author: ELLINGTON, Presiding Judge.

text:
    A13A0048.
    VAN LEUVAN v. CARLISLE.
    (745 SE2d 814)
   ELLINGTON, Presiding Judge.

In this appeal from a temporary visitation order, Kellie Van Leuvan, the mother of a minor child (hereinafter, “the mother”), challenges the Superior Court of Fulton County’s order granting visitation rights to Connie Carlisle, the child’s maternal grandmother (“the grandmother”). In its order, the trial court found that the grandmother had shown, pursuant to OCGA § 19-7-3 (c) (1), that the health and welfare of the child would be harmed unless visitation with the grandmother is allowed and that such visitation is in the child’s best interest. The mother contends that the court erred in issuing the order without including specific, written findings of fact supporting its ruling and without showing that it applied the proper evidentiary standard in reaching its decision. She also contends that the court erred in considering the testimony and report of the court-appointed guardian ad litem for the child during the visitation hearing, and that the court erred in issuing a temporary visitation order, arguing that the applicable statute does not authorize temporary orders. For the following reasons, we find no error as to the latter two contentions, but vacate the court’s order and remand this case to the trial court with directions to issue a new written order that complies with OCGA § 19-7-3 (c) (1).

The grandmother’s request for visitation is governed by OCGA § 19-7-3, which is

commonly referred to as the “Grandparent Visitation Statute.” In accordance with the statute, a grandparent may file an original action for visitation rights to a minor child when the parents are separated and the child is not living with both of the parents. The statute was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child’s parent objects. In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.

(Citations and punctuation omitted.) Sheppard v. McCraney, 317 Ga. App. 91, 92 (730 SE2d 721) (2012). The statute includes the following relevant provisions: “Except as otherwise provided in paragraph (2) of this subsection[] any grandparent shall have the right to file an original action for visitation rights to a minor child[.]” OCGA § 19-7-3 (b) (1).

Upon the filing of an original action..., the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation. In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result where, prior to the original action [,]...: (A) The minor child resided with the grandparent for six months or more; (B) The grandparent provided financial support for the basic needs of the child for at least one year; (C) There was an established pattern of regular visitation or child care by the grandparent with the child; or (D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

OCGA § 19-7-3 (c) (1). This subsection also provides: “The court shall make specific written findings of fact in support of its rulings.” Id. In addition, the statute provides:

While a parent’s decision regarding grandparent visitation shall be given deference by the court, the parent’s decision shall not be conclusive when failure to provide grandparent contact would result in emotional harm to the child. A court may presume that a child who is denied any contact with his or her grandparent or who is not provided some minimal opportunity for contact with his or her grandparent may suffer emotional injury that is harmful to such child’s health. Such presumption shall be a rebuttable presumption.

OCGA § 19-7-3 (c) (3). “If the court finds that the grandparent or grandparents can bear the cost without unreasonable financial hardship, the court, at the sole expense of the petitioning grandparent or grandparents, may . . . [a]ppoint a guardian ad litem for the minor child[.]” OCGA § 19-7-3 (e) (1). “In the event that the court does not order mediation or upon failure of the parties to reach an agreement through mediation, the court shall fix a time for the hearing of the issue of visitation rights of the grandparent or grandparents.” OCGA § 19-7-3 (f).

During such hearing, the grandparent seeking visitation bears the burden of presenting clear and convincing evidence showing that the child’s health or welfare will be harmed unless such visitation is granted. Rainey v. Lange, 261 Ga. App. 491 (1) (583 SE2d 163) (2003); see Sheppard v. McCraney, 317 Ga. App. at 92 (“Due process requires that evidence supporting grandparent visitation meet the clear and convincing standard of proof.”) (citation omitted). Ultimately, the decision to grant or deny a grandparent’s petition for visitation is within the discretion of the trial court, and the court’s decision will be affirmed on appeal absent abuse of such discretion. Srader v. Midkiff, 303 Ga. App. 514, 516 (1) (693 SE2d 856) (2010).

1. The mother contends that the trial court erred in failing to include in its visitation order specific written findings of fact that support its decision to grant the grandmother’s visitation petition, as required by OCGA § 19-7-3 (c) (1), and in failing to show that it employed a clear and convincing evidentiary standard in reaching that decision. She relies on Rainey v. Lange, in which the court’s order granting the grandparent visitation stated:

Given the allegations the parents have raised against each other (but without making a finding as to the truth or falsity of any of the allegations), the Court finds that enough issues have been raised that visitation with the maternal grandparents is in the child’s best interests and will promote the child’s well-being and avoid harm to the child’s welfare, by way of providing a system of checks and balances.

(Punctuation omitted.) 261 Ga. App. at 492 (1). This Court ruled: “This broad conclusory statement fail[ed] to set forth specific findings of fact supporting the trial court’s grant of grandparent visitation which would enable this Court to conduct an intelligent review of the merits of this case.” (Citation and punctuation omitted; emphasis in original.) Id. Because the order did not include the requisite findings of fact, this Court vacated the order and remanded the case for the trial court to employ a clear and convincing evidence standard and to enter written findings of fact that were supported by such evidence. Id. See also Cates v. Jamison, 301 Ga. App. 441, 442 (687 SE2d 675) (2009) (“[T]he inclusion of specific written findings of fact supported by clear and convincing record evidence is mandatory to justify a grant of visitation.”) (citation omitted).

In the temporary order at issue in the instant case, the trial court stated only that it had considered the entire record before concluding that the grandmother “has shown, pursuant to OCGA § 19-7-3[ ], that the health and welfare of the minor child . . . would be harmed unless visitation is provided for her with her grandmother [and that] it [is] in said minor child’s best interest to have such visitation.” Thus, we must agree with the mother’s contention that the trial court erred in failing to show that it applied the proper evidentiary standard and in failing to include written findings of fact to support its broad, conclusory ruling, as required by OCGA § 19-7-3 (c) (1). Rainey v. Lange, 261 Ga. App. at 492 (1). Consequently, even though the mother did not ask the trial court to include findings of fact in its written order either before or after the court issued the order, and even though she failed to raise this issue in the court below, we are compelled to vacate the court’s grant of visitation to the child’s grandmother. Cates v. Jamison, 301 Ga. App. at 442; Rainey v. Lange, 261 Ga. App. at 492 (1). On remand, the trial court is directed to determine whether the record contains sufficient clear and convincing evidence to support its ruling and, if so, to issue specific, written findings of fact to support such ruling, pursuant to the requirements of OCGA § 19-7-3 (c) (1). Cates v. Jamison, 301 Ga. App. at 442; Rainey v. Lange, 261 Ga. App. at 492 (1).

Even though we have vacated the court’s order, we must address the mother’s remaining enumerated errors, since those issues will still be relevant on remand when the court issues a new order.

2. The mother contends that the trial court abused its discretion in overruling her objection to the testimony and written report of the guardian ad litem (“GAL”) whom it appointed to represent the child’s interests, arguing that such evidence did not meet the requirements for the admission of evidence under former OCGA § 24-9-67.1 (b). We conclude, however, that the mother waived any objections to the GAL’s qualifications as an expert witness or the admissibility of her testimony and written report by expressly consenting to the court’s order appointing the attorney who served as the GAL in this case and specifically enumerating her powers and duties under Uniform Superior Court Rule 24.9.

The record shows that, in the visitation petition, the grandmother asked the court to appoint a GAL to protect the child’s best interests. In her response to the petition, the mother stated that her child did not need a GAL to protect her interests, but she also requested that, if the court appointed a GAL, the court should order the grandmother to bear all costs associated with such appointment. During subsequent negotiations, the mother abandoned her objection to the appointment of a GAL, stating that both parties’ consent to the appointment was more “cost-effective” than litigating the need for such appointment and that she is “confident that the GAL’s report will confirm that [her child was] not being harmed by not seeing [the grandmother].” The mother then consented in writing to the court’s order appointing a specific attorney to serve as the GAL.

During the GAL’s investigation, she interviewed the mother, who provided information about her childhood, her relationship with her parents and former husband (the child’s father), and her relationship with the child, as well as her reasons for terminating the grandmother’s visits with the child. The mother also allowed the GAL to visit the child at their home, even leaving the GAL alone with the child for about 40 minutes, during which time the child spontaneously told the GAL that her mother would not let her see her grandmother anymore, and, when asked how that made her feel, she responded, “very sad.”

The GAL subsequently requested that the grandmother and the mother submit to psychological evaluations (as the consent order authorized the GAL to do). The mother refused the request, however, designating the request a “fishing expedition” for information that was irrelevant to the grandparent visitation proceedings. Thus, to the extent the mother suggests that the GAL was unqualified to testify as an expert witness on certain issues because she is not a psychologist, psychiatrist, or licensed clinical social worker, the mother clearly undermined the GAL’s attempts to obtain the expert opinions and recommendations of a psychologist for the court to consider.

Moreover, even though the mother filed an objection to the GAL’s qualifications as an expert witness on the day of the visitation hearing, such objections appear to be untimely. The record shows that the mother did not file a motion in limine to exclude the GAL’s testimony, did not challenge the GAL’s qualifications in her trial questionnaire, and did not request a pretrial hearing on the GAL’s qualifications, per former OCGA § 24-9-67.1 (d), which stated:

Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this Code section. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16.

(Emphasis supplied.) See Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 27 (2) (640 SE2d 620) (2006) (On the last working day before trial, the appellant filed a motion to exclude expert witness opinions on the ground that they failed to satisfy the requirements of OCGA § 24-9-67.1 (b). This Court held that the challenge was untimely under OCGA § 24-9-67.1 (d).).

Consequently, under these circumstances, we conclude that the mother waived her objections to the admissibility of the GAL’s expert testimony and written report.

Decided July 2, 2013.

Kilpatrick, Townsend & Stockton, Burleigh L. Singleton, for appellant.

Davis, Matthews & Quigley, David N. Marple, for appellee.

3. The mother also argues that OCGA § 19-7-3 does not expressly authorize the trial court to issue a “temporary” order granting visitation to the grandmother, so, in granting such relief, the trial court ignored the rules of statutory construction, impermissibly expanded the scope of the statute, and improperly altered the status quo between the parties. We disagree.

Although OCGA § 19-7-3 neither expressly allows nor prohibits temporary visitation orders, the term “custody,” as used in Georgia’s domestic relations provisions, encompasses visitation rights, and Georgia’s child custody statutes expressly allow trial courts to issue temporary orders. For example, OCGA § 19-9-3 (a) (1) and (a) (6) authorize courts to enter temporary orders in custody proceedings, while subsection (e) authorizes courts to enter temporary orders in actions to modify custody. Further, OCGA § 19-9-41 (3) defines a “child custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child,” and states that the term “includes a permanent, temporary, initial, and modification order.” (Emphasis supplied.)

Consequently, we find that the trial court was authorized to issue a temporary grandparent visitation order in this case.

Judgment vacated and case remanded with direction.

Andrews, P. J., concurs. Dillard, J., concurs in judgment only.

       OCGA § 19-7-3 (b) (2) provides that this provision “shall not authorize an original action [for grandparent visitation] where the parents of the minor child are not separated and the child is living with both parents.”

       We note that the grandparent visitation statute’s requirement that the trial court issue specific written findings of fact supported by clear and convincing evidence is an apparent anomaly among domestic relations statutes, given that the Georgia General Assembly has imposed no similar duty in contested divorce, alimony and custody actions, even in those cases that involve past acts of family violence. See, e.g., OCGA §§ 19-5-12 (form of final judgment and decree of divorce); 19-6-3 (allowing for temporary alimony awards); 19-6-5 (factors to be considered in determining the amount of permanent alimony); 19-6-14 (allowing for temporary child support awards); 19-9-7 (a) (“A judge may award visitation or parenting time to a parent who committed one or more acts involving family violence only if the judge finds that adequate provision for the safety of the child and the parent who is a victim of family violence can be made.”); see also OCGA § 19-9-3 (a) (8) (“If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge’s decision in making an award of custody including any relevant factor relied upon by the judge [in determining the best interests of the child]. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order [.]”) (emphasis supplied); Hunter v. Hunter, 289 Ga. 9, 11-12 (5) (709 SE2d 263) (2011) (In a divorce proceeding, because a former spouse moved for findings of fact after entry of the judgment, the trial court had the discretion to grant the motion, but was not required to do so, under OCGA § 9-11-52 (c), which states that, “[u]pon motion made not later than 20 days after entry of judgment, the court may make or amend its findings or make additional findings and may amend the judgment accordingly.”) (emphasis supplied); Weickert v. Weickert, 268 Ga. App. 624, 629 (2) (602 SE2d 337) (2004) (In a child custody modification action, the trial court was not required to include specific findings of fact in its written order because neither party requested that the court do so, as provided in OCGA § 9-11-52 (a), which states that “in all nonjury trials in courts of record, the court shall upon request of any party

        made prior to such ruling, find the facts specially and shall state separately its conclusions of law.”) (emphasis supplied); Bonds v. Bonds, 241 Ga. App. 378 (1) (527 SE2d 215) (1999) (accord).

       Cf. Luke v. Luke, 280 Ga. App. 607, 611 (2) (634 SE2d 439) (2006) (The visitation award stated that it was based on the trial court’s finding that “the strong, emotional bond between [the grandfather] and the said minor children is so well established that the emotional welfare and well being of the children would actually suffer unless visitation with [the grandfather] is granted.” The order also contained a statement showing that the trial court employed the clear and convincing evidentiary standard. Thus, the appellant failed to demonstrate that the visitation order was deficient.).

       Cf. Srader v. Midkiff, 303 Ga. App. at 516 (3) (Because the grandparents’ attorney had expressly approved the form of the court’s visitation order, they waived any claim on appeal that the court erred in failing to include findings of fact in its written order.).

       Former OCGA § 24-9-67.1 (b) provided:
      If scientific, technical, or other specialized knowledge will assist the trier of fact in any [civil] cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.
      Former OCGA § 24-9-67.1 was in effect at the time of the May 2012 hearing, and it remained in effect until January 1, 2013, when a new Evidence Code, enacted by the General Assembly in 2011, became effective. See Ga. L. 2011, p. 99, §§ 2, 101. Pursuant to that legislative act, former OCGA § 24-9-67.1 (b) has essentially been reenacted as OCGA § 24-7-702 (b).
      We note that, under both former OCGA § 24-9-67.1 (f) and current OCGA § 24-7-702 (f), the General Assembly has provided that, in interpreting and applying this provision, Georgia’s courts may draw from certain opinions of the Supreme Court of the United States, including Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993).

       The order appointing the GAL provided, inter alia, that the GAL shall assist the court in reaching its decision on the visitation petition, shall have the “full right and authority to completely investigate all aspects of the case” by interviewing “all parties and other persons with an interest” in the issues presented and by inspecting the child’s medical, educational, and other relevant records, shall be entitled to notice of and the right to participate in all hearings and other proceedings concerning the child, and shall be allowed to discuss the case with the parties’ attorneys, either jointly or individually.

       The grandmother submitted to a psychological evaluation, and the GAL spoke with the psychologist and summarized the results of that evaluation in her written report.

       The grandmother then filed a motion asking the court to order the mother to submit to psychological testing, per the GAL’s recommendations, but the court denied the motion.

       OCGA § 19-9-22 (1).

       See also OCGA § 19-6-14 (authorizing the court to award temporary child support while a divorce action is pending).


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A13A0128.
    LENOIR v. THE STATE.
    (745 SE2d 824)
   Phipps, Chief Judge.

In connection with an attack upon his then-fíancee D. W. in the presence of her young son, Emmett Lenoir was convicted of aggravated battery, sexual battery, false imprisonment, criminal damage to property in the second degree, cruelty to children in the second degree, and interference with a 911 call. In this appeal, Lenoir challenges the sufficiency of the evidence underlying the property damage conviction. He also argues that the trial court erred in instructing the jury during the final charge and in rejecting his claim of ineffective assistance of counsel. Lenoir has shown merit in only the sufficiency challenge; accordingly, we reverse his property damage conviction and affirm his other convictions.

At trial, the state showed the following. During the time in question, Lenoir was living with D. W. and her son, who was about seven years old.

D. W. testified about the attack that gave rise to this case. During the pre-dawn hours of June 21, 2003, D. W. rebuffed Lenoir’s sexual advances. Lenoir, who had been drinking gin that night, accused D. W. of having an affair, pushed her out of the bed, and ordered her to sleep in her son’s room. D. W. went to the bedroom where her son was sleeping, but Lenoir told her to come back to their bedroom. She returned and got back into the bed. As he sat in bed drinking gin, she fell asleep.

She was soon awakened, however, when Lenoir punched her in the mouth, causing it to bleed. She sat up. He demanded to know where she had spent her day; as she was providing him an account, he hit her in the head with the gin bottle, causing the bottle to break and the side of her head to bleed. Lenoir went to the kitchen, brought back a bottle of bleach, handed it to her, and ordered her to drink it. She poured the bleach onto the floor, and he punched her in the face.

D. W. headed to the living room for the only telephone in the house, but Lenoir pushed her, punched her in the mouth again, then dragged her by the hair back into the bedroom, where he threw her against the wall and, as D. W. testified, “just started beating me constantly.” By this time, her son had awakened and entered the bedroom; he was screaming for Lenoir to stop beating his mother.

Lenoir did not stop. He threw a space heater at D. W., striking the side of her face and head. He pulled down a picture overhanging the bed and broke it into pieces atop D. W.’s head. Then, he used a piece of the broken wooden frame to beat her about the head. Her son remained in the room — watching, crying, and screaming.

D. W. fled into the kitchen to retrieve a knife, but Lenoir was able to reach a steak knife first. When Lenoir tried to stab D. W., she grabbed the blade with her hand, and the blade broke from its handle. Lenoir grabbed another steak knife; D. W. grabbed its blade, too, which also broke from the handle. Lenoir began throwing dishes and glass canisters at D. W. When she tried to run outside, Lenoir grabbed her by her hair. He turned over the kitchen table. And when she eventually fell to the floor, he picked up a chair and beat her on the head with it. D. W. sought refuge in her son’s room, but Lenoir followed her and began striking her in the face and on her head with a piece of the wooden picture frame. Then he pulled her back into their bedroom and stomped on her stomach.

D. W. screamed for her son to “go get mommy some help,” and although the boy tried to run out the front door, he could not open it — Lenoir had secured the door with a chain, which the boy could not reach. D. W. told her son to call 911, but he could not place a call on the telephone, which was cordless — Lenoir had removed the battery.

Using one hand to hold D. W. by her hair, Lenoir used his other hand to flip a table onto its side, then to pry off its leg. Then he beat D. W. on her head with the table leg. D. W.’s son remained at his mother’s side, screaming. Still holding the table leg, Lenoir told D. W, “If you let me stick this in you, it will all be over with.” D. W. recalled that, when she refused, “he tried to stick it in me .... I was laying on my back, but when he was trying I was fighting and I turned over.... [A]fter I turned over,... I had my legs closed, and he just was trying to stick the table leg up in me.”

The attack had been going on for over an hour. Bleeding profusely, D. W. began to feel dizzy, as though she would pass out. Lenoir retrieved a bottle of rubbing alcohol and poured it over D. W.’s lacerated body. D. W.’s son was begging Lenoir not to kill his mother. D. W. passed out, and when she awakened, Lenoir, her son, and her car were gone. She went to her neighbor’s house, and her neighbor took her to a hospital.

Meanwhile, Lenoir had driven to a friend’s house. That friend testified that, between 6:00 and 7:00 a.m. on June 21, 2003, Lenoir appeared at his door wearing bloody clothing. He had with him D. W.’s son. Lenoir told his friend that he had “messed up” and that he was leaving. Lenoir left D. W.’s son with his friend, instructing the friend to call the child’s maternal grandmother. Lenoir’s friend quickly delivered the boy to his grandmother.

An emergency room doctor testified that D. W. arrived with multiple facial fractures and fractures to her arm and a finger. She had contusions in both eyes, as well as contusions all over her body. Her eyes were closed from the swelling, and she had multiple abrasions and lacerations on her face. He summarized that “she looked like a victim of a car crash.”

A detective from the sheriff’s office went to the hospital at about 7:00 a.m. to interview D. W. “[H]er face was completely bloody,” he described. There were severe lacerations across her face; there was massive swelling around her eye, cheek, and neck areas; and blood had matted her hair to her head. D. W.’s lacerated hands were dripping blood to the floor. There were bruises on her arms and legs, lacerations on her inner knee, and bruises on her thighs. The detective took photographs of D. W.’s injuries, and those photographs were later shown to the jury.

While the detective was interviewing D. W, her son was brought to the hospital. While interviewing the boy, the detective observed on the child’s shirt and shoes what appeared to be spots of blood; also, one of his legs had a laceration, and he had a bruise on his forehead. The detective took photographs of the child’s shirt, shoes, laceration, and bruise, which photographs were later shown to the jury.

That same day, June 21, 2003, a crime scene investigator went to D. W.’s residence. He testified that, when he walked into the house, he detected a strong odor of bleach. Strewn about the house, he found, inter alia, overturned furniture; broken furniture, including a table that was missing a leg; a bloody, detached table leg; bloody pieces of a picture frame; clumps of hair that appeared to have been pulled out of someone’s head; a blood-stained, nearly empty bottle of bleach; broken china; a broken cordless telephone; a broken cordless telephone base; a battery that appeared to fit a cordless phone; and “a phone jack that appeared to have been pulled off a wall.” There were blood stains throughout the house, including upon a wall leading to a child’s bedroom. The jury was shown numerous photographs depicting D. W.’s residence in the state the investigator found it. The jury was also presented an audiovisual recording of the damage done to D. W.’s residence, which recording had been captured (and narrated) by the detective.

Later, on the date of the attack, D. W.’s car was located at a wrecker yard. Lenoir was not apprehended until about a month thereafter. While Lenoir was being transported to the county jail, the detective who had interviewed D. W. at the hospital read Lenoir Miranda rights. According to the detective, “[Lenoir] did not speak at all in any shape, form or fashion.” When they reached the detective’s office and the detective again read Lenoir Miranda rights, Lenoir refused to sign the form; he stated, however, that he might sign the form later, but wanted first to consult with an attorney. The detective did not pursue the interview further.

Several days later, Lenoir informed the detective that he wished to tell his side of the story. At the start of the ensuing interview, the detective read Lenoir Miranda rights, and Lenoir gave his version of events of the early morning in question. Lenoir said that he and D. W. had argued, and the argument had erupted into a physical altercation — they began fighting each other. He described, “I just lost it,” recounting that during the time of the physical altercation, “I didn’t know it was that bad.” Lenoir admitted that he had blocked D. W. when she tried to flee the house, that he had damaged items within the residence, and that D. W.’s son had witnessed most of the physical altercation. Lenoir denied, however, using a table leg to (attempt to) penetrate D. W.’s body, and he denied interfering with anyone’s attempt to place a 911 call, recalling that the cordless telephone broke apart because he threw it at D. W. Lenoir’s interview with the detective was captured by audiovisual recording, which was played for the jury.

Lenoir neither took the stand nor called any witnesses. The jury found him guilty of aggravated battery against D. W.; sexual battery against D. W.; false imprisonment of D. W.; criminal damage to D. W.’s property in the second degree; cruelty to children in the second degree; and interference with placing a 911 telephone call.

1. Lenoir contends that the evidence was insufficient to sustain his conviction for criminal damage to property in the second degree.

OCGA § 16-7-23 (a) defines: “A person commits the offense of criminal damage to property in the second degree when he . . . [ijntentionally damages any property of another person without his consent and the damage thereto exceeds $500.00.” Lenoir was alleged to have committed this crime by “unlawfully and intentionally damaging] the property of [D. W], to wit: household items and furniture, without the said person’s consent, said damage exceeding $500.00.”

Citing Waldrop v. State, Lenoir argues that the state failed to prove that he was guilty of that crime because “[n]o evidence was presented... as to the value of the property.” The state responds that it “cannot find any evidence in the record as to presentation of the evidence regarding the value of the property” and thus posits that Lenoir is entitled to relief from that conviction.

When an appellant challenges the sufficiency of the evidence to support a 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.” Having examined the evidence in that light, we conclude that, under cases such as Waldrop,

there was no competent evidence from which the jury could determine that the value of the damage for which defendant was responsible was in excess of $500, an essential element of the indicted crime, and [Lenoir’s] conviction for damaging [D. W.’s household property] must, therefore, be reversed.

2. Lenoir contends that his aggravated battery conviction should be reversed, asserting that the trial court “overcharged” the jury when defining that offense during the final charge.

OCGA § 16-5-24 (a) defines: “A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” Lenoir was alleged to have committed battery by “maliciously causing] bodily harm to the person of [D. W.], by seriously disfiguring her body by causing severe lacerations to her scalp and face, by repeatedly striking her in the head with a wooden table leg and broken wooden picture frame.” And as Lenoir points out, the trial judge minimally tailored the statutory provision defining that crime, hence instructing the jury, “A person commits the offense of Aggravated Battery when he or she maliciously causes bodily harm to another by depriving her of a member of her body, by rendering a member of her body useless, or by seriously disfiguring her body or any member thereof.”

Pretermitting whether Lenoir’s lawyer at the 2004 trial waived the issue by neither objecting to that instruction nor reserving objections for later, the trial court committed no harmful error.

Where the indictment charges a defendant committed an offense by one method, it is reversible error for the court to instruct the jury that the offense could be committed by other statutory methods with no limiting instruction. The defect is cured, however, where the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.

The record reveals that the trial court provided the jury with the indictment and instructed the jurors that the burden of proof was with the state to prove every material allegation of the crimes charged in the indictment and every essential element of each such crime beyond a reasonable doubt. Therefore, because “any error in overcharging the jury on aggravated [battery] was cured,” Lenoir cannot show harmful error as would be required for a reversal as to this offense.

3. Lenoir contends that the trial court erred by rejecting his claim that he received ineffective assistance of counsel.

To prevail on his ineffective assistance claim, [Lenoir] must show that his trial counsel provided deficient performance and that, but for that unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.

Lenoir maintains that his trial lawyer erred in three respects.

(a) Lenoir complains that his trial lawyer neither objected to the “overcharge” instruction on aggravated battery nor reserved opportunity to later object. But by the end of the final charge, any harmful effect that potentially stemmed from the cited language was cured. We find no professional deficiency.

(b) Lenoir complains that his trial lawyer did not object when, as he asserts, the detective improperly commented on his silence. Specifically, Lenoir cites the detective’s testimony that: (i) after Miranda rights were read to him during transport to the county jail, he said nothing; and (ii) after Miranda rights were read to him in the detective’s office, he asked for a lawyer.

“Certainly, the fact that a defendant has exercised the right to remain silent is not to be used against the defendant at trial.” Pretermitting whether trial counsel erred by failing to lodge an objection to the cited evidence, Lenoir cannot prevail on his ineffectiveness claim. “As for the prejudice prong of [Lenoir’s] ineffectiveness claim, we note that an improper comment on a defendant’s silence maybe harmless error, where, as here, there is overwhelming evidence of guilt.”

(c) Lenoir complains that his trial lawyer did not object to what he claims was bolstering of the credibility of the crime scene investigator.

During its effort to show that this witness should be qualified by the court as an expert in crime scene investigation, the state asked this witness, “And have your process of crime scenes led to convictions of defendants?” The witness answered, “Yes, they have.” Pretermitting whether the answer amounted to impermissible bolstering, we conclude that Lenoir has failed to demonstrate the requisite prejudice.

[E]ven if we concluded that trial counsel performed unprofessionally in failing to lodge the additional objections now urged by [Lenoir], [his] ineffective assistance of counsel claim still fails. The evidence of [his] guilt was overwhelming, and [he] failed to demonstrate that but for the [single response cited here and the testimony cited in Division 3 (b)] discussed above, there is a reasonable probability that the outcome of the trial would have been more favorable to [him]. Consequently, [Lenoir has] failed to establish the requisite prejudice to support an ineffective assistance of counsel claim.

Decided July 2, 2013

Zell & Zell, Rodney S. Zell, for appellant.

Fredric D. Bright, District Attorney, DeLeigh P. Shelton, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Ellington, P. J., and Branch, J., concur.

       The trial court ruled that this individual was qualified to testify as an expert in crime scene investigations.

       OCGA § 16-5-24 (a).

       OCGA § 16-6-22.1 (b).

       OCGA § 16-5-41 (a).

       OCGA § 16-7-23 (a) (1).

       OCGA § 16-5-70 (c).

       OCGA § 16-10-24.3.

       231 Ga.App. 164 (498 SE2d 337) (1998) (whole court) (declining to accept view concerning “proof of damage” offered by the dissent).

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

       See, e.g., Mack v. State, 255 Ga. App. 210, 214 (3) (564 SE2d 799) (2002), citing Waldrop, supra at 166; Bereznak v. State, 223 Ga. App. 584-585 (1) (478 SE2d 386) (1996) (explaining that, where the state gave the jury no evidence of purchase price and no competent opinion testimony which jurors could use as a basis for applying their everyday experience and reaching a value for damaged items in excess of $500, the evidence was insufficient to support conviction for criminal damage to property in the second degree).

        Mack, supra (punctuation and footnote omitted); see Waldrop, supra; Bereznak, supra.

       See generally Brown v. State, 291 Ga. 750, 754 (4) (733 SE2d 300) (2012) (concluding that failure to object to jury charge amounts to waiver in trials occurring prior to July 1, 2007).

        Williams v. Kelley, 291 Ga. 285, 286-287 (728 SE2d 666) (2012) (punctuation omitted; emphasis in original).

       Id. at 287.

       See O’Neal v. State, 288 Ga. 219, 223 (2) (702 SE2d 288) (2010) (“[I]t is fundamental that harm as well as error must be shown for reversal.”).

        Long v. State, 287 Ga. 886, 891 (4) (700 SE2d 399) (2010), citing Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       See Division 2, supra.

        Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008) (citation omitted).

       See, e.g., Rowe v. State, 276 Ga. 800, 805 (4) (582 SE2d 119) (2003) (determining that Fifth Amendment rights were not violated by evidence that defendant invoked his right to counsel, where defendant invoked that right after giving a lengthy statement to police at which point the interview was properly terminated, and it did not purport to be evidence of his guilt nor was it directed to undermining any of his defenses).

       See further Division 3 (c), infra. Schofield v. Holsey, 281 Ga. 809, 811 (II), n. 1 (642 SE2d 56) (2007) (holding that the combined effect of trial counsel’s deficiencies should be considered).

        Pearson v. State, 277 Ga. 813, 817 (5) (c) (596 SE2d 582) (2004) (citation and punctuation omitted); see Wright v. State, 275 Ga. 427-428 (2) (569 SE2d 537) (2002), overruled on other grounds, Wilson v. State, 277 Ga. 195, 199 (2) (586 SE2d 669) (2003).

       Supra.

        Smith v. State, 284 Ga. 599, 603-604 (2) (a) (669 SE2d 98) (2008); see Schofield, supra.


author: BARNES, Presiding Judge.

text:
    A13A0134, A13A0135.
    VEASEY v. THE STATE (two cases).
    (745 SE2d 802)
   BARNES, Presiding Judge.

In these companion appeals, Christopher Veasey was tried and convicted under two separate indictments. In Case No. A13A0134, he appeals his convictions for two counts of armed robbery, five counts of aggravated assault, and possession of a firearm during the commission of a felony. He was sentenced to concurrent sentences of fifteen years on the armed robbery and aggravated assault counts, and five years probation on the possession of a firearm conviction. In Case No. A13A0135, Veasey appeals his conviction for robbery. He was sentenced to 15 years on that conviction as well, concurrent to the sentence in Case No. A13A0134. Veasey contends on appeal that the evidence proved at trial was insufficient to convict him of the crimes charged in the indictments. Upon our review, we find the evidence sufficient to sustain his convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

(Citations and punctuation omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

The evidence, construed in favor of the verdict, demonstrates that on May 5, 2005, the owner of a Chinese restaurant closed the restaurant and drove home with his wife, three children, and a restaurant employee. The owner testified that when the family approached the front door of their home, two men confronted them, brandished a gun, and took the owner’s wallet and gun and the employee’s wallet. The owner’s wife, eleven-year-old son, and ten-year-old daughter also testified about the armed robbery. The wife testified that the men approached them, pointed the gun at them and took her husband’s and the employee’s wallets, and that she was “very fearful” that she would be hurt. The son testified that he did not see the gun but believed that one of the men had a gun and that he was “scared.” The daughter testified that she saw the men point a gun at the group and that the men had searched her pockets and book bag.

On August 10, 2005, a cashier at another Chinese restaurant drove home after closing, and when she approached her home, a man came “from nowhere” and asked for her purse. When she refused, the man knocked her down and took her purse, into which the victim had placed the night’s receipts, checks, and cash from the restaurant. When the victim’s husband heard her screams, he went outside and found her lying face-down, with blood on her face and clothing. He saw a dark-colored, two-door car parked in a neighbor’s driveway, and as the car sped away, he noticed that the exhaust system and engine were “in bad need of repair.”

Shortly thereafter, a policeman responding to a be-on-the-lookout bulletin for the car used in the robbery, reportedly an older “burgundy or maroon Cutlass . . . [with] a loud muffler,” spotted a vehicle matching the description. He and a second officer attempted to stop the vehicle, but when they approached the car, it sped off. As the two patrol cars pursued the vehicle, several items were tossed out of it, including a gun, a purse, and money. The chase ended when the vehicle reached a dead-end street, at which point the three men in the car jumped out and “took off running in different directions.” The occupants were not apprehended that night, but the two officers later identified Veasey as one of the men in the car from a photographic lineup. The two other suspects in the car, co-defendants Alfred Bryant and Larry Edwards, testified about the events of the August 10 robbery and also testified that Veasey was present during the crime. The purse and other items that were tossed out of the car during the chase were recovered, and the cashier identified them as some of the items taken from her during the robbery.

A detective who had worked on both robberies suspected that they might be related. He presented the restaurant owner with a photographic lineup that included Veasey, and the owner identified Veasey as the man who had robbed him with a gun.

Veasey challenges the sufficiency of the evidence against him, but the evidence as outlined above was sufficient for a rational trier of fact to find Veasey guilty of the crimes charged in both indictments. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

Case No. A13A0134

1. (a) There is no merit to Veasey’s contention that the evidence was insufficient to support his conviction for the armed robbery of the restaurant owner. He contends that he could not be convicted of armed robbery because the owner testified that one of the assailants took the owner’s gun and used it to rob him; thus, he asserts, he could not be convicted of armed robbery when the “fruit of the armed robber/’ perpetuated the crime. However, the owner and his wife both testified that the assailants already had a gun when they approached, and the owner further testified that the assailants took the owner’s gun from his person when they searched him.

The testimony of the victim, standing alone, was sufficient to sustain the conviction. See former OCGA § 24-4-8 (“[Testimony of a single witness is generally sufficient to establish a fact.”). It was the role of the jury, not this Court, “to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012). This evidence was sufficient to sustain the conviction of armed robbery of the owner.

(b) Veasey also contends that the evidence was insufficient to show that he committed an armed robbery as alleged in Count 2 against the restaurant employee who was with the group. He maintains that there was evidence that there might have been two employees at the scene, and that because the employee identified in the indictment did not testify at trial, the evidence was insufficient to establish the armed robbery.

Preterm itting whether there were one or two employees who were robbed, the evidence was sufficient to sustain the conviction of armed robbery of the named employee. The restaurant owner and his wife both testified that the named employee’s wallet was taken.

[T]he identity of the person alleged to have been robbed is not an essential element of the crime and need not be proved by direct evidence. Also, robbery is a crime against possession, and is not affected by concepts of ownership. Thus, it does not matter exactly whose property was taken so long as it was taken from a person or the immediate presence of another. . . . [T]he general rule that allegations and proof must correspond is based upon the requirements (1) that the accused is definitely informed of the charges against him so he can present his defense and not be surprised by the evidence at trial, and (2) that he is protected against another prosecution for the same offense. That rule has not been violated here.

(Citations and punctuation omitted.) Ward v. State, 304 Ga. App. 517, 522 (1) (a) (696 SE2d 471) (2010).

Here, the indictment was detailed enough for Veasey to understand what he was alleged to have taken, and from whom. Accordingly, the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Veasey committed the armed robbery of the employee named in the indictment. See McKisic v. State, 238 Ga. 644, 645-646 (2) (234 SE2d 908) (1977) (police officer testified to the name of the victim, which was the name alleged in the indictment).

(c) Veasey also contends that the evidence was insufficient to sustain his convictions for the aggravated assaults upon the restaurant owner’s wife and three minor children. We do not agree.

Here, there was testimony that when Veasey approached the group with the gun, the children saw the gun and started screaming. The wife testified that she saw one of the men with a gun and was “very fearful,” the daughter testified that a gun was pointed at the group and that she was “sad,” and the son testified that he was “scared” and that the men put what he believed to be a gun “by [his] side.” The youngest daughter did not testify at trial. The assault counts charged that an aggravated assault had been made upon the victims “with a gun ... by pointing said gun at [the victim].”

Under OCGA § 16-5-21 (a) (2) a person commits the offense of aggravated assault when he or she assaults with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. Assault occurs when a person puts another in reasonable apprehension of immediately sustaining a violent injury. OCGA § 16-5-20 (a) (2).

Decided July 2, 2013

J. Scott Key, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

Dixon v. State, 285 Ga. App. 694, 695-696 (647 SE2d 370) (2007). “A pistol is a deadly weapon. Indeed, the presence of a gun would normally place a victim in reasonable apprehension of being injured violently. Whether [the victims have] been placed in reasonable apprehension of injury is a question of fact” for the jury to determine. Lewis v. State, 297 Ga. App. 517, 518 (1) (677 SE2d 723) (2009). The evidence as to these four counts of aggravated assault was sufficient to sustain the convictions.

Case No. A13A0135

2. Veasey contends that the evidence was insufficient to sustain his conviction for the August armed robbery of the cashier. He asserts that the indictment alleged that one of the checks taken in the armed robbery was the property of the restaurant owner, but that the actual payee was someone with another name, and thus the State had failed to establish the identity of the victim. This enumeration is meritless.

As noted before, robbery is a crime against possession and it does not matter exactly whose property was taken so long as it was taken from another. Thus, Veasey’s challenge to the sufficiency of the evidence supporting his conviction for the armed robbery of the cashier is without merit. Jackson v. State, 314 Ga. App. 806, 807-808 (2) (726 SE2d 63) (2012).

Judgments affirmed.

Miller and Ray, JJ., concur.


author: DOYLE, Presiding Judge.

text:
    A13A0157.
    TRIBECA HOMES, LLC v. MARATHON INVESTMENT CORPORATION et al.
    (745 SE2d 806)
   DOYLE, Presiding Judge.

Tribeca Homes, LLC (“Tribeca”), filed suit against Marathon Investment Corporation, Dan West, Audrey Akpan, and others, alleging tortious interference with business relations and violation of the Georgia Racketeer Influenced and Corrupt Organizations Act (“RICO”), OCGA § 16-14-1 et seq. Tribeca appeals the trial court’s order granting the defendants’ motions for summary judgment. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that on August 6, 1970, Johnny Bentley, Jr., was deeded a lot at 9 Branham Street, Atlanta, in DeKalb County. Thereafter, Bentley failed to pay property taxes on the property, and on May 28, 1974, the City of Atlanta took possession of the property following a sheriff’s sale. On October 31, 2001, the Land Bank took title to 9 Branham Street as part of a program in which the Land Bank collected underperforming parcels owned by different government bodies and disbursed them in order to generate taxable property on the parcels. The Land Bank was headed by a four-person board of directors, and its executive director at the time was Audrey Akpan.

In 2006, Jason Strickland formed Tribeca Homes in order to build low- to moderate-income housing primarily in the City of Atlanta to address the need for such housing near the City. And in late 2006, Tribeca applied to acquire 9 Branham Street from the Land Bank in order to build a single-family residence on the parcel. In mid-2007, an unrelated party, Reynoldstown Revitalization Corporation, also applied for the same property.

On May 31, 2007, Mamie Bentley, the surviving heir of Johnny Bentley, Jr., quitclaimed any remaining interest she held in 9 Bran-ham Street to Marathon, which is owned by defendant Dan West. On June 4, 2007, Marathon attempted to redeem the property, requesting that the Land Bank transfer the deed for 9 Branham Street to it, and Marathon tendered to the Land Bank $5,087.14 and Mamie Bentley’s quitclaim deed to the property. Thereafter, on August 22, 2007, the Land Bank deeded 9 Branham Street to Marathon.

Following the deed of property to Marathon, Tribeca filed the instant action alleging that Marathon and West had bribed Akpan in order to receive numerous properties including 9 Branham Street; that West knowingly committed fraud by illegally redeeming the property pursuant to OCGA § 48-4-48; and that Akpan only recommended that the Board of the Land Bank deed properties to those individuals who were providing her with bribes. In support of its case, Tribeca produced deposition testimony of various individuals with previous connections to Marathon and the Land Bank, as well as two e-mails referencing assistance payments from Marathon and West to Akpan. In a cursory order, the trial court granted summary judgment to the defendants.

1. Tribeca contends that the trial court erred by granting summary judgment as to the RICO action. We disagree.

As a mandatory condition to asserting the RICO claims, [Tribeca] must show a direct nexus between at least one of the predicate acts listed under the RICO Act and the injury [it] purportedly sustained. Specifically, a private plaintiff under the RICO Act must show, that the injury suffered flowed directly from the predicate offense. In other words, [Tribeca] must show that [its] injury was caused by reason of a violation of one of the specific crimes listed in OCGA § 16-14-3 (9) (A).

Even taking all the allegations of bribery, fraudulent statements, and other misdeeds as true, Tribeca is unable to establish that the trial court erred by granting summary judgment on its RICO claim because it was merely an applicant for grant of the property, so the company cannot show direct harm from the Land Bank’s transfer of 9 Branham to Marathon. In support of its argument, Tribeca cites to Schoenbaum Limited Co., LLC v. Lenox Pines, LLC, in which this Court held that questions of fact existed with regard to any direct harm suffered by the plaintiff. In that case, however, the parties had an existing real estate development contract when the defendants allegedly engaged in the predicate illegal acts and forced plaintiff out of further development of the property. In this case, on the other hand, no such contract existed between Tribeca and the Land Bank, and even if Marathon had not redeemed the property and even if no other entities applied for 9 Branham Street, Tribeca was not assured of receiving the property.

2. For very similar reasons, Tribeca’s challenge to the trial court’s grant of summary judgment as to its claim for tortious interference with business relations also fails.

The elements of tortious interference with contractual relations, business relations, or potential business relations are: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff. Hence, if a plaintiff cannot show that damage to his rights or obligations under a contract proximately resulted from the third party’s alleged interference, his claim for tortious interference fails as a matter of law. And, any damage claimed to have been suffered by a plaintiff does not proximately result from the defendants’ alleged misconduct, if the damage would have occurred notwithstanding their misconduct. The question of proximate cause may be decided by the court as a matter of law in plain and indisputable cases.

Decided July 2, 2013

Roger C. Wilson, for appellant.

Clark Caskey, Adam C. Caskey, Griffin & Strong, Rodney K. Strong, Theodore H. Lackland, for appellees.

In this case, as in Duke Galish quoted above, Tribeca failed to establish that Marathon’s or Akpan’s misdeeds was the proximate cause of its damage because it cannot show that independent of those actions it would have secured the property from the Land Bank. As stated in OCGA § 48-4-63 (b) (4), the Land Bank “shall have the power to manage, maintain, protect, rent, lease, repair, insure, alter, sell, trade, exchange, or otherwise dispose of any property on terms and conditions determined in the sole discretion of the authority.” Because the Land Bank was under no obligation to grant 9 Branham Street to Tribeca even if no other entity applied for the parcel, Tribeca is unable to establish that any alleged wrongdoing of Marathon, West, or Akpan was the proximate cause of any injury to it.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       The trial court later added the Fulton County/City of Atlanta Land Bank Authority, Inc. (“the Land Bank”), as a necessary party in interest, but Tribeca does not appeal the grant of summary judgment to the Land Bank.

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

       We note that in many instances, both Tribeea’s and Marathon’s briefs either lack appropriate page citations in support of factual assertions or lack any citation at all. See Court of Appeals Rule 25 (c) (2) (iii); Latimore v. City of Atlanta, 289 Ga. App. 85, 86 (1) (656 SE2d 222) (2008).

       See generally OCGA §§ 48-4-60 et seq.; 48-4-100 et seq.

       See OCGA § 48-4-48.

       Tribeca argues that the redemption was invalid or illegal because the right to redeem the property expired after the 1974 tax sale. See BX Corp. v. Hickory Hill 1185, 285 Ga. 5, 7-8 (673 SE2d 205) (2009). Compare with Moultrie v. Wright, 266 Ga. 30, 31-32 (1) (464 SE2d 194) (1995), superseded by statute as stated in Community Renewal & Redemption v. Nix, 279 Ga. 840, 842 (1) (621 SE2d 722) (2005).

       The defendants dispute the authenticity of the e-mails and produced a computer forensics expert to provide support for their argument that the e-mails were altered by a third party to include the language about assistance payments.

       (Punctuation and footnotes omitted.) Nicholson v. Windham, 257 Ga. App. 429, 430 (1) (571 SE2d 466) (2002).

       Compare with Schoenbaum Limited Co. v. Lenox Pines, 262 Ga. App. 457, 471 (8) (c) (585 SE2d 643) (2000) (holding that a question of fact existed as to whether defendants’ alleged predicate acts directly injured plaintiff under the parties’ real estate development contract after defendants forced plaintiff out of further development of the property).

       Id.

       See id. at 470-471 (8) (c).

       (Citations and punctuation omitted.) Duke Galish, LLC v. Manton, 291 Ga. App. 827, 832 (1) (662 SE2d 880) (2008), subsequent history at 308 Ga. App. 316 (707 SE2d 555) (2011).

       See Duke Galish, LLC, 291 Ga. App. at 832-833 (1) (purchase agreement’s unfulfilled contingency to obtain building permits established as a matter of law that any allegedly fraudulent action by the creditor was not the proximate cause of any failure to consummate the purchase agreement; thus, tortious interference claim failed as a matter of law, and any assertion that the plaintiff could have secured the building contracts was too speculative to support the claim).

       (Emphasis supplied.)


author: McFadden, Judge. BOGGS, Judge,

text:
    A13A0161.
    WILLIAMS et al. v. WARREN et al.
    (745 SE2d 809)
   McFadden, Judge.

The complaint in this intrafamily lawsuit prayed for cancellation of a deed from a mother to her three adult children. It alleged fraud, undue influence, inadequate consideration, as well as improper recordation. It alleged, in short, that defendants Carolyn Williams and Helen Malone, the grantor’s daughters, do not love their mother and that, in the vulnerability of her old age, it was up to her son, plaintiff Victor Warren, to protect her from them. The daughters answered, denying the material allegations of their brother’s complaint.

The case settled during trial, but the settlement agreement left open the issue of attorney fees. Tracking the language of OCGA § 9-15-14 (a), the trial court found that the son was entitled to attorney fees and awarded him $38,303.31. We conclude that no evidence supports the trial court’s findings and therefore reverse.

The testimony on which the trial court based its findings — and which appears to have been a major impetus toward settlement — is the last few minutes of the testimony of Helen Malone, one of the daughters.

COUNSEL FOR THE SON: Are you opposed — still opposed to the sale of the property?
MALONE: I don’t think it’s the time to sell the property. Mother is alive. In my mind the property should never be sold as long as mother is living. It’s her property. That’s the way I want her to think of it. It doesn’t matter whose name is on the deed. Three children, it’s still her property. I don’t even think of it as my property.
COUNSEL FOR THE SON: Then why not give it back to her?
MALONE: It serves no purpose. It’s the same thing.
COURT: Ms. Malone, I want to make sure I understand your testimony. Notwithstanding the deed that your mother signed conveying the property to you, your sister, and your brother, you still consider this to be your mother’s property?
MALONE: Absolutely without a doubt.
COURT: And it’s as if you’re holding it in trust for her.
MALONE: It is mother’s property.
COURT: So if she were to need the money, how would she access it?
MALONE: I don’t think she needs the money.
COURT: I understand. But let’s just what if.
MALONE: I haven’t thought that far ahead.
COURT: But right now there would be nothing she could do of her own to require that it be sold and used for her benefit.
MALONE: I don’t know. I have not — have not thought through that.
COURT: Thank you, ma’am. You can go down.

Shortly after that testimony, the proceedings were suspended so that the parties could negotiate; and they reached an agreement. In that agreement, they acknowledged that their mother had now become legally incapacitated. They agreed to petition the probate court to appoint a conservator, who would “consider the advantages and disadvantages of leaving the deed to the... property in the names of [the three siblings] or executing a deed transferring the... property back to [their mother],” giving “[p]articular consideration[ ] . . . [to] the effects of Medicaid relate-back provisions and conservation trust status tax savings.” And they agreed that, should the conservator determine it was in the mother’s best interest to leave the property in the names of her children, they would hold the property in trust for her benefit.

As noted above, the settlement agreement left open the issue of attorney fees. After a motion, response, and hearing, the trial court entered an order finding that “the [daughters] were called for cross examination and testified that, notwithstanding the deed, they considered the property to be their mother’s property,” and that “the [daughters] maintained their position that the deed should not be set aside even though they simultaneously asserted that the property transferred by the deed to the parties herein was still their mother’s property.” Tracking the language of OCGA § 9-15-14 (a), the trial court concluded: “There was such a complete absence of any justiciable issue of law or fact with respect to the [daughters’] defense in this case [that] they could not have reasonably believed that the court would accept it.” We granted the daughters’ application for discretionary appeal, and this appeal followed.

1. The order’s failure to specify subsection (a) or (b) of OCGA § 9-15-14.

The trial court’s order awarding attorney fees to the son does not specify the subsection of OCGA § 9-15-14 under which it was made. The daughters argue that this is fatal to the award. Such specificity is normally required.

An order awarding attorney fees pursuant to OCGA § 9-15-14 must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b). . . . Specificity in the award is important because the standards of appellate review are different under each subsection: the standard under subsection (a) is the “any evidence” rule; the standard under subsection (b) is abuse of discretion.

(Citations, punctuation and emphasis omitted.) Fulton County School Dist. v. Hersh, 320 Ga. App. 808, 814-815 (2) (740 SE2d 760) (2013). But here, as noted above, the trial court’s findings substantially trackedOCGA § 9-15-14(a). Consequently, under the specific circumstances of this case, the failure to specify subsection (a) is not fatal to the award. See Ellis v. Caldwell, 290 Ga. 336, 339 (2) (a) (720 SE2d 628) (2012) (concluding that trial court made its attorney fee award under OCGA § 9-15-14 (b) based on the language in the order even though the trial court failed to specify the subsection).

2. Finding of conduct to support the award.

OCGA § 9-15-14 (a) provides:

In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney’s fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party’s attorney, or against both in such manner as is just.

Since the trial court made the award under OCGA § 9-15-14 (a), we apply an any evidence standard of review. Fulton County School Dist., supra, 320 Ga. App. at 815 (2).

That said, whether attorney fees are required under OCGA § 9-15-14 (a) depends in some cases not so much upon an assessment of what we usually mean when we speak of “evidence” — testimony and exhibits and the like — but upon an assessment of the state of the law at the time a party advanced a legal argument that, another party now contends, forms the basis for an award of attorney fees. Such an assessment of the state of the law, we think, itself presents a question of law, and we usually do not defer to trial courts about pure questions of law.

Gibson Constr. Co. v. GAA Acquisitions I, 314 Ga. App. 674, 676 (725 SE2d 806) (2012) (citation omitted).

The trial court’s interpretation of Ms. Malone’s testimony is unsustainable under any standard of review. Her testimony was clear. The trial court misconstrued it in a way possible only for a lawyer. When she said that she still considered the subject property her mother’s and that conveying it back would make no difference, Ms. Malone was not offering an opinion about the scope of her legal rights. Her testimony — legalistically paraphrased — was that whatever the scope of her legal rights, her exercise of those rights would be constrained by her filial duties.

Moreover even if the deference owed to the trial court as finder of fact requires us to ignore Ms. Malone’s clearly-expressed meaning and accept an implicit finding that — as the dissent would have it — the daughters’ denials of his allegations that they were preying on their mother was “motivated by the explicitly expressed desire to oppose their brother,” the trial court’s reasoning nevertheless fails. Nothing in OCGA §9-15-14 (a) authorizes trial courts to assess attorney fees on the basis of disapproval of a litigant’s motives. And although OCGA § 9-15-14 (b) does refer to actions or defenses “interposed for delay or harassment,” this award could not have been sustained on the basis of that subsection either.

The fact that a plaintiff is litigious, that he sues everyone who offends him or has any disagreement with him, should not affect his right to recover what is rightly his. “No man is bound to forego litigation at the expense of yielding rights apparently well-founded, much less those which prove to be so founded in the end.” Tift v. Towns, 63 Ga. 237, 242 (3) [(1879)].

Ryle v. Sliz, 162 Ga. App. 868, 869-870 (2) (293 SE2d 451) (1982).

The question before us is whether or not, in light of the current state of the law, Gibson Constr. Co., supra, 314 Ga. App. at 676, Ms. Malone’s testimony can support a finding that she and her sister asserted defenses “with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept [them] .’’OCGA § 9-15-14 (a). It cannot. If her testimony is deemed a legal opinion that the subject deed is invalid, it is — to that extent — inadmissible. Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 707 (2) (266 SE2d 345) (1980); see also former OCGA § 24-9-65; OCGA § 24-7-701 (a) (effective January 1, 2013).

Nor did Ms. Malone admit to the factual predicate of any of her brother’s claims. She did not admit to any of the elements of a cause of action for fraud. See Fortson v. Freeman, 313 Ga. App. 326, 328 (721 SE2d 607) (2011) (“The tort of fraud has five elements: a false representation by the defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by the plaintiff, and damage to the plaintiff.”) (citations omitted). Nor did she admit to the elements of undue influence. See Schaffer v. Fox, 303 Ga. App. 584, 585 (1) (693 SE2d 852) (2010) (“For undue influence to be sufficient to invalidate a deed, it must amount to deception or force and coercion that operates on the grantor when she is executing the deed so that the grantor is deprived of free agency and the will of another is substituted for that of the grantor.”) (citation and punctuation omitted). Her testimony was at most tangentially related to the issue of inadequate consideration. See OCGA § 23-2-2. And it shed no light at all on the circumstances of recordation of the subject deed.

It is fair to read Ms. Malone’s testimony to acknowledge failure to consider the possibility that her mother’s best interest might have been better served by a trust, a life estate, or by some other arrangement more sophisticated than the subject deed. And it is regrettable that the parties engaged in extensive, costly litigation before agreeing to an investigation of that possibility. But there is no warrant in OCGA § 9-15-14 for a judicial inquiry into the causes of that regrettable state of affairs.

No evidence supports the trial court’s finding that the daughters defended this action without a lawful basis for doing so. Accordingly, the award of attorney fees must be reversed.

Judgment reversed.

Phipps, C. J., Ellington, P. J., and Doyle, P. J., concur. Barnes, P. J., Boggs and Branch, JJ., dissent.

BOGGS, Judge,

dissenting.

I agree with the majority that the trial court’s order may be construed as an award of attorney fees under OCGA § 9-15-14 (a). But I believe the record provides some evidence to support the trial court’s ruling, and under the applicable standard of review we may not substitute our judgment for that of the trial court. I therefore would affirm.

Under OCGA § 9-15-14 (a), a trial court shall award reasonable and necessary attorney fees where a party has asserted a position that lacked any justiciable issue of law or fact so that it could not be reasonably believed that a court would accept it. “We review a trial court’s ruling on an OCGA § 9-15-14 (a) motion for attorney fees under the ‘any evidence’ standard. If any evidence exists to support the trial court’s grant of the motion, we are compelled to affirm.” (Citations and punctuation omitted.) Trotter v. Summerour, 273 Ga. App. 263, 264 (614 SE2d 887) (2005). In so doing, we determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law. See Doster v. Bates, 266 Ga. App. 194, 196 (596 SE2d 699) (2004).

Here, in contrast to the majority’s initial characterization of appellee’s motives, some evidence was presented that appellants executed a deed transferring their mother’s property without the knowledge of Warren, who managed his mother’s financial affairs. Concerned about legal implications, including fraudulent transfer and a conservation easement on the land, as well as the fact that his mother received no money from the transfer and had no assets to cover her expenses and needs, Warren asked his sisters to cancel the deed. When they refused he brought suit in April 2009, individually and as the representative of his mother, asserting various grounds but in essence seeking to cancel the deed as a sham.

Although appellants opposed Warren’s suit vigorously for a period of over two years, when the case came to trial in October 2011, appellant Helen Malone testified that she believed the property belonged to her mother. Pressed for a reason for the transfer, Malone testified that it was Warren’s idea, that she did not believe her mother needed the money (based on her mother’s statement at some time in the past that she had “plenty of money”), and that she could see no reason for keeping the property in the children’s names. But, in testimony not noted by the majority, she also testified that she did not want to cancel the deed because Warren “is trying to bully us to get his way because that’s what he wants.” She described at some length appellants’ contentious relationship with Warren.

Finally, she testified, “In my mind the property should never be sold as long as mother is living. It’s her property. That’s the way I want her to think of it. It doesn’t matter whose name is on the deed. Three children, it’s still her property. I don’t even think of it as my property.” Asked, “Then why not give it back to her?” she responded, “It serves no purpose. It’s the same thing.”

At this point, the trial court interjected with a question and the following exchange took place:

COURT: Ms. Malone, I want to make sure I understand your testimony. Notwithstanding the deed that your mother signed conveying the property to you, your sister, and your brother, you still consider this to be your mother’s property?
WITNESS: Absolutely without a doubt.
COURT: And it’s as if you’re holding it in trust for her.
WITNESS: It is mother’s property.
COURT: So if she were to need the money, how would she access it?
WITNESS: I don’t think she needs the money.
COURT: I understand. But let’s just what if.
WITNESS: I haven’t thought that far ahead.
COURT: But right now there would be nothing she could do of her own to require that it be sold and used for her benefit. WITNESS: I don’t know. I have not — have not thought through that.
COURT: Thank you, ma’am. You can go down.

This evidence provides ample support for the trial court’s conclusion that appellants had not considered and could articulate no factual or legal basis for opposing the cancellation of the deed, but instead were motivated by the explicitly expressed desire to oppose their brother. The motive for appellants’ vigorous litigation is not a question of law, as the majority asserts, but a question of fact. Under an appropriate standard of review, this finding of fact is adequately supported by the witness’ uncontradicted assertion that she refused to reconvey the property to her mother, even though she saw no reason to keep it in the sisters’ names, because her brother was “trying to bully us to get his way.”

The majority states that “[t]he trial court’s interpretation of Ms. Malone’s testimony is unsustainable under any standard of review” and adds that “[t]he trial court misconstrued it in a way possible only for a lawyer.” But the majority’s claim that testimony was misconstrued in and of itself demonstrates an inappropriate standard of review. Under an “any evidence” analysis we may not weigh the evidence or substitute our construction of a witness’ testimony for that of the trial court. I prefer to allow our trial judges, who see the witnesses and hear their testimony first-hand, to determine whether a witness was “constrained by her filial duties,” as opined by the majority. The outcome of an appellate review, particularly under the “any evidence” standard, should not rest upon an appellate analysis, on a cold record, of a witness’ motivation for testimony.

Under the proper standard of review, some evidence supports the trial court’s finding that appellants’ defense of the suit lacked any legal or factual basis, and for this reason I would affirm.

I am authorized to state that Presiding Judge Barnes and Judge Branch join in this dissent.

Decided July 2, 2013

McRae, Stegall, Peek, Harman, Smith & Manning, Carey L. Pilgrim, for appellants.

Tisinger Vance, Charles D. Mecklin, Jr., for appellees.


author: McFADDEN, Judge.

text:
    A13A0188.
    RES-GALJY, LLC v. Y. D. I., INC. et al.
    (745 SE2d 820)
   McFADDEN, Judge.

RES-GALJY, LLC (hereinafter, “RES-GA”) appeals from the trial court’s order denying a resale ofreal property under OCGA § 44-14-161 (c) after the trial court denied its petition to confirm a foreclosure sale on the property. Finding no abuse of discretion, we affirm.

RES-GAis an entity formed for the special purpose of taking title to specific property securing a loan that a related entity obtained in a bulk purchase of loans from the Federal Deposit Insurance Corporation. In that capacity, RES-GA was assigned a deed to secure debt executed by Y. D. L, Inc., a/k/a YDI, Inc. (hereinafter, ‘YDI”) that secured an indebtedness of $6,000,000. When YDI defaulted on the underlying debt, RES-GA foreclosed on the real property securing that debt and purchased the property at a foreclosure sale for $742,500. RES-GA then brought a complaint for confirmation of the sale against YDI and Jimmy York, who guarantied the debt.

The parties stipulated that the foreclosure sale was advertised and conducted properly. At the confirmation hearing, RES-GA presented testimony that, prior to the foreclosure sale, it had obtained an appraisal of the property’s true market value at $600,000. The loan workout asset manager who made decisions about the foreclosure sale on RES-GA’s behalf reviewed the appraisal, consulted with a team of former real estate developers and market specialists about it and, out of precaution, chose a bid price for the property that was higher than the appraisal. RES-GA presented evidence of a second appraisal of the property at $705,000 which it obtained after the foreclosure sale in preparation for the confirmation hearing. YDI presented evidence of two appraisals for the property — at $1,200,000 and $930,000 — that it also obtained after the foreclosure sale in preparation for the confirmation hearing.

The trial court found that RES-GA did not show that the property brought its true market value at the foreclosure sale, and the court declined to confirm the sale. See OCGA § 44-14-161 (b). In its order, the trial court identified problems in the appraisals , submitted by RES-GA. Specifically regarding the $600,000 appraisal, the trial court found that it “contained numerous errors” in its use of comparable sales. The trial court found that RES-GA

apparently relied upon the opinion contained in the $600,000.00 appraisal in determining its bid price. However, a cursory review of that appraisal would have alerted [RES-GA] to the numerous errors contained therein. Having found that [RES-GA] did not show that the subject property brought its true market value . . ., [the court] finds that no good cause was shown by [RES-GA] to order a resale of the subject property.

See OCGA § 44-14-161 (c).

RES-GA moved the trial court to reconsider its ruling regarding a resale. After a hearing on the motion, the trial court issued an order denying reconsideration. Therein, the trial court stated that it did not find either of RES-GA’s appraisals to be credible and that it found the $930,000 appraisal submitted by YDI to be “the most credible of the four.” It further stated that its consideration regarding resale did not turn on whether RES-GA acted in bad faith or good faith, but it held that RES-GA did not “prove ‘good cause’ to the satisfaction of the [c]ourt” and expressly found “no good cause to grant a resale.”

On appeal, RES-GA disagrees with but does not challenge the trial court’s determination that the property was not sold for its true market value at the foreclosure sale. See generally Statesboro Blues Dev. v. Farmers & Merchants Bank, 301 Ga. App. 851, 853 (690 SE2d 205) (2010) (as trier of fact in confirmation proceeding, trial court is entitled to find one appraiser’s testimony credible and to accept his opinion over that of another appraiser). It challenges only the ruling denying resale. OCGA § 44-14-161 (c) provides that, if a trial court denies confirmation of a foreclosure sale, it “may order a resale of the property for good cause shown.” This confers upon the trial court broad legal discretion to grant or deny a resale.. See Adams v. Gwinnett Commercial Bank, 238 Ga. 722, 723 (235 SE2d 476) (1977) (construing prior version of the Code section); Eagle GA I SPE v. Atreus Communities of Fairburn, 319 Ga. App. 844, 848 (2) (738 SE2d 675) (2013); The Village at Lake Lanier v. State Bank & Trust Co., 314 Ga. App. 498, 499 (1) (724 SE2d 806) (2012); Resolution Trust Corp. v. Morrow Auto Center, 216 Ga. App. 226, 227 (2) (454 SE2d 138) (1995); Govt. Nat. Mtg. Assn. v. Belue, 201 Ga. App. 661, 662 (2) (411 SE2d 894) (1991). On appeal, “we determine only whether that discretion was abused. Traditionally, where a trial court is vested by statute with broad discretion, appellate courts do not disturb that exercise of discretion unless it is clearly, patently, and manifestly abused.” The Village at Lake Lanier, 314 Ga. App. at 500 (1) (citations and punctuation omitted). Accord McDowell v. Regions Bank, 311 Ga. App. 600, 600-601 (716 SE2d 638) (2011).

Although reviewing for abuse of discretion “is a deferential standard of review, it is not toothless.” Jones v. Brown, 299 Ga. App. 418, 419 (683 SE2d 76) (2009) (citation and punctuation omitted). The abuse of discretion standard of review is “at least slightly less deferential than the ‘any evidence’test.” Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012) (citations omitted). “An abuse of discretion occurs where a ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law.” Lewis v. Lewis, 316 Ga. App. 67, 68 (728 SE2d 741) (2012) (citations and punctuation omitted). In this case, RES-GA argues that the trial court abused its discretion in denying a resale because the evidence showed that the foreclosure sale price was based on RES-GA’s good faith reliance upon an appraisal. While we are sympathetic to this argument, RES-GA has not shown either that the trial court’s ruling was unsupported by any evidence of record or that its ruling misstated or misapplied the relevant law, and for that reason we cannot find that the trial court clearly, patently and manifestly abused its discretion.

First, RES-GA has not shown that the trial court’s ruling was unsupported by any evidence of record. “[T]o reverse a trial judge exercising his legal discretion [regarding a resale] we would have to find as a matter of law that ‘good cause’was shown.” Fed. Deposit Ins. Corp. v. Ivey-Matherly Constr. Co., 144 Ga. App. 313, 317 (2) (241 SE2d 264) (1977) (construing prior statute). OCGA§ 44-14-161 (c) does not define what constitutes “good cause.” The Village at Lake Lanier, 314 Ga. App. at 500 (1) (a); Resolution Trust Corp., 216 Ga. App. at 228 (2). RES-GA correctly asserts that its good faith reliance on an appraisal in buying the property for less than its true market value could have authorized the trial court to find good cause for resale. See, e.g., Adams, 238 Ga. at 722-723 (trial court did not err in finding that creditor’s act, in good faith, of having property appraised before sale authorized resale); Greg A. Becker Enterprises v. Summit Investment Mgmt. Acquisition I, 314 Ga. App. 721, 723-724 (1) (725 SE2d 841) (2012) (trial court did not abuse its discretion in finding good cause for resale where there had been no showing that creditor lacked good faith in conducting foreclosure proceedings and evidence supported finding that creditor did not intentionally bid less than property’s true market value at foreclosure sale); Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (2) (424 SE2d 889) (1992) (resale “would be authorized” under OCGA § 44-14-161 (c) where creditor “did not prove that it sold the property for true market value but did obtain an appraisal (albeit a fatally flawed one) before the sale and did sell the property for an amount equal to that appraisal”) (citations omitted); Damil, Inc. v. First Nat. Bank of Dalton, 165 Ga. App. 678 (302 SE2d 600) (1983) (affirming trial court’s order granting resale on ground that “a failure to sell for the true market value is good cause to order a resale”).

Nevertheless, facts that could authorize a finding of good cause for resale do not necessarily demand that the trial court make such a finding. Fed. Deposit Ins. Corp., 144 Ga. App. at 317 (2). We discussed this distinction and the reasons for it at length in Resolution Trust Corp., 216 Ga. App. 226. Therein, we held that OCGA § 44-14-161 (c) does not entitle a creditor to resale for any reason and that the Code section’s permissive language does not create an inference that resale is authorized as a matter of law if a creditor relies on a flawed appraisal. 216 Ga. App. at 227-228 (2). We explained that

to [hold] that “good cause” for resale is shown and a resale is demanded whenever a foreclosure sale fails to bring true market value... would obliterate the statute, would remove the trial court’s discretion, and would encourage creditors to engage in any unfair practice at foreclosure sale, with the only penalty being a possible resale.

Id. at 227 (2). We further held that the trial court, in denying a resale, need not find “bad faith or negligence in the appraisal or sale,” explaining that “[w]e have declined to set restrictions on the trial court’s discretion in denying resale, for to set restrictions would be to require evidence of misfeasance, malfeasance, or defect in the sale before a resale can be denied, which would put the burden of proof on the debtor.” Id. at 228 (2) (emphasis omitted). Instead, the creditor bears the burden of showing good cause for resale. Id. at 227 (2). Accord Five Dee Ranch Corp. v. Fed. Land Bank of Columbia, 148 Ga. App. 734, 736 (2) (252 SE2d 662) (1979) (construing prior statute). We recently applied this holding and rationale to uphold a trial court’s exercise of discretion in denying a resale in Eagle GA I SPE v. Atreus Communities of Fairburn, supra, 319 Ga. App. 844.

Applying to this case the holding and rationale expressed in Eagle GA I SPE and Resolution Trust Corp., the evidence that RES-GA acted in good faith in relying upon an appraisal to sell the property for less than its true market value at foreclosure did not compel the trial court to find good cause for resale. Moreover, in its order denying the resale, the trial court found that RES-GA should have detected the flaws in the appraisal upon which it relied. Although RES-GA disputes this finding, there was evidence from which the trial court could have found that the decision-maker for RES-GA had the experience, sophistication and resources to detect the flaws. Under these circumstances, we cannot say that the trial court’s ruling was unsupported by any evidence.

Decided July 2, 2013

Schulten, Ward & Turner, Kevin L. Ward, Andrea L. Pawlak, Hartman, Simons & Wood, Irene B. Vander Els, Chelsea L. Dennis, for appellant.

Talley, Richardson & Cable, William T. Cable, Jr., for appellees.

RES-GA also has not shown that the trial court misstated or misapplied the law relevant to whether to grant a resale. The transcript of the confirmation hearing shows that the trial court recognized the resale decision was a matter within its discretion. Compare Walton v. Elberton-Elbert County Hosp. Auth., 229 Ga. 26, 27 (189 SE2d 66) (1972) (holding that trial court’s ruling, ordinarily within its discretion, must be reversed where ruling shows trial court did not exercise its discretion but rendered judgment based on erroneous view of law that precluded exercise of discretion) with The Village at Lake Lanier, 314 Ga. App. at 500 (1) (a) (finding no abuse of discretion where there was no evidence that trial court failed to exercise discretion in ordering resale or that trial court acted under belief that it was required to direct resale simply because property did not sell for true market value). In its order denying resale, the trial court properly identified the dispositive issue to he whether RES-GA showed good cause for resale, and in both that order and on reconsideration the trial court determined that RES-GA did not meet its burden. As discussed above, the evidence did not compel a different conclusion.

RES-GA points to the following finding of fact in the trial court’s order denying reconsideration: “The property was to secure a loan in the principal amount of $6,000,000.00. The property was appraised by [RES-GA] at the foreclosure sale at $600,000.00.” The trial court drew no specific conclusions from this factual finding. RES-GA asserts that this factual finding was irrelevant and its inclusion in the order demands reversal. We cannot say, however, that this finding was so devoid of relevance to the good cause determination that its inclusion demonstrated that the trial court misapplied the law in denying a resale.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.