author: MCFADDEN, Judge. BARNES, Presiding Judge,

text:
    A12A1157.
    RICHARDSON v. THE STATE.
    (733 SE2d 444)
   MCFADDEN, Judge.

Steve Richardson appeals from the trial court’s order denying his motion for discharge and acquittal for an alleged violation of his constitutional right to a speedy trial. This is the second appearance of this case before this Court. See Richardson v. State, 311 Ga. App. 369 (715 SE2d 774) (2011). In the prior appeal, we vacated the trial court’s order denying Richardson’s motion because it did not contain findings of fact and conclusions of law consistent with the analysis set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992), and we remanded for entry of a proper order. See Richardson, 311 Ga. App. at 370. On remand, the trial court entered a new order containing findings of fact and conclusions of law, and it is this order that forms the basis for the current appeal. For the reasons discussed below, we must vacate the new order and remand this case for the trial court’s reconsideration.

On January 20, 2007, Richardson was arrested for child molestation and other related charges stemming from an incident that occurred in December 2006 at his place of work. Richardson was released on bond on January 23, 2007. On February 6, 2007, the grand jury indicted him on charges of child molestation, false imprisonment, and sexual battery.

On May 1, 2007, Richardson filed a demand for discovery along with other consolidated motions. The State served him with some discovery materials on June 27, 2007, including copies of the indictment, the arrest warrants, the initial police report, supplemental police reports, handwritten witness statements, and a Georgia Crime Information Center report regarding Richardson. The discovery did not include photographs of the alleged crime scene location that had been taken by a crime scene photographer, the surveillance video of Richardson and the victim entering a stairwell where the alleged molestation occurred, or the videotaped forensic interview with the victim, all of which were referenced in a supplemental police report.

On July 11, 2008, Richardson filed a motion to compel in which he sought a copy of the crime scene photographs, the surveillance video, and the forensic interview of the victim, as well as updated contact information for the State’s witnesses. A few days later, on July 14, 2008, Richardson filed a motion for discharge and acquittal based on the alleged denial of his constitutional right to a speedy trial.

On March 29, 2010, the State served Richardson with supplemental discovery, providing him for the first time with copies of the crime scene photographs and the forensic interview. The State did not produce a copy of the surveillance video.

On August 24, 2010, the trial court entered its original order denying Richardson’s motion for discharge and acquittal, which, as previously noted, this Court vacated for failure to contain findings of fact and conclusions of law. See Richardson, 311 Ga. App. at 370. Following remand, on September 29, 2011, the trial court entered a new order, again denying Richardson’s motion, that contained findings of fact and conclusions of law and analyzed the case under the framework enunciated in Barker and Doggett.

In its new order, the trial court calculated the length of the delay as the time that had elapsed between Richardson’s January 20, 2007 arrest and the court’s August 24, 2010 original order denying his motion for discharge and acquittal. The trial court went on to find that the pretrial delay was presumptively prejudicial; that the length of the delay was uncommonly long and weighed heavily against the State; that the reasons for the delay weighed “benignly’ against the State because there was no evidence that the State deliberately attempted to delay the trial or hamper Richardson’s defense; that Richardson’s 18-month delay in asserting his speedy trial right weighed heavily against him; and that Richardson’s failure to show prejudice resulting from the delay should be weighed heavily against him as well. Based on these findings, the trial court balanced the factors and concluded that Richardson’s constitutional right to a speedy trial had not been violated. Richardson filed the instant appeal challenging the trial court’s new order.

We recently summarized the applicable principles and framework for deciding constitutional speedy trial claims:

Both the United States and Georgia Constitutions grant defendants in criminal cases a right to a speedy trial. U. S. Const., Amend. VI; Ga. Const., Art. I, Sec. I, Par. XI (a). When considering a motion to dismiss on this ground, the court conducts a two-tier analysis [as set out in Barker, 407 U. S. at 522-523 (II), and Doggett, 505 U. S. at 651], Under the first tier, the court considers whether the delay is long enough to be presumptively prejudicial, and if so, then it considers under the second tier whether the delay constituted a speedy trial violation. In determining whether the delay violated the defendant’s speedy trial right, the court considers [four Barker-Doggett factors:] (1) whether the delay is uncommonly long; (2) the reasons and responsibilities for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant.
The four factors must be considered together, balancing the conduct of the [government] and the defendant on a case-by-case basis. We review a trial court’s decision to deny a motion seeking dismissal for a speedy trial violation under an abuse of discretion standard. . . .
Further, if the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.

(Citations and punctuation omitted.) Watkins v. State, 315 Ga. App. 708, 708-709 (1) (727 SE2d 539) (2012). See also State v. Porter, 288 Ga. 524, 525-526 (2) (a) (705 SE2d 636) (2011); Sechler v. State, 316 Ga.App. 675, 677 (730 SE2d 142) (2012). Guided by these principles, we turn to the procedural history and the trial court’s new order entered in this case.

1. Presumptive prejudice.

“For serious crimes that do not involve unusual complexities, one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.” (Citation and punctuation omitted.) Ward v. State, 311 Ga.App. 425, 428(1) (715 SE2d 818) (2011). The trial court, in its new order, calculated the length of the pretrial delay as running from the time of Richardson’s January 20, 2007 arrest to the court’s August 24, 2010 original order denying his motion for discharge and acquittal, for a total of approximately three years and seven months. The trial court further found that this length of delay was presumptively prejudicial.

Richardson contends that the trial court erred in calculating the length of the delay for determining presumptive prejudice. According to Richardson, the trial court should have calculated the length of the delay from his January 20, 2007 arrest to the trial court’s September 29, 2011 order again denying his motion for discharge and acquittal, for a total of four years and eight months. We agree with Richardson.

‘Where no trial has occurred, the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided.” Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012). Significantly, if the trial court enters a new order denying a motion to dismiss on speedy trial grounds, the length of the pretrial delay runs to the entry of the new order rather than the original order, where an appellate court vacated the original order and remanded for the entry of a new order expressly applying the Barker-Doggett framework. See Goddard v. State, 315 Ga. App. 868, 870 (1) (729 SE2d 397) (2012); Moore v. State, 314 Ga.App. 219, 221 (1) (723 SE2d 508) (2012). The trial court thus erred in failing to calculate the length of the pretrial delay from Richardson’s January 20, 2007 arrest to the trial court’s September 29, 2011 new order denying his motion to dismiss on speedy trial grounds, which would have added approximately 13 months to the length of the delay.

Nevertheless, the trial court found that the pretrial delay crossed the threshold of presumptive prejudice, triggering analysis of the four Barker-Doggett factors, and neither Richardson nor the State disputes this finding. The trial court, therefore, acted within its discretion in finding presumptive prejudice. See, e.g., Ward, 311 Ga. App. at 428 (1).

2. The Barker-Doggett factors.

(a) Whether the pretrial delay was uncommonly long.

The first Barker-Doggett factor, whether the pretrial delay was uncommonly long, requires courts to analyze “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” (Citation and punctuation omitted.) Ward, 311 Ga. App. at 428 (2). Although the trial court miscalculated the length of the pretrial delay as discussed in Division 1, the court still found that the delay was uncommonly long and weighed this factor heavily against the State. Richardson and the State do not dispute the trial court’s ultimate finding. Because the pretrial delay experienced by Richardson far exceeded the amount of time necessary to establish a presumption of prejudice, the trial court acted within its discretion in finding that the delay was uncommonly long and should be weighed heavily against the State. See, e.g., Teasley v. State, 307 Ga. App. 153, 158 (2) (a) (704 SE2d 248) (2010) (delay of three years and two months uncommonly long); Hill v. State, 315 Ga. App. 833, 837 (2) (a) (729 SE2d 1) (2012) (21-month pretrial delay uncommonly long).

(b) The reasons and responsibility for the pretrial delay.

The second Barker-Doggett factor requires courts to analyze “both the reason for the delay and whether this is attributable to the defendant or the [S]tate.” (Citation and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 341 (2) (b) (680 SE2d 182) (2009).

In analyzing the reasons for the pretrial delay, we are required to assign various degrees of weight to the different reasons provided by the prosecution and the defense respectively. For instance, deliberate delay to hamper the defense weighs heavily against the prosecution. More neutral reasons such as negligence or overcrowded courts weigh less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. In contrast, delay caused by the defense weighs against the defendant.... [Additionally,] there are occasions where the record is simply silent as to the reason for the delay, and in that context, we must treat the delay as caused by the negligence of the State in bringing the case to trial.

(Citations and punctuation omitted.) Sechler, 316 Ga. App. at 679-680 (2) (b). See Kemp v. State, 314 Ga. App. 327, 330-331 (2) (b) (724 SE2d 41) (2012).

The trial court found that there was no evidence that the State had deliberately attempted to delay Richardson’s trial to hamper his defense or gain a tactical advantage. The court found that the delay attributable to the State instead had been caused by the overcrowded docket and by the fact that the case previously had been assigned to a different judge. Hence, the trial court weighed the second BarkerDoggett factor against the State, but only “benignly.”

Richardson maintains that the trial court abused its discretion by failing to weigh the reason for the pretrial delay more heavily against the State. We conclude that there was evidence to support the trial court’s findings regarding the cause of the delay up to the point of the court’s August 24, 2010 order. However, the trial court erroneously failed to consider the additional 13-month delay between its original August 24, 2010 denial of Richardson’s motion for discharge and acquittal and its second denial of the same on September 29, 2011.

“Notably, in determining whether the government or the defendant is more to blame for the pretrial delay, the government includes all state actors, even trial and appellate court judges.” Goddard, 315 Ga. App. at 874 (2) (b). Where an appellate court is required to vacate a trial court’s original order denying dismissal on speedy trial grounds and remand for entry of a proper order under Barker and Doggett, the government is charged with the delay between the trial court’s original order and the new order entered on remand. See id. Consequently, the government should have been held responsible for the 13-month delay between the trial court’s original and new orders, and this delay should have been considered by the trial court in analyzing the reasons for the delay in this case. See id.

If the trial court had properly added the thirteen months to the length of the pretrial delay, for a total delay of four years and eight months, it could have affected the court’s evaluation of how heavily to weigh the second Barker-Doggett factor against the State, and thus could have affected the court’s ultimate balancing of the four factors. This is because “[ejven benign negligence will begin to weigh more heavily against the State, the longer the delay caused by the same.” Hayes, 298 Ga. App. at 345 (2) (b). As the Supreme Court of the United States has explained, “the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness[.]” Doggett, 505 U. S. at 657 (III) (B). And as we further explained in State v. Brown, 315 Ga. App. 544, 549 (2) (b) (726 SE2d 500) (2012), “[h]ow to weigh the reasons for a particular delay is not just a matter of selecting one of two discrete choices, ‘heavily’ or ‘lightly’ rather, the trial court has considerable discretion to assign weight along a continuum, and may choose to weigh the negligence of the State substantially against it under some circumstances, even in the absence of deliberate delay. Thus, we cannot simply conclude that, if the trial court had taken into account the additional 13 months of pretrial delay, the court still would have weighed the delay against the State so lightly.

Accordingly, in light of the trial court’s failure to consider all relevant periods of pretrial delay, “we are constrained to remand this case again so that the court can reconsider the circumstances giving rise to the delay and reassess the causes for the delay with regard to the principles outlined [above] before reweighing this factor.” (Citation and punctuation omitted.) Goddard, 315 Ga. App. at 875 (2) (b). See Johnson, 313 Ga. App. at 902 (2) (b).

(c) Assertion of the right.

The third Barker-Doggett factor requires courts to analyze whether the defendant timely asserted his constitutional right to a speedy trial. See Howard v. State, 307 Ga. App. 822, 827 (2) (c) (706 SE2d 163) (2011). “[Because] the defendant may benefit by delaying a trial, the defendant bears the responsibility for asserting his right to a speedy trial. An extended delay in asserting this right should be weighed heavily against the defendant.” (Citations and punctuation omitted.) Kemp, 314 Ga. App. at 332 (2) (c).

The trial court found that the almost 18-month delay between when Richardson was arrested and when he filed his motion for discharge and acquittal on speedy trial grounds should be weighed heavily against him. The court rejected Richardson’s contention that the State’s failure to timely provide him with discovery could be considered and weighed as part of the analysis. In this regard, the trial court stated categorically that “[t]here is no connection between failing to receive discovery and the failure of a defendant to assert his right to a speedy trial.”

Richardson contends that the trial court erred by not considering the State’s failure to timely provide him with certain discovery, namely, a copy of the crime scene photographs, the surveillance video, and the forensic interview of the victim. We agree. The trial court concluded, summarily and categorically, that discovery problems can have no connection to a constitutional speedy trial claim. But we have held that the State’s delay in responding to a defendant’s materially significant discovery requests can mitigate a defendant’s delay in asserting his speedy trial right. See Brown, 315 Ga. App. at 550 (2) (c); State v. Shirley, 311 Ga. App. 141, 145-146 (3) (c) (714 SE2d 636) (2011); State v. Ivory, 304 Ga. App. 859, 862-863 (2) (c), 864 (3) (698 SE2d 340) (2010). Thus, the trial court should have exercised its discretion and considered whether the State’s failure to timely provide Richardson with certain discovery ought to serve as a mitigating factor, and the court’s error in this regard provides an additional ground for vacating the court’s new order and remanding for reconsideration. See Watkins, 315 Ga. App. at 710 (4).

(d) Prejudice to the defendant.

The fourth Barker-Doggett factor requires courts to analyze “three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” (Punctuation and footnote omitted.) Weems v. State, 310 Ga. App. 590, 594 (2) (d) (714 SE2d 119) (2011).

The trial court found that no oppressive pretrial incarceration, undue anxiety and concern, or impairment of Richardson’s defense had resulted from the delay. Accordingly, the court found no evidence of prejudice and weighed the fourth Barker-Doggett factor heavily against Richardson.

Richardson does not challenge the trial court’s finding that the pretrial delay caused no oppressive pretrial incarceration and no impairment of his defense. Rather, his sole argument is that the trial court should have found that he suffered heightened anxiety and concern because his career goals in law enforcement were “completely derailed by the allegations in this pending case.” In that regard, Richardson testified that he had been a police officer for 15 years, that he was working as a security guard and at a corrections facility when the alleged crimes occurred, that he had planned to continue with his law enforcement career, but that as a result of the pending criminal charges he has been completely “unable to get any law enforcement job.”

Contrary to the trial court’s finding, Richardson’s testimony that his law enforcement career has effectively been derailed by the pending charges is at least some evidence of anxiety and concern. See Lambert v. State, 302 Ga. App. 573, 577 (4) (692 SE2d 15) (2010) (defendant’s “testimony that he lost two jobs because he had to travel to court on multiple occasions is evidence of anxiety and concern”). Moreover,

[t]he Supreme Court of the United States in Doggett[, 505 U. S. at 652 (II),] held that consideration of prejudice is not limited to the specifically demonstrable. The Court held that the presumption of prejudice that arises from the passage of time strengthens with the length of the delay and may tilt the prejudice factor in a defendant’s favor, although it may not alone carry a Sixth Amendment claim without regard to the other Barker criteria.

State v. Lattimore, 287 Ga. 505, 507 (696 SE2d 613) (2010).

In the instant case, the delay has been lengthy — almost five years. Not only was the trial court required to take account of this lengthy pretrial delay in its threshold determination of presumptive prejudice, but it “was also required to consider the delay a second time by factoring it into the prejudice analysis with the presumption that pretrial delay has prejudiced the accused intensifying over time.” (Citation and punctuation omitted.) Goffaux v. State, 313 Ga. App. 428, 431 (721 SE2d 635) (2011). See Porter, 288 Ga. at 531 (2) (c) (4) (“[O]nce the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.”). “Notably, the presumption of prejudice . . . strengthens with the passage of time, and as the delay increases, less specific harm need be demonstrated to conclude that the delay is prejudicial.” (Citation and punctuation omitted.) Goddard, 315 Ga. App. at 876 (2) (d).

Having reviewed the trial court’s order, “we find no indication in the court’s order that it considered for a second time the presumptive prejudice arising from the pretrial delay of [four years and eight months] by factoring it into the prejudice analysis as part of the mix of relevant facts.” Goffaux, 313 Ga. App. at 431. Consequently, on remand, the trial court is hereby directed to reevaluate the fourth Barker-Doggett factor of prejudice in light of both the significant anxiety Richardson has suffered at the prospect of having his law enforcement career destroyed by the pending charges and the lengthy pretrial delay that has occurred in this case. See Goddard, 315 Ga. App. at 876 (2) (d).

(e) Balancing the Barker-Doggett factors.

Balancing all four Barker-Doggett factors, the trial court found that Richardson had not been denied his constitutional right to a speedy trial and thus denied his motion for discharge and acquittal. But the trial court made a significant factual error in its calculation of the length of the delay by not including the time that had elapsed between the trial court’s original and new orders addressing Richardson’s speedy trial claim. The court’s calculation error could materially affect its analysis of the second and fourth factors, as discussed above. Additionally, the trial court misapplied the law in evaluating the third factor by failing to consider whether the discovery problems at issue in the case should serve as a mitigating factor in considering Richardson’s delay in asserting his speedy trial right.

In light of these significant errors, and aware that we cannot substitute our judgment for that of the trial court, we are unable to conclude that the trial court necessarily would have denied Richardson’s speedy trial claim if it had used the correct facts and legal analysis. See State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). Accordingly, “the trial court’s order must be vacated and the case remanded for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.” (Citation and punctuation omitted.) Goddard, 315 Ga. App. at 876 (2) (e). In conclusion, we note that the speedy trial “clock is still ticking,” Ruffin v. State, 284 Ga. 52, 66 (3) (663 SE2d 189) (2008), and the trial court’s analysis on remand should take into account that the length of the pretrial delay continues to run until entry of a third written order applying the BarkerDoggett framework. See Goddard, 315 Ga. App. at 870 (1); Moore, 314 Ga. App. at 221 (1).

Judgment vacated and case remanded with direction.

Adams, J., concurs. Barnes, P. J., concurs fully inDivisions 1, 2(a), 2(b), 2(c)and 2 (e) and concurs specially in Division 2 (d).

BARNES, Presiding Judge,

concurring fully and specially.

I concur fully in the judgment to vacate and remand this case with direction, and I concur in all of the majority opinion, except for that part of the analysis set forth in Division 2 (d) concerning whether Richardson suffered undue anxiety and concern under the fourth Barker-Doggett factor. The majority concludes that the trial court abused its discretion in finding that Richardson did not suffer undue anxiety and concern as a result of his lost job opportunities in law enforcement. I disagree with the majority’s conclusion because under the facts of this case, the trial court was not required to find that Richardson experienced undue anxiety and concern.

In addressing whether a defendant has suffered prejudice under the fourth Barker-Doggett factor, courts must analyze “three interests which the speedy trial right is designed to protect,” one of which is “minimizing anxiety and concern of the defendant.” (Punctuation and footnote omitted.) Weems v. State, 310 Ga. App. 590, 594 (2) (d) (714 SE2d 119) (2011). But we have repeatedly emphasized that “[a]nxiety and concern of the accused are always present to some extent, and thus absent some unusual showing are not likely to be determinative in defendant’s favor.” (Citation and punctuation omitted.) Mullinax v. State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001). See Johnson v. State, 313 Ga. App. 895, 905 (2) (d) (ii) (723 SE2d 100) (2012). Thus, we have held that a defendant must demonstrate that he has suffered “significant anxiety and concern beyond that generally experienced by defendants in his situation.” (Punctuation and footnote omitted.) Id.

The majority concludes that the trial court abused its discretion in finding that Richardson did not experience undue anxiety and concern because “Richardson’s testimony that his law enforcement career has effectively been derailed by the pending charges is at least some evidence of anxiety and concern.” The majority then directs the trial court upon remand to find that Richardson suffered “significant anxiety” and to reconsider the fourth Barker-Doggett factor of whether the pretrial delay prejudiced Richardson in light of his “significant anxiety” and the presumptive prejudice arising from the passage of time.

The majority’s analysis is inconsistent with our precedent in this area. The question is not whether there was “some evidence” of anxiety and concern experienced by Richardson; by framing the question in that manner, the majority turns the abuse-of-discretion standard on its head and ignores our repeated admonition that the defendant must suffer more than the usual anxiety and concern of one accused of a crime. The pertinent question instead is whether there is any support for the trial court’s finding that Richardson did not suffer significant anxiety and concern beyond that generally experienced by defendants in his situation. And the answer to that question is clearly ‘Tes.”

There is no evidence in the record that Richardson’s loss of law enforcement career opportunities caused him significant anxiety and concern beyond that generally experienced by defendants in his situation, i.e., defendants with pending criminal charges and bond restrictions. Furthermore, Richardson conceded that despite his concern over his law enforcement career, he was currently employed in a management position in another field, had received a promotion and a raise while working there, and hoped to receive further promotions.

Decided October 23, 2012.

Alixe E. Steinmetz, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Under these circumstances, particularly the record evidence that Richardson was in fact presently employed and had received a raise and a promotion in his current job, the trial court acted within its discretion in finding that Richardson had not suffered undue anxiety or concern resulting from lost job opportunities. See, e.g., Sechler v. State, 316 Ga. App. 675, 681 (2) (d) (730 SE2d 142) (2012) (alleged inability to find employment was insufficient to show undue anxiety or concern); Weems, 310 Ga. App. at 595 (2) (d) (concluding that the defendant did not suffer prejudice because “even if [he] had been unable to find steady work, there was no evidence demonstrating that his alleged employment struggle was unusual for someone in his circumstance”). Accordingly, contrary to the majority, I do not believe that the trial court was required to find that Richardson suffered undue anxiety and concern.

       A defendant is entitled to directly appeal the pretrial denial of a constitutional speedy trial claim. See Johnson v. State, 313 Ga. App. 895, 897, n. 7 (723 SE2d 100) (2012).

       In considering the State’s failure to timely provide certain discovery, the trial court ultimately may find that the failure should not serve as a mitigating factor under the particular facts of this case, as we recognized in Shirley, 311 Ga. App. at 146 (3) (c). See Williams v. State, 290 Ga. 24, 27 (3) (717 SE2d 640) (2011); Williams v. State, 300 Ga. App. 797, 798 (c) (686 SE2d 407) (2009). What is critical is that the trial court exercise its discretion and address the issue of the specific discovery problems at issue in this case in evaluating the third Barker-Doggett factor.

       Division 2 (d) of the majority opinion thus decides only the issues in this case and may not be cited as binding precedent. Court of Appeals Rule 33 (a).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A12A1297.
    DAVIS v. THE STATE.
    (733 SE2d 453)
   Ray, Judge.

Following a bench trial, Frank Parks Davis was convicted of one count of felony possession of marijuana. He appeals from his judgment of conviction, asserting that the trial court erred in denying his motion to suppress, that the trial court erred in admitting similar transaction evidence, and that the State failed to adduce sufficient evidence at trial to support his conviction of possession of more than one ounce of marijuana. We see no error and affirm.

1. Davis first contends that the trial court erred in denying his motion to suppress, arguing that the evidence supporting his conviction was obtained as a result of an unlawful traffic stop and that the traffic stop was impermissibly prolonged. We disagree.

When reviewing the denial of a motion to suppress, three rules apply:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.

The evidence adduced at the motion to suppress hearing and at trial shows that Officer Sam Starling with the Fort Gaines Police Department was driving his patrol car on South Washington Street when he saw Davis drive by and noticed that he was not wearing his seat belt. Officer Starling initiated a traffic stop, and upon approaching Davis’ car, he asked Davis for his driver’s license and insurance information. As he did so, he noticed that Davis, in fact, was wearing a seat belt, but had tucked the shoulder strap under his arm. He also observed that, as Davis was searching for his driver’s license, he was attempting to use his foot to attempt to push a clear plastic bag under the seat. Officer Starling then asked Davis to step out of the vehicle, and he retrieved the bag. Davis then remarked that he was on parole and asked Officer Starling to “help him out” since it was only a “little bit of marijuana” and he had just gotten out of prison. Davis had $1,668 on his person. At trial, the parties stipulated that the recovered substance was marijuana and that it weighed 29.3 grams.

Davis’ argument that the State failed to show a justifiable reason for the underlying traffic stop lacks merit. First of all, OCGA § 40-8-76.1 (b) provides that “[e]ach occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208.” Davis argues that because the federal safety standard does not mandate the use of shoulder strap safety belts, his failure to properly use his belt did not provide a valid basis to conduct a traffic stop. However, we considered and rejected this argument in Davis v. State, finding that

[although Federal Motor Vehicle Safety Standard 208 may not require shoulder strap safety belts, it is undisputed that shoulder strap safety belts are an option under this federal regulation and that defendant’s car was so equipped. Thus, [the officer’s] observation that defendant was not wearing his car’s shoulder strap safety belt supports probable cause for stopping defendant for violating OCGA § 40-8-76.1 (b).

Further, it is well settled that a law enforcement officer may initiate a traffic stop if he has a “clear and unobstructed view of a person not restrained as required by [OCGA § 40-8-76.1 (b)].”

In the present case, Officer Starling testified that he had a “clear and unobstructed view” of Davis whom he observed to be not wearing a seat belt. The fact that Officer Starling eventually got close enough to see that Davis was wearing a portion of his seat belt does not change the fact that the stop was based on probable cause.

Similarly, Davis’ argument that the traffic stop was impermissibly prolonged when the officer failed to walk away immediately after noticing that the shoulder strap safety belt was tucked under Davis’ arm is without merit. This is so because once a legal stop is made, an officer “may request and examine a driver’s license and vehicle registration and run a computer check on the documents.” Such a routine inquiry does not impermissibly prolong the traffic stop. Officer Starling’s testimony is clear that he noticed Davis attempting to hide the marijuana at essentially the same time he noticed that Davis had the shoulder strap safety belt under his arm and as Davis was complying with the officer’s request for driver’s license and proof of insurance. Thus, we find that the initial stop, as well as the brief detention, was authorized.

2. Davis contends that the trial court erred in admitting similar transaction evidence regarding Davis’ prior convictions for manufacturing marijuana because the evidence was insufficiently “similar” to the incident for which Davis was on trial. We disagree.

The trial court here admitted evidence of two previous convictions for manufacturing marijuana, both stemming from searches on Davis’ property, for the purpose of showing intent, bent of mind, and modus operandi. Evidence presented by the State showed that aerial surveillance led to discovery of marijuana plants on Davis’ property on June 3, 2009. Believing that the marijuana plants had been transplanted, law enforcement officers obtained a search warrant for Davis’ property where they located 300 marijuana plants growing outside, a few pounds of “bagged up” marijuana, guns, marijuana seeds, scales, “High Times” and “Skunk” magazines, and manuals for growing hydroponic indoor plants. As the investigator carried evidence from Davis’ residence, he noticed Davis drive by in his truck. The investigator stopped Davis and inside the truck he discovered ten pounds of marijuana bagged up in clear one-gallon ziplock bags and $650 in Davis’ pocket. Certified copies of Davis’ convictions for manufacturing marijuana were admitted at trial.

Contrary to Davis’ contentions, the trial court did not err in admitting evidence of these prior similar convictions. Evidence of an independent offense or act may be admitted into evidence if the State satisfactorily makes three affirmative showings: (1) that it is seeking to introduce the evidence for a permissible purpose; (2) that there is sufficient evidence that the accused committed the independent offense or act; and (3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Davis claims that the State did not make the third affirmative showing — that there was a sufficient connection between the independent act and the charged offense — because the evidence in the prior convictions supported an inference that he sold marijuana and the facts in the present case, he argues, supported an inference that he intended to use the marijuana himself. However, “the independent act does not have to be identical in character to the charged offense if there is a sufficient connection between them.” Further, when, as here, the State is entering similar transaction evidence to prove bent of mind or intent,

it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity. Similar transaction evidence can be introduced to prove bent of mind when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense.

Here, there was such a logical connection, and the trial court did not abuse its discretion in finding that the offenses were sufficiently similar. One of the prior manufacturing charges and the current possession charge both involved possession of marijuana in a plastic bag kept in Davis’ car, as well as a large amount of money found on Davis’ person. The other prior manufacturing charge also involved a large amount of “bagged up” marijuana. “While there are differences between the . . . offenses, the proper focus is on the similarities, not the differences, between them.” The case cited by Davis in his brief is inapposite. Accordingly, we find that the trial court did not abuse its discretion in admitting evidence of Davis’ prior convictions.

3. Davis asserts that there was insufficient evidence of possession of marijuana to sustain the verdict. Specifically, Davis argues that there was no evidence adduced at trial from Officer Starling showing that the contraband was retrieved from Davis’ car or from Davis himself. This argument lacks merit.

At trial, there was a stipulation regarding the marijuana recovered by Officer Starling from Davis’ vehicle. The parties agreed that the “marijuana in question in this case” was scientifically determined to be marijuana and that it weighed 29.3 grams. Additionally, Officer Starling testified that he saw Davis trying to hide the marijuana, that Davis asked for mercy when he saw the officer recover the contraband, and that Officer Starling identified the marijuana and the bag as the one he recovered from Davis’ car during the traffic stop. Additionally, the marijuana recovered from the vehicle was admitted and identified as the subject of the stipulation during trial, and the State tendered the scientific report that was the subject of the stipulation. Based upon a review of this evidence, we find that a rational trier of fact could find beyond a reasonable doubt that Davis was in possession of the marijuana and thus, was guilty of felony possession of marijuana.

Decided October 23, 2012.

Robert R. McLendon IV, for appellant.

I Craig Earnest, District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-13-30 (j); Gaudlock v. State, 310 Ga. App. 149, 150 (1) (713 SE2d 399) (2011).

       (Footnote and emphasis omitted.) Ware v. State, 309 Ga. App. 426 (710 SE2d 627) (2011).

       In reviewing a trial court’s decision on a motion to suppress, we consider all relevant evidence of record, including evidence introduced at the motion hearing and at trial. See Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007).

       232 Ga. App. 320 (501 SE2d 836) (1998).

       Id. at 321 (1).

       (Citation and punctuation omitted.) Id.; OCGA § 40-8-76.1 (f).

        Davis, supra at 321-322 (1). Accord Clark v. State, 305 Ga. App. 699, 700 (1) (700 SE2d 682) (2010) (“A seat belt violation — including a motorist’s failure to use a shoulder strap — is a proper basis for a traffic stop”) (citations omitted).

       (Citations and punctuation omitted.) Davis, supra at 322 (1); Rogers v. State, 206 Ga. App. 654, 657 (2) (426 SE2d 209) (1992).

        Davis, supra; Rogers, supra.

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). See also Uniform Superior Court Rule 31.3 (B); Williamson v. State, 300 Ga. App. 538, 541 (2) (685 SE2d 784) (2009).

        Smith v. State, 264 Ga. 46, 47 (2) (440 SE2d 188) (1994).

       (Citations omitted.) Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996).

        Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007) (we will not disturb a trial court’s determination that similar transaction evidence is admissible absent an abuse of discretion).

        Williamson, supra at 543 (2); Gaudlock, supra at 152 (2).

       See King v. State, 230 Ga. App. 301, 303-304 (1) (496 SE2d 312) (1998) (ten-year-old conviction for methamphetamine sale not admissible as similar transaction in case involving possession of methamphetamine in bodily fluids where defendant claimed drug was put in his coffee without his knowledge or consent).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Orman v. State, 207 Ga. App. 671, 672 (2) (428 SE2d 813) (1993).


author: BARNES, Presiding Judge.

text:
    A12A1499.
    RACETTE et al. v. BANK OF AMERICA, N.A. et al.
    (733 SE2d 457)
   BARNES, Presiding Judge.

This appeal arises out of a wrongful foreclosure action brought by Charles and Debra Racette against Bank of America, N.A. (“BOA”) and the law firm which conducted the foreclosure proceedings on behalf of the bank, Johnson & Freedman, LLC and Johnson & Freedman II, LLC (collectively, “J&F”). BOA and J&F moved to dismiss the complaint filed by the Racettes, and the trial court granted their motions, resulting in this appeal. For the reasons discussed below, we reverse the trial court’s dismissal of the Racettes’ claims for damages arising out of the alleged wrongful foreclosure and for equitable relief in the form of cancellation of the foreclosure sale. We likewise reverse the dismissal of their claims for breach of contract, breach of the duty of good faith and fair dealing, attorney fees and costs, and punitive damages. In contrast, we affirm the dismissal of their claim for intentional infliction of emotional distress.

Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga. App. 394, 395 (724 SE2d 401) (2012). See also Scott v. Scott, 311 Ga. App. 726, 729 (1) (716 SE2d 809) (2011) (“[I]t is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.”) (citations and punctuation omitted).

“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” OCGA § 9-11-10 (c). Hence, on a motion to dismiss, the trial court can consider exhibits attached to and incorporated into the complaint. Gold Creek SL, LLC v. City of Dawsonville, 290 Ga. App. 807, 809 (1) (660 SE2d 858) (2008). See OCGA § 9-11-10 (c). To the extent that there is any discrepancy between the allegations in the complaint and the exhibits attached to it, the exhibits control. H&R Block v. Asher, 231 Ga. 780, 781 (204 SE2d 99) (1974).

Guided by these principles, we turn to the complaint and the exhibits attached to it that were filed in this case. The complaint alleges that the Racettes own real property in Paulding County, Georgia (the “Property”). In 1996, they signed a promissory note and security deed for the Property in favor of appellee BOA’s predecessor-in-interest in the principal amount of $75,000 (the “Note” and “Security Deed”). The Security Deed was recorded in Paulding County and included a reference to a senior lien existing on the Property: “This deed to secure debt is subject only to that certain Deed to Secure Debt in favor of NationsBanc Mortgage Corporation dated 6-2-93, filed 6-9-93 in Deed Book 327, Page 399, Paulding County records.” However, the document recorded at Deed Book 327, Page 399, in the Paulding County deed records actually concerned a different property and different borrowers.

The Racettes ultimately defaulted under the terms of the Note and Security Deed, and BOA declared the entire principal immediately due and payable. In 2010, BOA retained appellee J&F to foreclose under the terms of the Security Deed.

Appellees twice scheduled the Property for sale under the Security Deed, once on the first Tuesday of June 2010, and, then, after the June sale was canceled, on the first Tuesday of February 2011 (the “2011 Foreclosure Sale”). For each scheduled sale, J&F caused advertisements of the sale to be published in the legal organ for Paulding County which stated that the Racettes were in default under the terms of the Note and Security Deed. The advertisements also stated that the Property was being sold subject to a senior lien “in favor of NationsBanc Mortgage Corporation dated 6-2-93, filed 6-9-93 in Deed Book 327, Page 399, Paulding County records.” The reference to a senior lien was in error: the Security Deed was no longer subject to a senior lien at the time the advertisement was published, and, as previously noted, the lien recorded at Deed Book 327, Page 399, in the Paulding County deed records concerned a different property and different borrowers.

Charles Racette appeared at both scheduled foreclosure sales and advised the appellees’ representative on the courthouse steps of the inaccuracies in the advertisements concerning the alleged senior lien. While the appellees did not proceed with the first scheduled foreclosure sale because of the inaccuracies, the appellees later chose to proceed with a second one — the 2011 Foreclosure Sale — despite the continued appearance of the inaccuracies in the advertisements regarding the lien status of the Property.

At the 2011 Foreclosure Sale, the Property was sold to BOA, the only bidder, for $81,872. BOA subsequently authorized a real estate agent to enter onto the Property without the permission of the Racettes.

The Racettes filed a verified complaint naming the appellees as defendants and asserting claims against them for wrongful foreclosure and intentional infliction of emotional distress. The Racettes also asserted claims against appellee BOA for breach of contract and breach of the duty of good faith and fair dealing. They requested that the trial court cancel and set aside the 2011 Foreclosure Sale, and they sought damages (including emotional anguish damages), attorney fees and costs, and punitive damages. Attached as exhibits to the complaint were copies of the Security Deed, the published foreclosure advertisements, and the notice of sale under power for the 2011 Foreclosure Sale.

The appellees moved to dismiss the Racettes’ complaint for failure to state a claim upon which relief could be granted. After conducting a hearing where it heard argument from the parties, the trial court entered a summary order granting the appellees’ motions to dismiss the complaint. This appeal followed.

1. Wrongful Foreclosure. The Racettes contend that the trial court erred in dismissing their claim for wrongful foreclosure. We agree.

“In Georgia, a plaintiff asserting a claim of wrongful foreclosure must establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.” (Punctuation and footnote omitted.) Gregorakos v. Wells Fargo Nat. Assn., 285 Ga. App. 744, 747-748 (2) (647 SE2d 289) (2007). See Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 371 (1) (601 SE2d 842) (2004). In moving to dismiss the complaint for failure to state a claim upon which relief could be granted, the appellees asserted that the complaint disclosed with certainty that the Racettes could not establish breach of duty or causation to support their wrongful foreclosure claim. We disagree with the appellees and conclude that the trial court erred in dismissing the wrongful foreclosure claim on these grounds.

(a) Breach of Duty. Under OCGA § 23-2-114, “[p]owers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised.” Where a foreclosing party breaches his statutory duty to exercise the power of sale fairly and in good faith, the debtor may sue for damages for wrongful foreclosure. Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 285-286 (1) (443 SE2d 837) (1994).

The Racettes alleged in their complaint that the appellees breached their duty to exercise the power of sale fairly and in good faith by publishing foreclosure advertisements that were defective as a matter of law and that chilled the bidding at the 2011 Foreclosure Sale. If the published advertisement of a foreclosure sale under power fails tomeetthemimmumlegalrequirementsimposedbyOCGA § 9-13-140 (a), the advertisement is defective as a matter of law, and the resulting sale is invalid. See OCGA § 44-14-162 (a); Southeast Timberlands v. Security Nat. Bank, 220 Ga. App. 359, 360 (1) (469 SE2d 454) (1996). If the advertisement is not defective as a matter of law under OCGA § 9-13-140 (a), the errors in the advertisement will support a wrongful foreclosure claim if the debtor can come forward with evidence that the defects chilled the bidding at the foreclosure sale, causing a grossly inadequate sale price. See Amirfazli v. VATACS Group, 311 Ga. App. 471, 473 (2) (716 SE2d 523) (2011); Aikens v. Wagner, 231 Ga. App. 178, 180-181 (2) (498 SE2d 766) (1998); Southeast Timberlands, 220 Ga. App. at 360 (2); Williams v. South Central Farm Credit, ACA, 215 Ga. App. 740, 741-742 (2) (452 SE2d 148) (1994). Hence, to show that the appellees breached their duty to exercise the power of sale fairly and in good faith, the Racettes had to establish that the published foreclosure advertisements either (i) were defective as a matter of law or (ii) chilled the bidding at the 2011 Foreclosure Sale.

(i) Defective as a Matter of Law. Contrary to the Racettes’ assertion on appeal, the published foreclosure advertisements for the 2011 Foreclosure Sale were not defective as a matter of law. “The minimum legal requirements of a foreclosure advertisement are prescribed in OCGA § 9-13-140 (a), and only a failure to properly include those items will render the advertisement defective as a matter of law.” Southeast Timberlands, 220 Ga. App. at 360 (1). But we have held that “a misstatement or overstatement of the debt does not render [the] advertisement legally defective.” Id. Furthermore, Georgia precedent reflects that an advertisement that fails to mention an existing senior hen on the property, or that references a senior hen that in fact has been cancelled, does not render the advertisement defective as a matter of law. See Smith v. Citizens &c. Corp., 245 Ga. 850, 852-853 (3) (b) (268 SE2d 157) (1980); Walker v. Northeast Production Credit Assn., 148 Ga. App. 121, 122 (2) (251 SE2d 92) (1978). Thus, the advertisements for the 2011 Foreclosure Sale that contained the error regarding a senior lien on the Property were not defective as a matter of law. See id.

(ii) Chilling of the Bid. Although the Racettes cannot show that the published foreclosure advertisements were defective as a matter of law, it is possible that they will be able to introduce evidence, within the framework of their complaint, to support the conclusion that the defects in the advertisements chilled the bidding at the 2011 Foreclosure Sale, causing a grossly inadequate sales price. Georgia courts have made clear that while an advertisement that fails to mention an existing senior lien on the property, or that references a senior lien that in fact has been cancelled, may not be defective as a matter of law, it is for the factfinder to determine whether the advertisement ultimately chilled the bid. See Smith, 245 Ga. at 853 (3) (b); Southeast Timberlands, 220 Ga. App. at 360 (2); Walker, 148 Ga. App. at 122 (2). Given this case law, and in light of the liberal standard applicable to motions to dismiss, we cannot say that the allegations of the complaint disclose with certainty that the Racettes will be unable to show that the erroneous reference in the advertisements to a senior lien as existing on the Property chilled the bidding at the 2011 Foreclosure Sale, and thus that the appellees breached their duty to exercise the power of sale fairly and in good faith.

The appellees nevertheless argue that the Racettes’ complaint and attached exhibits demonstrate that the published advertisements could not have chilled the bidding at the 2011 Foreclosure Sale as a matter of law. In this regard, they contend that errors concerning a lien or encumbrance contained in a foreclosure advertisement do not chill the bid if “the true status of the property with respect to any encumbrances” could be ascertained by interested bidders through a search of the county records. West Lumber Co. v. Schnuck, 204 Ga. 827, 835-836 (3) (51 SE2d 644) (1949). See Cleveland v. Cleveland, 235 Ga. 361, 362 (4) (219 SE2d 715) (1975); Redwine v. Frizzell, 184 Ga. 230, 235 (6) (190 SE 789) (1937). According to the appellees, potential bidders at the 2011 Foreclosure Sale could have ascertained the true lien status of the Property by searching the Paulding County records, and, as a result, the Racettes could not prove chilling of the bid.

The appellees’ argument is more appropriate for the summary-judgment stage than the motion-to-dismiss stage of the proceedings. The published foreclosure advertisements attached to the Racettes’ complaint would have led a potential bidder to conclude that the Property would remain subject to a senior lien after the sale. However, the advertisements gave the book and page number in the records of Paulding County for a lien involving a different property and different borrowers, and thus did not point potential bidders to the correct county records for confirming whether there was in fact a senior lien that would remain on the Property. After reviewing the particular county records referenced in the advertisements, a bidder would be uncertain (1) whether there was no senior lien on the Property and the advertisements incorrectly referenced the existence of a senior lien, or (2) whether there was in fact a senior lien but the advertisements identified the wrong recording information as to that lien. And it is unclear from the complaint whether a potential bidder would have been able to resolve this uncertainty by conducting an independent search of county records, particularly given that the Security Deed itself contained the same inaccurate reference to the book and page number for the senior lien in the county records as the advertisements. Hence, it is not possible, at the motion to dismiss stage with no developed factual record, to determine whether a potential bidder could have ascertained “the true status of the property with respect to any encumbrances” through a search of the county records. See Oates v. Sea Island Bank, 172 Ga. App. 178, 179 (2) (a) (322 SE2d 291) (1984) (treating as factual issue the question whether foreclosure advertisement that referred to wrong plat book in describing property chilled the bid). Cf. Amirfazli, 311 Ga. App. at 473 (2) (factual issue existed over whether error in advertisement chilled the bid at foreclosure sale, where the public record from which potential bidders could have gleaned the error in the advertisement was not filed until four days before the sale).

For the foregoing reasons, the Racettes may be able to introduce evidence, within the framework of their complaint, to support the conclusion that the published foreclosure advertisements containing inaccuracies about the existence of a senior lien on the Property chilled the bidding at the 2011 Foreclosure Sale. Consequently, the Racettes may be able to demonstrate that the appellees breached their duty to conduct the 2011 Foreclosure Sale in a fair manner, and thus may be able to establish the breach-of-duty element of their wrongful foreclosure claim.

(b) Causation. The appellees also contend that the Racettes’ wrongful foreclosure claim fails as a matter of law because it is not possible for the Racettes to show that the inaccuracies regarding the senior lien in the foreclosure advertisements caused them any harm or damage. We disagree.

A debtor’s claim for damages arising from a wrongful foreclosure sale

may lie . . . when the price realized [at the sale] is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price.

(Citation and punctuation omitted.) Brown v. Freedman, 222 Ga. App. 213, 215 (1) (474 SE2d 73) (1996). See Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 330 (1) (270 SE2d 867) (1980); Aikens, 231 Ga.App. at 180-181 (2). We cannot say that allegations of the Racettes’ complaint disclose with certainty that they would be unable to prove that the inaccuracies regarding the senior lien in the published foreclosure advertisements chilled the bid, causing them harm in the form of a grossly inadequate sale price being realized at the 2011 Foreclosure Sale.

For the combined reasons discussed in Division 1 (a) and (b), the Racettes may be able to establish breach of duty and causation upon further development of the factual record, and it would be inappropriate to dismiss their wrongful foreclosure claim at this early stage of the proceedings. The trial court thus erred in dismissing their claim for damages arising out of the alleged wrongful foreclosure.

2. Cancellation of the 2011 Foreclosure Sale. In the count of their complaint for wrongful foreclosure, the Racettes sought equitable relief in the form of cancellation of the 2011 Foreclosure Sale in addition to their request for damages. The Racettes clarified in their briefing in the trial court that their claim for equitable relief was only asserted against BOA. And BOA has not raised any grounds for dismissing the Racettes’ claim for equitable relief different from the grounds raised and rejected by this Court in Division 1. Consequently, the trial court erred in dismissing the Racettes’ claim for equitable relief in the form of cancellation of the 2011 Foreclosure Sale.

3. Intentional Infliction of Emotional Distress. The Racettes contend that the trial court erred in dismissing their claim for intentional infliction of emotional distress. We disagree.

Georgia has long recognized a cause of action for intentional infliction of emotional distress. However, the burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one. To prevail, a plaintiff must demonstrate that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The defendant’s conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.

(Citations and punctuation omitted.) Frank v. Fleet Finance &c., 238 Ga. App. 316, 317-318 (518 SE2d 717) (1999). See Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 810 (2) (b) (689 SE2d 843) (2009).

“[I]t is true that an intentional wrongful foreclosure can be the basis for an action for intentional infliction of emotional distress” under certain circumstances. (Citation and punctuation omitted.) Blue View Corp. v. Bell, 298 Ga. App. 277, 279 (1) (679 SE2d 739) (2009). See DeGolyer v. Green Tree Servicing, 291 Ga. App. 444, 449 (4) (662 SE2d 141) (2008); Clark v. West, 196 Ga. App. 456, 457-458 (b) (395 SE2d 884) (1990). But the Racettes’ allegation that the appellees conducted the 2011 Foreclosure Sale despite knowing of inaccuracies in the published foreclosure advertisements “cannot be described as extreme, outrageous, atrocious, intolerable or beyond the bounds of decency.” Frank, 238 Ga. App. at 318. It follows that the trial court committed no error in dismissing their claim for intentional infliction of emotional distress. Compare DeGolyer, 291 Ga. App. at 449-450 (4) (evidence supported claim for intentional infliction of emotional distress where party proceeded with foreclosure and sale after being told it foreclosed on wrong property); Blanton v. Duru, 247 Ga. App. 175, 178-179 (5) (543 SE2d 448) (2000) (trial court’s award of damages for intentional infliction of emotional distress affirmed, where foreclosure proceedings were instituted pursuant to security deed that the court had ordered to be canceled); Clark, 196 Ga. App. at 457-458 (a), (b) (claim for intentional infliction of emotional distress could proceed, where debtor alleged that foreclosing parties “knew the note was not in default and [that] they had no right to foreclose”).

4. Breach of Contract Against BOA. The Racettes further contend that the trial court erred in dismissing their claim for breach of contract asserted against BOA. We agree.

In seeking the dismissal of the breach-of-contract claim, BOA argued that the claim should be dismissed because the Racettes’ complaint did not set forth the basis for the claim in sufficient factual detail to give BOA proper notice of the claim. But “[t]he Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirement of the Act.” Rucker v. Columbia Nat. Ins. Co., 307 Ga. App. 444, 446 (1) (a) (705 SE2d 270) (2010). See OCGA § 9-11-8. “[Pjleadings serve only the purpose of giving notice to the opposing party of the general nature of the contentions of the pleader,” DeKalb County v. Ga. Paperstock Co., 226 Ga. 369, 370 (1) (174 SE2d 884) (1970), and thus “general allegations are sufficient to support a plaintiff’s claim for relief.” Davis v. Metzger, 119 Ga. App. 750, 751 (2) (168 SE2d 866) (1969).

Construed in the light most favorable to the Racettes, the complaint alleged that BOA owed obligations to the Racettes under the Security Deed, and that BOA breached those contractual obligations by going forward with the 2011 Foreclosure Sale despite the error in the published foreclosure advertisements. The Racettes’ complaint, coupled with the attachment of the Security Deed as an exhibit thereto, was sufficient for purposes of the Civil Practice Act to put BOA on notice of the breach-of-contract claim being asserted against it. See, e.g., City of Acworth v. John J. Harte Assoc., 165 Ga.App. 438, 438-439 (1) (301 SE2d 499) (1983) (third-party complaint alleging that appellee inspected sewer and draining systems pursuant to contractual obligations it owed to the city, and that appellee breached its obligations by failing to determine improper construction or design of those systems, coupled with submission of a copy of the contract, was sufficient to put appellee on notice of breach-of-contract claim).

Decided October 23, 2012.

Beloin, Brown, Blum & Wise, James P. Blum, Jr., Schuyler Elliott, for appellants.

McGuire Woods, Andrew G. Phillips, Robert J. Waddell, Jr., Adam Altman, John H. Anderson, Jr., Johnson & Freedman, Lawrence W. Kelly, Austin E. James, for appellees.

BOA also argued that the breach-of-contract claim should be dismissed because there was no defect in the published foreclosure advertisements and no causal connection between the advertisements and any harm sustained by the Racettes. BOA’s argument fails for the same reason discussed in Division 1. Thus, the trial court erred in dismissing the breach of contract claim.

5. Breach of the Duty of Good Faith and Fair Dealing against BOA. The Racettes also contend that the trial court erred in dismissing their claim for breach of the duty of good faith and fair dealing asserted against BOA. Again, we agree.

In moving to dismiss, BOA argued that there could be no claim for breach of the duty of good faith and fair dealing for the same reasons that there could be no claim for breach of contract. Hence, BOA’s argument fails for the same reasons discussed in Division 4, and the trial court erred in dismissing the claim for breach of the duty of good faith and fair dealing.

6. Attorney Fees, Costs, and Punitive Damages. An award of attorney fees, costs, and punitive damages is derivative of a plaintiff’s substantive claims. See Daimler Chrysler Motors Co. v. Clemente, 294 Ga. App. 38, 52 (5) (668 SE2d 737) (2008). Because the trial court erred in dismissing several of the Racettes’ substantive claims, the court likewise erred in dismissing their request for attorney fees, costs, and punitive damages as derivative of those claims.

Judgment affirmed in part and reversed in part.

Adams and McFadden, JJ., concur.

       Initially, the Racettes brought additional claims against BOA and J&F for violations of the Georgia Fair Business Practices Act and for unfair and deceptive practices against the elderly, and claims of breach of contract and breach of the duty of good faith and fair dealing against J&F, hut they later withdrew those claims.

       The Racettes also requested a temporary restraining order and interlocutory injunction enjoining BOA from dispossessing them from the Property during the pendency of the case. BOA stipulated to entry of a consent order that granted an interlocutory injunction enjoining it from taking any steps to evict or dispossess the Racettes from the Property during the pendency of the action, and that ordered the Racettes to pay monthly rent into the court registry so long as the injunction remained in effect.

       OCGA § 9-13-140 (a) provides in relevant part that the foreclosure advertisement shall give a full and complete description of the property to be sold, making known the names of the plaintiff, the defendant, and any person who may be in the possession of the property. In the case of real property, such advertisement shall include the legal description of such real property and may include the street address of such real property, if available, but provided that no foreclosure shall be invalidated by the failure to include a street address or by the insertion of an erroneous street address.

       Commentators have noted the importance of foreclosure advertisements containing correct information about whether other liens or encumbrances will remain on the property. See Frank S. Alexander, Ga. Real Estate Finance and Foreclosure Law § 8:4 (2011-2012 ed.) (“It is critical that the advertisement identifies specifically those interests which will continue to encumber the property following the sale. The rationale for this is that a potential bidder at the sale needs to take into consideration in making a bid the extent of the continuing encumbrances.”) (footnotes omitted).

       BOA further asserts that the published foreclosure advertisements were proper as a matter of law because the advertisements simply recited the same incorrect information contained in the Security Deed regarding the senior lien. We are unpersuaded because, as alleged in the complaint, Mr. Racette placed the appellees on actual notice that no senior lien remained on the Property and that the references in the advertisements to the hook and page number in the records of Paulding County were inaccurate.

       J&F initially sought dismissal of the Racettes’ claim for equitable relief, hut counsel for J&F made clear at the hearing on the motion to dismiss that J&F was withdrawing its challenge to that claim, given that the Racettes had clarified that the claim was asserted only against BOA.


author: Adams, Judge.

text:
    A12A0857.
    In the Interest of D. T. A. et al., children.
    (733 SE2d 466)
   Adams, Judge.

Mariano and Guadalupe Azua, the paternal grandparents of D. T. A. and K. F. A., petitioned to terminate the parental rights of the children’s mother and father. The juvenile court granted the termination petition, and in a prior appeal, we granted the mother’s petition for discretionary review of that decision. In that appeal, this Court found that the evidence was sufficient as to three of the four requirements set forth in OCGA § 15-11-94 (b) (4) (A) for finding the parental inability or misconduct necessary to terminate parental rights, but determined that as to the fourth requirement, i.e., that the children faced a likelihood of serious harm from continued deprivation, the juvenile court failed to make the requisite findings of fact. This Court accordingly vacated the juvenile court’s decision and remanded the case to the juvenile court to make additional findings of fact as to that fourth factor. In the Interest of D. T. A., 312 Ga. App. 26, 34 (1) (717 SE2d 536) (2011). The juvenile court subsequently issued an “Order Following Remand With Direction,” making specific findings of fact to support its determination that the children’s continued deprivation is likely to cause serious harm to the children. We once again granted the mother’s petition for discretionary review of the juvenile court’s decision to terminate her parental rights, and this appeal ensued.

In addressing this appeal, we rely upon the factual recitation set out in the prior appeal. In the Interest of D. T.A., 312 Ga. App. at 26-31. And as in the prior appeal, we must view the evidence in the light most favorable to the juvenile court’s ruling, see In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002), and we limit our review “to addressing the question of whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated.” (Citations omitted.) In the Interest of A. C., 285 Ga. 829, 836 (3) (686 SE2d 635) (2009). Moreover, we “must necessarily defer to the juvenile court’s fact finding, weighing of the evidence, and credibility determinations.” (Citations omitted.) Id. See also In the Interest of C.M., 251 Ga. App. 374 (554 SE2d 510) (2001).

On the basis of the facts contained in the record, this Court found clear and convincing evidence to support the juvenile court’s findings that (1) the children were deprived, (2) the deprivation was caused by lack of parental care and control, and (3) the deprivation was likely to continue. In the Interest of D. T. A., 312 Ga. App. at 31-32 (1). See OCGA § 15-11-94 (b) (4) (A). The mother cannot contest these findings as they are binding on all subsequent proceedings in this case. OCGA § 9-11-60 (h). See also In the Interest of D. F., 261 Ga. App. 148, 150 (1) (582 SE2d 16) (2003). Accordingly, we limit our consideration in this appeal to the juvenile court’s findings on the fourth factor, as well as the juvenile court’s finding that termination of the mother’s parental rights is in thechildren’sbestinterest. SeeOCGA § 15-11-94 (a), (b) (4) (A).

1. Upon remand, the juvenile court’s order listed the facts which it determined “warranted a finding that continued deprivation is likely to cause serious harm to the children,” as follows:

the mother’s failure to complete court ordered goals designed to reunite her with her children for more than twelve months; her failure to maintain a meaningful bond and relationship with her children; her incarceration for a felony and the negative effect of that incarceration on her ability to be a parent and to bond with her children; her history of violent behavior and untreated anger management problems; her failure to support her children for more than twelve months; and evidence that the limited contact between the mother and children was detrimental to the children. The court finds that these children are in need of permanency and a stable home, which they will obtain if parental rights are terminated.

Although the juvenile court relied upon much of the same evidence it cited in support of its findings as to the other factors, this Court recently affirmed that

[w]hen the record includes evidence sufficient to support a finding that such circumstances are likely to persist and thereby leave a parent unable to provide for the needs of her child, we have said, time and again, that the same evidence also may authorize a finding that continued deprivation is likely to cause serious harm, even if it does not compel a finding of likely harm.

(Citations omitted.) In the Interest of C. L., 315 Ga. App. 607, 612 (1) (b) (727 SE2d 163) (2012). See also In the Interest of D. L. T., 283 Ga. App. 223, 228 (2) (641 SE2d 236) (2007). Additionally, in assessing this factor, the juvenile court must consider “whether the child would be harmed if returned to the parent’s care and control, associated environment, and state of deprivation.” (Punctuation omitted.) In the Interest of P. D. W., 296 Ga. App. 189, 195 (1) (d) (674 SE2d 338) (2009). “Further, a parent’s failure to take the steps necessary to reunite with the child, and the child’s need for a stable home are factors which the court should consider in finding that the child would suffer serious harm from continued deprivation.” (Footnote omitted.) In the Interest of Z. H. T., 302 Ga. App. 424, 431-432 (1) (691 SE2d 292) (2010).

In that regard, the evidence showed that the mother had committed repeated criminal acts resulting in her incarceration, as reflected in her guilty pleas to charges of making terroristic threats against the Azuas; a charge of aggravated battery against her own great-grandmother; and various charges arising from an incident in which she attempted to run over her boyfriend with a car. In the Interest of D. T A., 312 Ga. App. at 28-29. As a result, she could possibly remain in jail until 2014. When not in jail, she maintained romantic relationships with men with criminal records. Id. at 30. Because the mother’s history reflected that she acted violently toward those close to her, and no evidence existed that she had taken any steps to address her anger issues or violent tendencies, the juvenile court was authorized to find that a clear potential exists that the mother’s demonstrated tendency toward violence could be directed toward the children in the future. Moreover, as a result of these and other factors, the mother has not demonstrated an ability to provide for her children and failed to complete her reunification plan. Although she had met some requirements of the plan, the evidence showed that she had failed to attend a drug and alcohol assessment, though scheduled; to maintain a stable home for the children; or to make any child support payments. Id. at 29. The evidence also authorized a conclusion that the mother had not been able to maintain a meaningful and consistent bond with the children, especially her younger child who was three months old at the time the Azuas gained custody, even though it is apparent from the record that the children and the mother enjoyed each other’s company during their limited time together and conversed on a regular basis. Id. at 30. The juvenile court also found that the children needed permanence based upon the “well-established” principle “that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” Ire the Interest of B. S., 274 Ga.App. 647, 652 (3) (618 SE2d 695) (2005).

Decided October 24, 2012.

Joshua J. Smith, for appellant.

We find, therefore, that clear and convincing evidence supported the juvenile court’s findings, and these findings, in turn, authorized the juvenile court’s conclusion that continued deprivation is likely to result in serious harm to the children within the meaning of the statute. See Ire the Interest of D. B. C., 292 Ga. App. 487, 496 (1) (d) (664 SE2d 848) (2008) (a parent’s “demonstrated inability to provide a stable home for the children or to provide for their needs could clearly result in harm”); Ire the Interest of T. A. M., 280 Ga. App. 494, 504 (8) (d) (634 SE2d 456) (2006) (parents’ continuing criminal activity resulting in multiple incarcerations can be considered in determining whether continued deprivation is likely to cause serious harm); In the Interest of A. B., 274 Ga. App. 230, 232 (617 SE2d 189) (2005) (“it is well settled that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems”) (citations omitted).

2. Best interests of the children. Similarly, we conclude the evidence discussed above and in the prior appeal also supported the juvenile court’s determination that termination of the mother’s parental rights was in the children’s best interests “considering their physical, mental, emotional and moral condition and their need for a secure and stable home.” (Punctuation omitted.) Ire the Interest of T. H., 290 Ga. App. 421, 426 (2) (659 SE2d 813) (2008). See In the Interest of R. S., 270 Ga. App. 810, 812 (608 SE2d 286) (2004) (“[t]he same factors that show the existence of parental misconduct or inability may also support the juvenile court’s finding that terminating the parent’s rights would be in the child’s best interest”) (punctuation omitted). Moreover, the evidence demonstrated that the children had a bond with the Azuas, who desired to adopt them, In the Interest of D. T. A., 312 Ga. App. at 30, which could provide them the stability and permanence they require.

Accordingly, we find that clear and convincing evidence supported the juvenile court’s finding that termination of the mother’s parental rights was in the children’s best interest.

Judgment affirmed.

Barnes, R J., and McFadden, J., concur.

McCamy, Phillips, Tuggle & Fordham, Curtis A. Kleem, Avrett, Ponder & Withrock, William, B. Barnwell, for appellee.

       The appeals in this case concern only the mother’s parental rights.

       This Court declined to reach that issue in the prior appeal since it had remanded the case to juvenile court for consideration of matters that are prerequisite to a consideration of whether termination is in the children’s best interest. In the Interest of D. T. A., 312 Ga. App. at 34 (2).

       The juvenile court further stated that all other portions of the final order terminating the mother’s parental rights not in conflict with the order on remand “shall remain in full force and effect.”


text:
    A12A0952, A12A1070.
    MORGAN COUNTY BOARD OF TAX ASSESSORS v. WARD; and vice versa.
    (733 SE2d 470)
   Adams, Judge.

These appeals arise from the determination by the Morgan County Board of Tax Assessors (the “Tax Board”) that Nancy W. Ward was in breach of a conservation use covenant and that she would be assessed a penalty because of the breach. The Tax Board notified Ward of the alleged breach and penalty, and Ward appealed that determination to the Morgan County Board of Equalization, which ruled in favor of the Tax Board. Ward then pursued a de novo appeal to the superior court from the decision of the Board of Equalization. Both Ward and the Tax Board filed cross-motions for summary judgment, and the superior court denied both motions. Following our grant of their applications for interlocutory appeal, the Tax Board, in Case No. A12A0952, and Ward, in Case No. A12A1070, appeal the trial court’s denial of their cross-motions for summary judgment. We agree with Ward that the Tax Board failed to meet its threshold obligation to provide her with notice and an opportunity to correct the alleged breach, and that she was therefore entitled to summary judgment. Accordingly, we affirm in Case No. A12A0952 and reverse in Case No. A12A1070.

To succeed on a motion for summary judgment, the movant must show that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). In reviewing the grant or denial of a motion for summary judgment, “we conduct a de novo review of the law and the evidence, and we view the evidence in the light most favorable to the nonmovant.” (Punctuation and footnotes omitted.) Muscogee County Bd. of Tax Assessors v. Pace Indus., 307 Ga. App. 532 (705 SE2d 678) (2011). “On de novo review, we owe no deference to the trial court’s conclusions of law. Instead, we are free to apply anew the legal principles to the facts.” (Citation and punctuation omitted.) Delta Air Lines v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225, 226 (539 SE2d 905) (2000).

The record shows that on March 24, 2004, Ward applied with the Tax Board to enroll 124.29 acres of Morgan County property (the “Property’) as conservation use property for purposes of OCGA § 48-5-7.4. The qualifying use was the production of livestock. The Tax Board approved the application effective January 1, 2004 through December 31, 2013, pursuant to which Ward entered into a “Conservation Use Assessment of Agricultural Property Covenant Agreement.” On March 30, 2005, Ward conveyed approximately 27 acres of the Property (the “Divided Parcel”) to Randall W. York. On the same day, York transferred the Divided Parcel to Montana Partners Limited, Inc.

On March 17, 2006, Montana Partners applied to enter into a conservation use covenant with respect to 27.263 acres of real property, which corresponded to the size of the Divided Parcel. The Tax Board approved Montana Partners’s application, but the map and parcel number of the property identified in the application did not correspond to that of the Divided Parcel. Also in March 2006, Ward filed another “Application for Conservation Use Assessment of Agricultural Property,” which was approved by the Tax Board. The application covered the 97 acres of the Property not conveyed to York. According to Ward, the covenant she signed ran from January 1,2006 through December 31,2015. As recorded with the clerk of the superior court, however, the date of the covenant ran from January 1, 2004 through December 31, 2013.

On August 23, 2007, Montana Partners sold the Divided Parcel to Montana Development, Inc. Montana Development applied to continue the covenant. The Tax Board determined that Montana Development could not continue the covenant and refused to approve the application. On February 3, 2009, the Tax Board notified Ward of a breach of her covenant “when your property was split to Montana Development Inc.” and of a penalty therefor.

Ward appealed the Tax Board’s determination of breach and penalty to the Morgan County Board of Equalization, which found the property to be in breach of the covenant. Ward appealed the decision of the Board of Equalization to the superior court. Ward and the Tax Board filed cross-motions for summary judgment, and the trial court denied both motions.

Ward contends that the Tax Board was not entitled to assess any penalty against her because it failed to provide her with the mandatory notice of breach and opportunity to cure. We agree.

OCGA § 48-5-7.4 (d) requires that, in order for property to qualify for current use assessment,

the owner of such property [must] agree [ ] by covenant with the appropriate taxing authority to maintain the eligible property in bona fide qualifying use for a period of ten years beginning on the first day of January of the year in which such property qualifies for such current use assessment and ending on the last day of December of the final year of the covenant period.

As noted above, Ward entered into such a covenant with respect to the Property, effective January 1, 2004 through December 31, 2013. Pertinent to this dispute, if all or part of property subject to a conservation use covenant is acquired by a person who breaches the original covenant, the transferor is subject to penalties. See OCGA § 48-5-7.4 (1).

As Ward shows, the Tax Board is required to notify an owner in writing in case of an alleged breach of a conservation use covenant. See OCGA § 48-5-7.4 (k.l). Further,

[t]he owner shall have a period of 30 days from the date of such notice to cease and desist the activity alleged in the notice to be in breach of the covenant or to remediate or correct the condition or conditions alleged in the notice to be in breach of the covenant.

Id. After an inspection of the property, “the board of tax assessors shall notify the owner that such activity or activities have or have not properly ceased or that the condition or conditions have or have not been remediated or corrected.” Id.

In this case, the Tax Board sent a notice to Montana Development informing it of the alleged breach and of the opportunity to cure but did not notify Ward that she had an opportunity to correct the breach. Rather, Ward only received the second notice contemplated by OCGA § 48-5-7.4 (k.l). The Tax Board informed Ward that “such activity or activities have or have not properly ceased or that the condition or conditions have or have not been remediated or corrected.” The Tax Board also informed Ward that a penalty “shall be assessed” and the amount of the penalty. Ward argues that the decision of the Tax Board was ineffective because she was never given notice and an opportunity to cure the breach. The Tax Board responds that Ward waived any claim of improper notice because she failed to raise the issue before the Board of Equalization; that the Tax Board complied with OCGA § 48-5-7.4 (k.l) by sending proper notice to Montana Development, which owned the Divided Parcel at the time of the breach; and that in this case the notice requirement is moot because Ward has not shown that she has tried to correct the breach or could correct the breach.

OCGA § 48-5-7.4 (k.l) provides that an owner may “appeal the decision of the board of tax assessors ... in the same manner that other property tax appeals are made pursuant to [OCGA §] 48-5-311.” Here, the Tax Board’s decision finds a breach by Ward and an associated penalty, references OCGA § 48-5-7.4 (k.l), and notifies Ward of her appeal rights under OCGA § 48-5-311. Ward appealed the Tax Board’s decision to the Board of Equalization, which noted that the issues “raised in this appeal were Breach CUVA with penalty” and found that “the property is in breach.”

Under OCGA § 48-5-311, once the Board of Equalization has rendered its decision, “[t]he taxpayer ... may appeal decisions of the county board of equalization ... to the superior court of the county in which the property lies.” OCGA § 48-5-311 (g) (1). Although the appeal is de novo, “only those decisions of the Board of Equalization on questions presented to it or incident thereto may be relitigated in the superior court.” Camp v. Boggs, 240 Ga. 127, 128 (1) (239 SE2d 530) (1977). See Mundy v. Clayton County Tax Assessors, 146 Ga. App. 473 (2) (246 SE2d 479) (1978) (accord).

Ward’s notice of appeal stated the basis for her appeal to the Board of Equalization, and she did not allege insufficiency of notice. However, there was no requirement that Ward specifically state the grounds for her appeal to the Board of Equalization. See OCGA § 48-5-311 (e) (2009). The appeal statute also contemplated an appeal from an assessment “as to matters of taxability, uniformity of assessment, and value . . . .” OCGA § 48-5-311 (e) (1) (A) (2009). While switching from one ground of appeal before the board of equalization to another before the superior court has not been allowed, that does not appear to have occurred here. Compare Hall County Board of Tax Assessors v. Northeast Ga. Health System, 317 Ga. App. 389 (730 SE2d 715) (2012) (appellant could not litigate value of property and uniformity of tax digest in superior court when those issues were not disputed before the board of tax assessors and the board of equalization). Rather, since the Board of Equalization acknowledged that the issue before it was “breach . . . with penalty,” we conclude that the issue of taxability was before the Board of Equalization. Further, the action of the Tax Board reviewed by the Board of Equalization specifically invoked OCGA § 48-5-7.4 (k.l). The issue of proper notice under OCGA § 48-5-7.4 (k.l) and the Department of Revenue regulations implementing OCGA § 48-5-7.4 was at least “incident to” the decision of the Board of Equalization. See Camp, 240 Ga. at 128 (1). For these reasons, we conclude that Ward could litigate the question of taxability in the superior court’s de novo review of the Board of Equalization’s decision, including whether the lack of notice barred the imposition of any penalty.

We now turn to the Tax Board’s contention that it was not required to give Ward notice and an opportunity to cure, and that the notice requirement is moot. As noted above, OCGA § 48-5-7.4 (k.l) contemplates that in case of an alleged breach the “owner” will be notified by the board of tax assessors and be given a 30-day period to correct the breach. Although the Tax Board now suggests that Ward was not an “owner” under this provision, notwithstanding that it sent her a notice referencing OCGA § 48-5-7.4 (k.l), Department of Revenue regulations implementing OCGA § 48-5-7.4 provide that

[b]efore a penalty is assessed, notice shall be provided to the taxpayer by the board of tax assessors that the covenant has been breached. This notice shall include the specific grounds of the breach, provide to the taxpayer notice to cease and desist the alleged breach activity, and notify the taxpayer that they have thirty (30) days to correct the breach.

Decided October 24, 2012

Christian G. Henry, for appellant.

DuBose, Massey, Bair & Evans, C. Wilson DuBose, Jennifer L. Pridgeon, for appellee.

Ga. Comp. R. & Regs. r. 560-11-6-.06 (5). Since Ward is the “taxpayer” who was being assessed a penalty, the Tax Board was required to give Ward notice and an opportunity to cure the alleged breach. This it did not do. It follows that the Tax Board’s decision in finding a breach with penalty was premature. Further, the Department’s regulation does not contemplate whether it is practicable for the taxpayer to correct an alleged breach, only that the taxpayer be given notice and opportunity to do so. It was certainly not a great burden for the Tax Board to comply with the notice requirement. Accordingly, we cannot say the Tax Board’s failure to give Ward the required notice was moot.

In light of the foregoing, we conclude that Ward was entitled to summary judgment and, accordingly, reverse the trial court’s order denying Ward’s motion for summary judgment. The trial court’s denial of the Tax Board’s motion for summary judgment is affirmed.

Judgment affirmed in Case No. A12A0952. Judgment reversed in Case No. A12A1070.

Barnes, P. J., and McFadden, J., concur.

       Under OCGA § 48-5-7.4 (j) (1), the clerk of the superior court is directed to file and index approved applications for current use assessment in the real property records maintained in the clerk’s office.

       The notice also stated that the issuance of a business license to a company at the property’s physical address was a basis for the breach, hut the Tax Board does not now contend that the issuance of the business license was a valid basis for the breach.

       Owners of “bona fide conservation use property for purposes of OCGA § 48-5-7.4 may apply to the county board of tax assessors for “current use assessment” of their property for purposes of calculating ad valorem taxes. See Morrison v. Claborn, 294 Ga. App. 508, 509, n. 1 (669 SE2d 492) (2008). “If the application is granted, the property is assessed for tax purposes at 40 percent of its ‘current use value’ instead of 40 percent of its ‘fair market value,’ OCGA § 48-5-7 (a), (c.2), resulting in tax savings.” (Citation omitted.) Id.

       If a breach occurs on all or part of the property that was the subject of an original covenant and was transferred in accordance with OCGA § 48-5-7.4 (i), then the breach shall be deemed to have occurred on all of the property that was the subject of the original covenant. The penalty shall be assessed pro rata against each of the parties to the covenant in proportion to the tax benefit enjoyed by each during the life of the original covenant.
      Ga. Comp. R. & Regs. r. 560-11-6-.06 (2). The amount of the penalty is “twice the difference between the total amount of tax paid pursuant to current use assessment under this Code section and the total amount of taxes which would otherwise have been due under this chapter for each completed or partially completed year of the covenant period.” OCGA § 48-5-7.4 (1).

       In contrast, a notice of appeal from a board of equalization to the superior court “shall specifically state the grounds for appeal.” OCGA § 48-5-311 (g) (2) (2009). In this case, Ward raised the notice issue in superior court in her amended notice of appeal. See Fulton County Bd. of Tax Assessors v. Layton, 261 Ga. App. 356 (582 SE2d 520) (2003) (notice of appeal to superior court is amendable).

       This Code section was amended in 1990, following Camp, to remove a requirement that the written objection specifically state the grounds for appeal. See Ga. L. 1990, pp. 1361-1362, § 1; Cobb County Board of Tax Assessors v. Marietta Educational Garden Center, 239 Ga. App. 740, 746 (521 SE2d 892) (1999) (Ruffin, J., concurring specially).

       The Department has the power to make and publish reasonable rules and regulations for the implementation and enforcement of OCGA § 48-5-7.4. See OCGA § 48-5-7.4 (y).

       As Ward has not been given notice and an opportunity to correct the alleged breach, we need not address the remaining claims of error, which go to the question of whether Ward breached her conservation use covenant agreement and, if so, the date of that breach.