text:
    A11A0057.
    WALKER v. THE STATE.
    (713 SE2d 413)
   Ellington, Chief Judge.

A Houston County jury found John O. Walker guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41 (a); hijacking a motor vehicle, OCGA § 16-5-44.1 (b); and kidnapping, OCGA § 16-5-40 (a). He appeals from the denial of his motions for new trial, contending that the trial court erred in denying his motion to quash the indictment, in denying his motion to sever, and in admitting similar transaction evidence. He also argues that the evidence was insufficient to support his convictions. Finding no error, we affirm.

1. Walker contends that he was entitled to a directed verdict of acquittal because the only evidence identifying him as the perpetrator of the charged crimes was the uncorroborated testimony of an unindicted co-conspirator. He also claims that the evidence that implicated him was purely circumstantial and that the State failed to exclude all other theories supported by the evidence except for his guilt.

A motion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.

(Footnotes omitted.) Hughes v. State, 297 Ga. App. 217 (676 SE2d 852) (2009). Viewed in this light, the record reveals the following facts.

In late August 1997, Walker and two friends, Roderick Hope and Hope’s cousin, Charles Brown, Jr., discussed taking a trip to Detroit, Michigan, so that Walker, who previously lived in Michigan, could meet with an attorney and pick up a check for proceeds arising out of the settlement of a legal matter. Because the men needed a vehicle for the trip, Hope and Brown cut a chain link fence surrounding a Worth County car dealership that night and stole a Buick Park Avenue. Walker, his girlfriend, and their infant daughter then met Hope and Brown at the home of Hope’s parents, as previously planned, and they all traveled to Michigan in the stolen Buick. They arrived in the Detroit area at approximately 7:00 p.m. on Friday, August 29, which was the day before the Labor Day weekend. Because they believed that the attorney’s office would be closed until Tuesday, September 2, and because they needed money so that they could stay in Detroit over the weekend, the three men worked together to commit an armed robbery and a purse snatching. The men then used the money and credit cards that they obtained in the crimes to get additional cash and to pay for hotel rooms, food, and gas, and Walker used a credit card to buy two BB guns that resembled handguns and a television, which he later returned for a cash refund.

On Tuesday, the men discovered that Walker’s attorney had closed her office and had moved out of state, so that Walker was unable to pick up the settlement check. Not wanting to return to Georgia “empty handed,” the men began a multi-state crime spree that included automobile thefts, carjackings, and armed robberies. Specifically, while still in Michigan, Walker and Brown, posing as father and son, went to a car dealership shortly before closing time. Walker told the salesperson that he wanted to buy his “son” a car, asked to test drive a new Mercury Mountaineer, and allowed the salesperson to copy his driver’s license. Shortly after Walker and Brown left the dealership in the Mountaineer, they removed the dealership’s tag and replaced it with a stolen Virginia tag. They never returned the vehicle to the dealership. Walker and Hope then disposed of the stolen Buick (in which they had traveled to Michigan) by parking it behind a grocery store, pouring gasoline on it, and setting it on fire.

Next, Walker and Brown used the handguns to rob a couple as they were exiting a liquor store. Shortly thereafter, while Walker drove around the area in the Mountaineer, Hope and Brown used the handguns to rob and kidnap a woman and steal her Ford Explorer. When the woman’s grandmother, who was in a separate car, tried to intervene in the carjacking, Walker used the Mountaineer to block her car. Hope, who was driving the Explorer with Brown in the back seat, drove a short way before letting the woman out of the car. Walker followed the Explorer in the Mountaineer, with his girlfriend and their baby as passengers.

Before they left Michigan, Walker, Hope and Brown decided to steal another car on the trip back to Georgia. In Tennessee, Walker and Brown, again posing as father and son, went to a Nissan dealership. Accompanied by a salesperson in the front passenger seat, Walker “test drove” a Nissan Pathfinder while Brown sat in the back seat. During the drive, Brown pointed one of the handguns at the back of the salesperson’s head, and Walker told the salesperson that they were hijacking the vehicle. After threatening the salesperson, Walker took a ring and approximately $200 in cash from the salesperson; Walker put the ring on his finger. Walker then stopped for gas, bought the salesperson a beer, and a few minutes later, left the salesperson on the side of the road before driving away.

The group arrived in Georgia on Wednesday, September 3; Walker was driving the Mountaineer with his girlfriend and their daughter as passengers, Hope was driving the Pathfinder, and Brown was driving the Explorer. In North Georgia, the men purchased two pairs of gloves. The next day, the men met at the house of an aunt of Hope and Brown in Worth County and discussed a plan to commit another robbery in order to get money to repaint and change the serial numbers of the three vehicles that they had stolen.

On the morning of Thursday, September 4, Walker, Hope and Brown went to Perry, Georgia, in the Mountaineer. In Perry, the men stopped at a grocery store after seeing an elderly man get out of a Cadillac Eldorado in front of the store. While Hope waited in the Mountaineer, Walker and Brown, who were wearing gloves and carrying the handguns, approached the elderly man as he left the store and returned to his Cadillac. While Walker got into the back seat of the Cadillac, Brown stood on the driver’s side, pointed a handgun at the man, and ordered him to get inside the car. The man refused, so Brown climbed into the driver’s seat and started to drive away. At that point, Brown realized that there was an elderly woman sitting in the front passenger seat. Even so, Brown drove the Cadillac at a high speed out of the store’s parking lot; Hope followed him in the Mountaineer. Immediately thereafter, the elderly man ran into the store and called the police. Police officers arrived at the store a minute later, and, based upon descriptions by eyewitnesses to the carjacking, issued a “BOLO” (be on the lookout) alert for a maroon Cadillac Eldorado occupied by two black males and one elderly white female.

In the meantime, Walker told Brown to speed up and to drive toward the interstate because the police were “on [their] trail.” Walker warned the elderly woman to keep her mouth shut, poked her in the head with a handgun, asked her how much money she had in the bank, and warned her that, if she lied, he was going to kill her. The woman said she had $500, and Walker ordered her to write out a check for that amount. He also forced her to give him her ATM card, her PIN, and her jewelry, including a thick gold necklace and four rings. Then, Walker ordered Brown to exit the interstate and, seeing that they were being chased by police officers, told Brown to speed up. As Brown drove the Cadillac at speeds of approximately 80 mph, Walker climbed out of the back passenger seat window and, after being dragged for a moment, dropped onto the pavement, rolling several times. Brown then drove the Cadillac into a ditch, jumped from the car, threw his gloves and handgun into the bushes, and ran into nearby woods, where he was apprehended within two hours. The elderly woman identified Brown as the driver a short time after he was apprehended; the woman was unable to describe Walker to the police or at trial, however, other than to say that he was wearing gloves and was holding a handgun.

Walker was seriously injured when he hit the pavement, but he managed to limp to a nearby gas station. He approached a man near the gas pumps and asked him for a ride to the hospital, explaining that he had been hit by a car on the interstate. The man, who described Walker as “covered from head to toe with blood,” wearing no shoes or shirt, hut wearing a thick gold necklace, told him that he needed an ambulance and walked into the gas station to call for help. Walker then hobbled across the road toward a dumpster near an Exxon station. Police officers arrived less than a minute later, and they used a tracking dog to follow Walker’s scent; they found him lying in a bushy area beneath a tree about a mile from the area where he had jumped out of the Cadillac. Walker was barefoot and covered in blood. He was transported to a hospital and, when he arrived, he was wearing the ring that he had stolen from the Nissan salesperson in Tennessee.

The next morning, officers found the elderly woman’s necklace and rings hidden under a few inches of dirt near where Walker had been apprehended. Officers also found a glove, a right Duxbac-brand sandal, and one of the handguns along the road in the area where Walker had hit the pavement. In addition, Brown helped officers recover the handgun he had thrown when he ran from the Cadillac. Finally, officers found a glove and a left Duxbac sandal inside the Cadillac.

Meanwhile, in the period between the Perry carjacking and Walker’s arrest, Hope, who was driving the Mountaineer, became separated from Brown and Walker on the interstate. He eventually ditched the Mountaineer in a rural area, then stole a pickup truck from a gas company and drove to his aunt’s house, where he was arrested the next day. Hope led police officers to the abandoned Mountaineer. Inside the Mountaineer, officers found a prescription bottle belonging to Walker’s infant daughter and a key to a Nissan vehicle.

Walker and Hope were indicted in Houston County for armed robbery, hijacking a motor vehicle, kidnapping, aggravated assault, and theft by receiving stolen property. Although Brown was also charged with the crimes, he entered a negotiated guilty plea and agreed to testify at the joint trial of his co-defendants, Walker and Hope. In addition to Brown’s testimony, the State presented the testimony of numerous police officers who had participated in the investigation of the Worth County automobile theft, the Perry carjacking, and the apprehension of the co-defendants; the elderly victims of the Perry carjacking; two witnesses to that carjacking; the man approached by Walker after that carjacking and asked for a ride to the hospital, who identified Walker at trial; the Michigan car salesman who copied Walker’s driver’s license, allowed him to test drive the Mountaineer, and identified Walker at trial; the Michigan woman from whom the men carjacked the Explorer and her grandmother, an eyewitness; the Tennessee car salesman whom Walker and Brown had kidnapped during the test drive of the Pathfinder and who, at trial, identified both Walker and Brown, as well as the handgun and the ring Walker was wearing when he arrived at the hospital as the one Walker had stolen from him; and various family members of Hope and Brown, who testified that, after the three men returned from their out-of-state trip, they had unfamiliar vehicles, specifically, an Explorer, a Pathfinder, and a Mountaineer.

The State’s final witness was a police officer who had videotaped a custodial statement given by Hope shortly after his arrest. The State redacted the videotape to remove any direct references to Walker, but, before the State was able to play the entire videotape for the jury, Hope entered a negotiated guilty plea to the charges. The State then rested its case without playing the remainder of the videotape, and the trial court instructed the jury to disregard the videotape in its entirety. The jury ultimately found Walker guilty beyond a reasonable doubt of armed robbery, hijacking a motor vehicle, and kidnapping; the court declared a mistrial on the charge of aggravated assault after the jury was unable to reach a verdict on that count.

(a) In claiming that the trial court erred in denying his motion for a directed verdict of acquittal on all of the charges, Walker contends that the evidence presented was insufficient because the only evidence identifying him as the perpetrator of the charged crimes was the uncorroborated testimony of an unindicted co-conspirator, Brown. At trial, Walker’s defense was based upon an argument that the State presented no evidence to corroborate Brown’s testimony that he (Walker) participated in the Perry carjacking of the Cadillac and the kidnapping and armed robbery of the elderly woman. This argument lacks merit.

Although the testimony of a single witness is generally sufficient to establish a fact, in felony cases where the only evidence presented to prove that fact is the testimony of an accomplice, the testimony of the accomplice is not sufficient. OCGA § 24-4-8. The State may meet its burden of proving the fact, however, by presenting additional evidence that corroborates the accomplice’s testimony. Id. In such a case,

[t]he credibility of [corroborating] witnesses [is] for the jury to decide, as [is] the sufficiency of the corroborating evidence. The jury [does] not have to find that the corroborating evidence [is] itself sufficient to support the verdict, or that that evidence matche[s] the testimony of the accomplice in every detail. Slight evidence identifying [the defendant] as a participant in the criminal act [is] sufficient corroboration [of the accomplice’s testimony],

(Citations omitted.) Mitchell v. State, 279 Ga. 158, 159 (1) (611 SE2d 15) (2005). See also Swinney v. State, 217 Ga. App. 657, 658 (1) (458 SE2d 686) (1995) (“Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is all that is necessary to corroborate the testimony of an accomplice.”) (citation omitted).

In this case, as shown above, the State presented the testimony of numerous witnesses and other evidence that sufficiently corroborated Brown’s testimony about Walker’s participation in the indicted crimes. The State showed that a man was approached by Walker on the night of the carjacking and that, at that time, Walker was seriously injured, bloody and limping and was not wearing a shirt or shoes. Although Walker left before the man could get help for him, he was tracked by police bloodhounds and discovered near a buried stash of jewelry that had been stolen from the kidnapped elderly woman. Further, a sandal, a glove and a handgun were discovered on the road in the area where Brown testified that Walker jumped from the Cadillac and the elderly woman testified that the man in the back seat jumped from her car. A matching sandal and a glove were also discovered inside the Cadillac. In addition, as explained further in Division 4, infra, evidence of the three men’s multi-state crime spree in the preceding days showed that Walker had helped Hope and Brown plan and commit similar and/or interrelated crimes and that, at the time he was apprehended, Walker was wearing a ring that was stolen during the Tennessee carjacking, kidnapping and armed robbery.

Accordingly, we conclude that the State presented sufficient evidence to corroborate Brown’s testimony and for the jury to find beyond a reasonable doubt that Walker committed the crimes for which he was convicted.

(b) Walker also claims that the evidence that implicated him was purely circumstantial and that the State failed to present sufficient evidence to exclude the possibility that he was not the man who committed the charged crimes, but was, instead, an innocent man who had been hit by a car on the interstate and seriously injured.

“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 § 24-4-6.

In order to support a conviction, [however,] circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.

(Citations omitted; emphasis in original.) Eberhart v. State, 241 Ga. App. 164, 165 (1) (526 SE2d 361) (1999). Moreover, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” (Citation and punctuation omitted.) Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008).

In this case, as shown above, the State presented sufficient evidence for the jury to find that Walker’s alternate hypothesis of innocence was unreasonable under the circumstances. Accordingly, because the jury’s verdict is not insupportable as a matter of law, the trial court did not err in denying Walker’s motion for a directed verdict of acquittal. Eberhart v. State, 241 Ga. App. at 165 (1).

2. Walker contends that the trial court erred in failing to quash the indictment, arguing that the indictment was invalid because, allegedly, it was returned when the grand jury was not in session. The record shows, however, that, when the grand jury bailiff returned the indictment in open court during regular business hours on January 30, 1998, the grand jury’s term had not expired and the grand jury had not been discharged, but that, instead, the members of the grand jury had temporarily recessed and would meet again later in the term. Still, Walker argues that, because the grand jury had not been resummoned by court order and was temporarily absent at the time the bailiff presented it in open court, the indictment was invalid. We disagree.

While an indictment must be returned into open court[,] it is not ground for quashing an indictment that the indictment is returned by the grand jury bailiff rather than the grand jury itself in the absence of allegations that the bailiff making the return was not the duly qualified officer of the grand jury or that the indictment was tampered with. However, what the grand jurors could not legally do can not be done by the grand-jury bailiff. A grand jury after adjourning or recessing for the night, or for a stated time set by themselves, could return and deliver the indictment to the judge in open court; thus, the bailiff could do the same. After the grand jury is discharged by the court[,] it could do no further act as such body, however, and it follows that the bailiff could not appear to deliver indictments in open court as a substitute for the grand jury after that body had been formally dispersed or adjourned by the court so that it would take an order of court to reconvene it.

(Citations and punctuation omitted.) Dalton v. State, 100 Ga. App. 732, 732-733 (2) (112 SE2d 446) (1959). Further, in State v. Grace, 263 Ga. 220 (430 SE2d 583) (1993), the Supreme Court of Georgia held as follows:

A grand jury must be administered an oath, as set forth in OCGA § 15-12-67 (b) and, as that section clearly contemplates, charged generally regarding their duties. We find nothing in our state statutes or constitution which would require that the grand jury be resummoned by court order, resworn and recharged each time they reconvene during a term to conduct business. . . . [Gjrand jurors, like any sworn officials, elected or otherwise, are presumed to remember their oaths on return from any break in the performance of their duties. Accordingly, we hold that a grand jury properly summoned, sworn, and charged to serve during a particular term of the court, may recess and reconvene as it sees fit to conduct its business in the course of that term, and need not be resworn or recharged by the court during that term.

(Citation and footnotes omitted.) Id. at 221.

Thus, under the circumstances presented here, Walker has failed to show that the trial court erred in failing to quash the indictment. State v. Grace, 263 Ga. at 221; see Dalton v. State, 100 Ga. App. at 733 (2) (“Where the contrary does not affirmatively appear [in the record,] it is always to be presumed on appeal, to uphold the validity of the processes of the trial court, that that which was necessary to be done in order to retain jurisdiction of the subject matter has been done.”) (citations omitted).

3. Walker argues that the trial court erred in denying his motion to sever because evidence of a similar transaction that involved his co-defendant, but not him, was introduced at trial. According to Walker, because that similar transaction was “closely related” to the indicted offenses, it implicated him in the indicted offenses. Walker claims that severing the trial would have prevented this “contamination.”

The crimes to which Walker refers on appeal, however, were not similar transactions at all, but were, instead, the very crimes for which he was indicted and tried, i.e., the Perry carjacking of the Cadillac and the armed robbery and kidnapping of the elderly woman. Accordingly, this alleged error is without merit.

4. Walker contends that the trial court erred in admitting similar transaction evidence, arguing that he was never identified as the perpetrator of the similar transactions and that the similar transactions were insufficiently similar to the charges for which he was being tried. Pretermitting whether the separate crimes that Walker refers to were, in fact, admissible as similar transactions or were, instead, admissible as part of the res gestae of the Perry carjacking, we find no error.

In general, evidence of independent offenses committed by a defendant is irrelevant and inadmissible in a trial for a different crime. In some cases, however, evidence of similar crimes (or transactions) is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. Before evidence of prior crimes is admissible, the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

(Citations and punctuation omitted.) Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009). Before admitting similar transaction evidence, the trial court must hold a hearing where the State bears the burden of showing that the evidence of similar transactions is admissible under the three-prong test. Myers v. State, 256 Ga. App. 135, 141-142 (3) (567 SE2d 742) (2002); Uniform Superior Court Rule 31.3 (B).

When reviewing the trial court’s factual findings regarding whether the State satisfied the three-prong test, we apply the clearly erroneous standard. Further, the decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

(Citations omitted.) Flowers v. State, 269 Ga. App. 443, 444 (1) (604 SE2d 285) (2004).

(a) Walker’s claim that he was not identified as the actual perpetrator in each of the similar transactions is not supported by the evidence presented, which showed that Walker was either the actual perpetrator or a party to the crimes.

Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. ... A person is concerned in the commission of a crime only if he: (1) [djirectly commits the crime; (2) [¿Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) [intentionally aids or abets in the commission of the crime; or (4) [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

OCGA § 16-2-20. If the defendant is not the actual perpetrator of the crime, his mere presence at the scene of the crime is not sufficient evidence to establish that he was a party to the crime. Pruitt v. State, 282 Ga. 30, 32 (1) (644 SE2d 837) (2007). Instead, the State must show that the defendant shared a common criminal intent with the actual perpetrator, a fact which the jury may infer from evidence of the defendant’s conduct before, during, and after the crimes. Id.

As shown above, the evidence presented showed that Walker was involved in the planning and/or execution of each of the similar transactions, even if he was not the actual perpetrator of the crime. From the moment Walker, Hope and Brown decided to travel to Michigan to pick up Walker’s settlement check, the three men acted in concert to accomplish a quick succession of common criminal pursuits. The evidence also showed that, after each of the crimes, Walker shared in the proceeds from the crimes by using the vehicles, money, and credit cards obtained for his personal benefit, such as transportation, food and lodging for him, his girlfriend and their infant. He also benefitted from the proceeds that were used to sustain and perpetuate the common criminal enterprise he shared with Hope and Brown, an enterprise that used the proceeds to buy the gas and handguns needed for the commission of subsequent crimes, from which he and his co-conspirators further benefitted. Given that Walker was identified as an active participant in individual crimes that were part of this continuing criminal enterprise, not just by Brown but also by other witnesses, and that Walker’s possession of the ring stolen from the Tennessee car salesman further demonstrated his involvement in the crime spree, the jury was authorized to find that he committed the independent offenses or acts as either an actual perpetrator or as a party to the crimes.

(b) Walker also contends that some of the similar transactions were insufficiently similar to the indicted crimes to be admissible as similar transactions.

The law, however, does not require that a similar transaction crime be identical to the crime charged. There can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. The State may only have the burden of showing a logical connection between crimes which are essentially dissimilar.

Decided June 22, 2011.

David G. Daniell, for appellant.

T. Rabb Wilkerson III, District Attorney, Venita S. McCoy, Assistant District Attorney, for appellee.

(Citation, punctuation and footnote omitted; emphasis in original.) Sweeder v. State, 246 Ga. App. 557, 559-560 (2) (541 SE2d 414) (2000). See also Lampkin v. State, 277 Ga. App. 237, 239 (626 SE2d 199) (2006) (In order for a similar transaction to be admissible, “the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.”) (punctuation and footnote omitted; emphasis in original).

As shown above, the evidence presented in this case shows that some of the offenses committed during the co-conspirators’ four-day, multi-state crime spree were, in fact, very similar to the indicted crimes and, therefore, relevant and admissible to demonstrate the co-conspirators’ modus operandi, identity, bent of mind, and motive. See Williams v. State, 261 Ga. 640, 642 (2) (b), n. 2 (409 SE2d 649) (1991) (listing some of the proper purposes for which an independent offense may be admitted). Even if some of the separate offenses were insufficiently similar to the indicted offenses, though, the evidence showed that each of the offenses was an essential part of a continuing criminal enterprise in which Walker, Hope and Brown acted in concert and with a common purpose. The evidence also showed that these offenses were mutually dependent in that the men used the proceeds from the crimes to strengthen and perpetuate the enterprise. From this perspective, therefore, it is not unreasonable to conclude that the similar transactions were logically connected to, and, in fact, provided the motive for, the Perry carjacking, which, if successful, would have yielded proceeds that the men could have used to disguise the previously stolen vehicles and, thus, to hide their involvement in those thefts, as well as the kidnappings and armed robberies that accompanied some of them.

Accordingly, the trial court did not err in finding that the similar transaction evidence was relevant and admissible in this case. Williams v. State, 261 Ga. at 642 (2) (b); Sweeder v. State, 246 Ga. App. at 559-560 (2).

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       See Division 4, infra, regarding the admissibility of similar transaction evidence in this case.

       Although some witnesses told police officers that they thought the Mountaineer was a Ford Explorer, the State established at trial that the two vehicles are very similar in appearance and could have been mistaken for one another.

       The trial court also granted Walker’s motion for a directed verdict of acquittal on the charge of theft by receiving stolen property.

       Notably, the State argued that the offenses were not really similar transactions, but were part of the same criminal enterprise, crime wave, or sequence of events immediately preceding the Perry carjacking and, thus, were admissible as res gestae evidence.

       The court charged the jury on parties to a crime.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A0123.
    McLEOD v. CLEMENTS.
    (712 SE2d 627)
   Dillard, Judge.

R. Jerry McLeod, appearing pro se, appeals from the trial court’s order granting Stan Clements’s motion for declaratory judgment and dismissing McLeod’s two (and nearly identical) actions against Clements with prejudice. For the reasons set forth infra, we reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

This ongoing dispute, now making its fourth appearance before this Court, concerns McLeod’s claim of entitlement to water supplied by a well on Clements’s property pursuant to an agreement between previous owners of their respective properties. Specifically, McLeod filed a complaint against Clements (“First Lawsuit”), alleging that Clements was required to supply him with water from a well located on Clements’s property pursuant to a 1971 water agreement executed prior to Clements’s ownership of that property. Clements answered this complaint and filed a counterclaim requesting a declaratory judgment as to his obligation under the 1971 agreement. That same day, Clements filed a notice of hearing, reflecting that the declaratory-judgment hearing was scheduled for July 21, 2008. On July 18, 2008, McLeod allegedly dismissed the First Lawsuit, and on July 21, 2008 (the day of the declaratory-judgment hearing), filed another, essentially identical complaint (“Second Lawsuit”). McLeod apparently was not present for the hearing, after which, on August 5, 2008, the trial court entered an order and judgment finding that the 1971 water-service agreement did not bind Clements. On August 19 and September 2, 2008, McLeod filed motions to set aside this judgment, but on September 4, 2008, before the trial court could rule on those motions, he filed a notice of appeal of the August 5, 2008 order.

While that appeal was pending, Clements moved to consolidate the cases, to strike McLeod’s motion to set aside, and to recover attorney fees. In its November 11, 2008 order, the trial court did not rule on McLeod’s motions related to the First Lawsuit, because McLeod filed a notice of appeal before obtaining a ruling on those matters. The trial court did, however, dismiss the Second Lawsuit, finding that “the issues presented in [the Second Lawsuit] have been formerly adjudicated in [the First Lawsuit],” and also granted Clements attorney fees. McLeod subsequently filed a second notice of appeal related to the dismissal of the Second Lawsuit.

On June 25, 2009, in McLeod I, this Court reversed the trial court’s grant of a declaratory judgment to Clements in the First Lawsuit, after finding that the trial court failed to provide the statutorily required 20-day notice of hearing per OCGA § 9-4-5. Nevertheless, while his appeal of the dismissal of the Second Lawsuit was still pending, McLeod filed yet another civil action on July 21, 2009 (“Third Lawsuit”), which, again, was essentially identical to the two previously filed actions, but also sought a temporary restraining order and requested a hearing on the matter for August 10, 2009. A few days later, Clements filed a notice of hearing, requesting that a hearing be set for August 17, 2009, for the purpose of having the trial court, once again, consider his motion for declaratory judgment.

On August 10, 2009, both parties appeared in court and were informed that the matter would be continued until August 17, 2009, so that McLeod’s motion for a TRO and Clements’s motion for declaratory judgment could be heard simultaneously. Despite having notice of the August 17, 2009 hearing, McLeod once again failed to appear. Consequently, the trial court proceeded with the hearing in McLeod’s absence, and Clements presented his evidence in the matter. Following the hearing, the trial court entered an order and judgment on September 1, 2009, declaring that Clements had no contractual obligation to supply well water to McLeod and dismissing with prejudice all three of McLeod’s related lawsuits. Additionally, the trial court, once again, awarded attorney fees in favor of Clements.

On September 21, 2009, this Court, in McLeod II, held that

because the hearing in [the First Lawsuit] purporting to litigate the issues raised in [the Second Lawsuit] was a nullity [based on our ruling in McLeod 7], there was no legitimate litigation of the issues in the first action, and thus, the claims raised in the second action were not barred by res judicata.

Accordingly, we vacated the trial court’s order dismissing the complaint in the Second Lawsuit and remanded the case for further proceedings. Shortly thereafter, on September 29, 2009, McLeod filed a notice of appeal from the trial court’s September 1, 2009 judgment in the Third Lawsuit. This appeal follows.

1. McLeod contends that the trial court erred in dismissing his three lawsuits against Clements, arguing that it lacked jurisdiction over those complaints in light of the fact that his appeal of the trial court’s November 11, 2008 order (McLeod II) was still pending when the trial court issued its September 1, 2009 order. And with regard to the First and Second Lawsuits, we agree.

It is well established that “a trial court, upon the filing of a notice of appeal, loses jurisdiction to modify or enforce a judgment which is the subject of the appeal during the period of super-sedeas.” Thus, McLeod’s December 10, 2008 notice of appeal of the trial court’s November 11, 2008 order divested the trial court of jurisdiction to supplement, amend, alter, or modify that order, which purported to dismiss McLeod’s complaint in the Second Lawsuit (08-CV-331) and assumed the correctness of its previous dismissal of the First Lawsuit (08-CV-287). Accordingly, we reverse that portion of the trial court’s September 1, 2009 order dismissing or purporting to dismiss McLeod’s First and Second Lawsuits.

2. We also agree that the trial court erred in dismissing McLeod’s Third Lawsuit (09-CV-348) with prejudice, albeit for reasons different than those enumerated by McLeod.

OCGA § 9-2-5 (a) provides, in relevant part, that “[n]o plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party,” and that “[i]f two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” Additionally, under OCGA § 9-2-44 (a), “the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement.” These statutes “are closely related in effect and are to be considered and applied together.” Indeed, “[t]he general rule under OCGA §§ 9-2-5 (a) and 9-2-44 (a) is that when there are two lawsuits involving the same cause of action and the same parties that were filed at different times but that both remain pending in Georgia courts, the later-filed suit must be dismissed.” In fact, “[w]henever a pending suit for the same cause of action has been pled, abatement is required as a matter of law.” And “[a]n action on appeal is still considered to be pending until such time as the judgment of the trial court is disposed of.” Nevertheless,

Decided June 22, 2011.

R. Jerry McLeod, pro se.

a plea in abatement is one which, without disputing the justice of the plaintiffs claim, objects to the place, mode, or time of asserting it. It is interposed to stop plaintiffs action, leaving it open to plaintiff, however, to renew the suit in another place or form, or at another time. It should not assume to answer the action upon its merits, or deny the existence of the particular cause of action upon which the plaintiff relies.

Here, McLeod filed the Third Lawsuit against the same party (Clements) that was nearly identical to his two previous lawsuits, despite the fact that those initial actions are still pending. Thus, while the trial court was authorized to dismiss McLeod’s most recent complaint pursuant to OCGA §§ 9-2-5 (a) and 9-2-44 (a), it was not at liberty to do so with prejudice. Accordingly, we also reverse that portion of the trial court’s September 1, 2009 order dismissing McLeod’s complaint in the Third Lawsuit, and we remand the case to the trial court for further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

Smith, P. J., and Mikell, J., concur.

Stephen R. Sullivan, for appellee.

        See McLeod v. Clements, 298 Ga. App. 553 (680 SE2d 602) (2009) (McLeod i); McLeod v. Clements, 300 Ga. App. 133 (684 SE2d 671) (2009) (McLeod II); McLeod v. Clements, 306 Ga. App. 355 (702 SE2d 638) (2010) (McLeod III).

        McLeod I, 298 Ga. App. at 553.

        Id. at 553.

        Id. at 554.

        McLeod II, 300 Ga. App. at 134.

        id.

         McLeod I, 298 Ga. App. at 554 (1).

        McLeod III, 306 Ga. App. at 356.

       The transcript of the hearing was not included with the record in this appeal.

        McLeod II, 300 Ga. App. at 134.

        Id. at 134-35.

       On the same day that McLeod filed the notice of appeal, he also filed a motion with the trial court to set aside the September 1, 2009 judgment. Then, on October 23, 2009, McLeod filed another motion for the trial court to enter a TRO and require Clements to supply him with well water. On November 5, 2009, the trial court entered an order declining to consider McLeod’s two motions on the ground that McLeod’s September 29, 2009 notice of appeal divested the trial court of jurisdiction. McLeod again appealed, and in McLeod III, we affirmed the trial court’s order. See McLeod III, 306 Ga. App. at 357 (2).

        Davis v. Harpagon Co., LLC, 281 Ga. 250, 253 (8) (637 SE2d 1) (2006); see OCGA § 5-6-46 (a); McLeod III, 306 Ga. App. at 357 (2); Fortson v. Hotard, 299 Ga. App. 800, 804 (3) (684 SE2d 18) (2009).

        Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249) (1995).

        Sadi Holdings, LLC v. Lib Prop., Ltd., 293 Ga. App. 23, 24 (1) (666 SE2d 446) (2008) (citation and punctuation omitted).

        Id. (citation, punctuation and footnote omitted).

        Id. at 24-25 (1) (citation omitted).

        Id. at 26 (1) (citation and footnote omitted); see also Ransom v. Holman, 305 Ga. App. 533, 535 (699 SE2d 849) (2010); Stowers v. Guthrie, 196 Ga. App. 86, 86-87 (395 SE2d 371) (1990).


author: Barnes, Presiding Judge.

text:
    A11A0276.
    WESBY v. THE STATE.
    (712 SE2d 631)
   Barnes, Presiding Judge.

A Burke County jury found Deandre Wesby guilty of burglary, aggravated assault, and possession of a firearm during the commission of a crime. He now appeals the denial of his motion for new trial, contending that the evidence was insufficient. Upon our review, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citation omitted.) Millender v. State, 286 Ga. App. 331 (1) (648 SE2d 777) (2007).

So viewed, the evidence shows that the victim was watching television when she heard a noise in her back yard. She looked outside and saw a young man standing near her toolshed. The victim yelled at the intruder to leave, and he appeared to follow her order, disappearing behind the shed to a wooded area. Soon after the victim resumed watching television, she heard a noise at her back door and upon investigation, discovered a man standing between the storm door and the back door. He had a shotgun propped on the ground near him as he attempted to enter the house. The victim quickly closed the door, but as she did so a shotgun blast burst through the door and she was shot in the abdomen. The victim called her husband, who directed her to call 911, after which police and paramedics responded and she was transported to the hospital. The victim could not identify her attacker but said that he was a teenaged African-American male. She identified the person she saw at the toolshed as a teenaged African-American male also.

A short while later, an officer responding to the call noticed two teenaged African-American males walking within the vicinity of the victim’s home. One of the teenagers appeared to be carrying a cooler-like object. The officer identified the man carrying the object as Wesby. At the time, the officer was unaware that one of the items taken from the victim’s toolshed was a cooler with a built-in radio. A search dog picked up a scent at the victim’s house and led police to the nearby woods where they discovered sneaker prints, copper tubing, a bucket, and an empty box with the picture of a cooler-type device with a built-in radio. The dog led police through the woods to a house where Wesby lived, but then lost the scent. The first officer recalled seeing Wesby carrying an object that looked like the picture on the discarded box, and police thereafter questioned, then later arrested, Wesby. Wesby denied being involved in the incident, and told police that the cooler-radio he was carrying belonged to him, and that he had purchased it at Big Lots “about a year” earlier. The victim’s husband identified the radio as an item missing from his shed. In a second statement to police, Wesby said that he found the radio in the woods, and named two men he saw run past his house with guns on the day of the incident.

Police searched Wesby’s home, and recovered shotgun shells that matched the bird shot pellets removed from the victim, and also a size 9Va Adidas sneaker with treadmarks similar to ones of the cast police made of the footprint found at the scene of the crime. The shoes Wesby had on when he was questioned did not have similar treadmarks, nor were they the same size.

At trial, Wesby testified that he found the radio in the woods, and as he was heading back to his house he heard two gunshots. Shortly after returning home, he saw two men run through his yard. According to Wesby, one man had a shotgun and the other had a pistol. He testified that he yelled at the men and asked why they were in his yard, and one of the men placed a finger to his lips, indicating that Wesby should be quiet. Wesby further testified that he knew the men and had given police their identities.

In his sole enumeration of error, Wesby contends that the circumstantial evidence was insufficient to sustain his conviction, but it merely placed him in the vicinity of the crime in possession of one of the stolen objects. See OCGA § 24-4-6. However, the evidence presented by the State placed Wesby near the scene of the crime in possession of a item stolen from the shed, footprints at the crime scene matched a shoe found in Wesby’s house, police dogs tracked a scent originating from the victim’s house to the discarded radio box and ending at Wesby’s house, Wesby was not truthful during his first interview with police, and he apparently changed his original statement more than one time.

Decided June 22, 2011.

Joshua B. Smith, for appellant.

It is the jury’s role to resolve conflicts in the evidence and determine the credibility of witnesses. . . . Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury 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.) Allen v. State, 275 Ga. 64, 66 (1) (561 SE2d 397) (2002). Wesby’s alternative theory regarding the crimes was “presented to and rejected by the jury.” O’Donnell v. State, 258 Ga. 782, 783 (1) (374 SE2d 729) (1989). In this case, the jury was not required to believe Wesby’s version of events, but could have found, instead, that he was involved in the robbery and assault of the victim. See Austin v. State, 275 Ga. 346 (1) (566 SE2d 673) (2002).

Regarding the possession of a firearm during the commission of a crime conviction, the presence of a weapon

may be established by circumstantial evidence, and a conviction . . . may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred. [Cit.]

(Emphasis in original.) Prins v. State, 246 Ga. App. 585, 586 (1) (539 SE2d 236) (2000), disapproved on other grounds, Miller v. State, 285 Ga. 285, 287, n. 1 (676 SE2d 173) (2009).

Accordingly, after reviewing the evidence in the light most favorable to the verdict, we find that the evidence was sufficient to authorize a rational trier of fact to find that all reasonable hypotheses save Wesby’s guilt had been excluded and to find him guilty beyond a reasonable doubt.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


author: Adams, Judge.

text:
    A11A0505.
    LOWE v. THE STATE.
    (712 SE2d 633)
   Adams, Judge.

Charles Edward Lowe, Jr., was convicted by a jury of trafficking in cocaine. He appeals following the denial of his motion for new trial, contending that the trial court erred by admitting certain evidence at trial and that his trial counsel was ineffective.

On November 9, 2006, officers with the Carroll County Crime Suppression Unit went to 2197 Shady Grove Road in Carroll County to execute a search warrant. The officers knocked on the door and entered the residence after Lowe opened the door; they then immediately proceeded to conduct a pat-down search of Lowe for officer safety, and during that search, $1,500 in United States currency in various denominations was discovered. Reshad Bailey, who was also in the residence and had an outstanding warrant against him, was placed under arrest. The search of the premises continued, and officers discovered what was subsequently identified as a large quantity of cocaine that appeared to be packaged for distribution in a brown paper bag in the kitchen area. In addition to the suspected cocaine, and $1,500 found on Lowe’s person, officers also found a police scanner, a handgun, and documents with Lowe’s name on them in the residence.

Both Lowe and Bailey were transported to and booked at the Carroll County jail. While at the jail, Lowe made numerous telephone calls and his conversations were recorded. On appeal, Lowe contends that the trial court erred by allowing some of these recordings to be played at trial, and that his trial counsel was ineffective for failing to object to certain testimony and for failing to file a motion to suppress the money seized from his person. Having reviewed these contentions, we find that Lowe is not entitled to a new trial for any of the reasons asserted, and affirm his conviction accordingly.

1. Lowe first contends that the trial court erred by admitting the recordings of the telephone calls he made from the jail because the State failed to lay a proper foundation prior to the admission of this evidence.

The State may lay a proper foundation for admission of a recorded telephone conversation of an inmate by showing that the recording device was working properly and that the recording was accurately made; the manner in which it was preserved; that no alterations have been made to the recording; the identity of the speakers; and that the inmate was aware that the conversation was subject to being recorded. Davis v. State, 279 Ga. 786, 788 (5) (621 SE2d 446) (2005). See also Page v. State, 249 Ga. 648, 650 (2) (b) (292 SE2d 850) (1982).

The transcript shows that the recordings were admitted based on the testimony of Lashirey Bryant, who was charged along with Lowe and Bailey but prosecuted separately, and Investigator Telisha Gibson, an investigator with the Crime Suppression Unit of the Carroll County Sheriffs Office who was the lead investigator in this case.

Bryant testified first and stated that she had a telephone conversation with Lowe while he was incarcerated at the jail, and that she had listened to and recognized a recording of that conversation before trial. Following Lowe’s trial counsel’s strenuous objection to the introduction of the recording, the trial court allowed the recording to be played for the jury, subject to there being a disclaimer on the recording advising that the call was subject to being monitored.

After a portion of the tape was played, Bryant resumed testifying and testified that the recording that was played for the jury was the same recording that she had listened to before trial that morning. The recording was then resumed. During the conversation, Lowe asked Bryant if she was still selling drugs, and instructed her to move the location of the drug transactions so she would not get in trouble.

Following this testimony, Investigator Gibson testified that the Carroll County jail is run by the Carroll County Sheriffs Office, and that as an employee of that office she was familiar with many of the jailhouse procedures. Gibson described the typical booking procedure for inmates coming into the jail, and testified specifically that each inmate is assigned a unique number by the computer when he is booked in for the first time, and that number is used by inmates to make calls outside the jail.

Gibson further testified that the calls made from the jail are monitored, recorded and stored by a computer system, and that she had been trained to go into the system and search for calls made by the inmates. She also testified that once it is determined that an inmate has been calling a particular number, the computer database allows a search to be made using that “target” number. She testified that they can also search for inmate calls coming from a particular “pod” where the inmates are housed because each phone has a specific identification “mark” in the computer system. Further, she testified that they can search for calls by date or date range.

Using these techniques, Gibson testified that she identified calls being made from the pod where Lowe was housed that used his identification number. Those calls included a call made to a certain number, and Bryant told Gibson the number belonged to her and provided Gibson with another number that she said would allow “three way” calls from Lowe to her. Gibson listened to the call Lowe made to Bryant and other calls made by Lowe as well, and some of those recordings were also played for the jury.

Citing Davis, 279 Ga. at 788 (5), Lowe argues on appeal that this evidence was improperly admitted because the custodian of the records did not testify at trial and thus the State failed to lay the proper foundation for admission of these recordings. However, Davis did not mandate that only someone with the title of “custodian of records” can establish the authenticity and correctness of recordings such as those at issue in this case. Considering the circumstances here — Gibson’s knowledge of the procedures at the jail, including how inmates can make calls from the jail and how these calls are monitored and stored by the computer, her training and experience in searching the computer for the inmates’ outside calls, her specific knowledge of this case, including listening to the recordings and identifying the numbers called as well as the speakers, and Bryant’s testimony identifying Lowe as the other voice on the recording, we are unpersuaded by Lowe’s arguments that the State failed to lay a proper foundation so as to authorize admission of the recordings. This enumeration is thus without merit.

2. Lowe also contends that his trial counsel was ineffective.

(a) Lowe first contends that his trial counsel was ineffective because he failed to object to portions of Gibson’s testimony. Specifically, Lowe contends that trial counsel should have objected when Gibson was allowed to “interpret” the recordings of the inmate phone calls by explaining the meaning of certain words and phrases used during the calls. Lowe argues this testimony was speculative, constituted improper opinion evidence and improperly invaded the province of the jury. In support of this argument, Lowe points to the fact that Gibson was not qualified as an expert in street slang or drug terminology, and thus, he posits, was testifying as a lay witness about opinions the jurors could reach for themselves.

We disagree with these contentions. Gibson’s qualifications as a narcotics investigator were established by her testimony at trial, and she made it clear that she was explaining the meaning of certain slang terms used during the conversations based on her experience with drug investigations. Moreover, we disagree with Lowe’s contention that these terms were not outside the ken of the average juror. Expressions such as “work” (meaning cocaine) or sending someone on a “hump bug” (wild goose chase) are clearly not part of the everyday vernacular, or even part of “everyday” slang. In our view, it was permissible to have this unique terminology explained to the jury.

Moreover, some of the recorded conversations made sense only if placed in context, or if the individuals discussed during the conversation were identified. For example, during one conversation the drug investigation that led to the arrests here is being discussed and reference is made to Gibson herself as well as the vehicle she drives. Clearly, the jury would have no way of understanding those references without Gibson’s explanation.

(b) Lowe next contends that his counsel should have objected and moved for a mistrial when the prosecuting attorney elicited inadmissible character evidence. Specifically, Lowe contends his trial counsel should have objected when, in response to the prosecutor’s question, “what is this about the weed charges he is mentioning” during the conversation, Gibson replied that Lowe had been arrested twice for “weed” charges just prior to the execution of the search warrant in this case. Lowe also contends that his trial counsel should have objected when Gibson testified that some of the numbers in his phone were “consistent with people that had been mentioned as being associated with a murder.” But even assuming that trial counsel performed deficiently by failing to object to this testimony, Lowe has failed to show a reasonable probability that the outcome of his trial would have been different. E.g., Patterson v. State, 285 Ga. 597, 600 (5) (679 SE2d 716) (2009); Swanson v. State, 282 Ga. 39, 44 (6) (644 SE2d 845) (2007); Coleman v. State, 271 Ga. 800, 804 (6) (523 SE2d 852) (1999). The evidence of the crime charged was overwhelming, including Bryant’s testimony that Lowe paid the rent and lived in the house where the contraband was found, her testimony concerning Lowe’s drug dealing activities, the recordings of the telephone conversations that were played for the jury in which drug dealing was discussed, and the physical evidence secured during the search of the premises. This argument thus presents no basis for reversal.

(c) Lowe also contends that his trial counsel was ineffective because counsel did not file a motion to suppress the approximately $1,500 discovered when he was searched, arguing that the search was not authorized because he was not named on the warrant and the State failed to show the search was justified by the officers’ concerns for their safety. Again, however, Lowe cannot show the required prejudice because even if this evidence had been excluded, the remaining evidence adduced at trial was overwhelming. Moreover, even when combined with the other assumed instances of ineffectiveness, we find that Lowe has failed to establish that there is a reasonable probability that, but for these alleged deficiencies, the outcome of his trial would have been different. Patterson, 285 Ga. at 602 (5) (c). It follows that Lowe is not entitled to a new trial on the basis that his trial counsel was ineffective.

Decided June 22, 2011.

Drummond & Swindle, Jason W. Swindle, for appellant.

Peter J. Skandalakis, District Attorney, Vincent J. Faucette, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       We note that we often refer to street slang in narcotics cases, and that we routinely include an interpretation of those terms, often based on the testimony of a law enforcement official. E.g., Durham v. State, 309 Ga. App. 444 (710 SE2d 644) (2011); Williamson v. State, 300 Ga. App. 538, 542 (685 SE2d 784) (2009); Collins v. State, 297 Ga. App. 364, 365 (677 SE2d 407) (2009); Ballard v. State, 268 Ga. App. 55, 56 (601 SE2d 434) (2004).


author: Smith, Presiding Judge.

text:
    A11A0577.
    SKIPPER v. THE STATE.
    (712 SE2d 637)
   Smith, Presiding Judge.

Jerry Lee Skipper pled guilty to armed robbery, attempted armed robbery, kidnapping, theft by taking, and three counts of aggravated assault. Following the denial of his amended motion for an out-of-time appeal and amended out-of-time motion to withdraw his guilty plea, Skipper appeals, citing several claims of error. Having reviewed these claims, we find no error and affirm.

1. Skipper contends that the trial court erred in finding that he was informed of his right not to incriminate himself and in finding that he entered his guilty plea knowingly, intelligently, and voluntarily. He is in essence seeking to withdraw his plea on these grounds. But as explained in the trial court’s order, the court is without jurisdiction to allow the withdrawal of a guilty plea after the expiration of the term of court in which the defendant was sentenced. Orr v. State, 276 Ga. 91, 93 (2) (575 SE2d 444) (2003). The only means now available for Skipper to challenge his guilty plea is through a petition for writ of habeas corpus. McGruder v. State, 307 Ga. App. 379, 380 (2) (705 SE2d 175) (2010).

2. Skipper contends that the trial court erred in accepting his guilty plea during the pendency of his federal habeas corpus claim. During the plea hearing, Skipper’s counsel stated: “[Skipper] also filed, as the Court’s aware, a habeas corpus action with the federal court. The habeas corpus action has been stayed by the Magistrate Judge up there as not being final on the State level yet.” The trial court’s order states: “The [c]ourt is unaware of what claims [Skipper] alleged in his pro se federal habeas corpus claim. The allegations set out in such federal petition are not part of the record before this [c]ourt.”

Decided June 22, 2011.

Crawford & Boyle, Eric C. Crawford, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

In light of trial counsel’s statement that the federal habeas action was stayed pending the outcome of the state proceeding, and in the absence of a copy of the federal habeas petition in the record, cf. Owen v. Watts, 296 Ga. App. 449, 451, n. 6 (674 SE2d 665) (2009), Skipper has failed to show error.

3. Skipper contends that the trial court erred in denying the ineffective assistance of counsel claim reused in his motion for an out-of-time appeal. Skipper has the burden of showing that he is entitled to an out-of-time appeal. He has “to show that he actually had a right to file a timely direct appeed which was frustrated by the ineffective assistance of his counsel.” (Citation emd punctuation omitted; emphasis in origined.) Barnes v. State, 274 Ga. 783 (559 SE2d 446) (2002). But Skipper’s ineffectiveness claims concern only the actions of plea counsel prior to and during his plea. The trial court therefore correctly denied the amended motion for an out-of-time appeal, and Skipper’s only available remedy for his ineffectiveness claim is habeas corpus. See Barlow v. State, 282 Ga. 232, 233-234 (647 SE2d 46) (2007).

Judgment affirmed.

Mikell and Dillard, JJ., concur.


author:
Andrews, Judge.
      McFADDEN, Judge,

text:
    A11A0660.
    J & D TRUCKING et al. v. MARTIN.
    (712 SE2d 863)
   Andrews, Judge.

At issue in this workers’ compensation appeal is whether attorney fees were properly assessed against the employer/insurer pursuant to OCGA § 34-9-108. After the Appellate Division reversed the administrative law judge’s (ALJ) assessment of attorney fees, and the Superior Court reversed the Appellate Division, the employer, J & D Trucking, and its workers’ compensation insurer, American Interstate Insurance Company, appealed. For the following reasons, we vacate the judgment of the Superior Court and remand.

Jimmy Martin was injured while working as the sole proprietor of J & D Trucking. J & D and American Interstate (the employer/insurer), agreed that Martin incurred a compensable injury, accepted the claim as “medical only,” and paid for medical treatment while Martin continued to work. The employer/insurer agreed that, after Martin underwent surgery for the injury, he was disabled and unable to work as a result of the injury from May 26, 2009 to July 13, 2009. Without filing a notice to controvert pursuant to OCGA § 34-9-221 (d), or paying any income benefits to Martin during his disability, the employer/insurer requested a hearing at which it contended that, because Martin had failed to prove he received any wages from J & D, there was no basis under OCGA § 34-9-260 for the calculation of average weekly wages and payment of temporary total disability income benefits pursuant to OCGA § 34-9-261. Martin countered at the hearing that he proved his average weekly wages; that he was entitled to income benefits; and that he was also entitled to an assessment of attorney fees against the employer/insurer pursuant to OCGA § 34-9-108 (b) (1) or (2) for defending the income benefits issue without reasonable grounds, or for failing without reasonable grounds to comply with OCGA § 34-9-221 governing payment of income benefits.

Under OCGA § 34-9-261, “[w]hile the disability to work resulting from an injury is temporarily total, the employer shall pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the employee’s average weekly wage but not more than $500.00 per week. ...” The employee’s average weekly wage is calculated pursuant to methods set forth in OCGA § 34-9-260. To calculate income benefits payable to Martin, the ALJ used the method set forth in OCGA § 34-9-260 (1), which provides that, where the employee has worked

in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks.

OCGA § 34-9-260 (1). The ALJ found that, during the 13 weeks prior to Martin’s injury, his sole proprietorship, J & D, produced an average gross income of $8,458.28 per week, and an average net income of $1,541.32 per week after deduction of business expenses. The ALJ further found that Martin’s practice in operating his sole proprietorship was to deposit all of the gross income into his only checking account which he then used to pay business and personal expenses. The employer/insurer contended that, despite evidence of the income deposited into Martin’s checking account, Martin issued no checks to himself for wages and therefore failed to prove that he received any wages from his business. The ALJ found that to accept this argument “would result in an absurdity” and “would require that [Martin] write himself periodic checks from his only checking account for ‘wages’ or ‘salary’ and then to deposit those checks back into the same checking account and use them to pay his business and personal expenses.” Accordingly, the ALJ rejected the employer/ insurer’s argument that, because Martin’s sole proprietorship made no payments to Martin specifically designated as wages or salary, he failed to carry the burden of proving his wages for the purpose of calculating benefits under OCGA § 34-9-260. Based on the evidence, the ALJ found that Martin proved by a preponderance of the evidence that he had an average weekly wage under OCGA § 34-9-260 sufficient to entitle him to disability income benefits pursuant to OCGA § 34-9-261 of $500 per week for the agreed period of disability. Because the ALJ also found under OCGA § 34-9-108 (b) (2) that the employer/insurer failed without reasonable grounds to comply with the provisions of OCGA § 34-9-221 requiring timely payment of income benefits or filing of a notice to controvert, the ALJ exercised his discretion to assess attorney fees against the employer/insurer and assessed fees in the amount of $12,690.

The employer/insurer appealed to the Appellate Division of the State Board of Workers’ Compensation claiming that the ALJ erred: (1) by finding that Martin proved his average weekly wage; and (2) by assessing attorney fees on the basis that the employer/insurer failed to comply with OCGA § 34-9-221 without reasonable grounds. Under OCGA § 34-9-103 (a),

the appellate division shall review the evidence and shall then make an award with findings of fact and conclusions of law. . . . The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.

The Appellate Division found that the ALJ correctly ruled that Martin met the burden of proving his average weekly wage and accepted the ALJ’s findings of fact with respect to this issue. But based upon a review of the record, the Appellate Division found that the ALJ had no discretion to assess attorney fees because “we find the employer/insurer has not violated any provision of OCGA § 34-9-221 without reasonable grounds, and this claim has been defended reasonably as to determining the employee’s correct average weekly wage and what amount, if any, [of] temporary total disability income benefits were due.” As to this issue, the Appellate Division found that “the preponderance of competent and credible evidence in the record does not support” the ALJ’s findings of fact in support of the conclusion that the employer/insurer failed without reasonable grounds to comply with the provisions of OCGA § 34-9-221. Martin appealed to the Superior Court of Grady County, which reversed the Appellate Division and reinstated the assessed attorney fees.

“[I]f after assessing the evidence of record, the appellate division concludes that the award does not meet the [evidentiary standards of OCGA § 34-9-103 (a)], the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.” Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997). Where the Appellate Division rejects the ALJ’s findings of fact as not supported by the preponderance of competent and credible evidence in the record and substitutes its own findings of fact, those findings “cannot be disturbed as long as there is any evidence to support it because neither the superior court nor the appellate court has the power to find facts.” (Citations omitted.) Hallisey v. Fort Howard Paper Co., 268 Ga. 57, 58-59 (484 SE2d 653) (1997). After rejecting the ALJ’s findings of fact, however, the Appellate Division failed to make any substituted findings of fact. Accordingly, it is not possible for the Superior Court or this Court to review whether any evidence supports the Appellate Division’s conclusion that the ALJ had no discretion to assess attorney fees because the employer/insurer did not violate OCGA § 34-9-221 without reasonable grounds.

On this record, we vacate the judgment of the Superior Court reversing the Appellate Division and remand the case to the Superior Court with directions that the case be remanded to the Appellate Division for reconsideration in accordance with this opinion.

Judgment vacated and case remanded.

Smith, P. J., Barnes, P. J., Phipps, P. J., Mikell and Dillard, JJ., concur. McFadden, J., dissents.

McFADDEN, Judge,

dissenting.

I respectfully dissent. The material facts are not in dispute. With a single exception, the Appellate Division excised conclusions of law, not findings of fact. And there is no dispute about the single finding of fact excised — that the claimant needed and retained counsel to enforce this claim. The administrative law judge’s conclusions of law were correct, and an award of attorney fees was authorized. The superior court correctly reinstated them.

I recognize that “the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.” Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997). And I recognize that, consistent with the standard of review set out in Bankhead and the similar standard under prior law, we have often held that “[wjhether or not reasonable grounds for resisting the award exist is an issue of fact for the board to determine.” American Motorist Ins. Co. v. Corbett, 144 Ga. App. 845, 847 (3) (242 SE2d 748) (1978).

But those cases so hold on the basis that a party’s conduct — not its legal argument — is at issue. American Motorist Ins. Co., supra at 846 (3) (discussing, inter alia, a finding of a “failure by the employer to live up to its offer of ‘light work’ made during the course of the original hearing”); McCoy v. J. D. Jewell, Inc., 123 Ga. App. 175, 175-176, 177 (179 SE2d 654) (1971) (affirming the board’s decision not to award fees by a vote of 6-3 on the basis that “it cannot be said that the actions of the employer here were ‘so palpably without merit as to demand a finding’ that its motion for a change of condition hearing ‘was frivolous and unfounded’ ” notwithstanding the dissent’s argument that “it is clear and uncontradicted that the employer stopped compensation payments for more than five weeks without any justification whatever”); Wilson v. Maryland Cas. Co., 71 Ga. App. 184, 191 (30 SE2d 420) (1944) (“[The full board’s] finding, that the action had not been defended without reasonable ground, is supported by evidence, as [a physician] testified . . . that ‘he thought the claimant would be able to return to work in about 10 days or two weeks and . . . was an able-bodied man.’ ”).

Where the question is whether a party had reasonable grounds for a legal argument, this court treats the matter as a question of law and therefore applies de novo review. See City of Atlanta v. Sumlin, 258 Ga. App. 643, 647 (2) (574 SE2d 827) (2002) (“Because these arguments demonstrate that the statute contains a degree of ambiguity and conflict which had never been previously interpreted by the appellate courts, the City’s position was not ‘without reasonable grounds’ and it should not be penalized for seeking clarification of the statute.”); City of Atlanta v. Spearman, 209 Ga. App. 644, 646 (2) (434 SE2d 87) (1993) (“As a matter of law, we find that the City’s defense that the injury did not arise out of Spearman’s employment was not unreasonable and that the award of attorney fees regarding this defense was improper.”); Goode Bros. Poultry Co. v. Kin, 201 Ga. App. 557, 561 (3) (411 SE2d 724) (1991) (£‘[A]lthough appellants’ defense . . . was unsuccessful, it was, as a matter of law, not unreasonable. ”).

I recognize that all of those cases hold that an award of attorney fees under OCGA § 34-9-108 (b) (1) was not authorized. I have found no cases in which we have directed that an award of attorney fees be entered or reinstated.

The statute provides that “the administrative law judge or the board may assess” attorney fees. OCGA § 34-9-108 (b) (1). There is precedent in Georgia law for concurrent authority. Perdue v. Baker, 277 Ga. 1 (586 SE2d 606) (2003). The plain language of the statute vests concurrent discretionary authority in both the ALJ and the Appellate Division to award attorney fees in proper cases. This is a proper case.

The Appellate Division deleted the following language from the ALJ’s decision:

I find the insurer has defended the claimant’s claim for payment of temporary total disability income benefits without reasonable grounds. Therefore, I find the claimant’s attorney’s fees will be assessed against the insurer. See OCGA § 34-9-108 (b) (1).
I find the insurer failed to comply with the provisions of [OCGA §] 34-9-221, and I find no reasonable grounds for the insurer’s failure to comply with the provisions of that Code section. The claimant has had to engage the services of his attorney to enforce his rights under that Code section. I find the reasonable quantum meruit fee of the claimant’s attorney will be assessed against the insurer. See OCGA § 34-9-108 (b) (2).

In the next paragraph, the Appellate Division left intact the ALJ’s conclusion that a reasonable quantum meruit fee is $12,690 and the findings in support of that conclusion; but it deleted the ALJ’s final sentence: “This amount will be assessed against the insurer, to be paid without deduction from benefits payable to the claimant.”

Even under the any-evidence standard we must reverse the Appellate Division’s rejection of the ALJ’s finding that the claimant needed and retained counsel to assert this claim. The rest of the excised material is conclusions of law. Consequently the courts owe the Appellate Division no deference.

The ALJ correctly held that an award of attorney fees was authorized. The record contains no justification for the insurer’s failure to timely give notice, as required by OCGA § 34-9-221, that it was controverting the insured’s claim for benefits. The insurer’s legal argument is that — having accepted premiums from a self-employed worker — it was entitled to refuse to pay disability benefits because the claimant did not pay himself a formal wage, but paid both business and personal expenses from a single checking account. That argument flies in the face of the fundamental principle of workers’ compensation law that “[although the Workers’ Compensation Act is in derogation of common law, it is highly remedial in nature. It must be construed liberally in favor of the claimant in order to accomplish its beneficent purposes.” (Punctuation omitted.) CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236, 243 (2) (564 SE2d 836) (2002). See also Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 196-197 (518 SE2d 194) (1999) (same). Prominent among those beneficent purposes is “providing] immediate financial assistance to injured employees.” Ayers v. Rembert, 241 Ga. App. 698, 701 (527 SE2d 290) (1999). Indeed the insurer’s argument flies in the face of fundamental principles of contract law: “The cardinal rule of construction is to ascertain the intention of the parties. If 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.” OCGA § 13-2-3. And more fundamentally still, “[t]he law abhors forfeiture.” Holden v. Smith, 236 Ga. App. 205, 207 (511 SE2d 569) (1999).

Decided June 22, 2011.

Gerald R. Ryan, Jr., for appellants.

Robert L. Lambert, Jr., for appellee.

Marci R. Rosenberg, Kenneth A. Smith, Christopher B. Scott, amici curiae.

I would affirm the judgment of the superior court, which reinstated the award entered by the administrative law judge.

       Without making substituted factual findings, the Appellate Division could have accepted the ALJ’s findings of fact as supported by a preponderance of the competent and credible evidence, and ruled as a matter of law whether those facts showed the employer/insurer violated OCGA § 34-9-221 without reasonable grounds. That application of law to the accepted facts would have been subject to de novo review by the superior and appellate courts. Mechanical Maintenance v. Yarbrough, 264 Ga. App. 181, 183 (590 SE2d 148) (2003); Trent Tube v. Hurston, 261 Ga. App. 525 (583 SE2d 198) (2003).


author: Miller, Presiding Judge.

text:
    A11A0114.
    MARTIN et al. v. CENTRE POINTE INVESTMENTS, INC.
    (712 SE2d 638)
   Miller, Presiding Judge.

American Society of Real Estate Appraisers, Inc. (“American”) and its president, Eric T. Martin (“Martin”) (collectively, “Plaintiffs”), appeal the trial court’s grant of a joint motion for summary judgment filed by Centre Pointe Investments, Inc. (“Centre Pointe”), its owner and president, Gary Korynoski (“Korynoski”), its property manager, Eric Harris (“Harris”), and its employee, Marcus Ivory (“Ivory”) (collectively, “Defendants”). Plaintiffs argue that the trial court erred in finding that Plaintiffs could not recover on their fraud claim against Defendants, asserting that it was the province of the jury to determine whether Martin justifiably relied upon oral representations made by Harris. We disagree and affirm the trial court’s grant of summary judgment.

“Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case.” (Citations omitted.) Rubin v. Cello Corp., 235 Ga. App. 250, 251 (510 SE2d 541) (1998). On appeal of a grant of summary judgment, we must review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material facts remain and that the party was entitled to judgment as a matter of law. Id. at 250.

The record reflects that Centre Pointe leased office space to American, specifically office suites 100, 150, and 170. When American fell behind on its lease payments, Centre Pointe initiated a dispossessory action against American. On January 22, 2008, the magistrate court entered a consent order, providing for a writ of possession effective January 26, 2008, at 5:00 p.m. On the same day, Centre Pointe and American entered into a Settlement Agreement, with Korynoski signing on behalf of Centre Pointe and Martin on behalf of American. Pursuant to the Settlement Agreement, American was required to remove all personalty from the premises by January 26, 2008, at 5:00 p.m. — the effective time of the writ of possession. The Settlement Agreement provided that any personalty left in the premises after this removal date would be deemed abandoned by American, and that Centre Pointe would be free to dispose of any such abandoned personalty in its sole and absolute discretion. The Settlement Agreement also contained the following two provisions:

Section 6. AMENDMENT. This Agreement may not be amended or otherwise modified except by a writing signed by the Parties.
Section 7. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding of the Parties, and all previous or contemporaneous discussions, understandings, representations, negotiations, or agree-merits respecting the matters included in or relating to this Agreement are merged herein.

Martin testified that after entering into the Settlement Agreement on January 22, 2008, he began making plans to move his property out of the Centre Pointe office suites and into storage space. Shortly thereafter, Martin was approached by Robert T. Lewis a/k/a Skip Lewis (“Lewis”), who identified himself as a managing partner of Atlanta Travel and Training Center, LLC (“ATTC”). Lewis told Martin that ATTC had an agreement with Centre Pointe to lease office suite 100, and that ATTC had paid the first month’s rent and security deposit. Lewis further claimed that ATTC had full rights to enter into a sublease agreement with Martin. Based on Lewis’ representations, Martin and Lewis (who signed on behalf of ATTC) entered into a Sublease Agreement on January 24, 2008. The Sublease Agreement provided that Martin would sublease office suite 100 from ATTC, for a period beginning January 26, 2008, and ending on March 1, 2008.

Although Martin admits that neither Harris, Korynoski, Ivory, nor any other Centre Pointe employee ever signed a document approving the Sublease Agreement, there is conflicting testimony regarding Harris’ approval of, as well as Centre Pointe’s knowledge of, the Sublease Agreement. Per Martin’s testimony, he checked with Harris immediately following the execution of the Sublease Agreement; Harris purportedly affirmed the existence of a lease agreement between Lewis and Centre Pointe and assured Martin that the Sublease Agreement would not be a problem. Martin claims that he also called Korynoski in an attempt to discuss the Sublease Agreement, but that he was not able to get in contact with Korynoski.

Harris, on the other hand, testified that the first time he saw or heard about the Sublease Agreement was when Martin showed it to him around 3:00 p.m. on January 26, 2008. Harris claims that as soon as Martin showed it to him, he told Martin that it would not be honored; Harris admitted that he never conferred with Korynoski about the Sublease Agreement, stating only that he knew that Centre Pointe would not approve it.

Contrary to the testimony of the other deponents, Lewis testified that following the execution of the Sublease Agreement, he showed it to Harris, Ivory, Korynoski and Korynoski’s partner, all of whom told Lewis that Centre Pointe would not honor the Sublease Agreement. Lewis claims he then relayed this message to Martin on January 25, 2008, but that Martin responded by stating that he refused to vacate office suite 100.

On January 26, 2008, Martin began moving his property out from office suites 150 and 170 and into storage space; as contemplated by the Sublease Agreement, however, none of his property was removed from office suite 100. Martin testified that throughout the day on January 26, 2008, Harris continued to tell Martin that it was not a problem for Martin to keep his property in office suite 100, and that Martin would be permitted to reenter the suite and collect his property later. Martin stated that it was not until 3:00 p.m. on January 26, 2008, when he learned that Centre Pointe was not going to honor the Sublease Agreement. Martin testified that one of his associates had overheard Korynoski, Harris, Ivory, and Lewis (all of whom were allegedly on the premises on January 26, 2008) saying that they were going to lock the doors to all of the office suites, including suite 100, at 5:00 p.m. per the Settlement Agreement. Martin claims that he then proceeded to raise the issue with Harris, and that Harris again made oral assurances that there was no problem with Martin leaving his property in office suite 100. Despite Harris’ purported assurances, Martin testified that he nevertheless decided to move his property out of office suite 100. However, Martin was unable to move all of his property out of the suite by 5:00 p.m., at which time Centre Pointe told Martin to vacate the premises and locked the doors to all of American’s office suites. Martin was not able to reclaim any of the property that still remained in office suite 100, and Centre Pointe subsequently negotiated with Lewis for a sale of the remaining property.

The underlying lawsuit followed, wherein Martin and American sued Centre Pointe, Korynoski, Ivory, and Harris, as well as Lewis d/b/a ATTC, raising allegations of conversion, fraud, and breach of agreement to pay Martin a real estate brokerage commission. Defendants moved for summary judgment. The trial court granted Defendant’s motion for summary judgment, finding that Plaintiffs could not recover on their fraud claims because Martin’s reliance was not reasonable as a matter of law.

The elements essential to an action in tort for fraud are: (1) false representation by a defendant, (2) scienter, (3) intent to induce the plaintiff to act or refrain from acting, (4) justifiable reliance by the plaintiff, and (5) resulting damage to the plaintiff. Potts v. UAP-GA AG CHEM, Inc., 256 Ga. App. 153, 155 (1) (567 SE2d 316) (2002). In order to prove the fourth element of justifiable reliance, a party must show that he exercised his duty of due diligence. Reeves v. Edge, 225 Ga. App. 615, 618 (2) (484 SE2d 498) (1997). “Fraud cannot be the basis of an action if it appears that the party alleging the fraud had equal and ample opportunity to prevent it and yet made it possible through the failure to exercise due diligence.” Id. (Citations and punctuation omitted.) While “[¡justifiable reliance, more often than not, is a jury issue,” summary judgment may be appropriate if “the means of ascertaining the relevant facts are equally available to all parties.” Ades v. Werther, 256 Ga. App. 8, 11-12 (2) (a) (567 SE2d 340) (2002).

The trial court cites several grounds supporting its conclusion that Martin’s reliance was not reasonable as a matter of law. The trial court first noted that only two days prior to entering into the Sublease Agreement, Martin, who was an experienced real estate agent, had signed a Settlement Agreement in which he agreed to remove his property by 5:00 p.m. on January 26, 2008. The trial court further referenced the terms of the Settlement Agreement reciting that it was the sole embodiment of all agreements and understandings between and among the parties with regard to the lease and premises and requiring all modifications and amendments to be in writing and signed by the parties. The trial court thus concluded that Martin’s reliance on Harris’ oral representations were unreasonable given the clear terms of the Settlement Agreement.

While we agree with the trial court’s conclusions, we believe that the trial court’s order neglected a necessary layer of analysis. Specifically, we do not believe that the terms of the Settlement Agreement alone necessarily foreclose a finding of justifiable reliance on the part of Martin. Regardless of how clear or unambiguous these terms may have been, Harris’ purported oral modification of the Settlement Agreement raises questions of contract principles that we find necessary to address at the outset, and prior to making any determination about whether the trial court was correct in finding Martin’s reliance to be unjustified as a matter of law.

Applying such contract principles to this case, we find that Harris orally assured Martin that he could keep his property in office suite 100 beyond January 26, 2008 — oral assurances which effectively modified the provision in the prior written Settlement Agreement requiring Martin to remove all of his property from the premises by 5:00 p.m. on January 26, 2008. While Georgia law generally recognizes the validity of subsequent oral modifications to a written agreement when they are accompanied by additional consideration, see Vasche v. Habersham Marina, 209 Ga. App. 263, 265 (2) (433 SE2d 671) (1993), the Settlement Agreement in this case contained a clause obviously intended to prohibit such subsequent oral modifications by expressly requiring all modifications and amendments to be in writing and signed by the parties. Nevertheless, we do not think such a requirement necessarily forecloses a finding of justifiable reliance. Instead, it requires us to address the other contract principle pertinent to this analysis — that a waiver of an agreement’s written modification requirement may be established through the course of conduct and regular business practices between the parties. See, e.g., American Car Rentals v. Walden Leasing, 220 Ga. App. 314, 316 (1) (a) (469 SE2d 431) (1996).

Here, however, we find that Martin proffers facts that not only fail to demonstrate any waiver of the written modification requirement, but that also undermine the existence of any such waiver. Notably, Martin contends that the following facts constituted a “writing” that satisfied the written modification requirement of the Settlement Agreement: the Sublease Agreement was a written document; Lewis purportedly showed this document to Harris or Korynoski; and Harris orally represented to Martin that Lewis had a lease with Centre Pointe and that the Sublease Agreement would be honored. Moreover, the course of conduct between the parties with respect to the Settlement Agreement reflects only that they did in fact proceed according to its written modification requirement. Specifically, the record contains the parties’ executed addendum to the Settlement Agreement — an amendment that was not only in writing, but also signed by both Martin (on behalf of American) and Korynoski (on behalf of Centre Pointe).

In sum, Martin alleges no facts, nor do we see any evidence on the record, demonstrating a possible waiver of the express term of the Settlement Agreement requiring all modifications to be in writing and signed by the parties. As such, we find Martin could not justifiably rely on Harris’ subsequent oral representations that purported to modify the Settlement Agreement. Absent justifiable reliance, Plaintiffs are unable to establish a prima facie case of fraud, and Defendants were therefore entitled to judgment as a matter of law.

Decided June 23, 2011.

Maurice J. Bernard III, for appellants.

Gray, Rust, St. Amand, Moffett & Brieske, Michael J. Rust, Samuel I. Moss, Duane Morris, William D. Barwick, for appellee.

Judgment affirmed.

Doyle, J., concurs. Ellington, C. J., concurs in judgment only.

       Harris, however, testified that he never had any discussions with Lewis regarding the Sublease Agreement. Similarly, Korynoski testified that no one ever approached him about the Sublease Agreement, and that he saw the Sublease Agreement for the first time after January 26, 2008, when he was helping to clear out Martin’s property still remaining in office suite 100. Likewise, Ivory testified that he never saw nor heard of the Sublease Agreement.

       Although Plaintiffs originally named Lewis d/b/a ATTC as a defendant in this case, it appears Lewis filed for and received a discharge in bankruptcy in 2009. Lewis d/b/a ATTC was not a party to the underlying summary judgment proceedings, and Plaintiffs’ fraud claims against Lewis d/b/a ATTC are not at issue on appeal.

       While the trial court also supported its conclusion with the fact that either Korynoski or Rodney Scoggins (who is purportedly a co-owner of Centre Pointe) had signed all previous agreements between American and Centre Pointe, we do not believe this fact precludes a finding of justifiable reliance as a matter of law. Notably, the record contains conflicting testimony that raises genuine issues of material fact as to whether Martin was justified in believing that Harris, as the property manager for Centre Pointe and the individual with whom Korynoski told Martin to deal exclusively, had authority to enter into agreements or modifications thereto on Centre Pointe’s behalf. Nevertheless, because we find that Martin’s reliance was not justified as a matter of law on other grounds, discussed infra, summary judgment was proper.