also MCG Health v. Casey, 269 Ga. App. 125, 128 (603 SE2d 438) (2004) (“Administrative, clerical, or routine acts demanding no special expertise fall into the realm of simple negligence.... However, if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.”) (citation and punctuation omitted).

Here, at least in part, the defendants’ alleged liability does not turn on a medical question but rather on the technician’s ignoring OKelley’s warning that she was going to fall. Kerr, 314 Ga. App. at 42 (1). See also Health Mgmt. Assoc. v. Bazemore, 286 Ga. App. 285 (648 SE2d 749) (2007) (holding that to the extent the complaint alleged the professional negligence of a licensed health care professional, the trial court erred by denying motion to dismiss for failure to file OCGA § 9-11-9.1 affidavit; to the extent the complaint could be construed to state a claim based on ordinary negligence, trial court properly denied motion to dismiss); Jones v. Bates, 261 Ga. 240, 242 (2) (403 SE2d 804) (1991) (“From these pleadings, we cannot say that the claim is necessarily one of medical malpractice.”).

At this point in the proceedings, this [cjourt is unable to say whether the evidence [OKelley] presents will support her stated claim that the [technician] negligently executed [an]... act requiring no exercise of expert medical judgment or whether [OKelley] will only succeed in marshaling evidence that the [technician] negligently exercised her professional judgment in [declining to stop the treadmill at OKelley’s request]. Nevertheless, [OKelley] has succeeded in stating a claim for the former, and to the extent that she did, the trial court erred by dismissing her complaint.

Decided May 4, 2012

Reconsideration denied June 15, 2012.

Joyce W. Bergman, for appellant.

Lewis, Brisbois, Bisgaard & Smith, Alison L. Lee, Paul E. Weathington, Michael J. Hannan III, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Adams, J., concur.


author: Adams, Judge.

text:
    A12A0063.
    MARTIN v. THE STATE.
    (729 SE2d 437)
   Adams, Judge.

James W. Martin, Jr., appeals the trial court’s order denying his motion to suppress evidence seized from his truck. For the following reasons, we reverse.

The proper standard of review was recently reiterated by the Supreme Court:

[W]hen a motion to suppress is heard by the trial judge, that judge sits as the trier of facts____[T]he trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous____[T]he reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. [Cit.] However, as a reviewing court, “[we] owe no deference to the trial court’s conclusions of law. Instead, we are free to apply anew the legal principles to the facts.” [Cit.]

Clay v. State, 290 Ga. 822, 828 (2) (725 SE2d 260) (2012).

The record, including a videotape of the incident, shows that at approximately 2:20 a.m. on January 4,2010, Walton County Sheriff’s Deputy Yarbrough spotted Martin’s truck parked behind a closed funeral home with the engine running and the passenger door one-quarter open. The deputy decided to investigate, and after parking his patrol car and approaching on foot, he saw two people inside the truck. Yarbrough was initially concerned for the occupants’ welfare — it was 19 degrees outside and neither person appeared to be breathing — and he thought for a moment that Martin was dead. In fact, the occupants were asleep, and Martin woke up when Yarbrough tapped on the window. Martin then woke up the woman in the driver’s seat. Yarbrough testified that Martin and the woman appeared lethargic and sluggish, their speech was slurred, their eyes were glassed over, and they were not able to answer questions as quickly as the deputy would have expected a person to be able to do.

Yarbrough confirmed the occupants’ identities and asked what they were doing parked behind the funeral home. Martin and the woman said that they had no place to stay, that they got tired, and that they were there to take a nap. Martin said that he lived in the truck, and he explained that the owner of the funeral home had given him permission to park there and rest. The deputy realized that he knew Martin had a pending charge of drug possession; he also had information “from another source” that Martin was possibly selling methamphetamine in another area of Walton County. But the dispatch center reported that a computer check revealed no outstanding warrants for Martin, and his license “came back clean” at about four minutes and fifteen seconds into the stop. Yet Yarbrough called for a second deputy, and at about six to eight minutes into the stop, Deputy Stowe arrived.

Yarbrough then asked Martin and the woman if there were any narcotics in the vehicle. He explained:

I asked them if there was anything illegal in the vehicle because I had concerns that, just based off their manifestations of how they were acting and that they were real, real sluggish, slow to respond, and I had asked them if there was anything illegal in the vehicle because I had a feeling that there was possibly, they were either using narcotics or that maybe there was narcotics in the vehicle. [And] [b]ased off my prior knowledge of Mr. Martin and having the one possession charge and also the information I’d been receiving.

(Emphasis supplied.) The couple denied having any narcotics in the truck. At a little over eight minutes into the stop Yarbrough then asked for permission to search; Martin replied that without a warrant he did not want the officer to search his truck. After the refusal, about 11 minutes into the stop, Yarbrough inquired as to whether a K-9 unit was available. Three or so minutes later, the officer said that although he could not smell anything in the vehicle, “If it’s anything, he’s going to have meth in the vehicle.” He testified, “I had a feeling that there was something going on other than just the fact that they were sleeping there.” (Emphasis supplied.) He testified that although the couple had just woken up and their demeanor could be consistent with someone who had just been in a deep sleep, Martin’s demeanor never really changed during the encounter; he continued to be slow to answer questions, and his speech was “slurred a little bit.”

At about 2:33 a.m., Yarbrough asked the dispatch officer to contact the owner of the funeral home to confirm whether he had given Martin permission to park there, and at about 2:38 a.m., dispatch reported back that it left a message for the owner. During this latter exchange, Yarbrough formally requested that a K-9 officer be called. Four minutes later (about 2:43 a.m.), dispatch reported to Yarbrough that the owner called and confirmed that Martin had permission to sleep there. Yarbrough testified that at this point, however, Martin was not free to leave because he was continuing to investigate the possibility of the presence of narcotics.

At about 2:44 a.m., the officer reported over the radio that “he wanted it noted that it was obvious that [Martin] was under the influence of something.” Yarbrough confirmed during his testimony that he first commented that Martin appeared to be on drugs after dispatch confirmed that Martin had permission to be parked behind the funeral home. At about the same time, a K-9 officer left for the scene, and Yarbrough was told that the K-9 officer was expected to arrive in about 20 minutes. Martin went back to sleep in his truck briefly while everyone was waiting on the K-9 officer to arrive. The K-9 officer arrived between 25 and 28 minutes later, or almost 53 minutes into the encounter. The K-9 officer indicated that the dog alerted, and a subsequent search of the vehicle revealed suspected methamphetamine residue. Martin was arrested and placed in custody at 3:26 a.m.

1. The trial court found that the event began as a first-tier encounter but that by the time the deputy had called for the K-9 officer to be dispatched, the defendant was no longer free to leave, and therefore a second-tier encounter was underway. The court found that by that time, Yarbrough had a reasonable and particularized suspicion that Martin and the driver were under the influence of some drug for these reasons: Yarbrough had discovered them asleep at 2:20 a.m. in a deserted parking lot of a funeral home; it was well below freezing; one door was open; Martin and the driver “were notably sluggish, their speech was slurred; they had difficulty answering questions as quickly as a non-intoxicated person in the same situation . . .”; and Yarbrough had knowledge of Martin’s criminal history and reputation as a drug dealer and user. The court added:

Therefore, regardless of the point at which the encounter shifted from a first tier to a second tier encounter, after the deputy had spoken with [Martin] and the driver and obtained their identification, he had reasonable suspicion that they were under the influence of drugs and might still be in possession of drugs.

The record supports the court’s finding that the second-tier encounter began when Yarbrough formally called for a K-9 unit at 2:38 a.m., which was about 18 minutes into the stop; Yarbrough essentially testified to as much. See generally In the Interest of D. H., 285 Ga. 51, 53 (2) (673 SE2d 191) (2009) (re: three types of police-citizen encounters). But even construing the evidence most favorably to upholding the trial court’s decision, we disagree with the legal conclusion that “after the deputy had spoken with [Martin] and the driver and obtained their identification,” or by 2:38 a.m., Yarbrough had a reasonable suspicion that Martin was in possession of illegal drugs.

2. A second-tier, investigatory detention was authorized “ ‘if based on the totality of the circumstances [the officer] had specific and articulable facts which, taken together with rational inferences from those facts, gave [him] a particularized and objective basis for suspecting [Martin] of criminal activity.’ [Cit.]” State v. Hopper, 293 Ga. App. 220, 222 (666 SE2d 735) (2008). See also Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). By 18 minutes into the encounter, Yarbrough knew the following information: (1) Martin and his companion were dead asleep in a running truck with one door ajar at 2:20 a.m. on a very cold night in a funeral home parking lot; (2) the couple claimed that they had no other place to stay and that they had permission of the owner to park and sleep there; (3) when they woke up and thereafter, the couple appeared lethargic and sluggish and they had slurred speech, were groggy, glassy-eyed, and slow to respond; and (4) Martin had a pending charge of possession and there was hearsay regarding Martin possibly selling methamphetamine at some other location. Yarbrough also knew that a computer check of Martin’s and his companion’s licenses and registration were in order; he had not smelled any odors or seen any substances inside or outside of the truck suggesting illegal activity; Martin was not in the driver’s seat; and Martin denied consent to search the truck. Within four more minutes, Yarbrough also knew that Martin had permission from the owner of the funeral home to park and sleep on the premises.

Applying the proper legal principles to this case, and considering the totality of the circumstances, we conclude that when the officers detained Martin after they knew that he had permission to be sleeping in his truck in the funeral home parking lot, they did not have an articulable suspicion, i.e., an “objective manifestation,” that Martin was or was about to be engaged in criminal activity. See State v. Dixson, 280 Ga. App. 260, 261 (633 SE2d 636) (2006). Once the unusual circumstances were clarified, and setting aside his prior knowledge of Martin, all Yarbrough had was Martin’s and his companion’s appearance and demeanor, which, Yarbrough admitted, could be consistent with someone being woken up from a deep sleep. Although this demeanor led Yarbrough to conclude that Martin might be on something, he twice characterized his conclusion as “a feeling.” But “[t]o stop a citizen, the officer must possess more than a subjective, unparticularized suspicion or hunch.” Black v. State, 281 Ga. App. 40, 43 (1) (635 SE2d 568) (2006).

Yarbrough did not see or smell any illegal substances; he did not question Martin regarding his appearance or demeanor; he did not determine whether Martin had taken prescription or over the counter medication that may cause drowsiness; he did not determine if Martin had consumed alcohol; he did not describe Martin’s appearance or demeanor as being specifically indicative of intoxication by an illegal substance, as opposed to a legal substance; and he did not perform any field tests to determine if Martin was under the influence of anything. Cf. Bell v. State, 295 Ga. App. 607, 609-610 (2) (672 SE2d 675) (2009) (this Court discounted an officer’s observation that the defendant, who had been driving, appeared to be “under the influence of some type of drug” given that the officer never intended to charge him with DUI and performed no field sobriety tests). Thus, despite the court’s conclusion that Yarbrough had a particularized suspicion that Martin was under the influence of “some drug,” Yarbrough simply did not have “a particularized and objective basis for suspecting [Martin] of criminal activity.” (Punctuation omitted.) Dixson, 280 Ga. App. at 261.

Yarbrough also had some prior knowledge of Martin — he knew that Martin was accused of possessing drugs in a separate incident and he had heard that Martin might have been involved with illegal drug sales. An officer’s knowledge of a suspect’s prior similar criminal behavior is relevant to a consideration of probable cause. See, e.g., Hinton v. State, 280 Ga. 811, 820 (8) (631 SE2d 365) (2006) (evidence of defendant’s prior conviction of kidnapping and indecent liberties was relevant for determining probable cause to search in new allegations that defendant committed kidnapping and murder). And the United States Supreme Court has held that an officer’s knowledge of prior arrests for similar conduct may be relevant to a determination of probable cause related to a new incident, even though the same evidence would not be admissible at trial. Brinegar v. United States, 338 U. S. 160, 172 (II) (69 SC 1302, 93 LE 1879) (1949). See also Caffo v. State, 247 Ga. 751, 755 (2) (c) (279 SE2d 678) (1981) (suspect’s past criminal conduct can be used to support probable cause to issue a search warrant).

But in these cases, a similarity was established between the prior conduct and the current circumstances that provided support for the articulable suspicion of a new crime. In Brinegar, evidence that the investigating officer had arrested the defendant for illegal transportation of liquor several months earlier was part of the facts and circumstances that the officer could consider when assessing probable cause to search the defendant in a new incident of suspected illegal transportation of contraband. Id. But the officer knew additional information about Brinegar before the stop, including that he had seen Brinegar loading liquor into a vehicle on other occasions over the course of six months prior to the search and that he recognized the car as one Brinegar had used during that time. This information gave the officer “positive and convincing evidence that Brinegar was engaged in [illegal transportation of liquor]” at the time of the search and information that linked the officer’s knowledge of Brinegar’s earlier arrest to this incident. Id. at 170.

In Hinton, evidence that the defendant had a “history of assaults on females, including the fact that he had previously abducted a victim and secreted her in his home” was considered as part of the support for a finding of probable cause to search the defendant’s home and car in a new incident involving the abduction and murder of a young woman. Hinton, 280 Ga. at 820 (8). But that information was combined with other information placing the defendant in close proximity with the victim, as well as two telephone calls about the victim by a person fitting the defendant’s description. Id. See also Caffo, 247 Ga. at 754 (2) (b) (in addition to defendant’s prior criminal record, officers had information showing defendant saw victim on night of the crime near where victim’s vehicle was found and that defendant had items in his car similar to one found on victim’s body).

Decided June 15, 2012.

Lisamarie N. Bristol, for appellant.

Layla H. Zon, District Attorney, Walter C. Howard, Marie E. Greene, Assistant District Attorneys, for appellee.

Here, there is no evidence that Martin had ever used drugs before and therefore no evidence of use of a particular drug. And although he had been arrested for possession of illegal drugs, we conclude that a past arrest for possession, without more, is simply not enough to provide reasonable articulable suspicion that the person is currently in possession. To hold otherwise would justify the authorities to conduct a second-tier detention, including a dog-sniff test, of any person previously arrested for possession. Finally, although Yar-brough was aware of hearsay information that Martin had been selling methamphetamine, without any information about the reliability of the source of that information, it cannot be considered.

We conclude that in this case, the officer simply did not have sufficient information as a matter of law to establish reasonable suspicion that Martin was engaged in or about to be engaged in a violation of the law. Accordingly, the trial court erred by denying the motion to suppress, and we reverse that decision. See Bell, 295 Ga. App. at 612.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

       The trial court found that this occurred at 2:38 a.m., about 19 minutes into the encounter. But the video shows that the request was made at an elapsed time of approximately 13 minutes into the encounter.

       Other than as noted in footnote 1, the trial court’s findings of fact are almost totally in accord with this recitation of the evidence.

       There is no testimony that Martin fell asleep within the first 18 minutes of the encounter. In fact, Yarbrough testified that this occurred while everyone waited on the K-9 officer to arrive.

       “[HJearsay is admissible in determining the existence of probable cause,” Banks v. State of Ga., 277 Ga. 543, 544 (1) (592 SE2d 668) (2004), but without sufficient indicia of reliability, anonymous information does not provide reasonable suspicion of criminal activity. Florida v. J. L., 529 U. S. 266, 270 (II) (120 SC 1375, 146 LE2d 254) (2000). See, e.g., State v. Dukes, 279 Ga. App. 247, 250 (630 SE2d 847) (2006) (“record is devoid of any evidence about the details of the report of drug activity received by the patrol officer”). Similarly, in this case, no basis for crediting the hearsay was offered.


author: Miller, Judge.

text:
    A12A0123.
    LEE v. THE STATE.
    (728 SE2d 847)
   Miller, Judge.

This is the second appearance of the case before this Court. In the first appearance, Lee v. State, 308 Ga. App. 711, 711-712 (708 SE2d 633) (2011) (“Lee I”), we vacated the trial court’s order as it concerned Victor Lee’s ineffective assistance of counsel claims and remanded the case for further proceedings. Following remand, the trial court entered another order denying Lee’s ineffective assistance of counsel claims. Lee now appeals the order entered upon remand. On appeal, Lee argues that his trial counsel was ineffective by (1) failing to investigate and present evidence to contradict the testimony of Lee’s accomplice; (2) failing to object to inadmissible hearsay testimony provided by Lee’s accomplice; and (3) failing to introduce evidence of the age difference between Lee and his accomplice. For the reasons set forth below, we affirm the trial court’s order denying these claims.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing “that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citations omitted.) Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010). However, a court addressing the ineffective assistance issue is not required “to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, supra, 466 U. S. at 697 (IV). “In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.” (Citation omitted.) Johnson, supra, 287 Ga. at 769 (2). In Lee I, we described the relevant factual background as follows:

After a jury trial, Victor Lee was convicted of aggravated assault [OCGA § 16-5-21 (a) (2)], armed robbery [OCGA § 16-8-41 (a)], and concealing the death of another person [OCGA § 16-10-31], in connection with the shooting death of Gerald Stinson.
The shooting occurred on July 16, 2005. State’s witness Jonas Blue (having pleaded guilty to various charges arising from the shooting) testified at trial as follows. At the time of the shooting, he lived in a house with Lee, Lee’s mother, and other members of Lee’s family. A few days before the shooting, Blue arranged for Stinson to purchase computer parts from Lee. Lee and Blue discussed the anticipated sale, and Lee told Blue that he wanted to rob Stinson. Blue called Stinson on July 16 to schedule a meeting at Lee’s house later that day. Lee then told Blue that he also planned to kill Stinson.
Blue testified that when Stinson arrived at the house, the three went upstairs to Lee’s bedroom. While Stinson was examining the computer parts, Lee tried to shoot him, but his gun jammed. Lee handed the gun to Blue. Stinson “rushed” toward Blue, who twice hit him in the head with the gun. Stinson stumbled backward and then ran down the stairs. Lee grabbed the gun from Blue and pursued Stinson. Lee shot Stinson in the back of the head.
Blue further testified that he and Lee cleaned the scene. The two placed Stinson’s body in a blanket in the back of Stinson’s truck. Blue then left the house. Shortly thereafter, Lee called Blue using a cell phone that he had taken from Stinson, and he asked what he should do with Stinson’s truck; Blue responded: “Just get rid of it.” Later that day, Blue saw Lee with a gun that had belonged to Stinson. The day after the shooting, Blue and Lee left town; while out of town, Blue also used Stinson’s cell phone.
A friend of Stinson’s testified that he had planned to meet Stinson [on] the evening of July 16, 2005. When Stinson failed to appear, the friend tried to call him but got no response. Another witness, Stinson’s roommate, testified that he last saw Stinson around 5:00 p.m. on July 16. The roommate also testified that Stinson owned a Glock firearm that he usually carried with him; the gun was missing from their apartment the following day.
On July 17, 2005, law enforcement officers discovered Stinson’s body in his abandoned truck, which was parked on the main road leading into the subdivision where Lee lived. An inquiry into Stinson’s cell phone records caused police to focus their investigation on Lee. While Lee was out of town, officers searched his house pursuant to a warrant. In Lee’s bedroom, under his mattress, they discovered the keys to Stinson’s truck and a “survival knife” that Stinson’s business partner later identified as very similar to one he had seen in Stinson’s possession. While at Lee’s house, the officers also obtained from Lee’s mother three firearm magazines that Stinson’s business partner later identified as belonging to Stinson.
Approximately one year later, after obtaining a statement from Blue that the shooting occurred at Lee’s house, police searched the house again. They found no forensic evidence connecting Lee with the crime or showing that his house was the crime scene, and no weapon connecting Lee with the shooting.

(Punctuation and footnotes omitted.) Lee I, supra, 308 Ga. App. at 711-713. Following his conviction, Lee moved for a new trial and subsequently amended his motion to add claims of ineffective assistance of counsel. Id. at 711, 715 (3). Since the trial court refused to consider Lee’s ineffectiveness claims, however, this Court vacated the part of the trial court’s order denying the motion for new trial that concerned the ineffective assistance claims and remanded the case for an evidentiary hearing on those claims. Id. at 715-716 (3). On remand, Lee filed another amended motion for new trial raising his various claims of ineffective assistance of counsel. Following a hearing on Lee’s claims, the trial court entered an order denying Lee’s amended motion for new trial, finding that trial counsel did not provide ineffective assistance of counsel.

1. Although Lee does not question the strength of his counsel’s defense theory at trial, i.e., that Blue alone planned and executed the murder and tried to shift the blame to Lee, he contends that trial counsel was ineffective by failing to investigate and present “the readily available evidence to support that theory” — that is, evidence which allegedly contradicted Blue’s account of what had occurred. We address each of Lee’s specific contentions in turn.

(a) Lee first contends that trial counsel was ineffective in failing to present evidence of the physical layout of Lee’s home. Lee claims that the layout of his home would have undercut Blue’s testimony that as Lee chased Stinson down the stairs, Lee turned into where the garage was and shot Stinson, who fell immediately to the garage floor. To support his claim at the motion for new trial hearing, Lee called his mother to the stand and introduced a computer-generated schematic of the layout of his home, showing a laundry room separating the base of the staircase from the garage. Lee’s claim of ineffective counsel on this ground fails.

First, Lee has failed to show that trial counsel was deficient in failing to produce evidence of the Lee home layout. “In general, matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel.” (Citation omitted.) Scott v. State, 290 Ga. 883, 889 (7) (b) (725 SE2d 305) (2012). Moreover, “[a]bsent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.” (Citation and punctuation omitted.) Raymond v. State, 298 Ga. App. 549, 551 (1) (a) (680 SE2d 598) (2009). At the motion for new trial hearing, trial counsel explained that he had visited the Lee home and recalled the connection between the stairs and garage being much more direct than that portrayed in the computer-generated schematic. Trial counsel further testified that part of his defense theory at trial was that Blue was fully responsible for the crimes, and that Lee was not even present at the time of Stinson’s murder. Given trial counsel’s recollection of the Lee home, coupled with the defense theory, Lee has failed to make a strong showing that trial counsel’s decision not to present evidence of the layout of Lee’s home was an unreasonable trial strategy.

Second, even if we were to assume that trial counsel’s conduct was deficient, Lee cannot make a showing of prejudice. Notably, in further clarifying the location of the shooting, Blue testified that it was “like right there at the base of the laundry room . . . and the garage.” Thus, despite Lee’s claim otherwise, evidence of the layout of his home would not have in fact refuted Blue’s testimony, and Lee cannot show that there was a reasonable probability that the outcome of his trial would have been different had trial counsel produced that evidence.

(b) Lee next raises issue with trial counsel’s failure to investigate a detective’s note regarding the statement of the county medical examiner — that the gunshot wound to Stinson’s head was consistent with him being shot while he was on his knees. Lee claims that this statement would have “directly refute[d]” the credibility of Blue’s testimony that Lee shot Stinson when they were both running through Lee’s home. Again, there is no merit to Lee’s claim of ineffective assistance of counsel.

At the motion for new trial hearing, trial counsel testified that the county examiner’s statement had no impact on, and was otherwise irrelevant to, the defense strategy that Blue committed the murder and that Lee was not involved or even present when the murder occurred. As explained in the previous subdivision, “matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel.” (Citation omitted.) Scott, supra, 290 Ga. at 889 (7) (b). Moreover, “the degree to which an attorney chooses to cross-examine witnesses and the manner in which to attack their credibility fall within the ambit of trial tactics.” (Citations, punctuation and footnote omitted.) Watts v. State, 304 Ga. App. 632, 635 (697 SE2d 272) (2010). Lee has failed to make a strong showing that trial counsel’s decisions not to further investigate the county examiner’s statement, or otherwise use the statement to impeach Blue’s credibility, were unreasonable as a matter of law, under the circumstances.

Nor can Lee demonstrate that he was prejudiced by trial counsel’s decision not to further investigate the county medical examiner’s statement. Notably, the examiner’s statement concerned the manner in which Stinson was shot, and Lee was acquitted on the charges of murder and felony murder. Thus, Lee cannot show that but for trial counsel’s failure to further investigate the statement, the outcome of Lee’s trial would have been different.

(c) Lee claims that trial counsel should have presented evidence regarding the absence of computer equipment in Lee’s bedroom. Lee contends that a police photograph, depicting a portion of Lee’s bedroom that contained no computer equipment, would have refuted Blue’s testimony that Stinson was in Lee’s bedroom looking at computer merchandise while Lee pulled out the handgun to shoot him. Lee cannot show how he was prejudiced by trial counsel’s decision not to present such evidence. “To establish the prejudicial effect of counsel’s failure to present certain evidence, one is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of the case.” (Citation and punctuation omitted.) Ware v. State, 273 Ga. 16, 17-18 (3) (537 SE2d 657) (2000). Notably, the police photograph upon which Lee relies shows only a corner portion of Lee’s bedroom, and as the State aptly points out in its brief, Lee’s bedroom was purportedly as big as the living room according to the computer-generated schematic introduced by Lee at the motion for new trial hearing. Especially absent any showing that computer equipment was not contained elsewhere in Lee’s bedroom, Lee cannot demonstrate “that there is a reasonable probability that the outcome of the trial would have been different had [trial] counsel taken the suggested course.” (Citation, punctuation and footnote omitted.) Watts, supra, 304 Ga. App. at 635.

(d) Lee contends that trial counsel should have presented evidence regarding the origin of the blanket in which Stinson’s body was wrapped to refute Blue’s testimony that the blanket had been taken from the laundry bin at Lee’s home. In support of his claim, Lee relies upon the lack of forensic evidence on the blanket linking it to the Lee home, as well as his mother’s testimony at the motion for new trial hearing that she did not know anything about the blanket. Lee, however, has again failed to show that trial counsel’s conduct was deficient.

As an initial matter, during cross-examination of the investigating detective, trial counsel did in fact elicit testimony confirming the lack of any forensic evidence connecting Lee to the murder. Moreover, at the motion for new trial hearing, trial counsel testified that the origin of the blanket did not impact the defense theory that Blue committed the murder, and that Lee was not involved or even present when the murder occurred. In light of the foregoing, Lee has failed to make “a strong showing that counsel’s actions were not reasonable, [and] we will presume that these strategies were not deficient.” (Citation and punctuation omitted.) Raymond, supra, 298 Ga. App. at 551 (1) (a).

Accordingly, the trial court was not clearly erroneous in finding that none of the foregoing grounds constituted ineffective assistance of counsel.

2. Lee also argues that trial counsel was ineffective by failing to object to inadmissible hearsay testimony provided by Blue. We disagree.

Lee specifically raises issue with the following colloquy between the State and Blue:

Q. And while you were in Philadelphia, did you ever — or did [Lee’s aunt] ever find out what happened in that house on July 16th of 2005?
A. Yeah, I told her in Philadelphia.
Q. And what did you tell her?
A. I told her that [Lee] killed somebody.
Q. And what did she do?
A. She was kind of hysterical and she panicked, but she was asking like certain questions like that’s where the money came from and stuff like that.

Lee contends that the above-emphasized testimony constituted inadmissible hearsay that corroborated Blue’s claims that Lee committed the murder to obtain money for his subsequent trip to Philadelphia. Even assuming the testimony was inadmissible hearsay and that trial counsel’s failure to object was deficient, Lee still cannot show that he suffered any prejudice. As an initial matter, Lee was in fact acquitted, of murder and two counts of felony murder. Moreover, the hearsay was only cumulative of Blue’s own admissible testimony describing Lee as having shot Stinson in the back of his head; that when Blue saw Lee shortly after the murder, Lee had money and gave some to Blue; that the day after the murder, Lee left for Philadelphia for a family reunion; and that when Blue met Lee in Philadelphia, he went shopping with Lee and Lee’s aunt. As the admission of cumulative hearsay evidence is considered harmless error, a defendant cannot show a reasonable probability that, but for trial counsel’s failure to object to such evidence, the outcome of the trial would have been different. See Thomas v. State, 296 Ga. App. 170, 174 (2) (c), n. 12 (674 SE2d 56) (2009). Therefore, trial counsel’s failure to object to Blue’s testimony did not amount to ineffective assistance, and we find no error in the trial court’s rejection of Lee’s ineffectiveness claim.

3. In his last enumeration of error, Lee contends that trial counsel was ineffective by failing to introduce evidence of the age difference between Lee and Blue. Lee’s contention fails.

As discussed in Lee I, supra, 308 Ga. App. at 713 (1), the State moved in limine to exclude, as irrelevant, evidence of Lee’s age. Lee’s response was “that the evidence was relevant to whether Blue was a master mind or a leader to someone of such young age.” (Punctuation omitted.) Id. The trial court found that Lee could elicit testimony about Lee being younger than Blue, but that Lee was excluded from presenting evidence as to the specifics of Lee’s and Blue’s respective ages. Id. Lee argues that trial counsel’s performance was deficient insofar as he failed to elicit any other, nonspecific evidence regarding the age disparity between Blue and Lee. Even assuming, arguendo, that trial counsel was deficient in failing to do so, Lee nevertheless failed to meet his burden of showing prejudice. With respect to this second prong of Strickland, Lee contends simply that the jury’s knowledge of the age disparity between Lee and Blue “would have significantly influenced their assessment of Blue’s claims that he was an unwitting bystander in Lee’s premeditated plan to rob and murder [Stinson].” However, “harm cannot be shown by mere speculation and conjecture unsupported by the record.” (Punctuation and footnote omitted.) Page v. State, 304 Ga. App. 59, 64 (695 SE2d 379) (2010). Moreover, trial counsel revealed at the motion for new trial hearing that he believed the jury should have been able to observe at trial the obvious age disparity between Blue and Lee. In light of trial counsel’s testimony, coupled with Lee’s conclusory statement of speculated harm, Lee has not shown that there is a reasonable likelihood that but for trial counsel’s failure to elicit additional, nonspecific evidence regarding the age disparity between Lee and Blue, the outcome of the trial would have been different. Lee’s allegation of ineffective assistance in connection with this issue is therefore without merit.

Decided June 15, 2012.

Jimmonique R. S. Rodgers, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       We note that the trial court merged the aggravated assault count into that for armed robbery. Lee was found not guilty on the charges of murder and felony murder.

       At the motion for new trial hearing, trial counsel could not recall why he had failed to object to Blue’s testimony.


text:
    A12A0146.
    DAVENPORT v. THE STATE.
    (729 SE2d 442)
   Miller, Judge.

Following a jury trial, Richard Lee Davenport was convicted of rape (OCGA § 16-6-1 (a) (1)), solicitation of sodomy (OCGA § 16-6-15 (a)), and incest (OCGA § 16-6-22 (a) (1)). Davenport filed a motion for a new trial, which the trial court denied. Davenport appeals, contending that (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred in failing to declare a mistrial after the prosecutor made improper comments during closing argument; (3) he received ineffective assistance of counsel; and (4) the trial court erred in quashing his subpoena for the production of prosecutor’s closing argument notes. For the reasons that follow, we discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Mullis v. State, 292 Ga. App. 218 (664 SE2d 271) (2008).

So viewed, the evidence shows that Davenport married the victim’s mother in October 2003, when the victim was 13 years old. One morning shortly thereafter, the victim was alone with Davenport inside the family’s home when he called her to his room. When the victim entered Davenport’s room, he locked the door, sat her on top of the dresser, and began kissing her on the neck and touching her breasts and in between her legs. Davenport then picked up the victim, placed her on the bed, took off her clothes, and had sexual intercourse with her. The victim had asked Davenport to stop, but he refused.

The victim recounted several additional incidents in which Davenport had sexual intercourse with her. The victim approximated that, between October 2003 and April 2004, she and Davenport had sex approximately 80 times. Davenport warned the victim not to tell anyone what he was doing to her and threatened to send the victim’s brother away if she reported him.

When the family moved in April 2004, Davenport briefly stopped having sexual intercourse with the victim; a month or two later, however, Davenport resumed his frequent sexual advances toward her. In 2005, the victim’s cousin temporarily lived with the victim’s family. Early one morning, the cousin was sleeping in the victim’s room when she heard Davenport enter the room and have sex with the victim. When the victim reported the incident to her mother, Davenport took the victim into a room and whipped her.

Despite the reports to the victim’s mother, nothing was done to stop Davenport from continuing to have sexual intercourse with the victim. In March 2008, Davenport offered to pay the victim money for oral sex. The victim finally told her pastor that Davenport had been sexually assaulting her. The pastor subsequently contacted the police, and the victim was removed from the home and placed into foster care.

Upon turning 18 years old, the victim was forced to leave foster care, and she moved back in with her mother and Davenport in July 2008. The victim began locking her bedroom door in efforts to keep Davenport from sexually assaulting her. Davenport picked the lock, however, and he resumed the cycle of sexually assaulting the victim almost every day.

In January 2009, the victim called her brother for help, and the sexual abuse was reported to police again. Davenport was subsequently arrested and charged with various sexual assault offenses.

1. Davenport contends that the evidence was insufficient to sustain his convictions. We highly disagree.

(a) Incest. OCGA § 16-6-22 (a) provides, in relevant part, that a person commits the offense of incest when he engages in sexual intercourse with a person to whom he knows he is related either by blood or by marriage, including as father and stepdaughter. The victim testified that Davenport had sexual intercourse with her on a frequent basis for over six years between October 2003 and January 2009, during which time Davenport was married to the victim’s mother. Although Davenport contends that the victim’s testimony was insufficient because it was uncorroborated, the testimony of a single witness is generally sufficient to establish a fact. See OCGA § 24-4-8. In any event, the victim’s cousin testified that she was in the same room during one incident when Davenport and the victim had sexual intercourse. To the extent Davenport asserts that the victim and other witnesses were not credible, “[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Punctuation omitted.) Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009). Under these circumstances, the evidence in this case was sufficient to support the incest conviction. Stephens v. State, 305 Ga. App. 339, 340-341 (1) (699 SE2d 558) (2010) (victim’s testimony that she had sexual intercourse with the defendant, her stepfather, was sufficient to support incest conviction); Lewis v. State, 275 Ga. App. 41, 42 (1) (619 SE2d 699) (2005) (same).

(b) Rape. Davenport contends that the evidence was insufficient to sustain his conviction for rape since it relied primarily on the victim’s uncorroborated testimony and failed to establish the required element of lack of consent.

“A person commits the offense of rape when he has carnal knowledge of . . . [a] female forcibly and against her will.” OCGA § 16-6-1 (a) (1).

It is well settled... that a victim’s testimony, without more, is sufficient to sustain a conviction for rape.... [I]n order to prove the rape of a child, only minimal evidence of force is required. Proof of physical violence, intimidation or threats may be used to prove force. And lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.

(Citations and punctuation omitted; emphasis supplied.) Siharath v. State, 246 Ga. App. 736, 739 (2) (541 SE2d 71) (2000). Additionally, “force may be inferred by evidence of intimidation arising from the familial relationship, and may be proved by direct or circumstantial evidence.” (Punctuation and footnote omitted.) Williams v. State, 284 Ga. App. 255, 256-257 (1) (a), (b) (643 SE2d 749) (2007).

Here, the victim stated that Davenport refused to stop when she told him that she did not want to have sex with him. Davenport repeatedly had sexual intercourse with the victim, threatening the victim not to tell anyone. After several years, the victim finally told her mother that she had been having sex with Davenport, and Davenport retaliated by beating the victim. Despite informing her mother, the mother did nothing to stop Davenport. Although the victim later reported Davenport to her pastor, she stated that she was afraid of reporting him to the police because she thought her family would disown her. This evidence was sufficient to establish the element of force, because “[w]hen a victim was repeatedly . . . raped over a period of years despite [her] protests ... and her earlier outcry was unsuccessful, the jury was authorized to find that, from the victim’s perspective, resistance in [a] subsequent incident would have been futile.” (Citation and punctuation omitted.) Williams v. State, 304 Ga. App. 592, 593 (1) (696 SE2d 512) (2010); House v. State, 236 Ga. App. 405, 409 (1) (512 SE2d 287) (1999) (evidence was sufficient to establish force where the father repeatedly sexually assaulted a child, the child’s outcries to her mother were ignored, and the father warned the child not to tell anyone about his abuse).

Notwithstanding Davenport’s claims that the victim consented by “accepting” money for sex, the victim stated that she never wanted to have sex with Davenport, she was relieved to have been removed from the home, and she tried to keep Davenport out of her room by locking the door when she was forced to return to the home. This evidence hardly demonstrates her consent. Consequently, the foregoing evidence was sufficient to show both force and lack of consent.

(c) Solicitation of Sodomy. Davenport also challenges the sufficiency of the evidence to sustain his conviction for solicitation of sodomy.

“A person commits the offense of solicitation of sodomy when he solicits another to perform or submit to an act of sodomy.” OCGA § 16-6-15 (a). “Sodomy” is defined as “any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a).

Here, the victim testified that in March 2008, Davenport offered to give her money for oral sex. Her testimony was sufficient to sustain Davenport’s conviction for solicitation of sodomy. See Carolina v. State, 276 Ga. App. 298, 302 (1) (b) (623 SE2d 151) (2005) (victim’s testimony that defendant offered her money to make “him feel good” after discussing oral sex was sufficient to sustain conviction for solicitation of sodomy); see also OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

2. Davenport next contends that the trial court erred by failing to declare a mistrial sua sponte when the State improperly commented on his future dangerousness during closing arguments. There is no merit to his claim.

“It is manifestly improper for a prosecutor to argue to the jury during the guilt-innocence phase of any criminal trial that if found not guilty, a defendant poses a threat of future dangerousness.” (Footnote omitted.) Wyatt v. State, 267 Ga. 860, 864 (2) (b) (485 SE2d 470) (1997). However, when as here, the defendant has not requested a mistrial,

the trial court was required to act sua sponte only if there was a manifest necessity for a mistrial. And manifest necessity requires urgent circumstances. ... [A] trial court’s decision whether to grant a mistrial based upon manifest necessity is entitled to great deference.

(Citations and punctuation omitted.) Gonzalez v. State, 310 Ga. App. 348, 350 (2) (714 SE2d 13) (2011).

Here, although closing arguments were not transcribed, the State concedes and the record confirms that the prosecutor improperly commented on Davenport’s “future dangerousness.” After sustaining Davenport’s objections to the prosecutor’s remarks, the trial court instructed the jury to disregard the prosecutor’s statement and confirmed that the jury understood the instruction and would follow it. Thereafter, Davenport did not move for a mistrial or otherwise raise any further objection to closing argument or to the trial court’s curative measures. Under these circumstances, Davenport has not shown that there was a manifest necessity for a mistrial, and thus, the trial court was not required to declare one sua sponte. See Wilkes v. State, 221 Ga. App. 390, 394 (5) (471 SE2d 332) (1996) (trial court did not err in failing to grant a mistrial sua sponte after sustaining an objection to “future dangerousness” argument and giving curative instructions); cf. Wyatt, supra, 267 Ga. at 864 (2) (b) (trial court did not err in refusing to grant mistrial based on two improper comments on defendant’s future dangerousness).

3. Davenport argues that he received ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010). Applying these standards, we turn to review Davenport’s claims.

(a) Davenport first asserts that his trial counsel was ineffective for failing to present an alibi defense through evidence that the victim was in another state during some of the dates alleged in the indictment. There is no merit to Davenport’s claim.

Here, trial counsel testified at the motion for new trial hearing that he had a “vague recollection of there being something about [the victim] visiting Tennessee [,] but it’s not coming fully to my mind in terms of how it applied to any item in the indictment.” However, trial counsel did not investigate the veracity of these claims. Moreover, Davenport did not call any witness or present any evidence to show that the victim was actually in Tennessee during dates relevant to the charged offenses. Consequently, Davenport offered nothing more than mere speculation that the victim was not in Georgia during the dates listed in the indictment, and therefore, failed to show a reasonable probability that the results of the proceeding would have been different. See Powell v. State, 276 Ga. 592, 595 (2) (581 SE2d 13) (2003) (defendant failed to show that counsel was ineffective for failing to introduce evidence of defendant’s abuse where there was no evidence to support defendant’s bare assertion); Herrington v. State, 285 Ga. App. 4, 4-5 (a) (645 SE2d 29) (2007) (since defendant neither called purported alibi witness to testify at motion for new trial hearing nor presented legally acceptable substitute for alibi’s testimony to substantiate claim that alibi evidence would have been favorable to his defense, it was impossible for defendant to show that trial counsel was ineffective for failing to present alibi defense).

(b) Davenport also asserts that trial counsel failed to adequately present an alibi defense showing that he was incarcerated during some of the time listed in the indictment. Again, we discern no error.

Here, trial counsel testified at the motion for new trial hearing that Davenport informed him that he was incarcerated for several days during one of the time periods when Davenport sexually abused the victim. Trial counsel further stated that, since Davenport’s incarceration was only for a few days, the State would still be able to prove Davenport committed the offenses within the applicable statutes of limitation. Moreover, trial counsel stated that he did not confirm Davenport’s period of incarceration, and neither he nor Davenport presented any evidence substantiating the dates Davenport was incarcerated, making it impossible to determine whether any of these dates provided an alibi defense. Absent evidence supporting his alibi defense, Davenport did not meet his burden of showing a reasonable probability that the evidence would have affected the outcome of his trial. See Jones v. State, 315 Ga. App. 427, 433 (3) (727 SE2d 216) (2012) (without affirmative evidence supporting alibi defense and that trial counsel’s decision not to introduce it was negligent, rather than strategic, it is impossible for the defendant to establish prejudice); Herrington, supra, 285 Ga. App. at 4-5 (a) (since defendant failed to present evidence substantiating claim that alibi evidence would have been favorable to his defense, it was impossible for defendant to show that trial counsel was ineffective for failing to present alibi defense).

(c) Davenport also contends that trial counsel was ineffective for failing to object to the prosecutor’s use of the word “predator” during closing arguments. Contrary to Davenport’s claims, however, there is no evidence that the prosecutor made such remarks. As previously stated, the closing arguments were not transcribed, the prosecutor denied ever having used the word “predator,” and the only improper comment that trial counsel could recall was the prosecutor’s reference to Davenport’s “future dangerousness.” Consequently, “[w]e hold that evidence supported the trial court’s determination that no improper [‘predator’] comments were made during the State’s closing argument, and that [Davenport] has failed to carry his burden of showing deficient performance by his trial counsel.” (Citation omitted.) Marshall v. State, 265 Ga. App. 556, 558 (4) (c) (594 SE2d 661) (2004).

Decided June 15, 2012.

Stanley W. Schoolcraft III, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

4. In his last enumeration of error, Davenport contends that the trial court erred in quashing his subpoena for the production of the prosecutor’s handwritten notes and visual aids relating to closing argument. We discern no error.

The defense must make a prima facie showing that the requested materials are relevant to his defense and that he has a right to the materials, and the trial court may properly quash an unreasonable and oppressive subpoena. Furthermore, the defendant must show that there is a reasonable probability that, had the requested materials been provided to him, the outcome of the trial would have been different.

(Citations and punctuation omitted.) Tuttle v. State, 232 Ga. App. 530, 531-532 (2) (502 SE2d 355) (1998).

At the motion for new trial hearing, Davenport explained that he needed the prosecutor’s notes to question the prosecutor about his closing argument. The trial court found that the notes were not relevant for this purpose because there was no evidence that the notes were read verbatim to the jury. Pretermitting whether Davenport had a right to the prosecutor’s notes, Davenport failed to show that the notes were relevant and material in light of the fact that he was able to examine the prosecutor at the motion for new trial hearing. Given the trial court’s wide discretion in determining what evidence is relevant and material, Davenport has failed to show that the trial court abused its discretion in refusing to enforce the subpoena. See Smith v. State, 290 Ga. 428, 432-433 (6) (721 SE2d 892) (2012); Taylor v. State, 172 Ga. App. 827, 827 (1) (324 SE2d 788) (1984).

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       Davenport was also found guilty of two counts of child molestation (OCGA § 16-6-4 (a) (1)), an additional count of rape, and two additional counts of incest. For purposes of sentencing, the trial court merged these additional counts into the rape and incest counts.

       Davenport challenges the sufficiency of the evidence with respect to the two child molestation counts, and the additional rape and incest counts. Footnote 1 makes clear that these counts were merged with other counts. “We need not consider an enumeration of error which addresses the sufficiency of the evidence to convict on a count on which the trial court failed to enter judgment.” (Citation and punctuation omitted.) Campbell v. State, 311 Ga. App. 865, 865, n. 2 (717 SE2d 494) (2011); see also Nelson v. State, 277 Ga. App. 92, 96 (1) (b) (625 SE2d 465) (2005).

       The State also presented evidence that in 1997, Davenport pled guilty to the offense of statutory rape against a 14-year-old girl, who was the younger sister of the victim’s mother in this case.


text:
    A12A0206.
    WAREHOUSEBOY TRADING, INC. v. GEW FITNESS, LLC.
    (729 SE2d 449)
   Miller, Judge.

After obtaining an arbitration award in its favor, Warehouseboy Trading, Inc. d/b/a Solutionsbuilt.com (‘Warehouseboy”) filed an application in state court to initiate arbitration award confirmation proceedings against Gew Fitness, LLC f/k/a Sonz Fitness Center-Decatur, LLC (“Gew Fitness”) pursuant to the Georgia Arbitration Code, OCGA § 9-9-12. Warehouseboy voluntarily dismissed its original state court application and later refiled it in superior court pursuant to the renewal provisions of OCGA § 9-2-61 (a). Gew Fitness moved to dismiss Warehouseboy’s renewed application on the grounds that it was time-barred by the one-year statute of limitation set forth in OCGA § 9-9-12. The superior court granted Gew Fitness’s motion. Warehouseboy appeals, contending that the superior court erred in dismissing its application since Warehouseboy was permitted to renew its original application under the renewal statute. For the reasons set forth below, we reverse the judgment of the superior court.

The record shows that on May 18, 2009, Warehouseboy was awarded $10,150 pursuant to an arbitration clause in a website design agreement between Warehouseboy and Gew Fitness. In October 2009, Warehouseboy commenced a proceeding to confirm the award in DeKalb County State Court. On June 23, 2010, Gew Fitness filed a motion to dismiss the DeKalb County proceeding on the grounds that the state court did not have subject matter jurisdiction. On or about July 8, 2010, and before the DeKalb County State Court ruled on the motion to dismiss, Warehouseboy voluntarily dismissed its proceeding without prejudice.

On December 17,2010, Warehouseboy filed a renewal proceeding in Cobb County Superior Court to confirm the award of the arbitrator. Gew Fitness filed another motion to dismiss on the grounds that Warehouseboy’s application to confirm the award was not brought within one year of its delivery by the arbitrator. The superior court granted Gew Fitness’s motion, finding that Warehouseboy’s proceeding was barred by the one-year statute of limitation and could not be renewed under the renewal statute.

On appeal, Warehouseboy challenges the superior court’s ruling, contending that Warehouseboy was permitted to renew its original application under the renewal provisions of OCGA § 9-2-61 (a), (c). OCGA § 9-2-61 (a) provides:

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. . . .

(Punctuation omitted.) Moreover, although the privilege of dismissal and renewal does not apply to void cases, the legislature amended the renewal statute in 1990 “so as to apply the privilege of renewal in cases which are originally filed in either a state or federal court which does not have subject matter jurisdiction[.]” (Punctuation omitted.) Ga. L. 1990, p. 876. As such, subsection (c) of the renewal statute provides that “[t]he provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.” OCGA § 9-2-61 (c).

Here, the superior court found that because DeKalb County State Court lacked subject matter jurisdiction over Warehouseboy’s original application, the original action was void and could not be renewed under OCGA § 9-2-61 (a). The superior court further found that OCGA § 9-2-61 (c) could not save Warehouseboy’s renewed application because there was no evidence on the record that the DeKalb County State Court action was in fact dismissed for lack of subject matter jurisdiction.

As an initial matter, we note that since the renewed application did not indicate whether the state court action was dismissed for lack of subject matter jurisdiction, the superior court clearly considered matters beyond Warehouseboy’s renewed application in ruling on Gew Fitness’s motion to dismiss. Gew Fitness’s “motion should therefore have been treated as one for summary judgment and disposed of as provided in [OCGA § 9-11-56].” Hoffman v. PMC Dev. Co., 238 Ga. 258 (232 SE2d 541) (1977) (basis of the trial court’s dismissal order was that the complaint was barred by the statute of limitation); see also Sowerby v. Doyal, 307 Ga. App. 6, 6-7 (703 SE2d 326) (2010) (reviewing motion to dismiss, based on expiration of statute of limitation, as one for summary judgment where record showed that the trial court considered matters outside the complaint and the parties treated motion as one for summary judgment). Accordingly, this Court will treat the trial court’s order as a ruling on a motion for summary judgment in favor of Gew Fitness. See Hoffman, supra, 238 Ga. at 258; Sowerby, supra, 307 Ga. App. at 6.

Thus, “the standard of review as to the issues on appeal is whether the record supports the conclusion that there was no genuine issue of material fact, and that viewing the evidence in the light most favorable to [Warehouseboy], [Gew Fitness] was entitled to judgment as a matter of law.” (Citations and punctuation omitted.) Morrell v. Wellstar Health System, 280 Ga. App. 1, 2-3 (1) (633 SE2d 68) (2006).

So viewed, the undisputed facts show that Warehouseboy filed its renewed application well over a year after the May 18, 2009, delivery of Warehouseboy’s arbitration award, and as such, well over the one-year statute of limitation set forth in OCGA § 9-9-12. It is also undisputed that Warehouseboy’s original state court application was void. That is, since OCGA § 9-9-4 (a) (1) requires any application to the court under the Georgia Arbitration Code to be made in the superior court of the county where venue lies, DeKalb County State Court clearly lacked subject matter jurisdiction over Warehouseboy’s original application. See Collins, supra, 186 Ga. App. at 852 (2) (“[W]here a court does not have jurisdiction of the subject matter, the whole proceeding is . . . void.”) (Citation and punctuation omitted.) Therefore, Warehouseboy’s original action was incapable of being renewed pursuant to subsection (a) of the renewal statute. See Reid, supra, 223 Ga. App. at 205 (1) (privilege of dismissal and renewal under OCGA § 9-2-61 (a) does not apply to void cases).

Consequently, OCGA § 9-2-61 (c) provided the only avenue by which Warehouseboy could have resurrected its original void action under the renewal statute. As such, Warehouseboy was required to show that its original state court application was “dismissed without prejudice for lack of subject matter jurisdiction[.]” (Punctuation omitted.) OCGA § 9-2-61 (c). Although the record does not contain a copy of Warehouseboy’s voluntary dismissal, the parties do not dispute that the document failed to expressly state that the dismissal was based upon a lack of subject matter jurisdiction. Cf. Elder v. Cardoso, 205 Ga. App. 144, 148-149 (7) (421 SE2d 753) (1992) (concluding that where the record failed to disclose a copy of any final order showing that appellant’s prior federal action had been dismissed for lack of subject matter jurisdiction, “the basis for the purported dismissal of the federal action remained] unproven and a genuine issue of material fact thus remain [ed] as to whether or not appellant’s instant state action [was] a valid renewal action[,]” and therefore reversing the trial court’s grant of summary judgment on the appellant’s renewed state court action).

Notwithstanding the absence of an order with this express language, Warehouseboy nevertheless contends that certain undisputed circumstances surrounding its voluntary dismissal reflect that it was in fact based upon a lack of subject matter jurisdiction. Indeed, the record reflects that Gew Fitness filed a motion to dismiss the original state court application based upon a lack of subject matter jurisdiction. In response, Warehouseboy conceded that the original application had been filed in the wrong court and initially sought to transfer the proceeding to the superior court. On the day that Gew Fitness’s motion to dismiss was scheduled to be heard, however, counsel for Warehouseboy announced that he was going to file a voluntary dismissal without prejudice, and he did so two days later. As noted above, however, the dismissal document made no indication that the state court application was being dismissed for lack of subject matter jurisdiction.

Over five months later, when Warehouseboy filed the application as a renewal action in the superior court, Warehouseboy again failed to specify that the original state court action had been dismissed for lack of subject matter jurisdiction or that it was subject to renewal under subsection (c) of the renewal statute. It was only after Gew Fitness moved to dismiss the renewed application, specifically in Warehouseboy’s response to the motion and at the motion to dismiss hearing before the superior court, when Warehouseboy finally raised subsection (c) and indicated that the reason it voluntarily dismissed the original application was because DeKalb County State Court lacked subject matter jurisdiction.

Decided June 15, 2012.

Louis M. Turchiarelli, for appellant.

Wilson, Morton & Downs, Robert E. Wilson, Stephen G. Quinn, for appellee.

We conclude that the above circumstances, when viewed in the light most favorable to Warehouseboy, establish that its original state court application was in fact dismissed for lack of subject matter jurisdiction. Accordingly, Warehouseboy’s application to confirm its arbitration award was a valid renewal action pursuant to OCGA § 9-2-61 (c), thereby tolling the applicable one-year statute of limitation. For these reasons, the trial court’s dismissal of Warehouseboy’s renewed application was improper.

Judgment reversed.

Mikell, P. J., and Blackwell, J., concur.

       See OCGA § 9-9-4 (a) (1) (requiring any application to the court under the Georgia Arbitration Code he made in the superior court of the county where venue lies).

       “OCGA § 9-9-12 provides that a party seeking confirmation of an arbitration award must apply for confirmation with a trial court within one year after its delivery to him.” (Punctuation omitted.) Hardin Constr. Group v. Fuller Enterprises, 265 Ga. 770, 772 (462 SE2d 130) (1995).

        See Reid v. U. S. Fidelity & Guaranty Co., 223 Ga. App. 204, 205 (1) (477 SE2d 369) (1996). We note that “[i]t has been held that where a court does not have jurisdiction of the subject matter, the whole proceeding is . . . void.” (Citation and punctuation omitted.) Collins v. West American Insurance Co., 186 Ga. App. 851, 852 (2) (368 SE2d 772) (1988). Based on these principles, this Court in Collins, supra, 186 Ga. App. at 852 (2), held that the renewal statute did not apply where the earlier suit was dismissed for lack of subject matter jurisdiction. However, Collins was decided prior to the 1990 enactment of OCGA § 9-2-61 (c), which now authorizes renewal actions where the prior action was dismissed for lack of subject matter jurisdiction.

       We also note that Warehouseboy essentially urges this Court to do the same thing on appeal - that is, Warehouseboy primarily contends that the undisputed circumstances surrounding its voluntary dismissal are what warranted the application of OCGA § 9-2-61 (c).

       See also Stender v. Fulton County, 160 Ga. App. 852 (287 SE2d 696) (1982) (concluding that where it was clear that the trial court considered matters outside the complaint, the appellee’s motion to dismiss, based on the expiration of the statute of limitation, should have been treated as one for summary judgment and holding that the trial court’s failure to follow the procedures appropriate to summary adjudication required reversal). We note that here, however, Warehouseboy does not challenge the trial court’s consideration of matters outside the pleadings, contending only that the trial court erred in finding that the renewal statute did not apply in this case. Therefore, such issue is waived. See Robison v. Green, 228 Ga. App. 27,28 (1) (491 SE2d 95) (1997).. Further, both parties submitted briefs and exhibits and had an opportunity for oral argument, so there is no indication of prejudice due to the trial court’s failure to follow the procedures appropriate to summary adjudication. See id.