text:
    A11A0127.
    HUGHES v. THE STATE.
    (709 SE2d 900)
   Ellington, Chief Judge.

A Richmond County jury found Christopher Hughes guilty beyond a reasonable doubt of trafficking in methamphetamine, OCGA § 16-13-31 (D (1). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his conviction and that the trial court erred in instructing the jury. We affirm.

1. Hughes argues that the evidence was insufficient to show that he knowingly manufactured methamphetamine, as alleged in the indictment. According to Hughes, the circumstantial evidence showed, at most, that he was a drug user, not a manufacturer, and that he was in constructive possession of methamphetamine. Further, he argues that the evidence presented failed to exclude the reasonable possibility that he was merely present in a house where methamphetamine had, at some point, been produced.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

On August 15, 2008, narcotics investigators and other officers from the Richmond County Sheriffs Office entered a house located at 1925 Telfair Street, Augusta, in order to execute a search warrant as part of an ongoing drug investigation. The investigation specifically targeted the defendant, Christopher Hughes, and Tammy Strickland, his co-defendant in this case. Upon entering the house, the investigators saw Hughes “curled up” on a couch with Strickland. An investigator handcuffed both Hughes and Strickland for their safety and that of the officers and to prevent the destruction of evidence, and the other officers conducted the search. Next to the couch was a coffee table on which there was, in plain view, a clear plastic baggie with one corner cut off and containing a white powder residue, a razor blade, a straw, and a glass pipe that was severely burned on the outside and that had a “pretty thick” layer of suspected methamphetamine residue inside, indicating extensive use. In addition, on the table there was a small, black leather bag that contained six plastic baggies of suspected methamphetamine, as well as a folded piece of paper that contained several hundred dollars in cash. During the search, officers also found a pill bottle in Strickland’s purse that contained a baggie of suspected methamphetamine. A chemist employed by the state’s crime laboratory determined that the drugs were methamphetamine and weighed a total of 4.25 grams. The chemist also testified that the appearance of the drugs was “very typical” of methamphetamine that is produced illicitly by individuals in their homes.

Moreover, the investigators testified that, about five feet from where the co-defendants were seated, there was an open door which immediately led to a room that was approximately the size of a large, walk-in closet. According to one of the investigators, who had extensive training and experience dealing with clandestine laboratories that are used to produce methamphetamine, or “meth labs,” the room was outfitted with the equipment and chemicals needed to create methamphetamine. In fact, he discovered a bottle containing a liquid that is produced during the final stages of methamphetamine production, as well as a Styrofoam cup that, when uncovered, released smoke, indicating that it was holding acid, which is necessary during the middle stage of producing methamphetamine.

The investigator also testified that the process of producing methamphetamine creates an “overwhelming chemical smell,” that there was a “very, very heavy” chemical smell inside the house, and that it was noticeable as soon as he entered the house. Because of the smell, anyone in the house “would have to know” that there was a meth lab inside.

In addition to this evidence, the State showed that, when Hughes was taken into custody, he told the investigators that his address was “1925 Telfair Street” in Augusta, which was the same address as the house at issue. The State also showed an August 2008 electric bill that was addressed to Hughes at that address, Hughes’ wallet, and his driver’s license were all found in the house. One of the investigators also testified that he had conducted surveillance in the weeks leading to the execution of the search warrant, that he often saw the co-defendants leave and return to the house together, sometimes carrying bags, and that he observed numerous cars drive to the back of the house, stay for no more than two minutes, and then leave.

In contrast to this evidence, the defense presented two witnesses, both of whom testified that Hughes did not live at 1925 Telfair Street in August 2008, and one of whom testified that Hughes lived with her at her home from May through August 2008 and was with her almost constantly — including on the day the investigators executed the search warrant.

The trial court subsequently instructed the jury on, inter alia, the essential elements of the crime charged, the State’s burden of proof, circumstantial evidence, mere presence, actual and constructive possession, party to a crime, the rebuttable presumption regarding possession of property, and the lesser-included offenses of possession and possession with intent to distribute methamphetamine. Hughes’ counsel stated affirmatively that he had no objection to the jury instructions. The jury found both Hughes and Strickland guilty beyond a reasonable doubt of trafficking in methamphetamine.

As noted above, Hughes argues on appeal that the evidence was purely circumstantial and that it failed to exclude the possibility that, at the time the search warrant was executed, he was simply a drug user who was sitting in someone else’s house next to drugs and drug paraphernalia lying in plain sight while a very heavy chemical odor surrounded him, yet lacking any knowledge that there was a fully-equipped, open and visible meth lab in the next room.

It is the function of the jury, however, not this Court to weigh the evidence, judge the credibility of the witnesses, and resolve conflicts in the evidence. Jackson v. Virginia, 443 U. S. at 319 (III) (B). “[T]he resolution of such conflicts adversely to the defendant does not render the evidence insufficient.” (Citation omitted.) Brooks v. State, 281 Ga. 514, 516 (1) (640 SE2d 280) (2007).

As for Hughes’ argument that the circumstantial evidence was insufficient, he is correct that, under OCGA § 24-4-6, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” The circumstantial evidence, however, “does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.” (Citations omitted; emphasis in original.) Eberhart v. State, 241 Ga. App. 164, 165 (1) (526 SE2d 361) (1999).

Given the evidence presented in this case, the jury was authorized to find that Hughes was guilty beyond a reasonable doubt, as either the actual perpetrator or as a party to the crime, of the offense of trafficking in methamphetamine as charged in the indictment. See Herberman v. State, 287 Ga. App. 635, 637-639 (1) (653 SE2d 74) (2007). Because Hughes has failed to show that the guilty verdict was insupportable as a matter of law, it is affirmed.

2. Hughes contends that the trial court erred in instructing the jury that their verdict should not be influenced by sympathy or prejudice. He argues that the charge was not authorized by the evidence and that it improperly called attention to the “scourge” of methamphetamine addiction and the “insidious danger” presented by clandestine meth labs located in unsuspecting communities.

The trial transcript shows, however, that, after the court charged the jury, Hughes’ counsel affirmatively stated that he had no objection to the jury instructions as given. See OCGA § 17-8-58 (a) (“Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.”); Blankenship v. State, 301 Ga. App. 602, 606 (4) (688 SE2d 395) (2009) (The defendant waived his objections to the jury instructions when he specifically stated that he had no objections to the charge as given.). Further, although Strickland’s counsel timely and specifically objected to the instruction, Hughes’ counsel did not join in the objection, nor did his counsel raise the objection when given another opportunity to do so before the jury returned its verdict. See Maxwell v. State, 267 Ga. App. 227, 229 (3) (599 SE2d 228) (2004) (“[I]t is well established that an issue raised by a co-defendant at trial does not preserve the issue for another co-defendant who does not join in the objection.”) (footnote omitted).

Therefore, Hughes waived his objection to the instruction at issue unless giving the instruction constituted “plain error,” in other words, there was “a substantial error in the charge which was harmful as a matter of law, depriving the defendant of a fair trial[.]” (Footnote omitted.) Leverette v. State, 303 Ga. App. 849, 851 (2) (696 SE2d 62) (2010). See also OCGA § 17-8-58 (b) (“Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.”).

Pretermitting whether the instruction at issue was a correct statement of the law that was supported by evidence or whether the trial court otherwise erred in giving the charge,

the standard for weighing nonconstitutional error in criminal cases is known as the “highly probable test,” i.e., that it is highly probable that the error did not contribute to the judgment. Under that test, a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict would have been different in the absence of this error.

(Punctuation and footnote omitted.) Leverette v. State, 303 Ga. App. at 852 (2).

Given the overwhelming evidence supporting Hughes’ conviction and the comprehensive jury charge given by the trial court, as discussed in Division 1, supra, we conclude that there is no reasonable probability that the jury’s verdict would have been different if the trial court had not given the instruction at issue. Id. Consequently, this alleged error presents no basis for reversing Hughes’ conviction.

Decided April 6, 2011.

Peter D. Johnson, for appellant.

Ashley Wright, District Attorney, Dana E. Wolk, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The only other people in the house besides Hughes and Strickland were three men doing construction work on the back of the house; the officers briefly detained and questioned the men before determining that they were not residents of the house and were not involved in the suspected drug activity.

       A videotape and photographs documenting the search and seizure were admitted into evidence and published to the jury.

       See Division 2, infra.

       Specifically, the trial court charged the jury that the law does not permit jurors, in reaching a verdict, “to be governed by sympathy or prejudice. [Jurors] may not, therefore, render a verdict in this case based upon sympathy for either party or prejudice against either party. Any verdict [the jury] . .. return[s] must be supported by evidence produced at trial without in any way being affected by either sympathy or prejudice.”


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A0152.
    GEORGIA MOUNTAIN EXCAVATION, INC. et al. v. DOBBINS.
    (710 SE2d 205)
   Blackwell, Judge.

An administrative law judge awarded temporary total disability benefits to Phillip Dobbins, a former employee of Georgia Mountain Excavation, Inc., but the Appellate Division of the State Board of Workers’ Compensation later reversed the award. Dobbins then sought review in the Superior Court of Fannin County, which concluded that the evidence did not support the decision of the Appellate Division and, therefore, reinstated the original award of benefits. Georgia Mountain and its workers’ compensation insurer now appeal from the judgment of the superior court. Because the record contains some competent evidence that supports the findings of the Appellate Division, the superior court had no authority to set aside the decision of the Appellate Division. We, therefore, reverse the judgment of the superior court.

When an administrative law judge awards or denies workers’ compensation benefits, a party to the workers’ compensation proceedings may seek a review of the award or denial in the Appellate Division. OCGA § 34-9-103 (a). If the Appellate Division concludes on review that the factual findings of the administrative law judge are “supported by a preponderance of competent and credible evidence contained within the records,” the Appellate Division must accept those findings. Id. If not, the Appellate Division “may substitute its own alternative findings for those of the [administrative law judge] and enter an award accordingly.” Syntec Indus. v. Godfrey, 269 Ga. 170, 171 (1) (496 SE2d 905) (1998) (citation and punctuation omitted). As we have explained before, “the Appellate Division is authorized to assess witness credibility, weigh conflicting evidence, and draw factual conclusions different from those reached by the [administrative law judge] who initially heard the dispute.” Home Depot v. McCreary, 306 Ga. App. 805, 808 (2) (703 SE2d 392) (2010) (citation and punctuation omitted).

A final decision of the Appellate Division is subject to judicial review in a superior court. OCGA § 34-9-105 (b). The grounds upon which a superior court properly may overturn a decision of the Appellate Division are narrowly circumscribed, but they include, as relevant here, a lack of “sufficient competent evidence in the record” to support the decision. OCGA § 34-9-105 (c) (4). When a court considers whether sufficient competent evidence supports a decision of the Appellate Division, it must view the evidence in the light most favorable to that decision, and so long as there is “some evidence” that supports the decision, the court has no authority to overturn it. Home Depot, 306 Ga. App. at 808-809 (2); see also Lowndes County Board of Commissioners v. Connell, 305 Ga. App. 844, 844-845 (701 SE2d 227) (2010). The Appellate Division in this case found, among other things, that Dobbins failed to prove that “he suffered a disabling injury by accident arising out of and in the course of his employment.” We think this finding is supported by some competent evidence.

Viewed in the light most favorable to the decision of the Appellate Division, the record shows that Georgia Mountain hired Dobbins in 2006. In February 2007, Dobbins claimed that he injured his back while removing a toolbox from a truck, and he was absent from work for approximately one month following this alleged injury, during which time he received income benefits. About three months later, Dobbins claimed that he sustained another injury at work, and he received medical treatment in connection with this injury.

Dobbins claims that on November 25, 2008, he again injured his back at work. Dobbins says that this injury occurred when a co-worker slipped while he and Dobbins were attempting to pick up a hand tamp. Dobbins admits that he did not report this alleged incident to his supervisor on November 25, and neither the coworker whose slip allegedly caused the injury, nor another co-worker who allegedly was present at the time of the incident, testified in the workers’ compensation proceedings to corroborate Dobbins’s account. Although Dobbins says that he reported the incident to his supervisor the next day, Georgia Mountain’s time sheet records indicate that Dobbins did not even report to work on November 26. And the supervisor denied that Dobbins told him about the alleged incident on November 26.

In fact, the supervisor testified that he did not learn of the alleged incident until nearly two weeks later. According to the supervisor, some other workers informed the supervisor on December 8 that Dobbins “was claiming he had hurt his back.” When the supervisor questioned Dobbins about the alleged incident, Dobbins said that he was “fine” and could return to work. The supervisor then investigated whether the alleged incident actually had occurred and found no one who could confirm that it had, and Georgia Mountain subsequently terminated its employment of Dobbins. On December 18, Dobbins sought medical treatment for his alleged injury, and he told his physician that the injury occurred when he “slipped [while] getting off a truck at work two weeks ago and felt sudden pain in his back.”

In its written decision, the Appellate Division weighed the evidence — including the conflicting testimony about whether Dobbins reported the injury to his supervisor on November 26 and his own inconsistent accounts of how the injury occurred — and determined that the finding by the administrative law judge that Dobbins had suffered a compensable injury was not supported by a preponderance of competent and credible evidence in the record. The Appellate Division, accordingly, made its own findings of fact, and it found that Dobbins, in fact, had not proven that he had suffered a compensable injury. Although the superior court and this Court might draw different conclusions from the evidence, it is not our place to do so. We are required to defer to the factual findings of the Appellate Division so long as they are supported by some competent evidence. See Home Depot, 306 Ga. App. at 808-809 (2).

It appears to us that the superior court in this case simply weighed the evidence itself and ultimately disagreed with the factual findings of the Appellate Division. Because courts reviewing a decision of the Appellate Division are not authorized to weigh the evidence in the first instance or substitute their own findings of fact for those of the Appellate Division, the superior court had no authority to interfere with the decision of the Appellate Division. We must, therefore, reverse the judgment below. See Young v. Columbus Consolidated Govt., 263 Ga. 172 (1) (430 SE2d 7) (1993).

Decided April 6, 2011.

Drew, Eckl & Farnham, Gary R. Hurst, Robert D. Goldsmith, Anne M. du Toit, for appellants.

J. Wesley Williams, for appellee.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.

       An appeal from a decision of a superior court reviewing the proceedings of the State Board of Workers’ Compensation may be taken only if this Court allows discretionary review pursuant to OCGA § 5-6-35 (a) (1). Georgia Mountain and its insurer timely filed an application for discretionary review in this case, and we granted the application.

       The record reveals some uncertainty about the nature of the February 2007 incident. Dobbins’s supervisor testified in the workers’ compensation proceedings that there were “different stories” about how Dobbins had injured his back.


author: SMITH, Presiding Judge.

text:
    A10A1693, A10A1694.
    GARNER v. REDWINE et al.; and vice versa.
    (709 SE2d 569)
   SMITH, Presiding Judge.

In these consolidated appeals, we must determine whether the trial court properly interpreted a trust provision in an amendment to the Hill Reagan Redwine Revocable Trust. For the reasons set forth below, we reverse.

The record shows that on July 28, 2009, Elizabeth Redwine Garner filed a petition for declaratory judgment against Charles Redwine, William Redwine II, and Wanda Redwine (“the Redwines”). In the petition, Garner sought a declaration of her rights, in part, with regard to a third amendment to her father’s revocable trust. Specifically, she asserted that she was entitled to the contents of her father’s personal residence based upon this amendment. At the time she filed her petition, the trustee was in ill health and had not yet distributed any of the trust’s assets. Two days after Garner filed her petition, the trustee filed his own petition for declaratory judgment in the same court seeking guidance with regard to the meaning of the third amendment. He also sought approval to resign as trustee due to “substantial health issues.”

One week later, the trustee entered into a settlement agreement with the Redwines in which he agreed to distribute the trust proceeds, including the personal contents of their father’s home, to the Redwines in exchange for their release of all their claims against him. The settlement agreement also provided, however, that the Redwines were obligated to “[h]old and not distribute or convey to a third party any of the personal property” at issue “until the resolution by agreement, decree or appeal of the civil action filed by [Garner]. . . .” On September 16, 2009, the superior court issued a temporary restraining order and interlocutory injunction in the case filed by Garner prohibiting the Redwines from damaging, selling, removing, conveying, or transferring the contents of the father’s home.

The third amendment at issue in this case provides that the trust became irrevocable upon the father’s death. At the time the third amendment was executed, the trust was “worth far in excess of $30 million.” Article 7 of the trust, titled “Distribution of Principal and Income After my Death,” contains the following relevant provisions:

7.1.1 Specific Testamentary Gifts. The Trustee shall divide property with a value at the date of distribution of EIGHT MILLON ($8,000,000.00) DOLLARS into eight (8) separate and equal shares to be distributed as follows:
7.1.1.1 William . . . Redwine II. The trustee shall distribute four (4) such shares to William . . . Red-wine, . . .
7.1.1.2 Charles . . . Redwine II. The Trustee shall distribute two (2) such shares to Charles . . . Red-wine II. . . .
7.1.1.3 Wanda . . . Redwine. The Trustee shall distribute two (2) such shares to Wanda . . . Red-wine. . . .
7.2 Trust Remainder. The Trustee shall divide and distribute all of my Trust Estate that remains after allowing for (i) the specific testamentary gifts provided under subsection 7.1.1 above, and (ii) the payment of estate taxes as provided under Section 6.2 above (the “Trust Remainder”) as follows:
7.2.1 First TWO MILLION ($2,000,000) DOLLARS of the Trust Remainder. The Trustee shall divide and distribute property with the value at the date of distribution of TWO MILLION ($2,000,000) DOLLARS of the Trust Remainder to Hill. . . Redwine II and Elizabeth . . . Garner, in equal shares. ... I further direct that all of the contents of my personal residence be distributed to Elizabeth . . . Garner, as part of her share of this testamentary gift, with the value of the personal contents of my residence deducted from the share received by Elizabeth . . . Garner, if she elects to receive the personal contents of my personal residence.

After the distribution in Article 7.2.1, the trust remainder provisions provided instructions for the distribution of another $20 million.

The parties’ father died on March 9, 2009. The record shows without dispute that at the time of the settlement agreement and distribution, the trust assets were insufficient to pay $8 million under Section 7.1.1, taxes, and administrative costs.

Garner and the Redwines filed cross-motions seeking summary judgment in their favor, and the trial court issued a written order concluding that the father “intended [Garner] to receive the contents of his personal residence contingent upon the full payment of the specific testamentary gifts provided under subsection 7.1.1 and the payment of debts, taxes and expenses of administration as provided under Section 6.2.” It then concluded that genuine issues of fact remained as to whether sufficient money existed “to fund the specific bequests in subsection 7.1.1 as well as pay the debts, taxes and expenses of administration as provided under Section 6.2 of the trust.” It therefore denied Garner’s motion for summary judgment in her favor, and granted the Redwines’ motion, in part.

In Case No. A10A1693, Garner asserts the trial court erred by concluding that the specific bequest of the personal contents was contingent upon the payment of the general gift of $8 million to her brothers, taxes, and trust administration. In Case No. A10A1694, the Redwines assert that the trial court erred by concluding that a genuine issue of fact exists with regard to whether the trust had funds sufficient to cover the $8 million bequest, taxes, and trust expenses.

Case No. A10A1693

1. The Redwines seek to dismiss Garner’s appeal based upon their contention that the trial court lacked jurisdiction to enter a declaratory judgment. According to the Redwines, the settlement between them and the trustee removed the issue of uncertainty over Garner’s right to the personal contents. We disagree.

Any person interested as a legatee, heir, or beneficiary “may have a declaration of rights or legal relations . . . and a declaratory judgment. . . [t]o determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” OCGA § 9-4-4 (a) (3). “This statute is to be liberally construed and administered so as to ‘afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations....’ OCGA § 9-4-1.” (Citation and punctuation omitted.) Sinclair v. Sinclair, 284 Ga. 500, 501 (1) (670 SE2d 59) (2008). In this case, both the settlement and the trial court’s temporary restraining order maintained the status quo with regard to the personal contents and preserved this issue for a declaration of the parties’ respective rights. We therefore deny this portion of the Redwines’ motion to dismiss this appeal.

2. The Redwines argue that this appeal also should be dismissed because the trustee was a necessary party omitted from Garner’s declaratory judgment action. We cannot dismiss on this ground because the record contains no ruling by the trial court on any motion to dismiss based upon a failure to join a necessary party. “Appellate courts exist to review asserted error but where the defendant makes no objection or obtains no ruling of the trial court, the contended problem cannot be made the basis of appellate review as there is no ruling to review.” (Citation omitted.) Sanders v. State, 179 Ga. App. 168, 169 (2) (345 SE2d 677) (1986).

3. The Redwines contend Garner’s suit should be precluded by a previous consent decree entered in another action. We find no merit in this claim because the record shows that this consent decree precludes Garner from contesting the validity of the third amendment to her father’s trust. It does not preclude her from seeking guidance as to its meaning and construction.

4. Garner asserts that she is entitled to summary judgment in her favor based upon the Georgia Supreme Court’s decision in Henderson v. First National Bank of Rome, 189 Ga. 175 (5 SE2d 636) (1939). In Henderson, the Supreme Court held that a specific devise of particular property was not rendered a general legacy simply because it had been placed in a residual clause. Id. at 176-182. Instead, the Supreme Court noted:

The testator’s intent is to be determined in each case from a consideration of the particular language employed. A bequest or devise of the residue of an estate is general, because such residue is not ascertainable at the time the will is made. The fact that in giving such residue the testator describes, as included in it or forming a part of it, certain specific property owned by him, does not alter the character of the residuary gift. But where the language used indicates an intention to make two distinct gifts — one of specific property and the other of the residue, the specific legacy or devise is not rendered general by the fact that there is a gift of the residue to the same person.

Id. at 180. In Henderson, an abatement of legacies was necessary “because of insufficiency of assets to pay all of the debts, expenses of administration, and specific devise.” Id. at 176. The clause at issue provided: “I give, devise, and bequeath to my uncle Henry Gustav Stoffregen the remainder of my estate of every kind and description, especially all my rights in and to the Woolworth Store and the alley adjoining. . . .” The Supreme Court concluded:

If the testator, after making other particular bequests, had intended merely to constitute his uncle as his general residuary legatee, there was certainly no need to make mention of this particular property. It would have passed to him (subject to abatement if the necessity should arise) without this particular designation. When he used the word “especially,” and then described this property and with careful particularity identified it by reference to the deed under which it was held and to the record of this deed, we think the testator manifestly and clearly intended that this named legatee should receive from his estate this particular property. The fact that he also made him his residuary legatee, thus assuring that he would take in addition any residuum from property not otherwise devised, does not seem to us in any way to operate against this conclusion. It can not be doubted that if in a separate item this property had been devised with the same particularity of description, it would have been a specific devise, and not a general legacy. It certainly may be segregated from the general mass of other property, and the legacy could be satisfied by delivery of the described property, and by that alone. It is our view that the intention of the testator is gratified by such a construction.

The case before us involves similar language. While the bequest was placed in a remainder clause, the settlor also “further directed] that all of the contents of my personal residence be distributed to Elizabeth . . . Garner, as part of her share of this testamentary gift. ...” The settlor’s further direction that the value of the personal contents should be deducted from any remainder share collected by Garner does not render this a general bequest for purposes of abatement. This language reflects a clear intent on the part of Garner’s father that Garner should receive the personal contents if she so desired.

We must therefore reverse the trial court’s denial of Garner’s motion for summary judgment as well as the trial court’s partial grant of summary judgment to the Redwines.

Decided March 9, 2011

Reconsideration denied April 7, 2011

Jeremy U. Littlefield, for appellant.

Millard C. Farmer, Jr., for appellees.

Case No. A10A1694

The Redwines assert that the trial court erred by concluding that issues of fact existed with regard to whether the trust remainder was adequate to satisfy the $8 million bequest, taxes, administration expenses, and the bequest of the personal contents to Garner. In light of our holding in Case No. A10A1693, the Redwines’ appeal in Case No. A10A1694 is dismissed as moot.

Judgment reversed in Case No. A10A1693. Appeal dismissed as moot in Case No. A10A1694.

Mikell and Adams, JJ., concur.


text:
    A10A1929.
    AGNEW v. THE STATE.
    (709 SE2d 567)
   SMITH, Presiding Judge.

In the second appearance of this case before this court, Antonio Agnew appeals from the trial court’s denial of his motion to withdraw his guilty pleas. For the reasons set forth below, we reverse.

1. In ruling on a motion to withdraw a guilty plea, “[t]he trial court is the final arbiter of all factual issues raised by the evidence, and after sentence is pronounced a guilty plea may be withdrawn only to correct a manifest injustice.” (Citations and punctuation omitted.) Cazanas v. State, 270 Ga. 130, 131 (508 SE2d 412) (1998). The record in this case shows that the State separately indicted Agnew for crimes committed on different days and against different victims. The indictments were filed on the same day: Case No. 05SC33332 related to crimes committed on May 11, 2005, and Case No. 05SC33359 related to crimes committed on July 7, 2005.

On Monday, December 5, 2005, Case No. 05SC33359 was called for trial. At the conclusion of the charge conference and after all evidence had been presented, the trial judge suggested that Agnew might want to consider whether he wanted to take responsibility in both cases. After a recess, Agnew’s counsel informed the court that Agnew wanted to enter an Alford plea in both Case No. 05SC33359 and Case No. 05SC33332. Before the plea proceedings began, the State clarified that Agnew was facing life without parole based upon a recidivist notice filed by the State the Friday before in Case No. 05SC33332. See OCGA § 17-10-7 (c). Agnew then entered an Alford plea in both cases, and the judge imposed identical concurrent sentences in both cases.

On December 19, 2005, Agnew moved to withdraw his plea in both cases because he did not have three previous convictions at the time he committed the crimes at issue and was therefore not faced with a potential sentence of life without parole in Case No. 05SC33332. At the conclusion of a March 9, 2006 hearing, the trial court denied the motion orally. A written order denying the motion was entered on April 17, 2007.

Agnew appealed to this court, arguing that he was entitled to withdraw his pleas because he did so based upon an affirmative misrepresentation. The State argued that an exhibit attached to its brief demonstrated that Agnew did have three previous convictions and that he was subject to life without parole. On June 16, 2008, we remanded this case to the trial court “for the limited purpose of deciding, after hearing argument, whether to include in the record on appeal the document [GCIC memorandum] attached to the State’s brief as ‘Exhibit 1.’ ” We reasoned that the exhibit appeared “to be determinative of the issue on appeal.”

On October 29, 2009, the trial court issued a three page order discussing the merits of Agnew’s motion to withdraw that noted a hearing held on October 23, 2009 in which “the [Sjtate’s exhibit and the transcript of the . . . motion to withdraw guilty plea hearing were admitted for the record.” The record before us does not include a transcript of the October 23, 2009 hearing or the State’s exhibit for which this case was remanded.

Despite this omission from the record, we can still resolve the issue before us based upon the State’s concession that it erroneously represented that Agnew had three prior felony convictions and was facing a life without parole sentence in Case No. 05SC33332. Because Agnew decided to plead guilty to both cases at the same time, we cannot separate the harm caused by the State’s erroneous representation that he was facing life without parole in one of the cases from the other. And because Agnew was given affirmative erroneous information at the time he decided to enter his guilty pleas, the trial court should have granted the motion to withdraw his guilty plea in both Case Nos. 05SC33332 and 05SC33359 to correct a manifest injustice. See Rollins v. State, 277 Ga. 488, 490 (1) (591 SE2d 796) (2004); Clue v. State, 273 Ga. App. 672, 673-675 (615 SE2d 800) (2005); Barber v. State, 231 Ga. App. 176, 177 (2) (498 SE2d 758) (1998). We must therefore reverse the trial court’s denial of Agnew’s motion to withdraw his guilty pleas.

Decided March 9, 2011

Reconsideration denied April 7, 2011.

Carl P. Greenberg, for appellant.

Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.

2. Agnew’s remaining enumeration of error is rendered moot by our holding in Division 1.

Judgment reversed.

Mikell and Adams, JJ., concur.

       In the first appearance of this case, we remanded it to the trial court for completion of the record.


author: Ellington, Chief Judge.

text:
    A11A0011.
    NELOR v. THE STATE.
    (709 SE2d 904)
   Ellington, Chief Judge.

Bernard Nelor appeals from an order of the Superior Court of Gwinnett County which denied a recommendation filed by the Department of Behavioral Health and Developmental Disabilities that Nelor be moved to a facility for outpatient involuntary treatment. Nelor contends that the trial court erred in concluding that he still meets the criteria for inpatient involuntary treatment. Because the record shows that Nelor satisfied his burden of showing that he no longer meets the criteria for inpatient involuntary treatment, we must reverse.

OCGA § 37-3-1 (9.1) provides that mentally ill persons require inpatient involuntary treatment if they present a substantial risk of imminent harm to themselves or others, or are so unable to care for their own physical health and safety as to create an imminently life-endangering crisis. If, during a hearing, a person who has been involuntarily committed for inpatient treatment is able to overcome the rebuttable presumption by showing that he or she no longer requires inpatient involuntary treatment, however, then a trial court may order the person be conditionally released pursuant to OCGA § 17-7-131 (e) (5). Gray v. State, 295 Ga. App. 737 (673 SE2d 84) (2009).

During the hearing, the tried court must determine whether the person has rebutted the presumption of a continued need for inpatient treatment by showing, by a preponderance of the evidence, that such treatment is no longer required. Nagle v. State, 262 Ga. 888, 892 (2) (b) (427 SE2d 490) (1993). “The court must consider all credible and relevant expert and other evidence presented at the hearing and contained in the trial record on the issue of conditional release.” (Footnote omitted; emphasis supplied.) Gray v. State, 295 Ga. App. at 737. In fact,

because the factfinder must weigh the evidence and may not arbitrarily ignore it, overwhelming opinion evidence of a medical condition may not be summarily rejected by the factfinder. When proof of [a defendant’s mental state] is overwhelming, [the factfinder] may not rely solely on the rebuttable presumption [that the defendant’s prior mental state has continued]. It is a [factfinder’s] function to determine the credibility of witnesses and the probative value of testimony.

(Citations and punctuation omitted.) Nagel v. State, 262 Ga. at 891 (2) (a).

On appeal from an order deciding whether a person may be conditionally released from inpatient involuntary treatment, this Court must determine whether, after reviewing the evidence in the light most favorable to the State, a rational factfinder could have found that the person failed to prove by a preponderance of evidence that he was no longer in need of inpatient involuntary treatment. Id. at 892 (2) (b). In order for this Court to implement this standard of review, the trial court’s order must supply specific findings of fact regarding the evidence presented and the court’s conclusions based thereon. Id.; Gray v. State, 295 Ga. App. at 737.

The record reveals that, in 2004, the State charged Nelor with aggravated assault and kidnapping with bodily injury arising out of the alleged sexual assaults of two women. The trial court found that Nelor was mentally ill and declared him incompetent to stand trial, and ordered that he be involuntarily committed to the custody of the Department of Human Resources (“DHR”). In 2007, the trial court entered an order finding that, because Nelor was “mentally ill with a diagnosis of Mental Retardation,” he met the criteria for civil commitment under OCGA § 37-3-1 (9.1). The trial court ordered that Nelor receive inpatient involuntary treatment.

In January 2009, a forensic psychologist with the DHR reported to the trial court that, while Nelor remained incompetent to stand trial, it was the consensus of his treating psychologists that he no longer met the criteria for inpatient treatment. The DHR recommended that Nelor be moved to a group home setting to continue his involuntary treatment. Following a hearing on the recommendation, the trial court found that Nelor continued to meet the criteria for civil commitment but denied the DHR’s recommendation that he be moved to an appropriate facility for outpatient involuntary treatment. Nelor appealed that order to this Court, and we vacated it in an unpublished opinion (304 Ga. App. XXV) because the order did not contain the requisite factual findings. Following remand, the trial court entered an amended order, and Nelor brought the instant appeal.

On July 10, 2009, the trial court conducted a hearing on the issue of Nelor’s continued need for inpatient involuntary treatment. The record shows that, at the time of the hearing, 32-year-old Nelor was diagnosed as moderately mentally retarded, with an IQ in the range of 43 to 55. Prior to his arrest and commitment, he had no history of drug or alcohol use or criminal behavior. Nelor did not suffer from a psychotic or mood disorder and, because he was not mentally ill, he was not prescribed any psychotropic medication. Nelor’s treating psychiatrist testified that, during Nelor’s years of commitment, he demonstrated no behavioral problems, had no episodes of hostility, impulsivity, or general “acting out,” and was, in fact, “quite docile.” Other therapists reported that Nelor was “consistently sociable, friendly, and happy” and that “[t]here have been no episodes of impulsive, aggressive, or sexually inappropriate behavior.” He remained calm and cooperative during therapy and group activities.

Nelor was given “Level D” privileges by the staff at Georgia Regional Hospital in Savannah, which meant he could walk freely on hospital grounds. He was compliant with hospital rules and always returned to his room when required and “sign[ed] in appropriately.” He was not permitted to leave hospital grounds unsupervised, however, because of concerns that he lacked the cognitive ability to do so safely. There is no evidence in the record that Nelor ever attempted to leave hospital grounds unsupervised or that he refused to comply with hospital rules or the directions of hospital staff. To the contrary, Nelor reported at least one infraction of hospital rules by another patient to the staff.

Nelor’s treating psychiatrist also testified that, as long as Nelor was in an appropriate environment, he posed absolutely no danger to himself or others. He was not homicidal or suicidal, and he required no medication. The psychiatrist testified that Nelor would benefit from being employed and productive and from continued academic and social skills training. Nelor had already completed courses in stress management and basic social skills. Because of his limited cognitive functioning, however, Nelor was susceptible to peer pressure and would require supervision in an appropriate, structured setting. In the psychiatrist’s opinion, Nelor no longer met the criteria for inpatient civil commitment and would benefit from outpatient treatment. This opinion was shared by Nelor’s treatment team, and no one testified to the contrary.

Nelor’s social worker testified that, in 2007, she began working to find a suitable outpatient involuntary treatment provider for him. After researching available facilities, she chose Consumer Care Corporation (“CCC”), a provider that offered “24/7” supervised, outpatient care in a group home setting. Nelor was escorted to the group home for a “meet and greet” session, which went “extremely well.” The social worker confirmed that Nelor’s social security benefits covered these “community residential alternative services” and that space was available for him in the group home. The group home would provide continuous supervision during day and evening activities, which included academic classes, counseling, grocery shopping, exercise, church and doctors’ visits, and any work activities, like basic, in-home “piecework.” Nelor would never be unsupervised and would never be allowed off the premises unescorted. He would reside in the group home indefinitely as an involuntary outpatient until a court authorized a change in his status.

Specifically, Nelor would live in a licensed, regulated, and regularly State-monitored “Community Living Arrangement,” one of nine group homes managed by CCC. The homes consist of two live-in supervisors and up to three male patients in each single-family residence. The homes are in residential communities and the neighbors have been informed of the nature of the homes and the status of the residents. At the time of the hearing, Nelor was to be the only resident in the group home besides the live-in supervisors. Future residents and Nelor’s “individual service plan” would be determined and “built around [Nelor] and his needs.” CCC retained the services of a private psychologist and board-certified behavioral specialists, both of whom would treat Nelor at regular intervals. Nelor would also have access to doctors and social workers as needed. CCC provides an “individual service plan” for each of its residents, and would create one for Nelor should he be admitted to the home. CCC’s in-home supervisors are specially trained and certified in caring for special needs patients and are authorized to temporarily restrain Nelor should he ever attempt to hurt himself or others or to damage property. If Nelor’s behavior changed such that he was no longer a suitable resident for the home, the home would notify the Department of Human Resources of that fact so that a different placement could be arranged with the court’s approval. Should he become assaultive or manage to leave the premises without authority, the home would notify the police. The home has safeguards in place, including an emergency panic button, to notify CCC administrators of an immediate problem.

Nelor also testified and expressed a desire to live in the group home, saying it was “a good idea.” He looked forward to playing basketball and learning to swim. He stated that he would follow the rules of the home.

Decided April 7, 2011.

In its amended order, the trial court found that Nelor continued to present a risk of imminent harm to himself and others, citing these reasons for denying Nelor’s request of outpatient involuntary commitment: (1) “the continued presence of‘destabilization factors’ such as peer pressure, unproductiveness, and illiteracy[,]” (2) “Consumer Care Corporation has no legal right or authority to prevent the defendant from leaving the group home if he chose to do so[,]” and (3) “[tjhere was no individualized service plan offered as part of the release.” These concerns, however, are unsupported by the record. First, the group home would have only two other suitable patient occupants, both of whom would be under the supervision of live-in supervisors and would, therefore, have little opportunity to pressure Nelor into misconduct. The home would also provide academic classes, basic skills training, and the opportunity to do things that the hospital environment did not offer, like swimming lessons, church, and grocery shopping — activities that would keep Nelor productive and engaged. The record does not support the presence of “destabilizing factors.” Second, it is clear from the record that Nelor would not be permitted to leave the group home unsupervised, that doing so would be a breach of the terms of his involuntary commitment, and that his supervisors would take immediate action to return him to the facility or to ensure that he is appropriately restrained, if necessary. Further, Nelor has no history of escape and demonstrates no desire to leave his confinement. Third, the manager of the group home testified that, as soon as patients are admitted into the group home and evaluated, an individualized service plan is created. There is no statutory requirement that a plan exist prior to release. Finally, and most significantly, there is no evidence to support the court’s finding that Nelor poses a substantial risk of imminent harm to himself or others, or is so unable to care for his own physical health and safety as to create an imminently life-endangering crisis, and, thus, is in need of continued involuntary inpatient treatment.

After carefully reviewing the evidence in the light most favorable to the State, we conclude that the preponderance of the evidence supports a finding that Nelor overcame the presumption of a continued need for inpatient involuntary treatment. Accordingly, we must reverse the order of the trial court.

Judgment reversed.

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

Stacy S. Levy, for appellant.

Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

       Under OCGA § 24-4-21, a person’s mental state, once proven to exist, is presumed to continue, but this presumption is rebuttable.


author: Andrews, Judge.

text:
    A11A0555.
    McEWEN v. BREMEN BOWDON INVESTMENT COMPANY.
    (709 SE2d 908)
   Andrews, Judge.

We granted Brandi McEwen’s application for discretionary review of the superior court’s order affirming a decision by the State Board of Workers’ Compensation (“the Board”). For reasons discussed below, we vacate and remand this case to the Board for further consideration.

The record shows that in January 2008, McEwen started working for Bremen Bowdon Investment Company (“BBI”), a manufacturer of military uniforms. At various times, she worked in the pants shop, made buttonholes, sewed buttons, and ironed coat linings.

In October 2008, McEwen began experiencing back pain at work, particularly while “twisting” in connection with her buttonhole duties. McEwen told her supervisor, Dianne Kellum, that her “back was hurting from the job.” Although Kellum acknowledged that McEwen came to her crying and told her that her back was hurting, she said McEwen never told her that her back was hurting because of her job. Kellum told McEwen that she should see a doctor, and McEwen went to the emergency room twice in November 2008. She missed work on the second occasion, provided a “work excuse” to Kellum, and then returned to her normal work duties.

Although McEwen’s back pain continued, she “tried to work as best as [she] could.” Apparently, however, she missed more time from work because of her condition, and BBI terminated her on January 23, 2009, for absenteeism. McEwen subsequently filed a workers’ compensation claim, seeking continuing temporary total disability (“TTD”) benefits from January 24, 2009, as well as medical benefits and assessed attorney fees.

Following a hearing, the Administrative Law Judge (“AU”) concluded that McEwen’s back condition was caused over time by her job duties and thus was compensable as an injury arising out of and in the course of her employment. The AU noted that McEwen testified that she never had any back problems prior to working for BBI and had no injury outside the job to her back. The AU awarded McEwen temporary total disability and medical benefits, but denied her claim for attorney fees.

BBI appealed the AU’s award to the Board’s appellate division, which reversed, finding that the injury did not arise out of McEwen’s employment. The appellate division explained: “In reaching this conclusion, we are persuaded by the employee’s own testimony that at no time while she was working with the employer did she allege a job injury.” It also noted that McEwen did not inform her superiors or her initial treating physicians that she had a workers’ compensation claim, and she did not report a “specific injury.”

The superior court affirmed that decision on further appeal. This appeal followed.

1. In her first enumeration of error, McEwen argues that the appellate division lacked authority to make its own factual findings and reverse the ALJ. But the appellate division may substitute its own factual findings for those of the ALJ if it determines that the ALJ’s findings were not supported by a preponderance of the evidence. See Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997). Moreover, a superior court must uphold the substituted findings if any evidence supports them. See id. at 508.

2. As noted above, however, the division based its decision, at least in part, on an erroneous finding of fact; namely “employee’s own testimony that at no time while she was working with the employer did she allege a job injury.” As stated above, although denied by Kellum, McEwen testified that she informed Kellum that she “had hurt [herself] at work,” and that she “hurt [her] back on the job.”

But the appellate division did not base its award on a determination that Kellum was more credible than McEwen. Instead, it relied upon an alleged admission that is not evident in the record.

“When it is uncertain from the face of the award whether the board has considered certain evidence, the proper remedy is to remand to the board for further consideration.” Times-Georgian v. Thompson, 201 Ga. App. 854, 856 (412 SE2d 871) (1991); see also Shaw Indus. v. Shaw, 262 Ga. App. 586 (586 SE2d 80) (2003). It appears that the appellate division either failed to consider all of McEwen’s testimony or misconstrued the testimony. Furthermore, the division gave significant weight to what it believed to be an admission in McEwen’s testimony. Given that no admission was made, a remand is necessary so that the appellate division can reconsider the case in light of all relevant testimony. Accordingly, the judgment of the Superior Court is vacated and this case is remanded to the State Board of Workers’ Compensation for further consideration.

Judgment vacated and case remanded.

Phipps, P. J., and McFadden, J., concur.

Decided April 8, 2011.

Smith, Wallis & Scott, Christopher B. Scott, Joseph W. Brown II, for appellant.

Bovis, Kyle & Burch, Adam C. Grafton, for appellee.


author: Doyle, Judge.

text:
    A10A1781.
    NW PARKWAY, LLC v. LEMSER et al.
    (709 SE2d 858)
   Doyle, Judge.

This appeal involves a 20-year commercial property lease agreement, which was executed on July 20, 2004, between NW Parkway, LLC (“NW Parkway”), and West Asset Management, Inc. (“West”), for a term beginning on August 1, 2004, and expected to continue until July 31, 2024. The trial court granted West’s motion for partial summary judgment and declaratory relief. NW Parkway appeals, and we reverse for the reasons that follow.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. On appeal, this Court conducts a de novo review of the law and the evidence.

So viewed, the evidence below establishes that West leased certain property from NW Parkway. In early 2008, NW Parkway determined that West was not maintaining the property and obtained a professional inspection. The report indicated that the roof had deteriorated and would require replacement, rather than repair. Based on the inspector’s report, NW Parkway concluded that immediate replacement of the roof and repair of other parts of the property were warranted, and it requested that West make the repairs in a letter dated February 27, 2008.

In a letter dated July 10, 2008, NW Parkway notified West of its alleged default for failure to perform roof repairs. After 30 days, NW Parkway sent a letter notifying West that it had failed to cure the default within the appropriate time frame. On December 31, 2009, West sent a letter attempting to effect early termination under the lease’s fourth special stipulation. This attempt was rejected in writing by NW Parkway on January 29, 2009, citing West’s default under its obligation in the lease to pay expenses of the roof replacement.

When West refused to make the repairs, NW Parkway filed a complaint against West for damages, seeking the cost of the repairs to the roof, attorney fees, and a temporary restraining order (“TRO”) allowing it to enter the property and repair the roof. In November 2008, the trial court granted NW Parkway an emergency TRO in order to replace the roof without making any determination as to which party would ultimately be responsible for covering the expense.

The third special stipulation of the parties’ lease stated:

This lease is a triple net lease and therefore in addition to the rent due to Lessor, as described in Exhibit “B”, Lessee shall be responsible for and pay directly, on a timely basis, all expenses for the entire property and building, of any nature whatsoever during the term of this lease; with the exception that the Lessor shall be responsible for any expense directly associated with and actually incurred with respect to the concrete walls, concrete slab, and foundation. Lessee agrees to send a copy to Lessor of any property Tax Assessment Notice and also any Property Tax bill, within 5 days of receipt, provided however that Lessee shall pay the total Property Tax Bill when due.

The contract also contained a dispute-resolution clause, which stated:

45. Special Stipulations. The special stipulations (the “Special Stipulations”), if any, attached hereto as Exhibit “C” are hereby incorporated herein and made part thereof, and in the event they conflict with any of the provisions of this Lease, such Special Stipulations shall control.

One of the general terms of the lease addressed the issue of maintenance of the property, which stated:

8. Maintenance of Premises. Lessee acknowledges that the premises are in good order and repair. Lessee shall, at its own expense, and at all times, maintain the Premises in good, clean, and safe condition, including but not limited to the carpeting, interior walls, interior and exterior portion of all doors, windows, window frames, glass, and door closures and all electrical wiring, plumbing, water heaters, and air conditioning and heating installations installed by Lessee and shall surrender the same at the termination hereof, in as good condition as received, normal wear and tear excepted.

The lease also contained an early-termination clause in the fourth special stipulation:

4. Termination. Lessee shall be granted the option to an early termination by Lessor only at the end of the 5th, 10th, and 15th year of this lease; provided however, that for said option to be valid and effective, Lessee shall a) not default under any of the provisions of this lease, b) provide Lessor with written notice (90) days in advance of the end of the 5th, 10th, or 15th year of the lease, c) continue to pay rent for an additional (6) months beyond the end of that lease year, and d) vacate the premises within said (6) months (i.e. 5 years and 6 mo, 10 yrs and 6 mo, etc.) leaving the premises in good working order, normal wear and tear excepted.

The lease also contained a provision addressing waiver of default:

37. No waiver of default. No waiver by the parties hereto of any default or breach of any term, condition, or covenant of this Lease shall be deemed to be a waiver of any other breach of the same or any other term, condition, or covenant contained herein.

West filed an answer and counterclaims, alleging a count of fraud and deception for misrepresentation of the roofs condition, breach of contract, setoff and recoupment, declaratory judgment, negligence, and contribution or indemnification.

Thereafter, the trial court granted West’s motion for partial summary judgment and declaratory relief. The trial court concluded that West had not defaulted on the lease because it did not have an obligation thereunder to replace the roof. In its order, the court relied on Jacobi v. Timmers Chevrolet, Inc., in determining that the lease did not require West to replace the roof. Alternatively, the trial court determined that even if West had an obligation to replace the roof, NW Parkway had waived any right to claim breach because NW Parkway accepted subsequent rent payments.

1. As an initial matter, West has filed a motion to dismiss the appeal on the basis that the appeal is moot because the declaratory judgment from which NW Parkway appeals has been negated by West’s move from the building. Because the trial court made legal determinations that West was not in default and was not responsible for replacing the roof, however, the appeal is not moot. The trial court’s order states that: “This order is intended to resolve only whether West is entitled to terminate the lease agreement. Nothing in this order is intended to resolve whether West breached the lease agreement at issue, or what damages, if any, can be recovered for any such breach.” Nevertheless, the legal conclusions reached by the trial court affected NW Parkway’s rights to recover under the lease. Accordingly, West’s motion to dismiss the appeal is denied.

2. NW Parkway argues that the trial court erred by ruling that West, as a matter of law, had no obligation to repair the property’s roof. Specifically, NW Parkway argues that the third special stipulation of the lease assigned all expenses to West except for expenses related to the concrete walls, concrete slab, and foundation of the building, which expenses were the responsibility of NW Parkway. NW Parkway also argues that to the extent paragraph 8 of the lease is in conflict with the third special stipulation, then the stipulation controls, as plainly stated in paragraph 45 of the contract. West, on the other hand, argues that the language of the contract requires it only to perform normal maintenance on the property.

There are three steps to ascertain the intent of the parties when construing contracts:

First, the court decides if the contract language is unambiguous, and if so the court enforces the contract’s clear terms. Second, if the contract is ambiguous, the court must apply the rules of contract construction to resolve the ambiguity. And third, if the ambiguity remains after use of the construction rules, the meaning of the contract must be decided by a jury.

“The first rule that courts must apply when construing contracts is to look to the plain meaning of the words of the contract,” and “[i]t is a cardinal rule of contract construction that a court should, if possible, construe a contract so as not to render any of its provisions meaningless and in a manner that gives effect to all of the contractual terms.”

Words generally bear their usual and common signification; but technical words, words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning. The local usage or understanding of a word may be proved in order to arrive at the meaning intended by the parties[.]
Pursuant to the directive of OCGA § 13-2-2 (4), we favor a construction that upholds the contract in whole and in every part, and look at the whole contract in construing any part. If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred. Finally, when a provision specifically addresses the issue in question, it prevails over any conflicting general language.

Based on the plain language of the lease, the trial court erred by determining that West was not obligated to repair the roof. The third special stipulation states: “Lessee shall be responsible for and pay directly, on a timely basis, all expenses for the entire property and building, of any nature whatsoever during the term of this lease . . . .” Although the third special stipulation contains the limitation, “normal wear and tear excepted,” when read in conjunction with the rest of the contract, this provision does not absolve West’s responsibility for roof replacement that became necessary during its tenancy, as “roof replacement” falls within the normal meaning of “all expenses for the entire property and building, of any nature whatsoever” during the 20-year lease term. This conclusion is further supported by the remainder of the third special stipulation, which makes specific exceptions to this requirement by making the Lessor responsible “for any expense directly associated with and actually incurred with respect to the concrete walls, concrete slab, and foundation.” Thus, had the parties wished to exclude from West’s responsibility any expense related to the roof, they could have included the roof in the limited list of portions of the building for which NW Parkway retained responsibility to maintain.

Again, based on its reading of Jacobi, the trial court found that the language of paragraph 8, which describes maintenance duties of the lessee, to mean that West was not required to replace the roof. The court determined that roof replacement did not fit the definition of maintenance as required by that portion of the contract. Nevertheless, because the plain language of the contract contains in paragraph 45 a stipulation supremacy provision, the third special stipulation would control over paragraph 8 of the lease in the event that the provisions are read to conflict. Such a reading is not necessary, however, because nothing in paragraph 8 limits the language of the third special stipulation, and the paragraph simply describes the upkeep West was expected to perform throughout the property as a matter of course.

Based on the facts included in the Jacobi decision, which the trial court relied upon heavily in determining that West was not responsible for the roof repair, it is not dispositive to the outcome of this case. The lease in Jacobi did not contain a provision similar to the third special stipulation contained in the lease at hand. Moreover, the parties in that case were contracting for the use of a parking lot, which happened to contain a dilapidated building that had not been used for some time. Thus, capital improvements to the building would not have been contemplated by the parties at the time the lease was written, and the maintenance clause, similar to paragraph 8 of this lease, could not be construed to include such improvements.

Accordingly, based on the plain language of the lease, the trial court erred by finding that West was not obligated to replace the roof and by basing its determination that West was not in default upon this finding.

3. NW Parkway also argues that the trial court erred by alternatively finding that even if West had an obligation to repair the roof, NW Parkway waived its rights under the lease by accepting subsequent rent payments from West. We agree.

A party may by his conduct waive a legal right but where the only evidence of an intention to waive is what a party does or forbears to do, there is no waiver unless his acts or omissions to act are so manifestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of his conduct is possible.

Decided March 24, 2011

Reconsideration denied April 11, 2011

John F. Salter, Jr., Allison B. Salter, for appellant.

Bondurant, Mixson & Elmore, M. Jerome Elmore, Timothy S. Rigsbee, Michael A. Copian, for appellees.

“The question whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury.”

Although acceptance of rent often constitutes a waiver of the lessee’s default and reinstatement of the lease, the cases in which this rule has been applied involved a lessor’s waiver of its early termination rights. Here, however, the early termination clause benefitted West, not NW Parkway, and the clause contained four conditions precedent for the option to early termination to apply. Thus, West’s failure to comply with the third special stipulation, i.e., failure to repair the roof, constituted default, which prevented West from timely complying with the terms of the optional early termination clause in order to terminate at the five-year point. To hold otherwise would render meaningless the conditions precedent listed in the early termination clause. Accordingly, the trial court erred by finding that by accepting rent, NW Parkway waived its right to deny West’s attempt to early terminate at the fifth year of the lease.

4. Finally, NW Parkway argues that the trial court erred by using declaratory judgment to effectively grant complete summary judgment to West. Based on the holdings in Divisions 2 and 3 of this opinion, this enumeration is moot.

Judgment reversed.

Ellington, C. J., and Andrews, J., concur.

       Formerly Worldwide Asset Management.

       (Footnote omitted.) Eckerd Corp. v. Alterman Properties, Ltd., 264 Ga. App. 72, 74 (589 SE2d 660) (2003).

       The ninth special stipulation contained in the lease agreement provided that the Lessee would have 30 days to cure any non-monetary default.

       164 Ga. App. 198 (296 SE2d 777) (1982).

       “Lessee shall be responsible for and pay directly, on a timely basis, all expenses for the entire property and building, of any nature whatsoever during the term of this lease. . . .”

       Citing Jacobi, 164 Ga. App. at 198-199.

       (Punctuation omitted.) Eckerd Corp., 264 Ga. App. at 76 (2).

        Ga. Real Estate Properties v. Lindwall, 303 Ga. App. 12, 14 (1) (692 SE2d 690) (2010).

       (Punctuation omitted.) Northwest Plaza, LLC v. Northeast Enterprises, 305 Ga. App. 182, 189 (1) (699 SE2d 410) (2010).

       OCGA § 13-2-2 (2).

       (Citations and punctuation omitted.) Woody’s Steaks, LLC v. Pastoría, 261 Ga. App. 815, 818 (1) (584 SE2d 41) (2003).

       (Emphasis supplied.)

       See Jacobi, 164 Ga. App. at 198.

       See id.

       (Punctuation omitted.) Eckerd Corp., 264 Ga. App. at 75 (1).

       (Punctuation omitted.) Id. at 76 (1).

       See, e.g., C & A Land Co. v. Rudolf Investment Corp., 163 Ga. App. 832, 834 (296 SE2d 149) (1982); Gay v. American Oil Co., 115 Ga. App. 18 (153 SE2d 612) (1967); Yates v. Farmer, 102 Ga. App. 570 (117 SE2d 211) (1960).

       See Piedmont Center 15, LLC v. Aquent, Inc., 286 Ga. App. 673, 677 (649 SE2d 733) (2007).


author: BARNES, Presiding Judge.

text:
    A10A1985.
    HALL v. THE STATE.
    (710 SE2d 146)
   BARNES, Presiding Judge.

Antone Cortez Hall appeals his conviction of battery and two counts of robbery by force against two different victims, contending that the trial court erred in denying his motion to suppress evidence recovered after he was seized. He also asserts that the trial court erred in admitting both victims’ pretrial identification of him and one victim’s in-court identification. Having reviewed the record and the transcripts of the motions hearing and bench trial, we find no error.

1. When reviewing a ruling on a motion to suppress, we accept a trial court’s findings as to disputed facts unless the findings are clearly erroneous, but if the evidence is uncontroverted and no issue of witness credibility exists, as is the case here, we review de novo the trial court’s application of the law to undisputed facts. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The record shows that in November 2007, a cab driver who spoke only Spanish picked up two men from a mobile home park, one white, one African-American. The driver recognized the white man, who sat in front, because he had been a passenger before. The driver took the men to a specific location, waited, drove them to another location, and waited again. Upon their return, the men asked the driver to take them back to the mobile home park, and the driver agreed but was suspicious and asked for payment first of the money owed to that point. The men said no, they would pay him when they got back to the park. The man in the back seat grabbed the driver by the neck and demanded money while the man in the front began hitting him. The driver opened his door and tried to run out, but the man in back caught him, and both passengers began hitting the driver, then kicked him when he fell to the ground. The driver finally gave them the cash from his pocket, less than $200, and they left. The driver called a co-worker, who called the police, who came and investigated the crime.

Several weeks later, the driver began talking to another cab driver who had been robbed earlier that day by two men, one white, one African-American, whom she had picked up from the same mobile home park. The method of the crime was very similar, and the first driver thought the robbers might be the same men that robbed him. Some time later he saw an article in a Spanish newspaper about two men who had been arrested for robbing a cab driver, and he recognized the men from the newspaper photographs as the men who had robbed him. The photographs were of Hall and Frankie Andrew Clark, also charged with these crimes, and the driver took the article to the police to show them. At trial, however, the driver could not positively identify Hall as the man who had robbed him.

In December 2007, a different cab driver picked up two passengers, a white man and an African-American man, from the same mobile home park around 3:00 a.m. The driver became suspicious when the white man directed his companion to sit directly behind the driver and then got into the front passenger seat himself. When the men did not know the specific address of their destination, the driver became nervous and retrieved her Taser from her door pocket. She turned it on and concealed it on her lap beneath her shirt. When the man in front directed her to turn into a particular driveway, the driver commented that she did not know that the woman who lived there, who was a friend of hers, was expecting company. The man corrected himself and said his destination was further down, so the driver backed out of the driveway and continued down the road, turning around twice in response to the front passenger’s directions.

When the driver rounded a curve on the main road, the front passenger suddenly reached over and threw the cab into park, then yelled for the back passenger to grab and hold the driver. The front passenger struck the driver on the head with a hard shiny object, and she fought back, knocking the object from his hand, scratching his neck, and tasing him as he continued to strike her with his fists. She tased the back passenger’s right hand too, and he let go and ran away. The front passenger finally grabbed the driver’s wallet from her door pocket and ran up a driveway behind a house, toward a wooded area in the same direction the back passenger had gone.

During the altercation the driver had been on the radio with her dispatcher, who had been on the line with a 911 operator, and within five minutes law enforcement officers met the cab driver at a nearby parking lot. While looking through the cab, the first responding detective found a meat cleaver on the floor between the two front seats, which the driver thought was the hard shiny object she knocked out of the front seat passenger’s hand. The driver described the back passenger as a younger-looking African-American man, thin with a small frame, “shorter than the white guy,” wearing all dark clothes, including a winter jacket and a “toboggan” hat. The victim pointed out the direction the two men had gone.

The county sheriffs department set up a perimeter around the area where the robbery took place, covering the “most obvious outlets” from the wooded area near the robbery, and a canine unit began searching for the men. It was still dark, around 3:00 or 4:00 a.m., and there were no pedestrians or traffic in the area. The officers were about to call off the search when a newspaper delivery man drove up and said he almost hit “a white male and a black male” running down the road in a nearby subdivision. The delivery man stopped to tell the officers about it because he thought they might be looking for someone. Officers went to search that area about a quarter of a mile away.

One of the officers was driving 25 to 30 mph down the road when he passed Hall, who was heading in the opposite direction on the left side of the road. The deputy noticed that Hall was extremely slender and dressed in all black. Although he was sweating profusely and out of breath, he was not sufficiently dressed for the very cold weather, and the deputy detained him for further investigation. Hall said first that he was coming from his cousin’s house, but then said he was going to his cousin’s house (which he could not describe) and was coming from his home at the trailer park miles away. This explanation further aroused the deputy’s suspicion because Hall would have had to pass through the officers’ perimeter to have come from the trailer park, and they had not seen him do so. As he had not walked through the perimeter, he must have come from the woodline, the deputy reasoned, because there were no through streets within the area being monitored, only small subdivision streets which were all under surveillance.

The deputy explained to Hall that he was not under arrest but was being detained because he fit the description of someone involved in a “nearby scene.” After patting him down and placing him in handcuffs, the deputy placed Hall in the back of a patrol car and took him to a nearby lighted parking lot, where he directed Hall to get out and stand in the lot. The victim viewed Hall from the back seat of a patrol car that drove by Hall twice, but could not identify him with certainty, so the officers uncuffed him and were obtaining contact information when other officers located the second robber, Clark. Clark fit the description of the white male robber, including fresh scratches on his neck, and upon his apprehension the officers decided to arrest Hall.

Hall moved to suppress any evidence derived from his seizure, specifically his responses to the officer’s questions and the second victim’s identification of him at the scene, asserting that the deputies lacked reasonable suspicion to justify the investigatory detention. Momentary detention and questioning is legal if the stop is “based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment.” Buffington v. State, 228 Ga. App. 810, 811 (492 SE2d 762) (1997). While the victim’s description of her assailants was not very specific, Hall matched the description in build, height, race, and clothing color. With the assistance of a tip from a concerned citizen, Hall was found at 3:00 or 4:00 a.m. within walking distance of the crime shortly after it was committed, within the perimeter law enforcement officials had established. There were no other pedestrians or traffic in the area. Hall was out of breath and sweaty despite being underdressed for the weather, and he gave conflicting accounts of where he was coming from and going. Based on the totality of the circumstances, the investigatory stop was based on reasonable suspicion arising from a particularized and objective basis for suspecting Hall of criminal activity. Therefore, the trial court did not err in denying Hall’s motion to exclude evidence obtained as a result of his detention.

While Hall baldly asserts in a footnote that he was both seized and arrested, he neither argues the point nor cites authority for this proposition. Having failed to support this contention with facts or law, we will not discuss in any depth Hall’s assertion that he was arrested without probable cause when first detained, but simply point out that a second-tier investigatory stop is not automatically an arrest simply because an officer is armed or the suspect is handcuffed. See Lewis v. State, 294 Ga. App. 607, 609 (1) (a) (669 SE2d 558) (2008).

2. Hall contends that the trial court erred in admitting the second cab driver’s identification of him as one of the robbers, arguing that the on-scene identification was inherently suggestive and tainted the in-court identification. “An identification procedure becomes impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, ‘This is our suspect.’ ” (Citation and punctuation omitted.) Williams v. State, 272 Ga. 828, 828-829 (2) (537 SE2d 39) (2000). In determining whether the procedure was impermissibly suggestive, we consider the totality of the circumstances, including the witness’s opportunity to observe the criminal during the crime, her degree of attention, the accuracy of her prior description, her level of certainty at the confrontation, and the length of time between the crime and confrontation. Thomason v. State, 268 Ga. 298, 303-304 (3) (486 SE2d 861) (1997).

Here, the cab driver picked up Hall and Clark by the mobile home park office, which was well lit by a street light directly overhead, and she looked at both men then. As a precaution, she automatically looked closely at all her passengers “[i]n case we need to give a description in case something like this happens. We always try to at least know who is in our car,” she said. She became suspicious of them almost immediately when Clark directed Hall to sit behind her and then got in the front passenger seat, and focused on them more than usual until the assault about ten minutes later. She looked at Hall when using her wide-angle rearview mirror, which she did off and on during the drive. She accurately described to officers Hall’s race, gender, demeanor, physical stature, and clothing, and was “pretty sure” it was him when she saw him standing by the police car. Finally, Hall was arrested soon after the robbery in a location very close by. Considered as a whole, this pretrial identification procedure was not unduly suggestive and did not create a substantial likelihood of misidentification. Accordingly, the trial court did not err in admitting the cab driver’s pretrial identification of Hall. Further, the victim made no reference to her pretrial identification when she said at trial that Hall was “the gentleman that was in [her] car that night,” and the trial court did not err in admitting her in-court identification of Hall.

Decided March 16, 2011

Reconsideration denied April 11, 2011.

Jennifer A. Trieshmann, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

3. Hall contends that the trial court erred in allowing into evidence his pretrial identification from the newspaper photographs by the victim of the first robbery, arguing that it was “suggestive,” particularly in light of the victim’s extremely general description of his attackers. As the State points out, however, “for the Fourteenth Amendment to come into play in an identification procedure, state action must be involved.” Lyons v. State, 247 Ga. 465, 467 (277 SE2d 244) (1981). Although the officer investigating this robbery had prepared a photographic lineup for the victim to view, when he came to the station and showed the newspaper photographs to her, the officer decided not to show him the other photographs because he had already identified Hall. The pretrial identification at issue here involved no state action, and therefore raises no Fourteenth Amendment issues. The reliability of this victim’s pretrial identification was simply a question of his credibility for the trier of fact to determine. Id. Thus, the trial court did not err in admitting into evidence the victim’s identification of Hall from the newspaper article.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.