author: McFadden, Judge.

text:
    A15A0317.
    In the Interest of R. E. et al., children.
    (775 S.E.2d 542)
   McFadden, Judge.

The mother of the children whose interests are at issue appeals the termination of her parental rights. She argues that the evidence does not support the termination. We agree and reverse.

1. Facts.

On appeal from a juvenile court’s order terminating parental rights, we view the evidence

in the light most favorable to the juvenile court’s ruling, and our review is limited to addressing the question of whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In this review, we must necessarily defer to the juvenile court’s fact finding, weighing of the evidence, and credibility determinations.

In the Interest of C. M., 325 Ga. App. 869, 869-870 (1) (756 SE2d 5) (2014) (citation and punctuation omitted).

So viewed, the evidence shows that the four children involved in this case have the same mother and two different fathers. The two older children are R. E. and M. C.; their father is R. E., Sr. The two younger children are L. P. and J. P.; their father is R. S.; the mother lives with R. S. Not involved in this case are two more children of the mother with a third man, to whom the mother was married at the time of the termination hearing; those children live with their father.

In April 2010, the mother, who apparently had ongoing interactions with the Department of Family and Children Services (DFCS), began taking M. C. to weekly counseling appointments. An entity called Gateway — the nature of which is not explained in the record — had referred M. C. to a therapist for counseling because she was wetting and soiling herself. R. E. began seeing the same therapist in June for help with his attention deficit hyperactivity disorder. The mother continued to bring her children to the counseling appointments until funding for the program ended. The therapist worked with the mother on her parenting skills, and the mother complied with the therapist’s recommendations.

In July 2010, a DFCS employee accompanied the mother and these two children to a counseling appointment; the DFCS employee reported to the therapist that five-year-old M. C. and her six-year-old brother R. E. had been found naked together in a bedroom. With the therapist present, the DFCS employee questioned M. C. about sexual activity. The child denied any such activity with her brother. But she said that R. E., Sr., and “someone named James” — who remains unidentified — had touched her brother R. E.’s private parts. R. E. likewise denied engaging in sexual behavior with his sister, but said that his father, R. E., Sr., and “James” had touched him and that “James” had “put his mouth on his private parts.” That was the only disclosure R. E. made. The record says nothing about the forensic interview techniques used or about efforts to avoid leading questions.

The police were called, and a detective interviewed the children. This time, R. E. said that no one had touched him inappropriately. M. C. said that no one had touched her, but she again reported that her father, R. E., Sr., had touched R. E. inappropriately once. Her descriptions of that event varied however: at one point she said that she had seen the incident, at another that she had only “heard” it. The detective tested her capacity to distinguish between telling the truth and telling a lie and concluded that five-year-old M. C. did not yet have that capacity. So she concluded that there was not enough evidence to bring charges.

A week later, on July 20, 2010, M. C. told the therapist that someone had “put his finger in her bottom.” Again her descriptions of the event varied: “she went back and forth” about who had done it. In some of the child’s accounts it was her brother R. E., in others it was R. S., the father of the younger children. The mother had noticed a possible physical sign of abuse, but again M. C. went “back and forth” with the mother about whether it was R. E. or R. S. who had touched her.

On December 2, 2011, in response to an outcry from M. C. at school, the detective interviewed the children again. M. C. told the detective that her brother R. E. had touched her private parts one time through her clothing. The detective did not testify about R. E.’s response to M. C.’s claim.

R. E. did tell the detective that he had seen R. S. and his mother having sex “a few times.” The detective was unable to get the seven-year-old to elaborate.

The detective interviewed R. S., who lived with the mother and all of the children. But there is nothing in the record to indicate whether R. S. was ever confronted with the charge that he had improperly touched M. C. He did acknowledge to the detective that he and the mother engaged in “poly-sex, meaning they had sex with other people.” He described a single instance, two weeks before, when he and the mother had a friend over and while the children were asleep, the friend and R. S. engaged in a sexual act in the dining room/kitchen area of their trailer. The children never mentioned any exposure to this activity, and the mother explained that the children could not have seen it because she had locked them into a back bedroom.

R. S. was interviewed at the residence. The detective found it “disgusting” with “dirty clothes all over the place,” “dirty dishes piled up everywhere,” “food on the couch,” and “holes in the trailer itself that you could fall through.”

DFCS took the three oldest children into custody that day. Five months later, when J. P. was born, he too was taken into custody. The juvenile court approved a case plan that required the mother to attend parenting classes, to maintain a source of income, to maintain stable, clean, and safe housing, to complete counseling, and to complete a psychological evaluation.

In February 2012, the juvenile court found the three older children to be deprived. The court based its order on factual findings that the children

reported to school officials, police authorities, and representatives of the Department of Family and Children Services that they have been sexually molested by adults in their home and each other. The children also reported] witnessing intercourse and other sexual acts between and among adults in the home including their parents and other third parties.

The court further found that “[a]fter receiving the reports [,] when the police responded to the parents’ home, they found the home to be in a deplorable condition.” The court determined that “[t]he causes of deprivation are emotional abuse, sexual abuse of some or all of the children by others or by and among the children as well as neglect/lack of supervision by the parents and inadequate housing of the parents.” Finally, the court concluded that the children “cannot adequately and safely be protected at home because of the acts of sexual depravity which they report in the home, its effects on them physically and emotionally, and the deplorable condition of the home.” Once the youngest child was born, the juvenile court found him to be deprived as well, largely for the same reasons it had found his older siblings to be deprived.

In December 2013, DFCS filed a petition to terminate the rights of the mother and the two fathers, R. E., Sr., and R. S. DFCS alleged that the parents “perpetrated egregious past conduct towards these children of a physically, emotionally and sexually cruel and abusive nature.” It alleged that the mother, for more than a year, had failed to provide care and support to the children; had failed to maintain safe and stable housing; had failed to maintain stable income; had failed to maintain a bond with the children; and had failed “to complete counseling to address her poly-amorous lifestyle which has negatively impacted her children.”

Following the termination hearing, the juvenile court terminated the parental rights of all parents. We granted the mother’s application to appeal the termination order.

2. Parental misconduct or inability.

This case is controlled by the former Juvenile Code, which was effective through 2013. The new Juvenile Code adopted that year became effective on January 1, 2014; it applies to juvenile proceedings commenced on and after January 1, 2014. Ga. L. 2013, p. 294, §§ 1-1, 5-1.

Under the former Code, before terminating parental rights, a juvenile court first had to find clear and convincing evidence of parental misconduct or inability and then had to find that termination of parental rights was in the best interest of the children. Former OCGA § 15-11-94 (a). To determine parental misconduct or inability, the court had to find that:

(i) The child is a deprived child, as such term is defined in [former] Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

Former OCGA § 15-11-94 (b) (4) (A). The mother argues that there was insufficient evidence of present parental misconduct or inability. We agree because clear and convincing evidence does not support a finding that the children were deprived at the time of the termination hearing or that any deprivation was likely to continue.

Former OCGA § 15-11-2 (8) (A) defined “deprived child” as a child “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” In order to terminate the mother’s parental rights, DFCS had to prove by clear and convincing evidence that the children were deprived at the time of the termination hearing,

which in the case of noncustodial parents involves a showing that, if the child[ren were] returned to [their] parents at the time of the hearing, [they] would be deprived. This may be established by showing that the conditions upon which an earlier finding of deprivation was based still exist at the time of the termination hearing.

In the Interest of B. W., 325 Ga. App. 899, 902-903 (2) (a) (756 SE2d 25) (2014) (citation and punctuation omitted). DFCS also had to prove that the cause of any deprivation was likely to continue or was not likely to be remedied.

The juvenile court did not expressly find current deprivation. But in the “deprivation” section of her findings of fact, she found that the mother had insufficient and unstable housing and unstable employment and that “[t]he children [had] been harmed by the parents’ lifestyle and the parents [had] not addressed, or attempted to remediate that lifestyle, nor [had] they changed that lifestyle, or learned how to protect these damaged children.” The court found that deprivation was likely to continue because the home remained unstable; the mother had not addressed her “psychological and lifestyle issues”; she continued “to stand by [R. S.] at the expense of her children”; and she had “fallen woefully short of completion of [her] reunification plan.”

“In our view, even construing the evidence in the light most favorable to the termination order, as we must on appeal, several pertinent findings in the juvenile court’s order were either contrary to or not clearly and convincingly shown by the evidence.” In the Interest of C. J. V., 323 Ga. App. 283, 286 (746 SE2d 783) (2013). Most importantly, the juvenile court’s finding that “[t]he children [had] been harmed by the parents’ lifestyle” is completely unsupported by the evidence. Although the order is not clear, we assume that the juvenile court was referring to what her order describes as the parents’ “polyamorous lifestyle.” As for the parents’ sexual practices, however, the evidence showed only one unusual incident, and there was no testimony that the children were exposed to it. This is not the clear and convincing proof required to sever the parent-child relationship. See In the Interest of G. R. B., 330 Ga. App. 693, 701 (769 SE2d 119) (2015) (because there was no evidence child was harmed by parents’ physical altercations and domestic violence, evidence did not support finding of deprivation). Further, although the older children R. E. and M. C. may have been sexually abused, there was no testimony at the termination hearing that the mother was either responsible for or complicit in the abuse. Nor was there clear and convincing evidence that R. S. (the father of the younger children) was the abuser. We observe that even before the case plan was ordered, the mother had begun taking the children to therapy and had cooperated with the therapist’s recommendations. And the mother’s relationship with R. S. is an insufficient basis for terminating her parental rights because there was no showing, by clear and convincing evidence, that R. S.’s presence would negatively affect the children. In the Interest of J. V. J., 329 Ga. App. 421, 427-428 (765 SE2d 389) (2014) (mother’s cohabitation with boyfriend was insufficient to •terminate parental rights, given that there was no evidence that boyfriend’s drug use or cohabitation would negatively affect child).

Nor does clear and convincing evidence support the juvenile court’s findings that the mother had unstable housing and unstable employment. She testified that she had purchased a mobile home and simply needed to register the title. She had completed all major structural repairs on the home, although her financial limitations delayed her. The mother had had a full time job, but quit and took two part-time jobs so that she would be able to fulfill her visitation and counseling obligations. Although the mother’s financial resources were seemingly limited, poverty does not justify the termination of parental rights. In the Interest of C. J. V., 323 Ga. App. at 286-287 (explaining that evidence that a mother is “unemployed, without prospects for future employment, and without any stable living arrangements” is an insufficient basis to terminate her parental rights) (punctuation omitted).

Moreover, contrary to the juvenile court’s finding, the evidence clearly showed that the mother had met or substantially had completed many of the major goals of her case plan. In addition to the housing and employment requirements, the mother had completed parenting classes and parent aid services. She had undergone a psychological evaluation. She was undergoing individual counseling, and her therapist testified that she was doing well and was compliant with his therapeutic regime. The mother visited the children regularly, and there was no testimony that her interactions with them were negative or harmful.

“ [I]t is well settled that termination of parental rights is a remedy of last resort which can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue.” In the Interest of J. V. J., 329 Ga. App. at 424 (citations and punctuation omitted; emphasis in original). Even construing the evidence in the light most favorable to the termination order, it does not clearly and convincingly show that the cause of any deprivation is likely to continue. We therefore reverse the juvenile court’s judgment. Accordingly, “we need not reach the issue of harm or the second stage of the inquiry concerning the best interests of the children.” In the Interest of C. J. V., 323 Ga. App. at 288. Nor do we reach the mother’s arguments that DFCS failed to conduct a thorough and exhaustive search for a suitable family member with whom to place the children.

Decided July 13, 2015

Melissa E. Lawrence, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Leo Beckmann, Jr., Assistant Attorney General, for appellee.

Judgment reversed.

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

       We are troubled by the mother’s undisputed testimony that she gave up a full-time job where she was under consideration for a promotion because she could not work the hours expected of a prospective manager and also satisfy the extensive time demands of her case plan. We expect DFCS to accommodate parents’ need to make a living.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A15A0363.
    GEORGIA PROFESSIONAL STANDARDS COMMISSION v. LEE.
    (775 S.E.2d 547)
   BARNES, Presiding Judge.

The Georgia Professional Standards Commission (PSC) appeals the superior court’s order reversing on due process grounds the suspension of Clarissa Lee’s teaching certificate. The PSC contends that the court erred because Lee suffered no violation of a cognizable due process right when the administrative law judge (ALJ) hearing her case exercised discretion and declined to hold the record open to obtain additional evidence after Lee’s subpoenaed witnesses failed to appear. The PSC further argues that even if the ALJ erred, the superior court should have remanded the case for further proceedings rather than simply have reversed the ALJ’s decision. Because we cannot determine from the superior court’s order whether it intended to remand the case to the Office of State Administrative Hearings (OSAH) for further proceedings or to reverse it entirely, we vacate the order and remand the case for clarification of the court’s order.

Lee was a fifth-grade teacher who proctored a Criterion-Referenced Competency Test (CRCT) science test in April 2010. After the test, another teacher told the school principal that some of her students were saying that Lee “gave some answers on the test.” The principal retrieved seven students, sat them in every other seat around a big table in the instructional coach’s room, and told them “to write down anything they had seen or heard that they thought might be inappropriate during the test.” The principal then left the students with the coach to call her executive director for further instructions.

Meanwhile, the CRCT testing coordinator, who had been present in the principal’s office when the report of irregularities was made, was obligated to report the issue to her supervisor. The coordinator submitted a “Testing Irregularities Documentation Form,” which indicates that statements from seven students were attached when submitted, although it is difficult to tell from the record or hearing transcript whether the brief written statements in the record are the ones the students wrote on test day. Four children said either Lee told them to check specific answers or they heard her tell someone else to check her answers. On the documentation form submitted by the testing coordinator is a note indicating that Lee did not sign it because the principal asked the coordinator not to show it to Lee.

In response to a request from an investigator assigned to the former Internal Affairs Department of the Professional Standards Commission, the testing coordinator reviewed the test booklets and answer sheets of four students who made statements and found no erasures. The coordinator reported that the students had identical questions and answers on the page that contained the question that Lee was accused of helping with (the children apparently are not given the exact same test in the exact same order of questions), and three of them had answered the question incorrectly. One of those was the student who said Lee gave her the correct answer to that question. The coordinator also examined the overall number of erasures on the answer sheets of the entire class, and while most students had one or two erasures, they all involved different questions. She concluded, “There was nothing consistent about the erasures from student to student.”

The Internal Affairs investigator interviewed multiple students about the allegations of impropriety during the CRCT testing, although he did not recall the substance of the interviews at the administrative hearing. He testified that the interviews would have been included in his full report, although no statements are attached to the report in the record. The investigator also interviewed Lee and described her at the administrative hearing as being “very forthright” and in his opinion was not attempting to conceal anything. In his report, the investigator noted that one student, C. R., insisted that Lee gave her the correct answer, but while the students seated around C. R. heard Lee say something to C. R. they were not sure what was said. The investigator said the students agreed that Lee was leaning over each student as she patrolled the aisles, telling him or her to check their answer sheets and occasionally pointing to a particular answer or part of the test to be checked.

A compliance investigator with the Educator Ethics Division of the PSC investigated the alleged CRCT violations and interviewed the HR director, the testing coordinator, the principal, and the system investigator. She read the students’ statements, and although Lee through her attorney asked to speak with her, the investigator never interviewed Lee, relying instead on a written statement from Lee that her attorney sent to the investigator. The PSC sent Lee a letter of suspension dated November 18, 2010, notifying her of the PSC’s recommendation that she be sanctioned by suspending her teaching certificate for a year. That letter is not in the record either. On December 3, 2010, Lee notified the PSC that she sought a hearing before an ALJ and written notice of the causes for her suspension.

About 17 months later, in May 2012, the PSC finally asked OSAH to schedule a hearing on Lee’s request. The hearing was initially scheduled for July 2012, then reset to August 2012 upon the request of the PSC because one of its witnesses had scheduled a vacation during that time. Lee’s counsel moved to reset the hearing again due to a CLE panel conflict but the ALJ denied the motion. Both parties served multiple witness subpoenas, and the hearing was held on August 13, 2012.

At the hearing, Lee testified and denied providing any assistance to students during the CRCT in April 2010, noting that one of the students who accused her of supplying the correct answer to a question became upset with Lee because Lee would not let the student leave the room during the testing. Lee testified that she merely patrolled the aisles and generally encouraged the students to check over their answers when there was enough time for them to do so. Four students who took the CRCT test in question testified. One said Lee gave her the correct answer to question number seven but she did not change it, and another said Lee told her that her answers were wrong and she should fix them but also that Lee declined to explain one of the questions when asked and did not tell her the correct answers. A third student said his prior statement that he heard Lee tell another student to check over two or three answers was true. The fourth and last student did not remember the test or her statement, in which she said Lee told her to check her work and talked to another student about her work, but testified that she would not have made those statements if they had been false. The record includes a page of pre-printed questions that each of the four students answered “yes” or “no,” which asked the students whether Lee asked any students to change their answers, whether she reviewed the answer sheets and gave any back for students to change their answers, whether she corrected any answers, and whether she gave any students answers to questions. On the back of the forms were additional statements. It is unclear from the record who gave the students these forms to complete or when they were completed, but the compliance investigator signed and dated them.

Other students were interviewed during the investigation, but their statements were not admitted into the record at the administrative hearing because they did not appear in response to Lee’s subpoenas. An administrator who was present during the testing also did not appear pursuant to subpoena, and Lee asked the ALJ to continue the matter or leave the record open until she could attempt to compel their testimony through some other means. The PSC objected, arguing first that the ALJ had enough information to decide whether Lee’s teaching certificate should be suspended. Alternatively, the PSC asked that if the ALJ were inclined to leave the record open, that it be left open for only a short time. Counsel for the PSC stated that she had released the adult witness from the PSC’s subpoena, but had not, of course, released her from Lee’s subpoena. The ALJ denied Lee’s request to continue the hearing or hold the record open, reasoning that the matter had been “pending for some time, it’s in the interest of everyone to expeditiously conclude it, and ... there appears to be sufficient evidence on this issue for me to make a determination.”

On August 20, 2012, the ALJ issued a decision finding credible evidence that Lee assisted students in taking the test and also that she was regarded as honest and trustworthy, and finding no credible evidence that she had adhered to the requirement to refrain from offering assistance to students during the CRCT test in April 2010. The ALJ concluded that a factual basis existed to support the PSC’s recommendation that Lee’s teaching certificate be suspended for one year based on conduct that violated the Code of Ethics for Educators.

On September 20, 2012, Lee petitioned the superior court for judicial review. In October 2013, the court held a hearing, the transcript ofwhichis not included in the record, and onMay 23,2014, the court issued an order reversing the ALJ, finding that Lee was not afforded due process because she was unable to attempt to enforce her administrative subpoenas through the superior court as provided in OCGA § 50-13-13 (a) (7), (9). This court granted the PSC’s application for discretionary review.

The PSC argues on appeal that the superior court erred in finding that the ALJ violated Lee’s due process rights and abused its discretion; and in reversing the case rather than remanding it so the subpoenas could be enforced and the absent witnesses’ testimony considered.

1. The superior court’s judicial review of administrative decisions under the Georgia Administrative Procedure Act (APA), OCGA § 50-13-1 et seq., is a two-step process. First, the superior court must decide whether the factual findings are supported by any evidence, without substituting its judgment regarding the weiglit of the evidence. OCGA § 50-13-19 (h); Professional Standards Comm. v. Smith, 257 Ga. App. 418 (571 SE2d 443) (2002). Second,

the court is statutorily required to examine the soundness of the conclusions of law drawn from the findings of fact supported by any evidence, and is authorized to reverse or modify the agency decision upon a determination that the agency’s application of the law to the facts is erroneous. A determination that the findings of fact are supported by evidence does not end judicial review of an administrative decision.

Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 161 (3) (664 SE2d 223) (2008). We apply the same standards of review when considering the superior court’s decision on an APA appeal. See Professional Standards Comm. v. Valentine, 269 Ga. App. 309, 312 (603 SE2d 792) (2004).

The superior court here found that the ALJ violated Lee’s right to due process by denying her request to hold the record open until she attempted to obtain the subpoenaed witnesses’ testimony. While OCGA § 50-13-13 (a) (6) authorizes the agency and hearing officer to issue subpoenas, and (a) (7) provides that “[w]hen a subpoena is disobeyed, any party may apply to the superior court of the county where the contested case is being heard for an order requiring obedience,” Lee had no opportunity to use this mechanism to compel the attendance of her witnesses, one of whom the PSC had dismissed from its subpoena without consulting Lee.

Although a reviewing court may not substitute its judgment for the agency on questions of fact, pursuant to OCGA § 50-13-19 (h) (3) it “may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . [m]ade upon unlawful procedure.” Here, the superior court found that the ALJ’s denial of Lee’s request to continue the matter or hold the record open to obtain testimony from her absent subpoenaed witnesses violated Lee’s right to due process.

[Ojnce the State issues a professional license, such as the teaching license at issue in this case, its continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important property interests of thé licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. In cases such as this, due process requires that some form of a hearing must be held before one is finally deprived of their property interest in a professional license.

(Punctuation and footnotes omitted.) Gee v. Professional Practices Comm., 268 Ga. 491, 493 (1) (491 SE2d 375) (1997). Further,

[t]he constitutionally-guaranteed right to due process of law is, at its core, the right of notice and the opportunity to be heard. Neither the federal nor the state constitution’s due process right guarantees a particular form or method of procedure, but is satisfied if a party has reasonable notice and opportunity to be heard, and to present [her] claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.

(Citation and punctuation omitted.) Cobb County School Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126) (1999) (workers’ compensation statute defining as “catastrophic” an injury for which a claimant was awarded Social Security disability benefits conferred a rebuttable, not mandatory, presumption, and thus did not violate due process principles).

Under the APA, the ALJ can consider a broad range of factors, including the need for an expeditious resolution of the matter at issue, when deciding whether or not to grant a continuance. Ga. Comp. R. &'Regs. r. 616-1-2-.41. But under the facts of this case, the superior court did not err in concluding that the ALJ abused its discretion in denying Lee’s request for an opportunity to produce evidence on her behalf based on the need for an expeditious decision.

Although Lee requested a review of the PSC’s November 2010 suspension decision in December 2010, the PSC did not even ask for a hearing to be scheduled until May 2012, almost a year and a half later. After the hearing was scheduled for July 2012, theALJ granted the PSC’s request to reset it because one of the PSC’s witnesses was going on vacation. The administrative hearing was not held until August 2012, about 20 months after Lee requested a hearing and 27 months after the CRCT was administered. While the PSC frames the argument as whether the ALJ was absolutely required to continue the hearing to enforce Lee’s subpoenas, the question is whether the ALJ abused its discretion in denying the request and thus violated Lee’s due process rights.

Decided July 13, 2015.

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, Allen I. Lightcap, Assistant Attorney General, for appellant.

John R. B. Long, for appellee.

Considering the length of time between Lee’s request for a hearing and the hearing itself, the superior court did not err in concluding that the ALJ’s ruling denying Lee the right to present evidence from her witnesses was an abuse of discretion and a violation of Lee’s rights to due process.

2. The PSC further argues that the superior court should have remanded the case to the OSAH instead of reversing it outright. While the superior court determined that the ALJ violated Lee’s due process rights, it did not determine whether Lee’s “substantial rights” were prejudiced due to this due process violation, and its order is ambiguous as to whether it intended to remand the case to OSAH for further proceedings or reverse the ALJ outright. Under OCGA § 50-13-19 (h) (3), the reviewing court “may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... [mjade upon unlawful procedure.” (Emphasis supplied.) Absent a finding that Lee’s substantial rights were prejudiced by this constitutional violation, we cannot presume that the superior court intended to reverse the ALJ outright and thus terminate the disciplinary proceedings against her, rather than remand the case to the ALJ for further proceedings. Accordingly, we vacate the decision of the superior court and remand this case to the superior court for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Ray, J., concurs in Division 2 and in the judgment. McMillian, J., concurs in the judgment only.


author: Ray, Judge. McMlLLIAN, Judge, dissenting.

text:
    A15A0369.
    AVILA v. THE STATE.
    (775 S.E.2d 552)
   Ray, Judge.

On November 6, 2013, Kark Avila was indicted in Harris County Superior Court on one count of statutory rape and one count of aggravated child molestation. On June 18, 2014, Avila pled guilty to one count of the lesser included offense of child molestation. The trial court, after finding that it was not permitted to deviate from the mandatory minimum sentencing provisions pursuant to OCGA § 17-10-6.2 (c), sentenced Avila to ten years, to serve five in prison and the balance on probation. In his sole enumeration of error, Avila argues that the trial court erred in finding that it was not authorized to deviate from the mandatory minimum sentence because the offense “involve[d] the transportation of the victim.” See OCGA § 17-10-6.2 (c) (1) (E). For the reasons explained below, we believe the trial court correctly determined that it did not have discretion under OCGA § 17-10-6.2 (c) to deviate from the mandatory minimum sentence; thus, the sentence that the trial court imposed is affirmed.

As this issue turns on the proper interpretation of OCGA § 17-10-6.2, it “is a question of law, which is reviewed de novo on appeal.” (Citation and punctuation omitted.) Jenkins v. State, 284 Ga. 642, 645 (2) (670 SE2d 425) (2008). The sentencing in this case is controlled by several statutory provisions. Pursuant to OCGA § 16-6-4 (b) (1), “a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of [OCGA §§] 17-10-6.2 and 17-10-7.” And OCGA § 17-10-6.2 (b) provides:

Except as provided in subsection (c) . . . any person convicted of a sexual offense [] shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. . . .

Subsection (c) of that statute grants the trial court discretion to deviate from the mandatory minimum sentence, provided that six conditions are met, including that “[t]he offense did not involve the transportation of the victim.” OCGA § 17-10-6.2 (c) (1) (E). For purposes of the statute, the term “offense” refers to ten sexual offenses, including “[cjhild molestation, as defined in subsection (a) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4.” OCGA § 17-10-6.2 (a) (5).

At the guilty plea hearing in this case, the State proffered evidence that Avila met the victim, E. S., through a dating website. After chatting online for a period of time, they agreed to meet in person on April 17, 2012. At that time, Avila was 22 years old, and E. S. was either 14 or 15 years old. Per their agreement, Avila waited until her parents were asleep and then picked E. S. up at 2:00 a.m. at the front of her neighborhood. He drove her to a church parking lot down the road where E. S. performed oral sex on him. He then performed oral sex on her before engaging in sexual intercourse. Afterward, Avila returned E. S. to the entrance of her neighborhood. At the time of his arrest, Avila admitted to engaging in the sexual acts with E. S.

Pertinent to this case, the trial court must find that “[t]he offense did not involve the transportation of the victim[.j” OCGA § 17-10-6.2 (c) (1) (E). Here, it is undisputed that the appellant picked up the victim in his automobile from the front of her subdivision, transported her to a church parking lot, engaged in sex acts with the victim, and then transported her back to the subdivision. Thus, that the appellant transported the victim to a location for purposes of committing the crime for which he stands convicted is clear.

At the hearing and on appeal, the State argued that the trial court is not allowed to deviate from the mandatory minimum sentencing because Avila transported E. S. from her neighborhood to the parking lot where he committed the offense of child molestation, and thus, does not satisfy the requirement of OCGA § 17-10-6.2 (c) (1) (E). The trial court agreed, finding that “involve” is a broad word and that the offense involved the transportation of the victim. In reaching its decision, the trial court made the following statement:

I believe that the statutory language is clear. I believe that on its face it bars me from reaching the deviation that you have urged from the Court. I’m not saying I’m not sympathetic to your argument, but I do believe that the language is clear and that I must give way to what the legislature has said in this case. So I’m going to let the sentence of the Court be the mandatory minimum. It is going to be 10 years with 5 to be served. And I believe that is what the law directs that I do.

Avila’s interpretation of this statute is that the trial court can deviate from the mandatory minimum sentence so long as the child molestation offense did not occur during the transportation of the victim, i.e., that the crime was committed while the defendant was transporting the victim, or so long as the offense itself did not include transportation as an element of the offense. Since neither was the case here, Avila argues, then the trial court was entitled to deviate from the mandatory minimum set by the legislature. We disagree. Such an interpretation would render the transportation provision essentially meaningless. Of the offenses involved in this statute, only the offense of enticing a child for indecent purposes would ever have transportation as an element of the offense and then only in some cases. Had the General Assembly intended to limit the transportation factor merely to that offense, it could have easily done so.

Also, it seems silly to argue, as Avila has essentially posited, that the General Assembly intended to punish more severely any of the ten offenses included herein only if it was committed while a victim was in transit. We find that the aggravating factor which limits the trial court’s discretion to deviate from the mandatory minimum sentence is the transportation itself, as it removes the victim from an area wherein the crime may have more easily been detected or where the victim could have more easily escaped.

In addition, the wording used by the General Assembly in this subsection of the statute is instructive. For example, also disqualifying a defendant from the possibility of a lesser sentence is if the victim suffered intentional physical harm or was physically restrained, either of which occurred “during the commission of the offense.” OCGA § 17-10-6.2 (c) (1) (D) and (F). Thus, it is clear that the legislature knew how to specify that the disqualifying event must occur while the crime was in process, rather than before the crime was attempted or after the crime was complete. Yet, the statute does not similarly require that the transportation of the victim occur “during the commission of the offense” so as to limit the trial court’s sentencing discretion, only that the offense “involve” transportation of the victim. Certainly, the offense here did “involve” transportation.

In support of his argument, Avila relies on the case of Clark v. State, 328 Ga. App. 268 (761 SE2d 826) (2014), to buttress his position that transportation which is incidental to the offense would not disqualify a trial court from exercising discretion to deviate from the mandatory minimum sentence. In Clark, a separate panel of this Court reversed and remanded for reconsideration the sentence of a defendant who was convicted of child molestation when he committed the offense after he drove the victim earlier in the evening from one town to another to visit a “drug house.” As Avila has acknowledged, however, Clark is physical precedent only. Moreover, it is distinguishable in that there did not appear to be evidence in Clark, as there is here, that the defendant drove the victim to the location for the express purpose of committing the act of child molestation. In the current case we entertain in this appeal, it is undisputed that the illegal sexual acts were the purpose of Avila’s transportation of the victim.

In sum, we believe that the trial court’s decision as to its sentencing requirements was correct.

Judgment affirmed.

Doyle, C. J., Andrews P. J., and Boggs, J., concur. Barnes P. J., Phipps, P. J., and McMillian, J., dissent.

McMlLLIAN, Judge, dissenting.

Because I believe that the trial court erred in determining that it did not have discretion to deviate from the minimum sentencing requirements of OCGA § 17-10-6.2 (b), I must respectfully dissent.

In construing a set of statutory provisions, “we look at its terms, giving words their plain and ordinary meaning, and where the plain language of a statute is clear and susceptible of only one reasonable construction, we must construe the statute according to its terms.” (Citation and punctuation omitted.) Mahalo Investments III, LLC v. First Citizens Bank & Trust Co., 330 Ga. App. 737, 738 (769 SE2d 154) (2015). Moreover, “in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” (Citation omitted.) Tew v. State, 320 Ga. App. 127, 129 (739 SE2d 423) (2013).

In construing the language of OCGA § 17-10-6.2 (c) (1) (E), Avila maintains that the question is not whether transportation of E. S. occurred “incidentally to the offense” or at some point prior to the commission of the offense, but rather whether in proving the elements of the offense, the transportation of E. S. was involved. After applying the ordinary rules of statutory construction, I cannot say that Avila’s interpretation of OCGA § 17-10-6.2 (c) (1) (E) is unreasonable. The statute defines the term “offense” to include child molestation as set out in OCGA § 16-6-4, suggesting that the elements of the crime of child molestation should be the focus of whether the offense involved transportation. And a definition of “involve” is “[t]o have as a necessary feature or consequence; entail.” The American Heritage Dictionary, New College Edition (1991). Here, it is undisputed that the act of child molestation took place after the victim was transported to the location and the transportation was not necessary to complete the crime.

On the other hand, as asserted by the State, the statute does not specifically limit the inquiry to whether the elements of the crime involved transportation. Moreover, I note that a broader definition of the term “involve” is “[t]o contain or include as a part,” The American Heritage Dictionary, New College Edition (1991), and, certainly, part of the factual basis underlying the offense was meeting up with and transporting the victim to the location where the crime was more readily committed. Thus, I also find that after applying the ordinary rules of statutory construction, the State’s interpretation of OCGA § 17-10-6.2 (c) (1) (E) is likewise reasonable.*

It is a long-standing principle under Georgia law that

criminal statutes must be strictly construed against the [S]tate and liberally in favor of human liberty. Matthews v. Everett, 201 Ga. 730 (41 SE2d 148) (1947). [And if] a statute increasing a penalty is capable of two constructions, it should be construed so as to operate in favor of life and liberty.

Decided July 13, 2015

Brody Law Firm, Bernard S. Brody, for appellant.

Knight v. State, 243 Ga. 770, 775 (2) (257 SE2d 182) (1979). See also Hedden v. State, 288 Ga. 871, 875-876 (708 SE2d 287) (2011) (strictly construing the language of OCGA § 17-10-6.2 (c) (1) (F) against the State).

Although the majority finds Avila’s interpretation to be “silly,” I believe that OCGA § 17-10-6.2 (c) (1) (E) may also reasonably be interpreted to preclude a deviation from the mandatory minimum only when proving the elements of the offense involve the transportation of the victim. Therefore, this Court is bound to liberally interpret this statute in favor of human liberty. See Jenkins v. State, 284 Ga. 642, 645 (2) (670 SE2d 425) (2008) (“A criminal statute must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.”) (citation and punctuation omitted).

And while I am wholly unpersuaded by Avila’s argument that his transportation of E. S. from the relative safety of her neighborhood to an empty parking lot did not “do anything to make the offense more egregious,” I would leave it to the General Assembly to clarify its intention if indeed OCGA § 17-10-6.2 (c) (1) (E) was meant to encompass an offense such as the one committed here, in which the victim was transported to a more remote location in order for the offense of child molestation to be more easily committed without detection.

Accordingly, I believe that this matter should be remanded to the trial court so that it may exercise its discretion to deviate from the minimum sentencing requirements of OCGA § 17-10-6.2 (b).

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

Julia F. Slater, District Attorney, Ray W. Daniel, Assistant District Attorney, for appellee.

       The State agreed to nolle prosse the statutory rape charge.

       In taking the position that the trial court was required to sentence the appellant to no less than the mandatory minimum prescribed by the statute, we do not intend to imply that trial judges should not have maximum discretion in fashioning sentencing to respond appropriately to the facts of the case. Indeed, we recognize that trial judges welcome such discretion and feel that it serves to promote justice.

       OCGA § 17-10-7 governs the punishment of repeat offenders and is not applicable here.

       The term “sexual offense” is defined in OCGA § 17-10-6.2 (a).

       Defense counsel stated at the hearing that E. S. was 15 years old, but during a voluntary psychosexual evaluation, Avila admitted that E. S. told him she was 14 years old. Either way, it is undisputed that E. S. was under the age of consent. See OCGA § 16-6-3. Therefore, any attempt by Avila to portray E. S. as a “consensual” participant who “orchestrated the entire sequence of events leading to [their] meeting” is entirely misplaced. And certainly the repeated interjection of the victim’s prior sexual experiences is inappropriate and irrelevant as a matter of law. See OCGA § 24-4-412.

       None of the other factors set forth in OCGA § 17-10-6.2 (c) (1) are at issue in this case.

       OCGA § 16-6-5(a):“Apersoncommitstheoffenseofenticingachildforindecentpurposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.”

       OCGA § 17-10-6.2 (a) defines a sexual offense which is subject to mandatory minimums to include aggravated assault with intent to rape, false imprisonment, sodomy, statutory rape, child molestation, enticing a child for indecent purposes, sexual assault against persons in custody, incest, a second or subsequent conviction for sexual battery, and sexual exploitation of children.

       In Clark, one judge joined in judgment only to the division of the opinion regarding the type of the transportation which would limit a trial court’s discretion to deviate from the mandatory minimum sentence. Thus, the holding therein is persuasive authority only.

       And here, he argues, the child molestation offense itself did not involve the transportation of the victim, positing that such transportation may be more frequently involved in the offenses of enticing a child for indecent purposes (OCGA § 16-6-5) or false imprisonment (OCGA § 16-5-41), both of which are defined as sexual offenses under particular circumstances. See OCGA § 17-10-6.2 (a) (2) and (6).

       I, however, find no basis in the text to support the State’s argument that we should adopt a Garza-like asportation test to determine whether the offense involved transportation. See Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008).

       The trial court certainly may have, upon remand, ultimately decided not to sentence Avila to less than the mandatory minimum sentence, given the facts of this case. However, this Court ought to “let the exercise of the trial court’s discretion in the imposition of [its] sentence be cast upon the record.” Bradshaw v. State, 237 Ga. App. 627, 630 (2) (516 SE2d 333) (1999).


author: MCMILLIAN, Judge. RAY, Judge,

text:
    A15A0486.
    CLARK v. AGGEORGIA FARM CREDIT ACA.
    (775 S.E.2d 557)
   MCMILLIAN, Judge.

Appellant Donald Clark (“Donald”) filed a complaint, as amended and recast several times, against appellee AgGeorgia Farm Credit ACA (“AgGeorgia”) seeking damages arising from the alleged breach of certain deeds to secure debt and the wrongful foreclosure of a 278-acre farm in Wilcox County, Georgia (the “Farm”) that Donald jointly owned with his brother Harris Edwin Clark (“Edwin”; collectively referred to as “the Brothers”). The trial court granted partial summary judgment to AgGeorgia, and Donald timely filed an appeal to this Court. Having carefully considered the issues raised in this appeal, we now reverse.

The underlying facts are essentially undisputed. The Brothers jointly purchased the Farm sometime during the 1980s and operated the Farm together for many years. In 1997, the Brothers obtained individual loans from AgGeorgia’s predecessor, at which time they jointly executed two deeds to secure debt pledging the Farm as security for the loans (collectively referred to as the “1997 Deeds”).

According to AgGeorgia, the 1997 Deeds were set to expire on December 1,2004, and in October 2004, the Brothers jointly executed two new security deeds (DSD No. 1 and DSD No. 2; collectively referred to as the “2004 Deeds”) pledging the Farm to secure certain identified existing loans, which AgGeorgia had individually extended to the Brothers. More specifically, DSD No. 1 identified an existing loan to Donald, who was named as the sole “Borrower” under that deed, and DSD No. 2 identified an existing loan to Edwin, who was listed as the sole “Borrower” in DSD No. 2. Donald and Edwin, who were defined as the “Undersigned, whether one or more,” jointly executed the 2004 Deeds. The 2004 Deeds were in many respects identical to the 1997 Deeds and contained many of the same terms and conditions, including “open end” and “dragnet” clauses, which made additional loans, advances, and other indebtedness subject to the 2004 Deeds under certain conditions.

Edwin paid off the debt identified in DSD No. 2 in January 2005, and Donald paid off the debt identified in DSD No. 1 in February 2005. In the summer of 2004, the Brothers had a disagreement over a matter unrelated to their farming operations, and in the ensuing months their relationship deteriorated to the point that they ceased farming together shortly after the notes were paid off. However, the Brothers continued to farm separately, and in April 2005 Donald obtained another loan from AgGeorgia, which was evidenced by a promissory note in favor of AgGeorgia for $80,000. In 2007, Donald obtained two additional loans and executed two additional promissory notes in favor of AgGeorgia.

In 2008, AgGeorgia notified Donald that he was in default on his Subsequent Loans and warned him that it intended to initiate a foreclosure action if he did not satisfactorily restructure the loans. Donald failed to cure the default or otherwise restructure the loans, and in April 2009, AgGeorgia notified Edwin and Donald that Donald was in default on his Subsequent Loans as well as an additional note he executed on March 5,2004, and that it intended to initiate judicial foreclosure proceedings under the terms of DSD No. 1 if Donald did not satisfy the outstanding debt, which at that time was slightly over $193,000 including interest and fees, within ten days. Although Edwin apparently did not have any outstanding loans to AgGeorgia at that time, after he was notified of the pending foreclosure he requested and received a $190,000 loan from AgGeorgia, which was evidenced by a promissory note he signed on April 9, 2009 (hereinafter referred to as “Edwin’s Subsequent Loan”). AgGeorgia did not provide notice to Donald of Edwin’s Subsequent Loan, nor did it attempt to obtain Donald’s written consent prior to extending the loan.

After providing additional notice of default and advertising the sale, AgGeorgia foreclosed on the 2004 Deeds in August 2009, at which time Donald’s outstanding debt amounted to approximately $198,748.70 and Edwin’s outstanding debt amounted to $191,838.21. Edwin entered the highest bid at the foreclosure sale, purchasing the Farm for $392,480. Donald was present at the foreclosure sale but did not object to or challenge the sale at that time.

Over three years after the foreclosure sale, Donald instituted the present proceedings, contending, among other things, that AgGeorgia improperly exercised the power of sale in the 2004 Deeds because DSD No. 1 did not secure his previous indebtedness other than indebtedness specifically identified in the deed, and neither his nor Edwin’s subsequent indebtedness was secured by the 2004 Deeds because AgGeorgia did not obtain the consent of the “non-borrowing” brother to the other brother’s loans. Further, Donald also challenged the foreclosure on the basis that AgGeorgia was not the holder of either the notes or the 2004 Deeds at the time it instituted the foreclosure proceedings. Both parties filed motions for partial summary judgment, and following a hearing, the trial court entered a written order denying Donald’s motion for partial summary judgment and granting partial summary judgment to AgGeorgia on Donald’s claims for breach of contract and wrongful foreclosure. We agree with Donald that the trial court erred by granting summary judgment to AgGeorgia and denying Donald’s motion on these claims and accordingly reverse.

1. The 2004 Deeds contain three sections that set out the indebtedness secured by the deeds. Section One of each deed identifies a specific pre-existing individual note for a specific loan made to each brother for which the Farm was pledged as security; Section Two addresses only subsequent “additional” loans made to the “Borrower” that are evidenced by a note or notes; and Section Three applies to both pre-existing indebtedness as well as indebtedness that may be “contracted” after the execution of the Deeds. As stated above, the specifically identified indebtedness of each brother specified in Section One has been satisfied, and thus is not at issue here. However, we must determine whether the Brothers’ Subsequent Loans were secured under Section Two, and whether Donald’s March 2004 loan was secured under Section Three.

“Under Georgia law, a security deed which includes a power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies.” Stewart v. SunTrust Mtg., Inc., 331 Ga. App. 635, 638 (3) (770 SE2d 892) (2015). And “[t]he construction of an unambiguous deed, like the construction of any other contract, is a question for determination by the court.” Turk v. Jeffreys-McElrath Mfg. Co., 207 Ga. 73, 76 (2) (60 SE2d 166) (1950). Under Georgia law, the cardinal rule of contract construction is to ascertain the intention of the parties, as set out in the language of the contract. Shepherd v. Greer, Klosic & Daugherty, 325 Ga. App. 188, 189-190 (750 SE2d 463) (2013) (the overarching consideration “is to effectuate the intent of the parties as set out in the language of the agreement”).

f that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction. Further, the construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part. Moreover, no construction is required or even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.

(Citations and punctuation omitted.) Id. at 190.

(a) Section Two and Subsequent Loans. Under Section Two (“open end clause”) of the Deeds, the Farm was pledged to secure not only the loans specifically identified in the Deeds, but also

(2) all additional loans and advances that may subsequently be made to Borrower (or to any one or more of the parties designated as Undersigned or Borrower, with the written consent of the remainder of said Undersigned or Borrower), by Lender, which will be evidenced by a note or notes ....

As set out above, Section Two consists of two parts — a parenthetical and language outside the parenthetical. According to the language outside the parenthetical, the property pledged in the deeds acts as security under the following circumstances: (1) all subsequent loans, (2) evidenced by a note or notes, and (3) made to the “Borrower.” However, in situations where the language inside the parenthetical applies, an additional requirement — written consent by the “remainder” of the Undersigned or Borrower — is clearly imposed as a condition for the deed to secure a subsequent debt. Thus, we cannot simply ignore the language inside the parenthetical because clearly that language applies in some circumstances. The key question then is under what circumstances does the consent requirement apply.

We first examine whether this question can be answered solely by reference to the language of the 2004 Deeds. AgGeorgia seizes on the fact that the parenthetical refers to “parties,” in the plural rather than “party” in the singular, and urges that consent is only required (1) when there are multiple “parties” who have been identified as Borrower, or (2) when there are multiple parties identified as Undersigned and none of them is also the sole identified Borrower. Thus, AgGeorgia argues that Section Two comes into play in only two circumstances — where an additional loan is made to a Borrower, and there are multiple persons designated as Borrower, or when an additional loan is made to an Undersigned, and there are multiple persons designated as Undersigned and the Undersigned who receives the additional loan is not also the sole borrower. But AgGeorgia’s reading of Section Two on the one hand appears to ignore that the phrase “or to any one or more” immediately precedes the word “parties,” and on the other hand appears to read into the clause conditions that do not appear in the parenthetical.

Donald argues that the proper meaning of Section Two is best understood by inserting the proper names of the parties into the deeds. For example, according to Donald, DSD No. 1 secured all subsequent loans “made to [Donald] (or to any one or more of the parties designated as [Edwin and Donald] or [Donald] with the written consent of the remainder of said [Edwin and Donald] or [Donald]).” Thus, Donald argues, under this interpretation, the consent of the nonborrowing brother was required.

Although both of these interpretations are strained and appear to read language into or out of the parenthetical in order to reach their interpretation, we cannot say that either interpretation is unreasonable. Further, any interpretation we place on the section would suffer from the same defects. “[W]e have defined ambiguity to mean ‘duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and it also signifies being open to various interpretations.’ ” (Citation and punctuation omitted.) Shepherd, 325 Ga. App. at 190. Horwitz v. Weil, 275 Ga. 467, 468 (569 SE2d 515) (2002) (“Ambiguity in a contract is defined as duplicity, indistinctness or an uncertainty of meaning or expression.”). In other words, “[a] word or phrase is ambiguous when its meaning is uncertain and it may be fairly understood in more ways than one.” Freund v. Warren, 320 Ga. App. 765, 769, n. 4 (740 SE2d 727) (2013). Accordingly, we conclude that Section Two is ambiguous to the extent that it fails to specify when consent to subsequent loans is required as a condition precedent to a subsequent debt being secured by the deed.

Because Section Two is ambiguous, we must now attempt to resolve that ambiguity by applying the statutory rules of construction to ascertain the intent of the parties. See OCGA § 13-2-2.

If a term used in a contract is of uncertain meaning and may be fairly understood in more ways than one, it is ambiguous, and we apply the rules of contract construction in an effort to resolve the ambiguity. The proper construction of a contract is a question of law for a court to determine.

(Citations and punctuation omitted.) Garrett v. Southern Health Corp. of Ellijay, Inc., 320 Ga. App. 176, 182 (1) (739 SE2d 661) (2013). Thus, “it is only when the ambiguity remains after applying the rules of construction that a jury must resolve the issue of what the ambiguous language means.” Shepherd, 325 Ga. App. at 192.

One primary rule of statutory construction requires us to construe any ambiguity most strongly against the party who drafted the agreement. Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532 (397 SE2d 692) (1990); see also Willesen v. Ernest Communications, Inc., 323 Ga. App. 457, 460 (1) (746 SE2d 755) (2013). It is undisputed in this case that AgGeorgia drafted the 2004 Deeds, and thus as an initial matter the Deeds must be construed against AgGeorgia.

Further, if a party intends to contract away a substantial right, such as having future encumbrances placed on their property interests without their knowledge or consent, such must plainly appear from the contract. Covington v. Brewer, 101 Ga. App. 724, 729 (3) (115 SE2d 368) (1960) (“since contracts must be construed according to the intention of the parties at the time of their execution it will not be presumed that parties intend to contract away their legal rights in regard to a subject matter not clearly appearing therein”). Additionally, “[t]he laws which exist at the time and place of the making of a contract, enter into and form a part of it; and the parties must be presumed to have contracted with reference to such laws and their effect on the subject matter.” (Citations and punctuation omitted.) Magnetic Resonance Plus, Inc. v. Imaging Systems Intl., 273 Ga. 525, 527 (2) (543 SE2d 32) (2001).

Pursuant to OCGA § 44-14-1 (b), “open-end” or “dragnet” clauses contained in mortgages or deeds conveying realty to secure a debt have been limited to “debts or obligations arising ex contractu, . . . between the original parties to the security instrument.” (Emphasis supplied.) Thus,

[u]nless the security instrument clearly contemplates joint and several liability, all of the grantors to the security instrument containing the open-ended clause must be parties to the separate indebtedness, though not all of the parties to the separate indebtedness must be parties to the security instrument.

(Footnotes omitted.) Frank S. Alexander, Georgia Real Estate Finance and Foreclosure Law, p. 37, § 2:3 (2014-2015 ed.). See also Hill v. Perkins, 218 Ga. 354 (127 SE2d 909) (1962); Cordele Banking Co. v. Powers, 217 Ga. 616, 619-620 (1), (2) (124 SE2d 275) (1962) (the individual indebtedness of one of the grantors is not the debt of both of the grantors and does not fall within the open-end clause of the security deed); In re Felker, 181 BR 1017 (Bankr. M.D. Ga. 1995); Americus Finance Co. v. Wilson, 189 Ga. 635, 636 (1) (7 SE2d 259) (1940); cf. Sutton v. Atlantic Bank & Trust Co., 167 Ga. App. 861, 863 (307 SE2d 746) (1983) (subsequent debts were deemed secured where it was clear that the grantors included either the singular or the plural grantors and that it was uncontradicted that all the parties to the deed intended that the debts of one borrower would be secured by deed). As our Supreme Court has explained, “it is obvious that an additional debt of one creditor cannot operate as a hook to grab a dragnet which carries with it the property interests of a party other than the creditor in the separate transaction.” Willis v. Rabun County Bank, 249 Ga. 493, 494 (291 SE2d 715) (1982).

In this case, the 2004 Security Deeds were expressly “made . . . between H. Edwin Clark and Donald L. Clark,” as “Undersigned,... and AgGeorgia.” Both Edwin and Donald are the Grantors under the 2004 Deeds and they, along with AgGeorgia, as the Grantee, are the original parties to the deeds. The consent requirement, as asserted by Donald, is thus wholly consistent with existing law in that without the express coiisent of the nonborrowing brother, the property would not be automatically pledged to secure the debt of the borrowing brother.

Additionally, “[t]he parties’ interpretation is entitled to great, if not controlling, influence, and will generally be adopted and followed by the courts, particularly when the parties’ interpretation is made before any controversy, or when the construction of one party is against his interest.” (Citations and punctuation omitted.) Anderson v. Anderson, 274 Ga. 224, 226 (2) (552 SE2d 801) (2001). Thus, “the construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” (Citations and punctuation omitted.) Cohen v. Sandy Springs Crossing Assocs., L.P., 238 Ga. App. 711, 712-713 (520 SE2d 17) (1999).

Although not expressly acknowledged by AgGeorgia, it appears undisputed that AgGeorgia had routinely obtained the nonborrowing brother’s consent to loans extended to the other brother under the virtually identical Section Two of the 1997 deeds, and the only reason that appears in the record to explain why AgGeorgia ceased obtaining the written consents was testimony by an AgGeorgia former employee that due to changes in its computer program, the consents were no longer automatically generated when the loan documents were generated. Further, Donald testified and averred that AgGeorgia had requested that he take a consent form to Edwin to sign for one of his subsequent loans. Accordingly, AgGeorgia’s own practices demonstrate that at least up until a certain point, it had adhered to the language inside the parenthetical when extending a loan to one of the Brothers.

Application of these well-established rules of statutory construction resolves the ambiguity in this case in favor of the construction placed on Section Two by Donald. Accordingly, we conclude that Section Two required written consent from the nonborrowing brother in order for the Farm to be pledged as security for future loans to the other brother. It follows that AgGeorgia wrongfully foreclosed on Donald’s Subsequent Loans and Edwin’s 2009 Loan because no consent was obtained and none of those debts were secured by the 2004 Deeds.

(b) Section Three and the March 2004 Loan. But that does not end our analysis because AgGeorgia argues that even if AgGeorgia was required to obtain consent under Section Two, its failure to do so did not render the foreclosure “wrongful” because Donald’s March 2004 loan was secured by Section Three of DSD No. 1, which did not contain any consent requirement. Once again, however, the parties place varying interpretations on this provision of the deed.

Section Three provides in relevant part that “all other indebtedness of Borrower to Lender, now due or to become due, (whether directly or indirectly) or hereafter to be contracted, . . .” is secured under the terms of the deed. Donald argues that because Section Three refers to “other” loans, both pre-existing and those that might occur later, and Section Two refers to subsequent loans that are evidenced by a note, Section Three must necessarily refer only to loans which are not evidenced by a note or notes. In contrast, AgGeorgia directs our attention to the word “other” and argues that the use of this word merely distinguishes the debts covered by Section Three from those covered by Sections One and Two.

However, we need not belabor the meaning of Section Three, because we believe the March 2004 note was unsecured for another reason. As explained in Division 1 (a), OCGA § 44-14-1 (b) specifically limits the operation of such open-end or dragnet clauses to “the original parties to the security instrument,” and thus neither the pre-existing nor the subsequent debts of the individual brothers were secured by the note without a clear and unambiguous expression of such an intent. See Sutton, 167 Ga. App. at 863. Here, the March 2004 loan was obtained for an express purpose of securing a certain piece of farm equipment, and the farm equipment purchased with the loan proceeds was pledged as security for the loan. Only one outstanding loan was specified in the deed, and Donald testified that the parties never discussed the Farm being pledged as additional security for the March 2004 equipment loan.

Because none of the notes declared in default were secured by the 2004 Deeds, AgGeorgia had no authority to foreclose under the terms of those deeds. Accordingly, the trial court erred by granting partial summary judgment to AgGeorgia; instead, partial summary judgment should have been granted to Donald.

2. Because of our holdings in Division 1 (a) and (b), we need not reach the question of whether AgGeorgia improperly exercised the power of sale contained in the deeds because it had assigned both the notes and the 2004 Deeds to AgGeorgia prior to instituting the foreclosure proceedings.

Judgment reversed.

Andrews, P. J., Dillard and Boggs, JJ., concur. Barnes, P. J., Phipps, P. J., and Ray, J., dissent.

RAY, Judge,

dissenting.

While I agree with the majority’s decision to reverse the summary judgment which was granted in favor of AgGeorgia, although I do not necessarily agree with everything that was written in support of that conclusion, I must dissent from the majority’s decision that the trial court should have instead granted summary judgment in favor of Donald. In my view, the entirety of this dispute should be resolved in a jury trial. Due to the inherent inconsistency in the applicable clauses in the loan documents, as well as the unique circumstances of this case wherein Donald’s claims have evolved during the litigation to cast himself in a position of even greater harm despite the implicit acknowledgment in his original complaint that some action by Ag-Georgia as to the subject property was proper given his indebtedness thereto, and the fact that ambiguity remains as to both the meaning of the contract provisions and the intent of the parties even after the application of the normal rules of construction, I would instead return this case to the trial court to allow the parties to present their claims to a jury to sort out the respective contract rights and equities of the situation.

Decided July 13, 2015.

Hall Booth Smith, Joel L. McKie, Andrew K. Hazen, for appellant.

Martin Snow, John T. McGoldrick, Jr., Stuart E. Walker, for appellee.

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

       As the name implies, AgGeorgia makes loans for agricultural purposes.

       The Brothers each owned a one-half undivided interest in the Farm.

       Donald also moved for partial summary judgment, and the trial court denied his motion in the same order.

       The 1997 Deeds and 2004 Deeds will be collectively referred to as “the Deeds.”

       The April 2005 and 2007 loans will he referred to as “Donald’s Subsequent Loans.”

       The purpose of the March 5,2004 loan was to finance Donald’s share of the purchase price of an irrigation pivot he had purchased with Edwin, and AgGeorgia was granted a security interest in the pivot to secure the loan.

       Pursuant to a General Financing Agreement, AgGeorgia assigned the notes and deeds to AgFirst Farm Credit Bank (“AgFirst”), which provided funding for AgGeorgia’s loans through a line of credit.

       If AgGeorgia wanted to avoid the limitation without obtaining the express consent of the other brother, it couldhave included language in the deed specifically referencing OCGA § 44-14-1 and plainly and unambiguously provided that the nonborrowing brother consented to his share of the realty acting as security for the other brother’s future loans.

       One such consent, executed by Edwin in 2002, is contained in the record. That consent provides: “[t]he undersigned (whether one or more), having an interest in the real property described in the security instrument above referenced, hereby consent to the making of an advance in the amount of $217,300.00 and acknowledge that such is secured by the security instrument.”


text:
    A15A0495.
    THE STATE v. OZMENT.
    (775 S.E.2d 564)
   McFadden, Judge.

The state appeals from the trial court’s order dismissing three counts of an accusation after the court had accepted the defendant’s guilty plea to another count of the accusation. Because the trial court erred in dismissing the counts of the accusation, we reverse the order of dismissal. However, we reject the state’s further request that we vacate the sentence imposed for the count to which the defendant pled guilty because the state has failed to carry its burden of showing that the sentence was improper.

In a four-count accusation, the state charged Gregory Ozment with driving under the influence of alcohol with a blood alcohol concentration of 0.08 grams or more (DUI per se), driving under the influence of alcohol to the extent that he was á less safe driver (DUI less safe), possessing an open container of alcohol while operating a motor vehicle, and failing to maintain a lane while operating a motor vehicle. Ozment rejected the state’s plea offer and proceeded to enter a nonnegotiated guilty plea to only the second count of the accusation charging him with DUI less safe. At the plea hearing, Ozment requested that the trial court dismiss the other counts of the accusation. The state objected, noting that the dismissal of any counts should be part of a negotiated plea agreement. The trial judge overruled the objection, accepted Ozment’s plea and dismissed the remaining counts, stating, “I’ve just negotiated it. Thank you for your objection. I will go ahead and I will accept the plea. I will go ahead and dismiss Count One, Count Three and Count Four.” The trial court sentenced Ozment to twelve months of probation and entered a final disposition dismissing the other three counts of the accusation. This appeal followed.

1. Jurisdiction.

As an initial matter, we note that OCGA § 5-7-1 (a) (1) provides that the state may take an appeal from a trial court “order, decision, or judgment setting aside or dismissing any indictment, accusation ... or any count thereof.” Accordingly, the state’s direct appeal from the trial court’s ruling dismissing counts of the accusation is properly before us. See State v. Henderson, 283 Ga. App. 111, 111-112 (1) (640 SE2d 686) (2006).

2. Dismissal of the accusation counts.

The state asserts that the trial court erred in dismissing the three counts of the accusation to which Ozment did not enter a guilty plea. We agree.

In the district attorney’s role as an administrator of justice, he or she has broad discretion in making decisions prior to trial about whom to prosecute, what charges to bring, and which sentence to seek. The state has both the duty and the right to protect the security of its citizens by prosecuting crime. Because the purpose of criminal law is to serve the public functions of deterrence, rehabilitation and retribution, it is the state, not the victim, that has an interest in criminal prosecutions.

State v. Perry, 261 Ga. App. 886, 887 (583 SE2d 909) (2003) (citations and punctuation omitted).

Atrial court’s power to control the proceedings before it includes the authority to dismiss criminal charges on its own in limited circumstances, such as when there is a defect on the face of an indictment or for want of prosecution. State v. Fiorenzo, 325 Ga. App. 666, 667 (1) (754 SE2d 634) (2014); State v. Bachan, 321 Ga. App. 712, 714 (742 SE2d 526) (2013). However, a trial judge’s “power to control the proceeding of the court is subject to the proviso that in so doing a judge does not take away or abridge any right of a party under the law. [Cit.]” Fiorenzo, supra. Atrial court abridges such a right of a party and “abuses its discretion when it interferes with the [s]tate’s right to prosecute by dismissing an accusation without a legal basis to do so. [Cit.]” State v. Brooks, 301 Ga. App. 355, 359 (687 SE2d 631) (2009). See also Bachan, supra (trial court interferes with state’s right to prosecute when it dismisses criminal charge without a legal basis).

In this case, the trial court offered no legal basis for dismissing the counts of the accusation over the state’s objection. Rather, the only reason articulated by the trial court was that it had “just negotiated it” as part of Ozment’s guilty plea. This rationále not only provided no legal basis for the dismissals, but violated the legal prohibition against judicial participation in the plea negotiation process. See McDaniel v. State, 271 Ga. 552, 553 (2) (522 SE2d 648) (1999). “By dismissing the [three counts of the accusation] over the [s]tate’s objection, the trial court deprived the [s]tate of its right to present its case against [Ozment], and thus abused its discretion. [Cit.]” Perry, supra at 888. Accordingly, “the trial court’s dismissal of the accusation [counts] was in error and [we] remand the case back to the trial court for consideration under [those still pending counts of the] accusation.” Fiorenzo, supra at 668 (2) (citation omitted).

3. Sentence.

The state claims that the trial court erred in failing to sentence Ozment to at least seventy-two hours of incarceration for his guilty plea to the DUI less safe count of the accusation because it was his second DUI offense within five years and that minimum term of incarceration is mandated by OCGA § 40-6-391 (c) (2) (B) for such a second offense. However, the state did not raise this matter in the trial court, did not request that the court impose such a sentence, and presented no evidence at sentencing that this was Ozment’s second DUI offense within five years.

On appeal, the state refers to two parts of the record to support its assertion that this was Ozment’s second DUI offense within five years. First, at the sentencing hearing, Ozment’s attorney responded to a probation officer that this was Ozment’s “second” offense. However, no further details about the first offense were offered, there was no explanation as to the type or date of the prior offense, and no documentation of the prior offense was entered into evidence. Thus, this statement by counsel, while indicating some prior offense, fails to prove that the prior offense was a DUI mandating incarceration under OCGA § 40-6-391 (c) (2) (B).

The state also cites to a page of the record that appears to be a copy of Ozment’s driver’s license history indicating a prior DUI offense. But this document was not entered into evidence at the sentencing hearing, presumably because the state made no attempt to show that Ozment had a prior DUI offense for sentencing purposes, and certainly no foundation was laid authenticating the admissibility of the document. Without more, this page of the record does not rise to the level of competent evidence that undermines the presumption that the sentence imposed by the trial court was correct. See generally State v. Crossen, 328 Ga. App. 198, 202 (761 SE2d 596) (2014) (state presented absolutely no evidence about existence of certain statutory factors affecting sentence imposed).

Decided July 13, 2015.

B. Alison Sosebee, District Attorney, Michael A. Ray, Assistant District Attorney, for appellant.

Floyd H. Farless, for appellee.

“It is well-established that there is a presumption that a sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.” Staib v. State, 309 Ga. App. 785, 795 (5) (a) (711 SE2d 362) (2011) (citation and punctuation omitted). Under the circumstances of the instant case, the state has not met this burden and “has failed to overcome the presumption that the trial court properly imposed punishment upon the defendant.” State v. Freeman, 198 Ga. App. 553, 557 (3) (402 SE2d 529) (1991).

Judgment affirmed in part and reversed in part, and case remanded with direction.

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

       Although this Code section previously required a minimum 72-hour term of incarceration for a second DUI offense within a five-year period, Pierce v. State, 278 Ga. App. 162, 165, n. 1 (628 SE2d 235) (2006), we note that the current version mandates such a minimum term of incarceration for a second DUI within a ten-year period.