author: McMillian, Judge.

text:
    A15A1090.
    JOBLING et al. v. SHELTON.
    (779 SE2d 705)
   McMillian, Judge.

Deborah and William Jobling, as surviving parents and as administrators of the Estate of Karli Jobling (the “Joblings”), appeal the trial court’s October 13, 2014 order granting the “Motion to Dismiss and/or Motion for Summary Judgment” filed by Bill Shelton in their action asserting claims arising out of the 2011 death of their daughter, Karli, in an automobile accident. Finding that the Joblings’ claims are barred by sovereign and official immunity, we affirm.

The Joblings’ complaint asserts that their daughter was killed at approximately 7:07 p.m. on January 14, 2011, when the car in which she was riding lost traction on ice that had accumulated on Stilesboro Road in Cobb County (the “County”) and collided with another car (the “Accident”). Viewed in the light most favorable to the Joblings, the evidence shows that at the pertinent time, Shelton served as road maintenance division manager with the Cobb County Department of Transportation (“CDOT”). In that position, Shelton supervised county bridge and guardrail crews, heavy equipment operators, right-of-way crews, asphalt crews, concrete crews, drainage crews, and an administrative assistant. One of Shelton’s duties was to oversee county operations in addressing weather-related hazards on county roads as they were brought to his attention. When Shelton received a report of a road hazard, such as ice, he contacted a crew supervisor, who, in turn, dispatched a crew to address the problem within a reasonable amount of time.

Shelton testified that determining how to prioritize where crews were dispatched required a subjective decision based on the event, and “[e]very event’s different.” As he explained, “[I]f you’ve got one pothole, you’re going to direct a crew to go to that pothole. If you [have] 1,000 calls, you can’t take care of 1,000 at one time.” However, once a crew was dispatched to respond to an issue, it was to go “immediately” to address the situation. Shelton acknowledged that ice patches on a roadway were considered a priority in his department because of the hazard they pose to the motoring public.

A significant snowstorm hit the County on the night of January 9, 2011, resulting in four to six inches of snowfall (the “Snowstorm”). Cobb County is a large county with over 2,500 miles of roadway, and Shelton testified that as a result of the Snowstorm, “[a]ll 2,500 miles of roads were under ice and snow.” County workers performed most of the work clearing snow and ice from the County roads, with assistance from a subcontractor, pursuant to the County’s emergency response preparedness and inclement weather procedures. Under those procedures, in an emergency situation involving ice on roadways, the County first treats the roads designated as “primary” based on traffic volume and then treats the “secondary” roads. The County classifies Stilesboro Road as a secondary road. Shelton testified in his deposition that after the Snowstorm, the County treated the County roads in the order prescribed in its procedures, and Stilesboro Road received at least two ice treatments between January 9 and January 14 during that process.

In addition, County work orders indicate that the road was treated on at least two other occasions prior to the Accident in response to calls from citizens or law enforcement: on January 12 and on the morning of January 14. Shelton stated that he does not generally receive the work orders resulting from such calls, but whoever received them would dispatch a crew to address the situation. The timing of the response depends on the County’s workload at the time because the County has only limited crews available to cover such events.

The CDOT website also allowed individuals to report problems by e-mail. Shelton testified that several CDOT employees monitored the receipt of these e-mails, but those employees were under the supervision of the traffic operations manager, not Shelton, and thus he could not say whether someone monitored the e-mails “at all times” during inclement weather. Shelton stated that the response to e-mails received through the website “depended on the volume of calls they were receiving, the event.”

County records indicate that someone e-mailed the CDOT at 1:17 p.m. on January 14,2011, to report ice on Stilesboro Road at a location “a couple of miles” from the Accident site. Shelton could not say what the response was to this particular e-mail “because there were thousands of phone calls, thousands of requests. It’s just not something that would have come through immediately. The volume was tremendous.” Asecond e-mail, sent at 6:26 p.m. on January 14 (which was 41 minutes before the Accident), notified the CDOT of ice on portions of three different roads, including an intersection on Stilesboro Road within 500-600 feet of the Accident site. Shelton testified that he was not aware of either of the E-mails prior to the Accident, and County records indicate that both E-mails were forwarded to Shelton on January 21, 2011 during his investigation following the Accident. He testified that he probably did not see them until that date.

The Joblings filed their complaint on December 27,2012, expressly asserting claims against Shelton “in his official capacity of Director of Road Maintenance for the [CDOT],” but the Joblings’ claim against Shelton also alleged that he had breached his “ministerial duty to promptly respond to known dangerous conditions caused by inclement weather.” On March 10, 2014, Shelton filed a motion seeking to dismiss the Joblings’ claims against him in his official capacity under OCGA § 9-11-12 (b) (1) based on the. doctrine of sovereign immunity and further sought summary judgment on the Joblings’ claims to the extent that the Joblings were also asserting claims against him in his personal capacity. The trial court notified the parties on August 4, 2014 that it would treat Shelton’s motion as one for summary judgment and gave additional time for the parties to file further evidence and briefs. Subsequently, on October 13, 2014, the trial court issued its order finding that Shelton was protected by sovereign immunity as to any claims asserted against him in his official capacity and that he was entitled to summary judgment as to any claims asserted against him in his personal capacity based on the court’s review of all matters of record, including Shelton’s deposition.

1. As an initial matter, we find that Shelton is entitled to the protection of sovereign immunity as to any claims asserted against him in his official capacity. Under the Georgia Constitution, the protection of sovereign immunity extends to the state and all of its departments, including counties, “and thus protects county employees who are sued in their official capacities, unless sovereign immunity has been waived.” (Citation omitted.) Ratliff v. McDonald, 326 Ga. App. 306, 309 (1) (756 SE2d 569) (2014). See also Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994). “[A]ny waiver of sovereign immunity must be established by the party seeking to benefit from that waiver.” (Citation and punctuation omitted.) Ratliff, 326 Ga. App. at 309 (1). The Joblings have not identified any waiver of sovereign immunity applicable to the facts in this case, and we are aware of none. Therefore, we affirm the trial court’s order as to any claims asserted against Shelton in his official capacity.

2. The Joblings contend, however, that the trial court erred in granting Shelton’s motion for summary judgment on the ground of official immunity.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure.

(Citations and punctuation omitted.) Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001). See also Tattnall County v. Armstrong, 333 Ga. App. 46, 49 (1) (775 SE2d 573) (2015); Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d). Because the Joblings have provided no evidence that Shelton acted or failed to act with wilfulness, malice, or corruption, the question before us is whether Shelton’s failure to address the ice on Stilesboro Road at the scene of the Accident was a failure to perform a ministerial act or a discretionary act. See Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010).

“The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” (Citation and punctuation omitted.) McDowell v. Smith, 285 Ga. 592, 594-95 (678 SE2d 922) (2009). “Thus, in analyzing a claim of official or qualified immunity, ‘the single overriding factor is whether the specific act from which liability arises is discretionary or ministerial.’ ” (Citation and punctuation omitted.) Tattnall County, 333 Ga. App. at 50 (1). In Georgia,

[a] ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citation omitted.) Howell v. Willis, 317 Ga. App. 199, 201 (729 SE2d 643) (2012).

“A ministerial duty may be established by evidence such as a written policy, an unwritten policy, a supervisor’s specific directive, or a statute.” (Citations omitted.) Roper v. Greenway, 294 Ga. 112, 114-15 (751 SE2d 351) (2013). “Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.” (Citation, punctuation and footnote omitted.) Id. at 115. Additionally, Georgia courts have found that actual notice of a hazardous condition gives rise to a ministerial duty on the part of an individual charged with responsibility to respond to such a condition. See Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982) (once government employee notified of missing stop sign, he has ministerial duty to replace it); Barnard v. Turner County, 306 Ga. App. 235, 239 (1) (701 SE2d 859) (2010) (actual notice of water over road gave rise to a ministerial duty on the part of the county road superintendent to respond); Lincoln County v. Edmond, 231 Ga. App. 871, 874 (2) (501 SE2d 38) (1998) (once road superintendent received notice of a downed tree blocking the road, he had ministerial duty to remove it).

In the trial court, the Joblings asserted that Shelton breached a ministerial duty in failing to act in response to complaints of hazardous conditions on Stilesboro Road the day of the Accident and thus was not entitled to official immunity. On appeal, they argue that the trial court erred in finding that Shelton was protected by official immunity because Shelton failed to carry his burden of showing that no genuine issue of material fact existed as to three issues.

(a) The Joblings first assert that Shelton failed to show that no genuine issue of material fact remained as to whether he had “any notice of icing on the relevant stretch of Stilesboro Road on January-14, 2011.” They assert that questions remain as to whether Shelton received the E-mails reporting ice on the road on January 14.

As the moving party on summary judgment, Shelton bore the initial burden of establishing that he was entitled to the protection of official immunity. Howell, 317 Ga. App. at 203; Standard v. Hobbs, 263 Ga. App. 873, 879 (3) (589 SE2d 634) (2003). And Shelton testified, without contradiction, that determining how to prioritize the County workforce in response to an event or a complaint required him to engage in subjective decision-making based on the circumstances. The Joblings, in fact, concede that Shelton’s actions relating to the prioritization of road maintenance projects or resource allocation during the week of the Snowstorm were “plainly discretionary.” Although Shelton acknowledged that he had a duty to respond to road hazards in a reasonable fashion as they were brought to his attention, he denied having any actual knowledge that Stilesboro Road was in a hazardous condition on January 14, so as to give rise to a ministerial duty on his part to respond. Shelton stated that he did not receive the E-mails before the Accident, and the documentation of record shows only that the E-mails were forwarded to him on January 21, 2011. Shelton stated that he probably first saw the E-mails on that date. Thus, we find that Shelton carried his burden of showing that he had not breached a ministerial duty in this case.

Once Shelton made this prima facie showing, the burden to produce evidence shifted to the Joblings to come forward with rebuttal evidence sufficient to show that a genuine issue of fact existed with regard to whether Shelton had, in fact, breached a ministerial duty. See also Howell, 317 Ga. App. at 204; Standard, 263 Ga. App. at 879 (3). Although the Joblings question the credibility of Shelton’s testimony regarding his lack of notice and the E-mails, they have failed to point us to any evidence in the record to contradict it. We cannot simply disbelieve Shelton’s uncontradicted testimony and ignore the evidence it provides because the Joblings question his credibility. Stevenson v. City of Doraville, 294 Ga. 220, 224 (2) (751 SE2d 845) (2013). Rather,

what one witness says on a material point [must be] genuinely contradicted by some other evidence — what another witness says, a prior statement by the witness, or a document or other piece of physical evidence. Once the pleadings are pierced with actual evidence, the plaintiff must point to admissible evidence showing a genuine issue of fact as summary judgment cannot be avoided based on mere speculation or conjecture.

(Citations omitted.) Id. We find that the Joblings failed to carry their burden on summary judgment by failing to produce evidence creating a genuine issue of material fact regarding the issue of notice. The uncontradicted evidence shows that Shelton did not receive notice prior to the Accident of the icy conditions on Stilesboro Road and thus no evidence exists that he had a ministerial duty to act based on actual notice of the hazard.

(b) Second, the Joblings contend that questions of fact remain as to whether Shelton failed to perform the ministerial task of having the CDOT website monitored during the week of the Snowstorm. Pretermitting whether the Joblings’ arguments in opposition to Shelton’s motion for summary judgment were sufficient to preserve this issue for appeal, the uncontradicted evidence in the record demonstrates that Shelton had no obligation to monitor the website. To the contrary, Shelton testified that the employees who monitored the website were under the supervision of someone else in another division, i.e., the County traffic operations manager. Under these circumstances, no genuine issue of material fact exists as to whether Shelton had a ministerial duty in this regard.

(c) As their third contention, the Joblings assert that issues of fact exist surrounding Shelton’s “admitted failure” to supervise the snow-clearing and de-icing work on Stilesboro Road during the week following the Snowstorm in order to confirm that all the work was completed in an acceptable manner. However, the Joblings failed to raise this argument below in opposition to Shelton’s motion for summary judgment, instead basing their argument solely on assertions that Shelton failed to act in response to the hazardous conditions on Stilesboro Road on January 14. It is well settled that this Court will not consider arguments asserted for the first time on appeal and thus neither raised nor ruled upon in the trial court. See Davis v. Whitford Properties, Inc., 282 Ga. App. 143, 145 (1) (637 SE2d 849) (2006). “The trial court cannot be reversed on any ground or argument not presented for or against a motion for summary judgment.” (Citation and punctuation omitted.) Hash Properties, LLC v. Conway, 298 Ga. App. 241, 243 (1) (679 SE2d 799) (2009). As our Supreme Court has explained, “in responding to a motion for summary judgment, plaintiffs have a statutory duty to produce whatever viable theory of recovery they might have or run the risk of an adjudication on the merits of their case.” (Citation and punctuation omitted.) Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828 (2) (573 SE2d 389) (2002). Accordingly, we find that the Joblings have waived this issue for appeal.

Therefore, the record contains no evidence that Shelton had a ministerial duty arising out of actual notice of the specific hazard on Stilesboro Road. And the Joblings have not pointed us to any evidence showing that Shelton’s actions or failure to act with regard to Stilesboro Road violated the County’s inclement weather procedures or that Shelton violated any other written or unwritten policy, a supervisor’s specific directive, or a statute imposing a ministerial duty on him. Accordingly, because the record contains no evidence that Shelton negligently performed a ministerial act, the trial court correctly found that Shelton was entitled to the protection of official immunity. See, e.g., Brown v. Taylor, 266 Ga. App. 176, 177 (596 SE2d 403) (2004) (actions discretionary where evidence showed no violation of specific policy, no evidence that defective condition had been reported to employees at issue, and the employees had not been instructed to inspect or repair the roadway where accident occurred).

Decided November 13, 2015.

David J. Maher, for appellants.

Lauren S. Bruce, for appellee.

Judgment affirmed.

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

       We review the trial court’s order granting Shelton’s motion under the de novo standard of review applicable to orders on summary judgment, construing the evidence in a light most favorable to the Joblings, as nonmovants. See Kelley v. Randolph, 295 Ga. 721, 722 (1) (763 SE2d 858) (2014).

       The Joblings also named the subcontractor as a defendant in this lawsuit but later dismissed their claims against the subcontractor without prejudice.

       Other documentation indicates that the road may have been treated twice on January 12.

       The road was also treated after the Accident on the evening of January 14 or early January 15.

       Both January 14 e-mails will he referred to collectively as the “E-mails.”

       We reject Shelton’s argument on appeal that the Joblings asserted claims against him only in his official capacity. Pretermitting whether Shelton properly preserved this issue below, we find that the allegations of the complaint alleging that Shelton breached a ministerial duty were sufficient under the requirements of notice pleading to apprise Shelton that the Joblings were asserting claims against him in his personal capacity, as well as in his official capacity. See generally Duffield, v. Chui, 314 Ga. App. 214, 215, n. 3 (723 SE2d 506) (2012) (notice pleading requirements); Ward v. Dodson, 256 Ga. App. 660, 662 (569 SE2d 554) (2002) (“in determining the capacity in which a defendant is sued, courts should look to the complaint and the course of the proceedings”). And, indeed, Shelton fully briefed the issue of official immunity as it applied to claims against him in his personal capacity both on appeal and below.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A15A1115.
    ALESSI et al. v. CORNERSTONE ASSOCIATES, INC.
    (780 SE2d 15)
   Branch, Judge.

Gary and Melissa Alessi appeal from an order of the Superior Court of Spalding County granting the petition of Cornerstone Associates, Inc. for an award of costs and attorney fees under Georgia’s offer of judgment statute, OCGA § 9-11-68. The Alessis contend that the trial court erred in granting the petition because in doing so it erroneously held that OCGA § 9-11-68 applies to claims that were decided during binding arbitration instead of civil litigation. For reasons explained more fully below, we agree with the Alessis and therefore reverse the order of the trial court.

“Because this appeal involves a question of law, we review both the record and the decision of the court below de novo.” Johnson v. Allied Recycling, 323 Ga. App. 427 (746 SE2d 728) (2013) (citation and punctuation omitted).

The relevant facts are undisputed, and the record shows that on December 22, 2006, the Alessis and Cornerstone entered into a “New Home Purchase and Sale Agreement.” Under that agreement, Cornerstone agreed to construct and the Alessis agreed to purchase a home in the Heron Bay-Lakeview subdivision in Locust Grove. Paragraph 9 of that agreement, captioned “Mandatory Binding Arbitration,” provided, in relevant part:

Seller and Buyer . . . acknowledge that in the event of disputes which are not informally resolved, resolution of those disputes will best be achieved through arbitration rather than civil litigation because of the substantial savings of time and expense for all parties and because of the privacy and flexibility associated with arbitration procedures. If Seller provides a warranty to Buyer, then the terms and procedures of that warranty shall first apply to any claim or dispute, which is within the coverage of that warranty. . . . Any unresolved claim or dispute between Seller and Buyer arising out of or relating to such warranty, if any, and any other claim or dispute of any kind or nature between Seller and Buyer arising out of or relating in any manner to this Agreement or this transaction shall be decided by binding arbitration in accordance with the Federal Arbitration Act and with the rules and procedures of the arbitrator and such decision shall be final.

On August 29, 2011, the Alessis filed a demand for arbitration with Construction Arbitration Associates, the arbitrator designated in the parties’ agreement. In their demand, the Alessis asserted claims against Cornerstone for breach of contract, breach of an oral agreement, negligent construction, breach of warranty, unjust enrichment, and attorney fees.

On June 12, 2012, Cornerstone sent the Alessis a written offer to settle all of their claims against Cornerstone for $3,000. The offer stated that it was made “pursuant to the provisions of OCGA § 9-11-68.” The Alessis responded to this offer on July 6,2012, rejecting the same.

The case proceeded to arbitration and on April 8, 2013, the arbitrator issued a written decision in which he awarded no money to either party. Specifically, the arbitrator’s award stated:

With regard to the [Alessis’] claim [s], this Arbitrator awards $0.00 for the [Alessis] and $0.00 for [Cornerstone]. All other fees and expenses [,] including attorney[ ] fees incurred by the parties [,] shall be borne by the party producing such. THIS AWARD IS IN FULL SATISFACTION OF ALL CLAIMS AND COUNTERCLAIMS SUBMITTED TO ARBITRATION.

(Emphasis in original.)

On August 29, 2013, Cornerstone filed in the trial court an application for confirmation of the arbitration award and a request for attorney fees and expenses under OCGA § 9-11-68. Cornerstone asserted that after it made its written offer of settlement, it incurred $67,268.41 in attorney fees and expenses during the arbitration process. In support of its claim for fees and costs, Cornerstone submitted the affidavit of its attorney and other documentary evidence. The Alessis opposed the request for attorney fees and costs, arguing that OCGA § 9-11-68 did not apply to claims decided through binding arbitration. Following a hearing, the trial court entered an order confirming the arbitration award and awarding Cornerstone attorney fees and costs incurred between June 12, 2012 and April 8, 2013. The trial court subsequently entered a final judgment in favor of Cornerstone and against the Alessis in the amount of $67,268.41. The Alessis now appeal from that order of judgment.

The sole issue on this appeal is whether OCGA § 9-11-68 applies to claims decided through binding arbitration, rather than through traditional civil litigation. The offer of judgment statute provides, in relevant part:

(a) At any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon the other party, but shall not file with the court, a written offer, denominated as an offer under this Code section, to settle a tort claim f] for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly. . . .
(b) (1) If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rej ection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

OCGA § 9-11-68 (a), (b) (1).

In determining whether this statute applies to cases that are subject to binding arbitration, we bear in mind that “[t]he cardinal rule” of statutory construction “is to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” RadioShack Corp. v. Cascade Crossing II, 282 Ga. 841, 843 (653 SE2d 680) (2007) (citation and punctuation omitted). With respect to the legislature’s intent,

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would... . Applying these principles, if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.

Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). Moreover, because OCGA § 9-11-68 entitles one party to an award of attorney fees and costs, it “is in derogation of common law . . . [and] it must be strictly construed against the award of such damages.” Joyner v. Raymond James Financial Svcs., 268 Ga. App. 835, 838-839 (2) (602 SE2d 871) (2004) (citation and punctuation omitted). See also Heard v. Neighbor Newspapers, 259 Ga. 458, 459 (5) (b) (383 SE2d 553) (1989).

Here, the plain language of OCGA § 9-11-68 reflects that the legislature contemplated that it would apply only in the context of traditional civil litigation and not in the context of alternative dispute resolution. Notably, the time frame in which a settlement offer must be made is “30 days after the service of a summons and complaint... but not less than 30 days . . . before trial.” (Emphasis supplied.) Service of a summons and complaint, of course, is the way in which a traditional civil lawsuit is initiated. Binding arbitration, however, is not initiated in this fashion. As the record in this case reflects, binding arbitration is initiated by the filing of a demand for arbitration. And there is no requirement that a claimant filing such a demand perfect service thereof in the same way that a civil litigant must perfect service of a summons and complaint.

Furthermore, an arbitration proceeding is not a trial. As the parties’ agreement to arbitrate acknowledges, arbitration differs from a trial in that it is usually more economical and affords the parties more privacy and flexibility. There are also significant substantive and procedural differences between an arbitration proceeding and a trial. As the United States Supreme Court has explained,

arbitral factfinding is generally not equivalent to judicial factfinding____[T]he record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable.

McDonald v. City of West Branch, Mich., 466 U. S. 284, 291 (II) (B) (104 SCt 1799, 80 LE2d 302) (1984) (citations and punctuation omitted). See also Greene v. Hundley, 266 Ga. 592, 595 (2) (468 SE2d 350) (1996) (“arbitrating parties agree to waive certain such rights in favor of a quick resolution of their dispute by extralegal means. Indeed, ... by electing arbitration, the parties can agree to waive certain constitutional and procedural rights to which they would be entitled in a judicial forum, such as the right to trial by a jury”) (footnote omitted). And unlike a judgment rendered in the trial court, judicial review of an arbitration award is extremely limited. Id. at 597 (3) (arbitration is not “subject to traditional rules of appellate review” and a court in a confirmation proceeding may not determine whether there is sufficient evidence to support an arbitration award); OCGA § 9-9-13 (d) (“[t]he fact that the relief [awarded by the arbitrator] was such that it could not or would not be granted by a court of law or equity is not ground for [a reviewing court’s] vacating or refusing to confirm the award”). Thus, despite Cornerstone’s arguments to the contrary, the mere fact that an arbitration award is subject to a confirmation proceeding in a court of law does “not make arbitration a part of the judicial process. ... To the contrary, arbitration is a unique procedure that exists in Georgia due to legislative fiat, and it is conducted in accordance with the rules established by the legislature.” Greene, 266 Ga. at 597 (3).

Additionally, the General Assembly’s failure to include any reference to arbitration proceedings in the express language of OCGA § 9-11-68 also supports our conclusion that the legislature did not intend that statute to apply in the context of arbitration. We presume that the General Assembly enacted OCGA § 9-11-68 “with full knowledge of the existing condition of the law and with reference to it,” and we therefore must construe that statute “in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence”; its “meaning and effect is to be determined in connection... with reference to other statutes and decisions of the courts.” Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93 (1) (327 SE2d 188) (1985) (citations and punctuation omitted). Here, we note that OCGA §§ 9-9-12, 9-9-13, and 9-9-14, which address the judicial confirmation, vacation, and modification of an arbitration award, were in existence at the time the legislature adopted the offer of judgment statute as part of the 2006 Tort Reform Act. Accordingly, at the time it enacted OCGA § 9-11-68, the General Assembly was aware that arbitration awards can result in judgments of the court. Despite this knowledge, however, the legislature did not include settlement offers made during the course of arbitration within the express provisions of OCGA § 9-11-68. Theabsence of any such express language further confirms our conclusion that this statute does not apply to offers to settle claims subject to binding arbitration.

In light of the foregoing, we conclude that the General Assembly did not intend OCGA § 9-11-68 to apply to awards resulting from arbitration proceedings. We therefore reverse the order of the trial court granting Cornerstone’s petition for attorney fees and costs under OCGA § 9-11-68 and the related judgment in favor of Cornerstone and against the Alessis.

Judgment reversed.

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

Decided November 13, 2015.

Power-Jaugstetter, Patrick D. Jaugstetter, for appellants.

Bendin Sumrall & Ladner, Stephen T. Snow, Jennifer C. Beilis, for appellee.

       In their brief, the Alessis argue that because at least three of the claims they asserted against Cornerstone (breach of contract, breach of an oral agreement, and breach of warranty) were contractual claims, Cornerstone is not entitled to recover any fees or costs associated with the defense of those claims. In light of our conclusion that OCGA § 9-11-68 does not apply to claims decided through arbitration, however, we need not decide this issue.

       In its brief, Cornerstone correctly notes that a proceeding to confirm an arbitration award is a special statutory proceeding and is therefore subject to the provisions of the Civil Practice Act. See OCGA § 9-Í1-81 (the Civil Practice Act “shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law”); Hardin Constr. Group v. Fuller Enterprises, 265 Ga. 770, 772 (462 SE2d 130) (1995). Cornerstone then reasons that because OCGA § 9-11-68 is part of the Civil Practice Act, it should apply to arbitration proceedings. The flaw in this argument is that the arbitration proceeding itself, unlike the confirmation proceeding, is not subject to the Civil Practice Act. See LecStar Telecom v. Grenfell, 273 Ga. App. 712, 713 (1) (616 SE2d 482) (2005) (although the legislature incorporated portions of the Civil Practice Act into the statutory framework for confirming an arbitration award, the Georgia Arbitration Code “contains certain procedural rules uniquely tailored to arbitration”); Joyner, 268 Ga. App. at 840 (2), n. 6 (“[f] ederal and state rules of civil procedure often do not apply in arbitration proceedings or are severely limited”). And the offer of settlement that resulted in Cornerstone’s petition for attorney fees and costs occurred during the course of the underlying arbitration, not in the course of the confirmation proceeding.

       We note that our holding is in accord with the appellate courts of several other states, each of which has held that an offer of judgment statute has no application to settlement offers made in the context of binding arbitration. See Nunno v. Wixner, 778 A2d 145, 148-149 (Conn. 2001) (rejecting the plaintiff’s contention that court-ordered arbitration should be viewed as a “civil action,” to which Connecticut’s offer of judgment statute applied); Lane v. Williams, 621 NW2d 922, 925-926 (Wis. 2000) (Wisconsin’s offer of judgment statute, which expressly applies to settlement offers made prior to “trial,” was inapplicable to an arbitration proceeding, as such a proceeding does not involve a trial); Mackie v. Chizmar, 965 P2d 1202, 1206 (III) (B) (2) (Alaska 1998) (holding that Alaska’s offer of judgment statute was not applicable to claims decided through binding arbitration and noting that such an interpretation of the statute “furthers the [law’s] purposes because it encourages parties ... to choose dispute resolution methods that avoid unnecessary litigation”).


text:
    A15A1248.
    REYNOLDS v. THE STATE.
    (779 SE2d 712)
   Branch, Judge.

Jeremy Reynolds was tried by a DeKalb County jury and convicted on two counts of violating his oath as a public officer. He now appeals, claiming that the trial court erred in denying his motion for a directed verdict of acquittal because the evidence was insufficient to sustain his conviction. Reynolds further contends that the trial court violated his right to due process by limiting the number of questions that could be asked during general voir dire. For reasons explained below, we find no error and affirm.

“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga. App. 58, 58 (739 SE2d 68) (2013) (citation omitted). So viewed, the record shows that from March 2008 through at least January 2010, Reynolds served as a DeKalb County police officer. In September 2009, Reynolds, while in uniform and on patrol, stopped L. W. as she was walking down a street at approximately 1:30 a.m. Reynolds asked L. W. if she had any drugs in her possession; L. W. responded affirmatively, removed a small bag of marijuana from her pocket, and placed it on the back of Reynolds’s patrol car. Reynolds then told L. W. that either he could take her to jail or she could perform oral sex on him. When L. W. elected not to go to jail, Reynolds drove her in his patrol car to behind a nearby building, where L. W. performed oral sex on the officer.

In January 2010, Reynolds performed a traffic stop of a car driven by Y. R. A check of Y. R.’s license showed an outstanding warrant for her arrest resulting from her failure to pay a fine imposed for a traffic violation. Reynolds handcuffed Y. R. and placed her in the back of his patrol car. He then proceeded to tell Y. R. that he did not want to do the paperwork associated with her arrest; that because it was Friday, if he took her to jail she would likely be there over the weekend; and that if he arrested her, her car would be impounded. Reynolds then removed the handcuffs from Y. R. and told her that if she showed him her breasts, he would not arrest her. When Y. R. refused, Reynolds handcuffed her a second time and pulled up her shirt. During the incident, Y R. observed that the officer’s name plate said “Reynolds.” After molesting Y. R., Reynolds arrested her and took her to jail.

Both of Reynolds’s victims eventually reported these incidents to the DeKalb County Police, and each victim subsequently identified Reynolds from a photographic lineup as her assailant. Following an investigation, officers with the county’s Special Victims Unit questioned Reynolds. During that interview, which was recorded and played for the jury at trial, Reynolds admitted that he had given both victims a choice between complying with his request for sexual contact or going to jail. Reynolds was subsequently arrested and indicted on one count of aggravated sodomy and two counts of violating his oath as a public officer.

Prior to jury selection, the trial court informed both parties that a number of general questions had been posed to the jury by way of a written questionnaire and that the responses of each potential juror would be provided to counsel. The trial court further informed the parties that each could ask no more than ten questions during general voir dire. The court imposed no limit on the number of questions that either side could pose to a potential juror when questioning that juror individually. Defense counsel objected to the limitation on questions that could be asked during general voir dire, but the trial court overruled that objection.

With respect to Reynolds’s alleged violation of his oath of office, the State presented evidence showing that on March 11, 2008, Reynolds took the “Sworn Oath of Office” of the DeKalb County Police Department and that he signed a written copy of the same. In that oath, Reynolds swore, among other things, that he would “faithfully enforce the laws of the State of Georgia and ... faithfully perform all the duties of my office, and... faithfully observe all the rules, orders [,] and regulations of the DeKalb County Police Department.” Officer Mark West, the chief instructor at the DeKalb County Police Academy, administered the oath to Reynolds and witnessed Reynolds’s signature on the written copy. West testified that all DeKalb County Police Department recruits must complete the Academy training, which takes 26 weeks. On the first day of Academy training, all recruits are issued an employee manual containing the rules and regulations of the DeKalb County Police Department. The rules and regulations contained in the employee manual address what is appropriate and inappropriate conduct for police officers. According to West, it would be a violation of DeKalb County Police Department rules for a police officer to have either consensual or nonconsensual sex while on duty; to solicit sex or any kind of sexual favor; to barter over whether to take someone to jail; and to ask a woman in custody to show the officer her breasts.

At the close of the State’s case, Reynolds moved for a directed verdict of acquittal. In support of this motion, defense counsel argued that the State had failed to prove that Reynolds had violated his oath of office because it had failed to introduce into evidence a copy of any specific rule, regulation, or order that Reynolds’s alleged conduct had violated. The trial court denied that motion, finding the State had presented sufficient evidence to submit these counts to the jury.

Reynolds then testified in his own defense and acknowledged that L. W. had performed oral sex on him while he was on duty, but insisted that the contact had been consensual. Reynolds denied that the incident with Y. R. had occurred. On cross-examination, Reynolds acknowledged that having consensual sex while on duty would be inappropriate conduct for an officer; that he had previously engaged in consensual sex while on duty; that if he had offered L. W. a choice between going to jail and performing oral sex on him, that conduct would violate his oath of office; and that if he had offered Y. R. a choice between going to jail and showing him her breasts, that conduct would violate his oath of office.

The jury acquitted Reynolds of aggravated sodomy but found him guilty of the two counts of violating his oath of office. The trial court entered judgment on the jury’s verdict, and Reynolds now appeals his conviction.

1. Reynolds first argues that the trial court erred in denying his motion for a directed verdict of acquittal because the evidence was insufficient to convict him of violating his oath of office. We disagree. With respect to this claim of error,

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. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

King v. State, 325 Ga. App. 777, 781 (1) (755 SE2d 22) (2014) (citation and punctuation omitted). See also Dorsey v. State, 279 Ga. 534, 542 (3) (615 SE2d 512) (2005) (“[t]he standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence is challenged”).

The Code section under which Reynolds was convicted, OCGA § 16-10-1, makes it illegal for any public officer to “willfully and intentionally violate [ ] the terms of his oath as prescribed by law.” As this Court has previously explained, to convict an officer of violating OCGA § 16-10-1, the State must prove that the defendant was actually administered an oath, that the oath was “prescribed by law,” and that the officer violated the terms of that oath. See Bradley v. State, 292 Ga. App. 737, 740 (2) (665 SE2d 428) (2008). On appeal, Reynolds does not dispute the terms of the oath, that he was administered the oath, or that the oath was one prescribed by law. Rather, he contends that the State failed to prove that he violated that part of the oath which required him to “faithfully observe all the rules, orders [,] and regulations of the DeKalb County Police Department.” Specifically, Reynolds argues that the State could not prove a violation of this part of his oath without introducing into evidence a certified copy of the rule, order, or regulation he allegedly violated. Reynolds’s argument as to the sufficiency of the evidence fails.

The cases relied on by Reynolds to support the proposition that the State was required to introduce a certified copy of one or more specific rules, orders, or regulations that his conduct allegedly violated are inapposite. Unlike the case at hand, which involves a criminal prosecution under state law, the cases relied upon by Reynolds each involved the attempted enforcement of a city or county ordinance or regulation. See Sweeney v. Lowe, 325 Ga. App. 883, 883 (755 SE2d 813) (2014) (where plaintiff’s personal-injury lawsuit was predicated on the defendant’s alleged violation of a county ordinance, the plaintiff bore the burden of proving the terms of that ordinance by introducing into evidence a certified copy of the same); Morrow v. Angkawijana, LLC, 327 Ga. App. 1, 5-6 (755 SE2d 561) (2014) (same); Reed v. State, 229 Ga. App. 817, 818-819 (a) (495 SE2d 313) (1997) (where defendant was charged in state court with violating a city ordinance, the prosecution was required to prove the terms of that ordinance by introducing a certified copy thereof). Thus, each of these cases was applying the well-established rule that “[n] either the superior courts nor the appellate courts [of this State] can adjudicate a claim or defense based on a city [or county] ordinance unless the ordinance has been properly presented.” Whitfield v. City of Atlanta, 296 Ga. 641, 641 (769 SE2d 76) (2015) (emphasis supplied). See also Davis & Shulman’s Ga. Practice & Procedure, § 7:9 (2015-2016 ed.) (“[p]roof of law or regulations, other than [OCGA] and state regulations promulgated under the Administrative Procedures Act and published by the Secretary of State as the Official Regulations of the State of Georgia, must be pled and proved..., because judicial notice cannot be taken of rules, regulation, and ordinances not authorized for publication”).

Reynolds, however, was not being prosecuted for a violation of a DeKalb County rule, ordinance, or regulation. The State, therefore, was not required to introduce into evidence the terms of any such rule, ordinance, or regulation. Instead, the prosecution had to prove only that Reynolds engaged in the conduct alleged in the indictment and that such conduct violated his oath of office. Here, Reynolds admitted he took an oath that required him to “faithfully observe all the rules, orders[,] and regulations of the DeKalb County Police Department.” Additionally, Officer West testified that these rules, orders, and regulations were contained in an employee manual given to all recruits, including Reynolds, at the time they entered the police academy; that Reynolds completed the 26-week-long police academy training course, during which these rules, orders, and regulations were reviewed in depth; and that the conduct of which Reynolds was accused would constitute a violation of those rules, orders, and regulations. Moreover, Reynolds himself admitted at trial that the conduct of which he was accused would constitute a violation of his oath of office. Accordingly, the evidence was sufficient to sustain Reynolds’s convictions for violating OCGA § 16-10-1. See Bradley, 292 Ga. App. at 740-741 (2) (testimony by a witness with the requisite knowledge that certain conduct would constitute a violation of the oath of office taken by the defendant, a corrections officer, was sufficient to convict the defendant of violating OCGA § 16-10-1).

2. Reynolds also contends that the trial court erred in limiting the number of his general voir dire questions to no more than ten. Again, we disagree.

The sole purpose of voir dire is to provide both parties with an opportunity to determine “the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination.” Sallie v. State, 276 Ga. 506, 510 (3) (578 SE2d 444) (2003) (citation and punctuation omitted). See also Henderson v. State, 251 Ga. 398, 399-400 (1) (306 SE2d 645) (1983) (“the larger purpose” of voir dire “is to enable counsel to identify those prospective jurors counsel desires to remove from the panel by use of peremptory strikes as opposed to challenges for cause”); OCGA § 15-12-133. While a defendant must be “permitted to ask sufficient questions to determine the fairness and impartiality of the prospective jurors,” Terrell v. State, 276 Ga. 34, 38 (3) (572 SE2d 595) (2002), the appropriate scope of voir dire in a particular case is left to the sound discretion of the trial judge. Arrington v. State, 286 Ga. 335, 338 (7) (687 SE2d 438) (2009). And absent some showing that the court abused its discretion, we presume its rulings as to the scope of voir dire are correct. Meeks v. State, 269 Ga. App. 836, 836-837 (1) (605 SE2d 428) (2004), citing Gatlin v. State, 236 Ga. 707, 708 (2) (225 SE2d 224) (1976). See also Ellington v. State, 292 Ga. 109, 127 (7) (b) (735 SE2d 736) (2012) (“appellate courts should give substantial deference to the decisions made by trial judges, who oversee voir dire on a regular basis, are more familiar with the details and nuances of their cases, and can observe the parties’ and the prospective jurors’ demeanor”). Accordingly, a criminal defendant alleging that the trial court erred in limiting his voir dire bears the burden of demonstrating that an abuse of discretion occurred — i.e., the defendant must show that the trial court prevented him from asking one or more questions that would have allowed him to explore a potential juror’s bias. See Williams v. State, 287 Ga. App. 361, 362 (2) (651 SE2d 768) (2007) (“[i]n criminal appeals, as in civil ones, the burden is on the appellant” to show his asserted error “affirmatively by the record”) (citation and punctuation omitted); Sanders v. State, 204 Ga. App. 37, 38 (1) (419 SE2d 24) (1992). If the defendant makes such a showing, the burden then shifts to the State to “show that it is ‘highly probable’ that the limitation of voir dire did not contribute to the verdict.” Hunt v. State, 215 Ga. App. 677, 677 (451 SE2d 797) (1994).

Decided November 13, 2015.

The Patterson Firm, Jackie G. Patterson, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistant District Attorney, for appellee.

Here, Reynolds has failed to show any abuse of discretion by the trial court in limiting his general voir dire. Although Reynolds objected at trial to the ten-question limit for general voir dire, he did not identify for the trial court any questions he wished to ask during general voir dire that would have put him over the ten-question limit. Moreover, Reynolds was allowed to pose as many questions as he liked when each of the potential jurors was questioned individually. And a review of the record shows that the relatively lengthy voir dire which occurred in this case “was sufficient to ascertain the fairness and impartiality of the prospective jurors.” Sallie, 276 Ga. at 510 (3) (footnote omitted). Accordingly, we find no abuse of discretion by the trial court in limiting general voir dire. Id. See also Terrell, 276 Ga. at 38 (3) (trial court did not abuse its discretion in limiting voir dire where the defendant “was permitted to ask sufficient questions to determine the fairness and impartiality of the prospective jurors”) (footnote omitted).

Judgment affirmed.

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

       The jury acquitted Reynolds of one count of aggravated sodomy.

       We also note that Reynolds’s oath of office required him to “faithfully perform all the duties of [his] office.” Although the indictment did not charge Reynolds with violating this part of his oath, the evidence would have supported a conviction on such a charge. Specifically, based on the evidence, the jury could have concluded that hy abusing his authority in an effort to coerce sexual favors from women who were subject to arrest, Reynolds failed to faithfully perform the duties of his office. See Gaskins v. State, 318 Ga. App. 8, 11-12 (2) (733 SE2d 338) (2012) (evidence showing that police officer abused her authority by accessing a police department database to obtain the personal identification information of a third party and then using that information to commit financial identity fraud showed that she violated that part of her oath requiring her to “faithfully perform and discharge the duties of [her] position”). See also Brandeburg v. State, 292 Ga. App. 191, 195 (2) (b) (663 SE2d 844) (2008) (indictment was sufficient to charge a violation of OCGA § 16-10-1 where it alleged that the officer’s conduct in failing to turn in weapons seized during a police raid constituted a violation of his oath of office, which required him to “faithfully administer and discharge the duties of his office”); Murkerson v. State, 264 Ga. App. 701, 702 (2) (592 SE2d 184) (2003) (indictment was sufficient to charge a violation of OCGA § 16-10-1 where it alleged that a jailer had delivered cigarettes to an inmate in exchange for marijuana; such conduct, if proven, would violate that part of the jailer’s oath of office requiring him to “ ‘well and truly perform’ his job”).

       That statute provides, in relevant part:
      ... In all criminal cases, both the state and the accused shall have the right to an individual examination of each prospective juror from which the jury is to be selected prior to interposing a challenge. The examination shall be conducted .. . in criminal cases after the usual voir dire questions have been put by the court. In the examination, the counsel for either party shall have the right to inquire of the individual prospective jurors examined touching any matter or thing which would illustrate any interest of the prospective juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the prospective juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the prospective juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the prospective juror.
      OCGA § 15-12-133.


author: Dillard, Judge.

text:
    A15A1280.
    FINCHER ROAD INVESTMENTS, LLLP v. CITY OF CANTON.
    (779 SE2d 717)
   Dillard, Judge.

Fincher Road Investments, LLLP (“Fincher Road”) appeals the trial court’s order on pre-trial issues in a case arising from a condemnation action brought against it by the City of Canton (“the City’). Following protracted litigation between the parties (including a prior appeal to this Court), the City sought to dismiss its condemnation action. Fincher Road appeals the trial court’s ruling that it is only entitled to attorney fees and costs of litigation but no compensation for any taking of the property. We agree that the trial court erred and, for the reasons set forth infra, we affirm in part and reverse in part.

The record reflects that on October 11, 2010, the City filed a petition for condemnation and declaration of taking with respect to property owned by Fincher Road. The City deposited $787,400 with the trial court, which it estimated to be just and adequate compensation for the property. On October 25,2010, the court issued an order and judgment upon the petition, declaring that title had vested in the City and that the City had the right of possession as to the property. On November 22, 2010, Fincher Road filed a notice of appeal to the court’s order as to the value of the condemned property. That same day, Fincher Road also filed a petition to set aside the declaration of taking, contending that the declaration was improper for a number of reasons.

At a hearing convened on December 7, 2010, and later in a written February 28,2011 order, the trial court denied and dismissed Fincher Road’s petition to set aside the declaration of taking based upon a failure to give the City 15 days’ notice prior to the scheduled hearing. This Court then granted Fincher Road’s application for interlocutory appeal of that dismissal. In that appeal, we determined that a superior court has “the discretion to hold a hearing and consider the merits of the petition if the rule nisi was not issued and served upon the condemnor a full 15 days before the hearing.” As a result, we remanded the case to the trial court to consider whether, “in the exercise of its discretion and considering the attendant circumstances ..., [Fincher Road] should be afforded an opportunity for a hearing and a decision on the merits of [its] petition [ ] to set aside the declaration of taking.”

A remittitur was issued to the trial court on April 12, 2012. On that same day, the City filed with the trial court a motion to set aside the order on the petition for condemnation, asserting that it had determined condemnation of the property was “no longer necessary for public use.” The City also concurrently filed a notice of dismissal as to its condemnation action, relinquishing all rights to the property. In its motion to set aside the condemnation judgment, the City asked that the court have the clerk disburse to it the previously deposited funds. Fincher Road filed a motion in opposition, contending that it was entitled to compensation for the City’s temporary taking of its property prior to dismissal. Thus, Fincher Road opposed the City’s request for disbursement of funds. Fincher Road also filed a motion for attorney fees and costs of litigation.

In an order on pre-trial issues, the trial court determined that Fincher Road was entitled to attorney fees and costs of litigation under OCGA § 22-1-12 but was not entitled to any other compensation. Thereafter, the court ordered that the case proceed to trial solely to determine the a mount of attorney fees and costs of litigation. This Court granted Fincher Road’s application for interlocutory appeal, which we will now consider.

Our analysis necessarily begins with the Takings Clause of the Fifth Amendment to the United States Constitution, which provides that private property shall not “be taken for public use, without just compensation.” Suffice it to say, private property rights are among “the most basic of human rights,” and it is the “charge of the courts to defend them vigilantly.” A classic taking is, of course, one in which “the government directly appropriates private property for its own use.” In this respect, the Supreme Court of the United States has explained that the Takings Clause is designed “not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Thus, governmental action that works a taking of property “necessarily implicates the ‘constitutional obligation to pay just compensation.’ ”

Consistent with this cherished constitutional safeguard, the Supreme Court of the United States has recognized that, “though the classic taking is a transfer of property to the State or to another private party by eminent domain, the Takings Clause applies to other state actions that achieve the same thing.” And the government “takes” property within the meaning of the Fifth Amendment when it “uses its own property in such a way that it destroys private property,” enacts a regulation that “forces a property owner to submit to a permanent physical occupation [cit.] or deprives him of all economically beneficial use of his property,” or “recharacterize [s] as public property what was previously private property.” Thus, the federal Supreme Court has concluded that “the particular state actor is irrelevant,” and that “[i]f a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”

But the Supreme Court of the United States has also recognized in more than one case that “the government may elect to abandon its intrusion or discontinue regulations.” Nevertheless, even such temporary takings are not “different in kind from permanent takings, for which the Constitution clearly requires compensation.” It is well established, then, that when “the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.”

Here, the City elected to acquire the subject property by filing a declaration of taking, which “allows the government to take title immediately by filing a petition and declaration of taking and paying into the court registry just and adequate compensation as determined by its own appraisal.” Indeed, under OCGA § 32-3-7,

[u]pon the filing of the declaration of taking and the deposit into court, which deposit shall be made at the time the declaration of taking is filed to the use of the persons entitled thereto, of the sum of money estimated in the declaration by the condemning authority to be just compensation, title to the property in fee simple absolute or such lesser interest as is specified in the declaration shall vest in the condemnor; the land shall be deemed to be condemned and taken for the use of the condemnor; and the right to just compensation for the same shall vest in the persons entitled thereto.

Likewise, OCGA § 32-3-13 provides: “No judgment of any court and no order or ruling of the judge thereof shall be necessary to give effect to the declaration of taking provided for in Code Section 32-3-6; but the same shall be self-executing, subject, however, to the power of the court as provided for in Code Section 32-3-11.” The latter Code section authorizes a superior-court judge to, upon proper pleadings and evidence, “set aside, vacate, and annul the declaration of taking, together with any title acquired thereby ... .” This may be done in situations of “fraud or bad faith, the improper use of the condemnation powers, the abuse or misuse of the condemnation powers, and such other questions as may properly be raised.”

As discussed supra, Fincher Road challenged the City’s petition and declaration of taking under OCGA § 32-3-11, but the trial court dismissed Fincher Road’s challenge for a failure to comply with the procedural requirements of OCGA § 32-3-11 (c). We then remanded to the trial court to exercise its discretion under OCGA § 32-3-11 (c) and determine whether Fincher Road was nevertheless entitled to a hearing on its challenge. But because the City dismissed its condemnation proceeding concurrent with receipt of the remittitur, the trial court never determined whether it would — or should — exercise its authority to “set aside, vacate, and annul the declaration of taking, together with any title acquired thereby[.]”

When a condemning authority abandons its condemnation proceeding, the court with jurisdiction

shall award the owner of any right or title to or interest in such real property such sum as will in the opinion of the court reimburse such owner for his or her reasonable costs and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings [.]

The City argued below, and argues again on appeal, that these statutory damages limit Fincher Road’s recovery.

The trial court agreed with the City that Fincher Road was only entitled to recover attorney fees and costs of litigation under OCGA § 22-1-12 and that Fincher Road, contrary to its contention, was not entitled to any other compensation for a temporary taking of its property. Indeed, the trial court concluded that any compensation beyond attorney fees and costs “would be a windfall” because Fincher Road would be fully compensated by receipt of attorney fees and costs. We disagree with this conclusion, and we reject the City’s arguments that Fincher Road should not be compensated for a taking it contended was a nullity.

In a recent opinion authored by Justice David Nahmias, our Supreme Court recognized that OCGA § 22-1-12 “was enacted as part of the 2006 ‘Landowner’s Bill of Rights and Private Property Protection Act,’ which expanded property owners’ protections against condemnation rather than limiting those safeguards.” Instead, OCGA § 22-1-12 functions to “reallocate the costs imposed on the condemnor and the condemnee if the condemnor abandons a condemnation action at any point.” And unlike most plaintiffs, “condemnors that abandon their actions must . . . pay the property owner’s reasonable costs and expenses actually incurred because of the condemnation proceedings, including attorney, appraisal, and engineering fees.” Here, while the City’s abandonment of its action undoubtedly entitled Fincher Road to damages under OCGA § 22-1-12, the City’s abandonment and obligation to pay those statutory damages in no way relieved it of “the duty to provide compensation for the period during which the taking was effective.”

Indeed, while it is certainly true, as our Supreme Court has held, that a declaration of taking that fails to strictly comply with statutory requirements “cannot vest title to the land in the condemnor,” a trial court must still be presented with the issue of compliance so that it may make a determination as to same and actually exercise its authority to set aside, vacate, or annul a declaration of taking. But given the timing of the City’s dismissal, that never occurred in this case. Accordingly, Fincher Road is entitled to just and adequate compensation for the City’s temporary taking of its property, and OCGA §22-1-12 in no way acts to limit Fincher Road’s right of recovery in this regard.

Decided November 13, 2015

Flint, Connolly & Walker, Douglas H. Flint, JohnF. Connolly; Lee & Ziegler, Konrad G. W. Ziegler, for appellant.

Dyer & Rusbridge, Robert M. Dyer, Alicia M. Argo; Haynie, Litchfield, Crane & White, Douglas R. Haynie, Daniel W. White, for appellee.

For all of the foregoing reasons, we affirm the portion of the trial court’s order determining that Fincher Road was entitled to attorney fees and costs of litigation under OCGA § 22-1-12, but we reverse the court’s ruling that Fincher Road was not entitled to any additional compensation for the government’s temporary taking of its property.

Judgment affirmed in part and reversed in part.

McFadden, J., concurs. Ellington, P. J., concurs in judgment only.

        See Fincher Road Invs., LLLP v. City of Canton, 314 Ga. App. 852 (726 SE2d 120) (2012).

       The City also filed petitions against others who are not parties to this appeal.

        Fincher Road Invs., 314 Ga. App. at 853.

        Id.

       U. S. Const, amend. V; see also Ga. Const. Art. I, Sec. Ill, Par. I (a) (“Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”); Horne v. Dep’t of Agric.,_U. S. _,_(II) (A) (1) (135 SCt 2419, 192 LE2d 388) (2015) (“the principle reflected in the [Takings] Clause goes back at least 800 years to the Magna Carta . .. .”); Letter from William Pierce to St. George Tucker (Sept. 28, Í787), Gazette of the State of Ga., Mar. 20, 1788, excerpted, in Thurston Greene, The Language of the Constitution 614 (1991) (“I conceive civil liberty is sufficiently guarded when personal security, personal liberty, and private property, are made the peculiar care of government.”).

       William K. Lane III, ‘Your Raisins or Your Life”: The Harrowing of the Takings Clause in Horne v. U. S. Department of Agriculture, 750 F.3d 1128 (9th Cir. 2014), 38 Harv. J. Law & Pub. Pol’y 761, 761 (2015) (quoting Milton Friedman & Rose D. Friedman, Two Lucky People: Memoirs 605 (1998)).

       Lane, supra note 6, at 761; see also John Locke, The Second Treatise, Two Treatises of Government § 124 (Peter Laslett ed., Cambridge Univ. Press 1960) (1698) (“The great and chief end, therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.”).

        Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U. S. 302, 324 (TV) (122 SCt 1465, 152 LE2d 517) (2002) (quoting E. Enters. v. Apfel, 524 U. S. 498, 522 (TV) (A) (118 SCt 2131, 141 LE2d 451) (1998)).

        First English Evangelical Lutheran Church of Glendale v. Cty. of Los Angeles, 482 U. S. 304, 315 (II) (107 SCt 2378, 96 LE2d 250) (1987); see also Armstrong v. United States, 364 U. S. 40, 49 (III) (80 SCt 1563, 4 LE2d 1554) (1960) (“The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”); Mayor & City Council of Baltimore City v. Valsamaki, 916 A2d 324, 335 (II) (Md. 2007) (“The right to private property, and the protection of that right, is a bedrock principle of our constitutional republic.”).

        First English Evangelical Lutheran Church of Glendale, 482 U. S. at 315 (II); see also Pa. Coal Co. v. Mahon, 260 U. S. 393, 415 (43 SCt 158, 67 LE 322) (1922) (“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”).

        Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U. S. 702, 713 (II) (A) (130 SCt 2592, 177 LE2d 184) (2010).

        Id. (citing United States v. Causby, 328 U. S. 256, 261-62 (66 SCt 1062, 90 LE 1206) (1946); Pumpelly v. Green Bay Co., 80 U. S. 166 (20 LE 557) (1872)).

        Id. (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 425-26 (102 SCt 3164, 73 LE2d 868) (1982); Lucas v. SC Coastal Council, 505 U. S. 1003, 1019 (112 SCt 2886, 120 LE2d 798) (1992)).

        Id. (citing Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 163-65 (101 SCt 446, 66 LE2d 358) (1980)).

        Id. at 715 (II) (A) (emphasis omitted).

        Id. (emphasis omitted).

        First English Evangelical Lutheran Church of Glendale, 482 U. S. at 318 (II) (citing Kirby Forest Indus., Inc. v. United States, 467 U. S. 1, 5 (104 SCt 2187, 81 LE2d 1) (1984); United States v. Dow, 357 U. S. 17, 26 (78 SCt 1039, 2 LE2d 1109) (1958)).

        Id.

         Id. at 321 (II); see also Dow, 357 U. S. at 26 (“[Abandonment does not prejudice the property owner. It merely results in an alteration in the property interest taken — from full ownership to one of temporary use and occupation. In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily.” (citations omitted)); Cobb Cty. v. McColister, 261 Ga. 876, 877 (413 SE2d 441) (1992) (recognizing that the Supreme Court of the United States has “held that the Fifth Amendment’s Just Compensation Clause require [s] the government to provide just compensation for a temporary taking that denie[s] a landowner all use of his property’).

        See OCGA § 32-3-6 (providing the requirements of a declaration of taking, which must be filed in addition to a petition under OCGA § 32-3-4); see also OCGA §§ 32-3-4 (referring to petition for taking); 32-3-5 (providing requirements of petition referred to in OCGA § 32-3-4).

        Windsor v. City of Atlanta, 287 Ga. 334, 335 n.1 (695 SE2d 576) (2010) (emphasis supplied); see also Dorsey v. Dep’t of Transp., 248 Ga. 34, 36(279 SE2d 707) (1981) (“The petition is not a mere pleading but an instrument which passes title when filed and just and adequate compensation is paid into [the] court. . ..”).

       OCGA § 32-3-7 (a) (emphasis supplied).

       OCGA § 32-3-13 (a).

       OCGA§ 32-3-11 (a).

        City of Atlanta v. Yusen Air & Sea Serv. Holdings, Inc., 263 Ga. App. 82, 82 (1) (587 SE2d 230) (2003) (punctuation omitted); see also OCGA § 32-3-11 (b) (providing the questions upon which the power described in subsection (a) is restricted).

        See Fincher Road Invs., 314 Ga. App. at 853; see also OCGA § 32-3-11 (c) (providing the procedural requirements for a condemnee’s challenge brought under subsection (b)).

       OCGA § 32-3-11 (a).

       OCGA § 22-1-12.

        Dillard Land Invs., LLC v. Fulton Cty., 295 Ga. 515, 522-23 (2) (c) (761 SE2d 282) (2014); see also U. S. Const. Art. VI (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . .”); Ga. Const. Art. Ill, Sec. VI, Par. I (“The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.”).

        Dillard Land Invs., 295 Ga. at 523 (2) (c).

        Id.

        First English Evangelical Lutheran Church of Glendale, 482 U. S. at 321 (II).

        Dorsey, 248 Ga. at 37.

        Cf. Postell v. Bd. of Comm’rs of Houston Cty., 317 Ga. App. 898, 899 (1) (732 SE2d 303) (2012) (holding that, notwithstanding appellant’s contention that County failed to comply with statutory requirements, appellant had no standing to challenge declaration of taking because he had no interest in the property at the time declaration was filed, and title accordingly passed upon the filing of same); Yusen Air & Sea Serv. Holdings, 263 Ga. App. at 84 (holding that trial court properly set aside the taking of appellee’s property when City failed to comply with OCGA § 32-3-6 and, accordingly, City’s declaration of taking could not vest title in the City).

        See Dow, 357 U. S. at 26 (“[A]bandonment does not prejudice the property owner. It merely results in an alteration in the property interest taken — from full ownership to one of temporary use and occupation. In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily.” (citations omitted)); McCalister, 261 Ga. at 877 (recognizing that the Supreme Court of the United States has ‘held that the Fifth Amendment’s Just Compensation Clause require[s] the government to provide just compensation for a temporary taking that denie[s] a landowner all use of his property’).


text:
    A15A1425.
    BROWN v. THE STATE.
    (779 SE2d 723)
   Branch, Judge.

Raymond J. Brown was arrested for driving under the influence of alcohol. He moved to suppress the State’s alcohol breath test results. The trial court denied the motion but certified the order for immediate review. We granted Brown’s application for interlocutory appeal. For the reasons that follow, we affirm.

On review of a ruling on a motion to suppress, the trial judge’s findings of fact should not be disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed in favor of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2) (575 SE2d 713) (2002). “In all cases, [appellate courts] independently apply the law to the facts.” Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citation omitted).

Construed in favor of the trial court’s decision, the record shows that on December 26, 2013, at approximately 10:18 p.m., Sergeant Long of the Lawrenceville Police Department performed a traffic stop on Brown after seeing Brown driving erratically and in violation of the law. After observing signs suggesting that Brown was intoxicated, Long had Brown perform field sobriety tests, following which Long arrested Brown for driving under the influence of alcohol; Long then read to Brown Georgia’s implied consent notice. Brown agreed to take the State’s breath test, and Long transported Brown to the Lawrenceville Police Department for that purpose. After the breath test, Brown stated that he wanted a urine test but “he was unsure as to where to obtain a urine test”; he asked Long for a recommendation. Long replied that he could not make such recommendations, and, in response to Brown’s request, Long brought Brown two telephone books and allowed him to use the telephone.

Brown called his mother and, while still on the phone, he asked Long if he could be transported to Northside Hospital in Forsyth County. There is no indication that Brown gave Long a reason for making that choice. Long believed that the location was too far away and that the request was unreasonable given all of the facilities that were “in the Gwinnett County area.” But not wishing to make that decision alone, Long contacted the on-duty magistrate court judge and asked for the judge’s opinion on the matter; the judge told Long that given the number of facilities in Gwinnett County that could provide the testing, it would be unreasonable, in his opinion, to leave Gwinnett County. In addition, Long was the supervisor of the DUI unit and had officers reporting to him, and he therefore did not want to have to travel too far or take too much time from his duties in Lawrenceville. Long told Brown the magistrate’s opinion while Brown was still on the telephone with his mother, and Brown then asked to be transported to Emory Johns Creek Hospital; there is no indication that Brown gave Long a reason for choosing that location. Long was of the opinion that this, too, was unreasonable because the location was in Fulton County and he knew it to be farther than some other facilities. Brown, who was still on the telephone, then requested to be taken to the Gwinnett Medical Center in Duluth (GMC-D) because he was familiar with that hospital and had undergone an appendectomy there not long before. Long agreed to the request, and he took Brown there for an independent test; Brown had to call his mother again from the hospital in order to obtain credit card information so that he could pay for the test. Long testified that he did not know the mileage from the police department to the first two locations that Brown requested, or their addresses. Brown testified that the mileage from the police department to GMC-D was 13.5 miles and that the Emory facility was approximately three miles further from the police department. When asked if he ultimately received an “independent test,” Brown replied that he had.

OCGA § 40-6-392 (a) (3) provides that a person accused of driving under the influence of alcohol has a right to obtain, in addition to any test administered by the State, an independent chemical test of his blood or urine by a “qualified person of his own choosing.” Hendrix v. State, 254 Ga. App. 807, 808 (564 SE2d 1) (2001) (punctuation and footnote omitted). The State has the burden of showing compliance with the statute. State v. Metzager, 303 Ga. App. 17, 19 (692 SE2d 687) (2010). The Code provision requires that a suspect is to be given “a meaningful opportunity to choose the testing facility.” Hendrix, 254 Ga. App. at 808 (footnote omitted). “Nonetheless, if the suspect’s choice is unreasonable, a law enforcement officer is justified in refusing to accommodate the request.” Id. (footnote omitted). The trial court may consider several factors in resolving this issue, including the following:

(1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of [the] requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; [and] (5) opportunity and ability of accused to make arrangements personally for the testing.

State v. Buffington, 189 Ga. App. 800, 802 (377 SE2d 548) (1989); Lenhardt v. State, 271 Ga. App. 453, 455 (2) (610 SE2d 86) (2005). An additional factor to be considered is whether the suspect actually made arrangements with a qualified person of his own choosing prior to asking the officer to transport him to that location. Luckey v. State, 313 Ga. App. 502, 503-504 (2) (722 SE2d 114) (2012); Harper v. State, 164 Ga. App. 230, 231 (1) (296 SE2d 782) (1982). But an officer is not required to ask the suspect “where and ley whom she wish[es] the elective test performed.” Luckey, 313 Ga. App. at 504 (2); compare Akin v. State, 193 Ga. App. 194, 195 (387 SE2d 351) (1989) (the issue of arrangements was moot where officer refused to transport suspect anywhere other than three designated hospitals). Applying all of these factors, the trial court must determine whether under the totality of the circumstances, the suspect’s request was reasonable. Hendrix, 254 Ga. App. at 808.

Decided November 13, 2015.

The Sessions Law Firm, D. Benjamin Sessions, for appellant.

Rosanna M. Szabo, Solicitor-General, R. Tyler Fisher, Latawsha Y. Little-Hill, Assistant Solicitors-General, for appellee.

Here, the trial court found that Brown was able to exercise his right to have a chemical test of his blood by a qualified person of his own choosing and that no basis exists for the exclusion or suppression of the evidence. Although “the mere fact that the requested facility is in another jurisdiction does not justify an officer’s refusal to accommodate a suspect,” Hendrix, 254 Ga. App. at 808 (footnote omitted), Long offered additional facts to justify his refusal to take Brown to the two hospitals located outside of Gwinnett County. Long was willing to take Brown to facilities that were “in the Gwinnett County area”; Long was a supervisor and did not want to travel too far or take too much time away from those reporting to him; the requested facilities were further away than those in the Gwinnett County area; and Long obtained the opinion of a magistrate judge that a request to go to a facility outside of Gwinnett was unreasonable. In addition, Brown did not make arrangements with anyone at the facilities in Fulton County and Forsyth County to ensure that those facilities were able and willing to perform a test, and, ultimately, Long took Brown to a hospital that Brown selected.

This evidence supported the ruling of the trial court, and we therefore conclude that the trial court did not err by denying the motion to suppress. See Lenhardt, 271 Ga. App. at 456 (2) (officer acted reasonably in denying requested facility where requested facility was 13 miles farther than facility ultimately chosen by suspect and outside of officer’s jurisdiction and patrol area; the officer’s department was shortstaffed; and there were other hospitals in the area of the arrest).

Judgment affirmed.

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


author: MCFADDEN, Judge.

text:
    A15A1193.
    KLEMETTI v. THE STATE.
    (780 SE2d 346)
   MCFADDEN, Judge.

Steve Klemetti appeals his speeding conviction. He argues that the trial court erred in denying his motion for directed verdict of acquittal because the state failed to present certain evidence, an engineering and traffic investigation, required to prove that the posted speed limit was lawful. We find that the evidence was sufficient to support the conviction and that producing the engineering and traffic investigation was not a part of the state’s burden. We therefore affirm.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation omitted).

Viewed in this light, the evidence showed that a city of Columbus patrol officer saw Klemetti driving “at a pretty high rate of speed” on a particular road with a posted speed limit of 35 miles per hour. The officer’s radar indicated that Klemetti was driving at a speed of 49 miles per hour. The state introduced into evidence a certified copy of a city council ordinance showing the speed limit of the road in question.

Klemetti does not dispute the evidence that he was driving at a speed of 49 miles per hour. Rather, he argues that in order to prove that the speed limit was lawfully set at 35 miles per hour, the state was required to introduce evidence of an engineering and traffic investigation that authorized the governing authority to establish that speed. Without such an investigation, he implies, the default speed limit of 55 miles per hour was in effect and his driving at 49 miles per hour was not unlawful.

Klemetti relies on OCGA § 40-6-183 (a), which provides in part:

Whenever the governing authority of an incorporated municipality or county, in its respective jurisdiction, determines on the basis of an engineering and traffic investigation that the maximum vehicle speed permitted under [OCGA § 40-6-181, which establishes maximum lawful vehicle speeds,] is greater than is reasonable and safe under the conditions found to exist upon a highway or part of a highway under its jurisdiction, such authority may determine and declare a reasonable and safe maximum vehicle speed limit thereon ....

Decided September 24, 2015

Reconsideration denied November 16, 2015

Steve Klemetti, pro se.

Klemetti’s argument is in the nature of an affirmative defense. An affirmative “defense admits the doing of the act charged, but seeks to justify, excuse, or mitigate it.” Adams v. State, 288 Ga. 695, 697 (1) (707 SE2d 359) (2011) (citations omitted).

“As in other cases where affirmative defenses are involved, we conclude that an affirmative defense... is a matter for the defendant to raise and not a matter for the state to negate,” at least until the defendant has presented some evidence to support it. Snelling v. State, 176 Ga. App. 192, 193 (1) (335 SE2d 475) (1985) (citations omitted). See, e.g., Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991) (“After a defendant presents a prima facie case of [the affirmative defense of] entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt.”). Klemetti presented no evidence to support his affirmative defense that the governing authority was not authorized to change the default speed limit.

Moreover, the state introduced into evidence a certified copy of a city council ordinance showing the changed speed limit. And it is presumed that public officials have done their duty in cases involving traffic statutes. Frasard v. State, 322 Ga. App. 468, 469 (2) (a) (745 SE2d 716) (2013). Contrary to Klemetti’s argument, such a presumption, which does not relieve the state from its duty “to prove every element of the crime charged beyond a reasonable doubt,” is not impermissibly burden-shifting. Kidd v. State, 277 Ga. App. 29, 32 (2) (625 SE2d 440) (2005) (citation and punctuation omitted).

Klemetti “has cited no [Georgia] authority, and we have found none, that requires a governmental unit to prove its compliance with OCGA ... § 40-6-183 in order to obtain a conviction for the crime of speeding.” Frasard, 322 Ga. App. at 469 (2) (a). Accordingly, his conviction is affirmed. Id. at 468-469 (1) (a) (“To be guilty of speeding, one need only exceed the designated speed limit.”) (citation and punctuation omitted).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

Suzanne P. Goddard, Solicitor-General, Michelle S. Huiet, Assistant Solicitor-General, for appellee.