text:
    A14A2204.
    RIVER FOREST, INC. et al. v. MULTIBANK 2009-1 RES-ADC VENTURE, LLC.
    (771 SE2d 126)
   BARNES, Presiding Judge.

The trial court granted summary judgment in favor of Multibank 2009-1 RES-ADC Venture, LLC (“Multibank”) on its claims for breach of a promissory note and guarantees and for attorney fees brought against River Forest, Inc. and David W. Aldridge (collectively, the “defendants”). On appeal, the defendants contend that the trial court must be reversed because Multibank (1) failed to show that it was the “holder” under the Uniform Commercial Code (“UCC”) of a “note modification” entered into after the original note; (2) failed to establish a prima facie right to recover the underlying debt from the defendants by not producing the note modification; (3) failed to properly sue on, or move for summary judgment on, the note modification in addition to the original note; and (4) failed to pierce the defendants’ affirmative defenses. For the reasons discussed below, we conclude that the trial court committed no error in granting summary judgment to Multibank and therefore affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Salahat v. Fed. Deposit Ins. Corp., 298 Ga. App. 624, 625 (680 SE2d 638) (2009).

So viewed, the record shows that on January 29, 2007, River Forest executed and delivered to FirstCity Bank a promissory note in the principal amount of $971,000 (the “Original Note”). The Original Note provided that the principal balance would be due on February 1, 2009, and established a variable interest rate between 9.25 percent and 18 percent during the term of the loan. If collection efforts were instituted by FirstCity, the Original Note provided that River Forest would pay attorney fees in the amount of 15 percent of the unpaid principal and interest, plus court costs. The Original Note further provided that FirstCity “may at [its] option extend this note or the debt represented by this note . . . without affecting [River Forest’s] liability for payment of the note.”

On the same day that the Original Note was executed, Aldridge, the president of River Forest, executed and delivered to FirstCity a personal guaranty for the debt owed by River Forest (the “Original Guaranty”). The Original Guaranty obligated Aldridge to repay the indebtedness evidenced by the Original Note and “any and all extensions, renewals, modifications, amendments, replacements and consolidations of such note.”

On February 1, 2009, River Forest and FirstCity entered into a “Note Modification” that modified and extended the terms of the Original Note. Among other things, the Note Modification extended the maturity date of the Original Note to February 1, 2010, and lowered the interest rate on the Original Note to a fixed rate of 6 percent. The Note Modification also recited that upon an additional interest payment by River Forest on the date of the modification, “the principal balance of the indebtedness willbe $693,900.” Additionally, the Note Modification recited that “[River Forest] affirms all terms and conditions of the [Original] Note,... except as otherwise modified herein.”

On the same day that the Note Modification was executed, Aldridge executed and delivered to FirstCity a related personal guaranty (the “Second Guaranty”). The Second Guaranty obligated Aldridge to repay any indebtedness owed by River Forest to FirstCity as evidenced by any promissory note and “any and all extensions, renewals, modifications, amendments, replacements and consolidations of such note.”

On March 20, 2009, FirstCity was closed by the Georgia Department of Banking and Finance, and the Federal Deposit Insurance Corporation (“FDIC”) was named as receiver. On February 9, 2010, the FDIC assigned all of its right, title, and interest in the Original Note “and any amendments, modifications or changes thereto,” the Original Guaranty, and the Second Guaranty to Multibank. The FDIC also transferred to Multibank the loan transaction records and payment history for the loan made to River Forest.

River Forest and Aldridge failed to repay the outstanding principal balance and accrued interest on the Original Note by the revised maturity date of February 1,2010. Multibank thereafter brought the instant suit against them, seeking the unpaid principal balance, accrued interest, and attorney fees. Attached to Multibank’s complaint were the Original Note, the Original Guaranty, and the Second Guaranty, but not the Note Modification. The complaint alleged that River Forest had breached the Original Note “as renewed” and that Aldridge had breached the Original Guaranty and Second Guaranty. It did not make specific reference to the Note Modification.

Multibank moved for summary judgment on its claims against the defendants and submitted the affidavit of Jonathan Levy, the attorney-in-fact for the entity serving as manager of Multibank. Levy averred that he had personal access to and control of Multibank’s loan files and records, which were created and maintained by Multibank in the ordinary course of its business, and that he had personal knowledge of their contents, including knowledge of the status and payment history of the Original Note and “all modifications and renewals thereto.” Levy further averred that Multibank had possession of the Original Note, the Original Guaranty, and the Second Guaranty, and he referenced and authenticated the originals of those instruments, which were attached as exhibits to his affidavit. According to Levy, Multibank received these instruments when the FDIC assigned and transferred them to Multibank in the ordinary course of business, pursuant to an allonge, omnibus assignment, and limited power of attorney document, all of which also were attached to his affidavit and authenticated by him. Finally, Levy referenced and authenticated as business records the loan transaction records and payment history for the Original Note, which included entries reflecting the extension of the maturity date to February 1, 2010, and the lowering of the interest rate to a fixed rate of 6 percent. Levy, however, did not expressly make reference to the Note Modification or attach it to his affidavit.

In opposing summary judgment, the defendants did not dispute that they had executed the Original Note, First Guaranty, and Second Guaranty, or come forward with any evidence contradicting the payment history attached to Levy’s affidavit. Rather, the defendants focused on the Note Modification, a copy of which was attached to and authenticated in an affidavit submitted by Aldridge. Because Multibank had not produced or otherwise shown that it possessed the Note Modification in addition to the Original Note, the defendants argued, among other things, that Multibank had failed to establish that it was the “holder” of the “full and complete” negotiable instrument under the UCC and had failed to establish a prima facie case for recovery.

The trial court rejected the arguments raised by the defendants and granted summary judgment in favor of Multibank on all of its claims. The trial court determined that the uncontroverted evidence showed that Multibank was entitled to enforce the obligations set forth in the Original Note, Note Modification, Original Guaranty, and Second Guaranty against the defendants. This appeal followed.

1. The defendants contend that the trial court’s summary judgment order must be reversed because Multibank failed to prove that it was the “holder” of the full and complete negotiable instrument under the UCC. According to the defendants, Multibank was not entitled to recover the debt evidenced by the Original Note because Multibank failed to show that it was in possession of the Note Modification, and thus failed to show that it was in possession of the entire negotiable instrument. We are unpersuaded.

A promissory note is a negotiable instrument subject to Article 3 of the UCC. You v. JP Morgan Chase Bank, 293 Ga. 67, 73 (1) (743 SE2d 428) (2013). See OCGA § 11-3-104 (a) (defining “negotiable instrument”). Article 3 provides that the ability to recover on a particular note is held by the “person entitled to enforce” the note under OCGA § 11-3-301. To enforce a note under the most frequently employed method under Article 3, the person must be the “holder” of the note. OCGA § 11-3-301 (i). See You, 293 Ga. at 73 (1); Salahat, 298 Ga. App. at 628 (2). The person is the “holder” of the note if he is “in possession” of a note that is “payable either to bearer or to an identified person that is the person in possession.” OCGA § 11-1-201 (20) (2002). This statutory language makes clear that possession of the note is a prerequisite to obtaining the status of “holder.” See Jenkins v. Wachovia Bank, N.A., 309 Ga. App. 562, 564 (1) (711 SE2d 80) (2011).

The question in this case is whether Multibank had to possess both the Original Note and the Note Modification to be a “holder” entitled to bring suit and enforce the underlying debt obligation against the defendants. We conclude that Multibank did not have to possess both the Original Note and the Note Modification because the Note Modification was a renewal of the Original Note rather than a novation.

Notably, the statutory provisions at issue in this case do not specifically address “holder” status under the circumstance where a promissory note has been renewed. However, we have held that “[a] note taken in renewal of an existing note is but a contract modifying the terms of the existing note, and [it] creates no new obligation to pay[.]” Cairo Banking Co. v. Hall, 42 Ga. App. 785 (4) (157 SE 346) (1931). And under the rationale that a renewal represents the same underlying indebtedness as the original note, several courts have held that “[w]here renewal notes are involved, the holder may sue either on the renewal note or on the original note.” (Emphasis supplied.) Smith v. First Pasadena State Bank, 401 SW2d 123, 127 (Tex. App. 1966). “This rule holds true unless there has been a proven novation” of the original note. Thompson v. Chrysler First Business Credit Corp., 840 SW2d 25, 29 (Tex. App. 1992). See Fed. Deposit Ins. Corp. v. Waggoner, 999 F2d 826, 829, n. 3 (5th Cir. 1993); Cadle Co. v. Wallach Concrete, 897 P2d 1104, 1106, n. 1 (N.M. 1995). Accordingly, under the reasoning of these foreign courts, if an original note has been renewed rather than extinguished through a novation, it is sufficient for a person seeking to recover the outstanding debt to bring suit as the “holder” of the original note.

We find the reasoning of these cases from foreign jurisdictions persuasive and adopt the same rule. It follows that if the Note Modification was a renewal of the Original Note rather than a novation, Multibank was entitled to bring suit and enforce the underlying debt against the defendants so long as Multibank demonstrated that it was the “holder” of the Original Note. Accord Cairo Banking Co., 42 Ga. App. at 785 (4) (holding that renewal of promissory note did not change the status of a “holder in due course” of the original note).

Anovation has four elements: “(1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, and (4) the validity of the new one. If these essentials, or any one of them, are wanting, there can be no novation.” (Citation and punctuation omitted.) Brown v. Lawrenceville Properties, 309 Ga. App. 522, 524 (1) (710 SE2d 682) (2011).

[Wjhere, after the execution of a promissory note, a renewal or new note is executed for the same debt, it is the general rule that the second instrument does not of itself operate as a... novation extinguishing the first note, unless there is an agreement between the parties to that effect.

(Citations and punctuation omitted.) Feely v. First American Bank of Ga., 206 Ga. App. 53, 57 (2) (b) (424 SE2d 345) (1992). Furthermore, “[a] new note given in lieu of an existing note between the same parties and for the same indebtedness, even at a higher rate of interest and due at a later date, is not given for a new consideration, and therefore does not constitute a novation.” (Citation and punctuation omitted.) Cohen’s Dept. Stores v. Siegel, 60 Ga. App. 79, 80 (2 SE2d 762) (1939). See Motor Contract Div. of Trusco Finance Co. v. Southern Cotton Oil Co., 76 Ga. App. 199, 203 (45 SE2d 291) (1947).

In the present case, the Note Modification changed some of the terms of the Original Note, such as the interest rate and maturity date, but it did not add to or subtract from the principal indebtedness owed by the defendants. The parties also stated in the Note Modification that their intent was “to modify certain terms of [the Original] Note” and that the defendants were “affirm [ing] all terms and conditions of the [Original] Note, . . . except as otherwise provided herein.” Thus, the parties clearly did not intend for the Note Modification to extinguish the Original Note altogether. Under these circumstances, the uncontroverted evidence shows that the Note Modification was a renewal of the Original Note rather than a novation. See Motor Contract Div. of Trusco Financial Co., 76 Ga. App. at 203; King v. Edel, 69 Ga. App. 607, 611-614 (26 SE2d 365) (1943); Cohen’s Dept. Stores, 60 Ga. App. at 80. Compare Gilbert v. Cobb Exchange Bank, 140 Ga.App. 514 (231 SE2d 508) (1976) (second note was novation of first note where second note added $600 to the principal balance owed on the debt).

Because the Note Modification was a renewal of the Original Note, it was sufficient for Multibank to bring suit as the “holder” of the Original Note. See supra footnote 3. And the defendants do not dispute on appeal that Multibank possessed and was the “holder” of the Original Note. Consequently, the defendants have failed to show that the trial court erred in concluding that Multibank was a “holder” entitled to bring suit to enforce the underlying debt against them.

2. The defendants further contend that the trial court’s summary judgment order must be reversed because Multibank failed to establish a prima facie right to recover on the debt. According to the defendants, Multibank could not make out a prima facie case for recovery because it failed to produce the Note Modification when moving for summary judgment. We disagree.

A plaintiff seeking to enforce a promissory note establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish an affirmative defense.

(Citation omitted.) Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 863 (2) (734 SE2d 847) (2012).

In moving for summary judgment, Multibank, through the affidavit of Jonathan Levy, produced and authenticated the Original Note, the Original Guaranty, and the Second Guaranty, all of which contained language contemplating renewals of the Original Note. In his affidavit, Levy also produced and authenticated the documents reflecting the transfer and assignment of the Original Note “and any amendments, modifications or changes thereto,” the Original Guaranty, and the Second Guaranty to Multibank by the FDIC as receiver for FirstCity. Lastly, Levy produced and authenticated in his affidavit the loan transaction records and payment history for the Original Note, which included entries reflecting the modification of the maturity date to February 1,2010, and the modification of the interest rate to a lower fixed rate of 6 percent.

Although Multibank did not produce the Note Modification, the defendants, through the affidavit of Aldridge, produced and authenticated a copy of it. After the defendants produced a copy of the Note Modification, Multibank did not dispute its authenticity or contest its application in calculating the amount owed by the defendants in this case.

We conclude that the trial court was entitled to take into account this combined evidence and find that Multibank had established a prima facie right to recover the underlying debt owed by the defendants, as reflected in the Original Note together with the Note Modification. While normally a plaintiff will establish its prima facie case by itself producing and authenticating the negotiable instrument and all pertinent modifications thereto, we discern no reason why a different rule should apply simply because the defendant produced and authenticated some part of the loan documents. To draw such a distinction would elevate form over substance, particularly where, as here, the plaintiff did not contest the authenticity and applicability of the loan documents produced by the defendant. Accordingly, the trial court did not err in concluding that Multibank had established a prima facie right to recovery.

3. The defendants next contend that the trial court’s summary judgment order must be reversed because Multibank “did not sue on, or move for summary judgment on,” the Note Modification in addition to the Original Note. Again, we disagree.

As an initial matter, although Multibank’s complaint did not specifically reference the Note Modification, it did allege that the Original Note “as renewed” had been breached by the defendants. (Emphasis supplied.) Furthermore, in its motion for summary judgment, Multibank argued that the defendants had failed to pay the outstanding principal balance and all accrued interest owed on the Original Note, “as modified, renewed and/or extended.”

In any event, as discussed in Division 1, when a promissory note has been renewed, a holder has the option of suing on either the original note or the renewal. See supra footnote 3. Because the Note Modification was a renewal of the Original Note, Multibank was entitled to sue on the Original Note. With respect to summary judgment, the Note Modification was produced and authenticated by the defendants without objection from Multibank, and, as explained in Division 2, it would elevate form over substance to draw a distinction, for purposes of summary judgment, between which party produced the Note Modification.

Decided March 20, 2015

Wilson Brock & Irby, Kyler L. Wise, for appellants.

Hartman, Simons & Wood, Samuel R. Arden, for appellee.

As part of this enumeration of error, the defendants also contend that Multibank’s failure to expressly reference the Note Modification in its complaint and motion for summary judgment led the trial court to ignore the application of the Note Modification and enter judgment “on the wrong negotiable instrument and for the wrong indebtedness.” But the trial court expressly found that Multibank was “entitled to enforce the obligations set forth in the promissory note, note modification and note guarantees,” and thus clearly took into account the Note Modification that had been produced and authenticated by the defendants. (Emphasis supplied.) The defendants’ contention thus is without merit.

4. Finally, the defendants contend that the trial court’s summary judgment order must be reversed because Multibank failed to pierce their affirmative defenses. In support of this contention, the defendants argue that Multibank failed to make out a prima facie right to recovery. They further argue that Multibank failed to demonstrate that it was the “holder” of the entire negotiable instrument, and thus failed to show that it had standing and was the real party in interest to pursue the action. The defendants’ arguments fail for the reasons discussed in Divisions 1 and 2.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       OCGA § 11-3-301 provides:
      “Person entitled to enforce” an instrument means (i) the holder of the instrument; (ii) a nonholder in possession of the instrument who has the rights of a holder; or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Code Section 11-3-309 or subsection (d) of Code Section 11-3-418. Aperson may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
      Multibank does not rely upon subsection (ii) or (iii) of the statute. Accordingly, we address only whether Multibank is entitled to enforce the Original Note and any modifications thereto as a “holder” under subsection (i).

       In 2010, the General Assembly amended the definition of “holder” to include additional classes of persons. See Ga. L. 2010, p. 481, § 2-1; OCGA § 11-1-201 (20) (b), (c) (Supp. 2014). The amendment does not apply in this case. See Ga. L. 2010, p. 481, § 3-1 (“This Act does not apply to a right of action that has accrued before the effective date of this Act [May 27, 2010].”); Chatham v. Ga. Pacific Corp., 163 Ga. App. 525 (295 SE2d 226) (1982) (cause of action on promissory note or guaranty accrues on the date the obligation becomes due and payable).

       See Fed. Deposit Ins. Corp. v. Waggoner, 999 F2d 826, 829, n. 3 (5th Cir. 1993); Lechleiter v. Lechleiter, 71 NE2d 845, 848 (Ill. App. Ct. 1947); Dyer v. Bray, 180 SE 83 (N.C. 1935); In re Foreclosure of a North Carolina Deed of Trust executed by L.L. Murphrey Co., 764 SE2d 221, 229 (N.C. Ct. App. 2014); Cadle Co. v. Wallach Concrete, 897 P2d 1104, 1106, n. 1 (N.M. 1995); Chapman v. Crichet, 95 SW2d 360, 363 (Tex. 1936); Thompson v. Chrysler First Business Credit Corp., 840 SW2d 25, 29 (Tex. App. 1992); Villarreal v. Laredo Nat. Bank, 677 SW2d 600, 607 (Tex. App. 1984).

       It is true that the renewal may contain provisions modifying some of the terms and conditions of the original note (such as the interest rate) that may have an effect on a plaintiff’s ultimate recovery, hut that is a separate issue from whether the plaintiff may bring suit as the “holder” of the original note.

       The Note Modification stated that the principal balance of the indebtedness would be $693,900 after an additional interest payment was made by River Forest. Through this statement, the parties were simply memorializing the current balance owed on the Original Note upon the payment of certain interest; there is nothing in the Note Modification itself or otherwise in the record to suggest that the parties intended to write off any portion of the principal balance owed on the Original Note by entering into the Note Modification.

       The Original Note provided: “[Borrower] agreefs] that [Lender] may at [its] option extend this note or the debt represented by this note, or any portion of the note or debt, from time to time without limit or notice and for any term without affecting [Borrower’s] liability for payment of the note.” The Original Guaranty and Second Guaranty provided:
      [Guarantor] hereby unconditionally guarantees the full and prompt payment when due ... of... any indebtedness evidenced by any Promissory Note ... executed by the Borrower and payable to the order of the Bank representing a loan... from the Bank to the Borrower, plus the interest specified in such note, and any and all extensions, renewals, modifications, amendments, replacements and consolidations of such note ....


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A14A2303.
    BELL v. WAFFLE HOUSE, INC.
    (771 SE2d 132)
   DOYLE, Presiding Judge.

Plaintiff George Bell appeals from the trial court’s award of attorney fees and litigation expenses under OCGA § 9-11-68 (b) (1), contending that the trial court erred by entering such an award in favor of defendant Waffle House, Inc., without holding an evidentiary hearing. For the reasons that follow, we affirm the award.

The record shows that Bell sued Waffle House after he was arrested following an altercation with a Waffle House waitress who alleged that Bell threw a plate at her. Pursuant to OCGA § 9-11-68, Waffle House tendered Bell an offer to settle the case for $25,000, but Bell rejected the offer, so Waffle House moved for summary judgment, which motion was granted by the trial court. Bell appealed that order, and this Court affirmed the judgment without opinion pursuant to Court of Appeals Rule 36. Bell petitioned the Supreme Court of Georgia for certiorari to review that decision, and the Supreme Court unanimously denied his petition.

Upon remittitur, Waffle House moved the trial court for an award of attorney fees pursuant to the offer of settlement provision in OCGA § 9-11-68 (b) (1). Waffle House attached exhibits showing that Bell had rejected its offer as well as an affidavit attesting to the amount of and reasonableness of legal fees and expenses incurred by Waffle House shown in attached billing records. Bell filed a two-page written response that reads in its entirety as follows:

Waffle House has failed to submit an affidavit for each attorney [for whom] it is seeking attorney fees. Waffle House has only submitted the affidavit of Robert Ingram. Waffle House has failed to submit the affidavits for Ryan Ingram, Shane Mayes, Tammi Brown and Angela H. Smith. “Each attorney for whose service [s] compensation is sought must provide admissible evidence of fees in the form of personal testimony, or through the testimony of the custodian of the applicable billing records, as an exception to the hearsay exclusion.” Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 669 [(476 SE2d 43)] (1996). Because each attorney has not submitted an affidavit, Waffle House is not entitled to those attorney fees.
WHEREFORE, the Court should deny Waffle House’s Motion for Attorney fees.

Bell did not challenge the reasonableness of the hourly rates or the time spent on the matter.

In reply, Waffle House argued that one affidavit from the lead attorney with personal knowledge of the case and billing was sufficient under the business records exception to the hearsay rule.

Thereafter, without holding a hearing, the trial court entered an order granting Waffle House’s motion and awarding $27,276.37 in legal fees and expenses. Bell filed this appeal, contending that the trial court erred by entering the award without a hearing.

OCGA § 9-11-68 (b) (1) provides as follows:

If a defendant makes an offer of settlement [in accordance with the Code section] which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

The statute requires the Court to award the payment of attorney fees and expenses of litigation upon receipt of proof that the judgment is one to which the provisions of the statute apply, but it is silent on whether or not a hearing is required.

With respect to other statutes awarding attorney fees, such as OCGA § 9-15-14, the Supreme Court has held that even in the absence of a hearing requirement in the Uniform Superior Court Rules, “[a] hearing is required in order to enter an award of attorney fees. That is because an oral hearing gives the party opposing attorney fees an opportunity to confront and challenge testimony with regard to the need for, and value of, legal services.” Likewise, in the context of an award under OCGA § 14-2-1604, which contains an automatic fee award under certain conditions and also lacks an explicit hearing requirement, this Court has held that “[a] party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services.”

Waffle House notes that OCGA § 9-11-68 (b) does not explicitly require a hearing, but another subsection, OCGA § 9-11-68 (e), does. Therefore, it argues that the General Assembly did not intend for a hearing to be required here. But even where the Code does not require hearings, Georgia’s courts have required hearings because such an award must be supported by evidence-based factual findings.

Pretermitting whether the trial court was required to hold a hearing under OCGA § 9-11-68 in this case, Bell waived the right to a hearing by his conduct. In his written response, Bell made no request for a hearing, he did not challenge the reasonableness of the hourly rates or the time spent on the matter, and he made only a procedural argument unrelated to the sufficiency of the evidence supporting Waffle House’s motion. The single issue raised by Bell— i.e., that the affidavit was procedurally flawed — did not require a hearing. Bell was given notice and an opportunity to respond to Waffle House’s request for attorney fees, and if he intended to contest the reasonableness of those fees or the substance of Waffle House’s evidence, he could have done so in his written response. In light of Bell’s response, it was reasonable for the trial court to conclude that Bell did not contest the reasonableness of the fees sought and did not need a hearing testing the evidence supporting those fees. There being no dispute as to the reasonableness of the fees, the trial court did not err by ruling on Bell’s legal argument and entering an award in favor of Waffle House without a hearing. Accordingly, because Bell makes no other challenge to the award on appeal, the award is affirmed.

Decided March 20, 2015.

Stevens, Stevens & Oliver, Ronald S. Stevens, Andrew M. Stevens, for appellant.

Moore Ingram Johnson & Steele, Robert D. Ingram, B. Chase Elleby, for appellee.

Judgment affirmed.

Miller and Dillard, JJ., concur.

        Bell v. Waffle House, 323 Ga. App. XXIII (July 1, 2013) (unpublished).

        Bell v. Waffle House, Case No. S13C1825 (January 6, 2014).

       We note that, perhaps due to a typographical error, this amount was exactly $100 more than the $27,176.37 sought by Waffle House in its motion, but this discrepancy is not material to our analysis on appeal.

       OCGA § 9-11-68. Here, Waffle House has demonstrated that it is entitled to reasonable attorney fees pursuant to this subsection.

       (Citation omitted; emphasis in original.) Evers v. Evers, 277 Ga. 132, 132 (1) (587 SE2d 22) (2003), citing Green v. McCart, 273 Ga. 862, 863 (1) (548 SE2d 303) (2001). See also Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (2) (447 SE2d 83) (1994) (remanding for a hearing to address a claim for fees pursuant to OCGA § 9-11-37 for discovery abuses), overruled in part on other grounds by Felix v. State, 271 Ga. 534, 537 (523 SE2d 1) (1999).

       (Punctuation omitted.) Motor Warehouse v. Richard, 235 Ga. App. 835, 836 (2) (510 SE2d 600) (1998).

       OCGA § 9-11-68 (e) provides, in part:
      Upon motion by the prevailing party at the time that the verdict or judgment is rendered, the moving party may request that the finder of fact determine whether the opposing party presented a frivolous claim or defense. In such event, the court shall hold a separate bifurcated hearing at which the finder of fact shall make a determination of whether such frivolous claims or defenses were asserted and to award damages, if any, against the party presenting such frivolous claims or defenses. . . .
      (Emphasis supplied.)

       See, e.g., Fair v. State, 284 Ga. 165, 167 (2) (b) (664 SE2d 227) (2008) (When interpreting a statute, courts must presume that an omission of certain statutory language included elsewhere was intentional.).

       See, e.g., Green, 273 Ga. at 863 (1); Rowan v. Reuss, 246 Ga. App. 139, 141 (1) (539 SE2d 241) (2000); C.A. Gaslowitz &Assocs. v. ZML Promenade, 230 Ga. App. 405, 406 (496 SE2d 470) (1998) .

       Compare Munoz v. American Lawyer Media, 236 Ga. App. 462, 467 (3) (a) (512 SE2d 347) (1999) (opposing party’s timely response specifically objecting to amount, reasonableness and necessity of fees was sufficient to preclude a waiver by opposing party’s conduct).

       As encouraged by the Court in Munoz, we reiterate that parties who desire evidentiary hearings should make timely requests for such, “as generally, the filing of a request for hearing will preclude waiver by conduct.” Id. at 467. See also Williams v. Becker, 294 Ga. 411, 413 (2) (a), n. 2 (754 SE2d 11) (2014) (“it is good practice to make a specific request for a hearing in response to a motion for attorney fees, since that will remind the trial court of the hearing requirement and weigh against any finding that a hearing was waived”). See generally Campbell v. Allen, 208 Ga. 274, 278 (1) (66 SE2d 226) (1951) (“To paraphrase the Latin maxim ‘Cessante ratione legis, cessat beneficium legis’ (meaning, the reason for the law ceasing, the benefit of the law ceases) —• where the real purpose of the rule is satisfied, the application of the rule itself ceases. Rules of court should be construed with reference to the reason upon which they rest, so as to promote the object which the framers of the rules had in adopting them, and to insure as far as possible just results in all cases and minimize possibilities of injustice being done to the parties.”).

       Bell does not challenge the reasonableness of the award on appeal, nor does he challenge the trial court’s ruling on the admissibility of Waffle House’s affidavit.


author: Dillard, Judge.

text:
    A14A1545.
    WIGGINS v. THE STATE.
    (771 SE2d 135)
   Dillard, Judge.

We granted Jack Wiggins’s application for interlocutory review of the trial court’s denial of his motion to suppress evidence discovered during a search of his home. On appeal, Wiggins argues that the search was invalid because there was insufficient probable cause to support the issuance of the search warrant. We agree, and for the reasons set forth infra, reverse.

Viewed in the light most favorable to the trial court’s ruling, the evidence shows that, on June 22, 2012, Samone Burnes, an undercover narcotics agent with the Kennesaw Police Department (“KPD”), received a written complaint from Lieutenant Graden, also with the KPD, conveying that an anonymous informant had given him information about Wiggins “selling narcotics at his residence and storing narcotics [there].” Agent Burnes later spoke with Lieutenant Graden regarding the complaint, but he did not tell her “anything about [the informant] or who he [was].” About a week later, Agent Burnes had a telephone conversation with the anonymous informant, who told her that Wiggins had an “indoor mushroom grow,” that he was selling “approximately 50 pounds of marijuana from [his] residence” each week, that the informant had seen the drugs in Wiggins’s home, and that there were cameras on the exterior of the house. But the informant did not advise Agent Burnes of when this alleged criminal activity occurred, and Burnes testified that she did not know if it occurred “five years ago or one week before [she] received the complaint.” Agent Burnes also did not learn anything about the informant during the call.

On June 27, 2012, Agent Burnes went to Wiggins’s residence to begin a surveillance operation. Approximately ten minutes after she arrived, Agent Burnes observed a male, later identified as Wiggins, and a female leave the house and drive away in Wiggins’s truck. Agent Burnes followed them, and she noticed that Wiggins was “driving pretty fast.” At her request, another KPD agent arrived, and after he observed Wiggins commit a traffic violation, he initiated a traffic stop. And while conducting the stop, the agent searched Wiggins’s truck because he smelled the odor of marijuana emanating from the vehicle. In doing so, the agent discovered a bag of marijuana, which weighed 19.7 grams (including the packaging), and a revolver in the glove box. Agent Burnes averred that the bag was “marked 17 (commonly marked for weight by drug dealers).”

Wiggins was arrested and issued citations for possession of marijuana and failure to maintain lane. Immediately thereafter, KPD agents went to Wiggins’s residence, where they observed cameras on the outside of his house. They also spoke with Wiggins’s female passenger, who told them that she had smoked marijuana at Wiggins’s house on “multiple occasions.” Ultimately, Agent Burnes requested and obtained a search warrant for Wiggins’s home, and in executing the warrant, KPD agents discovered numerous controlled substances and related paraphernalia.

In a twelve-count indictment, Wiggins was charged with possession of marijuana, possession with intent to distribute marijuana, possession of stanozolol, possession of methamphetamine, possession of methylenedioxymethamphetamine (MDMA), possession of boldenone undecylenate, possession of alprazolam, possession of oxycodone, possession of lysergic acid diethylamide (LSD), possession of zolpidem, possession of estazolam, and possession of ketamine.

Prior to trial, Wiggins filed a motion to suppress the drug evidence found in his home. The trial court held a hearing on the motion, at which Agent Burnes and other KPD agents testified. And at its conclusion, the trial court noted that it was not “impressed with [Agent Burnes’s] conduct or her investigation, because there was none.” The court also indicated that it was “very concerned” about Agent Burnes’s failure to provide the magistrate with a time frame of when the reported drug sales occurred. Lastly, the court indicated that it did not consider ten minutes to be an adequate amount of surveillance. Nevertheless, in a summary order, the trial court denied Wiggins’s motion to suppress. Wiggins then filed a petition for a certificate of immediate review, which the trial court granted. We then granted his application for an interlocutory appeal.

On appeal, Wiggins contends that the search warrant was invalid because the supporting affidavit — which relied solely on an uncorroborated tip from an anonymous informant, Wiggins’s possession of a personal-use amount of marijuana, and a statement from an acquaintance of Wiggins that she had smoked marijuana at his home numerous times — did not give rise to sufficient probable cause to suggest that he was running a drug-distribution operation out of his home. We agree.

We begin by noting that, in considering a trial court’s denial of a motion to suppress, we construe the evidence in favor of the court’s ruling, “and we review de novo the trial court’s application of the law to undisputed facts.” Moreover, in accordance with the Fourth Amendment to the United States Constitution, a search warrant in Georgia may issue only upon “facts sufficient to show probable cause that a crime is being committed or has been committed... .” And in determining whether probable cause exists, the issuing judge is required simply to make a “practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that evidence of a crime will be found in a particular place.” Finally, in reviewing the validity of a search warrant, this Court is charged with “ensuring — considering the totality of the circumstances and giving substantial deference to the issuing judge’s decision — -that the judge had a ‘substantial basis’ for concluding that probable cause existed.” Bearing these guiding principles in mind, we turn now to Wiggins’s claim that the search warrant for his residence was invalid.

In the case sub judice, Agent Burnes sought to establish probable cause for the search warrant by averring that (1) an anonymous tipster reported that Wiggins was selling 50 pounds of marijuana out of his home per week, that his home contained a “mushroom grow,” that the informant had seen these drugs, and that there were surveillance cameras outside of Wiggins’s house; (2) during a traffic stop, Wiggins was found in possession of 19.7 grams of marijuana (including the packaging), which was “inside a plastic bag marked 17 (commonly marked for weight by drug dealers),” and a revolver, which was located in his glove box; and (3) the female passenger in Wiggins’s truck reported that she had smoked marijuana at Wiggins’s house on “multiple occasions.”

Regarding anonymous informants, we have previously held that an “uncorroborated telephone call from an anonymous tipster is not alone sufficient to base a finding of probable cause.” We must also determine, among other things, whether “the hearsay information supplied to the affiant, coupled with the affiant’s personal observations, presented a fair probability that contraband would be found at [Wiggins’s] residence.” Here, Agent Burnes did not identify any actions that she took to determine the reliability of the anonymous informant, whom she admittedly knew nothing about. And because she took no such actions, her affidavit provided no information whatsoever regarding the informant, much less any indicia of his reliability. Thus, given the complete lack of information regarding the anonymous informant, his motives, or the basis for his knowledge, his allegations, standing alone, were insufficient to establish probable cause for the search of Wiggins’s home.

Nevertheless, we have acknowledged that a deficiency created by the fact that the reliability of a source has not been established can “be corrected by the corroboration of the information, thereby providing a substantial basis for finding probable cause.” And for the corroboration to be meaningful, the corroborating information must “include a range of details relating to future actions of third parties not easily predicted or similar information not available to the general public.”

Regarding corroboration, Agent Burnes testified that she surveilled Wiggins’s residence — where he was allegedly distributing SO pounds of marijuana every week — for only ten minutes, an amount of surveillance that the trial court found to be insufficient. And rightly so. As the record makes clear, there was essentially no investigation to determine the anonymous informant’s reliability or to corroborate his claims. Nevertheless, the State contends that the informant’s claim that there were cameras outside of Wiggins’s residence was corroborated when KPD officers confirmed the existence of those cameras. But this is not meaningful corroboration because the cameras were on the exterior of Wiggins’s residence and visible to the general public. Indeed, KPD agents observed the cameras outside of the house before obtaining the search warrant and entering Wiggins’s residence.

The State also contends that the anonymous tip was corroborated by Wiggins’s possession of marijuana contained inside a bag with a marking commonly used by drug dealers. And while we agree that this evidence reasonably supports an inference that Wiggins is a marijuana user, it strains credulity to suggest that his possession of less than one ounce of marijuana in a single bag with this marking is sufficient to demonstrate his possible involvement in a high volume drug-distribution operation. Indeed, with the exception of the revolver, the KPD agent who searched Wiggins’s truck did not discover any items commonly used in drug distribution, such as a large amount of cash, a substantial amount of drugs, scales, drugs portioned for sale in separate baggies, drug-packaging materials, or any other drug paraphernalia.

As for the revolver, Wiggins appeared to have lawfully possessed it, and it was not discovered in close proximity to any other signs of drug dealing (such as a significant amount of drugs). More importantly, it bears repeating that the magistrate was not given any information regarding how much time had passed between Wiggins’s alleged drug trafficking and his possession of the firearm, so it is unclear whether the two are in any way related. Simply put, Wiggins’s possession of a relatively small amount of marijuana and a legally owned firearm during a traffic stop, with no other indicia of drug distribution, was insufficient corroboration for the anonymous informant’s claim that, at some unknown time, Wiggins was trafficking in a substantial amount of marijuana every week out of his home.

Finally, the State asserts that the female passenger in Wiggins’s truck, who told police that she had smoked marijuana at his house on multiple occasions, corroborated the informant’s allegations. However, his passenger’s claim that she previously smoked marijuana at Wiggins’s house does not suggest that he was currently involved in drug trafficking. Indeed, she did not indicate whether she ever purchased marijuana from Wiggins, whether she ever observed him selling it to others, whether she had seen the alleged mushroom grow, or whether she had witnessed any other indicia of drug trafficking in his home. Furthermore, she did not specify how recently she had smoked marijuana at Wiggins’s house. Under these particular circumstances, the acquaintance’s admission that she used drugs at Wiggins’s house on unspecified occasions does not create a fair probability that evidence of drug trafficking would be found there at the time the warrant was issued.

In sum, the Supreme Court of Georgia has “cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability,” and as recognized by the trial court during the suppression hearing, such efforts were simply not made in this case. Although we are mindful that “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants,” we nevertheless conclude that the anonymous informant’s wholly uncorroborated allegations that Wiggins was selling drugs at some undisclosed time — even combined with evidence that Wiggins legally possessed a firearm during a traffic stop and that he and his friend had previously used marijuana — did not provide a substantial basis for determining that probable cause existed to search Wiggins’s residence at the time when the warrant was issued. The fact that Wiggins appears to have actually been engaged in drug trafficking is ultimately of no consequence for purposes of our analysis, which is grounded in the safeguards afforded by the Fourth Amendment.

Decided March 23, 2015.

Lawrence J. Zimmerman, for appellant.

D. Victor Reynolds, District Attorney, Samuel W. Lengen, Daniel J. Quinn, Assistant District Attorneys, for appellee.

For all of the foregoing reasons, we reverse the trial court’s denial of Wiggins’s motion to suppress evidence.

Judgment reversed.

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

        See, e.g., Christian v. State, 329 Ga. App. 244, 245 (1) (764 SE2d 573) (2014).

       Because Wiggins was found in possession of less than an ounce of marijuana, he was subject only to a misdemeanor possession charge. See OCGA § 16-13-2 (b) (“Notwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor . . . .”).

        Christian, 329 Ga. App. at 245 (1) (punctuation omitted); accord Reid v. State, 321 Ga. App. 653, 653 (742 SE2d 166) (2013).

        See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).

       OCGA § 17-5-21 (a); see also Sullivan v. State, 284 Ga. 358, 360 (2) (667 SE2d 32) (2008); Manzione v. State, 312 Ga. App. 638, 639 (719 SE2d 533) (2011).

        Cochran v. State, 281 Ga. 4, 5 (635 SE2d 701) (2006) (punctuation omitted); accord Manzione, 312 Ga. App. at 639-40.

        Manzione, 312 Ga. App. at 640; see Lemon v. State, 279 Ga. 618, 620 (1) (619 SE2d 613) (2005); Jones v. State, 313 Ga. App. 590, 593 (2) (722 SE2d 202) (2012).

       Although Wiggins does not argue that the alleged probable cause in this case had gone stale by the time the warrant was issued, it is noteworthy that Agent Burnes’s affidavit provided no indication of when the alleged criminal activity occurred. See Banks v. State, 277 Ga. 543, 546 (2) (592 SE2d 668) (2004) (recognizing that “[t]he time of the occurrence of the facts relied upon is a prime element in the concept of probable cause” (punctuation omitted)); Land v. State, 259 Ga. App. 860, 862 (1) (578 SE2d 551) (2003) (noting that the search-warrant affidavit suffered from numerous deficiencies, the most fatal of which was the element of time); State v. Brantley, 264 Ga. App. 152, 154 (589 SE2d 716) (2003) (explaining that “[i]f the prior circumstances relied on to establish probable cause have grown stale with time, they are unlikely to provide a reliable barometer of present criminal conduct” (punctuation omitted)).

        McRae v. State, 204 Ga. App. 234, 235 (1) (418 SE2d 796) (1992); see also Harper v. State, 283 Ga. 102, 105-06 (2) (657 SE2d 213) (2008) (holding that an uncorroborated report from an anonymous informant, alleging that he learned from a relative of the defendant that the defendant had confessed to murder, was insufficient probable cause to support the issuance of a search warrant when the affidavit failed to provide any reason to believe that the information was from a credible source); Wood v. State, 214 Ga. App. 848, 849 (1) (449 SE2d 308) (1994) (finding that “the uncorroborated statement of an unnamed third-party source, as filtered through a reliable informant to a police affiant, did not give rise to probable cause sufficient to support the issuance of a search warrant”); Stola v. State, 182 Ga. App. 502, 503 (1) (356 SE2d 222) (1987) (“An uncorroborated telephone call from an anonymous tipster, standing alone, is insufficient upon which to base probable cause to arrest”).

        McRae, 204 Ga. App. at 235 (1) (punctuation omitted); see Fair v. State, 284 Ga. 165, 171 (3) (b) (664 SE2d 227) (2008); State v. Brown, 186 Ga. App. 155, 156 (1) (366 SE2d 816) (1988).

        See supra note 9; State v. LeJeune, 276 Ga. 179, 181 (1) (576 SE2d 888) (2003) (emphasizing that, in determining whether probable cause exists to issue a search warrant, a magistrate should consider all the circumstances set forth in the affidavit, “including the ‘veracity’ and ‘basis of knowledge’of the person supplying hearsay information” (emphasis in original)); Copeland v. State, 273 Ga. App. 850, 851 (1) (a) (616 SE2d 189) (2005) (explaining that “[w]here the State seeks to establish probable cause with information from an unidentified source, the informant’s veracity and basis of knowledge are major considerations in the probable cause analysis” (punctuation omitted)); Lyons v. State, 258 Ga. App. 9, 12 (1) (572 SE2d 632) (2002) (“An unvarnished statement that the informant has seen drugs in someone’s house cannot establish probable cause to search.”); Langford v. State, 213 Ga. App. 232, 233 (1) (444 SE2d 153) (1994) (holding that there was insufficient probable cause for the issuance of a warrant when the magistrate was not provided with any information regarding the informant’s veracity or basis of knowledge, and the affiant testified at the suppression hearing that he had no knowledge of the informant).

        Sutton v. State, 319 Ga. App. 597, 607 (1) (c) (737 SE2d 706) (2013) (punctuation omitted); see St. Fleur v. State, 286 Ga. App. 564, 566 (1) (649 SE2d 817) (2007) (“[B]ven if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proven reliable if portions of the tip are sufficiently corroborated.” (punctuation omitted)); cf. Banks, 277 Ga. at 546 (2) (holding that insufficient evidence supported the issuance of a search warrant when there were no objective facts to corroborate the hearsay information provided by unidentified informants).

        Sutton, 319 Ga. App. at 607 (1) (c) (emphasis in original); accord Land, 259 Ga. App. at 863 (1); Shivers v. State, 258 Ga. App. 253, 255 (573 SE2d 494) (2002).

        See Land, 259 Ga. App. at 863 (1) (holding that informant’s knowledge of defendant’s home address, telephone number, and living arrangements did not make the informant reliable because the “same information was available to the general public”); State v. Bryant, 210 Ga. App. 319, 321 (436 SE2d 57) (1993) (holding that corroboration of an informant’s description of defendant’s appearance, residence, car, and hank was public information and not sufficiently meaningful to show reliability).

       The State makes much of the fact that the bag was marked with the weight of the marijuana, which, according to Agent Burnes, is a common marking used by drug dealers. But this evidence merely creates an inference that, at some point, a drug dealer marked the bag with its weight. Agent Burnes did not aver that such markings are removed before sale or otherwise suggest that only a drug dealer would be in possession of a bag marked with the drug’s weight. Absent more information about this marking, we fail to see how Wiggins’s possession of a single hag of less than an ounce of marijuana bearing such a marking corroborates the informant’s allegation that he was engaged in drug dealing.

        See Clark v. State, 245 Ga. App. 267, 268-69 (537 SE2d 742) (2000) (distinguishing, in the context of a sufficiency-of-the-evidenee challenge, the possession of marijuana for personal use from possession with intent to distribute, and concluding that the evidence was insufficient to show drug sales or distribution when the State produced no evidence that the defendant had scales, guns, cash, drug packaging materials, a large quantity of marijuana, or had conducted prior drug sales). Compare Macias v. State, 292 Ga. App. 225, 229 (2) (a) (664 SE2d 265) (2008) (holding that there was sufficient probable cause for a search of defendant’s residence when, during a search of his car, police discovered 17.5 grams ofmethamphetamine, portions of which were packaged in smaller baggies, and $3,700 in cash).

       Wiggins was not charged with unlawful possession of a firearm, KPD officers allowed his passenger to leave with the gun, and the search-warrant affidavit made no mention of the gun possession being unlawful.

        Compare, e.g., Wright v. State, 272 Ga. App. 423, 426, 428 (3) (612 SE2d 576) (2005) (holding that drugs and an illegal weapon in the defendant’s vehicle gave the officer probable cause to arrest the defendant and conduct a more thorough search of her vehicle, when the firearm was discovered next to “a large quantity of what appeared to be packaged methamphetamine”).

        See supra note 8.

        See supra note 16; see, e.g., United States v. Underwood, 725 F3d 1076, 1082-83 (III) (A) (9th Cir. 2013) (affirming the grant of a motion to suppress and holding that the observation of a personal-use amount of marijuana in the defendant’s home supported only the inference that the defendant was a marijuana user, not that he was a courier in an ecstasy-trafficking organization or that evidence of such trafficking would be found in his home); United States v. McPhearson, 469 F3d 518, 527 (IV) (C) (6th Cir. 2006) (holding that there was insufficient probable cause to support a search warrant when none of the “hallmarks of drug dealing” had been witnessed in defendant’s home and the affidavit did not allege “any criminal activity other than personal possession of crack cocaine”); State v. Cash, 316 Ga. App. 324, 327 (728 SE2d 918) (2012) (affirming the grant of a motion to suppress when “the averments in the affidavit were sufficient to indicate that the drug suspect was involved in personal drug use, [but] they were insufficient to indicate that the drug suspect had been selling, distributing, or trafficking drugs”).

        See supra note 8.

        See Manzione, 312 Ga. App. at 639-40 (a) (explaining that, to issue a search warrant, a magistrate must determine, given all of the information provided in the supporting affidavit, that there is a fair probability that evidence of criminal conduct will be found at a particular place); State v. Charles, 264 Ga. App. 874, 876 (2) (592 SE2d 518) (2003) (holding that evidence that police smelled the “slight odor of burned marijuana” outside of the defendant’s room combined with the defendant’s admission that he had used marijuana earlier in the day was insufficient probable cause to suggest marijuana was currently on the premises); State v. Suddeth, 207 Ga. App. 103, 105 (427 SE2d 76) (1993) (finding that probable cause did not exist for the issuance of a search warrant for defendant’s residence when, inter alia, no evidence linked the defendant to her husband’s illegal possession of drugs).

        Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992) (punctuation omitted); accord Clemons v. State, 257 Ga. App. 96, 99 (1) (574 SE2d 535) (2002); see State v. Luck, 252 Ga. 347, 348 (312 SE2d 791) (1984) (reiterating the “importance of the submission, by affidavit, to the issuing magistrate of the maximum quantum of reliable information within the knowledge of the affiant, and the demonstration of the reliability thereof — including indicia of timeliness”).

        State v. Palmer, 285 Ga. 75, 77-78 (673 SE2d 237) (2009) (punctuation omitted).

        See Harper, 283 Ga. at 105-06 (2) (holding that an uncorroborated report from an anonymous informant, alleging that he learned from a relative of the defendant that the defendant had confessed to murder, was insufficient probable cause to support the issuance of a search warrant when the affidavit failed to provide any reason to believe that the information was from a credible source); Sutton, 319 Ga. App. at 606 (1) (b) (holding that the “complete lack of information” about two anonymous sources meant that they were “merely anonymous tipsters, which relegated the information they supplied to the status of rumor” (punctuation omitted)); Land, 259 Ga. App. at 862-63 (1) (holding that there was insufficient probable cause to support the issuance of a search warrant when, inter alia, a confidential informant reported seeing the defendant engage in a single, isolated drug transaction, but did not indicate when the transaction occurred); Shivers, 258 Ga. App. at 257 (reversing the denial of a motion to suppress when numerous reports from unnamed informants amounted to mere rumors of criminal activity from sources who were not shown to be reliable and probable cause was not established by police observations of the residence); see also Maxwell v. State, 127 Ga. App. 168, 169 (193 SE2d 14) (1972) (reversing the denial of a motion to suppress when no time element was shown as to when illegal contraband was present); Latten v. State, 127 Ga. App. 75, 75 (192 SE2d 562) (1972) (“Absent the time of the occurrence of the facts relied upon, probable cause for issuance of the search warrant is not established.”).

        See Kyllo v. State, 533 U.S. 27, 31 (II) (121 SCt 2038, 150 LE2d 94) (2001) (“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (citation and punctuation omitted)); Ker v.

        State of Cal., 374 U.S. 23, 32 (I) (83 SCt 1623, 10 LE2d 726) (1963) (“Implicit in the Fourth Amendment’s protection from unreasonable searches and seizures is its recognition of individual freedom. That safeguard has been declared to he ‘as of the very essence of constitutional liberty the guaranty of which ‘is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen.’ ”); Doe v. Heck, 327 F3d 492, 509 (2003) (noting that “the basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials____” (citation and punctuation omitted)).


author: MCMILLIAN, Judge.

text:
    A14A1949.
    LUCAS v. THE STATE.
    (771 SE2d 142)
   MCMILLIAN, Judge.

On March 31, 2010, Santonio Demonta Lucas and his co-defendants, Superiore Emonte Allen and Brandon Jaron Norwood, were indicted by a Clayton County grand jury for multiple counts of malice murder, felony murder, aggravated assault, armed robbery, criminal attempt to purchase marijuana, criminal attempt to commit armed robbery, and weapons charges arising from the January 18, 2009 shooting deaths of Vandit Patel and Jimmy Prak. Allen and Norwood were convicted of felony murder and other charges stemming from their direct participation in fatally shooting both victims. The jury convicted Lucas of both criminal attempt counts, but acquitted him of all remaining counts. Lucas was sentenced to a total of 30 years, to serve 10.

Viewed in the light most favorable to the verdict, the evidence shows that Lucas, Allen, and Norwood had known each other for years and were members of a rap group. They frequently met at the apartment of their mutual friend, Matthew Fallings. A few days before the shootings, the three men contacted friends asking to borrow a gun. The day before the murders, Lucas and Norwood met with Ricky Martin at Fallings’ apartment to borrow his gun, a Hi-Point .45 handgun. Because he “didn’t trust” Norwood, Martin gave the gun to Lucas. Allen, meanwhile, told other mutual friends of plans to rob a drug dealer to get “pounds of weed.”

On the morning of the murders, twelve-year-old L. W. was walking to his aunt’s apartment at Tara Court Apartments when he passed “two Hispanic guys” walking near the corner of the building and “one black guy” walking behind them. The black male was wearing a black jacket and jeans and had “dreads” that were pulled back in a ponytail. When L. W. reached the front door of his aunt’s apartment one minute later, he heard multiple gunshots. L. W. was later shown a photographic lineup and identified Lucas as the man he saw following the victims. Other residents who lived in the apartment complex overlooking the crime scene testified that they looked outside their windows after hearing a commotion and saw two Hispanic men running from two black males.

According to one witness, Garfield Campbell, all four men ran around the apartment building at one point and then right back into the parking lot. It appeared to him that the victims were attempting to get inside a black Acura, but every time Allen and Norwood got near the Acura, the victims ran away. The taller black male, later shown to be Allen, attacked one of the victims in the parking lot and shot him twice. Campbell saw Allen continue to punch and kick the victim while demanding, “give it up, give it up.” The other black male, later identified as Norwood, was fighting the second victim in the pine needles at the wood line. Allen walked over to that area, shot Prak in the head and then returned to Patel. Norwood then “ran over to the [Acura] and started trying to get into the car.” Allen continued beating Patel, trying to get information out of him and when he did not cooperate, Allen shot Patel again several times. Both Allen and Norwood then attempted to get inside the Acura, but eventually gave up and ran toward a different section of the apartment complex. A large quantity of what police believed looked and smelled like marijuana was later found in the trunk of Patel’s car. The substance was packaged inside ten large, individually wrapped clear plastic bags which were located inside a large, blue duffel bag.

Responding officers immediately began canvassing the surrounding area, and one officer found two men walking about six hundred yards from the shooting about five to ten minutes after the shooting occurred. One of the men was Lucas, who was wearing a black leather jacket and blue jeans and had his dreadlocks pulled to the back of his head in a large ponytail. The officer stopped Lucas and the other man, Tacari Brown, at the intersection of Tara Boulevard and Flint Trail. Although it was a Sunday morning, Lucas claimed he was on the way to a temp agency at Southlake Mall. As the officer was speaking with Lucas, two other males, wearing all black, exited an alley behind a gas station next door. Another officer spoke with those two men, who were identified as Norwood and Keith Allen, Allen’s brother. Lucas denied knowing either Norwood or Keith Allen. Campbell was brought to where they were being detained but was unable to identify any of the men, and officers let them leave.

Fallings’ girlfriend testified at trial and stated that she lived with Fallings in 2009, and on the day of the shootings, she was returning from an errand when she drove past Lucas and the others as they were being detained by police near where she lived. Within 15 minutes, Lucas, Norwood, and Brown showed up at her apartment. She heard Norwood say “the drugs [are] still in the black Acura.” And Fallings testified that Lucas admitted that he had acted as a lookout. Martin, the owner of the gun, received a message from Fallings that morning and immediately went to his apartment where he saw both Lucas and Norwood. Martin demanded his gun back, but Norwood refused, saying that two people were dead and “It’s hot right now.” Martin yelled at Lucas for giving Norwood his gun. Allen came to Fallings’ apartment later and admitted he had shot both victims using Martin’s gun.

At trial, Lucas was convicted of criminal attempt to commit armed robbery and criminal attempt to possess marijuana. He now appeals the denial of his motion for new trial, asserting that the trial court erred in denying his motion to suppress certain statements he made to the police and in denying his motion for directed verdict on Count 16, criminal attempt to commit a violation of the Georgia Controlled Substances Act. Finding no error, we affirm.

1. Lucas first asserts that certain statements he made to the police should have been suppressed.

Whether a defendant waives his rights under Miranda and makes a voluntary and knowing statement depends on the totality of the circumstances. In ruling on the admissibility of an in-custody statement, a trial court must determine whether a preponderance of the evidence demonstrates the statement was made freely and voluntarily.

(Citation and punctuation omitted.) Francis v. State, 296 Ga. 190, 194 (3) (766 SE2d 52) (2014). Upon review, we accept the trial court’s factual findings and credibility determinations relating to the admissibility of the defendant’s statement unless clearly erroneous. Id. And when the controlling facts discernible from a videotape are not disputed, we review de novo. Id. Lucas argues that his statements to police should have been suppressed on two separate grounds, and we will address each in turn.

(a) Lucas first claims that during his February 26, 2009 statement to police, he unequivocally and unambiguously invoked his right to remain silent when he stated, “I don’t want to hear no more. Take me to jail.” During the Jackson-Denno hearing, Detective Munoz, who participated in the interview, admitted that Lucas made that statement, but explained that she did not consider Lucas to be invoking his right to remain silent. Lucas maintains that anything he said from that point on should have been suppressed.

“An arrested person has the constitutional right to remain silent, but he must clearly assert his desire to remain silent to exercise that right. Police must honor an arrested person’s right to remain silent if the person clearly and unambiguously states that he wants to end questioning.” (Citations omitted.) Ridley v. State, 290 Ga. 798, 802 (4) (725 SE2d 223) (2012). However, as the State urges us to find in this case, “if a defendant equivocates in asserting the right, a police officer is under no obligation to clarify or to stop questioning.” Id. In Ridley, the Supreme Court found that the following exchange was not an unequivocal invocation of the right to remain silent:

Ridley: I’m upset because I’m getting locked up. You take me on to jail.
Detective: No, just listen to me.
Ridley: I don’t want to — no — no nothing. Take me on to jail.
Detective: We have a certain way we had to do it, okay? Do you mind if I just go ahead and do my job?
Ridley: Yeah.
Detective: Why?
Ridley: Because you can take me on to jail.
Detective: Well, we will.
Ridley: And let me try to doggone try to talk to somebody about this — all this mess I’m in.
Detective: Well, that’s what we are talking about now, but I’m going to tell you right now yelling ain’t going to make it, okay? The easiest thing would be — would be just to chill [.]

Id. at 801. And in another similar case, the Supreme Court found the appellant’s statement “ ‘if y’all are going to try to do me like that, I don’t want to talk no more’ ” was only “an equivocal invocation of his right to remain silent.” Turner v. State, 287 Ga. 793, 795 (3) (700 SE2d 386) (2010).

The State argues that Lucas’s statement was not clear and unequivocal, particularly when viewed in its proper context. During the interview, one of the detectives insisted Lucas knew about the marijuana, and Lucas responded, “If you want to say that, then say that. I don’t want to hear no more. If you want to take me to jail, take me to jail.” However, Lucas continued speaking to the detectives, denying his role even as one detective left the room, saying, “See you in court.” In response, the remaining detective confronted Lucas with the photographic lineup used to identify him. Lucas dismissed it, asking “why didn’t you put [Allen and Norwood] in there if I’m with them ... People look like me.” Lucas continued, “I’m not even trying to hear that.... I don’t want to hear no more. It was not me... . You can bring Thrasher to take me to jail. If it’s gonna be like that. Please do. . . . I’m telling you here.”

The detective then left, and Officer Thrasher entered the room. Lucas agreed that he had known Thrasher a “long time.” Thrasher told him that he was hanging out with the wrong people. When Lucas agreed, Thrasher told him that the detectives were “trying to help” and “trying to get the truth.” Thrasher then stated, “I don’t believe that you killed anybody.... I believe that you were there because you hang out with the wrong people.... Once you go down to jail it’s too late. . . . The story’s over.” And it was then that Lucas confessed.

Based on the record, we agree with the State that Lucas did not clearly and unequivocally invoke his right to remain silent. See Turner, 287 Ga. at 795 (3) (interrogating officers had no obligation to stop questioning defendant when invocation of his right to remain silent was equivocal); Ridley, 290 Ga. at 802 (4).

(b) Lucas also maintains that his confession was induced by the hope of benefit. To be admissible, a confession “must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” Former OCGA § 24-3-50. Lucas points to Detective Munoz’s statements to him that he needed to “beat” his co-defendant’s statement, in which Allen claimed that Lucas was the shooter. He also claims that detectives repeatedly asked him, “which would be better, five years to do two or 60 years?” and that when he asked “how do I prove it,” Munoz told him he needed to say that Allen was the shooter and that by making the confession he would only get five years for armed robbery and serve two.

At the Jackson-Denno hearing, Detective Munoz denied promising anything to Lucas and claimed that she simply urged him to tell the truth. On appeal, the State argues that no hope of benefit can be shown because at no point did detectives tell Lucas that he would be charged with a crime less than murder or that he would receive a lesser punishment if he confessed. The State instead characterizes the detectives’ statements as simply informing Lucas of the seriousness of the situation and that, if he was not the shooter, he should tell the truth.

The record does not support Lucas’ allegations. During the interview, the detectives told Lucas there was evidence that he was one of the shooters and made statements such as “I’m only trying to help you because if you didn’t pull the trigger and you just happened to be with the people who acted a fool, there’s a big difference.” And some time later, when Lucas admitted, “I may know something about it,” the detectives told him he needed to save himself, “it’s 60 years you’re going to be doing in jail. ... By the time you get out, you’ll be 81. . . . Save yourself. ... If you have information that you’re withholding, you need to say it.” The detectives continued:

There’s killers in this and there’s victims of circumstance____I would rather hear from you as a person that we are already looking at and we’ve got proof.... I was there. I didn’t kill nobody. These [guys] went off on their own. ... I took off and ran. . . . When a jury hears that, when a judge hears that, hell, when we hear that. . . . What would be better, going to jail for murder or party to crime [on] armed robbery? Five years, do two [or] sixty years, no chance out?

One of the detectives also cautioned Lucas, “At the end of the day, God only knows what the court system or the DA might turn around [and say] . . . give him probation, he is now a witness.” And with respect to Lucas’ assertion that detectives told him exactly what to say, the record shows that when Lucas asked detectives, “So what do I need to do then?” both detectives immediately responded, “You need to tell the truth. Say what you know.”

Our review of the record persuades us that the officers’ comments regarding punishment amounted to an explanation of the seriousness of Lucas’ situation and admonitions to tell the truth. See Preston v. State, 282 Ga. 210, 212 (2) (647 SE2d 260) (2007) (“Admonitions to tell the truth will not invalidate a confession.”) (citation and punctuation omitted). See also Valentine v. State, 289 Ga. App. 60, 62 (2) (656 SE2d 208) (2007) (even if officers’ statements offered hope of a lighter sentence, their subsequent statements dispelled that hope by stating that defendant would have to work out a sentence with the DA). Under these circumstances, the trial court’s denial of Lucas’ motion to suppress was not clearly erroneous.

Moreover, we find that, even if the trial court improperly admitted Lucas’ statement to officers admitting he acted as a lookout, the statement was cumulative of Fallings’ testimony that Lucas told him he had acted as the lookout. Because the evidence was overwhelming, any error in the statement’s introduction at trial was harmless. See Phillips v. State, 285 Ga. 213, 216-217 (2) (675 SE2d 1) (2009) (even if defendant’s statement to detective was improperly admitted at trial, error was harmless in light of the fact that defendant’s statement was cumulative of other admissible testimony); Frazier v. State, 278 Ga. 297, 298 (4) (602 SE2d 588) (2004) (because defendant’s custodial statement merely repeated what he had earlier told other witnesses, admission was harmless even if officers failed to honor his right to remain silent).

2. In his second enumeration of error, Lucas contends that the trial court erred in denying his motion for directed verdict on Count 16, criminal attempt to commit a violation of the Georgia Controlled Substances Act. We review a trial court’s refusal to grant a motion for directed verdict under the standard espoused in Jackson v. Virginia, 443 U.S. at 307, to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict. See Lewis v. State, 296 Ga. 259, 261 (3) (765 SE2d 911) (2014).

“Attempt to commit a crime occurs when a person, with intent to commit a specific crime, performs any act which constitutes a substantial step toward that crime. It is not necessary that the underlying crime actually be completed.” (Footnotes omitted.) Davis v. State, 281 Ga. App. 855, 859 (2) (637 SE2d 431) (2006) (citing OCGA § 16-4-1). The evidence summarized above shows Lucas, who procured a weapon and acted as a lookout, was a party to the group’s plan to rob a drug dealer. Lucas’ conduct before, during and after the shooting, along with his co-defendants’ attempts to enter the Acura, sufficiently constitutes a substantial step sufficient to convict him of attempting to possess marijuana as a party to the crime. See, e.g., Massey v. State, 267 Ga. App. 482, 484 (600 SE2d 437) (2004) (defendant’s actions, including calling a known drug dealer and driving to the location to make a transaction, were sufficient to constitute a substantial step under Jackson v. Virginia to convict him of attempting to possess cocaine); Drake v. State, 266 Ga. App. 463, 465 (1) (597 SE2d 543) (2004) (defendant’s conduct before, during and after the armed robbery supported the finding that he intentionally aided and abetted in the armed robbery of the victim).

Nonetheless, Lucas argues that the State did not prove that the substance found in the trunk of the Acura was actually marijuana. At trial, photographs of the substance found in the trunk were introduced, and an investigating officer was allowed to testify that the substance was marijuana. Lucas claims that the State failed to lay a sufficient foundation that the officer was qualified to identify marijuana. However, whether the State proved the substance was “real” marijuana is of no consequence. “[Lucas] is mistaken in his belief that, in order to prove attempt, the State must also prove all elements of the underlying crime.” Davis, 281 Ga. App. at 859 (2), n. 11 (recognizing that “it would eviscerate the purpose of delineating attempt as an offense if the State were required to prove all elements of the under lying crime”). See also Watson v. State, 256 Ga. App. 789, 790 (2) (570 SE2d 30) (2002) (the fact that substance sold to defendant was not actually cocaine does not relieve him of culpability for attempting to traffic cocaine where there was no evidence he was aware the substance was not cocaine), reversed on other grounds by Watson v. State, 276 Ga. 212 (576 SE2d 897) (2003); Durfee v. State, 221 Ga. App. 211, 212 (2) (471 SE2d 32) (1996) (rejecting defendant’s argument that because the informant supplied her with “sham” cocaine, the evidence of attempted trafficking was insufficient).

Lucas and his co-defendants told friends of their plan to get “pounds of weed.” And during the incident, Allen and Norwood were “focused” on the black Acura and tried to gain access to the car even after the victims were shot. Officers testified that the car smelled strongly of marijuana. A ledger, showing completed drug transactions, was found in one of the victim’s pockets. The evidence was sufficient to show that Lucas was a participant in the attempted possession of what he and his co-defendants clearly believed was marijuana concealed somewhere in the black Acura and, thus, was sufficient to convict Lucas as a party to the offense charged.

Judgment affirmed.

Ellington, P. J., concurs. Phipps, C. J., concurs in Divisions 1(b) and 2, and concurs in judgment only as to Division 1 (a).

Decided March 23, 2015.

Chaunda F. Brock, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

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

       Campbell placed a call to 911.

       Another witness saw one of the men go through one of the victim’s pockets.

        Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       At trial, Detective Munoz testified that Lucas admitted that he spent the night before the murders at Allen’s apartment in the Tara Court Apartments and that “he was the look-out for the police. And if he saw the police, he was told to make a noise.” She further testified that during the interview Lucas said “he heard some shots, ran to the incident location and then saw a dead body, and then he ran.” The recording of the interview was not played for the jury.

       Former OCGA § 24-3-50 is carried forward at OCGA § 24-8-824 in our new Evidence Code.


author: Andrews, Presiding Judge.

text:
    A14A1540.
    LABMD, INC. v. SAVERA.
    (771 SE2d 148)
   Andrews, Presiding Judge.

LabMD, Inc. appeals an order by the Superior Court of Fulton County granting attorney fees to Adnan Tabrez Savera, M.D., pursuant to OCGA § 9-15-14. LabMD does not contend that the trial court’s award was not authorized by the evidence; rather, it claims simply that the amount of the trial court’s award should be reduced because it failed to apply a setoff and included sums that were not attributable to LabMD’s sanctionable conduct. Finding that the trial court failed to consider certain factors which could influence the amount of its award, we affirm in part, vacate the trial court’s order, and remand for further proceedings.

Relevant to the issues in this appeal, the trial court found that LabMD hired Dr. Savera in 2006 as its medical director and chief genitourinary pathologist. On January 22,2010, Dr. Savera tendered 90 days’ notice of his resignation from LabMD as required by his employment contract. After Dr. Savera provided his notice, he continued working for LabMD but was terminated by LabMD on April 12, 2010 — ten days shy of the conclusion of his 90-day notice term. On the same date, LabMD filed a complaint against Dr. Savera alleging that Dr. Savera breached certain restrictive covenants in his employment contract. In five subsequent amended complaints, LabMD asserted additional causes of action against Dr. Savera, including: (i) breach of contract for failure to maintain regular working hours; (ii) breach of fiduciary duty; (iii) misappropriation of trade secrets; (iv) violation of the Federal Computer Fraud and Abuse Act (18 USC § 1030); (v) violation of the Georgia Computer Systems Protection Act (OCGA § 16-9-93); (vi) trespass; and (vii) punitive damages. Of the eight claims asserted against Dr. Savera, two were abandoned by LabMD (breach of contract [restrictive covenants] and breach of contract [working hours]), four were dismissed by the trial court on summary judgment (misappropriation of trade secrets, federal computer crimes, trespass, and, with one exception, breach of fiduciary duty), and one was dismissed by the trial court on Dr. Savera’s motion for directed verdict during trial (punitive damages). A jury returned verdicts in favor of Dr. Savera on LabMD’s remaining claims.

Following trial, Dr. Savera filed a motion for attorney fees against LabMD and LabMD’s counsel pursuant to OCGA § 9-15-14 (a) and (b). In his motion, Dr. Savera alleged that he incurred attorney fees totaling $315,493.92 and that each of LabMD’s causes of action “had no justiciable issue of law or fact; lacked substantial justification; were presented purely for purposes of harassing [Dr. Savera]; and were substantially frivolous, groundless and vexatious.” After receiving additional briefing, the trial court conducted a hearing on Dr. Savera’s motion. In addition to argument of counsel, the trial court received testimony from two of Dr. Savera’s attorneys as well as affidavits and invoices from the attorneys.

In its order granting Dr. Savera’s motion, the trial court initially found that Dr. Savera incurred attorney fees totaling $320,062.21. However, the trial court examined each of LabMD’s eight causes of action and determined that five of them were frivolous and lacked substantial justification. As a result, the trial court apportioned Dr. Savera’s attorney fees only to those causes of action it found to be frivolous, which resulted in an award of attorney fees in the amount of $168,257.18. This appeal followed.

OCGA § 9-15-14 (a) provides:

In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney’s fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party’s attorney, or against both in such manner as is just.

Similarly, a trial court

may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

OCGA § 9-15-14 (b). The damages authorized by OCGA § 9-15-14 “are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with [abusive litigation].” O’Keefe v. O’Keefe, 285 Ga. 805, 806 (684 SE2d 266) (2009). See also Dixon v. Home Indem. Co., 206 Ga. App. 623, 624 (1) (426 SE2d 381) (1992) (“Though an award arising from a judgment under OCGA § 9-15-14 also serves the incidental purpose of providing compensation to the injured party, this does not diminish the reality that awards made under it are ‘sanctions’under the accepted definition of that term.”). The standard of review for OCGA § 9-15-14 (a) is the “any evidence” rule, while “OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.” Haggard v. Bd. of Regents of the Univ. System of Ga., 257 Ga. 524, 527 (4) (360 SE2d 566) (1987). See also Century Center at Braselton, LLC v. Town of Braselton, 285 Ga. 380, 381, 382 (1) (677 SE2d 106) (2009).

As a threshold matter, LabMD does not challenge Dr. Savera’s entitlement to an award under OCGA § 9-15-14 (a) or (b). Furthermore, we conclude that the trial court did not abuse its discretion in awarding attorney fees in some amount. See Town of Braselton, 285 Ga. at 382 (1); Haggard, 257 Ga. at 527 (“Under both standards the record supports the trial court’s award.”); Lawrence v. Direct Mtg. Lenders Corp., 254 Ga. App. 672, 676 (4) (563 SE2d 533) (2002). We therefore turn to an analysis of the amount awarded by the trial court.

1. In its first enumeration of error, LabMD contends that the trial court erred in awarding attorney fees to Dr. Savera without considering a potential setoff for: (a) the amounts received, if any, from Dr. Savera’s settlements with LabMD’s counsel and counsel’s law firm; and (b) the amounts received from Admiral pursuant to cost of defense payments made under its insurance policy issued to LabMD. See n. 1, supra. We agree.

(a) Settlement of Claims. On January 23, 2013, Dr. Savera filed withdrawals of his motion for attorney fees as it applied to counsel for LabMD and counsel’s law firm; the dismissals acknowledged that Dr. Savera “settled its attorneys’ fees claim against [counsel and counsel’s law firm, respectively]” but contained no additional information concerning the settlement agreement. Three days later, the trial court executed its order granting Dr. Savera’s motion and awarding $168,257.18 in attorney fees.

Although the trial court was aware of the settlement of Dr. Savera’s claims against LabMD’s counsel and counsel’s law firm, the order is silent as to the effect, if any, of Dr. Savera’s settlements on the trial court’s award. See generally Ga. Northeastern R. v. Lusk, 277 Ga. 245, 246 (1) (587 SE2d 643) (2003) (“Georgia, as part of its common law and public policy, has always prohibited a plaintiff from a double recovery of damages; the plaintiff is entitled to only one recovery and satisfaction of damages, because such recovery and satisfaction is deemed to make the plaintiff whole.”); Roofer’s Edge v. Standard Bldg. Co., 295 Ga. App. 294, 296 (1) (671 SE2d 310) (2008) (same); Cole v. Webb, 267 Ga. App. 174, 177 (2) (598 SE2d 886) (2004) (discussion of setoff due to settlement in context of tort claim). As a result, we vacate the trial court’s order granting Dr. Savera’s motion for attorney fees and remand this matter to the trial court to consider the amounts, if any, of the settlements between Dr. Savera and LabMD’s counsel and counsel’s law firm and their effect upon the trial court’s award of attorney fees.

(b) Payment of Attorney Fees by Insurance Policy. Similarly, LabMD next argues that the trial court failed to apply a setoff of its attorney fees award to account for the defense costs paid by Admiral. Again, we agree.

In its order granting Dr. Savera’s motion for attorney fees, the trial court awarded fees in the amount of $168,257.18. However, the parties acknowledged that Admiral exhausted its $250,000 policy limit to cover Dr. Savera’s defense costs. To that end, Dr. Savera introduced evidence that he incurred attorney fees of $315,493.92, or $65,493.92 in excess of Admiral’s defense cost payments. In any case, the trial court neglected to analyze the amounts paid by Admiral and, in particular, Dr. Savera, and to determine the proper application of the setoff in view of the fees incurred individually by Dr. Savera. See Lusk, 277 Ga. at 246 (1); Roofer’s Edge, 295 Ga. App. at 296 (1). As discussed in Division 1, supra, we remand this matter to the trial court for findings of fact and conclusions of law concerning a potential setoff of its award in view of Admiral’s payments and Dr. Savera’s attorney fees not covered by Admiral.

2. Second, LabMD argues that the trial court abused its discretion by including in its attorney fees award amounts attributable to, inter alia, the prosecution of Dr. Savera’s counterclaim and to litigate Admiral’s declaratory judgment action.

(a) In cases involving attorney fees awards pursuant to OCGA § 9-15-14 (a) or (b), “the trial court must limit the fees award to those fees incurred because of the sanctionable conduct.” (Punctuation omitted.) Trotter v. Summerour, 273 Ga. App. 263, 267 (2) (614 SE2d 887) (2005). Here, LabMD contends that the trial court failed to properly examine the billing records submitted by Dr. Savera’s counsel which resulted in the trial court awarding minimal additional attorney fees not related to LabMD’s sanctionable conduct. Specifically, LabMD refers to fees related to: (i) litigating Dr. Savera’s counterclaim; (ii) Dr. Savera’s 401(k) and other benefits; (iii) counsel’s communications with Admiral concerning the status of litigation; (iv) participation in Admiral’s declaratory judgment action; (v) nonparty discovery issues in LabMD’s separate civil action against Corey Dayley; and (vi) Dr. Savera’s defense in LabMD’s separate civil action against Chad Miller. Counsel for Dr. Savera testified at length concerning the need for, and strategy behind, the fees incurred. The trial court concluded that the attorney fees it allocated were “necessary to the defense of the litigation” and “reasonable for the defense of [LabMD’s] claims.”

(b) With regard to the fees discussed in items (iii), (iv), and (v) of Division 2 (a), supra, we conclude that LabMD has failed to demonstrate an abuse of the trial court’s discretion. See OCGA § 9-15-14 (b); Town of Braselton, 285 Ga. at 382 (1); Haggard, 257 Ga. at 527; Lawrence, 254 Ga. App. at 676 (4). Dr. Savera’s counsel testified that a separate account was created for work on the Admiral declaratory judgment action and that the limited fees incurredby Dr. Savera were related to, and necessary for, Dr. Savera’s defense against LabMD’s allegations. See also LabMD v. Admiral Ins. Co., 323 Ga. App. 906, 906-907 (749 SE2d 11) (2013). Likewise, Dr. Savera’s counsel’s representation of Dr. Savera during a deposition in the Dayley litigation was necessary and proper for Dr. Savera’s defense in the LabMD litigation. The trial court agreed, and we find no abuse of its discretion.

(c) We conclude that LabMD has waived any argument concerning Dr. Savera’s counsel’s representation of Dr. Savera in the Miller litigation due to its failure to identify any error in the record. See Court of Appeals Rule 25 (c) (2) (i). Specifically, LabMD failed to identify any particular evidence of fees incurred by Dr. Savera related to the Miller litigation that should not have been included in the trial court’s award. Id. See also Carroll v. Bd. of Regents of the Univ. System of Ga., 324 Ga. App. 598, 602 (1), n. 1 (751 SE2d 421) (2013) (burden is on party alleging error to show it affirmatively by the record). Furthermore, “[i]t is well settled that this Court will not cull the record ... on an appellant’s behalf.” Carlisle v. Abend, 288 Ga. App. 150, 151 (1) (653 SE2d 388) (2007).

(d) The fees enumerated in items (i) and (ii) of Division 2 (a), supra, are closer questions. On their faces, these items do not appear to relate to LabMD’s sanctionable conduct; rather, they appear to encompass more general aspects of Dr. Savera’s representation. However, in view of our discussion in Division 1, supra, and the remand authorized therein, the trial court should consider whether the following incurred attorney fees are related to LabMD’s sanction-able conduct and, if so, address the fees in its order adjudicating Dr. Savera’s motion: (a) litigation of Dr. Savera’s counterclaim; and (b) assorted correspondence concerning Dr. Savera’s 401(k) account and other employment benefits.

In sum, we affirm the trial court’s finding that Dr. Savera’s counsel’s representation of Dr. Savera in the Admiral declaratory judgment action and in LabMD’s separate civil action against Dayley was necessary to Dr. Savera’s defense in this case because LabMD has failed to demonstrate an abuse of the trial court’s discretion. We nevertheless vacate the trial court’s order granting Dr. Savera’s motion for attorney fees and remand for a hearing to consider: (a) a possible setoff in view of Dr. Savera’s settlement of his claim for attorney fees against LabMD’s counsel and counsel’s law firm; (b) a possible setoff related to Admiral’s partial payment of Dr. Savera’s defense costs; (c) the amount of attorney fees paid by Dr. Savera individually and its effect upon the trial court’s award; and (d) the relationship of Dr. Savera’s counsel’s litigation of Dr. Savera’s counterclaim and representation concerning Dr. Savera’s employment benefits to LabMD’s sanctionable conduct.

Judgment affirmed in part and vacated in part, and case remanded for further proceedings.

McFadden and Ray, JJ., concur.

Decided March 24, 2015.

Robbins Ross Alloy Belinfante Littlefield, Joshua B. Belinfante, for appellant.

McLain & Merritt, Robert B. Hill, Ernest L. Beaton TV, for appellee.

       We note that this appeal is the third case in this Court arising from LabMD’s April 12, 2010 complaint against Dr. Savera. In the first appeal, see LabMD v. Savera, 323 Ga. App. XXIII (Sept. 16, 2013) (affirmed without opinion), we affirmed both a jury verdict and a summary judgment order against LabMD in the underlying civil action filed by LabMD. Next, we dismissed LabMD’s appeal of the trial court’s order granting Admiral Insurance Company’s motion for summary judgment in Admiral’s declaratory judgment action, in which the trial court found that Admiral owed a duty to defend Dr. Savera in the underlying civil action. See LabMD v. Admiral Ins. Co., 323 Ga. App. 906 (749 SE2d 11) (2013) (appeal dismissed).

       Three days prior to the trial court’s execution of its order awarding attorney fees, Dr. Savera withdrew his claims for attorney fees from LabMD’s counsel and counsel’s law firm due to a settlement of those claims. The trial court acknowledged the withdrawal of Dr. Savera’s claims but, as discussed infra, the trial court’s order was silent concerning the effect of the settlement on its award of attorney fees.