author: McMlLLIAN, Judge.

text:
    A16A0216.
    WILHITE v. THE STATE.
    (787 SE2d 293)
   McMlLLIAN, Judge.

David Wilhite appeals the denial of his motion for new trial after a jury convicted him of aggravated sodomy, burglary, and terroristic threats. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence showed that the victim, who was seven months pregnant, was home alone with her two-year-old daughter when she saw a man she did not know dressed in dark clothing in her mother’s room. As the man turned to look at her, the victim saw that his penis was exposed. The victim turned to run toward her daughter, and the man chased her and forced her to the ground, demanding oral sex. When the victim refused, the man threatened to kill both mother and daughter. He then ripped off the victim’s underwear and penetrated her anally Afterwards, the man wiped the victim off with a cloth and ran back toward the bedroom, while the victim ran with her daughter to summon help.

The victim was taken to a hospital and examined, and her rape kit yielded DNA evidence that was later matched to Wilhite. The police also found a window screen in the victim’s home that was torn and bent, although her brother testified that it had been intact when he left the house earlier in the day.

1. Wilhite first contends that his trial counsel was ineffective in failing to object to jury instructions that he claims impermissibly “tilted the credibility scales in the State’s favor.”

To support his claim of ineffective assistance of counsel, Wilhite must demonstrate that his counsel’s performance at trial “was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). Thus,

[wjhen a defendant raises an ineffective assistance of counsel claim based on counsel’s failure to request or object to certain jury charges, the defendant must show that the charges in question were erroneous and that, if proper charges had been given, there is a reasonable probability that the result of the trial would have been different.

(Citation and punctuation omitted.) Gathuru v. State, 291 Ga. App. 178, 182 (3) (661 SE2d 233) (2008). And if the defendant fails to meet his burden on one prong of this two-prong test, we need not review the other prong. Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

(a) Wilhite first takes issue with the trial court’s charge to the jury that “if you find a conflict, you should settle this conflict, if you can, without believing that any witness made a false statement.” He argues that this charge “inappropriately urged the jury to make every possible effort to believe [the victim].”

This portion of the trial court’s charge tracked the language of the Suggested Pattern Jury Instructions that was in effect at the time of Wilhite’s 2012 trial. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (the “Pattern Charge(s)”), § 1.31.20 (4th ed. 2007). This provision has since been deleted from the Pattern Charges. See January 2013 updates to the Pattern Charges.

Although in 1998, our Supreme Court recommended that this charge not be used, it also found that the use of the charge “is not unconstitutional and does not constitute reversible error.” See Whatley v. State, 270 Ga. 296, 300 (10) (b) (509 SE2d 45) (1998). And more recently, the Supreme Court found no error in giving the charge, noting that it “was not a ‘presumption of truthfulness’ charge. The jury instruction did not require that the jury believe the testimony of any witness, whether impeached or unimpeached.” (Citation omitted.) Rai v. State, 297 Ga. 472, 481 (8) (775 SE2d 129) (2015). See also Smith v. State, 292 Ga. 588, 590 (3) (740 SE2d 129) (2013) (finding no error in giving of jury instruction tracking the language of former § 1.31.20). The Court also concluded that the charge “did not invade the province of the jury to assess witness credibility or improperly shift the burden of proof.” Rai, 297 Ga. at 481 (8).

Accordingly, the charge was not erroneous, and Wilhite cannot establish the first prong of his claim of ineffective assistance on this ground.

(b) Wilhite also asserts that his trial attorney should have objected to the trial court’s charge on impeachment because the court failed to charge that a witness may be impeached by disproving facts, which is one of the methods of impeachment listed in Pattern Charge § 1.31.40. During the charge conference, the trial judge announced that she would be giving the Pattern Charge addressing impeachment but would tailor the charge to the evidence in the case. She then asked Wilhite’s attorney if the evidence had involved “disproving the facts to which the witness testified” as set forth under subsection (a) of that charge. Wilhite’s counsel replied, “I don’t think so, judge. Not disproving. We may have prior inconsistent statements, but not that.” Wilhite’s trial counsel later testified at the hearing on the motion for new trial that based on the evidence, he believed “there wasn’t anything that would have disproved what the victim testified to.”

Pretermitting whether Wilhite’s counsel’s failure to request the charge somehow constituted deficient performance, we find that Wilhite has failed to establish that he was prejudiced by the omission of this charge. “To determine whether a jury charge is likely to have misled or confused the jury . . . , we must consider the charge as a whole, reading all of its parts in conjunction with each other.” Marriott v. State, 320 Ga. App. 58, 64 (2) (b) (739 SE2d 68) (2013). See also Garland v. State, 311 Ga. App. 7, 11 (1) (c) (714 SE2d 707) (2011) (“An instruction on impeachment must be read in conjunction with the entire final charge.”). Here, the trial court instructed the jury on the presumption of innocence; the State’s burden of proof; direct and circumstantial evidence; reasonable doubt; credibility of witnesses and the jury’s burden to determine whom to believe or not to believe; conflicts in the evidence as noted above; and proof of impeachment by contradictory statements. Accordingly, the trial court’s charge, when read as a whole, was sufficient to inform the jury how to properly consider and weigh the evidence in this case. Under these circumstances, we find that reversal is not warranted based on Wilhite’s failure to object to the charge on impeachment.

(c) Wilhite also asserts that his trial counsel was ineffective in failing to object to the trial court instructions that “[t]he testimony of a single witness is generally sufficient to establish a fact.” He asserts that the charge should have included the qualifying language “the testimony of a single witness, if believed, is generally sufficient to establish a fact,” as set forth in § 1.31.90 of the Pattern Charges. (Emphasis supplied.) Once again, pretermitting whether Wilhite’s counsel rendered ineffective assistance by failing to object to this omission, we find that Wilhite has failed to show the requisite prejudice in light of the trial court’s full charge to the jury, which included an instruction that the jury must determine witness credibility and decide which witnesses to believe or not to believe.

Accordingly, Wilhite has failed to establish his claim of ineffective assistance of counsel based on his attorney’s failure to object to the cited jury charges.

2. Wilhite next asserts that his conviction is invalid because one of the jurors at his trial allegedly had a hearing difficulty, and the trial court should have allowed an evidentiary hearing to determine whether the juror could follow the evidence at trial. He further asserts that his trial counsel rendered ineffective assistance by failing to litigate the issue of the juror’s hearing.

(a) Following a question by the trial court clerk during voir dire, Juror No. 2 stated, “I can’t hear too well” and then instructed the prosecutor to “[sjpeak a little louder.” Wilhite’s attorney followed up on the juror’s statement about her hearing by asking, “Speaking in this tone of voice, are you able to hear everything fine?” The juror replied, “So far.” Wilhite’s trial counsel raised no objection to Juror No. 2, and she was impaneled as a juror. At the end of trial, after the jury returned its verdict, Wilhite asked that the jury be polled. During this process, Juror No. 2 stated in response to several questions from the trial court clerk that she could not hear what the clerk was asking her.

Three years after trial, Wilhite’s post-conviction counsel filed a written motion to question Juror No. 2 about her hearing difficulties, and the parties argued the matter at the hearing on Wilhite’s motion for new trial. When questioned about the issue, Wilhite’s trial counsel could not recall that the juror had hearing problems during the poll of the jury, but after refreshing his recollection with a review of the trial transcript, counsel stated that he did not even consider the issue of the juror’s hearing at that point. He also testified that he never observed any of the jurors not paying attention or not being able to follow the direction of the court or the verbal commands of the bailiff.

The trial court subsequently denied the motion to question the juror in its order denying Wilhite’s motion for a new trial. The trial court stated that after reviewing the transcript, especially the voir dire of Juror No. 2, it was satisfied that “the juror in question was qualified and competent to serve.”

We find that the record in this case supports the trial court’s determination. During voir dire, Juror No. 2 was able to answer numerous questions posed by counsel and the trial court with no difficulty. Although she appeared to have some trouble hearing when the trial court clerk spoke to her, first during voir dire and later when the jury was polled, these difficulties were not sufficient to prompt Wilhite’s attorney to address the matter further.

Wilhite nevertheless argues that he should have been allowed to question Juror No. 2 because the issue of the juror’s hearing potentially affected his constitutional right to a fair trial. However, Wilhite has failed to establish a basis for allowing the questioning of Juror No. 2 on constitutional grounds. Juror No. 2 informed the Court and counsel during voir dire that she could not “hear well,” Wilhite’s attorney followed up at that time by testing the juror’s hearing, and he had the opportunity to object to her service as a juror if he was concerned about her ability to hear the evidence. Accordingly, Wilhite had both notice of the juror’s hearing issues and the opportunity to address the issue before trial, which provided the requisite due process. See Hood v. Carsten, 267 Ga. 579, 580 (481 SE2d 525) (1997) (“Both the Georgia and United States Constitutions prohibit the state from depriving any person of life, liberty, or property, without due process of law. The fundamental idea of due process is notice and an opportunity to be heard.”) (citations and punctuation omitted).

Under these circumstances, we cannot say that the trial court abused its discretion in denying Wilhite’s motion to question Juror No. 2. See State v. Smith, 308 Ga. App. 345, 353 (2) (707 SE2d 560) (2011) (trial court’s evidentiary rulings reviewed for abuse of discretion); Cauley v. State, 203 Ga. App. 299, 301 (1) (416 SE2d 575) (1992) (applying abuse of discretion standard to trial court’s refusal to open evidence, which defendant contended violated his constitutional right to compel witnesses to testify).

(b) Based on this record showing Juror No. 2’s demonstrated ability to hear and respond not only to Wilhite’s counsel’s direct question about her hearing, but also to his other questions and the questions posed by the prosecutor, we find that Wilhite has failed to show that his attorney rendered deficient performance in failing to challenge Juror No. 2 or in failing to follow up on the juror’s hearing issues after the jury was polled.

Trial counsel’s decisions about which jurors to strike and which to keep are tactical. And counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel. Indeed, tactical decisions by counsel will not form the basis for an ineffective assistance claim unless the decisions are so patently unreasonable that no competent attorney would have chosen them.

(Citation omitted.) Ware v. State, 321 Ga. App. 640, 642 (3) (742 SE2d 156) (2013).

3. Wilhite further argues that the evidence at trial was insufficient to support his conviction on the burglary charge. He asserts that a fatal variance existed between the indictment and the proof because the indictment charged that the burglary occurred at the victim’s “dwelling house” at one address, when the evidence showed the incident occurred at another dwelling house.

The indictment alleged that Wilhite, “without authority and with the intent to commit Aggravated Sodomy, a felony, therein, did enter and remain in the dwelling house of [the victim], located [on Velma Court]However, the evidence at trial indicated that at the time of the incident, the victim lived on Spring Point, and the crime occurred at that location. After the attack, the victim moved to her grandmother’s house, which apparently was on Velma Court.

In Georgia, “[w]e no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation omitted.) Chambers v. State, 284 Ga. App. 400, 401 (1) (643 SE2d 871) (2007).

The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance “fatal.”

Decided June 8, 2016.

Gerard B. Kleinrock, for appellant.

(Citation omitted.) Williams v. State, 332 Ga. App. 546, 550 (2) (774 SE2d 126) (2015).

Wilhite does not argue that he was surprised by the evidence of the crime scene location at trial, and, in fact, his trial attorney testified at the hearing on the motion for new trial that he was aware while he was preparing for trial that the alleged crime scene was on Spring Point and that he was not surprised by the evidence at trial to that effect.

Nevertheless, Wilhite asserts that the erroneous indictment exposes him to a second prosecution for the same offense. However, the burglary charge in the indictment alleges that he entered the victim’s dwelling house with the intent of committing aggravated sodomy upon the victim, and the material facts established at trial showed that this attack occurred at the Spring Point address. The State cannot use these facts to prosecute Wilhite a second time for this crime. See State v. Jackson, 290 Ga. App. 250, 251 (1) (659 SE2d 679) (2008).

Accordingly, the trial court properly denied Wilhite’s motion for new trial on this ground. See Chambers, 284 Ga. App. at 401-02 (1) (finding no fatal variance where indictment asserted burglary occurred at a nonexistent address and burglary occurred on three adjacent properties owned by victim); Day v. State, 254 Ga. App. 286, 287 (2) (562 SE2d 252) (2002) (no fatal variance where indictment alleged nonexistent address, because “[t]he specific location was not an element of the crime [of burglary] charged against [the defendant], and the precise location charged in the indictment was mere surplus-age.”) (citation and punctuation omitted).

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

Robert D. James, Jr., District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

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

       Wilhite’s trial counsel testified at the hearing on the motion for new trial that at the time of Wilhite’s trial, he had been practicing law for almost 30 years, the last 25 years of which he had limited exclusively to criminal work, and had handled hundreds of felony trials.

       In Jackson, the State’s initial indictment charged the defendant with burglary at the wrong address, on the wrong date, with the wrong accomplice, and at the trial in that case, after jeopardy had attached, the trial court allowed the State to nolle prosse the indictment, over defendant’s objection. However, when the State later recharged the defendant with burglary under an indictment with the correct information, the trial court granted defendant’s plea in bar on the ground of double jeopardy. Jackson, 290 Ga. App. at 250. This Court affirmed, noting that “although the first indictment alleged different facts, the same facts alleged in the second indictment were introduced during Jackson’s first trial,” id. at 251 (1), and the defendant could not be subject to a second prosecution on these facts.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A16A0289.
    HUMPHREY v. JP MORGAN CHASE BANK, N.A. et al.
    (787 SE2d 303)
   PHIPPS, Presiding Judge.

Virgil Humphrey sued JP Morgan Chase Bank, N.A. (“Chase”) and the law firm of Martin & Brunavs (“M&B”) for damages allegedly arising from the initiation of foreclosure proceedings on certain property The trial court granted Chase’s motion to dismiss and entered summary judgment for M&B. Humphrey appeals both rulings. For reasons that follow, we affirm the grant of summary judgment to M&B but reverse the dismissal of Humphrey’s claims against Chase.

1. We will first address the summary judgment ruling. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to the nonmovant.

So viewed, the record shows that Washington Mutual Bank loaned Humphrey $136,000 in 2005. To secure the loan, Humphrey granted Washington Mutual a security interest in a parcel of property he owned in Paulding County Washington Mutual was subsequently closed, and, in 2008, Chase purchasedits assets. Chase later assigned the security deed relating to Humphrey’s property to Wells Fargo Bank, N.A., but remained as servicer of the indebtedness.

In 2012, Humphrey sued Chase, Washington Mutual, and another entity in federal court, alleging that (1) the security deed he had originally granted to Washington Mutual was invalid; (2) the defendants enjoyed no rights under the deed and underlying promissory note; (3) given the invalidity of the deed, any foreclosure proceedings commenced pursuant to it would be wrongful; and (4) the defendants had fraudulently demanded and collected payments on the indebtedness from Humphrey At Humphrey’s request, the federal court dismissed the suit without prejudice on June 6, 2013. A few months later, Humphrey filed a new lawsuit against Washington Mutual, a Chase entity, and other defendants in the Superior Court of Paulding County, again alleging that the defendants lacked a valid security interest in the property and thus had no standing to foreclose. It appears that the second lawsuit was removed to federal court, and Humphrey voluntarily consented to its dismissal in March 2014.

On July 24, 2014, M&B, as counsel for Chase, sent Humphrey a Notice of Acceleration and Foreclosure, informing Humphrey that his indebtedness had been declared due in full for failure to pay, that Chase had retained M&B to commence foreclosure proceedings against the property, and that a foreclosure sale would be conducted on September 2,2014. Less than a week before the scheduled foreclosure sale, Humphrey filed this lawsuit against Chase and M&B. The complaint focused primarily on the sufficiency of the July 24 foreclosure notice, asserting that the notice failed to meet applicable statutory and security deed requirements. Based on these alleged failings, Humphrey claimed that the defendants had (1) wrongfully commenced foreclosure proceedings; (2) interfered with his property rights; (3) committed a Georgia RICO violation; (4) defrauded him; and (5) converted his personal property. He further claimed that Chase had breached the security deed’s contractual terms governing notice and debt acceleration.

M&B moved for summary judgment as to all claims against it. In support, it provided copies of the July 24, 2014 Notice of Acceleration and Foreclosure, as well as the Notice of Sale Under Power that M&B had submitted for publication in anticipation of the foreclosure sale. M&B also offered evidence that it had never completed a foreclosure on the property and did not have a contractual relationship with Humphrey.

The trial court granted summary judgment to M&B. Humphrey now appeals, arguing that issues of fact remain as to wrongful foreclosure and breach of contract. We disagree.

(a) Wrongful Foreclosure. To support an action for wrongful foreclosure, a claimant “must establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.” The claimant must also show that a foreclosure sale occurred. As we recently noted, “as a matter of law, a plaintiff cannot state a claim for wrongful foreclosure when no foreclosure sale has taken place.”

M&B presented evidence that it never held a foreclosure sale on the property, undermining the wrongful foreclosure claim. Humphrey does not dispute this evidence or contend that the sale took place. Instead, he now argues that his allegations should be viewed as a claim for wrongful attempted foreclosure. It is true that Georgia law recognizes separate causes of action for wrongful foreclosure and wrongful attempted foreclosure. But Humphrey’s complaint clearly referenced wrongful foreclosure, rather than an attempted foreclosure. And although M&B asserted below that the wrongful foreclosure allegation could not succeed because no foreclosure had occurred, Humphrey did not respond to M&B’s summary judgment motion or otherwise argue before the trial court that he was alleging a wrongful attempted foreclosure claim.

“It is well settled [that] appellate courts will not consider new arguments in opposition to a motion for summary judgment raised for the first time on appeal.” As explained by our Supreme Court, “[t]o consider the case on a completely different, basis from that presented below would be contrary to the line of cases holding, ‘He must stand or fall upon the position taken in the trial court.’ ” We will not, therefore, consider Humphrey’s assertions regarding wrongful attempted foreclosure. Moreover, given the undisputed evidence that the foreclosure originally scheduled for September 2, 2014, did not take place, the trial court properly granted M&B summary judgment on the wrongful foreclosure claim.

(b) Breach of Contract. Humphrey also argues that questions of fact remain as to breach of contract. Humphrey’s complaint, however, did not assert a breach of contract claim against M&B. On the contrary, the complaint alleged that Humphrey had a contractual relationship with Chase and that Chase breached the contract by “failing to abide by the terms of the security deed.” All of the contractual assertions related to Chase, rather than M&B.

Furthermore, M&B presented evidence — not disputed by Humphrey below or on appeal — that it never entered into a contract with Humphrey. To the extent the complaint could be construed as alleging a breach of contract claim against M&B, therefore, the trial court properly granted summary judgment to the law firm.

2. The trial court erred, however, in dismissing Humphrey’s claims against Chase. The record shows that Chase moved to dismiss the complaint, asserting that it was barred by res judicata and failed to state a claim upon which relief could be granted. The trial court rejected the failure to state a claim argument, but agreed with Chase that res judicata precluded Humphrey’s claims. We review this ruling de novo.

The doctrine of res judicata “prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.” Before res judicata applies, therefore, three prerequisites must be met: “(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” Humphrey argues that Chase did not meet the first requirement — identity of cause of action. We agree.

According to Chase, Humphrey’s decision to voluntarily dismiss his two prior federal-court cases relating to the security deed bars this lawsuit. The allegations asserted in the current complaint, however, primarily arose from events occurring after Humphrey dismissed the previous actions in June 2013 and March 2014. Specifically, he alleged that the July 2014 foreclosure notice and resulting foreclosure proceedings were legally insufficient and did not meet the requirements of the security deed. These claims could not have been raised in the prior lawsuits because the underlying circumstances had not yet occurred. Res judicata, therefore, does not preclude the claims, and the trial court erred in granting Chase’s motion to dismiss.

Decided June 8, 2016.

Roberts Law, Grady A. Roberts III, for appellant.

On appeal, Chase argues that even if res judicata does not apply, the trial court properly dismissed Humphrey’s claims because the evidence supporting M&B’s summary judgment motion also authorized dismissal. In essence, Chase asks us to consider evidence outside the pleadings, convert its motion to dismiss into a request for summary adjudication, and enter judgment in its favor. This we decline to do. Chase did not file — and the trial court never ruled on — a motion for summary judgment as to the claims against it. We cannot sua sponte grant summary judgment to Chase on appeal.

Judgment affirmed in part and reversed in part.

Dillard and Peterson, JJ., concur.

Wargo & French, David M. Pernini, Dustin S. Sharpes, Teah G. Kirk; John C. Pennington, for appellees.

       OCGA § 9-11-56 (c).

       See Morrow v. Angkawijana, LLC, 327 Ga. App. 1 (755 SE2d 561) (2014).

       The trial court granted summary judgment to M&B on all claims, including Humphrey’s claims for fraud, RICO violation, interference with property rights, and conversion. Humphrey’s appellate brief, however, presents argument and citation of authority only with respect to the wrongful foreclosure and breach of contract claims. To the extent Humphrey’s enumerated error alleges that the trial court erred in granting summary judgment on his other claims, that allegation has been abandoned. See Harris Ins. Agency v. Tarene Farms, 293 Ga. App. 430, 431, n. 1 (667 SE2d 200) (2008); Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 584 (657 SE2d 644) (2008); see also Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

        Sparra v. Deutsche Bank Nat. Trust Co., 336 Ga. App. 418, 420 (1) (a) (785 SE2d 78) (2016).

       Id. (citations and punctuation omitted).

       See id.

       See id. at 1 (a), (c).

       His claim for relief, for example, set forth the elements of wrongful foreclosure. And he asserted that Chase and M&B improperly “exercised the power of sale contained in the . . . security deed” and conducted an invalid “non-judicial foreclosure upon” his property, (emphasis supplied).

        Morrow, supra at 4 (1), n. 2 (citations and punctuation omitted). See also Jones v. Equip. King Intl., 287 Ga. App. 867, 869 (1) (652 SE2d 811) (2007) (“We will not reverse an award of summary judgment based on an argument raised for the first time on appeal.”).

        Pfeiffer v. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (punctuation and footnote omitted).

       See Sparra, supra (because home was never foreclosed upon, plaintiff’s claim for wrongful foreclosure failed as a matter of law).

       See Winterchase Townhomes v. Koether, 193 Ga. App. 161, 164 (4) (387 SE2d 361) (1989) (defendant who was not a party to contract is not liable for its breach).

        See Burrowes v. Tenet Healthsystem GB, 319 Ga. App. 389, 390 (735 SE2d 131) (2012).

        McKissick v. Aydelott, 307 Ga. App. 688, 692 (2) (705 SE2d 897) (2011).

       Id. (footnote omitted).

       See Federal Rule of Civil Procedure 41 (a) (1) (B) (“Unless the notice or stipulation [of voluntary dismissal] states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.”); OCGA § 9-11-41 (a) (3) (A voluntary dismissal “is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.”).

       See Glen Oak v. Henderson, 258 Ga. 455, 458 (2) (c) (369 SE2d 736) (1988) (a judgment cannot be res judicata as to liabilities arising after the judgment); Simmons v. Regions Bank, 255 Ga. App. 824, 828 (3) (567 SE2d 49) (2002) (claim regarding bank’s alleged tortious conduct during 2001 foreclosure proceedings not barred by prior suit that was resolved before the foreclosure). We express no opinion on whether collateral estoppel bars re-litigation of any particular issues raised in the federal lawsuits. See Cost Mgmt. Group v. Bommer, 327 Ga. App. 164, 168 (1) (755 SE2d 537) (2014) (discussing difference between res judicata and collateral estoppel).

       See Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) (764 SE2d 398) (2014) (“[I]f matters outside the pleadings were presented to the trial court, which then considered these matters as it resolved the case, then a reviewing court is required to treat the resulting trial court’s order as a ruling on a motion for summary judgment.”).

       See Post Realty Assoc. v. DSL Assoc., 228 Ga. App. 678, 681 (2) (492 SE2d 600) (1997) (“This is a court for correction of errors below. In the absence of a ruling by the trial court, this Court has nothing to review.”). We recognize that the trial court considered various federal pleadings and other documents when ruling on Chase’s motion to dismiss. Chase, however, attached these documents to its amended answer, and they became part of the pleadings. See OCGA § 9-11-10 (c) (“Acopy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); Trop, supra (documents attached to answer were part of the pleading). “Consideration of these exhibits to the pleadings did not convert the motion to dismiss into a motion for summary judgment.” Id.


author: BARNES, Presiding Judge.

text:
    A16A0744.
    A16A0748.
    THE STATE v. MARSHALL.
    THE STATE v. LUCAS.
    (787 SE2d 290)
   BARNES, Presiding Judge.

The trial court entered orders of discharge and acquittal in the criminal cases of Cloyd Marshall and Jessica Lucas on the ground that their statutory rights to a speedy trial had been violated. The State now appeals, contending that the trial court erred in ordering the discharge and acquittal of the defendants’ cases because the defendants waived their statutory demands for a speedy trial. Both criminal cases involve the same legal question on appeal — whether the defendants waived their statutory demands for a speedy trial when they received a case management order with a trial date scheduled outside the term in which they had to be tried, but did not object to the order. As explained below, we answer that question in the negative because our precedent clearly establishes that remaining silent and failing to object is an insufficient affirmative act to waive a defendant’s statutory demand for a speedy trial. Accordingly, we affirm the orders of discharge and acquittal entered by the trial court.

The record reflects that on February 27, 2015, Marshall was indicted in the Superior Court of Fulton County for false imprisonment, kidnapping, family violence battery, and cruelty to children, and on March 17, 2015, Lucas was indicted in the same court for aggravated assault, possession of a firearm during the commission of a felony, and simple battery. Following their indictments, Marshall and Lucas, through the same appointed counsel, filed statutory demands for speedy trial on March 24, 2015, and April 3, 2015, respectively.

Both criminal cases were assigned to the same trial court judge, who distributed a case management order at Marshall’s preliminary hearing on March 26, 2015, and at Lucas’s preliminary hearing on April 9, 2015. The case management orders set deadlines for discovery, for the filing of motions, and a date upon which the trial court would hear motions. The orders also placed the defendants’ cases on the August 28, 2015 trial calendar, which was after the deadline for them to be tried in accordance with their speedy trial demands.

After the statutory speedy trial deadline had passed, the defendants filed pleas in bar seeking the dismissal of their cases. The trial court granted the defendants’ motions and entered orders of discharge and acquittal.

In Case No. A16A0744, the State challenges the trial court’s decision to discharge and acquit Marshall of his indicted offenses. In Case No. A16A0748, the State challenges the trial court’s decision to discharge and acquit Lucas of her indicted offenses.

Case No. A16A0744

1. The trial court committed no error in discharging and acquitting Marshall of his indicted offenses on statutory speedy trial grounds.

“Under OCGA § 17-7-170, a defendant who has made a proper demand for a speedy trial is entitled to an automatic discharge without further motion if he is not tried within the second term of court, provided that a jury is present at each term and is qualified to try him.” (Citation and punctuation omitted.) Smith v. State, 332 Ga. App. 849, 855 (3) (775 SE2d 211) (2015). See OCGA § 17-7-170 (b). However, “[a] defendant may waive his right to automatic discharge under OCGA § 17-7-170 by any affirmative action on his part or on the part of his counsel which results in a continuance of the case to a time outside the period of the demand.” (Citation, punctuation, footnote and emphasis omitted.) Thornton v. State, 301 Ga. App. 784, 788 (1) (689 SE2d 361) (2009). See Fisher v. State, 273 Ga. 721, 722 (545 SE2d 895) (2001) (“Waiver may result from any act that shows a defendant affirmatively consented to passing the case until a later term.”). The burden is on the State to prove that the defendant waived his demand for a speedy trial under OCGA § 17-7-170. Thornton, 301 Ga. App. at 788 (1).

Fulton County Superior Court has six terms per year, beginning on the first Monday of January, March, May, July, September, and November. OCGA § 15-6-3 (3). Marshall filed his speedy trial demand during the March 2015 term of court, and thus the State was required to try him by the end of the May 2015 term, provided that juries were impaneled and qualified in both terms. SeeOCGA § 17-7-170 (b). The State concedes that juries were properly impaneled and qualified and that Marshall was not tried during the March or May 2015 terms. Marshall therefore was entitled to an automatic discharge and acquittal of his indicted offenses, unless he or his counsel took some affirmative action that waived his statutory demand for a speedy trial. See OCGA § 17-7-170 (b); Thornton, 301 Ga. App. at 788 (1).

The State maintains on appeal that Marshall waived his demand for a speedy trial “by failing to voice any objection” to the case management order, which was distributed to the parties at the preliminary hearing and which set a trial date outside the two-term deadline imposed by OCGA § 17-7-170 (b). We are unpersuaded because remaining silent and failing to object are not sufficient affirmative action to constitute a waiver.

As we explained in Thornton v. State, 7 Ga.App. 752, 753-754 (67 SE 1055) (1910):

The defendant, it is true, may waive his right to insist upon a demand. If he should absent himself from the court, or should move for a continuance, or should agree upon a continuance, or should do any other act affirmatively showing an intention not to insist upon his demand, a waiver would be implied. However, no such waiver results from mere inactivity on his part, provided he does not absent himself from court, so that he cannot be tried. The [Sjtate is the pursuer. He is the pursued; until the [Sjtate moves toward him, he may remain still. If he has demanded trial and stands ready for the trial if it comes, he has done all that the law requires of him in the way of insistence upon his demand; and therefore, if the [Sjtate neglects to try him within the time prescribed by law, it operates as a conclusive and final abandonment of the prosecution.

(Emphasis supplied.)

Consistent with Thornton, we have held that a defendant does not waive his statutory demand for speedy trial by “remaining silent and not calling the attention of the court to the matter thereafter.” (Citations and punctuation omitted.) Parker v. State, 135 Ga. App. 620, 621 (4) (218 SE2d 324) (1975). See Flagg v. State, 11 Ga.App. 37, 39 (74 SE 562) (1912) (defendant “may sit mute” after making statutory speedy trial demand and is entitled to automatic discharge and acquittal if the deadline for trying him passes, so long as he does not “voluntarily absent [himself] from the court” and has “done no other act which in law would amount to a waiver of his demand”). Furthermore, in Ballew v. State, 211 Ga.App. 672, 674 (440 SE2d 76) (1994), we held:

Although defense counsel said nothing when the trial court announced in his presence that it was continuing the case, we cannot infer under these circumstances that silence was an affirmative action clearly waiving the requirements of OCGA § 17-7-170, and a consent to pass the case to a subsequent term.

In light of this precedent, Marshall and his counsel’s mere silence and failure to object to the case management order was not an affirmative act constituting waiver of the statutory demand for a speedy trial. Compare Ballew, 211 Ga. App. at 673-674 (silence in response to trial court’s continuance announcement was not affirmative act that waived speedy trial demand), with Cobb v. State, 275 Ga. App. 554, 557 (2) (621 SE2d 548) (2005) (speedy trial demand was waived where defense counsel expressly consented to continuance that fell outside deadline imposed by OCGA § 17-7-170), and Spencer v. State, 259 Ga. App. 664, 665-666 (577 SE2d 817) (2003) (speedy trial demand was waived where defense entered into proposed scheduling order with State under which the trial fell outside statutory deadline). And nothing in the limited record before us reflects that Marshall or his counsel’s silence was accompanied by any other conduct that would indicate consent to the trial date in the case management order. Accordingly, the trial court did not err in concluding that Marshall had not waived his statutory demand for a speedy trial and that he therefore was entitled to an automatic discharge and acquittal on statutory speedy trial grounds.

Case No. A16A0748

2. The trial court likewise committed no error in discharging and acquitting Lucas of her indicted offenses on statutory speedy trial grounds.

Like Marshall, Lucas filed her statutory demand for speedy trial in the March 2015 term of court, and the State was required to try her by the end ofthe May 2015 term. See OCGA §§ 15-6-3(3); 17-7-170(b). It is undisputed that juries were properly impaneled and qualified and that Lucas was not tried during the March or May 2015 terms. Lucas thus was entitled to an automatic discharge and acquittal, provided that she did not take any affirmative action waiving her statutory demand for a speedy trial. SeeOCGA § 17-7-170 (b); Thornton, 301 Ga. App. at 788 (1).

Decided June 8, 2016.

PaulL. Howard, Jr., District Attorney, Sheila E. Gallow, Michael V. Snow, Assistant District Attorneys, for appellant.

Steven E. Phillips, Stephanie A. Mutti, for appellees.

On appeal, the State raises the same argument that it made with respect to Marshall, contending that Lucas waived her statutory demand for a speedy trial “by failing to voice any objection” to the trial date in the case management order. The State’s argument fails for the same reasons discussed supra in Division 1, and the trial court did not err in finding that Lucas had not waived her statutory speedy trial demand and in entering an order of discharge and acquittal pursuant to OCGA § 17-7-170 (b).

Judgments affirmed.

Boggs, J., concurs. Rickman, J., concurs in judgment only.

       The two cases are not factually related.

       OCGA § 17-7-170 (b) provides in relevant part: “If the defendant is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.”

       Marshall’s preliminary hearing in which the trial court distributed the case management order was not transcribed, and there is nothing in the record to suggest that the order was entered with the consultation or agreement of the parties. Moreover, the State concedes that Marshall “did not explicitly engage in the pre-trial scheduling entered by the trial court” and that the dates in the case management order were set by the court.

       As was the case with Marshall, Lucas’s preliminary hearing was not transcribed.


author: Peterson, Judge.

text:
    A16A0134.
    GEORGIA INTERLOCAL RISK MANAGEMENT AGENCY v. CITY OF SANDY SPRINGS.
    (788 SE2d 74)
   Peterson, Judge.

Georgia Interlocal Risk Management Agency (“GIRMA”) appeals the grant of a motion to dismiss its declaratory judgment action. GIRMA argues that an exclusion in the agreement bars coverage, and thus it should not have to continue defending the lawsuit, and that it is entitled to recoup some of its defense costs. We agree with GIRMA that the exclusion applies to bar coverage for the underlying lawsuit, thus freeing GIRMA from its duty to defend. However, we affirm the trial court’s finding that GIRMA is not entitled to recoup defense costs because even if Georgia law permitted an insurer to recoup defense costs where there is no contractual provision permitting such recovery, GIRMA did not timely seek to reserve such a right.

GIRMA is a risk-sharing arrangement wherein municipalities contract to pool their general liability risks. OCGA § 36-85-2. Although technically not an insurance company or insurer, “[a] municipality that enters a GIRMAcoverage agreement in effect purchases liability insurance.” GIRMA v. Godfrey, 273 Ga. App. 77, 78 (614 SE2d 201) (2005); see also OCGA § 36-85-4. The City of Sandy Springs (the “City”) participated in the GIRMA program from about December 1, 2005 to May 1, 2012. The coverage agreement (the “Contract”) obtained by the City provided coverage for Errors and Omissions — and specifically coverage for money damages incurred by a Member arising from any Wrongful Act committed during the coverage period (which includes alleged constitutional violations).

On June 30, 2006, several owners and operators of establishments offering nude dancing and/or selling sexually explicit merchandise filed suit against the City in the Northern District of Georgia (‘‘Flanigan’s I”). The suit challenged the constitutionality of the City’s ordinances regulating adult entertainment industries within city limits, and sought declaratory and injunctive relief from the City, as well as compensatory and punitive damages from the then-unidentified city manager. GIRMA provided the City with a defense in the suit. The plaintiffs subsequently dismissed the suit voluntarily.

On October 5, 2009, the plaintiffs refiled their federal suit against the City asserting the same constitutional challenge but this time seeking only declaratory and injunctive relief (‘‘Flanigan’s IF). GIRMA again provided a defense to the suit but under a reservation of rights. GIRMA’s reservation of rights letter made clear that GIRMA was providing a defense to the City in Flanigan ’s JJbut was reserving its right to deny coverage based on an exclusion in the Contract. In particular, GIRMA cited Exclusion E, which states that coverage does not apply to “any claim arising out of or in any way connected with any claim seeking equitable relief, redress or any other claim seeking relief in any form other than money damages.”

The first time the plaintiffs amended their complaint, they still did not seek money damages. The City then filed a separate nuisance action in Fulton County Superior Court against the plaintiffs, seeking injunctive relief. The plaintiffs, in turn, filed a second amended complaint on June 20, 2012, seeking nominal and compensatory damages for the City’s allegedly retaliatory conduct in filing the nuisance action.

GIRMA sent a revised reservation of rights letter on February 1, 2013, indicating that it was still providing a defense, but reiterated its reservation of the right to deny coverage under, among other things, Exclusion E. In the revised letter, GIRMA for the first time explicitly reserved the right to recover future advanced defense costs from that date forward if it was determined that GIRMA was not obligated to defend the claim. GIRMA requested that the City consent to the provision of a defense subject to these reservations by signing and returning the letter, and indicated that the City’s refusal to consent or return the letter as requested would result in GIRMA immediately filing a declaratory judgment action to determine its coverage and defense obligations. The City did not sign or otherwise respond to the revised reservation of rights letter.

Later in Flanigan ’s II, on April 9, 2014, the District Court granted the City’s motion for summary judgment with respect to the plaintiffs’ claims over the filing of the nuisance action. Neither party appealed the Court’s order.

Following the court’s order in Flanigan ’s II, GIRMA filed suit against the City on July 11, 2014, seeking a declaratory judgment that no coverage exists for Flan igan ’s II, GIRMA is not obligated to provide a defense to the City in that lawsuit, and it is entitled to defense costs starting from the date of its revised reservation of rights (the “Declaratory Judgment Action”). The City moved to dismiss the suit, arguing GIRMA had a duty to defend as a matter of law and could not withdraw its defense until the City was protected by a final judgment on all potentially or arguably covered claims. The trial court agreed, granted the City’s motion, and dismissed GIRMA’s Declaratory Judgment Action. This appeal followed.

We apply a de novo standard of review to the trial court’s grant of a motion to dismiss. A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim.

Alcatraz Media, LLC v. Yahoo! Inc., 290 Ga. App. 882, 882 (660 SE2d 797) (2008) (citations omitted). Further, in reviewing the grant of a motion to dismiss, we “must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant’s favor.” Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007). Although GIRMA is not technically an insurance company or insurer, we apply principles of insurance law in analyzing coverage issues. See, e.g., City of College Park v. Georgia Interlocal Risk Mgmt. Agency, 313 Ga. App. 239, 243-44 (2) (721 SE2d 97) (2011).

1. The Contract entitled the City to coverage for Errors and Omissions — and specifically money damages incurred by a Member arising from any Wrongful Act committed during the coverage period. The Contract’s definition of a “Wrongful Act” includes alleged constitutional violations, and Flanigan ’s II alleged constitutional violations. GIRMA concedes the allegations in Flanigan’s II constitute a “Wrongful Act,” bringing the claim within the insuring clause, but argues that Exclusion E excludes coverage and negates its duty to defend. Therefore, the first issue we must address is whether Exclusion E operates to exclude coverage for Flan igan ’s IIunder the policy If there is no coverage, GIRMA does not have a duty to defend. See Penn-American Ins. Co. v. Disabled American Veterans, Inc., 268 Ga. 564, 565 (490 SE2d 374) (1997) (where the complaint sets forth true factual allegations showing no coverage, the insurer is excused from providing a defense). We conclude that the claims arise out of claims seeking equitable relief, Exclusion E applies, and thus GIRMAhas no duty to defend.

Exclusion E of the Con tract

Exclusion E states that coverage does not apply to “any claim arising out of or in any way connected with any claim seeking equitable relief, redress or any other claim seeking relief in any form other than money damages.” We have previously defined “arising out of” to mean “had its origins in,” “grew out of,” or “flowed from.” BBL-McCarthy, LLC v. Baldwin Paving Co., 285 Ga. App. 494, 498 (1) (a) (646 SE2d 682) (2007). “Moreover, we have also held that the term ‘arising out of’ does not mean proximate cause in the strict legal sense .... Almost any causal connection or relationship will do.” Id. (citations omitted). In determining whether claims “arise out of” excluded conduct, we conduct a “but for” analysis. See City of College Park, 313 Ga. App. at 243-45 (2); Continental Cas. Co. v. H.S.I. Finan. Svs., Inc., 266 Ga. 260, 262 (466 SE2d 4) (1996). “Claims arise out of excluded conduct when ‘but for ’ that conduct, there could be no claim against the insured.” Video Warehouse, Inc. v. Southern Trust Ins. Co., 297 Ga. App. 788, 791 (678 SE2d 484) (2009).

Contract Provisions And Their Relation to Exclusion E

When interpreting a contract, we look to that contract’s language. In the Contract, the capitalized term “Claim” is defined as “a demand against a Member or by a Member for money damages for compensable losses.” Exclusion E uses the word “claim,” but does not capitalize it. Although failure to capitalize a term does not always mean that the uncapitalized term lacks the capitalized term’s specifically defined meaning, under the circumstances here, we conclude that the word should be interpreted according to its normal and ordinary usage. As defined in the Contract, the capitalized term “Claim” means a demand for money damages. But as used in the exclusion, the uncapitalized term “claim” is intended to mean those demands for something other than money damages. Moreover, GIRMA conceded at oral argument that the term “claim” as used in the exclusion is intended to have its ordinary meaning, and the City did not disagree. Accordingly, in analyzing the applicability of Exclusion E in the case at hand, we consider the word “claim” according to its normal and ordinary usage.

Under its ordinary usage, a claim is defined as “a demand for something rightfully or allegedly due” or “a right... to something.” Webster’s New World Dictionary 261 (2d College ed. 1972). Here, “claim” used in its ordinary sense is broad enough to encompass the claims made in Flanigan's II and in the nuisance action. The nuisance action asserted claims seeking injunctive relief. The first two complaints in Flanigan's II did not seek monetary damages for any of the plaintiffs’ claims. But the second amended complaint did, and that is the operative complaint now at issue in Flanigan’s II. The question, then, is whether the claims in the second amended complaint arose out of a claim seeking equitable relief or relief in a form other than money damages, such that it would fall within the exclusion at issue here. We conclude that they did.

The claims in the second amended complaint “grew out of” those asserted in the first two complaints filed in the Flanigan’s IIaction that originally sought only declaratory and injunctive relief. The claims in the second amended complaint also “flowed from” the filing of the nuisance action, because the second amended complaint specifically asserted an additional claim pertaining to the alleged implications from the filing of the nuisance action. But for the filing of Flanigan ’s II and the nuisance action, the claims in the second amended complaint in Flanigan’s IIwould not exist. Thus, the claims asserted in the second amended complaint in Flan igan’s IIfall within Exclusion E, and therefore no coverage, and relatedly, no duty to defend, exists. Insurance coverage is a matter of contract between the insurer and the insured, and this Court “will not strain to extend coverage where none was contracted or intended.” Jefferson Ins. Co. of New York v. Dunn, 269 Ga. 213, 216 (496 SE2d 696) (1998). “[A]n insurance company is free to fix the terms of its policies as it sees fit, so long as such terms are not contrary to law, and it is equally free to insure against certain risks while excluding others.” Continental Cas. Co., 266 Ga. at 262.

The City’s Hypotheticals

The hypothetical scenarios proposed by the City in its brief do not change our analysis. The City conjured the following scenarios that it says would give rise to a parade of horribles resulting from our conclusion that Exclusion E applies:

• The City contracts with a business to maintain a park, but the business bans demonstrations in the park. A lawsuit is filed against the City and the business seeking money damages. GIRMA defends, but then the City learns the business made material misrepresentations during contract negotiations, so the City files a cross-claim in equity to rescind the contract. Coverage vanishes because the lawsuit is “connected with any claim seeking equitable relief.”
• Employees allege the City negligently administers its benefits program and sue for money damages, and the employees later threaten to release personnel records that support their case but also reveal confidential information about other employees not involved in the suit. GIRMA defends, and the City or the employees whose personal information is threatened seek a temporary restraining order. Coverage vanishes because the lawsuit is “connected with any claim seeking equitable relief.”

In each of the proposed scenarios above, the initial action includes a claim for money damages, out of which a later request for equitable relief arises. But here, the situation is the converse — that is, the initial action was one for equitable relief that only later gave rise to a claim for money damages. Prior to Flanigan’s II, the claim at issue did not only “arise out of” claims seeking equitable relief, they were claims seeking only equitable relief. Our analysis is limited to specific language in the exclusion: whether GIRMA’s claim for declaratory judgment “arise[s] out of . . . any claims seeking equitable relief, redress or any other claim seeking relief in any form other than money damages.” How coverage may shift under other language in the exclusion in scenarios imagined by the City does not affect our decision on the actual dispute before us. The trial court erred in granting the City’s motion to dismiss GIRMA’s Declaratory Judgment Action, and we reverse.

2. Because we agree that GIRMA does not have a duty to defend, we must now address GIRMA’s claim that it is entitled to recover litigation costs in Flanigan ’s II incurred subsequent to the issuance of its revised reservation of rights letter on February 1, 2013. GIRMA does not point to any provision in the insurance agreement granting it the right to recoup defense costs. GIRMA instead argues that the City impliedly agreed that GIRMA would be able to recover defense costs by continuing to accept GIRMA’s defense even after the amended reservation of rights letter that, as of February 1, 2013, included a reservation of the right to seek reimbursement of defense costs on uncovered claims, thus creating an implied-in-fact contract. GIRMA alternatively argues that it would constitute unjust enrichment for the City to receive a free defense where no coverage exists. The issue of whether insurers are entitled to recoup defense costs where there is no contractual provision creating such a right is an issue of first impression in Georgia courts, but we need not reach that issue here.

We recognize that “ [nationally, courts are split as to whether an insurer has a right to reimbursement of defense fees paid where it is determined that the insurer had no duty to defend.” Illinois Union Ins. Co. v. NRI Const. Inc., 846 F. Supp. 2d 1366, 1374 (N.D. Ga. 2012) (citing Westchester Fire Ins. Co. v. Wallerich, 563 F.3d 707, 714 (8th Cir. 2009)). The “majority” view held by courts recognizes an insurer’s right to reimbursement of defense costs and fees where it is determined that the insurer had no duty to defend. See Westchester, 563 F.3d at 714. This view is typically supported by two theories — an implied contract or the quasi-contractual theory of unjust enrichment.

GIRMA cites authority from the Northern District of Georgia, Illinois Union Insurance Co., 846 F. Supp. 2d 1366, in which the Northern District predicted how Georgia courts would interpret the issue. Id. at 1374-77 (II) (C) (1). In Illinois Union, the Northern District found the majority view among the nation’s courts to be the most persuasive based on theories of implied-in-fact contract and unjust enrichment. Id. at 1377 (II) (C) (3). That view holds that where no contractual provision exists, a right to recoup defense costs still exists where the insurer timely and explicitly reserved that right. Id. GIRMA argues Georgia courts should apply the majority rule recognized in Illinois Union.

But even if we were to adopt the rule urged by GIRMA, its reservation of the right to seek reimbursement of defense costs was not timely here. GIRMA first began providing a defense in Flanigan’s IIin 2009, subject to its initial reservation of rights. It did not send a revised reservation of rights reserving its right to seek defense costs until 2013. That GIRMA limited its request for defense costs to those it would incur moving forward from the amended reservation does not change the analysis as to whether it acted reasonably promptly in reserving the right in the first instance. See., e.g., Builders Ins. v. Tenenbaum, 327 Ga. App. 204, 210 (1) (757 SE2d 669) (2014) (an insurer “must act reasonably promptly” in preserving its rights to assert a particular ground for noncoverage). If GIRMA actually has a right to recoup defense costs in this case, then such a right would have existed in 2009, four years before it attempted to reserve that right. GIRMA argues the delay was reasonable because until the Northern District’s decision in Illinois Union in 2012, it did not have a basis under Georgia law to make this reservation. But GIRMA’s argument misunderstands the nature of decisions of federal courts interpreting Georgia law. The Northern District did not make Georgia law in Illinois Union. The court merely predicted how Georgia courts would rule, and it based this prediction on the same case law available to GIRMA. Therefore, GIRMA was in the same position and had the same ability to make such a prediction itself and to issue a timely reservation accordingly It did not do so and cannot now seek to collect despite its failure.

Decided May 24, 2016

Reconsideration denied June 9, 2016

James R. Westbury, Jr., Matthew H. Bennett, for appellant.

Slappey & Sadd, James N. Sadd, Richard E. Bolder, Jr., for appellee.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       The City of Sandy Springs requested on its motion for reconsideration that we make clear our opinion does not decide its affirmative defenses of waiver and estoppel, which were not raised in the City’s motion to dismiss or before this Court. It is, of course, axiomatic that “a decision’s holding is limited to the factual context of the case being decided and the issues that context necessarily raises. Language that sounds like a holding-but actually exceeds the scope of the case’s factual context - is not a holding no matter how much it sounds like one.” Classic Commer. Servs. v. Baldwin, 336 Ga.App. 183, 190 (784 SE2d 44) (2016) (Peterson, J., concurring fully and specially). As the City’s defenses of waiver and estoppel are not at issue on this appeal, nothing in this decision should be understood as deciding them.

       The nuisance action also included a catch-all provision in the prayer for relief, seeking all other relief as the court “deems just and proper[,]” including “damages, and other monetary relief [.] ”

       This conclusion is bolstered by the bizarre results obtained using the defined term. Exclusion E would provide that coverage does not apply to: “any [demand . . . for money damages] arising out of or in any way connected with any [demand . . . for money damages] seeking equitable relief, redress or any other [demand .. . for money damages] seeking relief in any form other than money damages.” This construction would be incoherent.

       We previously noted the definition of “claim” under Black’s Law Dictionary as a “cause of action” or “demand for money or property,” with “demand” being defined as an “assertion of a legal right.” See Patterman v. Travelers, Inc., 235 Ga. App. 784, 786 (510 SE2d 307) (1998), aff’d. Travelers, Inc. v. Patterman, 272 Ga. 251 (527 SE2d 187) (2000).

       We acknowledge that the City also included a catch-all prayer for relief seeking “such other relief... as [the] Court deems just and proper [.] including “damages, and other monetary relief against Defendants [.] But this general catch-all clause in the prayer for relief does not convert the action into one for monetary damages where the complaint otherwise fails to set forth a basis for money damages. Otherwise, all lawsuits seeking “such other relief as the court deems necessary, just, and proper,” or some variation thereof, as is often included as a matter of course, would precipitate a duty to defend. See, e.g., Clemons v. State Farm Fire and Cas. Co., 879 S.W.2d 385, 393 (Tex. Ct. App. 1994).

       We make no such holding here. See PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (“if it is not necessary to decide more, it is necessary not to decide more.”).

       GIRMA sought reimbursement of defense costs from the date of the revised reservation forward.


text:
    A16A0652.
    EVERHART v. THE STATE.
    (786 SE2d 866)
   Peterson, Judge.

Jonanthony Everhart, convicted of two counts of cruelty to children in the first degree, and one count of cruelty to children in the second degree, appeals from the denial of his motion for a new trial. Everhart argues that (1) the trial court erred in allowing deposition testimony to be read at trial; (2) the trial court erred in failing to conduct a pretrial hearing on other acts evidence; (3) his trial counsel rendered ineffective assistance of counsel in several respects; and (4) Count 1 of the indictment did not allege the crime of cruelty to children in the first degree. We reverse Everhart’s conviction on Count 1 for cruelty to children in the first degree because Everhart’s trial counsel provided ineffective assistance by failing to demur to the fatally defective indictment. We affirm Everhart’s remaining convictions because (1) the other aspects of trial counsel’s performance of which Everhart complains do not constitute ineffective assistance that prejudiced his defense, (2) Everhart’s counsel agreed to the deposition without Everhart’s presence and Everhart acquiesced in that waiver of his presence, and (3) admitting evidence of prior difficulties between Everhart and the victim’s brother neither required a hearing nor harmed Everhart.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State, 230 Ga.App. 224, 224 (496 SE2d 292) (1998) (citation omitted). So viewed, the evidence shows that Everhart was living with the victim, who was a three-month-old infant at the time, and the victim’s two-year-old brother and mother, although he was not the biological father of the children. One evening, Everhart demanded money from the victim’s mother to buy marijuana and cigarettes. When she refused, Everhart jerked the young victim out of the car seat and started beating him repeatedly in the ribs with a broom handle. Everhart also shook the victim. Despite obvious resulting injuries, including bloody urine in the victim’s diaper, Everhart and the victim’s mother did not bring the victim to the hospital until several days later, claiming another adult, Ms. Smith, had dropped the victim. The victim was noted as having serious life-threatening injuries, was intubated, and was transferred via emergency helicopter to a children’s hospital. Medical assessment of the victim revealed a skull fracture, brain bleeding and damage, internal bleeding and organ damage, multiple rib fractures, retinal hemorrhages, and resulting seizures, all of which were likely to result in significant life-long impairment. The physicians who testified at trial agreed that the injuries were not compatible with the victim having simply been dropped or falling, but rather were the result of physical abuse. The victim’s brother also had bruising. The victim and his brother were taken into protective custody, and their mother and Everhart were subsequently arrested and charged with various crimes pertaining to both children.

At Everhart’s trial, testimony regarding the extent and cause of the victim’s injuries was presented through the deposition of Dr. Greenbaum, a forensic pathologist. The victim’s mother and a police officer also provided testimony regarding a previous episode in which Everhart hit the victim’s brother repeatedly over a 20-minute period. Ms. Smith, who Everhart had originally claimed injured the victim, also testified that she had to provide some care to the victim while the victim’s mother and Everhart were outside smoking marijuana. Additionally, a witness from the Division of Family and Children Services (“DFCS”) testified regarding her interview of Everhart, and Everhart’s videotaped interview by a police investigator was played at trial. Everhart was found guilty of the charges pertaining to the victim, but not those pertaining to the victim’s brother. Everhart filed an amended motion for a new trial, which the trial court denied, prompting this appeal.

1. Everhart argues that the trial court erred in allowing the testimony from Dr. Greenbaum’s deposition to be introduced at trial because the deposition occurred outside of his presence and without sufficient notice to him and because no notice of intent to depose Dr. Greenbaum was provided to or approved by the trial court. We disagree.

Although “the taking of testimony is a critical part of the trial at which the defendant has the right to be present[,]” a defendant may waive that right either personally or through his counsel. Holsey v. State, 271 Ga. 856, 861 (5) (524 SE2d 473) (1999); see also Brooks v. State, 271 Ga. 456, 457 (2) (519 SE2d 907) (1999). “For there to be a waiver by defendant’s counsel, the waiver must be made in the defendant’s presence or with his express permission, or else the waiver must be subsequently acquiesced in by the defendant.” Brooks, 271 Ga. at 457 (2) (footnote omitted).

Everhart was not present during the deposition, but Everhart’s counsel indicated that he was “waiving the appearance of Mr. Ever-hart,” although he had not yet discussed the issue with Everhart. When Dr. Greenbaum’s deposition was later introduced at trial, neither Everhart nor his attorney objected. This silence constituted Everhart’s acquiescence in the waiver of his presence at the deposition. See Holsey, 271 Ga. at 861 (5) (when defendant’s “counsel made no objection and [defendant] remained silent as well,” court concluded that defendant “acquiesced in the proceedings that occurred... in his absence”); Zamora v. State, 291 Ga. 512, 519-20 (7) (c) (731 SE2d 658) (2012) (appellant’s failure to object upon discovering the details of a bench conference conducted in his absence amounted to acquiescence).

Everhart argues Holsey does not apply because in that case the court affirmatively addressed the issue with the defendant, and thus the defendant’s silence was more meaningful than it is here. This is a misreading of Holsey. In Holsey, the trial court simply informed the parties that certain juror questions during a site visit that the defendant did not attend had been answered; the court did not ask the defendant or his counsel anything about the defendant’s absence. Id. at 861 (5). Neither the defendant nor his counsel objected, and therefore the defendant was found to have acquiesced in the proceedings. Id. In any event, the rule in Holsey has been applied in a number of other cases in which a defendant’s silence has been taken as acquiescence even in the absence of a specific statement to the defendant by the court. See, e.g., Scudder v. State, 298 Ga. 438, 440 (2) (782 SE2d 638) (2016); Zamora, 291 Ga. at 519-20 (7) (c); Jackson v. State, 278 Ga. 235, 237 (3) (599 SE2d 129) (2004).

We also note that this case is necessarily different, from the other case Everhart relies upon, Cesari v. State, 334 Ga. App. 605 (780 SE2d 56) (2015). In that case, the defendant was denied reentry into the courtroom during the course of his trial, an action in which he did not acquiesce. Id. at 610 (1). No equivalent event occurred here.

Everhart also argues that the State failed to follow the requirements for using a deposition at trial set forth in former OCGA § 24-10-130, which includes a provision for notice. But regardless of any technical defect in the State’s failure to adhere to former OCGA § 24-10-130’s requirements, Everhart’s counsel had actual notice of the deposition, was present, and cross-examined the witness. See, e.g., Burrell v. State, 258 Ga. 841, 844 (6) (376 SE2d 184) (1989) (technical violation of statute’s notice provision harmless where, among other things, defendant had an opportunity to cross-examine).

Because Everhart ultimately acquiesced in his counsel’s waiver of his presence at the deposition, there was no violation of Everhart’s constitutional rights, and any violation of the statute’s notice provision was harmless.

2. Everhart also argues that the trial court erred by failing to conduct a pretrial hearing to determine the admissibility of other criminal wrongdoing and prior bad acts and by failing to make explicit rulings regarding relevance and prejudice. We disagree.

Everhart objects to the admission of evidence pertaining to a prior police response to a 911 call. Someone had called police to report hearing a child being beaten for approximately 20 minutes. The responding officer testified that when he arrived at the residence, “I talked to all three of the children for a minute. All of them seemed fine. They were just running around playing like any normal children would be doing[.]” The responding officer further testified that he checked to see if they were okay, and that the children did not seem to be in any distress. The police officer did not take any further action because he did not observe anything that warranted a report to DFCS, and was not even certain that Everhart was the same individual at the residence when he responded to the 911 call. The victim’s mother testified that, on the day ofthe 911 call, Everhart had beaten the victim’s brother with a belt because he did not like the way the child was looking at him.

(a) Everhart does not direct us to authority requiring a hearing before evidence of prior difficulties may be admitted. Prior to the new Evidence Code, former Uniform Superior Court Rule 31.3 required notice of an intent to introduce evidence of similar transactions and a hearing in order to decide whether the evidence was admissible. Former Unif. Sup. Ct. Rule 31.3(A), (B). The provision of notice and a hearing was an affirmative obligation of the State and the trial court, and a defendant’s failure to object did not waive it. See Riddle v. State, 208 Ga. App. 8, 11 (1) (430 SE2d 153) (1993). But even when this Rule was still in effect, evidence of prior difficulties between a defendant and a victim — as opposed to prior transactions or occurrences — was admissible without notice or a hearing. See Gant v. State, 313 Ga. App. 329, 335 (2) (721 SE2d 913) (2011).

Under the new Evidence Code, however, OCGA § 24-4-404(b) — not former Rule 31.3 — governs admission of prior difficulty evidence. See Madison v. State, 329 Ga. App. 856, 866 (3), n.5 (766 SE2d 206) (2014). OCGA § 24-4-404(b) incorporated former Rule 31.3’s notice requirement (but not the hearing requirement) for evidence of other crimes or wrongs, but specifically excludes from this notice requirement “evidence of prior crimes, wrongs, or acts [that] is offered to prove . . . prior difficulties between the accused and the alleged victim.” OCGA § 24-4-404(b). Because the statute excludes from the notice requirement evidence of prior difficulties between a defendant and a victim and, unlike former Rule 31.3, says nothing about a mandatory hearing, we decline to read it as implicitly mandating a hearing before admission of evidence of prior difficulties. Accordingly, the trial court’s failure to hold a hearing on this matter was not error.

(b) Everhart also argues the trial court erred by not making an explicit finding as to the balancing of the probative value and prejudicial effect of this evidence. But even if the trial court erred in admitting this testimony, “the error alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.” Buice v. State, 239 Ga. App. 52, 57 (3) (520 SE2d 258) (1999) (citation and punctuation omitted). Everhart does not explain how he was harmed by this testimony; indeed, he points out that the police officer’s testimony did not indicate that he acted wrongfully. Everhart was not found guilty of the counts pertaining to the victim’s brother, indicating that the jury was able to consider the evidence on each count in its own light. And the evidence of Everhart’s guilt with respect to the victim is overwhelming based on the testimony of the victim’s mother, the various medical providers who treated the victim, and the forensic pathologist, among other witnesses. Therefore, we fail to see how Everhart was harmed by equivocal testimony about an incident that the responding officer characterized as too minor to warrant a follow-up with DFCS.

3. Everhart argues that his trial counsel rendered ineffective assistance in several respects. We agree that counsel was ineffective for failing to demur to Count 1 of the indictment, and accordingly reverse Everhart’s conviction on that count. We reject the rest of his arguments.

To establish an ineffective assistance claim, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency so prejudiced him as to create a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different. F ailure to satisfy both requirements is fatal to an ineffectiveness claim.

Mitchell v. State, 250 Ga. App. 292, 295-96 (2) (551 SE2d 404) (2001) (footnotes omitted). “In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, we uphold the court’s factual findings unless they are clearly erroneous, and review the court’s legal conclusions de novo.” Raybon v. State, 309 Ga. App. 365, 365 (710 SE2d 579) (2011) (footnote omitted).

(a) Everhart first argues that trial counsel was ineffective for failing to demur to Count 1 of the indictment, which did not sufficiently allege a crime. We agree.

In Count 1, the indictment alleged that Everhart committed cruelty to children in the first degree in violation of OCGA § 16-5-70 when he wilfully deprived the victim “of necessary sustenance to the extent said child’s health and well-being were jeopardized by failing to seek medical attention for said child after noticing injury and illness to the child which continued to worsen[.]” Everhart argues that timely medical care does not qualify as “necessary sustenance” under the statute. In this respect, he is correct. See Howell v. State, 180 Ga. App. 749, 751-52 (3) (350 SE2d 473) (1986). The State does not dispute this.

The State argues in response merely that this error in the indictment would have been the subject of a special demurrer, in response to which the State could simply have corrected the indictment, and therefore trial counsel’s failure to file such a motion caused no prejudice. The State is wrong.

A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime. In other words, a general demurrer is essentially a claim that the indictment is fatally defective and, therefore, void, because it fails to allege facts that constitute the charged crime or any other crime, including a lesser included offense of the charged crime.

State v. Wilson, 318 Ga. App. 88, 91-92 (1) (732 SE2d 330) (2012) (citations and footnote omitted) (emphasis in original). “In contrast to a general demurrer, a special demurrer merely objects to the form of an indictment and seeks more information or greater specificity about the offense charged.” Id. at 92 (1) (citation omitted) (emphasis in original).

The State attempted to charge Everhart with cruelty to children in the first degree under the wrong subsection of OCGA § 16-5-70. The State’s allegation that Everhart failed to seek medical attention for the child “after noticing injury and illness to the child which continued to worsen” was not sufficient to charge any crime when the State alleged only that this deprivation constituted denial of “necessary sustenance.” “ ‘Necessary sustenance’ has been defined by our Supreme Court as ‘that which supports life; food; victuals; provisions’. ... Our statute, in the use of the word ‘sustenance,’ means that necessary food and drink which is sufficient to support life and maintain health.” Howell, 180 Ga. App. at 751 (3) (citing Caby v. State, 249 Ga. 32, 33 (1) (287 SE2d 200) (1982)). “The denial of necessary and appropriate medical care for a child under 18 years of age can constitute cruelty to a child when it causes the child ‘cruel or excessive physical or mental pain’, under OCGA § 16-5-70(b) but it does not constitute a denial of ‘sustenance.’” Id. at 751-52 (3). In order for the State to have charged Everhart sufficiently with cruelty to children in the first degree for the failure to seek timely medical care following the severe beating of the victim, the State needed to allege that the failure maliciously caused the child “cruel or excessive physical or mental pain.” OCGA § 16-5-70(b) (emphasis added); see also Howell, 180 Ga. App. at 751-52 (3); Williams v. State, 285 Ga. App. 628, 629 (1) (647 SE2d 324) (2007). The State’s indictment omitted these essential elements of the crime and therefore failed to charge Everhart with any crime at all. Therefore, Count 1 of the indictment was fatally defective and would have been dismissed if Everhart’s counsel had filed a general demurrer.

Our requirement that an indictment state every essential element of the crime of which a defendant is accused may seem to some people like a fussy technicality. They would be wrong.

The Sixth Amendment to the United States Constitution states that criminal defendants shall “be informed of the nature and cause of the accusation against them.” It is established in Georgia that satisfaction of this fundamental principle requires that a criminal indictment which does not recite language from the Code must allege every essential element of the crime charged.

Smith v. Hardrick, 266 Ga. 54, 54 (1) (464 SE2d 198) (1995) (footnote omitted).

This requirement serves several vital purposes. A properly crafted indictment enables a defendant to prepare a defense and establishes the scope of prosecution for purposes of our constitutional prohibition against double jeopardy. See State v. Pittman, 302 Ga. App. 531, 533 (690 SE2d 661) (2010). It also safeguards our requirement that a grand jury find probable cause before a prosecution may proceed; “[u]nless every essential element of a crime is stated in an indictment, it is impossible to ensure that the grand jury found probable cause to indict.” Smith, 266 Ga. at 55 (1). For these reasons, “there can be no conviction for the commission of a crime an essential element of which is not charged in the indictment. If an accused individual can admit to all of the allegations in an indictment and still be not guilty of a crime, then the indictment generally is insufficient and must be declared void.” Id. (punctuation and footnotes omitted).

Here, Everhart could have admitted all the allegations in Count 1 and still not be guilty of a crime. Had his counsel filed a general demurrer, Count 1 would have been dismissed. Accordingly, Ever-hart’s trial counsel’s failure to challenge this count constitutes deficient performance, contributed to Everhart’s conviction on a void count, and therefore harmed Everhart and prejudiced his case. See Polk v. State, 275 Ga. App. 467, 469 (1) (620 SE2d 857) (2005); Youngblood v. State, 253 Ga. App. 327, 329 (3) (558 SE2d 854) (2002). Consequently, we must reverse Everhart’s conviction on this count. Polk, 275 Ga. App. at 469 (1); Youngblood, 253 Ga. App. at 329 (3).

(b) Everhart next argues that his trial counsel was ineffective for (1) waiving his right to be present and confront Dr. Greenbaum at her deposition, and (2) failing to object to the introduction of that deposition testimony at trial. We disagree.

As we have already explained, where the defendant’s counsel waives the defendant’s presence at the deposition, the defendant may subsequently acquiesce in the waiver. Brooks, 271 Ga. at 457 (2). Everhart did so here. Thus, Everhart cannot now complain of his trial counsel’s decision to agree to the deposition in the first instance and waive Everhart’s presence at the deposition. See London v. State, 260 Ga. App. 780, 783 (3) (580 SE2d 686) (2003) (where defendant acquiesced in his trial counsel’s consent to a particular arrangement in the jury room, that acquiescence waived his objection on appeal); see also Brown v. State, 310 Ga. App. 285, 290 (6) (e) (ii) (712 SE2d 521) (2011) (where defendant acquiesces in proceedings that occurred in his absence, he waives the right to claim that his absence was error or that his counsel was ineffective). Moreover, trial counsel’s decision not to object to the introduction of the deposition testimony at trial falls within “the realm of trial tactics and strategy.” Herndon v. State, 235 Ga. App. 258, 259 (509 SE2d 142) (1998). “Review of counsel’s performance must be highly deferential; tactical decisions amount to ineffective assistance only if so patently unreasonable that no competent attorney would have chosen them.” Id. (citations omitted).

(c) Everhart argues next that his trial counsel was ineffective for failing to object to “prior bad acts” testimony from the victim’s mother and from a responding police officer during trial, and for not requesting a limiting instruction before the evidence was presented and during the final jury charge. But regardless of whether a limiting instruction should have been requested on the prior difficulty evidence, as we discussed in Division 2 above, Everhart “has failed to show that there is a reasonable probability the outcome of his trial would have been different, had trial counsel requested a limiting instruction.” Melson v. State, 263 Ga. App. 647, 648-49 (3) (588 SE2d 822) (2003). Everhart was found not guilty of the counts pertaining to the victim’s brother. Thus, the jury was clearly able to distinguish the prior difficulty evidence relating to the victim’s brother from evidence relating to the victim.

(d) Everhart also argues that his trial counsel should have objected on the basis of relevance, speculation, and prejudice to witness testimony about Everhart smoking marijuana. Everhart’s trial counsel testified at the hearing on the motion for a new trial that he made the decision not to object because he thought the testimony was relevant and, in the broader context in which the testimony was provided, not prejudicial. We agree.

“The decision of whether to interpose certain objections is a matter of trial strategy and tactics. Errors in judgment and tactical errors do not constitute denial of effective assistance of counsel.” Abernathy v. State, 299 Ga. App. 897, 903 (3) (a) (685 SE2d 734) (2009) (citations omitted). “In evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Holmes v. State, 271 Ga. App. 122, 124 (3) (608 SE2d 726) (2004) (citation omitted).

The witness, Ms. Smith, who Everhart had originally claimed injured the victim, testified regarding her interactions with the victim. She testified that on the evening that the victim and the victim’s family, including Everhart, were staying with her in Atlanta, she had picked up the victim in response to his cries because Everhart and the victim’s mother were busy smoking marijuana outside. This testimony is relevant to disprove the version of events recounted to the hospital by Everhart. Moreover, to the extent that evidence of Everhart’s marijuana use was prejudicial (a doubtful proposition, we think), the jury had already heard far more prejudicial testimony about it from the victim’s mother. Indeed, she testified that Everhart attacked the victim after the mother did not comply with Everhart’s request for money to buy marijuana. See Wilson v. State, 306 Ga. App. 827, 833 (3) (b) (703 SE2d 400) (2010). Therefore the prejudice from the witness’s testimony, if any, was minimal. See, e.g., Pennymon v. State, 261 Ga. App. 450, 452 (2) (582 SE2d 582) (2003).

Everhart “has not shown that any ruling on an objection . . . would have been meritorious or would have led to a different result.” Adams v. State, 327 Ga. App. 299, 303 (3) (758 SE2d 831) (2014). Everhart’s trial counsel’s decision not to object to the witnesses’ testimony, therefore, did not constitute ineffective assistance of counsel. See Fann v. State, 275 Ga. 756, 757 (2) (571 SE2d 774) (2002); Ross v. State, 231 Ga. App. 793, 799 (9) (499 SE2d 642) (1998).

(e) Everhart argues that his trial counsel should have objected to DFCS witness testimony that she did not find Everhart’s explanation for the delay in seeking treatment for the victim to be “satisfactory.” Everhart argues that this testimony invaded the province of the jury We disagree.

Although credibility of a witness “is a matter solely within the province of a jury[,]” this court need not exclude testimony simply because a defendant argues the testimony is tangentially related to credibility Noe v. State, 287 Ga. App. 728, 730 (1) (652 SE2d 620) (2007) (citation omitted). In Noe, we observed that this rule prohibits “directly commenting upon the victim’s credibility, i.e., stating T believe the victim; I think the victim is telling the truth,’ or testimony that implicitly goes to the ultimate issue for jury determination, i.e., ‘In my opinion, the victim was sexually abused.’ ” Id. (citation and punctuation omitted). Nothing Everhart complains of here even approaches the kind of testimony that Noe explains is prohibited.

The witness was asked about the delay in seeking medical treatment for the victim. She testified that Everhart explained to her that he delayed seeking treatment for the victim because he thought the victim might have the flu (which would not require a trip to the hospital) and because it was raining and he did not want anyone slipping on the steps. The witness was then specifically asked whether she found Everhart’s explanation for the delay satisfactory, and she replied that she did not. In context, this was not a statement of disbelief; indeed, the State made explicit before asking the question that the State was “not asking [her] to gauge [Everhart’s] truthfulness,” and on cross-examination, the witness stated that she “didn’t draw any conclusions about [Everhart] misleading me.” Rather, the DFCS witness simply testified that Everhart’s explanation, even if true, did not constitute a sufficient reason for failing to seek immediate medical care for the victim. This was not commentary about credibility, and trial counsel’s failure to make a meritless objection cannot support a claim of ineffective assistance of counsel. See Fults v. State, 274 Ga. 82, 87 (7) (548 SE2d 315) (2001).

(f) Finally, Everhart argues that trial counsel rendered ineffective assistance by failing to request a redaction of his video-recorded statement to the investigator. Although Everhart takes issue with several statements made by the investigator during the course of the video, he has failed to establish that he was prejudiced by them. Each statement of which Everhart complains was cumulative of other admissible evidence.

Everhart complains about the investigator’s statement, “Whatever happened to that baby did not happen in Atlanta. The injuries to the child are older than what happened in Atlanta. Those rib fractures did not happen there.” But Dr. Greenbaum testified that the rib fractures were several weeks old, and that the severity of the injuries would have been such that they would have been noticed during such a trip.

Everhart also complains about the investigator’s statement that the witness, who Everhart had originally claimed dropped the victim, “did not do this. She is out of the picture .... I have talked to her. It’s got nothing to do with her.” Similarly, Everhart complains about the investigator’s comment about the victim having

... a bleeding brain, a swollen brain, liver lacerations, lung contusions in both of them, eight to ten bruises all over the body, the kid is having seizures, too many hemorrhages in the eyes to count, and nine rib fractures. That doesn’t come from a girl... dropping the child by accident while changing the diaper.

Again, Dr. Greenbaum testified as to the existence of these injuries, and the fact that they would not have originated from someone simply dropping the victim.

Because the testimony about which Everhart complains was cumulative, trial counsel’s failure to request a redaction did not amount to ineffective assistance. See, e.g., Pope-Frazier v. State, 331 Ga. App. 263, 270-71 (3) (a), (b) (770 SE2d 654) (2015) (rejecting claims of ineffective assistance based on counsel’s failure to object where testimony was cumulative of other admissible evidence); Ashmid v. State, 316 Ga. App. 550, 558 (3) (b) (730 SE2d 37) (2012) (“the failure to object to evidence which is merely cumulative of other admissible evidence does not amount to ineffective assistance of counsel”) (punctuation and footnote omitted).

Decided May 25, 2016

Reconsideration denied June 9, 2016.

Burgar & Michael, Marko L. Burgar, James D. Michael, for appellant.

Leigh E. Patterson, District Attorney, Mary Beth Gregoire, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       Count 1 charged Everhart with first degree cruelty to children for the wilful deprivation of necessary sustenance by failing to seek medical care for the victim; Count 2 charged Everhart with second degree cruelty to children for causing cruel and excessive physical and mental pain to the victim by failing to seek medical care for him; Count 3 charged Everhart with first degree cruelty to children for causing cruel and excessive physical and mental pain to the victim by inflicting multiple physical injuries; Count 4 charged Everhart with aggravated battery for causing brain and internal injury to the victim; Count 5 charged Everhart with first degree cruelty to children for bruising the victim’s brother; and Count 6 charged Everhart with family violence battery for causing visible bodily harm to the victim’s brother.

       Because of our ruling here, we need not address Everhart’s other enumerations of error related to Count 1.

       The alleged beating occurred after Everhart, the victim, and the victim’s family had returned home from this visit.


author: Ellington, Presiding Judge.

text:
    A15A0223.
    FUCIARELLI v. McKINNEY et al.
    (787 SE2d 317)
    Decided June 9, 2016.

      Hornsby Law Group, D. Brandon Hornsby, Graham R. Scofield, for appellant.

      Samuel S. Olens, Attorney General, Annette M. Cowart, Christopher A. McGraw, Senior Assistant Attorneys General, for appellees.
   Ellington, Presiding Judge.

In McKinney v. Fuciarelli, 298 Ga. 873 (785 SE2d 861) (2016) the Supreme Court of Georgia reversed Division 2 of our opinion in Fuciarelli v. McKinney, 333 Ga. App. 577 (773 SE2d 852) (2015), holding that the Georgia Taxpayer Protection Against False Claims Act, OCGA § 23-3-120 et seq., requires the Attorney General to approve taxpayer retaliation claims brought under subsection (1) of the Act. Accordingly, we vacate Division 2 of our opinion and adopt the opinion of our Supreme Court as our own in place of that division.

Judgment affirmed.

Barnes, P. J., Phipps, P. J., Dillard, McFadden, Ray and McMillian, JJ., concur.