author: MCMILLIAN, Judge.

text:
    A15A1145.
    CITY OF GREENSBORO v. ROWLAND et al.
    (778 SE2d 409)
   MCMILLIAN, Judge.

The City of Greensboro, Georgia (the “City”) appeals the trial court’s denial of its motion to dismiss a complaint filed by Tony Rowland and Flenard Rowland (the “Rowlands”), asserting claims for inverse condemnation, trespass, intentional tort, and nuisance, arising out of the City’s construction and maintenance of a drainage ditch across their properties.

As factual support for the Rowlands’ claims, the complaint alleges that the Rowlands each own real property on Martin Luther King, Jr. Drive (“MLK Drive”) in the City (the “Property”). After receiving a $500,000 Community Development Block Grant (“CDBG”) in 2011 for improvements to its water and drainage system, the City amended the CDBG to provide for drainage improvements along MLK Drive (the “Project”). The pre-existing drainage ditch in the area had a history of flooding the property downstream, and the CDBG project increased the water flow and the volume rate onto the affected areas. The City began to install expansion piping in the drainage ditch to remedy this problem, and as part of this Project, the City installed the expansion pipe ditch directly through the Property. The Rowlands informed the City that the manner in which the Project was being undertaken was flooding the Property, “causing environmental, sanitation, health safety, and pecuniary damage.”

The Rowlands assert that the City violated federal regulations, local ordinances, and local health and safety codes in implementing the Project. They allege that although the City is fully aware of the damage to the Property caused by the Project, it continues to damage it by maintaining its water system on their land. And although the City has purchased several easements from other properties through which the drainage apparatus runs, it has not obtained an easement from the Rowlands or compensated them in any way for the damage to the Property.

The City moved to dismiss the Rowlands’ complaint, arguing that they had failed to plead and prove waiver of the City’s sovereign immunity as to their claims and that they had failed to substantially comply with the requirement for ante litem notice under OCGA § 36-33-5. The trial court rejected these arguments without explanation, and this appeal followed.

1. The City first asserts that the trial court erred in denying its motion to dismiss on sovereign immunity grounds, and we review this argument de novo. See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) (755 SE2d 184) (2014). See also Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014) (appellate review of trial court’s ruling on motion to dismiss is de novo).

Under Georgia law, municipalities are protected by sovereign immunity pursuant to Article IX, Section II, Paragraph IX of the Georgia Constitution unless that immunity is waived by the General Assembly or by the terms of the Constitution itself. See City of Atlanta v. Mitcham, 296 Ga. 576, 577 (1) (769 SE2d 320) (2015); Sustainable Coast, 294 Ga. at 599 (2). In Sustainable Coast, our Supreme Court explained that although in City of Thomasville v. Shank, 263 Ga. 624, 625 (437 SE2d 306) (1993), the Court had recognized a “nuisance exception” to sovereign immunity and had “ ‘reaffirm(ed) the longstanding principle that a municipality is liable for creating or maintaining a nuisance which constitutes either a danger to life and health or a taking of property,’ ” Shank actually stands for the proposition that “the Constitution itself requires just compensation for takings and cannot, therefore, be understood to afford immunity in such cases.” 294 Ga. at 600 (2). In that discussion, the Court cited with approval Columbia County v. Doolittle, 270 Ga. 490 (1) (512 SE2d 236) (1999), explaining “that the eminent domain provision of the Georgia Constitution waives sovereign immunity in an inverse condemnation action, and therefore, a county may be sued for damages and enjoined for creating or maintaining a nuisance.” Id.

Although the sovereign immunity discussion in Sustainable Coast was with respect to the waiver of sovereign immunity for the State under Article I, Section II, Paragraph IX (e) of the Georgia Constitution, we see no reason why the rationale of Sustainable Coast does not equally apply to waivers of sovereign immunity under Article IX, Section II, Paragraph IX, particularly where Sustainable Coast relied upon and clarified its decision in Shank, which dealt with sovereign immunity for municipalities. Moreover, our Supreme Court has specifically found that “where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.” (Emphasis in original.) Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

Here, because the Rowlands assert that the damage from the City’s drainage system amounts to an unlawful taking of their Property, sovereign immunity has been waived by the terms of the Constitution. Therefore, the trial court properly denied the City’s motion to dismiss on this ground.

2. The City further asserts that the trial court erred in denying its motion to dismiss on the ground that the Rowlands failed to provide the City with a timely ante litem notice under OCGA § 36-33-5 identifying the specific events underlying their claims.

Subsection (b) of that statute provides:

Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

OCGA § 36-33-5 (b). Because this statute is in derogation of the common law, “[i]t is well settled... that substantial compliance with OCGA § 36-33-5 is all that is required.” (Citation and punctuation omitted.) Simmons v. Mayor & Aldermen of the City of Savannah, 303 Ga. App. 452, 454 (693 SE2d 517) (2010). Nevertheless,

there is no precise standard for determining whether any given ante[ ] litem notice is substantively sufficient____The information supplied will be deemed sufficient if it puts a municipality on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury. The act recognizes, by the use of the words [“] as nearly as practicable, [”] that absolute exactness need not be had.

(Citations and punctuation omitted.) Owens v. City of Greenville, 290 Ga. 557, 561-562 (4) (722 SE2d 755) (2012).

The Rowlands’ original complaint alleged that “[Requisite notice of the claims herein has been submitted to [the City], after which the same were rejected.” Attached to the complaint as Exhibit 1 is a copy of a letter dated October 11, 2013 from the Rowlands’ counsel to the City. The letter states that it is in response to “the City’s Notice of Early Public Review of Floodplain Compliance,” and asserts that the Rowlands

again wish to impart notice of damages to real property and unlawful taking by the run-off of drainage water on their property caused by the City’s actions, which effectively devalue their property and subject them to flooding, insect and reptile infestation, and environmental and sanitation degradation.

The complaint also attached as Exhibit 2 a letter from an attorney for the City to the Rowlands’ counsel in response to the October 11 letter, stating the City’s position that any damage to the Property is not the result of any action by the City, but rather is the “direct result of actions by Mr. Rowland and his failure to maintain a pipe which he has installed in the ditch, which is a natural drain.”

In response to the City’s motion to dismiss, the Rowlands amended their complaint to include two further exhibits “as part of ante litem notice.” These exhibits each contain a letter, dated September 16, 2013 and sent to City officials. These letters specifically reference the street addresses of each of the Rowlands’ properties and inform the City that the Rowlands had retained counsel in connection with “run-off of waste water on their property as a result of a project undertaken by the City of Greensboro, which has ultimately resulted in an unlawful taking of their property rights.” The letters indicate that counsel had been authorized to settle the case before the initiation of formal litigation. The Rowlands’ second amended complaint additionally attached as an exhibit an affidavit from the Rowlands’ counsel averring that she mailed the September 16 and October 11 letters to the City officials “with proper and adequate postage thereon, to ensure delivery.”

Although the City asserts that the Rowlands’ letters are not adequate ante litem notice under OCGA § 36-33-5 (b), we find that the letters were sufficient to put the City “on notice of the general character of the complaint,” namely the claim of a continuing nuisance on the Property caused by the City’s water drainage system, and “in a general way, of the time, place, and extent of the injury,” (i.e., that the flooding was ongoing and that the damage amounted to a taking of the Property). Owens, 290 Ga. at 562 (4).

The City further argues, however, that the ante litem notice is insufficient because it fails to state any specific event, “the happening of which gives rise to a claim of trespass, nuisance, or inverse condemnation,” making it impossible to determine whether the Row-lands gave notice within six months of the event as required under OCGA § 36-33-5 (b). But as our Supreme Court recognized in City of Chamblee v. Maxwell, 264 Ga. 635, 636 (452 SE2d 488) (1994), a claim like the Rowlands’ for repeated instances of flooding is a claim for continuing trespass or nuisance, “predicated upon the happening of a continuous series of ‘events,’ ” and “[w]here a trespass is continuing in nature, ... a new cause of action arises daily.” (Citations and punctuation omitted.) Id. Accordingly, the Rowlands were not required to give notice of a specific date of each injury. Rather, the date of the notice limits the extent of recovery for damages incurred prior to the notice. Therefore,

upon giving the six-month notice required by OCGA § 36-33-5, a property owner who incurs damage as a result of a continuing nuisance or trespass maintained by a municipality is entitled, within [the applicable limitations period], to recover only those damages incurred during the six months preceding the giving of such notice. The recovery of any damages incurred prior thereto would be barred, where no timely notice of a claim therefor was given in accordance with the provisions of OCGA § 36-33-5.

Decided October 14, 2015

The Whalen Law Firm, Andrew J. Whalen III, Jessica W. O’Connor, for appellant.

Jones Estate Counsel, Chandra T. Jones, for appellees.

Id. at 637. See also Savage v. E. R. Snell Contractor, Inc., 295 Ga. App. 319, 324-325 (3) (a) (672 SE2d 1) (2008).

We find, therefore, that the trial court properly denied the City’s motion to dismiss for failure to give proper ante litem notice.

Judgment affirmed.

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

       In their complaint, the Rowlands seek to recover compensatory and punitive damages, as well as obtain injunctive relief. The trial court granted the City’s motion to dismiss as to the claim for punitive damages, but denied the motion as to the remaining claims.

       This paragraph provides: “The General Assembly may waive the immunity of counties, municipalities, and school districts by law.”

       This section provides:
      Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

       Because we find that sovereign immunity does not apply, it is unnecessary for us to undertake an analysis of whether sovereign immunity has been waived under OCGA § 36-33-1, which “has for more than a century been interpreted to mean that municipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for the negligent performance of their ministerial duties.” Mitcham, 296 Ga. at 577-578 (1).

       Although the City notes that the complaint does not specifically allege that the Rowlands complied with OCGA § 36-33-5, they have not pointed us to any authority requiring such detailed pleading.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A15A1154, A15A1155.
    In the Interest of C. S., a child (two cases).
    (778 SE2d 396)
   Boggs, Judge.

Ajuvenile court adjudicated 16-year-old C. S. delinquent for acts which, if committed by an adult, would have constituted aggravated assault, possession of a firearm during the commission of a felony, and violation of the Georgia Street Gang Terrorism and Prevention Act. The judge ordered that C. S. be placed in confinement for 24 months and kept in the custody of the Department of Juvenile Justice until he reaches age 21. In Case No. A15A1154, C. S. appeals, challenging among other things, the sufficiency of the evidence. In Case No. A15A1155, he asserts error related to the denial of his motion for an appeal bond. For the reasons explained below, we affirm in Case No. A15A1154 and dismiss Case No. A15A1155 as moot.

Case No. A15A1154

1. C. S. asserts that the State failed to prove venue. But the victim’s testimony that the crimes occurred in Glynn County was sufficient to establish venue. See Long v. State, 324 Ga. App. 882, 889 (1) (752 SE2d 54) (2013).

2. C. S. challenges the sufficiency of the evidence.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. Thus, the standard of review on appeal in a case of adjudication of delinquency of a juvenile is the same as that for any criminal case. In reviewing such cases, we do not weigh the evidence or determine witness credibility.

(Citation and punctuation omitted.) In the Interest of M. L., 316 Ga. App. 413 (729 SE2d 548) (2012).

Construing the evidence presented at the adjudicatory hearing in the light most favorable to the juvenile court’s ruling, the record showed that the victim, 19 years old at the time of trial, had a verbal altercation with Josh Pasco: “We had like exchanged words.” A few days later, at about 7:00 p.m., Pasco and two other males approached the victim as he got out of his car in front of a recording studio. The victim testified that the second man, whom he identified by the nickname “Amp” and police identified as Anthony Thomas, “came up to me, and swung, and missed.” The victim grabbed Thomas, sat back down in his car, and used Thomas as a shield to peek around “to see what’s really going on.” The victim explained that Pasco stood in front of his vehicle and fired a shot through the windshield that landed in the passenger seat. The third person, whom the victim testified he did not know, reached through the passenger side window with a gun and attempted to hit the victim to get him to release his hold on Thomas.

The victim managed to push Thomas out of his car and drive away. He called police once he was “four or five blocks” away. The victim stated that he described the third person to police as an older guy, about “five-eight, five-nine,” with a black shirt and “twist-ies in his hair.” The victim testified that he knew C. S. and that C. S. was present the night of the attack, but he was “standing in the park, he didn’t have nothing to do with it, he was just standing there,” about 15 yards away. The victim explained that other people were standing in the park “coming to watch it, that’s all they were doing, coming to watch it.” Three other witnesses also testified that C. S. was in the nearby park with others observing the incident. One of these witnesses, a friend of Pasco, testified that after the incident, Pasco told him “that the police caught everyone,” and that “that included [C. S.] because [C. S.] had been arrested at that time.”

An investigator testified that she responded to the scene to find the victim bleeding from the mouth. She explained that the victim identified Pasco as “Josh” and Thomas as “Amp” but that he did not know the third person involved in the assault. Although the victim asserted that he described the third person to police as an older guy, about “five-eight, five-nine,” with “twist-ies in his hair,” the investigator testified that the victim described the third person as younger than Thomas or Pasco, Thomas’ height or a little shorter, with “dreds . . . like, twisted.” She testified that Thomas is 17 years old, Pasco is 18 years old, Thomas is 5 feet 9 inches tall, and C. S. is 5 feet 1 inch tall. She testified further that although the victim did not know the third attacker, police were able to identify this third person as C. S. from the victim’s description and from Thomas, who denied any involvement, but explained that he, C. S., and Pasco “had been together all night.”

The investigator explained that the victim told her he was formerly in a gang (“the 305 Boys and the 912 Boys”), and that when the three approached him in the parking lot, they made comments that the attack was in retaliation for the death of another “Blood member.” She testified further that the victim “stated he didn’t want anything to do with this, because he felt like the Bloods would come after him if he would testify against the guys that were — That shot at him.” A detective testified that when he arrived at the scene, the victim told him “that the boys from 912 had shot at him.” He stated further that C. S. “initially... was associated or [a] member of the 305 Miami Bloods,” Thomas and Pasco were each associated with the “912 criminal street gang,” and the victim “was an associate of the 305 Miami Bloods,” but “has been pretty inactive with that organization since he’s been employed.” The detective explained that “912, and 305, are both Bloods,” and that “[t]hey’re linked by the fact that they’re family — In the Blood family, they’re both bloods.”

Later that night, based upon information provided by the victim, officers went to Pasco’s home where they found Thomas, C. S., Thomas’ cousin and Pasco’s parents. C. S. attempted to flee upon seeing officers, but was apprehended and taken to the police station. A detective testified that he interviewed C. S. for about 12 minutes. C. S. admitted that he, Thomas and Pasco had been “just hanging out,” but denied any involvement in the assault. When the detective told C. S. that the police had probable cause to arrest him, C. S. responded that “[hje’d take the three felonies.”

The investigator further explained that during the investigation, the victim told her that his mother informed him, before he went to the recording studio, that three individuals had come to his home looking for him. The investigator stated that “one of [the victim’s] siblings recognized and knew [C. S.] by name” as one of the three individuals. The victim testified, however, that before he left for the recording studio, his mother called and told him that “some boys came looking for [him]. And, I was like, um who were they? And, my brother —And, he just said, [Pasco], [Thomas], and another guy in another— but I don’t know —.”

With regard to the three witnesses who asserted that C. S. stood in a nearby park during the assault, the juvenile court found: “With few exceptions, the Court places no credibility on the testimony of these witnesses.” The court noted that two of the three were members of a street gang, that their testimony was “evasive, conflicting and inconsistent,” and that one of the witnesses sent a Facebook message to C. S.’s mother stating that C. S. “was there when the shooting took place and that he had gone all the way up there where everything happened.” The juvenile court found that the victim’s testimony, to the extent it conflicted with his prior out-of-court statements, lacked credibility, including his description to police of the third assailant. The court noted that the victim, “[i]n violation of the court’s express instructions when the witnesses were sequestered, . . . put his arm around [C. S.]’s mother . . . and whispered in her ear.”

The court also found significant that one of C. S.’s three witnesses, a cousin of Pasco, testified that after Thomas and C. S. were arrested, Pasco told him “that the police had gotten everyone who was involved in the attack on the [victim], except him. Of course, the only others who had been ‘gotten’ were [Thomas] and [C. S.]” (Emphasis in original.) Finally, the court explained that it was permitted to draw an inference that C. S.’s flight from police “evinces a consciousness of guilt.” See, e.g., State v. Frost, 297 Ga. 296, 305 (773 SE2d 700) (2015).

C. S. contends that the evidence presented was insufficient to support a finding that he assaulted the victim, either directly or as a party to a crime, because his mere presence at the nearby park was not enough to establish that he was one of the perpetrators. He argues that for this same reason, the evidence was insufficient to establish that he was in possession of a firearm. C. S. argues further that the testimony of the detective is insufficient to establish that he “was employed by or associated with any gang,” and that “the assault in itself would not be enough to prove that [he], Pasco, and Thomas were all associated with each other as part of the same criminal street gang.”

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6. And

[qjuestions as to the reasonableness of hypotheses are generally to be decided by the [factfinder] which heard the evidence and where the [factfinder] is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Citations and punctuation omitted.) Rogers v. State, 290 Ga. 18, 23 (4) (717 SE2d 629) (2011). Moreover, “criminal intent maybe inferred from conduct before, during, and after the commission of a crime.” (Citation, punctuation and footnote omitted.) Gordon v. State, 316 Ga. App. 42, 47 (1) (b) (728 SE2d 720) (2012).

The juvenile court, as the trier of fact, found C. S.’s witnesses lacked credibility, and that the victim lacked credibility to the extent his testimony was inconsistent with his prior statements to police. And we must give “due regard to the trial court’s opportunity to judge witness credibility.” (Citation, punctuation and footnote omitted.) Snow v. State, 318 Ga. App. 131 (1) (733 SE2d 428) (2012). While the court relied in part on hearsay testimony from the investigator and detective, this testimony was not objected to and was therefore admissible evidence. See OCGA § 24-8-802; Bradshaw v. State, 296 Ga. 650, 653 (2), n. 2 (769 SE2d 892) (2015). The evidence was sufficient to enable the juvenile court to reject as unreasonable the hypothesis that C. S. stood in a nearby park and did not participate in the assault. See Rogers, supra, 290 Ga. at 23 (4). The court as factfinder could have found the hypothesis that C. S. was an innocent bystander unreasonable, particularly in light of the evidence of Pasco’s statement that the police had “gotten” everyone involved. “Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.” (Citation and footnote omitted.) Davidson v. State, 295 Ga. App. 702, 706 (673 SE2d 91) (2009). We therefore conclude that the evidence relied upon by the trial court to find that C. S. was in fact the third assailant who put a gun in the car window and attempted to hit the victim, while circumstantial, was sufficient to exclude every reasonable hypothesis save that of C. S.’s guilt for the delinquent offenses of aggravated assault and possession of a firearm during the commission of a felony. See OCGA §§ 16-5-21 (b) (2); 16-11-106 (b) (1).

The evidence was also sufficient to establish that C. S. violated OCGA § 16-15-4, which provides that it is unlawful for any person associated with a criminal street gang to engage in criminal street gang activity, including offenses involving violence or weapons. See OCGA § 16-15-3 (1) (J). The evidence presented showed that Pasco, Thomas, and two ofC. S.’s witnesses were all associated with the “912 criminal street gang,” that C. S. was initially associated with the “305 criminal street gang,” that both of these gangs were in the Bloods family, and the attack upon the victim was in retaliation for the death of a “Bloods” gang member. See Jackson v. State, 272 Ga. 191, 193 (1) (528 SE2d 232) (2000).

3. C. S. asserts that the juvenile court erred in considering evidence “not on the record” of the adjudicatory hearing. C. S. argues further that the court’s failure to give him prior notice of its intention to consider this evidence, in addition to the evidence presented at the adjudicatory hearing, deprived him of due process. The court noted in its order finding delinquency that in “hearing and deciding the issues presented,” it also considered portions of the testimony presented at the detention hearing.

While C. S. argues that he was denied due process by the juvenile court’s failure to give him notice of its intention to consider evidence presented at the detention hearing, his argument here in essence alleges an evidentiary error. It is true that evidence presented at the detention hearing is for the purpose of determining “whether preadjudication custody of an alleged delinquent child is required.” OCGA § 15-11-506 (a); see generally OCGA § 15-11-503. But even if C. S. is correct that a juvenile court should not also consider this evidence for purposes of adjudication, he has failed to show harm here, either from the court’s consideration of the evidence or its failure to provide him with notice of its intention to do so. The juvenile court sits as the trier of fact in delinquency proceedings, see OCGA § 15-11-582 (b) (1), and here the same juvenile judge presided over both C. S.’s detention hearing and his adjudicatory hearing. The State presented an investigator and a detective at the detention hearing, and they were cross-examined by C. S.’s counsel. The two also testified at the adjudicatory hearing, and their testimony was in large part the same. Under these circumstances, we see no harm in the juvenile court’s consideration of the testimony presented at the detention hearing. And, as we have held in Division 2, the evidence presented in the adjudicatory hearing was alone sufficient to support the juvenile court’s finding of delinquency.

4. C. S. contends that the juvenile court erred in placing him in restrictive custody without “expressly making reference to all the required factors set forth in OCGA § 15-11-602 (b).” That Code section provides:

Every order shall include a finding, based on a preponderance of the evidence, of whether such child requires placement in restrictive custody. If placement in restrictive custody is ordered for a child classified as low risk, the court shall make a specific written finding as to why placement in restrictive custody is necessary. In determining whether placement in restrictive custody is required, the court shall consider and make specific written findings of fact as to each of the following factors:
(1) The age and maturity of such child;
(2) The needs and best interests of such child;
(3) The record, background, and risk level of such child as calculated by a risk assessment, including, but not limited to, information disclosed in the probation investigation, diagnostic assessment, school records, and dependency records;
(4) The nature and circumstances of the offense, including whether any injury involved was inflicted by such child or another participant, the culpability of such child or another participant in planning and carrying out the offense, and the existence of any aggravating or mitigating factors;
(5) The need for protection of the community;
(6) The age and physical condition of the victim;
(7) If the act was trafficking of substances in violation of Code Section 16-13-31 or 16-13-31.1, whether the circumstances involved sale, delivery, or manufacture of the substances, and if such circumstances were not involved, the court shall dispose of the act as a class B designated felony act; and
(8) If the act was aggravated child molestation and subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4, the court shall adjudicate the act as a delinquent act and impose a disposition in accordance with Code Section 15-11-601.

Decided October 14, 2015.

Meredyth L. Yoon, Leo J. Right, Jr., for appellant.

C. S. argues that the juvenile court erred in failing to expressly recite and make findings of fact regar ding the third factor, OCGA § 15-11-602 (b) (3). But the court’s order noted that it considered a Behavioral Health Evaluation, a Pre-Disposition Investigation Report, and a Pre-Dispositional Risk Assessment, and incorporated the information in those documents by reference. The court noted that the Behavioral Health Evaluation revealed that C. S. had been diagnosed with attention-deficit/hyperactivity disorder, oppositional defiant disorder, unspecified depressive disorder, cannabis abuse disorder, and borderline intellectual functioning. With regard to C. S.’s record and background, the court found that at the time C. S. committed the offenses, he “was on probation for violation of probation and two counts of possession of a Schedule I Controlled Substance,” and had “not responded to any of the efforts made by th [e] court to provide him with treatment and rehabilitation.” The court found further that C. S. “has clearly been drawn into the criminal street gang life and is currently a member or associate of the 912 Bloods, aka 912 Folk Nation, which is a criminal street gang.” So while not specifically delineated under a separate heading, the court considered and made specific written findings of fact as to C. S.’s “record, background and risk level.” This claim of error is therefore without merit.

Case No. A15A1155

5. C. S. challenges the juvenile court’s denial of his motion for an appeal bond and his request for a hearing on the matter. But in light of our holding in Division 2 above that the evidence was sufficient to sustain the finding of delinquency, we dismiss this appeal as moot. See Williams v. State, 244 Ga. App. 692, 697 (6) (536 SE2d 572) (2000).

Judgment affirmed in Case No. A15A1154. Appeal dismissed as moot in Case No. A1SA1155.

Doyle, C. J., and Phipps, P. J., concur.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Marilyn P. Bennett, Assistant District Attorneys, for appellee.

       C. S. has not raised a claim of ineffective assistance of counsel in this appeal.

       C. S. cites to no authority, and we have found none, holding that the failure to give such a notice constitutes a denial of due process.

       C. S. asserted in this appeal that the juvenile court erred in ruling that it did not have discretion to grant an appeal bond. While the court stated that the case law on the matter did not apply to juvenile court, it nevertheless considered the merits and ruled under the assumption that the case law did apply.


author: Branch, Judge.

text:
    A15A1347.
    THE STATE v. YOUNG.
    (778 SE2d 402)
   Branch, Judge.

On the evening of New Year’s Day, 2012, William Young drove a large sport utility vehicle into a crowded pedestrian crosswalk just outside the Georgia Dome, hitting and injuring a boy. Young was arrested and charged with crimes including less-safe driving under the influence (DUI) and serious injury by vehicle. After Young moved to suppress any statements made by him, the trial court dismissed the DUI and serious injury charges on the ground that police did not have probable cause to arrest him. On appeal from this ruling, the State argues that such probable cause did exist. We agree and reverse.

“When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.” Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015), citing Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Our Supreme Court has identified “three corollaries” of this principle of deference, “which limit the scope of review in appeals from the grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts”:

First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

Hughes, 296 Ga. at 746 (1) (citations, punctuation and footnote omitted). We therefore focus on “the facts found by the trial court in its order, as the trial court sits as the trier of fact” in such cases. Id. (citation, punctuation and emphasis omitted).

The parties do not dispute that at 8:00 p.m. on the evening of January 1, 2012, immediately after the conclusion of an Atlanta Falcons football game, two off-duty police officers, Mathieu Cadeau and Richard Houston, were directing pedestrians and traffic at the corner of Ivan Allen Boulevard and Northside Drive in Atlanta. When the officers stopped traffic and signaled pedestrians to cross Ivan Allen Boulevard, a group of approximately 50 people, including the victim, who was slightly ahead of his father, began to cross the street by means of the pedestrian crosswalk. When the victim had crossed approximately half of the street, a large red SUV emerged from the stopped traffic. Although Officer Cadeau attempted to get the SUV to stop by waving his hands over his head at the vehicle, it drove into the crosswalk, narrowly missing one of the officers, striking the father’s hand, knocking his phone onto the street, and striking the child, who flew into the air and landed on the pavement, sustaining serious injuries. While a paramedic and a nurse at the scene attended to the victim, and as an ambulance was called, Officers Cadeau and Houston flagged down Officer Gabriel McElroy of the Atlanta Police Department. Because the two traffic officers were not on police duty, Officer McElroy was required to assist them and to complete an accident report. Although the traffic officers saw the SUV hit the boy, they testified that they did not speak to Young before his arrest.

Officer McElroy testified on direct examination that as he walked up to Young, who was standing by the side of his SUV, he noticed a “slight smell of alcohol.” When Officer McElroy asked whether Young had been drinking, Young responded, ‘Yes.” Officer McElroy also testified on direct that he talked to Officer Cadeau, learning that Young had struck the child in the crosswalk; that he detained Young in the back of his patrol car, where he asked Young whether he would submit to field sobriety tests, which Young refused; and that he then read Young his Miranda warning and the Georgia implied consent notice. According to Officer McElroy, Young did not respond to either of these readings. At some point within approximately five minutes after his initial approach to Young, Officer McElroy placed Young under arrest. On cross-examination, Officer McElroy testified that before placing Young in the patrol car, he also asked Young when and how much he had been drinking. Young’s counsel pointed out that this information was missing from Officer McElroy’s written report.

Young was charged with less-safe DUI, serious injury by vehicle, failure to obey a police officer, and failure to yield to a pedestrian in a crosswalk. Young moved to suppress any statements he may have made to police, including any refusal to submit to field sobriety or state-administered tests, on grounds including that he was stopped, detained and arrested without probable cause and that there was insufficient evidence to authorize a prosecution for less-safe DUI as well as the remaining charges. After a hearing on the motion, at which the father and all three police officers testified, the trial court suppressed all “evidence relating to” the DUI and serious-injury-by-vehicle charges. The trial court then dismissed these two charges on the ground that police had lacked probable cause to arrest Young for DUI. The trial court also ordered the State to submit a new accusation for the two remaining misdemeanor charges “before the matter proceeds forward to a trial.”

In a single assertion of error, the State argues that the trial court erred when it concluded that police had lacked probable cause to arrest Young for DUI. We agree.

As we begin our analysis, we are mindful of our Supreme Court’s instruction that a trial court “ ‘is not obligated to believe a witness even if [that witness’s] testimony is uncontradicted and may accept or reject any portion of the testimony.’ ”Hughes, 296 Ga. at 747 (1), quoting Tate, 264 Ga. at 56 (3). Further, “where, as here, the trial court has made extensive findings of fact, we generally must presume that the absence of a finding of fact that would tend to undermine the conclusion of the trial court reflects a considered choice to reject the evidence offered to prove that fact[.]” Hughes, 296 Ga. at 747 (1).

This trial court made a variety of findings of facts, some of them contradictory, in the course of its legal analysis, a practice that makes our task of appellate review substantially more difficult. Reading the order dismissing the DUI and serious-injury-by-vehicle charges in favor of the trial court’s judgment, however, as we are obliged to do, we understand the trial court as having made the following findings of fact:

— Young failed to obey the officers’s hand signals to stop, but may have done so because those signals were “confusing,” as in Officer Cadeau’s in-court demonstration;
— Officers Cadeau and Houston “admitted]” that they did not talk to Young before his arrest, but their testimony that they had “no contact” with him was not credible;
— Officers Cadeau and Houston “did not interact” with Young such that “they could provide no information whatsoever concerning the presence of alcohol” in Young’s system;
— Officer McElroy’s investigation and documentation of the incident were inadequate and “cursory,” and his failure either to specify in his report or to testify on direct examination that he had asked Young at the scene how much or when he drank “cast[ ] serious doubt” on his later testimony on cross-examination that he had asked Young how much and when he drank;
— Officer McElroy’s testimony as to Young’s appearance and demeanor, as well as his interaction with Young, “lack[ed] credibility.”

On the basis of these factual findings, the trial court concluded that the combined circumstances of Young’s driving into the crosswalk where the victim was hit, Young’s “slight smell of alcohol,” and his admission of drinking “without any specificity of the amount or time of consumption,” did not provide probable cause to arrest him for less-safe DUI.

As we have noted, the trial court specifically held that Officer McElroy’s direct-examination account of his interaction with Young was not credible, and the court also excluded any mention of Young’s refusal to submit to field sobriety or state-administered tests from the evidence it considered on the question whether police had probable cause to arrest Young for DUI. Because the trial court disavowed or ignored the entirety of Officer McElroy’s testimony for purposes of the motion to suppress, we must also ignore his testimony that Young refused to submit to any testing. See Hughes, 296 Ga. at 747 (1) (Court of Appeals erred in failing to apply a presumption that the absence of a finding of fact in a trial court’s order containing such findings “reflects [the court’s] considered choice to reject the evidence offered to prove that fact”). Nonetheless, the trial court did believe two critical facts attested to by Officer McElroy: first, that Officer McElroy actually smelled alcohol on Young when first encountering him, and second, that Young told Officer McElroy that he had been drinking. We are thus presented with a legal rather than a factual question: that is, whether these two pieces of credited evidence, along with the undisputed evidence that Young drove his SUV into a crosswalk, hitting the victim, would have given a reasonable officer probable cause to arrest Young for less-safe DUI.

Officer McElroy would have had probable cause to arrest Young for less-safe DUI if the facts and circumstances within his knowledge were “ ‘sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown,’ ” that Young had committed that crime. Hughes, 296 Ga. at 748 (2), quoting Michigan v. DeFillippo, 443 U. S. 31 (99 SCt 2627, 61 LE2d 343) (1979).

[W]hen a court considers whether an officer had probable cause to arrest a suspect, the court must focus on the facts and circumstances then known to the officer, and it must inquire whether those facts and circumstances could lead a prudent person — that is, a reasonable officer — to conclude that the suspect probably has committed an offense. The facts and circumstances known to the officer must be examined altogether, for it is the totality of those facts and circumstances that matters, [and] not any one fact or circumstance standing alone. . . . Because the standard for probable cause depends on what a reasonable officer could have concluded from those facts and circumstances, the standard of probable cause is an objective one, and the subjective thinking of the actual officers in a particular case is not important.

Hughes, 296 Ga. at 748-749 (2) (citations and footnote omitted; emphasis in original). A conviction for less-safe DUI

does not require proof that a person actually committed an unsafe act while driving; it only requires sufficient evidence to authorize a finding, beyond a reasonable doubt, that the defendant was operating or in physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to drive. Circumstantial evidence may be sufficient to meet this burden of proof.

Massa v. State, 287 Ga. App. 494, 495 (1) (651 SE2d 806) (2007) (punctuation and footnote omitted).

“Methods of proof to show [DUI] impairment may include evidence of (i) erratic driving behavior, (ii) refusal to take field sobriety tests and the breath or blood test, and (iii) the officer’s own observations (such as smelling alcohol and observing strange behavior) and resulting opinion that the alcohol made it less safe for the defendant to drive.”

Jones v. State, 273 Ga. App. 192, 193 (1) (614 SE2d 820) (2005) (emphasis supplied), quoting Drogan v. State, 272 Ga. App. 645, 647 (1) (b) (613 SE2d 195) (2005). We also note that “[t]he facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability — less than a certainty but more than a mere suspicion or possibility.” Baker v. State, 295 Ga. App. 162, 164 (1) (a) (671 SE2d 206) (2008) (citation and punctuation omitted; emphasis supplied).

Decided October 14, 2015

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellant.

William C. Head, for appellee.

Applying this law to the material facts as found by the trial court, we conclude that Officer McElroy had probable cause to arrest Young for less-safe DUI. It is undisputed that Young drove his SUV into a crosswalk, hitting the victim, and the trial court credited Officer McElroy’s testimony that Young smelled of alcohol and admitted to drinking. Even if any one of these or other facts, standing alone, might be susceptible to an “innocent explanation” — as when the trial court explained away Young’s erratic driving by characterizing Officer Cadeau’s hand signal as “confusing” — “we do not consider any fact or circumstance standing alone.” Hughes, 296 Ga. at 751 (2) (noting the error of a trial court’s “divide and conquer” approach to a set of facts establishing probable cause to arrest for DUI). Rather, the totality of the circumstances here would have authorized a reasonable officer to conclude that Young was driving under the influence. Id. at 752 (2) (defendant who ran a red light, had “glassy eyes” and “may have been unsteady on his feet,” and had some “tightly packaged pills” on his person provided officers with probable cause to arrest him for DUI); see also Oliver v. State, 268 Ga. App. 290, 295 (2) (601 SE2d 774) (2004) (police had probable cause to arrest defendant for DUI when he was found standing over a wrecked motorcycle and smelling strongly of alcohol). We therefore reverse the trial court’s dismissal of the DUI and serious-injury-by-vehicle charges as well as its suppression of Young’s refusal to submit to testing and remand for further proceedings in which the credibility of witnesses, including Officer McElroy, will be for the jury to consider.

Judgment reversed.

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

       See OCGA §§ 40-6-391 (a) (1); 40-6-394; 40-6-2; 40-6-91 (a).


author: ELLINGTON, Presiding Judge.

text:
    A15A1687.
    HUDSON v. THE STATE.
    (778 SE2d 406)
   ELLINGTON, Presiding Judge.

In J anuary 1996, a Ware County jury found Randy Hudson guilty of armed robbery, OCGA § 16-8-41, as well as firearms offenses, and the trial court sentenced him to life in prison for armed robbery, plus a total of 15 years for the other offenses. In February 2015, Hudson filed a motion to correct void sentence, arguing that OCGA § 16-8-41 is ambiguous and establishes different punishments for armed robbery and that the rule of lenity therefore requires that he receive the lesser punishment. The trial court found that the sentence was not void, and that the court lacked jurisdiction to resentence Hudson under OCGA § 17-10-1 (f), and dismissed the motion. Hudson appeals, contending the trial court erred in holding that it lacked jurisdiction and in ruling that the sentencing scheme established by OCGA § 16-8-41 is not unconstitutionally vague. Finding no reversible error, we affirm.

1. Hudson contends the trial court erred in dismissing his motion to correct void sentence on the basis that it lacked jurisdiction rather than reaching the merits of his motion. Although the trial court did lack jurisdiction to modify Hudson’s sentence pursuant to OCGA § 17-10-1 (f), because his motion was not filed within the time allowed for such a motion, “a sentencing court retains jurisdiction to correct a void sentence at any time.” (Citations and punctuation omitted.) Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010). “[T]he only ground for authorizing á trial court to correct a sentence at any time is that the sentence is void. A sentence is void if the court imposes punishment that the law does not allow.” (Citations and punctuation omitted.) Id. Hudson did not seek a reduction in his sentence under OCGA § 17-10-1 (f) but argued that the trial court had imposed punishment that the law does not allow. Accordingly, the trial court did not lack jurisdiction solely on the basis of the expiration of the time allowed under that Code section. The record shows, however, that the trial court did reach the merits of Hudson’s motion, and reached the correct conclusion, see Division 2, infra. Therefore, this argument is moot.

2. Hudson contends that OCGA § 16-8-41 (b), which provides that a person convicted of the offense of armed robbery shall be punished by “imprisonment for life or by imprisonment for not less than ten nor more than 20 years[,]” provides different gradations of punishment for the same offense. Hudson contends that, as a result of this ambiguity, the rule of lenity requires that he be sentenced to a term of years, which, compared to life imprisonment, is the lesser punishment.

As the trial court noted, in Corey v. State, 216 Ga. App. 180 (454 SE2d 154) (1995), we rejected the argument that OCGA § 16-8-41 (b) is unconstitutionally vague because it provides two maximum sentences, one of life imprisonment and another of twenty years. We explained:

Although the statute allows the sentencing judge broad discretion, it does not provide two different maximum sentences and is not unconstitutionally vague. The courts of this state have consistently held that the maximum penalty upon conviction for armed robbery is life imprisonment. As an alternative to imposing this maximum sentence, under OCGA § 16-8-41 (b), a court also has the discretion to impose a determin[ate] sentence of any period of time between five[] and twenty years.

(Citations and punctuation omitted.) Corey v. State, 216 Ga. App. at 180-181.

Hudson contends that the rule of lenity has been “expanded” since that decision, citing McNair v. State, 293 Ga. 282 (745 SE2d 646) (2013), and McNair v. State, 326 Ga. App. 516 (757 SE2d 141) (2014). In light of the lack of reported appellate consideration of the import of these decisions in this context, we will not dismiss Hudson’s appeal on the basis that he fails to raise a colorable claim of a void sentence.

Decided October 14, 2015

Randy M. Hudson, pro se.

George E. Barnhill, District Attorney, Michelle C. Mclntire, Assistant District Attorney, for appellee.

Upon close review, however, we conclude that these decisions do not support Hudson’s voidness claim. In McNair, the Supreme Court of Georgia disapproved a line of Court of Appeals cases, to the extent they held that, when a statute or set of statutes establishes different penalties for the same offense, the rule of lenity could only be applied when the punishments differed as to misdemeanor versus felony treatment. McNair v. State, 293 Ga. at 284-285. The Supreme Court emphasized that “there may be situations in which the rule of lenity could apply to an ambiguity involving statutes which exact differing felony punishments for the same offense.” Id. at 284. This explanation of the rule of lenity does not undermine our holding in Corey v. State, that OCGA § 16-8-41 (b) is not unconstitutionally vague in providing a maximum sentence of life imprisonment while authorizing an alternative maximum determinate sentence of 20 years imprisonment.

Because OCGA § 16-8-41 (b) is not ambiguous in its provision for a maximum sentence of life imprisonment, and because Hudson’s sentence of life imprisonment falls within the statutory range of punishment, his sentence is not void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004) (“When the sentence imposed falls within the statutory range of punishment, the sentence is not void[.]”). See also Spargo v. State, 332 Ga. App. 410, 411 (773 SE2d 35) (2015) (accord). Accordingly, Hudson’s claim of voidness fails. Williams v. State, 331 Ga. App. 46 (1) (769 SE2d 760) (2015).

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       The General Assembly has established a specific time frame during which a trial court has jurisdiction to freely modify a criminal sentence. Pursuant to OCGA § 17-10-1 (f), a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, whichever is later. Once this statutory period expires, a trial court may only modify a void sentence.
      (Citation and punctuation omitted.) Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010).

        Worley v. State, 265 Ga. 251, 252, n. 3 (454 SE2d 461) (1995) (The death penalty cannot be imposed for armed robbery.); Gregg v. State, 233 Ga. 117, 127 (210 SE2d 659) (1974) (accord).

       The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment____ The rule of lenity is a rule of construction that is applied only when an ambiguity still exists after having applied the traditional canons of statutory construction____ [T]he rule of lenity may be applicable where there are different gradations of punishment for the same offense [.]
      (Citations and punctuation omitted.) McNair v. State, 293 Ga. 282, 283-284 (745 SE2d 646) (2013).

       In 1994, OCGA § 16-8-41 was amended, and the statutory minimum for armed robbery was increased from five years to ten years. See Ga. L. 1994, p. 1959, § 3.

       See also Worley v. State, 265 Ga. at 252 (“[T]he armed robbery statute clearly specifies that a person convicted of armed robbery can be sentenced to prison for life or a determinate term between five and 20 years[.]”) (citations and punctuation omitted; emphasis in original); Nihart v. State, 227 Ga. App. 272, 279 (5) (488 SE2d 740) (1997) (OCGA § 16-6-2 (b), which provides the maximum penalty for an aggravated sodomy conviction is life imprisonment, and also gives the trial court the option to impose, as an alternative, a determinate sentence between one and twenty years imprisonment, is not ambiguous such that the twenty-year maximum abrogates the life imprisonment penalty.).

       To support a motion for sentence modification filed outside the statutory time period, therefore, a defendant must affirmatively demonstrate that the sentence imposes punishment not allowed by law. Moreover, a direct appeal does not lie from the denial of such motion unless it raises a colorable claim that the sentence is, in fact, void.
      (Citation and punctuation omitted.) Frazier v. State, 302 Ga. App. at 348. See Jones v. State, 278 Ga. 669, 670-671 (604 SE2d 483) (2004) (dismissing appeal where the appellant’s post-appeal, post OCGA § 17-10-1 (f) motion seeking sentence modification did not allege the sentences imposed punishment the law does not allow).


text:
    A15A0831.
    CAUSEY v. THE STATE.
    (778 SE2d 800)
   Branch, Judge.

Following a stipulated bench trial, Michael Van Causey was convicted on one count of possession of methamphetamine. On appeal, he contends the trial court erred by denying his motion to suppress. For the reasons that follow, we vacate and remand with direction.

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

The evidence presented at the hearing on the motion to suppress shows that Deputy William Schwartz and at least three other officers of the Floyd County Sheriff’s office, who were seeking to execute an arrest warrant for one Jesse Powell, went to Causey’s home based on a tip that Powell could be found there; Powell did not reside at that address, and the officers did not have a warrant to search Causey’s home. Officers Schwartz and Salter went to a position where they could observe the side door of the house; Corporal Whitfield and Deputy Burt approached the front door of the home and were able to observe Powell sitting on a couch. When the officers knocked and announced that it was the police, the officers at the front door saw Powell get up and run through the house. Schwartz then saw Powell run past the side door and saw “a couple other flashes go by”; he clarified that he recognized one of the “flashes” as a fellow officer, apparently Whitfield. Schwartz kicked in the side door, entered the premises with Salter, and, along with Whitfield and yet another officer (Watkins), chased Powell into a bathroom where a struggle ensued. Powell was eventually subdued and placed in hand restraints. Whitfield and Powell were injured in the struggle, an ambulance was called, and ultimately, Whitfield was taken to the hospital to get stitches. Causey and a guest were handcuffed and sitting on a sofa during this time.

While waiting for the ambulance to arrive, Schwartz walked through the house to “clear [ ] the house,” or “to make sure there’s nobody else hiding in a closet or anything else, to make sure it’s safe.” He did so “as a safety precaution to ourselves while we’re there,” and “to make sure the scene is safe especially before bringing in other public safety personnel,” meaning in this case, medical personnel. He testified that such a search was especially necessary in a “fast moving” situation. Schwartz further testified that given that Causey was a known drug user, that Causey’s guest also had a pending warrant for a violent offense, and that Powell was fleeing law enforcement, “[i]t wouldn’t be a far stretch of the imagination for someone to be there in a closet.” Schwartz later added that the officers “had to be there”; read in context and construed in favor of the trial court’s ruling, this statement refers to the officers remaining at the house until the ambulance arrived to care for Whitfield. Finally, Schwartz testified, “You’ve got everybody known to be drug users. You know, people that have tried to cause harm to police before . . . [and therefore] I would have reason to believe, in a place like that, there would be more people that may possibly be wanted for warrants.”

While clearing the house, Schwartz looked into a bedroom and observed what he suspected was methamphetamine in plain sight on a dresser. Schwartz did not collect the suspected contraband; rather he went to the living room, found Causey handcuffed and sitting on a sofa, and read Causey his Miranda rights. Causey then consented to a search, signed a consent form, and answered questions in which he admitted that the drugs were found in his bedroom and that the drugs did not belong to the guest. Schwartz then collected the suspected contraband and searched the remainder of the house for other illegal substances, but none were found.

Although the trial court’s order denying the motion to suppress does not include findings of fact, at the hearing the trial court reasoned as follows:

You’ve got to look at this in all the totality of the circumstances. The officer saw Mr. Powell running from the living room towards the bathroom. He’s fleeing towards the back of the house and shutting the door to close — to get into the bathroom. The officers have every reason to believe that if he was running to secure himself in the back of the house [, w]ho else might have secured themselves in the back of the house? It doesn’t have anything to do with these fellow [s’] reputations or criminal records. It has to do with the circumstances at the time. A wanted fugitive was running and trying to hide from the police when they entered the house____ The fact that there was an injury, and a severe injury — it wasn’t just a scratch. It required stitches to the officer. Required them to stay and be there and wait on EMTs and have Mr. Powell treated as well as the deputy treated. He would be derelict in his duty if he did not check to see if anybody else had gone to hide in that house somewhere given the circumstances at the time.

Based on the above facts and on Causey’s stipulation to venue and to the facts that the contraband was methamphetamine, that the methamphetamine was found in Causey’s room, and that Causey denied it belonged to his guest, Causey was convicted of possession of methamphetamine.

1. We first comment on an issue not argued on appeal. “[A]bsent exigent circumstances, the Fourth Amendment prohibits police from searching an individual’s home or business without a search warrant even to execute an arrest warrant for a third person.” Pembaur v. City of Cincinnati, 475 U. S. 469, 474 (I) (106 SCt 1292, 89 LE2d 452) (1986), citing Steagald v. United States, 451 U. S. 204 (101 SCt 1642, 68 LE2d 38) (1981). Here, in the trial court, the State asserted that the officers at the front door had exigent circumstances to enter Causey’s home, the trial court agreed that the officers had a right to enter the home, and Causey has not contested that issue on appeal. That question, therefore, is not before us.

2. “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others ." Maryland v. Buie, 494 U. S. 325, 327 (110 SCt 1093, 108 LE2d 276) (1990). Protective sweeps force courts to balance the Fourth Amendment’s protection from unreasonable search and seizure against an officer’s interest “in taking steps to assure [herself] that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Id. at 333 (III). In striking a balance between these interests, the United States Supreme Court has held that incident to an arrest in a home, officers may “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Id. at 334 (III) (emphasis supplied). But to search beyond the immediately adjoining spaces,

there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Id. A “mere inchoate and unparticularized suspicion or hunch” that the home may harbor an individual posing a danger to the officers is insufficient to support a warrantless sweep. Id. at 332 (III) (citation and punctuation omitted).

At first blush, this appears to be a close case and that some evidence supports the trial court’s findings, which is all that is required by the standard of review. But, as shown below, the State presented no evidence to support the conclusion that a reasonable officer could have reasonably believed that additional dangerous individuals were in the home. The trial court found that because the officers were pursuing a felon fleeing toward the back of the house, they could reasonably believe that there might be another person in the back of the house thereby warranting a protective sweep while they waited for medical personnel to arrive. The “fast moving” nature of the situation is also relevant. And “[although we review police actions from the standpoint of a hypothetical ‘reasonable’ officer, we must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit.” State v. Brannan, 222 Ga. App. 372, 373 (1) (474 SE2d 267) (1996) (citation and punctuation omitted).

Nevertheless, Schwartz never testified to any facts to support a belief that there were more than three people in the house before the officers arrived. Nor did he testify to any facts that developed after the officers arrived that support an inference that there were more than three people, other than officers, in the house when the officers actually entered the house. Although he testified that he saw two “flashes” after Powell ran by (one of whom he recognized as a fellow officer), Schwartz never testified that he thought the other flash was someone other than an officer, and the facts show that at least one more officer who entered through the front door ended up in the bathroom subduing Powell. Also, even though Schwartz testified that the occupants’ outstanding warrants and reputations gave him concern about who else could be in the house, the trial court specifically found that fact to be irrelevant.

In Buie, the Supreme Court rejected a “bright-line rule” that police should be permitted to conduct a protective sweep whenever they make an in-home arrest for a violent crime. Buie, 494 U. S. at 334 (III), n. 2. Instead, following the reasoning of Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968), the Supreme Court held that even though some danger might exist, a protective sweep requires a “reasonable, individualized suspicion” of that danger:

[D] espite the danger that inheres in on-the-street encounters and the need for police to act quickly for their own safety, the Court in Terry did not adopt a bright-line rule authorizing frisks for weapons in all confrontational encounters. Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted. That approach is applied to the protective sweep of a house.

Buie, 494 U. S. at 334 (III), n. 2.

Georgia and Eleventh Circuit cases applying Buie are consistent in requiring that some facts be presented that show or raise a reasonable inference that other persons who might present a danger are present in the home, not simply uncertainty as to whether such persons are present. For example, in United States v. Hollis, 780 F3d 1064, 1069 (III) (A) (11th Cir. 2015), the government presented evidence that the officers had been told that the apartment was a “ ‘drug house,’ with a ‘high level of activity,’ where ‘people were in and out of the house all hours of the day or night,’ and that they ‘could expect to encounter a number of people inside.’ ” Id. (punctuation omitted). Accordingly, the officers were authorized to make a rational inference that there might be armed individuals present. Id. In United States v. Chaves, 169 F3d 687 (11th Cir. 1999), the Eleventh Circuit held that where officers had no information regarding the inside of a warehouse, they had no specific and articulable facts to show the presence of another individual in the warehouse who posed a danger to the officers even though two armed men suspected of being involved in drug activity exited the warehouse in the officers’ presence. Id. at 689, 692. See also United States v. Sunkett, 95 FSupp.2d 1367, 1372 (II) (A) (N.D. Ga. 2000) (fact that someone else “might be” present is not enough to support a protective sweep).

In both Lawson v. State, 299 Ga. App. 865, 870 (2) (684 SE2d 1) (2009) and Moorer v. State, 286 Ga. App. 395, 397 (1) (649 SE2d 537) (2007), one fact that the court used to justify upholding a protective sweep was that although officers were initially aware of only one armed robber in the house that was searched, two armed men had been involved in the crime and had fled together, thereby raising a reasonable inference that the second armed robber could be in the house. And in Inglett v. State, 239 Ga. App. 524, 525 (1) (521 SE2d 241) (1999), a protective sweep was upheld where the resident who received a package containing a large quantity of drugs referred to those in the house in the plural, officers observed at least one other individual in the residence, and an officer testified that guns were bound to be present with such a large amount of narcotics. Compare Nelson v. State, 271 Ga. App. 658, 661 (1) (c) (610 SE2d 627) (2005) (where police testified that “with drugs safety is our number one concern. We don’t want anybody to get shot,” and that they were confronted with fleeing suspects in a quickly developing situation, a cursory sweep was sustainable; this finding is dicta, however, because the Court also held that the motion to dismiss was properly denied because the relevant evidence was not discovered during the sweep, i.e., it was not the fruit of the poisonous tree) (punctuation omitted).

Here, Schwartz did not testify to any information to support the presence of additional dangerous individuals in the home. He could only imagine that such people might be present based on the facts that Powell was fleeing, that one or two of the occupants had outstanding warrants, and that the occupants of the residence were drug users. None of these facts support a rational inference that anyone other than the three men near the front door were present, let alone dangerous. We therefore conclude that the State failed to present articulable facts and rational inferences from those facts to warrant a reasonably prudent officer in believing that the remainder of Causey’s home harbored any individuals who posed a danger to the officers or others. See Buie, 494 U. S. at 334 (III).

3. Nevertheless, suppression of the evidence of methamphetamine is not necessarily required:

Even assuming the illegality of the initial entry and search, a party’s subsequent consent to the search, which is freely and voluntarily given, may serve as an independent act of free will that purges the primary taint and authorizes admission of the evidence. Several factors for courts to consider in addressing this issue include the time elapsed between the illegality and the acquisition of the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct.

Park v. State, 308 Ga. App. 648, 651 (1) (708 SE2d 614) (2011) (citations, punctuation and footnote omitted). See also State v. Driggers, 306 Ga. App. 849, 852 (3) (702 SE2d 925) (2010) (“The fruits of an illegal search or arrest should be suppressed when they bear a significantly close relationship to the underlying illegality.”) (citation and punctuation omitted). Although we would consider this issue if the trial court had ruled on it, the trial court appears to have relied solely on the validity of the protective sweep. We therefore remand the case to the trial court to address the question whether Causey’s consent to search was voluntary and sufficiently attenuated from the illegal protective sweep to justify the introduction of the seized methamphetamine in Causey’s trial. See State v. Sapp, 214 Ga. App. 428, 432 (3) (448 SE2d 3) (1994) (whether urinalysis testing was sufficiently attenuated from illegal investigative stop depended on facts not addressed by the trial court, and therefore a remand was necessary).

Decided October 15, 2015.

Robert C. Rutledge, for appellant.

Leigh E. Patterson, District Attorney, Randall C. Schonder, Assistant District Attorney, for appellee.

We therefore vacate the judgment and remand with direction for the court to reconsider Causey’s motion to suppress and for other proceedings consistent with this opinion.

Judgment vacated and case remanded with direction.

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

       Here, the State does not contend that the bedroom immediately adjoined the place where Powell was arrested.

       Aproper protective sweep “may extend only to a cursory inspection of those spaces where a person may be found.” Id. at 335 (III) (footnote omitted).


author: McMillian, Judge.

text:
    A15A0987.
    RES-GA HIGHTOWER, LLC v. GOLSHANI.
    (778 SE2d 805)
   McMillian, Judge.

This appeal presents a single legal issue: Under OCGA § 44-12-24 and the Supreme Court of Georgia’s decision in Security Feed & Seed Company of Thomasville, Inc. v. NeSmith, 213 Ga. 783 (102 SE2d 37) (1958), does an assignee to a debt have standing to assert a claim that the debtor fraudulently conveyed property in violation of the Georgia Uniform Fraudulent Transfers Act, OCGA § 18-2-70 et seq. (the “UFTA”)?

The facts are largely undisputed. On or about October 25, 2006, Rockdale Investment Partners, LLC borrowed funds from Omni National Bank (the “Bank”), which was evidenced by a promissory note (the “Note”). Appellee Nasser Golshani personally guaranteed the Note. Two years later, Rockdale Investment Partners and Golshani defaulted on their obligations to the Bank.

Some months later, the Bank was closed by the Georgia Department of Banking, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as the receiver for the Bank. Effective February 9, 2010, the FDIC, as receiver for the Bank, assigned all of its rights, title, and interest in the Rockdale Investment Partners and Golshani debt to Multibank 2009-1RES-ADC Venture, LLC (“Multibank”). Later, on August 31, 2010, Multibank assigned its rights, title, and interest in the Rockdale and Golshani debt to Appellant RES-GA Hightower, LLC (“RES-GA”). On March 29, 2013, RES-GA obtained a judgment against Golshani in the amount of the Note.

In the meantime, on April 20, 2009, which was after Golshani had defaulted on the Note but before there was a judgment entered against him, Golshani conveyed two parcels of real property to Simin Khani by quitclaim deed and another property to his daughter, Samira Golshani, also by quitclaim deed. A few months later, these properties were conveyed again — this time to Golshani’s mother.

RES-GA filed a lawsuit in Fulton County Superior Court against Golshani, Simin Khani, Golshani’s daughter, and Golshani’s mother, asserting that the property transfers were done to defraud Golshani’s creditors and seeking to set aside the conveyances under the UFTA. After Golshani’s daughter submitted an affidavit averring that she had not been in contact with her father or grandmother in several years, that she was unaware of the property deeded to her, and that her signature on the quitclaim deed to her grandmother was forged, Golshani’s daughter was dismissed from the lawsuit.

Golshani moved for summary judgment, asserting among other things, that RES-GA, as the second assignee of the Bank, had no standing to assert a fraudulent transfer claim against Golshani because a fraudulent transfer claim cannot be assigned under Georgia law. The trial court granted summary judgment to Golshani, and this appeal followed.

1. In related enumerations of error, RES-GA asserts that (1) under the UFTA, a creditor who obtained debt through an assignment has standing to assert a fraudulent transfer claim; (2) NeSmith no longer controls after the enactment of the UFTA; (3) a fraudulent transfer claim is a property right and OCGA § 44-14-24 does not bar assignment of property claims; and (4) denying standing to an assignee contravenes the public policy of this State in favor of creditors’ rights to satisfy valid claims.

(a) Under the UFTA, a creditor can seek to set aside transfers of property by the debtor, “if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay, or defraud any creditor of the debtor.” OCGA § 18-2-74 (a) (1) (2014). In determining intent, consideration is given to an open-ended set of factors listed in OCGA § 18-2-74 (b), which are also commonly called the “badges of fraud.” See Target Corp. v. Amerson, 326 Ga. App. 734, 737 (1) (755 SE2d 333) (2014). A“creditor” is broadly defined as “a person who has a claim,” a “debtor” means a “person who is liable on a claim,” and a “claim” is “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” OCGA § 18-2-71 (3), (4), (6). Accordingly, under the plain terms of the UFTA, an assignee to debt ordinarily would qualify as a “creditor” who has a “claim,” but nothing in the UFTA specifically addresses assignments of such claims.

In Georgia, a separate statute delineates certain claims that are not assignable:

Except for those situations governed by Code Sections 11-2-210 and 11-9-406, a right of action is assignable if it involves, directly or indirectly, a right of property. Aright of action for personal torts, for legal malpractice, or for injuries arising from fraud to the assignor may not be assigned.

OCGA § 44-12-24. Here, the issue is whether a claim under the UFTA to set aside a property transfer as defrauding creditors is a “right of action . . . arising from fraud” such that it is not assignable. Id. In deciding this question, the trial court properly relied on NeSmith, in which our Supreme Court, after citing and quoting a prior version of this nonassignment statute, held:

[WJhere, as here, the purchaser or assignee of accounts receivable brings an action to recover on an open account owing by the defendant debtor to the assignor and assigned to the plaintiff, and in the same action seeks equitable relief to set aside an alleged fraudulent deed to hinder, delay, and defraud his creditors, made by the debtor to his wife prior to the date on which the accounts receivable were assigned to the plaintiff, and also a subsequent loan deed made by the wife to counsel of the defendant to secure an indebtedness due by her to them, the trial judge did not err in sustaining the general demurrer of the defendants to so much of the petition as sought such equitable relief. . . .

213 Ga. at 784 (1). Thus, it seems clear that prior to the enactment of the UFTA, an assignee of debt was precluded from setting aside a deed in equity even if it was claimed that the property was conveyed to hinder and defraud creditors.

The question then becomes whether NeSmith has been superseded by the UFTA, and we find that the plain language of the UFTA supplies the answer. Former OCGA § 18-2-80 (a) provided:

Unless displaced by the provisions of this article, the principles of law and equity, including the law merchant and the law relating to principal and agent, estoppel, laches, fraud, misrepresentation, duress, coercion, mistake, insolvency, or other validating or invalidating cause, supplement its provisions.

Based on our review of the UFTA, we do not find any clear indication in its language that displaces NeSmith’s construction of the non-assignment statute, which fraud provisions have not been amended in any material way. See Couch v. Red Roof Inns, Inc., 291 Ga. 359, 364 (729 SE2d 378) (2012) (“The actual canon of statutory construction is ‘that statutes in derogation of the common law must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.’ ”) (citation and punctuation omitted). Thus, we are constrained to hold that under NeSmith, an assignee of debt is precluded from pursuing a fraudulent transfer claim even though the assignee meets the definitions of a “creditor” with a “claim” under the UFTA.

RES-GA attempts to distinguish NeSmith on the grounds that RES-GA has a judgment against Golshani whereas the assignee in NeSmith did not. See First State Bank of Northwest Arkansas v. McClelland Qualified Personal Residence Trust, No. 5:14-CV-130 (MTT), 2014 WL 6801803 (II) (B) (1) (M.D. Ga. 2014) (NeSmith did not preclude claim by creditor that had been assigned the FDIC’s interest in loans and the related judgment against defendants). But NeSmith did not turn on whether the assignee had obtained a judgment; instead, the Court, in explaining its reasoning, relied on the nonassignment statute and Marshall v. Means, 12 Ga. 61 (1852) for the proposition that “ ‘[a] bare right to file a bill (in equity) or maintain a suit is not assignable.’ ” NeSmith, 213 Ga. at 784 (1). Thus, the key inquiry for the Court appeared to be the equitable nature of the claim and its basis in fraud, rather than the source of the creditor’s rights vis-a-vis the debtor, and we do not find it material that RES-GA, as an assignee, subsequently obtained a judgment against Golshani.

(b) Our conclusion is further supported by the 2015 amendments to the UFTA. The term “creditor” is now defined as “a person who has a claim, regardless of when the person acquired the claim, together with any successors or assigns.” OCGA § 18-2-71 (4) (additional language italicized). And an additional subsection (c) was added to OCGA § 18-2-74 in the 2015 amendment, providing that “[i]f a creditor is a successor or assignee, a right of action under subsection (a) of this Code section is automatically assigned to such successor or assignee.” We note that these additions were not circulated by the Uniform Law Commission in their 2014 version of the Uniform Voidable Transactions Act and thus appear to be specific to Georgia. And the General Assembly has made it clear that the amendments only apply to transfers made or obligations incurred on or after July 1, 2015 and only to a right of action accruing after July 1, 2015. See Ga. L. 2015, pp. 996, 1029, § 7-1 (d).

“The General Assembly is conclusively presumed to know the law which they seek to amend, revise, repeal, or modify . . . and the construction of such law by our courts of last resort.” Jacobs v. State of Ga., 200 Ga. 440, 444 (37 SE2d 187) (1946). See also Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93 (327 SE2d 188) (1985). And “we must presume that the legislative addition of language to the statute was intended to make some change in the existing law.” Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 796 (2) (471 SE2d 504) (1996). Given NeSmith and the addition of previously nonexistent language in the statute, we must presume that the 2015 amendments were intended to change the law, and since the amendments specifically allowed assignees and successors to debt to pursue fraudulent transfer claims, it follows that under the previous version of the UFTA, such assignments were not allowed. See Board of Assessors of Jefferson County v. McCoy Grain Exchange, Inc., 234 Ga. App. 98, 100 (505 SE2d 832) (1998) (prior law had different meaning because additional language in statute intended to change meaning).

RES-GA asserts that the 2015 amendments simply clarified the existing law and urges us to apply the principle of statutory construction that

[i]n construing the meaning of ambiguous language in a Code section, we must look, where possible, to the original act; the language of the section should be construed as intending to state the previously existing law and not to change it unless such a purpose clearly manifests itself.

Aldrich v. City of Lumber City, 273 Ga. 461, 464 (542 SE2d 102) (2001). However, we do not find the language in the 2015 amendments to be ambiguous. Moreover, the UFTA was silent on the issue of whether fraudulent transfer claims were assignable and the law under NeSmith was that such claims were not assignable; thus, the entirely new language added in 2015 cannot be considered a “clarification” of the existing law. Nor does it appear from the language of the amendments that the General Assembly intended that they have retroactive effect as they are to apply to transactions and claims arising after July 1, 2015. Accordingly, we find no error in the trial court’s grant of summary judgment to Golshani on this basis.

Decided October 16, 2015

Weissman, Nowack, Curry & Wilco, Bradley A. Hutchins, David S. Klein; Morris, Manning & Martin, Frank W. DeBorde, Lisa M. Wolgast; Alston & Bird, James C. Grant, Jonathan T. Edwards, for appellant.

Schreeder, Wheeler & Flint, John A. Christy, Scott D. McAlpine, for appellee.

2. RES-GA also asserts that the federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 authorizes assignment of fraudulent transfer claims and preempts OCGA § 44-12-24. However, RES-GA failed to raise this issue in the trial court. “[A]bsent special circumstances, an appellate court need not consider arguments raised for the first time on appeal.” Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (573 SE2d 389) (2002). These special circumstances include “a jurisdictional challenge, a claim of sovereign immunity, a serious issue of public policy, a change in the law, or an error that works manifest injustice.” (Citation and punctuation omitted.) Id. at 829, n. 10. Despite RES-GA’s arguments that it would be unfair to preclude them from pursuing a fraudulent transfer claim against Golshani, we find no special circumstances to warrant considering this argument and conclude that RES-GA has waived this new argument for the purpose of appeal.

Judgment affirmed.

Andrews, P. J., and Barnes, P. J., concur.

       We will refer to the operative provisions of the UFTA as they existed at the time the complaint was filed, while noting that the UFTA has since been amended in 2015 and is now called the Uniform Voidable Transactions Act (“UVTA”). See Ga. L. 2015, p. 996, § 4A-1 (effective July 1, 2015).

       “This Court reviews the grant of summary j udgment de novo, viewing the evidence in the light most favorable to the nonmovant.” Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 31 (766 SE2d 497) (2014).

       Khani was apparently engaged to Golshani at the time and according to Golshani, the conveyances were done in connection with the Islamic tradition of “mahar” or “mahr,” a dowry paid by the groom to the bride at the time of marriage. See Lindsey E. Blenkhorn, Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women, 76 S. Cal. L. Rev. 189, 198-200 (2002).

       In verified responses to interrogatories, Golshani stated that he was engaged to Samira Golshani from late 2006 through 2008 and that he conveyed the property to her also in accordance with the tradition of mahar. However, Samira Golshani has denied under oath that she has ever been engaged to Golshani, who is her father.

        NeSmith was issued in 1958, and the UFTA was first enacted in 2002. See Ga. L. 2002, p. 141,§ 3. Previously, fraudulent transfers were governedby the Code ofl933,§ 28-201, which provided in pertinent part:
      The following acts by debtors shall be fraudulent in law against creditors and others, and as to them null and void, viz:... (2) Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description, had or made with intention to delay or defraud creditors, and such intention known to the party taking.
      This provision was first codified in the Act of 1818, and was in effect at the time that NeSmith was issued although not specifically cited in NeSmith.

       This section was recodified at OCGA § 18-2-82 in connection with the 2015 amendments. See Ga. L. 2015, p. 996, § 4A-1.

       Although RES-GA asserts that denying standing to an assignee undermines the public policy of this State in favor of creditors’ rights, “[w]hen we consider the meaning of a statute, we look first to the text of the statute, and if the text is clear and unambiguous, we look no further, attributing to the statute its plain meaning.” (Citation and punctuation omitted.) Carter v. Progressive Mountain Ins., 295 Ga. 487, 489-490 (761 SE2d 261) (2014). To the extent such public policy exists, it cannot contravene the plain meaning of the text of the statute.

       As a state appellate court, we are not bound by the decisions of the federal district courts. See Gresham v. Harris, 329 Ga. App. 465, 467 (765 SE2d 400) (2014). To the contrary and as a general matter, this Court adopts such federal decisions only when they are not in conflict with our own legal precedent. See Russell v. Parkford Mgmt. Co., 235 Ga. App. 81, 82 (2) (508 SE2d 454) (1998).

       The Uniform Voidable Transactions Act, as amended in 2014 by the Uniform Law Commission, canbe found at http://www.uniformlaws.org/shared/docs/Fraudulent%20Transfer/ 2014_AUVTA_Final%20Act.pdf.