text:
    A15A0795.
    MORAN v. THE STATE.
    (780 SE2d 529)
   Boggs, Judge.

Donald Moran appeals from his convictions of aggravated battery, aggravated assault, burglary, possession of a knife during the commission of a felony, and stalking. He asserts that the State presented insufficient evidence to support his convictions and that he received ineffective assistance of counsel. For the reasons explained below, we reverse his stalking conviction and affirm his remaining convictions.

When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that in July 2011, the male victim and Moran developed “somewhat of a friendship” based upon their mutual love of custom motorcycles. About a month later, Moran introduced his girlfriend, Kimberly Thomas, to the victim. After the couple later began spending a lot of time at the victim’s home, which he shared with four other people, the victim and Thomas also developed a friendship. After witnessing arguments between Moran and Thomas over time, the victim had “a falling out” with Moran.

Thomas testified that Moran had “trust issues” that made it difficult for her to spend time with friends while he was her boyfriend. As a result of Moran’s frequent accusations of cheating, Thomas would lie to him when she spent time with friends.

On November 18, 2012, Thomas told Moran after an argument that she would be having dinner with her father that evening. Earlier, Moran had “talked about going out that night.” Thomas did not have plans for dinner with her father, however, and instead called the victim to give her a ride to a restaurant where they consumed alcohol. While Thomas was at the restaurant with the victim, she and Moran exchanged numerous text messages.

Through their text message exchanges, Moran informed Thomas that he knew she was not at the home she shared with her father by stating, “I will sit in your driveway till you come home. I’d like to meet your friends anyway.” He also stated, “I think I’m going to wait till you come home and see who’s driving.” Moran further wrote, “if your telling the truth it shouldn’t be long of a wait now since you been absent for a couple of hours,” and “So are you gonna tell me the truth or not? Cause I can sit here n see if you dads gonna bring you home or I can just go out and swing by later to see if his car is there.” In a period of approximately four hours, Moran sent 51 texts to which Thomas replied only nine times. In her next-to-the-last text at 9:58 p.m., Thomas told Moran, “I don’t want to talk to u.”

Around 1:00 a.m., the victim drove Thomas back to her father’s home. The victim went inside and followed Thomas to her room in the basement. He testified that he fell asleep fully clothed on the corner of her bed while she was in the bathroom. He “awoke to a loud thud and yelling,” and saw Thomas on the ground and Moran standing in front of him. By the time the victim stood up, Moran turned on him. The victim threw his guard up as Moran approached because he believed Moran was going to attack him. Moran “came to [him] person-to-person, body-to-body.” They were locked together “chest-to-chest,” when the victim felt his back get really warm and soaking wet. While the victim did not feel the first two or three stabs, he “could feel him, kind of, digging around in my back at one point.” He let go of Moran when he started getting dizzy, and the two fell apart. The victim denied having Moran in a choke or sleeper hold before he was stabbed.

Moran and Thomas then began arguing about Moran’s behavior, and the victim placed himself in between Moran and Thomas. During this time, Moran stabbed the victim in the knee and punched him in the face several times. Moran eventually calmed down, and the victim left the room to seek medical attention. His injuries included six puncture wounds in his upper back that required stitches, as well as knee and lip wounds that also required stitches.

Thomas testified that she was “black-out drunk” that evening, did not recall seeing Moran or the victim in her home, and did not recall most of what took place. She could only remember “being in a lot of pain and . . . yelling at. . . [Moran and the victim]” and “being in a cop car.” She did recall that Moran sent her text messages that evening and responding to some of them. However, she was never asked whether Moran’s repeated and numerous text messages made her afraid for her safety.

She testified that at the time of the incident, her relationship with Moran “was really rocky” and they “were arguing almost every day.” Moran was no longer allowed to come to her father’s house based upon arguments her father witnessed. On one occasion, they were arguing and “ended up fighting a little bit and [her] dad came downstairs and chased [Moran] out of the house.” The victim testified that she was “[a] little bit” afraid of Moran “when that argument was going on.” After her father forbade Moran from coming to his home, Thomas would “sometimes, yes, sometimes, no” allow Moran to come over when her father was not at home.

Thomas’s father testified that he forbade Moran from coming to his home after he saw a “change in his behavior.” Specifically, “[a] lot more arguing, a lot more in-your-face-type arguing, up close and personal. . . . Situations prior with the law in which situations happened between the two of them that obviously that wasn’t good.”

1. Moran contends insufficient evidence supports his convictions,

(a) Moran claims the State failed to present sufficient evidence to support his stalking conviction because Thomas never testified that she was in fear for her safety or intimidated by his behavior, there was no evidence that his contact with her was without her consent, and he had a legitimate purpose for communicating with her based upon their “anticipated plans” and “the nature of their relationship.”

The indictment charged that Moran “follow[ed] and place[d] under surveillance and contacted]... Thomas at a place, to wit: [her father’s address where she resided], without the consent of . . . Thomas, for the purpose of harassing and intimidating ... Thomas.” “A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places [] without the consent of the other person for the purpose of harassing and intimidating[] the other person.” OCGA § 16-5-90 (a) (1).

A defendant need not engage in unequivocally hostile conduct or make explicit threats in order to be convicted of stalking. Even behavior that is not overtly threatening can provide the requisite degree of intimidation and harassment if is it ongoing, repetitious, and engaged in despite the communicated wishes of the victim.

Placanica v. State, 303 Ga. App. 302, 304 (693 SE2d 571) (2010).

After carefully reviewing the evidence, we agree that the State failed to present sufficient evidence that Thomas was placed in reasonable fear for her safety, an essential element of stalking. See Crapps v. State, 329 Ga. App. 820, 823-824 (1) (766 SE2d 178) (2014). As in In the Interest of C. C., 280 Ga. App. 590, 591-592 (1) (634 SE2d 532) (2006), there was no evidence that Thomas was afraid or had any emotional distress. See also Wright v. State, 292 Ga. App. 673, 676 (665 SE2d 374) (2008) (insufficient evidence to support aggravated stalking conviction because no evidence that victim in reasonable fear for her safety during multiple phone conversations with defendant). While there was evidence that Thomas was “a little bit” afraid of Moran during a previous argument, there was no evidence showing that she was afraid for her safety from the charged conduct. We therefore reverse his conviction for stalking.

(b) Moran asserts generally that the State failed to introduce sufficient evidence of intent with regard to his aggravated assault, aggravated battery, burglary, and possession of a knife during the commission of a felony. We disagree. The record contains ample evidence of intent, and “the intent to commit a felony necessary for the burglary conviction need not be formed at the precise moment of entry, but can be formed while the perpetrator is remaining on the premises. [Cit.]” Waters v. State, 294 Ga. App. 442, 443 (1) (669 SE2d 450) (2008).

2. Moran asserts that trial counsel was ineffective in failing to request a pre-trial hearing to determine whether he was immune from prosecution on the ground of self-defense. In ruling on a claim of ineffective assistance,

[u]nder the two-part test established in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), [Moran] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3) (722 SE2d 774) (2012).

As a general rule, reasonable trial tactics and strategies do not amount to ineffective assistance of counsel. The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. Whether an attorney’s trial tactics were reasonable is a question of law, not fact. When assessing the reasonableness of counsel’s actions, a court must evaluate counsel’s performance from his or her perspective at the time of trial. This Court reviews a trial court’s ruling on an ineffective assistance claim on appeal by accepting the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. [Cits.]

Hughley v. State, 330 Ga. App 786, 791 (4) (769 SE2d 537) (2015). And

we are not limited in our assessment of the objective reasonableness of lawyer performance to the subjective reasons offered by trial counsel for his conduct. If a reasonable lawyer might have done what the actual lawyer did — whether for the same reasons given by the actual lawyer or different reasons entirely — the actual lawyer cannot be said to have performed in an objectively unreasonable way. [Cit.]

Id. at 791-792 (4).

Decided November 20, 2015.

Debra K. Jefferson, for appellant.

Shannon G. Wallace, District Attorney, Jay G. Wall, Ryan M. Donnelly, Cliff Head, Assistant District Attorneys, for appellee.

Here, trial counsel testified that he did not request an immunity hearing because he did not want to subject Moran to cross-examination before trial and “there were some questions [he] wanted to ask [the victim]... for the first time in front of a jury.” Additionally, he did not believe a motion for immunity based upon self-defense would have been successful. As counsel did not employ an objectively unreasonable trial strategy, we affirm the trial court’s denial of Moran’s ineffective assistance of counsel claim. See Boddie v. State, 327 Ga. App. 667, 670 (1) (760 SE2d 668) (2014) (no ineffective assistance where trial counsel did not make unreasonable strategic decision against filing a pre-trial motion).

Judgment affirmed in part and reversed in part.

Doyle, C. J., and Phipps, P. J., concur.

       “Place or places” is defined as “any public or private property occupied by the victim other than the residence of the defendant.” OCGA § 16-5-90 (a) (1).

       “Harassing and intimidating” is defined as “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.” OCGA § 16-5-90 (a) (1).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A15A0796.
    WATTS v. THE STATE.
    (780 SE2d 431)
   Branch, Judge.

Following a bench trial at which he stipulated to both the facts and the sufficiency of the evidence, Monquezias Watts was convicted of a single count each of possession of marijuana with intent to distribute, possession of a firearm during the commission of a felony, and theft by receiving. The trial court sentenced Watts to eight years, but probated the sentence. After Watts failed to comply with conditions of his probation, the trial court revoked his probation and remanded him to custody. Following the revocation of his probation, Watts sought and was denied an appeal bond. Watts now appeals his conviction, the revocation of his probation, and the denial of his appeal bond. With respect to his conviction, Watts claims that the trial court erred in denying his motion to suppress evidence discovered by police after they illegally detained Watts following a traffic stop. As to the revocation of his probation, Watts argues that the trial court erred when it held that his notice of appeal did not act as a supersedeas, preventing the enforcement of his probationary conditions. Finally, Watts contends that the trial court abused its discretion in denying his motion for an appellate bond.

For reasons explained more fully below, we find that the trial court erred in concluding that the free-air sniff which resulted in the seizure of drugs and contraband did not violate the Fourth Amendment because it occurred during a de minimis extension of the traffic stop. Accordingly, the court erred in denying Watts’s motion to suppress. We therefore vacate both the order denying the motion to suppress and the judgment of conviction and remand the case for further proceedings. We further find that Watts’s second and third claims of errors are based on orders that were entered after Watts filed his notice of appeal from the judgment of conviction. Given this fact, and given that Watts never filed a notice of appeal as to the orders revoking his probation and denying his appellate bond, we lack jurisdiction to address Watts’s second and third claims of error.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact. On appeal from the grant or denial of such a motion, therefore, this Court must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. However, we owe no deference to the trial court’s conclusions of law and are instead free to apply anew the legal principles to the facts.

Bodiford v. State, 328 Ga. App. 258, 258 (761 SE2d 818) (2014) (citations and punctuation omitted). See also Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012) (where “the evidence at a suppression hearing is uncontroverted 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”).

The relevant facts in this case are undisputed. At approximately 1:30 a.m. on June 16, 2012, Sergeant Wayne Franco of the Woodstock Police Department initiated a traffic stop of a vehicle driven by Tremayne Gay and in which Watts, Chasmine Johnson, and Alma Rico were passengers. Two video recordings of this stop and the subsequent police investigation, including the police search of Gay’s truck, were introduced into evidence and shown at the motion to suppress hearing.

Franco initiated the stop after observing that the license plate on Gay’s truck was covered by a piece of tinted plastic, in violation of OCGA § 40-2-6.1. Franco testified that he became suspicious of the individuals in the truck because Gay continued to drive the truck for approximately two blocks before pulling to the side of the road. After viewing the video recorded by his patrol-car camera, however, Franco acknowledged that Gay had pulled over at the first opportunity he had to do so, without having to make a left-hand turn across traffic. Additionally, the video recording of the stop shows that Gay pulled to the side of the road and came to a stop approximately 33 seconds after Franco activated the blue lights on his patrol car.

When Franco approached Gay’s truck, both Gay and Watts, who was the front-seat passenger, were smoking cigars that appeared to be freshly-lit. Franco explained that, in his experience, people in possession of drugs will often “chain smoke” either cigarettes or cigars to mask the odor of any contraband. Franco further testified that Gay appeared to have what he described as “a little cotton mouth” and the eyes of both men appeared bloodshot. Based on these observations, Franco believed there was a possibility that both men were “under the influence of marijuana.” Franco acknowledged, however, that he saw no signs that Gay’s driving was impaired or that Watts was impaired by either drugs or alcohol. Additionally, no investigation was conducted into whether Gay was under the influence of any controlled substance. While some investigation may have been made into whether Watts was impaired, the State provided no evidence at either the motion to suppress hearing or at trial showing that Watts was under the influence of either alcohol or drugs at the time of the traffic stop. And as discussed below, the video of the traffic stop shows that police were prepared to allow Watts to drive Gay’s car from the scene.

Immediately after making contact with Gay, Franco explained to him the reason for the stop and asked both Gay and Watts to provide Franco with their driver’s licenses. The men did so, and Franco returned to his patrol car and relayed the license information to dispatch. Less than one minute later, dispatch reported that Gay’s license had been revoked, that Watts’s license was valid, and that neither man had any outstanding warrants. After receiving this information, Franco remained in his patrol car for approximately two and one-half minutes, awaiting the arrival of a second officer, Eric Maddox. Approximately one minute after Maddox’s arrival and approximately seven and one-half minutes after the traffic stop began, police arrested Gay for driving without a license and also charged him with a misdemeanor tag violation. Following his arrest, police questioned Gay about his passengers and where they lived, as well as about the contents of Gay’s car. During this process, Maddox and/or Franco twice asked Gay whether he would consent for Watts to drive Gay’s truck from the scene; each time the officers asked this question, they informed Gay that Watts’s license had returned as valid. Both times he was asked, Gay responded that Watts had his permission to drive the truck from the scene.

After completing the arrest process for Gay, which included questioning him, inventorying his pockets, handcuffing him, and placing him in the back of Maddox’s patrol car for transport, Franco returned to the truck and its three remaining passengers. Rather than returning Watts’s license to him and informing him he had permission to drive the truck, however, Franco asked Watts to exit the vehicle. Watts complied with this request, exited the vehicle with his hands in front of him, and consented to a search of his person. Franco then asked Watts to accompany him, and the two men stood next to a patrol car while Franco questioned Watts about his relationship to Gay, how well Watts knew the female passengers, what activities the group had engaged in that night, and the contents of the truck. According to Franco, Watts appeared nervous and when questioned, Watts told the officer that Gay was a friend of the family. Gay, however, told the officer that Watts was his stepson.

Following his interview of Watts, Franco instructed Watts to remain next to the patrol car, and he returned to the truck and told the women they needed to exit the vehicle because the police needed to search it for alcohol. Franco also instructed the women to leave their personal belongings in the truck and asked for and received permission to search those belongings.

After having the women exit the vehicle, and approximately 14 minutes into the traffic stop and between six and seven minutes after Gay’s arrest, Franco asked the women for identification. When both women replied they had no identification with them, Maddox asked each woman for the correct spelling of her name and her date of birth. Each of the women provided that information, with Johnson explaining that she had a South Carolina driver’s license and Rico stating that she lived in South Carolina. Franco provided this information to dispatch and asked the dispatcher to run a check in both Georgia and South Carolina. Approximately ten seconds later, dispatch responded that Johnson had a valid South Carolina driver’s license and that she had no outstanding warrants, but that there was “no return” on Rico. In other words, the check indicated that Rico, who was 18 years old at the time, had no driver’s license, no state-issued identification, no criminal record, and no outstanding warrants. Police then proceeded to question Rico about her lack of identification. During questioning, Rico stated that she had either a passport or a visa in her purse. Rico again consented to the search of her purse and told police in which area of the bag her travel documents could be found. When police found these documents, the name and date of birth thereon matched the information provided earlier by Rico, and which showed that Rico had no outstanding warrants. At that point, police were satisfied that they knew Rico’s identity and legal status.

While Franco was running the identity checks of Johnson and Rico, Maddox read Gay his Miranda rights and then asked Gay for permission to search his truck. Gay refused consent, and Maddox relayed this information to Franco. Franco then requested a K-9 unit to come to the scene just before he began his search of Rico’s bag for her identification documents. Approximately two minutes after police had finished ascertaining the identity and legal status of all of the truck’s passengers, the K-9 unit arrived on the scene. Approximately two minutes later, and 14 to 15 minutes after the conclusion of Gay’s arrest and the police determination that Watts could drive Gay’s car from the scene, the dog’s handler had the dog perform a free-air sniff around Gay’s truck. The dog alerted on the truck, and when police allowed him into the vehicle, the dog alerted on a black backpack. Police removed the backpack from the truck, searched it, and found it contained some amount of marijuana, a package of plastic sandwich bags, scales of the kind used to weigh drugs, and a nine-millimeter handgun. When police ran a computer check on the gun’s serial number, they discovered the gun had been reported stolen from a residence in Gwinnett County.

Prior to trial, Watts moved to suppress the evidence seized from Gay’s truck on the grounds that the discovery of that evidence had resulted from an illegally prolonged traffic stop. Following an evidentiary hearing, the trial court denied that motion without explanation. The trial court certified its order for immediate review, and this Court granted Watts’s application for an interlocutory appeal. We subsequently dismissed that appeal as improvidently granted and remanded the case back to the trial court. On remand, the case proceeded to a bench trial, after which Watts was convicted.

Watts filed his notice of appeal from the judgment of conviction on March 21, 2014. On September 11, 2014, the State filed a petition to revoke Watts’s probation. The trial court granted that motion and issued a warrant for Watts’s arrest. After his arrest, Watts filed a motion to dismiss the probation warrant, arguing that the notice of appeal of his conviction served as a supersedeas and therefore stayed execution of his sentence. Thus, Watts reasoned that he was not subject to the terms of his probated sentence during the pendency of his appeal. The trial court held a hearing on Watts’s petition and thereafter denied the same in an order entered on October 16, 2014. Watts then filed a motion for an appeal bond. Following a hearing on that motion, the trial court denied bond in an order entered on December 11, 2014. Watts did not file a notice of appeal from either the order denying his motion to dismiss the probation warrant or the order denying his motion for an appeal bond.

1. We first address whether the trial court erred in denying Watts’s motion to suppress. On a motion to suppress, the State bears the burden of proving that the search at issue did not violate the Fourth Amendment. Dominguez v. State, 310 Ga. App. 370, 372 (714 SE2d 25) (2011). To carry its burden in this case, the State was required to show that it was legal to detain Watts at the scene until the drug dog indicated the presence of drugs. Id. Specifically, the State needed to prove that the police officers did not extend the stop of Gay’s truck “beyond the conclusion of the investigation that warranted the detention in the first place,” i.e., that the officers did not prolong the stop after concluding their investigation of Gay’s tag violation. Rodriguez v. State, 295 Ga. 362, 369 (2) (b) (761 SE2d 19) (2014) (citation omitted). Alternatively, the State could meet its burden by showing that the investigating officers had “a particularized reason to suspect that [Watts was] engaged in some other criminal activity.” Dominguez, 310 Ga. App. at 372.

(a) Watts contends that the trial court erred in denying his motion to suppress on the grounds that the free-air sniff of Gay’s truck involved only a brief extension of the traffic stop. We agree.

At the hearing below, the State argued, and the trial court found, that the traffic stop was not complete until the police had ascertained the identity of and run a warrant check on each of Gay’s passengers. The State argued that such an identity and warrant check was justified by officer safety concerns. We assume for purposes of this appeal that the State’s argument is correct. See State v. Allen, 298 Ga. 1, 8 (2) (c) (779 SE2d 248) (2015) (“identification checks of both drivers and passengers are generally permitted as an officer safety measure during a traffic stop”); Rodriguez, 295 Ga. at 372-373 (2) (b) (as a general rule, a check of the passengers’ identity at the outset of a traffic stop is justified as in the interests of officer safety).

As the State conceded at the motion to suppress hearing, the undisputed evidence in this case shows that the traffic stop was complete, at the latest, at the time police were satisfied they knew Rico’s identity and legal status. See Faulkner v. State, 256 Ga. App. 129, 130 (567 SE2d 754) (2002) (as a matter of law, a traffic stop is complete “once the tasks related to the investigation of the traffic violation . . . have been accomplished”). Thus, the record is undisputed that the traffic stop had concluded approximately four minutes before police conducted the free-air sniff. The trial court acknowledged that fact, but nevertheless concluded that the continued detention of Watts and the female passengers did not violate the Fourth Amendment. The court based this conclusion on the law holding that a brief or de minimis extension of a traffic stop does not violate the Fourth Amendment. See Rodriguez, 295 Ga. at 371 (holding that the length by which the police prolonged the detention “is relevant to [the] inquiry” of whether the detention violated the Fourth Amendment), citing United States v. Digiovanni, 650 F3d 498, 509 (II) (4th Cir. 2011) (“where a delay can be characterized as de minimis under the totality of the circumstances, it will not be recognized as a Fourth Amendment violation”) (citations omitted); Rodriguez v. State, 295 Ga. 362, 369-370 (2) (b) (761 SE2d 19) (2014) (“[i]n the end, the question is ‘whether [the detention] was appreciably prolonged,’ considering ‘the detention as a whole,’ and keeping in mind that ‘the touchstone of our inquiry [under the Fourth Amendment] is reasonableness’ ”), quoting United States v. De La Cruz, 703 F3d 1193, 1203 (I) (A) (10th Cir. 2013).

The United States Supreme Court, however, recently rejected the concept that the Fourth Amendment allows any kind of extension of a traffic stop beyond the investigation of the traffic violation that warranted the stop, even if that extension could be considered minimal. Rodriguez, 135SCtatl615-1616.In that case, the drug dog had arrived within five minutes after the police had completed all tasks related to the traffic stop and the dog alerted on the car one to two minutes later. Id. at 1613. Following his indictment on possession with intent to distribute methamphetamine, Rodriguez moved to suppress the drugs found in his car arguing that the free-air sniff around the vehicle resulted from an illegally prolonged traffic stop. The trial court denied Rodriguez’s motion, relying on precedent holding that “ ‘dog sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions.’ ” Id. at 1613-1614. Applying that law, the trial court concluded that “the ‘7 to 10 minutes’ added to the stop by the dog sniff ‘was not of constitutional significance.’ ” Id. at 1614. The Eighth Circuit affirmed this ruling, finding that the delay at issue “constituted an acceptable ‘de minimis intrusion on Rodriguez’s personal liberty’ ” and therefore did not violate the Fourth Amendment. Id. at 1614. The United States Supreme Court reversed, noting that “a dog sniff... is not an ordinary incident of a traffic stop ... [and] is not fairly characterized as part of the officer’s traffic mission.” Id. at 1615. The Court therefore concluded that the Fourth Amendment does not “tolerate [ ] a dog sniff conducted after completion of a traffic stop,” even if the time by which the stop was extended was minimal. Id. at 1616.

Applying Rodriguez to the current case, we find that the four-minute extension of the traffic stop at issue for the purpose of allowing the drug dog to perform a free-air sniff around Gay’s car violated Watts’s Fourth Amendment rights. Id. See also Allen, 298 Ga. at 5 (2) (a) (“prolonging a traffic stop in order to conduct an open-air dog sniff renders the seizure unlawful, even if that process adds very little time to the stop”). The trial court erred in holding otherwise.

(b) The State argues that we should nevertheless affirm the trial court’s denial of Watts’s motion to suppress, relying on the rule that a police officer may detain the subjects of a traffic stop “after the investigation of the traffic violation is complete ... if the officer has a reasonable, articulable suspicion that the driver was engaged in other illegal activity.” Bodiford, 328 Ga. App. at 267 (2) (citation and punctuation omitted). The State bears the burden of proving facts that establish a basis for continued detention, McSwain v. State, 240 Ga. App. 60, 61 (522 SE2d 553) (1999), and whether the State has met this burden is a question of law. Rosas v. State, 276 Ga. App. 513, 516 (1) (b) (624 SE2d 142) (2005) (“[w]hether a given set of facts rises to the level of reasonable suspicion is a legal question”) (punctuation and footnote omitted). As explained below, however, in the absence of certain factual and credibility determinations by the trial court, we are unable to address that legal question on this appeal.

In its appellate brief, the State relies on five observations testified to by Franco to support its claim that the police had a reasonable suspicion that the occupants of Gay’s car were engaged in illegal activity: the length of time it took Gay to pull over after Franco activated his blue lights; Watts and Gay gave somewhat conflicting statements about their relationship to one another; Gay had “cotton mouth,” and both Gay and Watts had bloodshot eyes; Gay and Watts were smoking cigars; and Watts appeared nervous. We find as a matter of law that one of these facts — the allegedly conflicting statements made by Watts and Gay — provide no basis for suspecting illegal activity, even if viewed in conjunction with the remaining four facts.

As this Court has explained previously, differing statements as to the nature of the relationship between the passengers does not provide police with a basis for suspecting drug activity where those statements offer no “meaningful inconsistencies.” Migliore v. State of Ga., 240 Ga. App. 783, 786 (525 SE2d 166) (1999) (fact that car’s driver described female passenger as his girlfriend while the female passenger described the driver as a friend was not a meaningful inconsistency and was therefore insufficient to give rise to a suspicion of illegal activity). See also Weems v. State, 318 Ga. App. 749, 751 (734 SE2d 749) (2012) (fact that driver and her male passenger gave conflicting stories as to who had picked up whom earlier in the day did not provide a basis for suspecting criminal activity). Here, Gay described himself as Watts’s stepfather while Watts described Gay as a friend of the family. Particularly given that “it is not uncommon for individuals to have different perceptions of the nature of [a romantic] relationship,” the alleged inconsistency at issue did not provide police with a basis for suspecting Gay and Watts possessed drugs. Migliore, 240 Ga. App. at 786.

The question becomes, therefore, whether the four remaining facts relied upon by the State, when viewed together, provided police with a reasonable, articulable suspicion that Gay’s car contained contraband. See Dominguez, 310 Ga. App. at 374 (“[t]o show that an officer had reasonable grounds upon which to temporarily detain an individual for the purpose of conducting an investigation, the State is required to prove that the officer then was aware of ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention’ ”), quoting Lindsey v. State, 287 Ga. App. 412, 414 (651 SE2d 531) (2007). This question, in turn, depends on whether and to what extent the trial court credits Franco’s testimony. We are unable to address this question on appeal because the trial court did not make any findings — either in its written order or on the record at the motion to suppress hearing — as to whether the State had proven the existence of a reasonable, articulable suspicion of criminal activity sufficient to support the extension of the traffic stop. See Hughes v. State, 296 Ga. 744, 747 (1) (770 SE2d 636) (2015) (noting that on a motion to suppress, “ ‘[credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.’ ”), quoting Tate v. State, 263 Ga. 53, 56 (3) (440 SE2d 646) (1994). We therefore vacate both the order denying the motion to suppress and the judgment of conviction and remand this case to the trial court. See Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). We leave it for the trial court on remand to determine what credit and weight to give Franco’s testimony and to determine whether that testimony, when viewed in conjunction with the video recordings of the traffic stop, supported an extension of the traffic stop for the purpose of conducting a drug investigation.

2. Watts also seeks to challenge both the trial court’s order denying his motion to dismiss the probation warrant and the order denying his request for an appeal bond. Each of these orders, however, was entered after Watts filed his notice of appeal from his conviction. Accordingly, those orders cannot be enumerated as error on this appeal. See Pirkle v. QuikTrip Corp., 325 Ga. App. 597, 598 (1) (a) (754 SE2d 387) (2014) (a party may not enumerate as error an order entered “after the filing of the notice of appeal”); Paine v. Nations, 301 Ga. App. 97, 101 (3) (686 SE2d 876) (2009) (this Court may not consider on appeal orders of the trial court that were entered following the filing of the notice of appeal).

For the reasons set forth above, we vacate both the trial court’s order denying Watts’s motion to suppress and the judgment of conviction and remand the case for further proceedings consistent with this opinion. See Williams, 296 Ga. at 820 (vacating and remanding decision on motion to suppress for trial court to determine an additional issue, not previously addressed); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (same). See also Rodriguez, 135 SCt at 1617.

Decided November 20, 2015.

Lee W. Fitzpatrick, for appellant.

Shannon G. Wallace, District Attorney, Wallace W. Rogers, Jr., Cliff Head, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded.

Andrews, P. J., and Miller, J., concur.

       The evidence at the motion to suppress hearing showed that Gay was, in fact, the then-boyfriend of Watts’s mother, but the couple was not married.

       It is unclear on what basis the police planned to justify their search of the vehicle for alcohol. Alcohol is not an illegal substance, and Gay, the owner and driver of the vehicle, was over the age of 21, as was Watts, the person to whom the vehicle was to be released. Additionally, there was no evidence that the officers believed that any of the passengers were under the influence of alcohol or that the officers detected the odor of alcohol coming from the vehicle, thereby indicating that an open container might be present. Nor was there any evidence that officers saw an open container of alcohol in the vehicle.

       Both women had a purse with them, and Rico also had what she described as a “travel hag.”

       The State offered no evidence, either at the motion to suppress hearing or at trial, to show the amount of marijuana found in the backpack.

       We note that in denying the motion to suppress, the trial court found that because Ga/s truck was being released to Watts and the two female passengers, police did not act unreasonably in determining the identity of all those persons to whom they were releasing the vehicle. In doing so, the court expressly rejected the State’s argument that the identity and warrant checks were justified by officer safety concerns. Specifically, the court made a credibility determination and found that despite Franco’s testimony as to his safety concerns, the evidence failed to show that such concerns justified Franco’s insistence on prolonging the traffic stop for the sole purpose of determining the identity of the two female passengers. The record shows that Franco testified that at the time he ran the warrant search on the female passengers, neither had done anything illegal and he had no basis for believing that either was engaged in illegal activity. At the time the traffic stop otherwise would have concluded (following Gay’s arrest and the determination that Watts had a valid license and was authorized to drive the car from the scene), police had asked for and received permission to search Watts’s person and, as reflected by the videos of the traffic stop, all three passengers had readily complied with all instructions given by both of the officers at the scene.
      It may be that in light of the Supreme Court of Georgia’s recent decision in State v. Allen, 298 Ga. 1, 8 (2) (c) (779 SE2d 248) (2015), the trial court erred in making a factual finding as to whether officer safety concerns existed and prompted the officer’s insistence on confirming the identity of the two female passengers. See Allen, 298 Ga. at 14 (2) (d) (indicating that as a matter of law, officer safety concerns always justify an identity and warrant check of all passengers in an automobile that is the subject of a traffic stop, noting “[a]n officer in today’s reality has an objective, reasonable basis to fear for his or her life every time a motorist is stopped”) (citation and punctuation omitted). Given that the circumstances of this case do not require us to decide that question, however, we decline to do so. Instead, in accordance with Allen, we have assumed that officer safety concerns were present and that the traffic stop was not complete until police had ascertained the identity and warrant status of all passengers. In making this assumption, however, we note that the traffic stop at issue, including the identity and warrant check of all passengers, was indisputably complete before the dog sniff occurred. Thus, this case does not require us to determine whether the officer’s delay in checking the identity and legal status of the female passengers until all other tasks related to the stop (including the arrest of Gay, the search of Watts, and the determination that Watts had both a valid license and Gay’s permission to drive his truck from the scene) illegally prolonged the stop. See Rodriguez v. United States,__ U. S._(II) (135 SCt 1609, 1615-1616, 191 LE2d 492) (2015) (recognizing that traffic stops are “fraught with dangers to officers” and that “the government’s officer safety interest stems from the mission of the stop itself,” but further stating that “safety precautions taken in order to facilitate” an “[o]n-seene investigation into other crimes” do not fall within the “mission of the traffic stop” and explaining that the Fourth Amendment requires “that an officer always has to be reasonably diligent. . . [and] diligence [is] gauged . . . by noting what the officer actually did and how he did ii[.] If an officer can complete traffic-based inquiries expeditiously, then that is the amount of time reasonably required to complete the stop’s mission. As we... reiterate today, a traffic stop prolonged beyond that point is unlawful.”) (Punctuation omitted; emphasis supplied.) Nor does this case require us to consider whether Allen forbids Georgia courts from making such a determination. See Allen, 298 Ga. at 13 (2) (d) (“The sequence of the officer’s actions during a traffic stop is not determinative; instead, the primary question is whether the activity at issue was related to the mission of the stop.... If... the task is a component of the traffic-stop mission, it may be done at any point during the stop. It does not matter if a mission-related activity takes place as soon as the stop begins or, as is the case here, after other mission-related activities have been completed.”)

       We note that the United States Supreme Court issued its decision in Rodriguez well after the trial court in this case had ruled on the motion to suppress.

       The State did not advance this argument in the trial court, but instead argued only that the four-minute extension of the traffic stop for the purpose of allowing a dog sniff around Gay’s car did not violate Watts’s Fourth Amendment rights. On appeal, however, the State argues that the trial court should be affirmed under the “right for any reason” rule, because the officers had a reasonable, articulable suspicion of drug activity. See State v. Thackston, 289 Ga. 412, 417 (3) (716 SE2d 517) (2011) (an appellee need not anticipate “every conceivable argument in support of the trial court’s decision” in order to obtain the benefit of the right-for-any-reason rule).

       Based on the current record, we have serious reservations about whether Gay’s alleged delay in pulling over can, as a matter of law, support a suspicion of illegal activity. As noted above, the video of the traffic stop shows that Gay pulled over at the first opportunity he had to do so without making a left turn across traffic, a fact that Franco acknowledged on cross-examination. The video further shows that Gay’s vehicle, which had been traveling at approximately 35 miles per hour, came to a complete stop on the side of the road approximately 33 seconds after Franco initiated the stop. Nevertheless, because this question may ultimately involve a credibility determination, we leave it for the trial court to address on remand.

       The trial court’s failure to make such findings is understandable, given the State’s failure to advance this argument below as a basis for denying the motion to suppress.


author: DOYLE, Chief Judge.

text:
    A15A0798.
    HAMMOND v. THE STATE.
    (780 SE2d 440)
   DOYLE, Chief Judge.

Jennifer Hammond appeals from her conviction for driving under the influence of alcohol (“DUI”) to the extent that it was less safe to drive, impeding the flow of traffic, and improper parking. She contends that the trial court erred by admitting evidence of two prior DUI convictions under OCGA § 24-4-417 (a) (1). Because the record supports the trial court’s ruling, we affirm.

Construed in favor of the verdict, the evidence shows that a police officer encountered Hammond in her vehicle stopped at a traffic light at around 12:50 a.m. When the light turned green, Hammond did not proceed through the light, but the officer was responding to a call, so he did not investigate further after visually determining that there appeared to be no emergency. After attending to the call, the officer returned to the scene approximately 15 or 20 minutes later and found Hammond still in her vehicle, still at the traffic light. He pulled behind Hammond’s vehicle, exited his patrol car, and noticed that Hammond appeared to be asleep. After the officer knocked on her window several times, Hammond awoke and got out of the vehicle, at which time the officer smelled a strong odor of alcohol on her breath. Hammond was unsteady on her feet, and the officer, who was a supervisor, called for another officer to investigate the suspected DUI offense.

Soon thereafter, an investigating officer responded and made contact with Hammond. The second officer also noticed that Hammond was unsteady on her feet, and her breath smelled of alcohol. As she spoke to the officer, Hammond explained in slurred speech that she had consumed three alcoholic drinks and wished to go home. The officer asked Hammond to submit to field sobriety testing, and Hammond declined. Based on his observations of Hammond, the officer placed her under arrest and read her the implied consent notice. The officer then asked Hammond to submit to a breath test, and Hammond declined. During processing at the police station, Hammond again refused a breath test and told the officer, “Man, this is my third DUI.”

Hammond was charged with DUI, impeding traffic flow, and improper parking. Prior to trial, the State moved to introduce evidence of Hammond’s two prior DUI convictions, and following a hearing, the trial court ruled that the convictions were admissible under OCGA § 24-4-417 (a) (1). At trial, a jury found Hammond guilty as to each count, and Hammond filed this appeal.

Hammond argues that the trial court erred by admitting the evidence of her two prior DUI convictions under OCGA § 24-4-417 (a) (1) because they were not relevant to proving her guilt in this case. We review such a ruling for an abuse of discretion, and we discern none here.

OCGA § 24-4-417 (a) (1) provides as follows:

(a) In a criminal proceeding involving a prosecution for a [DUI offense], evidence of the commission of another [DUI offense] on a different occasion by the same accused shall be admissible when:
(1) The accused refused in the current case to take the state administered test required by Code Section 40-5-55 and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident[.]

Here, the State successfully sought admission of the prior DUI offenses on the ground that they were relevant to prove Hammond’s knowledge and plan. Hammond argues that although she refused the state administered test as referenced in the statute, her prior DUI convictions are inadmissible under the analysis outlined in Frost v. State (“Frost I”). That case addressed a scenario in which the defendant refused sobriety tests, and the trial court admitted evidence of prior DUI convictions in which the defendant had also refused sobriety tests. This Court reversed, noting that the prior DUI convictions involved refusals to test, and the defendant “did not provide an explanation or excuse at trial for his refusal to take the state-administered tests in the present case,” so the prior convictions were not relevant to show the defendant’s knowledge in the present case. The Court also held that DUI is a crime of general intent:

[T]he State need not prove intent to commit the crime. Admission of the similar transaction evidence as proof of knowledge that drinking alcoholic beverages made him a less safe driver did not elucidate or throw light upon whether, in this instance, he committed the same crime again; no culpable mental state was required.

Based on Frost I, Hammond makes the same argument here, noting also that the Supreme Court of Georgia had granted a writ of certiorari in Frost I.

Bearing out this foreshadowing, the Supreme Court of Georgia recently spoke on the issue in State v. Frost (“Frost II”) after the appellate briefing in this case. The High Court reversed this Court, holding that the trial court did not abuse its discretion by admitting the evidence, and explained as follows:

Proof that the accused on prior occasions had driven under the influence of the same or a similar intoxicant may strengthen substantially the inference about the presence of an intoxicant [in the present case]. This is so because . . . it might properly be inferred from evidence of prior occasions on which the accused had driven under the influence that the accused had an awareness that his ingestion of an intoxicant impaired his ability to drive safely. Such awareness, in turn, would offer an explanation for why the accused refused the test on this occasion, namely, that he was conscious of his guilt and knew that the test results likely would tend to show that he was, in fact, under the influence of a prohibited substance to an extent forbidden by OCGA § 40-6-391 (a). Prior occasions on which the accused was arrested and charged with driving under the influence also could permit an inference in some circumstances that the accused had acquired knowledge about the means by which law enforcement officers determine whether and to what extent a driver is under the influence of an intoxicant, and such awareness likewise might help to explain a refusal in the present case to submit to a test. In either event, the trier of fact might well conclude that an adverse inference about the presence of an intoxicant is more warranted than it otherwise would be, and the trier of fact might decide that the inference can bear more weight than it otherwise could. This is true when the accused refused the required tests on the prior occasions, and it is true even when the accused offers no evidence to explain or excuse his refusal on this occasion.

Decided November 20, 2015.

Jackie G. Patterson, for appellant.

Sherry Boston, Solicitor-General, Wystan B. Getz, Assistant Solicitor - General, for appellee.

This analysis directly applies in the present case, especially because Hammond had undergone sobriety testing in the prior cases, and she refused in this case. When asked for a breath sample, Hammond refused, spontaneously noting that “this is my third DUI.” In light of the holding in Frost II, the trial court did not abuse its discretion by allowing the State to introduce evidence of Hammond’s prior DUI convictions.

Judgment affirmed.

Phipps, P. J., and Boggs, J., concur.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-184 (a).

       OCGA § 40-6-203 (a) (1) (C).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

         Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).

       328 Ga. App. 337 (761 SE2d 875) (2014), reversed by Siaieu. Frost, 297 Ga. 296 (773 SE2d 700) (2015).

       See id. at 341-343 (2).

       See id. at 343 (2).

       (Punctuation omitted.) Id., quoting Jones v. State, 326 Ga. App. 658, 664-665 (1) (b) (757 SE2d 261) (2014).

       297 Ga. at 296.

       (Citation omitted; emphasis supplied.) Id. at 305.

       Hammond does not dispute that the current rules of evidence, as interpreted by the courts, apply to her 2014 trial. See generally Moran v. State, 257 Ga. App. 236, 237-238 (3) (570 SE2d 673) (2002) (“[0]n appeal we apply the law as it exists at the time of appeal rather than the law prevailing at the rendition of the judgment under review, where the law has been changed in the meantime and where no vested right will be impaired.”); State v. Martin, 266 Ga. 244, 246 (3) (466 SE2d 216) (1996) (law changing scope of evidence that may be offered in trial but that does not affect manner or degree of punishment and does not alter substantive rights is applicable to case pending on appeal on effective date); see also Hill v. Willis, 224 Ga. 263, 265 (161 SE2d 281) (1968) (appellate court applies the law as it exists at the time opinion is rendered).


author: PHIPPS, Presiding Judge.

text:
    A15A0800.
    MABRY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (780 SE2d 533)
   PHIPPS, Presiding Judge.

Frank Mabry appeals the grant of summary judgment to his uninsured/underinsured motorist (UM) insurance carrier, State Farm Mutual Automobile Insurance Company, in his action seeking damages for personal injuries arising from an automobile collision. In granting the motion, the court found that Mabry could not recover such damages from State Farm because the amount of medical expenses and workers’ compensation benefits he had already received exceeded the available UM coverage. For the reasons that follow, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s summary judgment ruling de novo, construing the evidence and all reasonable inferences in the light most favorable to the nonmovant.

So construed, the evidence showed the following. In June 2009, a vehicle Mabry was driving in connection with his employment was struck by a vehicle being driven by Maurice Pope. Mabry sustained an injury to his back and, as a result, underwent surgery and extensive medical treatment. Mabry averred (in a March 14, 2014 affidavit) that, as a result of the collision, he had been unable to work since February 8, 2010. Pope had liability insurance through Warner Insurance Company, with policy limits of $100,000. Warner Insurance paid to Mabry the policy limits of $100,000, and he released Pope except to the extent other insurance coverage was available, including UM coverage.

At the time of the collision, Mabry had in effect three State Farm automobile insurance policies, each of which carried $25,000 of UM coverage, for a total of $75,000 in UM benefits. Mabry also had optional medical coverage through the policies, pursuant to which State Farm paid. $25,000 in medical benefits for his treatment in connection with the collision. Mabry additionally received workers’ compensation medical benefits in the amount of $62,307.29 (as of June 20, 2013). Mabry’s medical expenses exceeded $114,932.45 (as of January 18, 2011).

Mabry also received workers’ compensation disability income benefits totaling $99,596.92 (as of March 14, 2014). As of that date, he had lost earnings totaling $159,926.48.

In March 2013, Mabry filed this personal injury action against Pope, seeking damages for medical expenses, lost earnings, and pain and suffering, alleging that, inter alia, he had incurred medical expenses and lost earnings, and that in the future he would lose earnings, be required to undergo medical treatment, and incur medical expenses. State Farm was served as Mabry’s UM carrier.

State Farm moved for summary judgment, asserting that non-duplication provisions in the policies prevent any recovery for expenses already paid to or for Mabry, and that the amounts already paid to him as workers’ compensation medical benefits and other medical benefits exceeded the $75,000 available in UM coverage. State Farm posited that because under the nonduplication provisions it is entitled to a set-off for those payments, it has no UM exposure in this case and is entitled to judgment as a matter of law.

In granting summary judgment to State Farm, the court stated:

[BJased upon the express statutory language in OCGA § 33-7-11 (i), the clear and unambiguous language of the nonduplication provision in the insurance policies at issue, and construing all of the facts in [Mabry’s] favor, this Court finds that the amounts previously paid to [Mabry] under both workers’ compensation law and other medical payments by State Farm exceed the amount available from State Farm under the UM provisions and [Mabry] would not be entitled to recover any further sums from State Farm as a matter of law.

1. Mabry contends that the court erred by granting summary judgment to State Farm because the damages sought do not duplicate damages already paid pursuant to workers’ compensation and medical coverage provisions in his insurance policies. He asserts that the payments previously made do not cover the losses sought in this action — such as future medical expenses and lost wages in amounts greater than those compensated, and losses in entirely separate categories, such as pain and suffering. Mabry posits that UM coverage extends to such losses, and that nothing in the policies’ non-duplication provisions changes or avoids his protection against under-insurance.

Pursuant to OCGA § 33-7-11 (i):

In addition to any offsets or reductions contained in the provisions of division (b) (1) (D) (ii) of this Code section, . . . the provisions of the policy providing the coverage required by this Code section may . . . exclude any liability of the insurer for... personal or bodily injury or death for which the insured has been compensated pursuant to “medical payments coverage,”. . . or compensated pursuant to workers’ compensation laws.

OCGA § 33-7-11 (b) (1) (D) (ii) (I) pertinently provides that UM

. . . coverages shall apply to the insured’s losses in addition to the amounts payable under any available bodily injury liability and property damage liability insurance coverages. The insured’s uninsured motorist coverage shall not be used to duplicate payments made under any available bodily injury liability insurance and property damage liability insurance coverages but instead shall be available as additional insurance coverage in excess of any available bodily injury liability insurance and property damage liability insurance coverages; provided, however, that the insured’s combined recovery from the insured’s uninsured motorist coverages and the available coverages under the bodily injury liability insurance and property damage liability insurance on such uninsured motor vehicle shall not exceed the sum of all economic and noneconomic losses sustained by the insured. For purposes of this subdivision, available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage [.]

Regarding “ ‘added on’ or excess UM coverage,” “the applicable limits of liability are available to cover any damages an insured suffers which exceed the tortfeasor’s policy limits.”

Under Georgia law, an insurer may fix the terms of its policy as it wishes, provided the terms are not contrary to law. We bear in mind that

[t]he purpose of uninsured motorist or UM coverage is to place the injured insured in the same position as if the offending uninsured motorist were covered with liability insurance. . . . The Georgia uninsured motorist statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is a beneficiary.

Further,

[u]ninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose. That legislative purpose is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist.

The State Farm policies at issue include the following provisions:

1. Uninsured Motor Vehicle Coverage (Excess)
a.... (1) The most we will pay for all damages resulting from bodily injury to any one insured injured in any one accident... is the lesser of:
(a) the difference between the amount of the insured’s bodily injury damages and the sum of all applicable insurance and self-insurance for bodily injury liability; and
(b) the limit shown under “Each Person”. . . .
Nonduplication
We will not pay under Uninsured Motor Vehicle Coverage any damages: . . .
2. that are paid or payable to or for the insured under any workers’ compensation law; or
3. that have already been paid as expenses under Medical Payments Coverage of this policy, the medical payments coverage of any other policy, or other similar vehicle insurance.

Mabry asserts that he is not seeking from State Farm amounts already paid under workers’ compensation law or already paid as expenses under medical payments coverage of the policies or any other policy, as contemplated by the nonduplication provisions. Instead, he contends that he seeks only uncompensated losses (up to the UM policy limits of $75,000). These losses, he asserts, include entire categories of compensation for which he has received nothing, such as future medical expenses, future lost earnings, and past and future pain and suffering. He adds that he has received only partial compensation, even within the categories of past medical expenses and lost wages, and that the trial court erred by interpreting the policies’ nonduplication provisions as allowing State Farm to reduce its payment by each dollar he received from workers’ compensation and for medical expenses, when the UM coverage extends to the entire gap between his losses and his relevant recovery.

We hold that OCGA § 33-7-11 (i) and the policies’ nonduplication provisions do not relieve State Farm of its obligation to pay for uncompensated losses (up to the UM policy limits), and that State Farm is not entitled to summary judgment.

“When we consider the meaning of a statute, we look first to the text of the (statute), and if the text is clear and unambiguous, we look no further, attributing to the (statute) its plain meaning.” The plain meaning of OCGA § 33-7-11 (i), as pertinent to this case, is that a UM carrier can set off benefits which its insured may have received for medical payments coverage or workers’ compensation.

At the same time, “[ujnder OCGA § 33-7-11 (b) (1) (D) (ii) (I), recovery under the UM policy will be limited to the insured’s losses in addition to the amounts payable under any available (liability) coverages,” and “the insured’s combined recovery from the insured’s uninsured motorist coverages and the available [liability] coverages . . . shall not exceed the sum of all economic and noneconomic losses sustained by the insured.” UM coverage cannot be used to duplicate payments made under available liability insurance coverages, but it is available as additional insurance coverage, i.e., coverage in excess of any available bodily injury liability insurance.

Decided November 20, 2015

David A. Webster; Hyatt & Hyatt, John M. Hyatt, for appellant.

Downey & Cleveland, W. Curtis Anderson, for appellee.

Consistent with the statute, the policies provide that State Farm will pay (up to the UM policy limits) the difference between the amount of Mabry’s bodily injury damages and the sum of all applicable insurance and self-insurance for bodily injury liability. Thus, the policies obligated State Farm to pay for Mabry’s personal injury damages that were not compensated (up to the UM policy limits).

Also consistent with the statute, the policies’ nonduplication provisions state that State Farm will not duplicate payments made under workers’ compensation law or payments made as expenses under medical payments coverage. The relevant policy provisions do not preclude recovery for uncompensated losses remaining after payments contemplated by the policies have been made. Nor do they allow Mabry to receive more than his actual damages, as they specify that his combined recovery from the UM coverage and the available coverages under the bodily injury liability insurance shall not exceed the sum of all economic and noneconomic losses he sustained. Mabry would only be recovering sums he is due from Pope, the owner of the underinsured vehicle, and benefits he would be entitled to receive from other sources.

2. Mabry contends that the trial court erred by failing to authorize a special verdict form to ascertain the relationship between the payments to date and Mabry’s losses. He adds that this court should establish for the trial court the method for ascertaining the extent of his underinsurance. However, the propriety of any such special verdict form and its contents is a matter to be addressed on remand.

Judgment reversed.

Doyle, C. J., and Boggs, J., concur.

        Cottingham & Butler, Inc. v. Belu, 332 Ga. App. 684, 685 (774 SE2d 747) (2015) (citations omitted).

        Allstate Fire and Cas. Ins. Co. v. Rothman, 332 Ga. App. 670, 671, n. 1 (774 SE2d 735) (2015) (“[A]n ‘uninsured motor vehicle’ is defined to include an underinsured vehicle, i.e., an insured vehicle whose insurance coverage is insufficient to compensate fully an individual injured in an accident involving that vehicle.”).

       See generally OCGA § 33-24-41.1 (regarding limited release); Rodgers v. St. Paul Fire & Marine Ins. Co., 228 Ga. App. 499, 500-501 (1) (492 SE2d 268) (1997) (limited release of tortfeasor does not bar injured party from proceeding against tortfeasor or UM carrier).

       The legislature amended OCGA § 33-7-11, effective January 1, 2009. See Ga. L. 2008, p. 1192, § 5 (providing that the amendment to this Code section shall apply to all policies issued, delivered, issued for delivery, or renewed on and after January 1, 2009). Inasmuch as the policies here were issued or renewed on or after January 1, 2009, the amended version of OCGA § 33-7-11 (i) applies.

       (Emphasis supplied.)

        Allstate Fire and Cas. Ins. Co., supra at 672, citing OCGA § 33-7-11 (b) (1) (D) (ii) (I).

        Robertson v. 21st Century Nat. Ins. Co., 327 Ga. App. 545, 548 (1) (759 SE2d 614) (2014) (physical precedent only).

        Donovan v. State Farm Mut. Auto. Ins. Co., 329 Ga. App. 609, 611 (765 SE2d 755) (2014).

        Travelers Home and Marine Ins. Co. v. Castellanos, 297 Ga. 174, 178 (1) (773 SE2d 184) (2015) (punctuation omitted).

        Carter v. Progressive Mountain Ins., 295 Ga. 487, 489-490 (761 SE2d 261) (2014) (citation and punctuation omitted).

        Dees v. Logan, 282 Ga. 815-816 (653 SE2d 735) (2007) (plain meaning of former version of OCGA § 33-7-11 (i) was that UM carrier could set off benefits insured received to compensate for property loss; because the statute did not mention benefits received for personal injury, the court concluded that the legislature did not intend to authorize an insurer to set off benefits for personal injury; thus, where the UM policy permitted a set-off for personal injury benefits, it was in conflict with the plain mandate of the statute and the policy provision was void).

        Carter, supra at 492-493.

       OCGA § 33-7-11 (b) (1) (D) (ii) (I).

       See generally Dees, supra at 817; McCombs v. State Farm Mut. Auto. Ins. Co., 200 Ga. App. 28 (406 SE2d 549) (1991); Hudson v. Whited, 250 Ga. App. 451, 452 (552 SE2d 447) (2001) (UM policy provisions that reduce an insurer’s liability by amounts payable from other insurance are contrary to the UM statute if they thwart the insured’s ability to recover all sums the insured is legally entitled to recover).

       See generally Wellstar Health System v. Sutton, 318 Ga. App. 802, 805 (3) (734 SE2d 764) (2012).


author: DOYLE, Chief Judge. McFadden, Judge,

text:
    A15A0802.
    MOORE et al. v. COTTRELL, INC.
    (780 SE2d 442)
   DOYLE, Chief Judge.

Dennis and Lisa Moore filed this action to recover for injuries Dennis received in a fall from the top level of a car hauler manufactured by Cottrell, Inc. The Moores appeal the trial court’s orders striking their experts and granting summary judgment to Cottrell. We affirm for the reasons that follow.

On April 1, 2008, Dennis, a car hauler driver for Waggoners Trucking Company, went to the Nissan North American facility in Canton, Mississippi, to pick up a load of new vehicles. The car hauler was equipped with a “head ramp,” which held three vehicles over the truck cab and was attached to a two-level trailer. The car hauler included a portable, non-affixed ladder, which could be moved from the driver’s side to the passenger’s side of the car hauler and was located at the rear of the head ramp. It was raining, and the car hauler was wet. Dennis backed the first vehicle onto the head ramp of the car hauler (into the position farthest forward and over the cab and hood of his tractor-trailer rig), exited the vehicle on the passenger side of the car hauler, and walked past the first vehicle and down the ramps to the ground in lieu of using the ladder. He then drove a Nissan Armada (a large SUV) into the second position on the head ramp, exited from the driver’s door on the driver’s side of the car hauler, and turned to face the SUV, intending to step onto the wider ramp at the back of the SUV upon which the tires are driven and walk down the ramp to the ground. While balanced on the frame of the head ramp, which was not equipped with guard rails or handholds, Dennis attempted to maintain a three-point stance by grasping the roof of the Armada with his fingers as he inched along the rail of the head ramp towards the back of the SUV. As he approached the rear tire of the Armada, Dennis lost his footing and fell to the ground, sustaining serious injuries.

In a subsequent affidavit, Dennis explained that the car hauler did not contain a ladder built in the frame of the head ramp. Instead, it had a portable, aluminum ladder, which did not have a mechanism for securing the top of it, and because it did not have rubber coated bottoms or “flippers,” it “could only be used safely if the bottom of the ladder was resting on dirt and could be pushed into the ground far enough to hold it in place.” Dennis did not attempt to climb down the portable ladder because at the time of his fall, the car hauler was located on an asphalt parking lot. As a result, he believed he had no other option than to try to maneuver around the Armada to reach the ramp.

Dennis and his wife, Lisa, sued Cottrell, asserting claims for strict liability, negligence, and breach of warranty. The Moores alleged that the Cottrell car hauler (specifically, the head ramp) was defective and not equipped with a safe means for him to descend to the ground, specifically challenging the lack of a reasonably safe ladder, a guardrail or other similar safety system, or handholds. On August 18, 2011, the trial court entered a consent case management order, providing that discovery would end on April 1, 2012, requiring the Moores to disclose their experts no later than December 1, 2011, and make the experts available for deposition no later than January 1, 2012, and requiring the parties to file dispositive motions no later than May 1, 2012.

On May 8, 2012, Cottrell filed a motion to exclude the testimony of the Moores’s expert, Dr. Harvey Cohen, under Daubert. On December 20, 2013, following a hearing, the trial court granted Cottrell’s motion and excluded Dr. Cohen’s testimony, finding that although he was qualified to testify as an expert in “safety issues relating to falls,” he failed to apply “reliable principles or methods to this case.” On January 8, 2014, Cottrell moved for summary judgment, and the trial court scheduled a hearing on the motion for May 20, 2014. On May 16, 2014, in opposition to the summary judgment motion, the Moores filed the affidavit of another expert, John S. Morse, Ph.D., P.E. Following the hearing, which was not transcribed, the trial court entered an order striking Dr. Morse’s affidavit as untimely and granting summary judgment to Cottrell. This appeal followed.

1. The Moores argue that the trial court erred by striking Dr. Cohen’s expert testimony. We disagree.

OCGA § 24-7-702 (b) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

“This standard is based upon Federal Rule of Evidence 702, and it requires a trial court to sit as a gatekeeper and assess the reliability of proposed expert testimony, applying the principles identified in Daubert and its progeny.” “The determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.”

“In determining the admissibility of expert testimony, the trial court. . . assesses] both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony. Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training.

Applying these principles to this case, we conclude that the trial court did not abuse its discretion by finding Dr. Cohen’s testimony inadmissible. In his report attached to his deposition, Dr. Cohen opined that the car hauler from which Dennis fell was “defective and unreasonably dangerous from a human systems safety perspective,” explaining that (1) the design of the car hauler did not include a “continuous and stable [three]-points of contact, . . . guardrails, handholds, or sufficiently wide catwalks”; (2) the car hauler did not include adequate warning labels; and (3) Cottrell failed to provide adequate safety instructions in the operator’s manual. Dr. Cohen admitted at his deposition, however, that he never inspected or even saw the car hauler in this case nor had he been on the upper deck of any vehicle transport trailer. Dr. Cohen did not offer his opinion regarding the actual cause of Dennis’s fall, and he conceded that he has never inspected any fall protection designs or systems for similar car haulers, was unaware of their components or composition, and has never been subject to peer review on these theories nor completed any scientific testing to support them.

Because Dr. Cohen’s opinion was not the product of reliable principles or methods, he did not inspect the car hauler at issue in this case, it is unclear what analysis he applied, and he does not have an opinion regarding proximate cause, his testimony does not meet the requirements of OCGA § 24-7-702 (b). Under these circumstances, the trial court did not abuse its discretion by excluding Dr. Cohen’s testimony.

2. The Moores contend that the trial court abused its discretion by striking Dr. Morse’s affidavit. Again, we disagree.

The imposition of scheduling deadlines for the identification of experts, and questions regarding the admission or exclusion of expert testimony, are left to the broad discretion of the trial court. And we have held that a trial court may exercise its discretion and exclude testimony from an expert not properly identified by a party, when done in violation of an express court order.

Here, the scheduling order expressly required the Moores to identify any experts on or before December 1, 2011. Instead, the Moores did not identify Dr. Morse as an expert until May 16, 2014, four days before the summary judgment motion hearing. Under these circumstances, the trial court did not abuse its discretion by striking Dr. Morse’s affidavit.

3. The Moores also argue that the trial court erred by granting summary judgment to Cottrell.

Summary judgment is appropriate when no genuine issues of material fact remain and the evidence, construed in the light most favorable to the nonmoving party, warrants judgment as a matter of law. A defendant may obtain summary judgment by showing that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We review a grant of summary judgment de novo.

(a) Design defect claims. To properly determine whether the Moores’s design defect claims can proceed in the absence of their experts’ testimony, we must determine whether Georgia or Mississippi law applies.

Georgia’s choice-of-law rules provide the key for resolving this claim of error. Under lex loci delicti, tort cases are governed by the substantive law of the state where the tort or wrong occurred — in this case, [Mississippi]. Questions involving procedure or the appropriate remedy, however, are decided using the law of the state where the action was filed.

The determination of whether the Moores are required to provide competent expert testimony to support their claims requires an analysis of proof of causation, which is an element of the claim and therefore governed by the substantive law of Mississippi.

To recover for a products liability case under the Mississippi Products Liability Act (the “MPLA”), a plaintiff

must establish by a preponderance of the evidence that: (1) the product was manufactured or designed in a defective manner, contained inadequate warnings, or breached an express warranty that was justifiably relied on when pur- . chased; and (2) this defective condition rendered the product unreasonably dangerous to the user or consumer; and (3) the defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought; and (4) the defective condition existed at the time the product left control of the manufacturer.

The MPLA further provides:

[T]he manufacturer . . . shall not be liable if the [plaintiff] does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer . . . (i) [t]he manufacturer . . . knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and (ii) [t]he product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.

Thus, under Mississippi law, a plaintiff

must demonstrate that the product was defective and that a feasible alternative would have prevented the alleged harm. Evidence of a design defect must be supported by expert testimony, and the failure to designate an expert who is prepared to offer such evidence demonstrates the lack of a prima facie case.

Here, without expert testimony, the Moores have failed to provide evidence that any alleged defect in the design of the car hauler rendered the product unreasonably dangerous or that a feasible design alternative existed at the time of Dennis’s accident that would have prevented the harm without impairing the utility, usefulness, practicality, or desirability of the car hauler. Under these circumstances, the trial court properly granted summary judgment to Cottrell as to the Moores’s design defect claims.

(b) Failure-to-warn. The Moores argue that the trial court erred by granting summary judgment on this claim because none of the warning stickers on the car hauler or in the operator’s manual provided information on proper placement, securing mechanisms, and usage of the ladder. But Dennis cannot recall whether or not the car hauler from which he fell had warning labels regarding the ladders, and he admitted only that he read “some” of the operator’s manual. Under Mississippi law, “[t]he presence or absence of anything in an unread [product] manual simply cannot proximately cause a plaintiff’s damages.” More importantly, the Moores’s failure-to-warn claims essentially allege that Cottrell failed to warn Dennis about the use of mechanisms, including ladder hooks, with which the car hauler at issue was not equipped at the time of his accident. Under these circumstances, the trial court properly granted summary judgment on the Moores’s failure-to-warn claim.

Judgment affirmed.

Phipps, P. J., Ray and McMillian, JJ., concur. Ellington, P. J., concurs in judgment only. Barnes, P. J., and McFadden, J., dissent.

McFadden, Judge,

dissenting.

It is no basis for objection that plaintiffs’ first expert did not personally inspect the car hauler. Dr. Cohen holds a Ph.D. in Human Factors and Ergonomics and has made a particular study of car haulers. As the trial court held, “he is qualified to testify as an expert in, essentially, safety issues related to falls.” A qualified expert

is free to opine about a complicated matter without any firsthand knowledge of the facts in the case, and based upon otherwise inadmissible hearsay if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”

HNTB Ga. v. Hamilton-King, 287 Ga. 641, 645-646 (697 SE2d 770) (2010) quoting United States v. Frazier, 387 F3d 1244, 1260 (11th Cir. 2004).

Decided November 20, 2015

Garland, Samuel & Loeb, David E. Tuszynski, for appellants.

Hulsey, Oliver & Mahar, Abbott S. Hayes, Jr.; Melanie S. Stone, for appellee.

If Dr. Cohen can be faulted, it is for belaboring the obvious. Moore fell because he had neither a handhold nor a functional ladder. He was clinging by his fingertips to the roof of a very large SUV, maneuvering sideways with his feet only partially on a narrow beam. In the rain. When his foot slipped, he had nothing to hang onto. So he fell.

Dr. Cohen’s testimony might shed additional light, but it was not necessary to avoid summary judgment. Georgia law imposes no across-the-board requirement of expert testimony in products liability cases. This court has repeatedly found in such cases that expert testimony was not necessary. See Owens v. Gen. Motors Corp., 272 Ga. App. 842, 847-848 (2) (b) (613 SE2d 651) (2005) (expert testimony not needed to prove alleged defect caused injury); Williams v. American Med. Systems, 248 Ga. App. 682, 683 (1) (548 SE2d 371) (2001) (claim survived summary judgment without expert testimony). See also Williams v. Mast Biosurgery USA, 644 F3d 1312, 1319 (II) (B) (11th Cir. 2011) (applying Georgia law).

As for Mississippi, it is true that the federal opinions cited by the majority contain some language suggesting that its does impose such an across-the-board requirement. But the Supreme Court of that state has held otherwise: it has ruled that the issue must be approached “on a case-by-case basis.” Forbes v. Gen. Motors Corp., 935 S2d 869, 878 (Miss. 2006). And the Mississippi Court of Appeals opinion cited by the majority simply notes without comment that the trial court had “ruled that Brown was not required to have an expert in biomechanics testify in order to establish proximate causation [of an air-bag failure]; therefore, GM’s motion for summary judgment on that issue was denied.” Brown v. Gen. Motors Corp., 4 S3d 400, 401 (Miss. Ct. App. 2009).

For those reasons I would hold that the trial court erred in excluding Dr. Cohen’s testimony and moreover that expert testimony was not necessary to avoid summary judgment. I therefore respectfully dissent.

I am authorized to state that Presiding Judge Barnes joins in this dissent.

       After Dennis’s accident, Cottrell began using a system that includes hooks at the top of the portable ladders that fit into slots in the upper deck of the head ramp, firmly securing the ladder.

        Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993).

       In the order, however, the trial court noted summary judgment would be proper even if it had not stricken Dr. Morse’s affidavit.

       (Citations and punctuation omitted.) Dubois v. Brantley, 297 Ga. 575, 580 (2) (775 SE2d 512) (2015).

       (Citation and punctuation omitted.) HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010).

       (Citations omitted.) Id., citing Kumho Tire Co. v. Carmichael, 526 U. S. 137, 141 (119 SCt 1167, 143 LE2d 238) (1999).

       (Emphasis omitted.)

       See Butler v. Union Carbide Corp., 310 Ga. App. 21, 25-30 (1) (712 SE2d 537) (2011).

       (Citations omitted.) Kohler v. Van Peteghem, 330 Ga. App. 230, 238 (3) (767 SE2d 775) (2014), citing Caswell v. Caswell, 285 Ga. 277, 280 (3) (675 SE2d 19) (2009); Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175) (2008); Vaughan v. WellStar Health System, 304 Ga. App. 596, 601-602 (3) (696 SE2d 506) (2010); Collins v. Dickman, 295 Ga. App. 601, 603-604 (1) (672 SE2d 433) (2008).

       See Kohler, 330 Ga. App. at 239 (3). We are unpersuaded by the Moores’s argument that OCGA § 9-11-6 (d), which permits parties to file affidavits opposing summary judgment no later than one day before the date of the hearing, renders unenforceable the trial court’s express order regarding the deadline for identification of experts.

       (Citations and punctuation omitted.) Butler, 310 Ga. App. at 30 (2), quoting Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). See also OCGA § 9-11-56 (c).

       The trial court analyzed the issue of whether the Moores’s claims failed without an expert under both Georgia and Mississippi law.

       (Footnotes omitted.) Bagnell v. Ford Motor Co., 297 Ga. App. 835, 836 (1) (678 SE2d 489) (2009).

       See id. at 838 (2) (applying Texas law to determine whether evidence was admissible when proving causation in a failure-to-warn case because the tort occurred in Texas).

        Cothren v. Baxter Healthcare Corp., 798 FSupp.2d 779, 782 (III) (S.D. Miss. 2011), citing Miss. Code Ann. § 11-1-63 (a).

       Miss. Code Ann. § 11-1-63 (f).

        Cothren, 798 FSupp.2d at 782 (III). See also Elliot v. Amadas Indus., Inc., 796 FSupp.2d 796, 803 (II) (B) (2) (S.D. Miss. 20Í1) (granting summary judgment to the defense after excluding the testimony of the plaintiffs’ expert in design defect case); Brown v. Gen. Motors Corp., 4 S3d 400, 402-403 (Miss. Ct. App. 2009) (affirming the grant of summary judgment to the defendant because the plaintiff failed to provide any expert testimony in support of her design and manufacturing defect claims).

       See Cothren, 798 FSupp.2d at 782; Grant v. Ford Motor Co., 89 S3d 655, 675 (III) (B) (Miss. Ct. App. 2012) (“In order to prove causation, a potential plaintiff must offer expert testimony that the product was defective. . . . Without expert testimony, the plaintiff cannot prove causation or defect... and cannot maintain her claim as a matter of law.”). See also Butler, 310 Ga. App. at 30 (2).

        Palmer v. Volkswagen of America, Inc., 904 S2d 1077, 1084 (Miss. 2005).


author: RAY, Judge. MCFADDEN, Judge,

text:
    A15A0863.
    CHANDLER v. ROHNER.
    (780 SE2d 449)
   RAY, Judge.

This is an appeal from the lower court’s dismissal of a biological father’s appeal from a grant of stepparent adoption. For the reasons that follow, we vacate the trial court’s order and remand the case for further proceedings consistent with this opinion.

Appellant Matthew Steven Chandler is the biological father (hereinafter “Biological Father”) of two minor boys. The mother’s husband, appellee Timothy Stewart Rohner (hereinafter “Adoptive Father”), petitioned for stepparent adoption, which the trial court granted in a detailed and substantive order. Biological Father appealed the adoption to this Court in June 2014, but in September 2014, Adoptive Father moved to dismiss the appeal because Biological Father had failed to pay costs for transmission of the record and transcript to this Court. The trial court held a hearing on September 11, 2014.

On September 18, 2014, Adoptive Father filed an amended motion to dismiss and a motion for sanctions, arguing that since the hearing, new and important facts had come to light requiring the trial court’s consideration. The amended motion included, as an exhibit, an affidavit from the court reporter who prepared the transcript at issue, which was dated after the hearing. The day after the amended motion was filed, and prior to any response from Biological Father, the trial court granted Adoptive Father’s motion to dismiss in an order that clearly considered the affidavit and allegations in the amended motion. Biological Father appealed.

1. Biological Father contends that the trial court erred in dismissing his appeal without giving him the opportunity to respond to Adoptive Father’s amended motion. We agree.

We review a trial court’s decision on whether to grant or deny a motion to dismiss an appeal for an abuse of discretion. Battaglia v. Duke, 230 Ga. App. 667, 669 (497 SE2d 250) (1998). It is well settled that

[a] trial court generally should allow a party 30 days to respond to a motion and to any evidence submitted in support thereof. See Uniform Superior Court Rule (USCR) 6.2... .Atrial court has the discretion to rule before 30 days after the motion was filed; however, it must still afford the plaintiff notice and an opportunity to be heard first.

(Citations omitted.) Considine v. Murphy, 320 Ga. App. 316, 317-318 (739 SE2d 777) (2013). Here, it is clear from the record that Biological Father had neither notice nor an opportunity to respond to the specific allegations in the amended motion, or to the court reporter’s affidavit, both of which post-dated the hearing. As a result, we vacate the trial court’s ruling on the motion to dismiss the appeal and remand the case for further proceedings not inconsistent with this opinion.

2. Because of our determination in Division 1, we do not reach the other enumerations of error.

Judgment vacated and case remanded.

Doyle, C. J., Andrews, P. J., and Boggs, J., concur. Miller, J., concurs in judgment only. McFadden, J., dissents. Barnes, P. J., concurs in the judgment of the dissent.

MCFADDEN, Judge,

dissenting.

I agree that the trial court erred in failing to give the appellant an opportunity to respond to the amended motion to dismiss and supporting affidavit filed by the appellee and consequently that the dismissal of the underlying appeal is unsustainable. But I disagree with the majority about the appropriate disposition of this case. The majority limits itself to an issue two steps removed from the underlying termination of parental rights. The majority does not reach the merits of the dismissal order on appeal, but instead vacates that order and remands for further consideration of the merits of the motion to dismiss. Ordinarily, I would agree that that is what we must do. But in this case the appellee, the adoptive father, now asks us to reverse. The nature and circumstances of this case are such that his unusual request should be granted.

In a supplemental brief to this court, the adoptive father (who appears to speak for the children’s mother as well as himself) disavows the tone and substance of his earlier filings. He confesses error and asks us to reverse. He admits in judicio that he has not been prejudiced —• a proposition about which he can speak with authority. And he asserts that the children’s best interests would be subserved by prompt review of the merits of the termination of their natural father’s parental rights — a proposition about which he is plainly right.

This is the second time we have reversed in this case. Chandler v. Rohner, 323 Ga. App. 713 (747 SE2d 870) (2013). A review of the briefs in that earlier case suggests that the termination of parental rights may well have been error. Such error is a matter of the utmost seriousness.

There can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring. To terminate that right is to sever that right for the future as effectively in law as if it never had existed. It is a tearing of the flesh and it can be done by the court only under the most carefully controlled and regulated circumstances for the sake of the child.

Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976).

In the first appeal in this case, we reversed because the trial judge had terminated the natural father’s parental rights when termination was not properly before him and had failed to hold an oral hearing before ruling on the natural father’s motion for new trial. This time we reverse because the trial court failed to give the natural father notice and opportunity to be heard as to the adoptive father’s post-hearing submissions. Remanding to allow the trial court to address the dismissal issue a second time would create the possibility of a third appeal before the merits are reached — and consequently the further possibility that the merits would come to us in a fourth appeal.

Every appeal represents roughly an additional year of litigation. In any sort of case, the prospect of such additional delay would be antithetical to considerations of judicial economy and to the goal of a just and expeditious resolution. And we expedite cases involving child custody and termination of parental rights for good reasons.

It is true generally that trial courts

have a duty which carries with it a commensurate power far greater than that accorded to the appellate courts. “Ours is a function merely to see that the law is followed. Theirs is the solemn responsibility to see to it that justice is administered according to the evidence as well as the law.” Mills v. State, 188 Ga. 616, 623 (4 SE2d 453) (1939).

Ogletree v. Navistar Intl. Transp. Corp., 221 Ga. App. 363, 365 (471 SE2d 287) (1996). But under the unique circumstances of this case, we have the authority and the duty to see that justice is done and the best interests of these children are subserved.

Decided November 20, 2015.

Matthew S. Chandler, pro se.

Lindsey Law Firm, Scott D. Bennett, for appellee.

Consequently the judgment of the trial court should be reversed, the appellee’s confession of error should be adopted, and the underlying appeal should be reinstated.

I am authorized to state that Presiding Judge Barnes concurs in the judgment of the dissent.

       We note that Adoptive Father initially opposed that appeal, as would be expected. However, after obtaining new counsel, Adoptive Father filed a supplemental brief in this Court essentially asking us to reverse the trial court’s dismissal of Biological Father’s appeal.