author: McFadden, Judge.

text:
    A11A1245.
    A11A2203.
    CALMES v. THE STATE. ALLEN v. THE STATE.
    (719 SE2d 516)
   McFadden, Judge.

Following a joint jury trial, Brandon Otis Calmes and Dennis Allen were each convicted of one count of armed robbery, four counts of aggravated assault and three counts of possession of a firearm during the commission of a crime. We have consolidated their appeals. As to Calmes’s case, we find that the trial court did not err by refusing to charge the jury on the defense of coercion because the evidence did not support the charge. We also find that the trial court did not manifestly abuse its discretion by denying Calmes’s motion for mistrial and instead substituting an alternate juror for a juror who had attempted to visit one of the crime scenes. We remand Allen’s case to the trial court for reconsideration of appellate counsel’s motion to withdraw because the record does not reflect that Allen knowingly waived his right to appellate counsel.

When reviewing a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Darnell v. State, 257 Ga. App. 555, 556 (1) (571 SE2d 547) (2002). So viewed, the evidence shows that the victims, George Grover and his employee, Tommy Chapman, sold home theater and surround sound systems from the back of Grover’s GMC Yukon SUV Grover would buy the components from a factory in California, assemble them and then sell them.

On August 26, 2008, the victims decided to sell systems in Hiram, Georgia, a growing area with new construction that had been a strong selling area before. They drove to a Bank of America parking lot and began speaking with the occupants of a gold Nissan Quest van: co-defendants Calmes and Allen, a woman named Kelsey Manning and a third man. The victims asked the occupants of the van if they would like to buy a sound system. They appeared interested, so one victim showed them a system. Manning said they had to go down the street to get money. The victims followed the van to a cul-de-sac in an apartment complex.

Manning testified that while they were driving to the cul-de-sac, Allen said that the equipment was probably stolen, so he might as well steal it himself. Calmes said that was stupid. Manning asked to be dropped off because she did not want to be involved. Allen turned to her, pointed a gun at her, and told her no. Manning was terrified; she had her baby with her. Calmes did not react, but he seemed scared. Allen called another man to help with the robbery because that man also had a gun.

Once the van and the SUV arrived at the apartment complex, Allen walked off saying he was going to get the money, but he really went to meet the man he had called for help. While the victims were waiting for the money, one of them began loading the equipment into the van to give the buyers a sense of ownership and to make it harder for them to back out of the deal. In the meantime, while Calmes stayed in the van, Manning was speaking with the victims, offering more money than they had agreed upon for additional equipment. The victims became suspicious and began removing the boxes from the van. Allen returned with his armed help. When one victim turned around, one of the men pulled out a gun, cocked it, and said, “This is a robbery. Don’t make it a murder.”

That victim took off running, but was tackled, beaten and temporarily knocked unconscious with the butt of a gun. The other victim lay on the ground, and someone hit him with a gun. Allen told Calmes to chase after the victim, but Calmes said no, he would just help load the equipment. They loaded the equipment, got back into the van, and drove away

The victims got into the Yukon, called 911 and began chasing the van, following it into a subdivision. They relayed the van’s license plate number to the police.

Calmes, the driver of the van, was terrified and driving erratically. He drove the van to Allen’s house, where they parked it in the garage, closed the garage door and began wiping it down. They unloaded the equipment into Allen’s house.

Case No. A11A1245

1. Calmes argues that the trial court erred by refusing to instruct the jury on his defense of coercion. Under OCGA § 16-3-26, which defines that defense, “[a] person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.”

“Unless the danger of present and immediate violence coincides with the commission of the forbidden act, a trial court may refuse to give a charge on coercion.” (Citation omitted.) Gordon v. State, 234 Ga. App. 551, 552 (507 SE2d 269) (1998). Even assuming that Allen’s pointing the gun at Manning caused Calmes to feel threatened, the threat occurred while they were in the van, driving to the scene of the robbery and assault, not during the crimes themselves. And before the victims were robbed and assaulted, Allen walked off for a period of time; Calmes remained in the van and did not leave, even though he had the opportunity. Because any threat of violence to Calmes did not coincide with the robbery and assault, the trial court did not err in refusing to give a charge on coercion. “Since none of [the] evidence related to present and immediate violence toward [Calmes] so as to justify his criminal conduct, and there was no showing of a reasonable fear of immediate violence, the trial court correctly declined to give the requested charge.” Id. See also McDaniel u. State, 169 Ga. App. 254, 254-255 (2) (312 SE2d 363) (1983) (court did not err in refusing to give requested charge on defense of coercion because although defendant presented evidence that he had been kidnapped at gunpoint and forced to cash a check, the proceeds of the theft at issue, the kidnapping occurred “subsequent to the events determinative of defendant’s guilt or innocence of the crime with which he was charged”).

2. Calmes argues that the trial court erred by replacing a juror who was disqualified after the jury originally reached a guilty verdict. He contends that the alternate who replaced the disqualified juror had been tainted by the original guilty verdict, and that the trial court instead should have granted a mistrial. The jury initially returned a verdict finding Calmes and Allen to be guilty. But when polled, one of the jurors said that she needed more time, so the trial court directed the jury to continue deliberations. After an overnight recess, the trial court discovered that one of the jurors — not the juror who had said she needed more time — had independently visited Allen’s neighborhood during a break in the trial, although she did not find his house. Calmes and Allen moved for a mistrial. The trial court denied the motion for mistrial, excused the juror who had driven by Allen’s neighborhood, and replaced her with an alternate juror. The trial court then instructed the jurors to begin their deliberations anew.

Calmes asserts that the newly composed jury was tainted by the earlier reading of the guilty verdict, thus entitling him to a mistrial. “[T]he decision whether to grant or deny a motion for mistrial rests within the trial court’s discretion, and we will not disturb the court’s ruling absent a manifest abuse of that discretion which threatens the defendant’s right to a fair trial.” (Citation omitted.) McConnell v. State, 263 Ga. App. 686, 688 (3) (a) (589 SE2d 271) (2003). We find that the trial court did not manifestly abuse its discretion in replacing the juror with the alternate instead of granting a mistrial. Calmes “could not have been harmed by the alternate juror’s discovering immediately before entering the jury room what [s]he surely would have discovered soon after entering the jury room.” Tanner v. State, 242 Ga. 437, 438 (2) (249 SE2d 238) (1978). See also Murray v. State, 276 Ga. 396, 398-399 (4) (578 SE2d 853) (2003) (court did not abuse its discretion in replacing juror with alternate after verdict had been announced); Alford v. State, 244 Ga. App. 234 (534 SE2d 103) (2000) (same). Calmes’s claim that the reading of the verdict tainted the jury is purely speculative. Tolbert v. State, 300 Ga. App. 51, 55 (2) (684 SE2d 120) (2009). Removing the juror and replacing her with an alternate juror was an adequate remedy to cure any prejudice. Id.

Case No. A11A2203

3. Allen asserts that he did not knowingly waive his right to appointed appellate counsel but nevertheless has been denied appellate counsel. On December 1, 2009, after the trial court had entered judgments of conviction, Assistant Public Defender Brandon Bullard entered an appearance on Allen’s behalf and filed a motion for new trial. On March 17, 2011, Bullard filed documents seeking to withdraw as Allen’s attorney because his “disagreement on counsel’s choices of strategy in the prosecution of his appeal [had] risen to such an unreasonable level that [his] further representation [was] impossible.” Bullard asserted that he had mailed his notice of intent to withdraw to Allen. On March 30, 2011, the trial court granted Bullard’s request to withdraw as Allen’s attorney, noting that Allen had not filed an objection. On May 11, 2011, the trial court denied Allen’s motion for new trial. Allen filed a pro se notice of appeal.

Allen sought the appointment of new appellate counsel from the Paulding Judicial Circuit Public Defender Office, but the circuit public defender denied his request in June 2011. See Odum v. State, 283 Ga. App. 291, 292 (641 SE2d 279) (2007) (following passage of the Indigent Defense Act of 2003, OCGA § 17-12-1 et seq., public defender offices, not trial courts, appoint attorneys in indigent cases). Consequently, Allen is proceeding pro se.

Allen asserts that he did not make a knowing and intelligent decision to waive appellate counsel. A convicted indigent defendant has the right to appointed counsel on direct appeal. Douglas v. California, 372 U. S. 353, 357 (83 SC 814, 9 LE2d 811) (1963); Garland v. State, 283 Ga. 201, 202 (657 SE2d 842) (2008). To protect this right, the Indigent Defense Act of 2003 requires that the circuit public defender provide representation in any direct appeal of an action prosecuted in the superior court “in which there is a possibility that a sentence of imprisonment or probation or a suspended sentence of imprisonment may be adjudged.” OCGA § 17-12-23 (a) (1), (4); Bynum v. State, 289 Ga. App. 636, 637 (658 SE2d 196) (2008).

A defendant may waive his right to counsel during post-conviction proceedings, but “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” (Citations, punctuation and emphasis omitted.) Weber v. State, 203 Ga. App. 356, 357 (416 SE2d 868) (1992). Additionally, a defendant’s “insistence upon the appointment of counsel who [will] accede to his demands and pursue a frivolous and baseless line of defense” may amount to “the functional equivalent of a knowing and voluntary waiver of counsel.” (Citation and punctuation omitted.) Phipps v. State, 200 Ga. App. 18, 19 (406 SE2d 493) (1991). See also Walker v. State, 288 Ga. 174, 177-178 (2) (a) (702 SE2d 415) (2010) (trial court was authorized to conclude that defendant’s expression of dissatisfaction with his third lawyer on the day of trial was a dilatory tactic that was the functional equivalent of a knowing and voluntary waiver of appointed counsel); Hobson v. State, 266 Ga. 638, 638-639 (2) (469 SE2d 188) (1996) (trial court was authorized to find that defendant’s discharge and employment of counsel was a dilatory tactic that amounted to the functional equivalent of a knowing and voluntary waiver of counsel); Staples v. State, 209 Ga. App. 802, 803-804 (3) (434 SE2d 757) (1993) (trial court was authorized to find that defendant’s demand for a change of counsel was a dilatory tactic that amounted to the functional equivalent of a knowing and voluntary waiver of counsel).

The record does not reflect that the trial court determined that Allen knowingly waived his right to counsel. Compare Phillips v. State, 267 Ga. App. 733, 736-737 (3) (601 SE2d 147) (2004) (defendant knowingly and voluntarily waived the right to counsel when, at hearing on attorney’s motion to withdraw as counsel, trial court explained the dangers of defendant representing himself, and defendant acknowledged that he understood the dangers, requested that his appointed counsel be allowed to withdraw, and stated that he wished to represent himself). Nor does the record reflect that the trial court found a “functional equivalent of a knowing and voluntary waiver of appointed counsel.” Hobson, 266 Ga. at 638-639 (2).

Decided November 3, 2011

Reconsideration denied November 22, 2011

Brandon A. Bullard, for appellant (case no. A11A1245).

Under Uniform Superior Court Rule 4.3 (1), an attorney’s request to withdraw “will be granted unless in the judge’s discretion to do so would delay the trial of the action or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client.” (Emphasis supplied.) Since the record does not show that the trial court determined whether Allen actually or functionally waived his constitutional right to appointed appellate counsel, we remand his appeal for the trial court to reconsider Bullard’s motion to withdraw in light of Allen’s right to counsel. Upon the entry of a new order resolving the motion to withdraw, Allen may file another appeal to challenge his convictions. See, e.g., Thomas v. State, 281 Ga. 550, 551 (1), n. 1 (640 SE2d 255) (2007).

We observe that should the trial court determine that Allen has not waived his right to appointed appellate counsel yet nonetheless grant Bullard’s motion to withdraw, leaving Allen without counsel in spite of his nonwaiver of the right, Allen is not without remedy. The circuit public defender already has denied Allen’s request for new appellate counsel.

In essence, therefore, [Allen] is asserting that the public defender has failed to fulfill the duties prescribed by the [Indigent Defense Act]. Although the trial court was without the authority to [appoint new appellate counsel], we find that [Allen] is not without recourse as he may seek relief by application for a writ of mandamus.

(Citations omitted.) Bynum, 289 Ga. App. at 637-638. Should Allen choose to appeal any ruling in such a mandamus proceeding, he should direct his appeal to the Supreme Court of Georgia, which has exclusive jurisdiction over cases involving the grant or denial of mandamus. See id. at 637, n. 3.

Judgment affirmed in Case No. A11A1245. Phipps, P. J., and Andrews, J., concur. Case remanded with direction in Case No. A11A2203.

Phipps, P. J., concurs. Andrews, J., concurs in the judgment only.

Dennis Allen, pro se (case no. A11A2203).

Donald R. Donovan, District Attorney, DanaJ. Norman, Thomas A. Cole, Assistant District Attorneys, Drew Lane, Jr., for appellee.

       We do not address the various motions Allen has filed in this court; given our decision to remand his case, his motions are moot.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A11A1399.
    JONES v. FOREST LAKE VILLAGE HOMEOWNERS ASSOCIATION, INC. et al.
    (720 SE2d 174)
   Smith, Presiding Judge.

In this case, the following circumstances exist and are disposi-tive of the appeal:

(1) The evidence supports the judgment;

(2) No reversible error of law appears and an opinion would have no precedential value;

(3) The judgment of the court below adequately explains the decision; and

(4) The issues are controlled adversely to the appellant for the reasons and authority given in the appellees’ brief.

This is not the first appearance of this case before this court. In Jones v. Forest Lake Village Homeowners Assn., 304 Ga. App. 495 (696 SE2d 453) (2010), Jones appealed from the judgment entered on ajury verdict in favor of appellees, including the award of a substantial penalty under OCGA § 13-6-11 for stubborn litigiousness or causing appellees unnecessary trouble and expense. Id. at 503-505 (4). This court affirmed on virtually every point, including the award of OCGA § 13-6-11 penalties, but vacated the judgment in part and remanded it for a correction of the language of the judgment. Id. at 500-501 (1) (c). The trial court complied exactly with this court’s instructions, but Jones nevertheless appealed again, asserting without any apparent basis that the trial court failed to comply with this court’s instructions, and raising two equally meritless complaints concerning the release of appellees’ funds from the registry of the trial court.

The judgment of the court below therefore is affirmed in accordance with Court of Appeals Rule 36. Appellant having ignored the jury’s earlier conclusion and prosecuted this wholly frivolous appeal, we assess frivolous appeal penalties pursuant to Court of Appeals Rule 15 (b), in the amount of $2,500 against appellant and $2,500 against his appellate counsel. Upon return of the remittitur, the trial court is directed to enter a $5,000 judgment in favor of appellees in the form of a $2,500 penalty against Andrew R. Jones, and a $2,500 penalty against his appellate counsel. Pitts Properties v. Auburn Bank, 274 Ga. App. 538, 539 (618 SE2d 171) (2005).

Judgment affirmed.

Mikell and Dillard, JJ., concur.

On Motion for Reconsideration.

Jones has filed a motion for reconsideration, in which he complains that the order entered by the trial court did not include an agreed-to $641 setoff in his favor and thus required reversal, justifying his appeal and defeating the award of frivolous appeal penalties.

But the order entered by the trial court directed only that monies deposited by appellees in the registry of the court be returned to appellees “pursuant to a requirement contained in the Order Granting Interlocutory Injunction thirty-one days after the entry of this order.” The amounts to be returned were not specifically noted in the order and would be allocated by the trial court in accordance with its very broad discretion in controlling funds in the registry of the court. See Courtesy Leasing v. Christian, 266 Ga. 187 (465 SE2d 443) (1996). And the setoff ultimately was applied to the $7,500 in attorney fees awarded against Jones by the trial court, not to the monies deposited in the registry of the court. In the absence of a demonstrated abuse of discretion, Jones’s assertion that the exclusion of the setoff justified this appeal is without merit.

In addition, Jones argued in his appeal that the trial court had failed to comply with this court’s instructions to correct the language of the judgment below, and that the trial court’s order was erroneous because it had no authority to order the return of monies in the registry of the court to appellees through their attorney. The existence of a setoff was noted, but only in passing as part of Jones’s argument that the disbursement procedure was illegal in its entirety. Jones’s stated grounds for appeal were entirely without merit, and the omission of the setoff was irrelevant to his contentions on appeal.

Finally, as appellees note, the application of the setoff could have been accomplished with a telephone call. But Jones made no effort to call, write a letter, or move for reconsideration in the trial court. Instead, he filed his notice of appeal two days after entry of the order below. The filing fees of this court, the cost of preparation of the record on appeal, and attorney fees have consumed, or nearly so, the relatively small amount of the setoff. And we must also consider that Jones’s appeal resulted in additional attorney fees expended by appellees to address his meritless contentions.

All these facts fully justified the conclusion that Jones’s second appeal in this matter was brought entirely for purposes of delay.

The motion for reconsideration is therefore denied.

Motion for reconsideration denied.

Decided September 20, 2011

Reconsideration denied November 22, 2011

David G. Kopp, for appellant.

Adams & Ford, Francis N. Ford, for appellees.


author: Blackwell, Judge.

text:
    A11A1475, A11A1476.
    WHITLOCK v. MOORE et al. (two cases).
    (720 SE2d 194)
   Blackwell, Judge.

A thief crashed a stolen van into a car occupied by Brenda and Ricky Whitlock, both of whom were injured in the crash. The Whitlocks each filed a lawsuit to recover damages for their injuries, naming not only the thief as a defendant, but also the rightful owner of the stolen van, Alvin David Moore, and his friend, Tram Nguyen. The Whitlocks allege that Moore and Nguyen negligently were chasing the thief at the time of the crash and, by their pursuit, actually caused the crash. Moore and Nguyen filed a motion for summary judgment, and when the Whitlocks offered the affidavit of a police officer in opposition to the motion, Moore and Nguyen moved to strike portions of the affidavit. The court below granted both motions. The Whitlocks appeal, contending that the court below erred when it granted these motions. We find no error and affirm.

The record shows that, while Nguyen was visiting Moore at his home in Stone Mountain on the evening of November 14, 2007, the two friends saw someone stealing Moore’s van, which had been parked in his garage. The van backed out of the driveway and sped away, causing the tires to squeal. Moore and Nguyen lost sight of the van as the thief drove away, so they went out in Moore’s car to try and find the van. Nguyen drove the car in the direction in which the van had gone, while Moore called police from a mobile telephone and reported the theft of his van. When Moore and Nguyen came to the end of the street on which Moore lived, they still could not see the van, and they decided to turn left onto a crossroad, guessing that the thief might have gone that way. After driving down this crossroad for some distance, Moore and Nguyen spotted the stolen van, which was stopped at a traffic light.

Moore and Nguyen pulled up behind the stolen van, and Moore exited his car and walked toward the van. The thief apparently saw Moore as he approached, and although the traffic light was red, the thief suddenly drove the van past the traffic light and turned left onto a busy four-lane road, nearly colliding with several other cars that were approaching the intersection. Moore returned to his car, and after the traffic light turned green, Moore and Nguyen turned left and began again to search for the van, which had disappeared once more from their view. Moore and Nguyen did not see the van again until they came upon the scene of the crash, about a mile down the four-lane road. By that time, the thief had abandoned the van and was running across the road, and other drivers already were out of their cars, attending to the injured Whitlocks. Moore exited his car again and chased the thief on foot, eventually apprehending the thief and holding him until police arrived.

1. We first consider the contention that the court below erred when it struck certain portions of the affidavit of a DeKalb County police officer, which the Whitlocks submitted in opposition to the motion for summary judgment. In the affidavit, the officer says, among other things, that he responded to the crash, interviewed several witnesses at the scene, including Moore, and as a result of these interviews, formed a number of opinions about the events preceding the crash and its cause. Some of these opinions were the subject of the motion to strike, and the court below struck the following averments from the affidavit:

[From my interview of Moore, I determined that] Mr. Moore immediately got into another car of his and chased [the thief] in the stolen van. Mr. Moore drove the car in pursuit of [the thief], never losing contact with the van up to the point of the accident. ... It is my opinion that the accident involving [the thief] and [Ricky and Brenda] Whitlock would not have occurred had Mr. Moore not been chasing [the thief].

As a rule, an affidavit offered in support of, or in opposition to, a motion for summary judgment must set forth testimony that would be admissible if the affiant appeared as a witness at trial. See Cox v. U. S. Markets, 278 Ga. App. 287, 290 (3) (628 SE2d 701) (2006). To the extent that such an affidavit instead sets forth inadmissible hearsay, conclusions or opinions, it is entitled to no weight in the summary judgment analysis. See id. An affidavit must be made upon personal knowledge, see OCGA § 9-11-56 (e), and as our Supreme Court has explained, if it appears that any portion of an affidavit was not so made, “that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.” Goddard v. City of Albany, 285 Ga. 882, 887 (6) (684 SE2d 635) (2009) (citation omitted). Whether a specific averment of an affidavit is admissible and, therefore, ought to be considered on summary judgment is committed, like other evidentiary questions, to the discretion of the trial court, and we review a decision to strike an affidavit only for an abuse of that discretion. Cox, 278 Ga. App. at 291 (3); see also Munoz v. American Lawyer Media, 236 Ga. App. 462, 465 (2) (512 SE2d 347) (1999). We see no abuse of discretion here.

With respect to the averments that Moore, not Nguyen, drove his car in pursuit of the thief and that Moore and Nguyen never lost sight of the stolen van, it is undisputed that the officer did not himself observe the pursuit, and it is clear that these averments are based exclusively on an interview of Moore at the scene of the accident. What Moore said to the officer in the course of that interview might well be admissible as a statement against interest, see OCGA § 24-3-31, or, to the extent it contradicts the testimony Moore gave at his deposition, as a prior inconsistent statement. See Cleveland v. Bryant, 236 Ga. App. 459, 460-461 (3) (512 SE2d 360) (1999) (statements by party to police officer at scene of accident were admissible as statements against interest and, in view of the testimony of that party, as prior inconsistent statements). But the affidavit does not report what Moore said to the officer. Instead, the affidavit sets forth opinions that the officer formed after he spoke with Moore, which might or might not be consistent with what Moore actually said. And as for the averment that the crash “would not have occurred had Mr. Moore not been chasing [the thief],” it is equally clear that this averment likewise reflects only an opinion that the officer formed based upon his interviews of witnesses at the scene of the crash.

Although an experienced police officer can be qualified as an expert to give opinion testimony about the cause of a traffic accident, see McMichen v. Moattar, 221 Ga. App. 230, 231 (1) (470 SE2d 800) (1996), it remains settled law in Georgia that expert opinion testimony is unnecessary and improper if a jury would be able to ascertain the cause of the accident on its own and without any such testimony. See id. Put another way, “expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible [only] where the conclusion of the expert... is beyond the ken of the average layman.” Emory v. Dobson, 206 Ga. App. 482, 483 (426 SE2d 50) (1992) (citation and punctuation omitted). Here, it appears that the opinions stricken by the court below are not based on an examination of physical evidence that jurors without training and experience in accident investigation might be unable to properly evaluate, such as “skid marks, distances, and the positions of and damage to the involved vehicles.” See Purcell v. Kelley, 286 Ga. App. 117, 118 (1) (648 SE2d 454) (2007). Instead, these opinions seem to be based entirely on information that the officer learned from his interviews of witnesses at the scene. We have no reason to think that a jury cannot assess the statements of witnesses as well as an officer, and for this reason, the court below did not abuse its discretion when it disallowed the opinions of the officer about the circumstances of the pursuit of the stolen van and the extent to which the pursuit caused the crash. See id. (police officer could not properly opine about color of traffic light at time of accident where his opinion was based on interviews of witnesses at scene and not on investigation of physical evidence).

2. We next consider the contention that the court below erred when it awarded summary judgment to Moore and Nguyen. The standard for summary judgment is familiar and settled:

Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law. So, to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial . . . the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue. We review the [grant or] denial of summary judgment de novo.

Strength v. Lovett, 311 Ga. App. 35, 39-40 (2) (714 SE2d 723) (2011) (citations and punctuation omitted). Applying this standard to the record before us, we conclude that the court below properly awarded summary judgment to Moore and Nguyen.

To prevail on a claim of negligence, a plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach of duty caused the plaintiff to sustain an injury. See Royal v. Ferrellgas, Inc., 254 Ga. App. 696, 698 (1) (a) (563 SE2d 451) (2002). In this case, the Whitlocks contend that Moore and Nguyen breached a duty to exercise ordinary care for the safety of other travelers on the roads by attempting to locate and pursue the thief. See McKissick v. Giroux, 272 Ga. App. 499, 501 (612 SE2d 827) (2005); see also Reed v. Dixon, 153 Ga. App. 604, 604 (1) (266 SE2d 286) (1980) (“[t]he legal requisite of the motorist as to parties on the street or highway, whether in other vehicles or as pedestrians, and whether child or adult, is the exercise of ordinary care”) (citation, punctuation and emphasis omitted). When assessing the extent to which one owes a duty to another and whether he has breached that duty, “the governing consideration is what the person sought to be charged should reasonably have foreseen, the rule being that one is bound to anticipate the reasonable and natural consequences of his own conduct.” Porch v. Wright, 116 Ga. App. 138, 138 (1) (156 SE2d 532) (1967). As we have explained before, “[o]ne is charged with knowledge or notice of what a reasonably prudent person would have foreseen, and is negligent if he fails to use the care necessary to avoid danger which should have been anticipated.” Id. “Negligence must be measured by the particular circumstances existing at the time and place alleged. What is negligence in one situation might not be in another.” Id. at 139 (1) (citations and punctuation omitted).

We think no jury could conclude that Moore and Nguyen breached any duty before they saw the thief drive the stolen van through a red light, almost colliding with several other cars. When Moore and Nguyen first set out in search of the stolen van, it was out of sight, and there is no evidence that they had any reason to think that merely going out to look for the van would endanger anyone. Indeed, the evidence suggests that Moore and Nguyen knew nothing important about the driver of the van at that time except that he was a thief. And there is no evidence that Moore and Nguyen had any reason to believe at that time that the thief knew that they were out looking for him, considering that the van had been out of their sight until they found it stopped at the traffic light. Moreover, no evidence shows that Moore and Nguyen themselves drove dangerously, or that they were aware that the thief was driving dangerously before they saw him run the red light. The Whitlocks point to no case in which any court has held that simply driving down a public road in search of a stolen vehicle or a thief, without something more, presents such a danger to others that one has a duty not to do it, and we have found none.

After Moore and Nguyen saw the thief run a red light and nearly collide with several other cars, of course, they perhaps should have known that the thief might endanger others in an effort to escape confrontation or apprehension, and some reasonable people might think that they breached a duty of ordinary care at that point by continuing to pursue the thief. But even if Moore and Nguyen did breach a duty owed to other travelers on the roads by continuing their pursuit, there is no evidence from which a jury could conclude that any pursuit after the thief ran the red light caused the crash in which the Whitlocks were injured. It is undisputed that, by the time Moore and Nguyen turned left onto the four-lane road on which the crash occurred to continue their pursuit, the van was out of their sight, and Moore and Nguyen did not see the van again until they came upon the crash. The record contains no testimony or statements by the thief about the extent to which he knew at the time of the crash that Moore and Nguyen still were following at a distance. There is, therefore, nothing in the record to suggest that the thief was aware that Moore and Nguyen were continuing their pursuit between the time the thief ran the red light and turned onto the four-lane road, leaving Moore standing upon the road and Nguyen stopped at the red light, and the moment of the crash. Consequently, no jury could conclude that anything Moore and Nguyen did during that time affected the way in which the thief drove the van and thereby caused the crash.

“No matter how negligent a party may be, if his act stands in no causal relation to the injury, it is not actionable.” Purvis v. Steve, 284 Ga. App. 116, 119 (1) (643 SE2d 380) (2007) (citation and punctuation omitted); see also Finney v. Machiz, 218 Ga. App. 771, 773 (463 SE2d 60) (1995) (alleged negligence of driver in driving under the influence of alcohol is not actionable where the alleged negligence had no causal connection to accident). As the court below aptly explained, “[t]he mere fact that Defendants Moore and Nguyen were following the route traveled by [the] stolen van does not give rise to the inference that such an act was the cause of the subject accident where the competent admissible evidence of record proves otherwise.” There is no evidence that Moore and Nguyen breached any duty and, by their breach, caused any injury to the Whitlocks, and for this reason, the award of summary judgment must be affirmed.

Decided November 3, 2011

Reconsideration denied November 22, 2011

Slappey & Sadd, James N. Sadd, Daniel M. Epstein, Turkheimer & Hadden, John D. Hadden, for appellants.

Harper, Waldon & Craig, Russell D. Waldon, Arnold & Taylor, Erica L. Parsons, Carlock, Copeland & Stair, Frederick M. Valz III, Freeman, Mathis & Gary, Marc H. Bardack, Downey & Cleveland, Russell B. Davis, for appellees.

Judgments affirmed.

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

       Brenda Whitlock appeals in Case No. A11A1475, and Ricky Whitlock appeals in Case No. A11A1476. Both appeals present the same issues, and we decide both appeals in this consolidated opinion.

       We conclude in Division 1 of this opinion that the court below did not abuse its discretion when it struck certain portions of the affidavit of a police officer, including those portions in which the officer said that Moore, not Nguyen, was driving the car in which the two were searching for the van and that Moore and Nguyen never lost sight of the van. Because the court below was authorized to strike these portions of the affidavit, we do not consider these portions of the affidavit in our review of the award of summary judgment. The remaining evidence in the record is undisputed that Nguyen was driving and that Moore and Nguyen lost sight of the van, facts that we must accept for purposes of summary judgment.

       The court below also struck the narrative portions of the accident and hit-and-run reports that were attached as exhibits to the affidavit, concluding that these portions of the reports were inadmissible hearsay. The Whitlocks do not complain on appeal about the reports, and we do not address them further.

       Moore testified that, after the thief ran the red light and turned onto the four-lane road, he returned to his car. As he explained, “the light turns green. . . . And we leave. And there [were] cars ... in both lanes, and so . . . we’re stuck behind cars. . . . He’s gone.”

       The Whitlocks contend that a jury could infer that Moore and Nguyen were closer to the van during this stage of the pursuit than they admit, considering that Moore was able to capture the thief at the scene of the collision. But Moore’s apprehension of the thief at the scene is consistent with the evidence that Moore and Nguyen did not encounter the van after it ran the red light until the scene of the collision, at which time the thief had already crossed the road on foot. Mere conjecture on the part of the Whitlocks is not sufficient to raise a proper inference that Moore and Nguyen caused the collision. “If circumstantial evidence raises only a mere conjecture as to the conclusion sought, there can be no recovery.” Handy u. DeKalb Medical Center, 298 Ga. App. 82, 84 (679 SE2d 107) (2009) (citation and punctuation omitted).
      A plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.

        Purvis v. Steve, 284 Ga. App. 116, 119 (1) (643 SE2d 380) (2007) (citations and punctuation omitted).


author: Barnes, Presiding Judge.

text:
    A11A0803.
    STRATACOS v. THE STATE.
    (720 SE2d 256)
   Barnes, Presiding Judge.

Steven George Stratacos was charged with ten counts of theft by deception and ten counts of conversion of payments for real property improvements. Following a jury trial, Stratacos was convicted of all ten counts of theft by deception. Citing numerous grounds, he filed a motion for new trial which the trial court denied. He now appeals, asserting that the trial court erred by failing to instruct the jury as to his sole defense of claim of right, and by denying his motion for directed verdict as to several of the counts. Upon our review we affirm.

On appeal, we view the evidence, and all reasonable inferences drawn from it, in the light most favorable to the verdict, and we no longer presume the defendant is innocent. Campbell v. State, 278 Ga. 839, 840 (1) (607 SE2d 565) (2005). We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Id.

Viewed in this light, the evidence shows that between November 2005 and July 2006, Stratacos entered into agreements, using the name Steve George, with several persons to perform various contracting jobs. In November 2005, he contracted with Scott Collins to replace the roof on a commercial building for $10,200. After receiving payment of $6,867, Stratacos worked one day and never completed the job. On March 14, 2006, he contracted with George Pearson to build a storage building for $4,000. He received payment of $3,000, and after pouring a concrete base and framing three walls, he never returned to complete the job. Stratacos contracted with Lynn Faust on March 20, 2006 to replace her roof and install skylights for $4,000. He cashed the $2,000 advance check, cut out holes in the ceiling for skylights, and never returned. He contracted with Leonard Poon on May 30, 2006 for an interior remodel for $4,505, which he never completed after receiving $2,252.50.

In April 2006, Stratacos entered into two contracts with Patricia Mataras. One of the contracts was to replace eleven windows in her daughter’s home for $4,437.50, and the other was for $40,000 for renovations to her new home. After receiving a total of $14,137.50 to work on both projects, Stratacos only replaced seven windows. He did not complete any other work or return any of the money Mataras advanced to him.

On June 12, 2006, Maxwell Ward paid Stratacos $395 for a full payment on a contract for a small repair job at Ward’s home. Stratacos never returned after receiving the money.

Stratacos entered into a contract with Trinity Lutheran Church in July 2006 for $15,600 to replace the church’s siding. He was paid $7,800 but never returned to undertake any work on the church. The church’s representative attempted to contact Stratacos on multiple occasions but was unsuccessful. Stratacos was also paid $3,220 as the initial payment on a $4,955 contract on July 1, 2006 to install a pool liner for Dorothy Jones. The work was never started, and although Jones left “15 or 20 voice mails” for him, Stratacos never returned to fulfil the contracted job.

On July 8, 2006, Stratacos entered into a contract with Evan Firestone for $35,941 to renovate his home. Stratacos received over $26,000 over a ten-day period, but only completed approximately $6,000 of the contracted work.

At trial the State presented evidence of similar transactions, including Stratacos’s guilty pleas for felony theft by conversion, felony theft by taking and felony conversion of payments for real property improvements.

1. Stratacos first contends that the trial court erred by failing to charge the jury on his sole defense, claim of right. He acknowledges that he never requested the charge, or objected to the charge as given, but argues that pursuant to OCGA § 5-5-24 (c), the failure to charge on his sole defense was harmful as a matter of law, regardless of whether an objection was made.

When the evidence could support a charge on the defendant’s sole defense, such charge must be given by the trial court whether or not requested by the defendant. Even though [Stratacos] did not object to the charge or reserve the right to later object, we must consider a substantial error in a jury charge that is harmful as a matter of law, regardless of whether or not objection was made below. If an affirmative defense is raised by the evidence, including the defendants’ own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request.

(Citations and punctuation omitted.) Watts v. State, 259 Ga. App. 531, 533 (3) (578 SE2d 231) (2003).

Pursuant to OCGA § 16-8-10, “[i]t is an affirmative defense to a prosecution for violation of Code Sections 16-8-2 through 16-8-7 that the person ... (2) Acted under an honest claim of . . . a right to acquire . . . [the property] as he did. . . .” OCGA § 16-8-10 (2). However, merely denying any intent to deprive the owner of the property does not set forth a “claim of right” to the property as an affirmative defense to a theft prosecution. Mathis v. State, 147 Ga. App. 148, 149 (3) (248 SE2d 212) (1978). In its order denying Stratacos’s motion for new trial, the trial court found that

the evidence did not support a charge on the defense of claim of right. Further, such defense would have been in addition to other theories pursued by [Stratacos], to wit, that there was insufficient evidence of his intent to deprive the owners of their property at the time he obtained it, and that it became impossible for him to perform the promised work.

At trial, Stratacos essentially testified about the reasons he was prevented from completing the jobs, including problems in his personal life, and that he had intended to complete the work. He testified that he had composed a list with his pastor of “how much work was done on each job, how much I owed the people.”

As Stratacos did not object to the charge as given, and an instruction to the jury on claim of right was not warranted as Stratacos’s sole defense, the trial court did not err in failing to sua sponte charge the jury on this affirmative defense. See Davis v. State, 269 Ga. 276, 279-280 (3) (496 SE2d 699) (1998).

2. Stratacos also contends that the trial court erred in denying his motion for directed verdict on several of the counts because there was no evidence proving the value of the work done as opposed to the value of the advances given to him.

On appeal, “the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction.” (Punctuation omitted.) Chambers v. State, 288 Ga. App. 550 (654 SE2d 451) (2007).

Pursuant to OCGA § 16-8-3, a person commits the offense of theft by deception “when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” OCGA § 16-8-3 (a). There are several methods by which a person may intentionally deceive another. OCGA § 16-8-3 (b). These methods include where the person: “[cjreates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false”; or “[pjromises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this subsection.” OCGA § 16-8-3 (b) (1) and (5); see Adams v. State, 249 Ga. App. 730, 731 (549 SE2d 539) (2001).

In each of the ten counts of theft by deception, Stratacos was charged with obtaining funds “with the intention of depriving the owner of said property by deceitful means, in that he did intentionally promise performance of services, to wit: home improvement services . . . which he did not intend to perform and complete.”

To make a prima facie case of theft by deception based on a promise of service, the state must prove, among other things, a definite contract; a failure to perform the contracted-for services without good and sufficient cause; and a failure to return the money advanced under the contract without good and sufficient cause.

Campbell v. State, 286 Ga. App. 72, 73 (1) (648 SE2d 684) (2007). Contrary to Stratacos’s contention, there was no requirement to prove the value of work done. In each of the counts, the State presented adequate proof that there was a contract price, Stratacos received money under the terms of the contract, he did not intend to perform all of the contracted services, and he did not return the money.

Decided November 22, 2011

Nathanael A. Horsley, for appellant.

Kenneth W. Mauldin, District Attorney, James V. Chafin, Assistant District Attorney, for appellee.

The evidence was sufficient to support Stratacos’s conviction for theft by deception in each of the counts, and thus the trial court did not err in denying his motion for a directed verdict. See Kimble v. State, 209 Ga. App. 36, 37 (1) (432 SE2d 636) (1993).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       OCGA § 5-5-24 (c) provides: “Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.”


author: Mikell, Chief Judge.

text:
    A11A1030, A11A1315.
    DAN J. SHEEHAN COMPANY v. THE FAIRLAWN ON JONES HOMEOWNERS’ ASSOCIATION, INC. et al. (two cases).
    (720 SE2d 259)
   Mikell, Chief Judge.

These companion cases arise from a dispute between plaintiff-appellant Dan J. Sheehan Company (“Sheehan”) and defendants-appellees The Fairlawn on Jones Homeowners’ Association, Inc. (“Homeowners’ Association”) and the individual owners of units in a Savannah condominium complex (“unit owners”) involving Shee-han’s attempts to recover $95,609.36 for repair work it performed on stucco, windows, and wooden beams and struts at the condominium complex. Sheehan filed liens and a lawsuit against the unit owners and the Homeowners’ Association, alleging breach of contract, suit on account, promissory estoppel, unjust enrichment, and foreclosure of liens, and seeking prejudgment interest, attorney fees, and litigation costs. In Case No. A11A1030, Sheehan appeals from the trial court’s denial of its motion for partial summary judgment on its foreclosure of lien claims against all defendants and from the trial court’s grant of the unit owners’ cross-motion for partial summary judgment as to the lien foreclosure claims and Sheehan’s additional claim of unjust enrichment. In Case No. A11A1315, Sheehan appeals from the trial court’s partial grant of the unit owners’ motion to recover attorney fees and costs. Finding no error in Case No. A11A1030, we affirm. Finding error in Case No. A11A1315, we reverse, and vacate and remand the attorney fees order for further consideration by the trial court.

Summary judgment is appropriate if the pleadings and evidence show no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. On appeal from the grant or denial of summary judgment, an appellate court conducts a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.

So viewed, the record shows that Fairlawn on Jones (“Fair-lawn”) is a four-building condominium complex in Savannah. Shee-han performed stucco repair work on some parts of the complex, then later apparently discovered interior water and termite damage that had destroyed wooden support beams and studs in some units, necessitating more repairs than initially contemplated. Sheehan billed the Homeowners’ Association via invoices addressed to its president, Robert F. Gribben, for labor, supplies and equipment used for repairs at Fairlawn. Alleging that it had not been paid, Sheehan filed materialman’s and contractor’s liens against the Homeowners’ Association and its property; the unit owners and their respective units; the Gribbens and their unit; and the related common areas of the complex. Sheehan then filed suit in the Superior Court of Chatham County on April 15, 2009, and on May 4, 2009, filed notices of suit, which are required under Georgia’s lien statute, OCGA § 44-14-360 et seq. On March 25, 2010, Sheehan moved for partial summary judgment, and the unit owners filed a cross-motion for partial summary judgment.

In Case No. A11A1030, when considering Sheehan’s motion for partial summary judgment on its claims of suit on account and breach of contract against the Homeowners’ Association, the trial court found that the documents that Sheehan said were contracts purporting to discuss billing rates and the scope of work to be performed had not been authenticated. The trial court also found that the parties disagreed about whether language regarding window repairs in one document appeared in the original version or had been added, presumably without the consent of the other parties, by Sheehan. For these reasons, the trial court denied summary judgment, finding that a question of fact remained as to whether there was a contract and whether the parties assented to its terms. Sheehan does not assert error as to this ruling so it is not before us, but the trial court’s finding that it could not determine whether there was a contract or assent of the parties has bearing on Sheehan’s other enumerations of error.

Additionally, the trial court denied Sheehan’s motion and granted the unit owners’ cross-motion for partial summary judgment on Sheehan’s foreclosure of lien claims, finding that the required notices of suit were filed out of time. The trial court also granted the unit owners’ cross-motion for partial summary judgment on Sheehan’s unjust enrichment claims, finding that the existence of a contract is required to support a valid claim. Finally, in Case No. A11A1315, the trial court granted in part and denied in part the unit owners’ motion for attorney fees and costs, finding they were entitled to $6,628.39 under OCGA § 9-15-14 for expenses associated with the unjust enrichment claim, but were not entitled to fees for their defense of the lien foreclosure claims.

Case No. A11A1030

1. Sheehan appeals from the trial court’s denial of partial summary judgment on its foreclosure of lien claims, and the grant of the unit owners’ cross-motion for partial summary judgment on this issue. Because Sheehan moved for summary judgment, we view the inferences on this point in the light most favorable to the unit owners, and in the light most favorable to Sheehan when considering the motion for partial summary judgment on the unjust enrichment claim.

Sheehan brings its lien claims under OCGA § 44-14-360 et seq. The liens Sheehan filed identify it as a “contractor, subcontractor and materialman, and the supplier of labor, materials and construction services.”

To prevail on a claim of lien foreclosure, Sheehan first needed to prove it had a contract with the unit owners, and this it has not done.

OCGA § 44-14-530 (a) provides that “[ljiens on real property . . . shall be foreclosed, when not otherwise provided for, by a compliance with his contract by the person claiming the lien and recording his claim and the commencement of an action therefor according to the provisions and requirements of Code Section 44-14-361.1. . . ,”

Although the creation of a contractors’ or materialman’s lien is statutory, a contract and assent to the contract must exist before an owner’s land may be charged with a lien. “In the absence of a showing of a contractual relationship between the owner and the person to whom the materials were furnished, no enforceable lien is created against the owner’s property.” In addition to having a contract, “[o]ne seeking to foreclose a contractor’s lien for labor and materials must show a substantial compliance with the contract.” Further, while “[w]e recognize the principle that in some instances a true owner may bind himself where improvements are made on his property if he consents to the contract under which the improvements are made,” two things are lacking in the case at bar. First, there is no finding that a contract existed between the Homeowners’ Association and Sheehan, and second, there is no showing that the unit owners consented to the contract “(assuming that such a contract existed) as opposed merely to the work which the appellant performed on [their] property.”

Because the trial court found that a question of fact remained as to whether there was a contract or assent of the parties, and because a contract is a condition precedent to foreclosing a lien under the statute as it applies here, the trial court was correct in denying Sheehan’s motion for partial summary judgment on its claims of lien foreclosure and in granting the unit owners’ cross-motion on the same issue. We affirm.

2. Sheehan argues that the trial court erred in granting partial summary judgment to the unit owners on Sheehan’s unjust enrichment claims. Sheehan also alleges that the unit owners knew of the value bestowed upon them through the repair work, yet failed to stop the performance or reject the benefit prior to receipt. Because the unit owners moved for partial summary judgment on the unjust enrichment claim, we view the evidence in the light most favorable to Sheehan.

Sheehan argues that it expended time and effort, hired workers, paid subcontractors and materialmen, purchased material and rented equipment, incurring $92,879.92 in costs and, under the terms of its purported contract, earning ten percent profit of $9,287.99 for a total of $102,167.91. Sheehan only billed the Homeowners’ Association for $95,609.36, but alleges the Homeowners’ Association still refused to pay.

While Sheehan identifies itself as a contractor, subcontractor and materialman, it does not identify which work it performed in which role, or which papers among the voluminous documentation it submitted to this court, including invoices to the Homeowners’ Association and bills paid or costs incurred in its dealings with suppliers and the like, apply to it in these varied roles. Nor did the trial court make findings as to Sheehan’s status as a contractor, subcontractor or materialman in this or any other context. As such, questions of fact remain about what work Sheehan performed, what invoices it submitted, and what value it conferred in which role. Sheehan’s identity in this context as a contractor, subcontractor or materialman affects any analysis of its unjust enrichment claims.

The trial court granted the unit owners’ motion for summary judgment on Sheehan’s unjust enrichment claims, citing PEG. Indus. v. Hayes Constr. Co., which provides that “a materialman or subcontractor may not recover against an owner or general contractor with whom it has no contractual relationship, based on the theory of unjust enrichment or implied contract; rather, it is limited to the statutory remedies provided by Georgia’s lien statute.” The trial court did not analyze or rule upon the unjust enrichment claim in any context where Sheehan may have been acting as a contractor, a situation in which the analysis of an unjust enrichment claim may have differed.

Because the trial court found that it had insufficient evidence to decide whether or not Sheehan had a contract, it had to grant the unit owners’ motion for summary judgment on this issue. If there had been a contract, then Sheehan would, of course, have been a “contractor.” Again, we will affirm a grant of summary judgment if it is right for any reason. Discerning no error, we affirm.

Case No. A11A1315

3. Pursuant to OCGA § 9-15-14, the trial court granted, in part, the unit owners’ motion for attorney fees, awarding $6,628.39 for the fees and expenses incurred in litigating the unjust enrichment claim. Sheehan alleges that the trial court’s award was in error (1) because the court made no specific findings of fact as required by OCGA § 9-15-14; (2) because Sheehan’s unjust enrichment claims were not frivolous; and (3) because a bona fide controversy existed.

OCGA § 9-15-14 authorizes a trial court to award litigation costs and attorney fees for frivolous actions and defenses. The trial court’s order in the case sub judice cites both OCGA § 9-15-14 (a) and (b) prior to its discussion of the unjust enrichment claim, but mentions neither in the portion of its order actually awarding the fees. Regardless of which subsection the court relied upon, an order is “legally insufficient [when] the trial court failed to set forth findings of fact to support an award under OCGA § 9-15-14. ”

The trial court in the case sub judice makes neither findings of fact nor findings as to conduct authorizing an award. In pertinent part, the order says only, “[t]he [c]ourt finds that [pjlaintiff was not entitled to recover against [defendant unit owners based on a theory of unjust enrichment.”

A judgment devoid of express findings of fact and conclusions of law as to the statutory basis for an award of attorney fees under OCGA § 9-15-14 “must be vacated and the case must be remanded for reconsideration . . . with direction that the trial court either include in its order findings of the conduct that authorized the award or vacate its order.”

Accordingly, we vacate the trial court’s judgment on the award of attorney fees, and direct the trial court upon remand to reconsider the award under OCGA § 9-15-14 and to make appropriate findings of fact and enter a new judgment from which appeal by either party is authorized.

In light of our holdings supra, we need not reach Sheehan’s remaining enumerations of error as to the award of attorney fees, as they are not yet ripe for review.

Decided November 22, 2011.

David M. Conner, for appellant.

Cole, Fleming & Clark, Margaret K. Clark, McCorkle & Johnson, Colby E. Longley, Mathew M. McCoy, Weinstock & Scavo, Elizabeth A. Frey, Taylor, English & Duma, Joseph C. Sullivan, Elizabeth F. Thompson, Louis R. Cohan, for appellees.

Judgment affirmed in Case No. A11A1030. Judgment reversed and vacated, and case remanded in Case No. A11A1315.

Smith, P J., and Dillard, J., concur.

       Although they are defendants in the underlying civil action, neither the Homeowners’ Association nor its president, Robert F. Gribben, who owns a unit at Fairlawn, nor another unit owner, Rita K. Gribben, joined in the motions for partial summary judgment or attorney fees. Future references to “unit owners” in this opinion do not include the Gribbens.

       OCGA § 9-11-56 (c).

        Alston & Bird LLP v. Mellon Ventures II, 307 Ga. App. 640 (706 SE2d 652) (2011).

       See EarthLink, Inc. v. Eaves, 293 Ga. App. 75, 76 (1) (666 SE2d 420) (2008) (court need not address issue not enumerated as error).

       OCGA § 44-14-360 defines (1) a “contractor” as someone “having privity of contract with the owner of the real estate”; (4) “materialmen” as “all persons furnishing the materials, tools, appliances, machinery, or equipment” and (9) “subcontractor” as meaning, but not being limited to, “subcontractors having privity of contract with the contractor.” OCGA § 44-14-361 (a) (2) provides that all contractors, as well as all subcontractors and materialmen furnishing material to subcontractors, shall have a special lien against real estate to which they furnish labor, services or materials.

       (Emphasis supplied.)

       (Citations omitted.) Liggett v. Harper, 151 Ga. App. 616, 617 (1) (260 SE2d 735) (1979).

       (Citations and punctuation omitted.) Summit-Top Dev. v. Williamson Constr, 203 Ga. App. 460, 462 (2) (416 SE2d 889) (1992).

       (Citation, punctuation and emphasis omitted.) Liggett, supra at 618 (1).

       (Emphasis omitted.) Id.

       Although the trial court’s summary judgment decision on the lien foreclosure issue was based on a different legal theory, that Sheehan’s notices of suit were filed out of time, we will affirm the judgment of the trial court if it is right for any reason. “A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” (Footnote omitted.) Alston & Bird LLP, supra.

       Sheehan has elected not to include the transcript of the summary judgment hearing in the record on appeal. “To the extent that the proof necessary for determination of the issues on appeal has been omitted from the record, we must assume that the judgment below was correct and affirm.” Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 251, n. 1 (699 SE2d 439) (2010), citing Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998).

       162 Ga. App. 151 (290 SE2d 347) (1982).

       (Citations omitted.) Id. at 151 (1).

       See Holder Constr. Group v. Ga. Tech Facilities, 282 Ga. App. 796, 801 (4) (640 SE2d 296) (2006); Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 782 (2) (300 SE2d 180) (1983).

        Alston & Bird LLP, supra.

       (Citation omitted.) Reese v. Grant, 277 Ga. 799 (596 SE2d 139) (2004). Accord Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31) (1991) (trial court’s order must include findings of conduct authorizing award under OCGA § 9-15-14).

       (Citation omitted.) Moore v. Moore, 307 Ga. App. 889 (2) (706 SE2d 465) (2011), citing Gilchrist v. Gilchrist, 287 Ga. App. 133-134 (1) (650 SE2d 795) (2007).


text:
    A11A1146.
    PATTERSON v. THE STATE.
    (720 SE2d 278)
   Barnes, Presiding Judge.

Following a jury trial, Jason Patrick Patterson was convicted of one count of burglary, one count of armed robbery, three counts of aggravated assault, three counts of kidnapping, and three counts of false imprisonment. Patterson filed a motion for new trial asserting various grounds, including insufficiency of the evidence, which, after a hearing, the trial court granted as to one of the kidnapping counts. The trial court denied the motion as to all other grounds and Patterson now appeals. He contends that the State’s evidence was insufficient to support two of his convictions, that his trial counsel was ineffective, and that the trial court erred in allowing into evidence certain testimony in violation of OCGA § 17-16-1. Upon our review, we affirm.

When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, “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.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. Id. “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.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

So viewed, the facts relevant to the appeal reveal that on the afternoon of March 26, 2006, the victim was in the kitchen of his Cobb County home when a man, later identified as Patterson, entered the room through the door leading from the carport. Patterson, who was wearing a motorcycle helmet, pointed an automatic pistol at the victim’s head and demanded his money and jewelry. The victim told him where his money and valuables were located, and told him that his two young children were in their rooms. Patterson ordered the victim to lie down on the floor and covered his head with a towel. The victim heard a second person enter the room. The accomplice was later identified as Daniel Steele.

Patterson went to the victim’s son and daughter’s rooms, and forced them at gunpoint to go to the kitchen where he made the pair join their father on the floor. Steele had a bandana over his face and was holding a shotgun. The victim and his children were tied up with extension cords; and while Steele held the shotgun on the family, Patterson ransacked the home for valuables. The pair took cash, jewelry, checkbooks, two cell phones, and the victim’s Ford Mustang and Expedition.

The men drove the vehicles to the apartment of the woman who had earlier taken them to the victim’s house. She testified that Patterson was driving the Mustang, and showed her jewelry and credit cards that he had taken from the victim’s home. The three drove to an Atlanta hotel and rented a room. Police tracked the Mustang to the location via a LoJack signal, and although they attempted to capture Patterson, Steele, and the woman when they exited the hotel, the group escaped, and a high speed chase ensued. The high speed chase ended when Patterson lost control of the Mustang and crashed into a ravine in Fulton County. Steele crashed the Expedition in Gwinnett County. Both men and the woman who was in the car with Patterson were transported to the hospital. Police recovered a motorcycle helmet, pistol, jewelry, and the victim’s checkbook from the Mustang Patterson was driving, and jewelry, checks, a cell phone — all belonging to the victim — and a shotgun from the Expedition.

Steele entered a guilty plea to burglary, armed robbery, aggravated assault, and false imprisonment, and originally implicated Patterson as his accomplice, but later testified that Patterson was not involved.

1. Patterson first contends that there was insufficient evidence of asportation to sustain the kidnapping convictions under Garza u. State, 284 Ga. 696 (670 SE2d 73) (2008). He maintains that the movement of the children from their bedrooms to the kitchen was an inherent part of the burglary and armed robbery as it allowed for the taking of items from the house without interference. Patterson contends that the movement presented no additional danger to the children, other than that posed by the other crimes.

Although the crime occurred in 2006, Garza was decided after Patterson was convicted, and while his case was pending appeal. Thus, according to the “pipeline” rule, Garza applies to this case. Hammond v. State, 289 Ga. 142, 143-144 (1) (710 SE2d 124) (2011). Garza sets out four factors that should be considered in determining whether the asportation element of kidnapping is met:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

284 Ga. at 702 (1).

Here, the children were removed from their bedrooms by gunpoint and taken to the kitchen. The movement was not an inherent part of the crimes as their movement to the kitchen was not necessary to effect the completion of the burglary, armed robbery, or aggravated assault. Also, by moving them from their rooms, they were placed in greater danger because Patterson and his accomplice’s control over them was enhanced. See Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (moving victims into a different room after demanding at gunpoint that they empty their pockets was movement after and not incidental to the armed robbery); Williams v. State, 307 Ga. App. 675, 678 (1) (705 SE2d 906) (2011) (aggravated assault was completed when defendant pointed gun at victim and grabbed her, rendering his subsequent movement of her into the bathroom independent of that crime); Bryant v. State, 304 Ga. App. 755, 757 (1) (697 SE2d 860) (2010) (forcing victim into the house was done after the aggravated assault of sticking a gun into his neck had been completed).

Thus, contrary to Patterson’s contention, the evidence was sufficient to establish the asportation element of the kidnapping convictions of the children.

2. Patterson also contends that his trial counsel was ineffective for failing to challenge the armed robbery count in his indictment. He argues that it did not sufficiently allege the offense of armed robbery because it did not allege that property was taken “from the immediate presence of another.”

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Citation, punctuation and footnote omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). “[A] court addressing the ineffective assistance issue is not required to . . . address both components if the defendant has made an insufficient showing on one.” Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993). “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992).

Here, the indictment, in pertinent part, charged Patterson with “armed robbery for that [he] . . . did with the intent to commit a theft, take property, to wit: jewelry, cash and motor vehicles of another ... by use of an offensive weapon, to wit: a handgun.” OCGA § 16-8-41 (a) provides that “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”

It is true that the failure to charge a necessary element of the crime is a defect that will render an indictment void, Borders v. State, 270 Ga. 804, 806 (1) (514 SE2d 14) (1999); however, there was no error in this case. Although in this instance the indictment did not allege that the offense was committed in “the immediate presence” of the victim, we have found that,

[w]hile it is not explicitly stated in the indictment that the [property] was taken from the person or immediate presence of another, such is necessarily inferred from the allegation of a use of an offensive weapon to accomplish the taking. It should also be recognized that the alleged offense of “armed robbery” can be accomplished only via a taking from the person or immediate presence of another.

Campbell v. State, 223 Ga. App. 484, 485-486 (3) (477 SE2d 905) (1996).

Thus, as the armed robbery count of the indictment sufficiently alleged the elements of armed robbery, trial counsel was not ineffective for failing to challenge it, and the trial court did not err in denying his motion for new trial as to this claim.

3. Likewise, contrary to Patterson’s assertion, the evidence sufficiently established that he took property from the person and immediate presence of the victim. Although he argues that he did not have notice that his commission of the armed home invasion would constitute armed robbery, because he did not take the victim’s property from his person, and he was outside the room where the victim was confined when Patterson took property, we have held that,

[ o |ne’s “immediate presence” in this context stretches fairly far, and robbery convictions are usually upheld even out of the physical presence of the victim if what was taken was under his control or his responsibility and if he was not too far distant. Perhaps the most pertinent Georgia case is Clements v. State, 84 Ga. 660 (11 SE 505) (1890) in which an armed robbery conviction was upheld where the victim was forcibly detained at his smokehouse while property was taken from his home some 15 feet away. We think the language of the Clements decision plainly implies that a far greater distance than a mere 15 feet may be involved and robbery be sustained.

(Citation and punctuation omitted.) Maddox v. State, 174 Ga. App. 728, 730 (1) (330 SE2d 911) (1985). Thus, the concept of “immediate presence” is broadly construed if the object taken was under the victim’s control or responsibility and the victim is not too distant. McCoon v. State, 294 Ga. App. 490, 492 (1) (b) (669 SE2d 466) (2008) (immediate presence shown when the victim was present in his residence at the time his shotgun was being stolen in a nearby room).

Here, evidence that the victim was being held at gunpoint in the kitchen while Patterson stole items from various rooms in the house was sufficient to constitute a theft from his immediate presence.

4. Patterson finally contends that the trial court erred in admitting testimony from an additional police witness who was involved in Patterson’s chase because the State failed to provide the witness’s name and information prior to trial in violation of the reciprocal discovery provisions of OCGA § 17-16-1 et seq.

If the State fails to comply with its discovery obligations, the court “may order the [SJtate to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [Sjtate from introducing the evidence not disclosed ... or may enter such other order as it deems just under the circumstances.” OCGA § 17-16-6. See also Boykin v. State, 264 Ga. App. 836, 840 (3) (592 SE2d 426) (2003) (defendant must show that the State acted in bad faith and that he was prejudiced before the trial court will impose the harsh sanction of excluding evidence). Absent an abuse of discretion, we will not reverse a trial court’s decision to fashion a remedy for violations of the reciprocal discovery provisions. Murray v. State, 293 Ga. App. 516, 519 (2) (667 SE2d 382) (2008).

Decided November 22, 2011

Timothy B. Lumpkin, for appellant.

The record shows that one of the investigating detectives was prohibited from testifying about certain items belonging to the victim because the items had been retrieved from one of the stolen vehicles by a state trooper who was not on the State’s witness list. The next day, the State stated that it had not known about the trooper beforehand, and requested that the trooper be allowed to testify about how the victim’s property had been transported from the car to Georgia State Patrol Headquarters. It had also discovered that the trooper had a DVD of the chase, and requested that the DVD be admitted into evidence.

The trial court recessed to allow Patterson to interview the trooper and view the DVD, after which the State announced that it had inadvertently overlooked a notation about the existence of the DVD. The trial court excluded the DVD and any mention of it from evidence, but permitted the trooper to testify after offering Patterson additional time with him. Patterson declined the additional time with the witness and indicated that he was prepared, but requested the 18 pages of the State Patrol record that were excluded from his discovery. Patterson, however, agreed that the reports “had nothing to do with the case in chief.”

Pretermitting whether the trial court erred in admitting testimony from the state trooper, in light of the overwhelming evidence against Patterson, it is highly probable that any error, assuming it existed, did not contribute to the jury’s verdict in this case. Marshall v. State, 230 Ga. App. 116, 119 (2) (495 SE2d 585) (1998).

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs in judgment and fully in Divisions 1, 3, and 4.

Patrick H. Head, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

       The false imprisonment counts were merged with the kidnapping counts, and one of the aggravated assault counts was merged with the armed robbery count.

       Following Garza, the legislature amended the kidnapping provisions in OCGA § 16-5-40 to clarify the asportation requirement, but it applies only to crimes committed on or after July 1, 2009.