text:
    A16A0509.
    THE STATE v. WILLIAMS.
    (788 SE2d 860)
   McMlLLIAN, Judge.

Following his conviction in a bench trial on one count of driving under the influence of drugs (“DUI”), OCGA § 40-6-391 (a) (2), and one count of failure to maintain lane, OCGA § 40-6-48 (1), John Cletus Williams appealed to the Supreme Court of Georgia asserting that the state-administered blood test, taken without a search warrant, violated his rights under the Fourth Amendment to the United States Constitution, as well as Article I, Section I, Paragraph XIII of the Georgia Constitution. Williams v. State, 296 Ga. 817, 817 (771 SE2d 373) (2015) (“Williams I”). Our Supreme Court vacated the trial court’s order denying the motion to suppress, as well as the judgment of conviction, holding that the trial court “failed to address whether Williams gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances.” (Emphasis in original.) Id. at 823. The Supreme Court accordingly remanded the case to the trial court for reconsideration of the motion to suppress. Id.

On remand, the trial court held an evidentiary motion hearing, and the trial court subsequently granted the motion. The State challenges that order in this appeal.

“When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.” Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). In such a case,

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

(Citations and footnotes omitted.) Id. See also May v. State, 334 Ga. App. 807, 807 (780 SE2d 455) (2015). However, “less deference to the trial court is owed to the extent that material facts definitively can be ascertained exclusively by reference to evidence that is uncontra-dicted and presents no questions of credibility” Hughes, 296 Ga. at 746, n. 5. In any event, “[ajbsent an abuse of discretion, the trial court’s order on a motion to suppress will not be disturbed.” (Citation and punctuation omitted.) Logan v. State, 309 Ga. App. 95, 100 (3) (709 SE2d 302) (2011). See also Hanes v. State, 294 Ga. 521, 524 (3) (755 SE2d 151) (2014) (applying abuse of discretion standard of review to motion to suppress); Davis v. State, 286 Ga. 74, 77 (2) (686 SE2d 249) (2009) (same).

In Williams I, the Supreme Court summarized the pertinent facts from the prior motion hearing and bench trial, “which were either stipulated at trial or are not in dispute,” as follows:

On September 22, 2012, Williams was arrested by an officer of the Gwinnett County Police Department and charged with DUI and failure to maintain lane; the officer had “reasonable articulable suspicion” to stop Williams and probable cause to arrest him. Williams was placed in custody but was not advised of his Miranda rights. The officer read Williams the age-appropriate statutory implied consent notice and pursuant to it requested that Williams submit to blood and urine tests. The officer told Williams that it was “a yes or no question,” and Williams verbally responded “yes.” There was no other conversation about consent for the testing, i.e., the officer did not ask Williams “if [Williams] was willing to freely and voluntarily give a test.” The officer “read [Williams] the implied consent and that was pretty much the end of it.” It “was an ordinary DUI,” there “were no exigent circumstances,” and no search warrant was obtained. Williams was taken to a medical center where blood and urine samples were taken for the purpose of his criminal prosecution.

(Citation and footnote omitted.) 296 Ga. at 818-19.

At the subsequent motion hearing, the arresting officer testified as to the circumstances surrounding his initial traffic stop of Williams. Upon receipt of a citizen report of a car driving erratically, the officer traveled to the scene where he observed the left tires of Williams’s car traveling in the oncoming lane of traffic. After initiating the stop, the officer spoke with Williams, who at first denied having anything to drink or taking any medications. When Williams stepped out of his car, he leaned on the vehicle as he walked toward the rear and then leaned against the trunk as he spoke with the officer. Williams again denied that he used any alcohol or drugs, and after he fell back against the car’s trunk, Williams told the officer he had “an equilibrium problem.” The officer testified that Williams seemed very unsteady on his feet, confused, and his speech was slow, thick, and slurred. When the officer asked Williams if he was taking any medication for his equilibrium problem, he stated that he was taking Lortab and another drug.

The officer asked for consent to “check [Williams] out to see if he was safe to drive.” According to the officer, Williams seemed confused but appeared to understand what the officer was saying when he gave his consent. The officer then began to conduct the standardized field sobriety evaluations, starting first with the horizontal gaze nystag-mus (HGN) test. During each of the tests, when the officer explained the instructions and asked Williams if he understood them, Williams indicated that he did and appeared to the officer to comprehend what was being said.

However, during the administration of the HGN test, Williams was unable to follow the officer’s finger, even after being instructed seven times to do so. The officer thus was unable to complete the evaluation, but he believed that Williams’s inability to perform the test demonstrated impairment. The officer also administered the walk and turn evaluation, but Williams was unable to follow his instructions. Although the officer told Williams to keep his hands down by his side, Williams raised them straight out. Williams also was unable to maintain his instructional position, losing his balance three times, and he never even attempted to turn at the end of his walk. The officer concluded from Williams’s performance on that test that he had demonstrated seven of the eight total clues indicating impairment. In addition, the officer performed the one-leg stand evaluation, during which Williams changed from his right leg to his left leg without instruction to do so. Based on Williams’s performance, the officer observed three of the four clues indicating impairment. The officer further attempted to perform the lack of convergence evaluation, but Williams was unable to follow his finger as instructed, and the officer terminated the evaluation. However, Williams successfully completed the Romberg evaluation.

After the tests, the officer told Williams that he was placing him under arrest for DUI, placed the handcuffs on him, conducted a search of his person, and escorted him to the back seat of the patrol car. The officer then stood outside the patrol car with the door open and read Williams the implied consent notice for suspects 21 years or older before asking for a blood and urine sample. The officer told Williams that “[i]t’s a yes or no question.” Williams and the officer had no further discussion on the issue, and the officer never advised Williams of his constitutional rights before Williams gave his consent. During this exchange, the officer spoke with Williams in his normal tone and did not have to raise his voice, put his hands on Williams or threaten him; rather, Williams was cooperative during the entire encounter and appeared to the officer to understand what was being said.

The officer transported Williams to a hospital, where the officer registered Williams and led him down a hall to the location where the tests were to be performed. As they walked down the hall, Williams leaned on the officer in order to keep his balance. The officer seated Williams in a chair, removed the handcuffs, and “had [him] sign the consent forms” because the hospital would not perform the tests without the signed forms. The officer could not recall whether the phlebotomist or he read the consent forms to Williams, but Williams was given a form to look at before signing. The phlebotomist then drew two vials of blood, and Williams gave a urine sample without assistance. Afterward, the officer put the handcuffs back on Williams and drove him to jail.

The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution both protect an individual’s right to be free of unreasonable searches and seizures [ ] and apply with equal force to the compelled withdrawal of blood, breath, and other bodily substances.

Kendrick v. State, 335 Ga. App. 766, 768 (782 SE2d 842) (2016). See also Williams I, 296 Ga. at 819; Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003). A warrantless search to extract blood “is presumed to be invalid and the State has the burden of showing otherwise.” Williams I, 296 Ga. at 819. Thus, “[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” (Citations and punctuation omitted.) Cooper, 277 Ga. at 291 (VI). In its sole enumeration of error, the State contends that the trial court erred in determining that Williams did not actually consent to take the state-administered blood test under the totality of the circumstances.

Georgia courts generally have found that a consent to search is voluntary if the totality of the circumstances show no implicit or explicit use of “fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Kendrick, 335 Ga. App. at 769. See also Schneckloth v. Bustamonte, 412 U.S. 218, 228 (II) (B) (93 SCt 2041, 36 LE2d 854) (1973); Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008). In making this determination, we have considered a number of factors including “prolonged questioning; the accused’s age, level of education, intelligence and advisement of constitutional rights; and the psychological impact of these factors on the accused.” (Citation and punctuation omitted.) Kendrick, 335 Ga. App. at 769. However, “no single factor is controlling.” (Citation omitted.) State v. Tye, 276 Ga. 559, 560 (1) (580 SE2d 528) (2003). Rather, the trial court “should consider whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.” (Citations and punctuation omitted.) Kendrick, 335 Ga. App. at 769. “Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.” (Citations and punctuation omitted.) Id. “[W]e are required to scrutinize closely an alleged consent to search.” (Citation and punctuation omitted.) State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008).

In the order granting the motion to suppress, the trial court first stated that articulable suspicion supported the traffic stop and that the officer had probable cause to arrest Williams. The trial court then identified the primary question before it as “whether or not the Defendant gave actual consent and voluntary consent to the state administered test,” tracking the Supreme Court’s directive in Williams I to address the issue of actual consent and the voluntariness of the consent under the totality of the circumstances. 296 Ga. at 821. The trial court found that Williams’s communications with the officer during the field sobriety evaluations indicated that he was confused, noting Williams’s failure to properly follow the officer’s instructions on the HGN, walk and turn, and the one-leg stand evaluations. The trial court found that this evidence brought Williams’s mental capacity into question and showed that Williams appeared “highly intoxicated.” After citing the testimony regarding the reading of the implied consent notice while Williams was handcuffed and sitting in the back of the patrol car and the events at the hospital, during which Williams had to lean on the officer for support, the trial court concluded that “[t]he State was able to show that Williams acquiesced to the officer’s request that he submit to the state administered blood and urine tests but was unable to show actual consent.” Accordingly, the trial court ruled that the results of both the urine or blood tests would not be admissible at trial.

Although the State argues that the trial court erred in failing to consider all the factors pertinent to the totality of the circumstances analysis, we are not aware of any requirement that the trial court expressly address each of these factors in its order, particularly when the State in carrying its burden of proof failed to present evidence on these factors. To the contrary, the trial judge acknowledged that he was required to apply the totality of the circumstances test to the evidence at the September 2 hearing, and the trial court’s order states that the court’s findings were based on Williams’s motion, the parties’ oral arguments, “evidence presented, all matters of record and the applicable and controlling law.” Accordingly, we cannot say that the trial court failed to consider the totality of the circumstances as presented by the evidence and directed by Williams I.

The State argues, however, that the trial court erred in giving too much weight to Williams’s intoxicated state in its consideration of the motion to suppress, citing the trial court’s finding that Williams was “highly intoxicated.” However, a defendant’s level of intoxication may be an appropriate factor for consideration among the totality of the circumstances in determining the voluntariness of consent. See State v. Bowman, 337 Ga. App. 313 (787 SE2d 284) (2016) (affirming trial court’s grant of motion to suppress blood test results where trial court relied on evidence that defendant was “significantly intoxicated” when he gave his consent to the test). Although this Court has held in the somewhat analogous situation of a voluntary waiver of a defendant’s Fifth Amendment rights that mere intoxication is not sufficient to make a defendant’s statement inadmissible, McNear v. State, 326 Ga. App. 32, 34 (2) (755 SE2d 844) (2014), our Supreme Court has held a high level of intoxication may be sufficient to support a trial court’s finding that a statement is involuntary. Clay v. State, 290 Ga. 822, 826 (1) (B) (725 SE2d 260) (2012) (no valid consent or Miranda waiver when defendant was suffering from aftereffects of drug-induced coma). See also State v. Folsom, 286 Ga. 105, 111 (4) (686 SE2d 239) (2009) (considering whether defendant’s use of prescription drugs rendered his statements involuntary and affirming the trial court’s ruling on the issue). In any event, whether or not intoxication is a factor among the totality of circumstances, the State must prove that the defendant voluntarily made a statement to police out of “rational intellect and free will” in order to present the statement as evidence at trial. (Citations and punctuation omitted.) McNear, 326 Ga. App. at 34 (2). We see no reason to alter this standard in the case of voluntary consent to undergo a blood test.

Here, the trial court found that the State failed to carry its burden. Under the standard set forth in Hughes, this Court must accept the trial court’s factual findings unless clearly erroneous and must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. 296 Ga. at 746. Based on this standard of review, we cannot say that the evidence demanded a finding contrary to the trial court’s ruling and thus we find no abuse of discretion by the trial court in granting Williams’s motion to suppress. See Durrence, 295 Ga. App. at 218 (“[I]n the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress.”) (citation and punctuation omitted; emphasis in original); Kendrick, 335 Ga. App. at 772 (affirming denial of motion to suppress under the standard of review, “affording appropriate deference to the trial court that heard the testimony first-hand”).

Judgment affirmed.

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

Decided July 7, 2016.

Rosanna M. Szabo, Solicitor-General, John B. Weitnauer, Nicole Wong, Assistant Solicitors-General, for appellant.

Tyler Law Firm, Lance W. Tyler, for appellee.

       The trial court’s initial denial of the motion was based on stipulated facts at an abbreviated hearing held immediately before the bench trial.

       The record contains no video of the traffic stop.

       The parties stipulated to the facts surrounding the reading of the implied consent notice, including a stipulation that “the implied consent was timely read, age appropriate, and it was the statutory implied consent notice that the officer was required to read under Georgia’s implied consent law.”

       Although Williams gave both a blood and urine sample, he abandoned any challenge to the urine test and his argument on the motion to suppress focused on the blood test.

       In fact, the State defined the issue before the trial court in the same manner in its argument at the September 2, 2015 motion hearing.

       The trial court also found that the officer had testified that Williams sometimes laid down in his seat while driving. Although we found no testimony from the officer to that effect, the witness who reported Williams’s driving to police testified at the bench trial that he saw Williams lean over so far that his head would disappear from view when he made a driving maneuver such as a turn.

       When Williams’s defense counsel objected to the State’s questions addressing the performance of the field sobriety tests, the trial court ruled “based on the Supreme Court’s direction to look at the totality of the circumstances, I think the interaction between the officer and the Defendant are relevant to the determination we make today.”

       We have no independently verifiable evidence such as a videotape to lessen the deference due to the trial court in making this determination. See State v. Reid, 337 Ga.App. 77 (786 SE2d 694) (2016) (relying on videotape of traffic stop to reverse grant of motion to suppress); State v. Depol, 336 Ga.App. 191 (784 SE2d 51) (2016) (same). Compare Bowman, 337 Ga. App. at 318 (finding that videotape supported trial court’s findings).

       Even though the officer testified that he believed Williams understood what was being said to him during the encounter,
      [t]he trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony. . . . [Thus,] a rational trier of fact can choose to reject even “undisputed” testimony... . Factors such as demeanor, contradictory or inconsistent statements and evidence that an officer had “ulterior motives” can all lead a finder of fact to disregard testimony by an officer. . . .
      (Citation omitted.) Brown v. State, 293 Ga. 787, 804 (3) (b) (2) (750 SE2d 148) (2013).


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A0527.
    THE STATE v. JUNG.
    (788 SE2d 884)
   McMlLLIAN, Judge.

In February 2015, Jae Sun Jung was charged with several DUI-related violations. Following a hearing, the trial court granted Jung’s motion to suppress the results of the state-administered test of his breath. The State appeals from that order, asserting that the trial court erred in finding that Jung did not voluntarily consent to the test. For the reasons set forth below, we affirm.

“When a motion to suppress is heardby the trial judge, that judge sits as the trier of facts.” (Citation and punctuation omitted.) Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). In reviewing the trial court’s ruling on a motion to suppress, “an appellate court generally must accept those findings unless they are clearly erroneous” and “must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court.” Id. In addition, “an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.” Id.

So viewed, the record shows that at approximately 4:30 a.m. on October 2, 2014, the Gwinnett County Police Department responded to a motor vehicle accident on Dublin Ridge Trail in Duluth. The responding officer observed one vehicle with significant rear-end damage pushed onto a curb. He also observed a white convertible with front-end damage nearby The driver, identified as Jung, was leaning against the vehicle. When the officer approached Jung, he noticed a strong odor of alcohol and saw that his eyes were bloodshot and watery Jung explained that he was driving down the street after leaving his girlfriend’s house and hit the other car. Jung’s speech was slurred and mumbled, and he had trouble walking or even standing on his own without support.

When the officer asked if he had been drinking, Jung responded, “Yes, but I don’t drinking and driving.” He denied needing medical attention and did not appear to have any injuries. Jung agreed to participate in field sobriety evaluations, but the officer had to assist him in walking to a nearby driveway because he was stumbling and staggering. Once away from the road, the officer performed the horizontal gaze nystagmus (“HGN”) test and observed six out of six clues, indicating an alcohol concentration of 0.08 grams or more. The officer then instructed Jung on how to perform the walk and turn evaluation, which indicated eight out of eight clues. Lastly, the officer had Jung perform the one leg stand and observed three of four clues. Based on the results of the field evaluations, the officer asked Jung to blow into a portable breath test. Jung replied, “Yes,” and his breath tested positive for alcohol.

Believing that Jung was driving under the influence of alcohol with an alcohol concentration of 0.08 grams or more, the officer placed him under arrest. After placing Jung in the back of his patrol vehicle, the officer read him Georgia’s implied consent notice for drivers over the age of 21. When asked, “Will you submit to the state-administered chemical test of your breath under the implied consent law,” Jung responded, “Yes.” The officer later testified that he read the notice in a “steady and monotone” voice. He further testified that Jung appeared to understand all of his questions and never indicated that he did not understand or that he needed an interpreter. He denied ever yelling at, using force against, or making promises or threats to Jung. In a supplemental police report, the officer indicated that Jung appeared “confused” and failed to follow instructions on the HGN and one leg stand tests.

At the police station, another officer administered the breath test after instructing Jung in an even tone on how to perform the test. That officer testified that Jung appeared to understand the instructions, did not ask any questions about the test, and never stated that he wished to refuse the test. He also denied ever raising his voice or using force against Jung. Jung was later charged, via accusation, with driving under the influence to the extent it was less safe for him to drive (OCGA § 40-6-391 (a) (1)), driving under the influence per se (OCGA § 40-6-391 (a) (5)), and following too closely Jung filed a motion to suppress the results of the state-administered breath test, as amended, arguing that he did not voluntarily consent to the test. Following a hearing at which both officers testified regarding the circumstances surrounding the traffic stop and subsequent breath test, the trial court entered an order granting Jung’s motion. This appeal followed.

In its sole enumeration of error, the State asserts that the trial court failed to determine whether Jung’s consent to take the state-administered breath test was voluntary under the totality of the circumstances.

The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution both protect an individual’s right to be free of unreasonable searches and seizures [ ] and apply with equal force to the compelled withdrawal of blood, breath, and other bodily substances.

Kendrick v. State, 335 Ga. App. 766, 768 (782 SE2d 842) (2016). “Thus, a warrantless search is presumed to be invalid, and the State has the burden of showing otherwise.” Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015).

“Historically, we considered a defendant’s affirmative response to the reading of the implied consent notice as sufficient to allow a search of his or her bodily fluids without further inquiry into the validity of the defendant’s consent.” (Citations omitted.) Kendrick, 335 Ga. App. at 769. However, in Williams, the Supreme Court of Georgia rejected this rule automatically equating an affirmative response with actual consent to search, holding instead that “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.” Williams, 296 Ga. at 822. Thus, the State is required “to demonstrate actual consent [for state-administered testing] for the purpose of exception to the warrant requirement.” (Emphasis in original.) Id. And in determining whether the defendant gave actual consent to a state-administered breath test, the trial court is required to address “the voluntariness of the consent under the totality of the circumstances.” Id. at 823.

Under Georgia law, “voluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority” (Citation and punctuation omitted.) State v. Bowman, 337 Ga. App. 313, 317 (787 SE2d 284) (2016). In making this determination, we consider a number of factors, including “prolonged questioning; the use of physical punishment; the accused’s age, level of education, intelligence, length of detention, and advisement of constitutional rights; and the psychological impact of these factors on the accused.” (Citations omitted.) Id. at 317. And “no single factor is controlling.” (Citation omitted.) State v. Tye, 276 Ga. 559, 560 (1) (580 SE2d 528) (2003). Thus, the trial court must “consider whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.” (Citations and punctuation omitted.) Kendrick, 335 Ga. App. at 769. “Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.” (Citations and punctuation omitted.) Id.

Here, in its order granting the motion to suppress, the trial court first noted that the responding officer had articulable suspicion for the stop and probable cause to arrest Jung for driving under the influence. The trial court then stated that the primary question presented in this case is “whether or not the Defendant voluntarily consented to the state administered test.” The trial court then addressed the various factors presented during the hearing, noting that the responding officer believed Jung appeared to understand him, that the responding officer did not raise his voice or use any weapons or other force, and that he read the statutory implied consent warnings to Jung. However, the trial court also found that Jung was “confused when he was stopped as well as during the walk and turn field sobriety evaluation and was unable to follow instructions.” Thus, the trial court concluded that Jung “lacked the capacity to consent based upon his confusion and high level of intoxication” and that the State “was only able to show that Defendant acquiesced to the officer’s request that he submit to a breath test but was unable to show actual consent.”

On appeal, the State argues that the trial court focused exclusively on Jung’s “confusion and high level of intoxication” to determine whether his consent was voluntary and failed to give careful consideration of all the factors pertinent to assessing the totality of the circumstances. However, the trial court clearly considered factors other than Jung’s confusion and high level of intoxication. Moreover, we are not aware of any requirement that the trial court expressly address each relevant factor in its order, particularly when the State did not present evidence on each of the factors. In addition, at the motion to suppress hearing, the trial court acknowledged that although Williams involved a blood test, its holding would apply in the context of a breath test as well, stating, “As I read it a search is a search.” And in its order, the trial court expressly states that it considered “Defendant’s motion, oral arguments by the State and Defendant, evidence presented, all matters of record and the applicable and controlling law.” Accordingly, we cannot say that the trial court failed to consider the totality of the circumstances as presented by the evidence and directed by Williams.

The State nonetheless argues that the trial court erred in giving too much weight to Jung’s level of intoxication. However, this Court recently rejected this very argument and found that a defendant’s level of intoxication may be an appropriate factor in determining the voluntariness of consent under the totality of the circumstances. See Bowman, 337 Ga. App. at 318 (affirming trial court’s grant of motion to suppress blood test results where trial court relied on evidence that defendant was “significantly intoxicated” when he gave consent to the test). Our Supreme Court has also held that a high level of intoxication may be sufficient to support a trial court’s finding that a statement is involuntary. Clay v. State, 290 Ga. 822, 826 (1) (B) (725 SE2d 260) (2012). And although the responding officer testified that Jung appeared to understand him, he also noted in his supplemental police report that Jung was confused and failed to follow his instructions on the HGN test and the one leg stand test. The trial court was authorized to accept or reject any portion of the responding officer’s testimony See Brown v. State, 293 Ga. 787, 804 (3) (b) (2) (750 SE2d 148) (2013).

Evaluating the totality of the circumstances in this case, we are mindful that “in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress.” (Citation and punctuation omitted; emphasis in original.) State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008). Here, the evidence supports the trial court’s findings and does not demand a contrary conclusion. Accordingly, we affirm the trial court’s order granting Jung’s motion to suppress the results of the state-administered breath test.

Decided July 7, 2016.

Rosanna M. Szabo, Solicitor-General, John B. Weitnauer, Nicole Wong, Assistant Solicitors-General, for appellant.

Stein & Ward, George A. Stein, T. Kevin Mooney, for appellee.

Judgment affirmed.

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

       The record contains no video or audio recording of the traffic stop.

       See OCGA § 5-7-1 (a) (4) (permitting a direct appeal when the State’s evidence has been ruled inadmissible).

       Another well-recognized exception to the warrant requirement in the context of a state-administered test is the presence of exigent circumstances. See Williams, 296 Ga. at 819. However, the Supreme Court of the United States has rejected a per se rule that the natural metabolization of alcohol constitutes an exigency justifying an exception to the Fourth Amendment’s search warrant requirement for nonconsensual testing in all DUI cases. Missouri v. McNeely, 569 U.S. 1552, 1563 (II) (B) (133 SCt 1552, 185 LE2d 696) (2013). Instead, the Supreme Court held that “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, ... it does not do so categorically.” Id. Here, however, the State does not argue that exigent circumstances supported testing Jung’s breath. Thus, we limit our analysis to the issue of consent.

       The order specifically noted that the results of the breath test were 0.228 and 0.221.

        See Kendrick, 335 Ga. App. at 768 (individual’s right to be free of unreasonable search and seizure applies with equal force to compelled withdrawal of blood and breath).


author: McFadden, Judge.

text:
    A16A0596.
    CARD et al. v. DUBLIN CONSTRUCTION COMPANY, INC. et al.
    (788 SE2d 845)
   McFadden, Judge.

Benjamin and Alfreda Card (“the Cards”) filed this action for personal injuries Benjamin Card (“Card”) suffered on a construction site. The trial court granted summary judgment to Dublin Construction Company, Inc. (“Dublin”), the general contractor, and J&J Masonry & Construction Company (“J&J”), a subcontractor, on the ground that Card was a licensee, and there was no evidence that the defendants acted wantonly, wilfully, or intentionally

As to J&J, the Cards argue that the trial court erred because in addition to asserting claims arising from the condition of the premises, they asserted claims against J&J that had nothing to do with Card’s status as a licensee or invitee. We agree. The claims the Cards asserted against J&J included claims of active negligence; and Card’s status as an invitee or licensee is not relevant to those claims.

Regarding their claims that do arise from the condition of the premises and the defendants’ occupation of those premises, the Cards argue that whether Card was a licensee or an invitee is a jury question. But as to J&J, the Cards have pointed to no evidence that Card and J&J shared a common purpose. So as to subcontractor J&J, Card was no more than a licensee. But as to general contractor Dublin, we agree with the Cards that whether Card was an invitee or a licensee is a jury question.

We decline the defendants’ invitation to affirm under the right - for-any-reason rationale because the defenses that they argue entitle them to summary judgment all depend on disputed issues of fact. However, we agree with Dublin that the Cards have not shown a contractual provision that would make Dublin vicariously liable for J&J’s negligence.

1. Facts.

On appeal,

[w]e review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law.

McGarity v. Hart Elec. Membership Corp., 307 Ga. App. 739, 740 (706 SE2d 676) (2011) (citation omitted).

So viewed, the evidence shows that Card worked as a delivery driver for a company called Hagemeyer North America, which sold industrial electrical products and tools. On the day of the accident, Card made a delivery to a construction site at Georgia College & State University Card was delivering bundles of conduit to Speir Electric, a subcontractor on the project. Card went to the general contractor’s trailer to locate the Speir contact person. No one was in the trailer. Card did not have the telephone number of the Speir contact person, so he asked some workers sitting outside the trailer if they knew where the Speir contact person was. The workers told Card that the Speir contact person was on the third floor of the building being constructed. Card saw other workers entering the building, he saw no signs, tape, or other kind of warning that he should not enter, so he assumed it was permissible to enter the building.

Card entered the building, went upstairs, and found the Speir contact person. They started to exit the building, Card leading the way, so that the Speir contact person could take delivery of the conduit. Just as Card stepped out of the door, a concrete-filled hose from a concrete pumping station operated by J&J fell from a third-story window, hit him in the back, and knocked him down. Card was injured and required medical treatment.

The Cards filed this action, alleging that the defendants were negligent in the handling of the concrete-filled hose and in failing to warn persons in the vicinity of the threat of the falling hose.

2. Active negligence vs. conditions of the premises.

Some of the claims the Cards assert against the defendants pertain to the failure to warn of the condition of the premises while some pertain to acts of active negligence on the part of J&J’s employees. For tort claims occurring on premises, there is a legal distinction

between causes of action where the alleged negligence arises from static or passive conditions (such as, pre-existing defects unattended on the premises) and causes of action thereon averring active negligence by act or omission. The record establishes that the incident on which this cause is grounded arises [, at least in part,] ... from a claim of active negligence arising from [J&J’s employees’] alleged acts and omissions occurring [while Card was on the premises].

Wade v. Mitchell, 206 Ga. App. 265, 266-267 (2) (b) (424 SE2d 810) (1992) (citations omitted). See also Lipham v. Federated Dept. Stores, 263 Ga. 865, 865-866 (440 SE2d 193) (1994) (distinguishing claims arising from the condition of the premises from claims arising from active negligence). The distinction is important because we focus on “different inquiries depending on whether the injury arises (a) from pre-existing conditions or (b) from active negligence, i.e., from the proprietor’s acts or omissions occurring at the time the plaintiff was on the premises.” Brownlee v. Winn-Dixie Atlanta, 240 Ga. App. 368, 369 (2) (523 SE2d 596) (1999) (citations omitted). For one thing, as discussed more fully below, the duties a defendant owes may be different, depending on whether a claim arises from the condition of the premises or from active negligence.

3. Claims arising from allegations of active negligence against J&J.

The Cards argue that the trial court erred in granting summary judgment to J&J solely on the ground that Benjamin Card was a licensee because J&J owed him a duty independent of any duties arising from its status as an occupier of the premises. They add that they asserted multiple theories of recovery against J&J, including simple negligence claims for failure to operate the concrete pump in a safe manner, that do not emanate from duties as a landowner or occupier. We agree that the Cards asserted claims against J&J arising from allegations of active negligence and that, as to these claims, Card’s status as a licensee or invitee is irrelevant. So the trial court erred by granting summary judgment to J & J solely on the basis that Card was a licensee.

As to the claims of active negligence, J&J owed Card a general duty of care. Lipham, 263 Ga. at 865-866. “In other words, liability for [J&J’s employees’] failure to exercise ordinary care and not to subject others to an unreasonable risk of harm is based only on the nature of [their] negligent act[s] and is not affected by [Card’s] status with respect to the premises.” Id. at 866.

The Cards also argue that J&J owed duties to Card, regardless of his status as invitee or licensee, because subcontractors owe duties to other workers on the job site. We first recognized such a duty in Doke v. Dover Elevator Co., 152 Ga. App. 434, 436 (263 SE2d 209) (1979). There, an employee of the general contractor on a construction project fell into a vent hole in the top of an elevator shaft. He sued the subcontractor responsible for installing the elevators. Observing that the plaintiff had the right to be in the area where he fell while performing his work on the job site, we concluded that, “respecting the vent hole into the elevator shaft, [the defendant-subcontractor] owed all construction workers on the job site the duty to exercise reasonable care in their protection.” Id. But we think that this duty is no different than the general duty of care that one owes to others lawfully on the premises. See Lipham, 263 Ga. at 865-866 & n. 2.

4. Licensee vs. invitee.

The Cards asserted claims against both J&J and Dublin arising from their status as occupiers of the premises. As to such claims, “[t]he duty owed by a landowner [or occupier] to one who enters upon his property depends, to a certain extent, on whether the one entering the property is an invitee, a licensee or a trespasser.” Lipham, 263 Ga. at 865 (citations omitted). The trial court found that Benjamin Card was a licensee, but the Cards argue that whether Benjamin Card was an invitee or a licensee is a jury question. We disagree as to J&J but agree as to Dublin.

Card’s status is important because, as noted, the duty of care owed by an occupier of land to a person coming upon the property varies and is determined according to the legal status of the person entering the premises. See Jones v. Barrow, 304 Ga. App. 337, 338-339 (1) (696 SE2d 363) (2010); Jarrell v. JDC & Assocs., 296 Ga. App. 523, 524-525 (675 SE2d 278) (2009). A landowner or occupier owes the duty of ordinary care to an invitee. OCGA § 51-3-1; Jarrell, 296 Ga. App. at 525. That duty may include a duty to “give a warning adequate to enable the invitee upon the premises to avoid harm,” where the danger is not apparent. Knowles v. LaRue, 102 Ga. App. 350, 353 (116 SE2d 248) (1960). A landowner or occupier owes a lesser duty — to avoid causing willful or wanton injury — to a licensee. OCGA § 51-3-2 (b); Jarrell, 296 Ga. App. at 525 (The Cards do not challenge the trial court’s finding that “there is no willful, wanton or intentional conduct present in this case.”).

The generally accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or was for business with one other than the owner or occupier.

Scully v. Bd. of Regents of the Univ. System of Ga., 332 Ga. App. 873, 876 (1) (775 SE2d 230) (2015) (citation omitted).

(a) Card’s status in relation to J&J.

Assuming that J&J was, for purposes of this analysis, an “occupier,” Card, as to J&J, was “no more than a licensee.” Chambers v. Peacock Constr. Co., 115 Ga. App. 670, 677 (4) (155 SE2d 704) (1967) (citation omitted). The Cards presented no evidence that Benjamin Card was at the construction site “for a purpose connected with or in furtherance of [J&J’s] alleged business or the common interest of or mutual advantage of [Card] and [J&J], or that [J&J] knew of his presence in the building.” Id. In Chambers, the plaintiff was delivering materials and supplies to a general contractor on a construction site when he fell into an elevator shaft. He sued the general contractor as well as the subcontractor that was working on the elevators in the elevator shaft. We affirmed the grant of a general demurrer in favor of the subcontractor, holding that the complaint did not “present an issue that the plaintiff when injured was an invitee of the subcontractor, expressly or by implication.” Id. In other words, the plaintiff’s business in providing materials to the general contractor was not sufficient to create a mutual interest with the subcontractor, even though the purpose of both the plaintiff’s and the subcontractor’s work could be characterized as taking steps toward completion of the construction.

(b) Card’s status in relation to Dublin.

But this conclusion does not resolve Card’s status as to Dublin, because a person may have more than one status at the same time. See Chambers, supra, 115 Ga. App. at 675-677 (3), (4) (plaintiff was invitee of general contractor and licensee of subcontractor). See also Charles R. Adams III, Ga. Law of Torts § 4:1 (a) (2015) (“An entrant may have more than one status simultaneously. For example, if a tenant rents premises from a landowner, the tenant’s social guest would be a licensee as to the tenant, but, at least under some circumstances, could share the tenant’s invitee status as to the landowner.”) (citations omitted). And the trial court erred by holding that as a matter of law, Card was a licensee of Dublin.

The evidence would authorize a jury to find that Dublin and Card shared an interest in getting the bundles of conduit delivered to Speir. A jury could find that Dublin stood to gain if its subcontractors had the materials they needed to complete their work so that the entire project could be completed. A jury could also find that Card needed to make the delivery to his employer’s customer as part of his employment. “The [delivery of the bundles of conduit] being done by [Card] could be found to be a common interest of [Dublin] and [Card], even if it was not for the direct benefit of [Dublin].” Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 571-572 (2) (499 SE2d 722) (1998) (citation omitted). See also Knudsen v. Duffee-Freeman, Inc., 99 Ga. App. 520, 526(2) (109 SE2d339) (1959) (landlord impliedly invited persons having business with tenant to come upon its premises for that purpose).

Dublin argues that even if Card were an invitee when he first came onto the job site, his status changed to that of licensee or trespasser when he entered the unauthorized area of the site, beyond the general contractor trailer, without Dublin’s permission. But

[i]f the invitee does not go beyond that part of the premises to which, as the situation reasonably appears to him, the invitation extends, he can not be held to have become a mere licensee because, as a matter of fact, the purposes of the invitation could have been fulfilled without going on such part of the premises.

Chambers, 115 Ga. App. at 675-676 (3) (citation omitted). And Card testified that he saw no warning tape, the building was not roped off, and other workers were entering the building, so he assumed it was permissible to enter. Whether Card’s entering the building was unreasonable so as to change his status to that of licensee or trespasser is a question for jury resolution.

5. Right for any reason .

J&J and Dublin argue that their summary judgment should be affirmed under the right-for-any-reason rationale because, as a matter of law, Card’s failure to exercise ordinary care for his own safety, equal knowledge, and assumption of risk bar his recovery The Cards have presented sufficient evidence to create jury questions on these defenses.

(a) Card’s failure to exercise ordinary care for his own safety.

The defendants argue that Card failed to exercise ordinary care for his own safety when he entered the building, knowing of the dangers inherent in construction sites. But Card testified that he had been told that was where he would find the Speir representative, that was the only entrance he saw, that other workers were entering the building there, and that he saw no signs, tape, or other material warning him not to enter the building. “[T]he extent to which [Card’s] conduct contributed to his [injury], if at all, is certainly not plain, palpable, and undisputable, rendering this issue inappropriate for summary adjudication.” Baker v. Harcon, Inc., 303 Ga.App. 749, 754 (a)(ii) (694 SE2d 673) (2010) (citations and punctuation omitted).

(b) Equal knowledge.

The defendants argue that Card had at least equal knowledge of any hazard because he knew or should have known that the concrete pumping hose could fall during active construction. They have pointed to no evidence that Card knew of the specific hazard of this particular hose falling. See Strauss v. City of Lilburn, 329 Ga. App. 361, 364-365 (765 SE2d 49) (2014) (whether plaintiff “had greater or equal knowledge of the specific hazard” that allegedly caused her fall was a question of fact to be decided at trial) (citations omitted; emphasis supplied); Telligman v. Monumental Properties, 161 Ga.App. 13, 16 (2) (288 SE2d 846) (1982) (“[I]t is a plaintiff’s knowledge of the specific hazard . . . which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.”). Whether Card had equal knowledge of the hazard, considering he had witnessed other workers entering the building, and the area was not marked off as dangerous, is a disputed fact question for jury resolution.

(c) Assumption of risk.

The defendants argue that they are entitled to summary judgment because Card assumed the risk of injury. Generally, whether a party assumed the risk of injury is a jury question. Findley v. Griffin, 292 Ga. App. 807, 809 (2) (666 SE2d 79) (2008). To prevail on an assumption of risk defense, a defendant must show that the plaintiff knew “of the specific, particular risk of harm associated with the activity or condition that proximately causes injury Significantly, a plaintiff’s comprehension or general understanding of nonspecific risks that might be associated with the activity at issue is not sufficient.” Baker, 303 Ga. App. at 754 (b) (citations omitted). As detailed above, the defendants have not shown that Card knew of the specific, particular risk that the concrete pump hose would fall. This defense also requires jury resolution.

6. Dublin ’s vicarious liability.

Dublin argues that it cannot be held vicariously liable for J&J’s alleged negligence. “[Ajbsent an express contractual duty, [a general contractor] cannot be held liable for damage caused by the collateral torts of independent contractors.” Faubion v. Piedmont Engineering & Constr. Corp., 178 Ga. App. 256, 259 (2) (342 SE2d 718) (1986) (citation omitted). But under OCGA § 51-2-5 (3), “[a]n employer is liable for the negligence of a contractor:... [i]f the wrongful act is the violation of a duty imposed by express contract upon the employer.” The Cards argue that Dublin had such a contractual duty. They point to provisions in Dublin’s contract with Georgia College & State University that make Dublin responsible for the work of its subcontractors. But “the contractual duties under which the employer would be liable for the acts of the independent contractor cannot be enforced by one not a party to the contract.” Kidd v. Dentsply Intl., 218 Ga. App. 346, 350 (2) (629 SE2d 58) (2006) (citation omitted). The Cards are strangers to that contract.

Decided July 7, 2016

The Summerville Firm, J. Darren Summerville; Gautreaux & Sizemore, Jarome E. Gautreaux; Powers Law Group, Jeffrey N. Powers, for appellants.

Jones, Cork & Miller, Rufus D. Sams III, Reneé S. Rainey; Bullard & Wangerin, Daniel Bullard IV, Erin S. Corbett, for appel-lees.

Judgment reversed.

Miller, P J., concurs. McMillian, J., concurs in judgment only.


author: McMillian, Judge.

text:
    A16A0612.
    In the Interest of J. M., a child.
    (788 SE2d 888)
   McMillian, Judge.

After this Court granted his application for discretionary appeal, the putative father of J. M. appealed the juvenile court’s order denying his petition to legitimate the child. We affirm for the reasons set forth below.

“We review a trial court’s ruling on a legitimation petition for abuse of discretion.” Binns v. Fairnot, 292 Ga. App. 336, 337 (665 SE2d 36) (2008). In so doing, we review the trial court’s factual findings for clear error and will only sustain such findings if there is competent evidence to support them. Neill v. Brannon, 320 Ga. App. 820, 822 (1) (738 SE2d 724) (2013).

J. M. was born March 4, 2014, and at the time both J. M. and his mother tested positive for methamphetamine. The next day, the Department of Family and Children Services (DFACS) filed a dependency complaint and petition to obtain custody of J. M. The juvenile court held a dependency hearing and later issued an order placing J. M. in DFACS’s custody on May 29, 2014. The putative father filed his petition for legitimation on December 4, 2014, and the juvenile court held a hearing on the petition on April 27, 2015.

At the hearing, the parties stipulated to the fact that DNA testing showed that the putative father was J. M.’s biological father. However, J. M.’s mother testified that she opposed the legitimation of her child because she did not believe that the putative father’s behavior would change. She said that he did not have a job, was still doing drugs, and was back in jail. She also stated that she did not like the neighborhood in which he lived because a lot of people in the vicinity used drugs. Both parents had a history of drug use, and they used drugs together on multiple occasions, sometimes at the house where the putative father was living. The mother said that the putative father and she had no romantic relationship and had only slept together once. She had believed that someone else was the father of J. M. until the DNA test showed otherwise. The mother had decided to surrender her rights in J. M. to give him a better life and stability in the home where he had been his whole life because neither the putative father nor she were able to provide J. M. a home.

At the time of the hearing, the putative father had been in jail for approximately two months awaiting trial on charges of possession of methamphetamine, possession of tools for the commission of a crime, and possession of a firearm during the commission of a criminal offense. Since the time of J. M.’s birth, the putative father also had been arrested on another occasion but had bonded out. And at some point he had pled guilty to several charges of misdemeanor theft by receiving. Prior to his arrest on February 11,2015, the putative father had been living with his grandparents and had been attempting to get into a drug rehabilitation program. He said that he had worked for about six months for a construction company and then about three months for a pizza delivery business, although he had been unemployed for about one month before his arrest. The putative father had never owned his own home, never been married, and never fathered another child.

The putative father said that he had started using drugs approximately ten years earlier when he was a teenager, and he ultimately became a heroin addict. He said he went to substance abuse treatment in connection with that addiction and successfully completed the program, with one relapse since; however, he had begun using methamphetamine prior to his arrest.

During her pregnancy, J. M.’s mother told the putative father he was not the biological father of the child, but he nevertheless bought her groceries and a washer and dryer before J. M.’s birth. The putative father said that he first realized that J. M. could be his child when he saw a picture taken about one week after the child’s birth, and he then sought a DNA test. Since that time he had been visiting J. M. every week. Although he did not provide any child support, he had given the child gifts at Christmas. He hoped to go straight to an inpatient treatment facility after he was released from jail, and during his incarceration, he had been attending substance abuse and life skills classes, as well as Narcotics Anonymous and Alcoholics Anonymous meetings. The putative father said that he wanted to legitimate J. M. because he wanted to be a better father than he previously had been and a better father than his own father.

DFACS created a case plan for the putative father on December 30, 2014, which required that he maintain stable housing; legitimate J. M.; attend and successfully complete parenting classes; complete a substance abuse assessment and follow all treatment recommendations; attend all visits with the child; remain drug and alcohol free for six consecutive months and test negative on random drug tests; arrange for adequate child care; attend and complete a psychological evaluation and follow the recommendations; and enroll and successfully complete an inpatient drug rehabilitation program. The DFACS caseworker assigned to J. M.’s case testified that the putative father had completed only certain requirements of his case plan. He had submitted to the substance abuse and psychological evaluations and to three DFACS drug tests, but he tested positive for drugs on all three.

The guardian ad litem appointed to the case recommended that the trial court deny the putative father’s petition for legitimation based, inter alia, on his long history of drug use and his lack of a steady employment history

In considering a petition to legitimate,

the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.

(Citation omitted.) In the Interest of B. H.-W., 332 Ga. App. 269, 272 (3) (772 SE2d 66) (2015). See also In re Baby Girl Eason, 257 Ga. 292, 296 (1) (358 SE2d 459) (1987). In considering the best interest of the child, the juvenile court “is not bound by the desires and contentions of the parents” but instead “must examine the benefits that might flow to the child if [he or] she were legitimated and to consider the legal consequences of the grant of the petition.” (Citation omitted.) In the Interest of M. K., 288 Ga. App. 71, 73 (2) (653 SE2d 354) (2007). Thus, “trial courts may consider the best interest of the child and deny the petition under certain circumstances, even if the petitioner is in fact the biological father of the child.” In the Interest of C. L., 284 Ga. App. 674, 676 (1) (644 SE2d 530) (2007). See also OCGA § 15-11-26 (listing factors to be evaluated “[wjhenever a best interests determination is required”).

Here, the juvenile court issued an oral ruling at the April 27, 2015 hearing denying the legitimation petition and entered a written order to that effect on September 1, 2015 (the “September 1 Order”). In the written order, the juvenile court found that the putative father was an unrehabilitated user of illegal drugs over a ten-year period; nothing prevented him from rehabilitating himself during that period; after DFACS issued the case plan, the putative father should have stayed clean and immediately begun supporting his child, yet the putative father did not provide any diapers, clothes, or other forms of support for J. M., other than a few “token gifts”; the putative father failed to take parenting classes despite having the opportunity to do so while incarcerated; the putative father failed to complete other portions of his case plan; the putative father failed to take the requisite steps to prove to the court that he wanted the child in his care; the putative father is in need of substance abuse rehabilitation; and the putative father has no clear plans for supporting the child. The juvenile court also found that J. M. had been with the same foster care family since his birth and further found that “based on the testimony that this mother is putting the child’s best interest before her own in that the mother believes that the foster parents have been this child’s parents.” Based on these findings, the juvenile court denied the petition, concluding that although the putative father did not abandon his opportunity interest in the child, legitimation would not be in the child’s best interests.

1. On appeal, the putative father asserts that the juvenile court erred in finding that he had the opportunity to take parenting classes while incarcerated, as no evidence was presented at the hearing on whether such classes were available. And, indeed, we found no such testimony in our review of the April 27 hearing, although the juvenile court judge may have had independent knowledge of the classes offered at the jail. But even discounting that finding, we conclude that the juvenile court’s remaining findings are supported by clear evidence, and that evidence is sufficient to support the trial court’s denial of the legitimation petition.

2. The putative father also asserts that the juvenile court erred in basing his ruling on a determination of whether he was fit to assume immediate custody of J. M. because the father was not seeking custody, and the determination of custody is separate from that of legitimation. However, the best interests analysis as codified under OCGA § 15-11-26 includes consideration of:

(1) [tjhe physical safety and welfare of such child, including food, shelter, health, and clothing;
(2) [tjhe love, affection, bonding, and emotional ties existing between such child and each parent or person available to care for such child;
(4) [sjuch child’s need for permanence, including such child’s need for stability and continuity of relationships with his or her parent. .. and any other person who has provided significant care to such child;
(5) [sjuch child’s sense of attachments, including his or her sense of security and familiarity, and continuity of affection for such child;
(6) [tjhe capacity and disposition of each parent or person available to care for such child to give him or her love, affection, and guidance and to continue the education and rearing of such child;
(7) [tjhe home environment of each parent or person available to care for such child considering the promotion of such child’s nurturance and safety rather than superficial or material factors;
(8) [tjhe stability of the family unit and the presence or absence of support systems within the community to benefit such child;

Decided July 7, 2016

Diana R. Johnson, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Justin M. Schneider, Assistant Attorney General, for appellee.

(13) [t]he least disruptive placement alternative for such child;
(17) [t]he preferences of the persons available to care for such child;
(19) [a]ny recommendation by a court appointed custody evaluator or guardian ad litem; and
(20) [a]ny other factors considered by the court to be relevant and proper to its determination.

Although as part of the best interests analysis the juvenile court considered the putative father’s interest in caring for J. M., his ability to support the child if placed in his care, and the child’s current placement, we find that the consideration of such factors was proper under OCGA § 15-11-26 and did not constitute an abuse of discretion.

Therefore, we cannot say that the juvenile court abused its discretion in denying the putative father’s petition to legitimate J. M. See Neill, 320 Ga. App. at 827 (2).

Judgment affirmed.

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

       The legitimation proceeding in this case was initiated after the new Juvenile Code, including the current version of OCGA § 15-11-26, went into effect. See Ga. L. 2013, pp. 294, 514, § 5-1.

       The putative father subsequently filed a motion to vacate the September 1 Order, and the trial court held an evidentiary hearing on the motion on September 22, 2015. The trial court issued an order denying the motion on October 2, 2015 (the “October 2 Order”). However, the putative father had filed his application for discretionary appeal of the September 1 Order the day before, on October 1, 2015. This Court granted the application on October 23, 2015, and the putative father filed his notice of appeal in this case the same day. Although the notice of appeal referenced both the September 1 and October 2 Orders, and he cites evidence presented at the September 22 hearing in his appellate brief, the putative father confines his appellate argument and request for relief to seeking reversal of the September 1 Order and not the October 2 Order. Therefore, we will consider any argument regarding the October 2 Order to be abandoned and will instead confine our review to the September 1 Order, and we will not consider the evidence from the September 22 hearing, as such evidence was not available to the juvenile court when it issued its September 1 Order.

       See OCGA § 19-7-24 (“It is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until the child reaches the age of 18 or becomes emancipated, except to the extent that the duty of one parent is otherwise or further defined by court order.”).

       In fact, the putative father’s appellate counsel stated at the September 22, 2015 hearing on the motion to vacate that she chose to file a motion to vacate instead of an application for discretionary appeal following entry of the September 1 Order, because her review of the transcript from the April 2 7 hearing revealed that “there just weren’t any reversible errors that jumped out at me” and that she “could not find that the Court had made a mistake.”


author: DOYLE, Chief Judge.

text:
    A16A0663.
    WEATHERS et al. v. DIENIAHMAR MUSIC, LLC et al.
    (788 SE2d 852)
   DOYLE, Chief Judge.

In a dispute involving a music publishing business, Eddie Weathers and his company, All-Weather, LLC (collectively “Weathers”), sued Dieniahmar Music, LLC (“DML”), EMI April Music, Inc., EMI Blackwood Music, Inc., Willie Carter, and Jermaine D. Mauldin a/k/a Jermaine Dupri (“Mauldin”), alleging claims for breach of contract, fraud, conversion, breach of fiduciary duty, tortious interference with a contract, and slander of title. Weathers appeals from the dismissal of his claims, contending that the trial court erred because (1) Weathers has demonstrated a basis for personal jurisdiction over EMI under Georgia’s Long Arm Statute; (2) Weathers pleaded sufficient facts to allege breach of contract claims against Carter, Mauldin, and DML; (3) Weathers pleaded sufficient facts to allege fraud claims against Carter, Mauldin, and DML; and (4) the trial court applied the wrong standard to decide the defendants’ motions to dismiss for failure to state a claim. For the reasons that follow, we affirm in part, reverse in part, and remand the case.

“On appeal, we review a trial court’s decision to grant or deny a motion to dismiss de novo. In reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant’s favor.”

As alleged in the complaint, in June 2005, Weathers and Mauldin co-founded a music publishing company, DML, and were the only two members of the company, each having 50 percent equity In March 2006, DML, Mauldin, and EMI executed an amendment to a preexisting co-publishing agreement resulting in EMI paying DML royalties and for other music publication rights for music developed by DML (“Co-Publishing Agreement”). As part of this process, Maul-din allegedly represented that he was the sole owner of DML, but the complaint also alleges that EMI was aware of Weathers’s equity in DML, and Mauldin and Weathers were each paid $75,000 as an advance on the deal.

Weathers managed the day-to-day operations of DML, and Maul-din recruited recording artists and song writers. EMI paid DML royalty payments to publish music from the DML catalogue. All of the monies paid by EMI to DML allegedly were paid to Mauldin, and in 2008, Weathers received a payment of $275,752.97 representing two years of back payments of his share under the Co-Publishing Agreement. Between 2008 and 2011, Weathers received 50 percent of all royalty payments.

Weathers alleges that in 2011, he became aware that he still was not receiving his full share of monthly payments made by EMI to DML. Without consulting Weathers, Mauldin hadsought andreceived multiple advances, in $100,000 increments, from EMI to DML. In April 2013, when Weathers asked Mauldin about certain missing payments, Mauldin informed him that he was considering selling the DML catalogue to EMI for $500,000. Mauldin allegedly promised to pay Weathers 50 percent of the net proceeds of the sale, but this included a reduction for a recent $100,000 advance payment, resulting in $400,000 net proceeds.

In July 2013, Mauldin sold DML to EMI “without the permission, consent, or authorization of Weathers.” Weathers was dissatisfied with the sale price, but could not get in touch with Mauldin. When he finally did, Mauldin confirmed the sale and, along with Carter (Mauldin’s business manager), told Weathers that the sale proceeds had been placed in a trust and that Weathers would receive $250,000 within 30 days. That month, Mauldin transferred $10,000 to Weathers. The next month, Weathers received another $10,000, but Weathers alleges he never received full payment on proceeds from the sale and past due royalties.

Weathers and All-Weather, LLC, sued DML, EMI, Mauldin, and Carter. The defendants answered, and each moved to dismiss for failure to state a claim, with EMI also asserting lack of personal jurisdiction. Following a hearing, the trial court granted EMI’s motion on the ground of lack of personal jurisdiction and the remaining defendants’ motions to dismiss for failure to state a claim. Weathers now appeals.

1. Weathers challenges the trial court’s ruling that it lacked personal jurisdiction over EMI. Based on the record before us, we conclude that the trial court erred by ruling that Weathers “failed to present sufficient admissible evidence to establish that EMI, a nonresident, has engaged in conduct or business invoking the long-arm statute.”

As an initial matter,

[w]hen a defendant moves to dismiss for lack of personal jurisdiction, he has the burden of proving that he is not subject to the jurisdiction of the court. Where the motion is decided without an evidentiary hearing and based solely upon the written submissions of the parties ..., any disputes of fact must be resolved in the light most favorable to the party asserting the existence of personal jurisdiction, and we review the decision of the trial court de novo.

The trial court noted in its order, without citation to legal authority, that it considered “all matters of record... [and] heard the oral argument of all those parties present at the hearing . . . but it is not clear from the record what evidence, if any, EMI submitted. Further, as noted above, Weathers did submit an affidavit supporting his argument in favor of the court’s jurisdiction over EMI. To the extent that the trial court dismissed EMI because Weathers failed to “present sufficient admissible evidence” demonstrating personal jurisdiction, it erred because it was EMI’s burden to demonstrate the court’s lack of jurisdiction.

Turning to the merits of the jurisdiction question,

Georgia’s Long Arm Statute[, OCGA § 9-10-91 (1),] permits the exercise of personal jurisdiction over a nonresident defendant if he, personally or through an agent, “transacts any business within this State.” In Innovative Clinical &c. Svcs. v. First Nat. Bank &c.,[] our Supreme Court explained that “OCGA § 9-10-91 (1) grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State to the maximum extent permitted by procedural due process,” and it overruled all prior decisions that interpreted “transacts any business within this State” more narrowly.

In doing so, the Supreme Court gave a literal interpretation to the phrase “transacts any business,” and noted that prior cases had failed “to accord the appropriate breadth to the construction of” that phrase. Therefore, Georgia’s long arm jurisdiction under OCGA § 9-10-91 (1) is broadly construed and bound only by notions of procedural due process.

In determining the limits of procedural due process, this Court applies a three-part test: Jurisdiction exists on the basis of transacting business in this State if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this State, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this State does not offend traditional notions of fairness and substantial justice. We analyze the first two prongs of this test to determine whether a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction. And if such minimum contacts are found, we then analyze the third prong of the test to consider whether the exercise of jurisdiction is “reasonable”—thatis, to ensure that it does not result solely from random, fortuitous^] or attenuated contacts. Importantly, the application of the minimum-contacts rule will vary with the quality and nature of the defendant’s activity. Nevertheless, it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

(a) Purposeful act or transaction in Georgia. Here, EMI argues that it never physically conducted business or signed any contract in Georgia, relying on its assertion that it only conducted limited business with DML using the telephone, mail, and Internet. But

nothing in subsection (1) of OCGA § 9-10-91 requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State. To the contrary, Georgia allows the assertion of long-arm jurisdiction over nonresident defendants based on business conducted through postal, telephonic, and Internet contacts. And a single event may be a sufficient basis if its effects within the forum are substantial enough.

The record before us shows that EMI’s relevant contact with Georgia stems in part from the Co-Publishing Agreement with DML. That agreement created an ongoing relationship whereby DML, a Georgia business co-owned and operated by Georgia residents, would develop and broker musical talent (also Georgia residents) for profitable publication by EMI elsewhere. This relationship resulted in multiple, ongoing payments to DML for a variety of continued uses of artistic work identified and developed by DML over a period of ten years. Further, EMI’s subsequent purchase of Georgia-based DML establishes additional contact with Georgia. Also, there is evidence that, as part of its music publishing business, EMI leased a recording studio located in Atlanta, and its employees operated out of the studio to conduct EMI’s business. These facts demonstrate purposeful acts and business transacted in Georgia on the part of EMI.

(b) Cause of action is connected with EMI’s Georgia activity. It is undisputed that the present litigation arose because of EMI’s co-publishing agreement and purchase of DML. Weathers’s status as a co-owner of DML demonstrates a clear connection between EMI’s contacts with Georgia and Weathers’s claims.

(c) Exercise of jurisdiction in Georgia is reasonable. Finally, EMI’s arrangement with DML and its resulting activities in Georgia provided fair warning that it may be subject to the jurisdiction of a Georgia court. EMI purchased music publication rights from a Georgia company, made routine royalty payments to the Georgia company, leased a studio in Georgia to develop Georgia artists, and ultimately purchased the Georgia company it dealt with. “Georgia has an interest, as does every state, in providing its own citizens with a convenient forum for redressing injuries wrought by nonresidents who have sought the state’s citizens out for the purpose of business gain.” Accordingly, we conclude that the trial court erred by dismissing EMI for lack of personal jurisdiction. The judgment dismissing EMI on jurisdictional grounds is reversed, and the case is remanded for consideration of EMI’s motion to dismiss on the merits of Weathers’s claims against EMI.

2. Weathers also contends that the trial court erred by dismissing the breach of contract claims against Carter, DML, and Mauldin. We agree in part.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

To state a claim for breach of contract, Weathers’s complaint must generally allege a factual framework showing

parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate. Each of these four essential terms must be certain. In order that it may allege an agreement, a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it.

(a) Breach of contract as to Carter. As alleged in the complaint, Carter’s role over the course of the relevant transactions was to act as Mauldin’s business manager. The complaint does not allege any contractual agreement between Carter and Weathers, nor does it allege that Carter, acting for himself, wrongfully withheld money owed Weathers pursuant to a contract with Carter. Accordingly, there is no set of provable facts within the framework alleged by the complaint that would result in Carter’s liability to Weathers for breach of contract, and the trial court correctly dismissed this claim against Carter.

(b) Breach of contract as to Mauldin and DML. The essence of Weathers’s complaint is that (1) Mauldin was paid revenue from EMI, which revenue he did not properly share with Weathers, (2) Mauldin wrongfully sold DML, and (3) Mauldin did not fully share the proceeds of the sale with Weathers. These claims arise from the alleged co-ownership of DML by Weathers and Mauldin and the operating agreement governing their relationship in DML. We note that the record does not contain these agreements, so our review is confined to the allegations in the complaint. Nevertheless, viewed in the proper light on a motion to dismiss, the facts alleged in the complaint, if later proven, could demonstrate liability on the part of Mauldin, for example, for failing to share with Weathers the revenue paid to DML by EMI as agreed in the operating agreement, or for failing to share the proceeds of the sale of DML according to the equity allocation in the operating agreement. As noted above,

[a] motion to dismiss should only be granted if the allegations of the complaint, construed most favorably to the plaintiff, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. Stated somewhat differently, a motion to dismiss should not be granted unless the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Similarly, with respect to DML itself, the facts alleged could, if proven, support a breach of contract claim, for example, based on the fact that the company, under the control of Mauldin, failed to properly compensate Weathers for his role in the company We are not in a position at this point to parse out the relative liability between Mauldin and DML, but the record at this stage alleges potential claims for breach of contract as to both. Accordingly, the trial court erred by dismissing the breach of contract claims against Mauldin and DML.

3. Weathers next contends that the trial court erred by dismissing his fraud claims against Mauldin, DML, and Carter. We agree.

As noted above, “[t]he tort of fraud requires a willful misrepresentation of a material fact, made to induce another to act, upon which such person acts [or avoids acting] to his injury.”

Although fraud must be pled with particularity under OCGA § 9-11-9 (b), a complaint alleging fraud should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief. Rather than move to dismiss, a defendant seeking greater particularity may either move for a more definite statement or wait for the outcome of discovery.

Here, Weathers’s complaint alleged that Mauldin, Carter, and DML (through Mauldin) knowingly made misrepresentations about placing the proceeds of the sale of DML into an allegedly nonexistent trust and that Weathers would be paid $250,000 from that trust within 30 days. Weathers alleged that he relied on these misrepresentations, and as a result of not being paid, he lost revenue and other business opportunities. Viewing these allegations in the light most favorable to Weathers, as is proper, we conclude that Weathers might be able to prove a set of facts that would support his fraud claims. Accordingly, the trial court erred by dismissing the fraud claims as to Carter, Mauldin, and DML at this stage of the proceedings.

4. Finally, Weathers contends that the trial court erred by applying the wrong standard to the defendants’ motions to dismiss, thereby incorrectly placing a burden upon Weathers to proffer evidence to overcome their motions. It is well settled that a motion to dismiss under OCGA § 9-11-12 (b) (6) for failure to state a claim

should be granted only when: the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Here, the trial court’s dismissal orders state that the trial court “considered all matters of record in this action... and has determined that good cause exists for the relief” requested by the defendants. In the order addressing Weathers’s failure to state his claims, the trial court concluded that Weathers “failed to present sufficient admissible evidence to establish” the claims asserted in the complaint. But no discovery had been conducted, and the defendants did not submit evidence in support of their motions to dismiss. Instead,

in ruling on the motion to dismiss, the trial court was required to view the allegations and documents in the pleadings in [Weathers’s] favor [regardless of the absence of evidence] and then limit its determination to whether there was any possibility that [he] would be able to produce sufficient evidence at trial to prove that [he] was entitled to relief.
Although a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when [the court] does so it converts the motion to dismiss into a motion for summary judgment, governed by OCGA § 9-11-56. In accordance with this procedure, the trial court has the burden of informing a plaintiff that it will be considering exhibits attached to the defendant’s motion to dismiss and that the plaintiff would have no less than 30 days within which to submit his own evidence in response to the motion for summary judgment.

Decided July 7, 2016.

Wayne B. Kendall, for appellants.

Alan S. Clarke & Associates, Alan S. Clarke; Stokes Wagner, Hayden R. Pace, for appellees.

The trial court did not employ this procedure here, and no evidence was submitted in support of the motions to dismiss. In light of our rulings in Division 2, any resulting error was not harmful as to every issue. For purposes of remand as to EMI, we emphasize the proper standard.

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

Barnes, P. J., and Boggs, J., concur.

       The EMI defendants are referred to collectively as “EMI.”

       OCGA § 9-10-90 et seq.

       Weathers does not challenge the dismissal of his claims for conversion, breach of fiduciary duty, tortious interference with a contract, or slander of title as to Carter, Mauldin, and DML. Therefore, those claims are deemed abandoned. See Young v. Turner Heritage Homes, 241 Ga. App. 400, 401 (2) (526 SE2d 82) (1999) (matters not enumerated as error are deemed abandoned).

       (Citation and punctuation omitted.) Surette v. Henry County Bd. of Tax Assessors, 332 Ga. App. 457, 458 (773 SE2d 416) (2015).

       Weathers claims that the $20,000 payments reduced what he was already owed for royalty payments.

       (Citation omitted.) Paxton v. Citizens Bank and Trust of West Ga., 307 Ga. App. 112, 113 (704 SE2d 215) (2010).

       279 Ga. 672, 675 (620 SE2d 352) (2005).

       (Citation and punctuation omitted.) Paxton, 307 Ga. App. at 115.

        Innovative Clinical &c. Svcs., 279 Ga. at 676.

       (Punctuation and footnotes omitted.) American College Connection, Inc. v. Berkowitz, 332 Ga. App. 867, 870 (775 SE2d 226) (2015).

       (Punctuation, footnotes and emphasis omitted.) Id. at 870-871.

        See American College Connection, 332 Ga.App. at 872 (finding personal jurisdiction was proper because the foreign defendant hired “a Georgia resident ... to assist the company in obtaining additional clients from Georgia”).

       See Crossing Park Properties v. JDI Fort Lauderdale, 316 Ga.App. 471, 477 (729 SE2d 605) (2012) (“negotiating with a Georgia broker and sending documents to a Georgia resident for execution in Georgia provided fair warning that it might be subject to suit in Georgia”).

        See American College Connection, 332 Ga.App. at 872.

       (Punctuation omitted.) Crossing Park Properties, 316 Ga.App. at 477.

       See, e.g., McRae v. Hogan, 317 Ga.App. 813, 821 (3) (b) (732 SE2d 853) (2012) (remanding for consideration of issues not ruled upon by the trial court).

       (Citation and punctuation omitted.) Best Jewelry Mfg. Co. v. Reed Elsevier Inc., 334 Ga. App. 826, 826-827 (780 SE2d 689) (2015).

       (Citation and punctuation omitted.) Laverson v. Macon Bibb County Hosp. Auth., 226 Ga. App. 761, 762 (487 SE2d 621) (1997), quoting OCGA § 13-3-1.

       We note that Weathers’s appellate brief states that a number of exhibits, including the DML operating agreement and the Co-Publishing Agreement, were attached to his complaint but are not present in the appellate record. Certain responses in the defendants’ answers imply that they were served with the exhibits along with the complaint. Nevertheless, Weathers states that the trial court clerk has no record of those exhibits, and he has not made any attempt to supplement the appellate record. Our review is, as always, based on the record before us, and we resolve the issues presented in this appeal by reference to the allegations in the complaint, despite the absence of any attached exhibits.

       See, e.g., Webb v. Bank of America, N.A., 328 Ga.App. 62, 63 (761 SE2d 485) (2014) (facts alleged in plaintiff’s complaint could support claim for breach of contract).

       (Punctuation and footnote omitted.) Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007).

       See generally Webb, 328 Ga. App. at 64 (“[F]actual evidence which may or may not be developed during discovery . . . can be considered on a subsequent motion for summary judgment.”).

       (Punctuation omitted.) Avery v. Chrysler Motors Corp., 214 Ga. App. 602, 603 (1) (448 SE2d 737) (1994).

       (Citations and punctuation omitted.) Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 284 Ga. App. 387, 394 (2) (b) (643 SE2d 864) (2007).

       See id.

       (Punctuation omitted.) Common Cause/Ga. v. City of Atlanta, 279 Ga. 480, 481 (614 SE2d 761) (2005).

       (Emphasis supplied.)

        Islam v. Wells Fargo Bank, N.A., 327 Ga. App. 197, 201 (1) (757 SE2d 663) (2014). See also Speedway Motorsports, Inc. v. Pinnacle Bank, 315 Ga. App. 320, 323 (1) (727 SE2d 151) (2012) (“[A] plaintiff has no obligation to anticipate and plead away any defenses in his complaint.”).

       (Citation and punctuation omitted.) Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 751 n. 4 (751 SE2d 545) (2013).

       With respect to the motion to dismiss on personal jurisdiction grounds, Weathers did submit an affidavit addressing personal jurisdiction in Georgia over both EMI defendants. Consideration of matters outside the pleadings on an OCGA § 9-11-12 (b) (2) motion to dismiss for lack of personal jurisdiction does not convert the motion to one for summary judgment. See, e.g., Church v. Bell, 213 Ga. App. 44, 45 (443 SE2d 677) (1994) (“Under OCGA § 9-11-12 (b), ... only motions under OCGA § 9-11-12 (b) (6), failure to state a claim upon which relief can be granted, are converted to motions for summary judgment when matters outside the pleadings are considered.”) (punctuation omitted); Behar v. Aero Med Intl., Inc., 185 Ga. App. 845 (1) (366 SE2d 223) (1988) (“Amotion to dismiss for lack of personal jurisdiction is a motion in abatement and not a motion in bar. Thus, motions to dismiss for lack of personal jurisdiction cannot be disposed of as motions for summary judgment.” (citations omitted)). Therefore, this affidavit did not alter the procedural posture of the motion to dismiss.