author: RAY, Presiding Judge. DILLARD, Chief Judge,

text:
    A17A1208.
    OLLER et al. v. ROCKDALE HOSPITAL, LLC et al.
    (804 SE2d 166)
   RAY, Presiding Judge.

Heather Oiler, as the executor of the estate of Shirley Nobles, and David Nobles (“Appellants”) filed a renewal complaint asserting medical malpractice claims against various defendants, including 24 On Physicians, PC (“24 On”). The trial court granted partial summary judgment to 24 On, finding that certain claims were barred by the statute of limitation. Appellants filed this appeal, contending that the trial court erred in concluding: (i) that any claims against 24 On for vicarious liability of its agents, other than those specifically named in the renewal complaint and the OCGA § 9-11-9.1 affidavit, were barred by the expiration of the statute of limitation; (ii) that the language of the amended OCGA § 9-11-9.1 affidavit, as opposed to the timely filed renewal complaint, controls the determination of the expiration of the statute of limitation; and (iii) that Appellants could not file an amended expert affidavit to conform to the renewal complaint and the evidence revealed during discovery For the following reasons, we reverse.

The standard of review for an appeal from a grant of summary judgment is de novo, viewing the evidence in the light most favorable to the nonmoving party, to determine whether a genuine issue of material fact remains or whether the moving party is entitled to judgment as a matter of law. Smith v. Lott, 317 Ga. App. 37, 37 (730 SE2d 663) (2012).

So viewed, the record shows that Shirley Nobles (“Nobles”) was admitted to Rockdale Medical Center on May 7, 2011. Three days later, Nobles was found unresponsive due to a hypoglycemic event. Nobles never regained full neurological function and was discharged for hospice care with a diagnosis of a severe brain injury caused by hypoglycemia. Nobles ultimately died on June 3, 2011.

The initial lawsuit was filed on May 10, 2013, against Lifepoint Hospitals, Inc., Rockdale Hospital, LLC d/b/a Rockdale Medical Center, Dr. Jeffrey C. Mitchell, Dr. Alunda E. Hunt, Rockdale Physician Practices, LLC, and Stacey V. Grant, RN. Appellants sought to recover wrongful death and estate damages for the acts and omissions leading to Nobles’untimely death. Pursuant to OCGA § 9-11-9.1, Appellants simultaneously filed an expert affidavit of Dr. Robert Cooper. Appellants voluntarily dismissed the original complaint without prejudice on October 21, 2013, and filed a renewal complaint, pursuant to OCGA § 9-2-61, on March 18, 2014. In the renewal complaint, Appellants asserted their claims against 24 On as well as Rockdale Hospital, LLC d/b/a Rockdale Medical Center, Dr. Jeffrey C. Mitchell, Dr. Alunda E. Hunt, and Stacey V. Grant, RN. However, the OCGA § 9-11-9.1 affidavit that was filed with the renewal complaint did not specifically mention 24 On.

On April 23, 2014, 24 On filed a motion to dismiss on various grounds, including allegations that the second affidavit failed to set forth “even one negligent act or omission on the part of Defendant 24 On Physicians, PC.” In response, on May 27, 2014, Appellants filed a third affidavit of Dr. Cooper, in order to include specific acts of negligence against 24 On. The trial court denied 24 On’s motion to dismiss on June 4, 2014. Finally, on October 8, 2015, Appellants filed the fourth and final affidavit of Dr. Cooper which, inter alia, clarified that his expert opinion regarding negligence and breaches of the standard of care extended to 24 On’s employees and physicians who treated Nobles, bringing the language of the final affidavit in line with the averments of Count 1 of the renewal complaint.

On March 16, 2016, 24 On filed a motion for partial summary judgment, contending that Appellants’ claims for vicarious liability by any of 24 On’s employees or physicians other than Dr. Mitchell and Dr. Hunt should be dismissed as untimely because such claims had been asserted after the expiration of the statute of limitation. Appellants responded on April 18, 2016, arguing that the statute of limitation for the claims on behalf of the estate had not expired prior to the assertion of the vicarious liability claims in the pleadings and that the fourth amended affidavit simply supported the existing claims in the renewal complaint. On September 12, 2016, the trial court entered an order granting 24 On’s motion for partial summary judgment. Appellants filed a motion for reconsideration of the trial court’s order on September 19, 2016. The trial court denied the motion for reconsideration on November 16, 2016, and issued a certificate of immediate review on November 22, 2016. We granted Appellants’ application for interlocutory appeal, and this appeal ensued.

In three related enumerations of error, Appellants essentially contend that the trial court erred in determining that the vicarious liability claims against 24 On for the negligent acts of any of its physicians other than Dr. Mitchell and Dr. Hunt were barred by the expiration of the statute of limitation. For the reasons that follow, we agree.

Appellants were not required to specifically name each physician for which 24 On was allegedly responsible in the renewal complaint. In an action for medical malpractice, Georgia law simply requires that “any pleading which sets forth a claim for relief . . . shall contain ... [a] short and plain statement of the claims showing that the pleader is entitled to relief[.]” OCGA § 9-11-8 (a) (2) (A). In the renewal complaint, which was timely filed, Appellants claimed that 24 On was vicariously liable for the negligence of the “physicians that attended Shirley Nobles” and that “the treating physicians [were] actual and/or ostensible agents or otherwise servants and/or employees of ... 24 On[.]” (Emphasis supplied.) As the agents for which 24 On was allegedly liable were identified as “the treating physicians” in the renewal complaint, 24 On was provided with sufficient notice of the agents for which it was allegedly responsible.

In considering the statute of limitation, the renewal complaint is the controlling pleading in this case. Furthermore, as the renewal complaint contemplated physicians other than those specifically named in the initial expert affidavit, the amended expert affidavit did not assert new claims after the expiration of the statute of limitation.

This Court has held that an amended affidavit that was filed after the expiration of the statute of limitation did not state a new claim and that the complaint therefore was the controlling pleading as to the statute of limitation. See Bonner v. Peterson, 301 Ga. App. 443, 445-448 (1) (687 SE2d 676) (2009). All that is required of an expert affidavit is that it “set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a) (3). Furthermore, OCGA § 9-11-9.1 (e) provides, in pertinent part:

If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff’s complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective. . . .

(Emphasis supplied.) It is well settled that the purpose of OCGA § 9-11-9.1 is to avoid frivolous lawsuits and that allowing a plaintiff to amend an expert affidavit does not frustrate this purpose. See Porquez v. Washington, 268 Ga. 649, 652 (1) (492 SE2d 665) (1997) (physical precedent only) (allowing the amendment of OCGA § 9-11-9.1 affidavit “does not defeat the purpose of the statute, but instead helps to [ejnsure that the complaint is not frivolous”); Gadd v. Wilson & Co., Engineers & Architects, 262 Ga. 234, 235 (416 SE2d 285) (1992) (initial OCGA § 9-11-9.1 affidavit which did not specifically identify defendant as a negligent party was curable by amendment where the pleadings indicated that the defendant was implicitly the party to whom plaintiff was attributing the alleged negligence).

Here, Appellants were acting within the scope of the law when they filed the amended affidavit. The fourth and final affidavit of Dr. Cooper, though it was filed after the expiration of the statute of limitation, simply conformed to the language of the renewal complaint, and it corrected the language of the third affidavit to include the negligence of “24 On, [and] its employees andphysicians[.]” Thus, when viewed in comparison to the language of the renewal complaint, which includes “the treating physicians as actual and/or ostensible agents or otherwise servants and/or employees of ... 24 On[,]” it is clear that the purpose of Dr. Cooper’s fourth affidavit was simply to track the language of the renewal complaint.

The facts here can be distinguished from those in Thomas v. Med. Center of Central Ga., 286 Ga. App. 147 (648 SE2d 409) (2007), which 24 On cited as support for its contention that the fourth amended OCGA § 9-11-9.1 affidavit constituted a new claim outside of the statute of limitation. In Thomas, the plaintiff initially filed a complaint against the hospital alleging that it was responsible for the negligence of one if its physicians. After the expiration of the statute of limitation, however, the plaintiff filed an amended complaint and an amended expert affidavit to include the conduct of the hospital’s nurses. Id. at 147-148. This Court held that the amended affidavit asserted a new claim based on the conduct of a group of professionals who were not contemplated in the initial complaint and, therefore, such a claim was barred by the expiration of the statute of limitation. In so holding, we reasoned that allowing a plaintiff to add a different, group of professionals under such circumstances would frustrate the intent of OCGA § 9-11-9.1. Id. at 148-149. In the present case, however, the alleged negligence of the “treating physicians” who were agents or employees of 24 On was contemplated in the renewal complaint. Therefore, the language of the fourth amended OCGA § 9-11-9.1 affidavit cannot be considered to state a new claim outside the expiration of the statute of limitation.

Judgment reversed.

Dillard, C. J., Ray, P J., and Self, J., concur fully and specially.

DILLARD, Chief Judge,

concurring fully and specially

I fully concur with the majority’s well-reasoned opinion. I write separately to further address 24 On’s argument that the renewal complaint cannot be amended to assert a vicarious liability claim involving Dr. Syed outside the statute of limitation.

I agree with the majority that the renewal complaint satisfies Georgia’s notice-pleading requirements with respect to the alleged negligence of Nobles’s treating physicians, even if they were not specifically named in the complaint. But even if that were not the case, Georgia’s Civil Practice Act allows for initial theories of liability to be amended as more information is discovered during the course of litigation.

Specifically, OCGA § 9-11-15 (a) provides that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” And even after that, “the party may amend his pleading ... by leave of court . . . .” Moreover, such leave “shall be freely given when justice so requires.” Indeed, we have held that OCGA § 9-11-15 (a) is to be forgivingly construed “in favor of the allowance of amendments, particularly when the party opposing the amendment is not prejudiced thereby.” Additionally, even if the Appellants never formally amend their complaint, OCGA §9-11-15 (b) provides that “[wjhen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Thus, as discovery proceeds in this case, “[sjuch amendment of the pleadings . . . may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time . . . .”

Finally, under OCGA § 9-11-15 (c), “[wjhenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” And here, 24 On has not alleged that Dr. Syed’s treatment of Nobles arose out of a separate and distinct set of circumstances from those set forth in the initial complaint. Instead, 24 On essentially argues that every theory of vicarious liability against it involving the treatment of Nobles by its physicians must include each treating physician’s name in the renewal complaint. But as ably explained by the majority, that is not how notice pleading works. Indeed, the forgiving notice-pleading standard of OCGA § 9-11-8 (a) (2) (A)—Georgia’s statutory codification of Federal Rule of Civil Procedure 8 (a) (2)—is “the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.” Thus, while 24 On attempts to characterize the vicarious liability claim involving Dr. Syed as a separate time-barred claim, it is simply another theory of vicarious liability against it for medical malpractice that may be raised, upon remand, in any manner authorized by OCGA § 9-11-15.

Decided August 14, 2017

Penn Law, Darren W. Penn, Alexandra C. Cole; Harris Lowry Mantón, Jed D. Mantón, Andrew J. Conn, for appellants.

Huff, Powell & Bailey, Daniel J. Huff, Francesca G. Townsend; Owen, Gleaton, Egan, Jones & Sweeney, Frederick N. Gleaton, Melissa P Reading, for appellees.

Charles M. Cork III; Smith, Gambrell & Russell, Leah Ward Sears, Colin D. Delaney; Donald J. Palmisano, Jr.; Allen & McCain, Hunter S. Allen, Jr, X. Layne Zhou; Arnail, Golden & Gregory, Jason E. Bring, Kara B. Gordon, amici curiae.

I am authorized to state that Presiding Judge Ray and Judge Self join in this special concurrence.

       Dr. Cooper later testified at his deposition that his amended affidavit was based, in part, on the acts or omissions of Dr. Syed, a physician employed by 24 On who had treated Nobles immediately after she was found unresponsive.

        See OCGA § 9-11-15 (a); see also Life Ins. Co. of Ga. v. Meeks, 274 Ga. App. 212, 216 (2) (617 SE2d 179) (2005) (“When entered, the pretrial order supersedes the pleadings and controls the subsequent scope and course of the action.”).

       OCGA § 9-11-15 (a).

        Id.

        Edenfield & Cox, P.C. v. Mack, 282 Ga. App. 816, 817 (640 SE2d 343) (2006) (punctuation omitted); see Thomas v. Tenet Healthsystem GB, Inc., 340 Ga. App. 70, 72 (796 SE2d 301) (2017) (“[W]e are to construe OCGA § 9-11-15 [forgivingly] in favor of allowing amendments.”).

       OCGA § 9-11-15 (b).

        Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (II) (122 SCt 992, 152 LE2d 1) (2002) (Thomas, J.); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 575 (I) (127 SCt 1955, 167 LE2d 929) (2007) (Stevens, J., dissenting) (“Under the relaxed pleading standards of the Federal Rules, the idea was not to keep litigants out of court but rather to keep them in. The merits of a claim would be sorted out during a flexible pretrial process and, as appropriate, throughthe crucible of trial.”); Walker v. Oglethorpe Power Corp., 341 Ga. App. 647, 669 (5) (802 SE2d 643) (2017) (“[I]n Georgia, it is not 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. Instead, the Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed forgivingly and reasonably to achieve substantial justice consistent with the statutory requirements of the Act.” (cleaned up)).

       As aptly noted in the Georgia Trial Lawyers Association’s amicus brief, we have recently held in the medical-malpractice context that, under OCGA § 9-11-15 (c), amendments filed outside the statute of limitation related back to the original complaint under circumstances similar to this case. See Thomas, 340 Ga. App. at 73-74 (holding that a claim that a medical facility was vicariously liable for negligence of its nurses during a plaintiff’s visit to the emergency room that was filed outside the statute of limitation related back to the original complaint that alleged only that the medical center was vicariously liable for the negligence of its physicians during the same emergency room visit); Jensen v. Engler, 317 Ga. App. 879, 883-84 (1) (b), (2) (733 SE2d 52) (2012) (holding that claims of professional negligence and battery asserted outside the applicable statute of limitation related back to the plaintiff’s timely ordinary negligence claim because, even if they did not arise from the same factual allegations, they arose “out of the conduct, transaction, or occurrence set forth... in the original pleading,” which we described as the plaintiff’s “surgery, emergency room visit, and discharge.” (punctuation omitted)).


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A17A0754.
    WILSON et al. v. MOORE.
    (804 SE2d 170)
   Rickman, Judge.

Holly and Jack Wilson appeal a trial court’s order granting the petition of Benjamin Moore to legitimate the minor child, M. S. W. and denying Mr. Wilson’s petition for adoption of M. S. W. The Wilsons contend, inter alia, that the trial court erred by concluding that Mr. Wilson was not the legal father of M. S. W. and failing to consider the effect of Mr. Wilson’s administrative legitimation of M. S. W. on Moore’s legitimation petition. For the following reasons, we vacate the judgment of the trial court and remand for proceedings consistent with this opinion.

The trial court made the following findings of fact:

This case involves the minor biological child of [Moore] and [Ms. Wilson]: [M. S. W], born September 12, 2011. The minor child is now [five] years old and resides with [Ms. Wilson]. This case has a very unusual and convoluted factual situation.
The facts in the case are basically undisputed. [Moore] and [Ms. Wilson] had a short term relationship that included one sexual encounter on December 25, 2010. After the morning of December 26, 2010, [Moore] and [Ms. Wilson] did not see each other again until September 17, 2015, which was the date that depositions were taken in this case. The evidence shows that [Moore] and [Ms. Wilson] had a brief telephone conversation in late December, 2010, which was followed by a brief email exchange in mid-January, 2011. Following those contacts, the parties did not have any contact with each other until a telephone conversation between the parties regarding this subject action that took place in April, 2015. This was the first time that the parties had any contact or discussion concerning the minor child.
The evidence shows that in late December, 2010, [Ms. Wilson] resumed her relationship with [Mr. Wilson]. [Ms. Wilson] discovered that she was pregnant sometime in late January, 2011. The minor child was born in September, 2011, and [Ms. Wilson] and [Mr. Wilson] were married on February 29, 2012. The evidence shows that [Ms. Wilson] and [Mr. Wilson] were not married when the child was conceived or when the child was born.
The evidence shows that sometime during the year [2013], [Moore] received information that [Ms. Wilson] had a child. [] Additionally, he received some information that there was the possibility that the minor child could be his biological daughter. Later in 2014, [Moore] contacted legal counsel as to his possible rights and a course of action regarding the minor child. Sometime late in 2014, [Moore] decided that he wanted to determine if he was the biological father of the child and requested his counsel to contact [Ms. Wilson]. [Moore] had previously received information that a DNAtest by [Ms. Wilson] showed [Mr. Wilson] to be the biological father.
The evidence shows that on February 19,2015, [Moore’s] attorney sent a letter to [Ms. Wilson] requesting a DNAtest to determine if [Moore] might be the father of the minor child. This letter was followed up by a phone conversation from [Moore] to [Ms. Wilson] in April of 2015. The evidence shows that [Moore] filed [the] Petition for DNA Genetic Paternity Testing and Legitimation on June 19, 2015. [Ms. Wilson] filed an answer on July 1,2015. On July 1, 2015 [Mr. Wilson] filed a Motion to Intervene and to Dismiss the Petition [for] DNA Paternity Testing. As a part of this motion, he also filed a Petition for Legitimation.
On July 9, 2015, . . . consent order[s] [were] entered between the parties allowing for [Mr. Wilson] to intervene in the case and also ordering DNA testing. The evidence shows that the DNA test showed that [Moore] was the biological father of the minor child, [M. S. W.].
On October 28, 2015, [Mr. Wilson] filed an amendment to his answer and responsive pleadings adding a Counterclaim for Adoption of the minor child.

Following a hearing, the trial court determined that Moore had not abandoned his opportunity interest to have a relationship with M. S. W. The trial court further found that there was no evidence that Moore would be an unfit parent and granted Moore’s request for legitimation of M. S. W. The trial court stated that the ruling was in the best interest of M. S. W. The trial court also concluded that “[Mr. Wilson] is not the biological father of [M. S. W], nor is he the legal father of the minor child by virtue of marriage, legitimation, or adoption.”

The Wilsons contend, inter alia, that the trial court erred by concluding that Mr. Wilson was not the legal father of M. S. W. and failing to consider the effect of Mr. Wilson’s administrative legitimation of M. S. W. on Moore’s legitimation petition. We agree.

“ ‘Legal father’ means a male who . . . [h]as legitimated a child pursuant to [OCGA § 19-7-21. l].”OCGA § 19-7-21.1 (a) (2) (F) (2008).

Prior to the child’s first birthday, a father of a child born out of wedlock may render his relationship with the child legitimate when both the mother and father have freely agreed, consented, and signed a voluntary acknowledgment of paternity and an acknowledgment of legitimation which have been made and have not been rescinded pursuant to Code Section 19-7-46.1. The State Office of Vital Records shall provide notice, in writing, of the alternatives to, legal consequences of, and the rights and responsibilities of signing a voluntary acknowledgment of legitimation.

OCGA § 19-7-21.1 (b) (2008).

On the day of M. S. W.’s birth, Mr. Wilson was present and was named as the child’s father on the birth certificate. The following day, Mr. Wilson signed a voluntary acknowledgment of paternity, and he and Ms. Wilson signed an acknowledgment of legitimation pursuant to OCGA § 19-7-21.1 (2008). The acknowledgment of legitimation form included a statement that the relationship between Mr. Wilson and M. S. W. “shall be considered legitimate for all purposes under law pursuant to O.C.G.A. § 19-7-21.1.” When M. S. W. was approximately five months old, the Wilsons were married, and they have lived together, as a family, since M. S. W.’s birth. “Thus, [Moore’s] petition sought to delegitimize a legitimate child and to break up a legally recognized family unit already in existence.” Davis v. LaBrec, 274 Ga. 5, 7 (549 SE2d 76) (2001).

However, the trial court apparently failed to consider the legal effect of Mr. Wilson’s administrative legitimation of M. S. W. Accordingly, we must vacate the trial court’s final order legitimating Moore as the legal father of M. S. W. On remand, as a threshold matter, the trial court must consider any preclusive effect of the preexisting administrative legitimation by Mr. Wilson on Moore’s legitimation petition. See Davis, 274 Ga. at 7; see also LaBrec v. Davis, 243 Ga. App. 307, 316 (2) (534 SE2d 84) (2000) (should the trial court conclude that it can properly address the biological father’s legitimation petition, on remand, “we direct the court to determine the crucial issue of whether the delegitimation of the child’s lifelong relationship with [the legal father] is in the best interest of the child, considering the emotional harm such decision would have upon the child in light of [the child’s] established familial bonds and emotional ties with [the legal father]”). See generally Baker v. Lankford, 306 Ga. App. 327, 329-330 (1), (2) (702 SE2d 666) (2010).

Decided August 15, 2017.

Hester Outman, Justin Y. Hester, James B. Outman; Silvis, Ambrose, Lindquist & Coch, Chris E. Ambrose, for appellants.

Bennett Law Firm, Michael S. Bennett, Sr., Kari Anne Bowden; Altman & Lane, V. Gail Lane, for appellee.

Judgment vacated and case remanded.

Ellington, P. J., and Andrews, J., concur.

       The trial court’s final order erroneously states that Moore did not receive this information until 2014. To the extent that it may be relevant on remand, particularly with respect to any necessary reconsideration of whether Moore abandoned his opportunity interest, we note that it is undisputed that Moore found out Ms. Wilson had a child in 2013.

       OCGA § 19-7-21.1 was repealed in its entirety in 2016. See Ga. L. 2016, p. 304, § 2. However, its repeal “shall not be construed to affect a voluntary acknowledgment of legitimation that was valid under the former provisions of [OCGA § 19-7-21.1], nor any of the rights or responsibilities flowing therefrom, if it was executed on or before June 30, 2016.” Ga. L. 2016, p. 312, § 18.


author: Andrews, Judge.

text:
    A17A1722.
    GRANGE INDEMNITY INSURANCE COMPANY v. BEAVEX, INC.
    (804 SE2d 173)
   Andrews, Judge.

This appeal is from the grant of summary judgment for BeavEx, Inc., a delivery services broker, in an action seeking to impose vicarious liability for a motor vehicle collision involving a driver BeavEx hired as an independent contractor. We affirm.

On March 17, 2014, as Pathe Sarr was making a delivery to Wells Fargo Bank pursuant to a BeavEx referral, he collided with the vehicle of Edward and Patricia Morris. The Morrises sued Sarr and BeavEx to recover for injuries sustained in the collision. On March 31, 2017, the trial court granted summary judgment for BeavEx on the grounds Sarr was an independent contractor, not an employee. Grange Indemnity Insurance Company then filed this appeal as the Morrises’ purported uninsured/underinsured motorist carrier.

Grange contends the trial court erred in finding Sarr was an independent contractor to BeavEx, either on the ground the evidence contained at least an issue of fact as to the existence of an employer/ employee relationship, or on the ground Sarr was BeavEx’s statutory employee under the Federal Motor Carrier Safety Regulations.

In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract. Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control.

(Citation and punctuation omitted.) Larmon v. CCR Enterprises, 285 Ga. App. 594, 595 (647 SE2d 306) (2007). See also McLaine v. McLeod, 291 Ga. App. 335, 339 (1) (661 SE2d 695) (2008).

In the instant case, on August 7, 2012, BeavEx contracted with Sarr to provide delivery services as an independent contractor for customers located by BeavEx. That contract specified that Sarr, as an independent owner/operator,

shall be responsible for the manner and means of securing the end result of the provision of services under this Contract and shall use its own independent judgment and discretion for the most effective and safe manner in conducting pick-up and delivery services. Broker shall exercise no direct control over Owner/Operator, nor the method or means used by Owner/Operator in the performance of such services, including the selection of routes.

Further, Sarr had to provide his own vehicle; he had to maintain vehicle and cargo insurance; he had to pay for all his operating costs and expenses; he had to satisfy any specific conditions set by the customers; he received a 1099 form and was not treated as an employee for any tax purposes; he was not covered under BeavEx’s workers’ compensation or unemployment insurance coverage; and he was not eligible to participate in any BeavEx pension plan or insurance plans of any type. Due to security concerns of the customers, Sarr was required to wear an identification badge bearing BeavEx’s logo and indicating he was an authorized owner/operator for BeavEx.

The contract between BeavEx and Sarr clearly described an independent contractor relationship. But Grange argues the evidence shows that BeavEx nevertheless asserted sufficient control over the time, manner, and method of Sarr’s deliveries for his bank customers and that an issue of fact existed as to whether Sarr was an employee or an independent contractor. Specifically, Grange contends the following requirements demonstrated BeavEx’s control over Sarr: (1) requiring Sarr to wear a company shirt and identification badge; (2) requiring Sarr to make the deliveries within a specified time period; (3) requiring Sarr to provide an annual driving record and to allow BeavEx to inspect his vehicle; and (4) requiring Sarr to report any accidents to BeavEx so it could inform the actual customer.

However, regarding the identification badge and company shirt, the contract between BeavEx and Sarr explains the customers required them due to security concerns. So that control was attributable to the third party customers, not BeavEx. Regarding the times set for pickups and deliveries, Sarr testified in his deposition that when BeavEx assigned a delivery order, it provided a manifest specifying the times and branch locations, but Sarr did not know whether BeavEx or the customer banks set the times. But the contract clearly states that the customers, and not BeavEx, set the times for performance, and that the manifest was provided to owners/operators so that they could make an informed decision as to whether to accept or reject an assignment.

Inspecting Sarr’s vehicle, and the policy of having owners/ operators call BeavEx in case of a problem that delays a delivery, address a legitimate concern that owners/operators are able to carry out brokered deliveries. Sarr’s compliance with those requirements pertained to his ability to complete deliveries to customers who contracted with BeavEx for delivery services and did not demonstrate BeavEx’s control over the time and manner of executing the assigned work.

It is . . . well settled in practically all courts that the right of the employer to exercise a certain control over the work, where the control reserved does not apply to the manner of doing the details of the work, and does not thereby take the work out of the hands of the contractor, but goes merely to a general supervision to [ejnsure that the ends prescribed by the contract shall be substantially met, does not destroy the independence of the relation.

Bentley v. Jones, 48 Ga. App. 587, 592 (173 SE 737) (1934).

Grange also contends that even if Sarr is not considered Beav-Ex’s employee under traditional legal principles, he was BeavEx’s statutory employee under the Federal Motor Carrier Safety Regulations (49 CFR § 390 et seq.). However, those regulations do not apply here. Those regulations apply to “employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce.” 49 CFR § 390.3 (a) (1). 49 CFR § 390.5 defines, in pertinent parts, an employer as “any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it..an employee as “any individual... who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle . . and a commercial motor vehicle as a

Decided August 16, 2017

Law Offices of Dan J. Colley, William E. Gray II, for appellant.

Smith Moore Leatherwood, Matthew P. Stone, Shawn N. Kalfus, for appellee.

motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle — (1) [h]as a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more ... or (2) [i]s designed or used to transport more than 8 passengers ....

In the instant case, Sarr was driving his own Honda Civic at the time of the collision, and nothing in the record shows that such a small passenger sedan met the above definition of a commercial motor vehicle. Further, Sarr’s delivery routes were to local banks in the metro Atlanta area, and there was no evidence showing those deliveries affected interstate commerce. The evidence of record thus provided no basis for finding Sarr to be the statutory employee of BeavEx under the provisions of the Federal Motor Carrier Safety Regulations.

Judgment affirmed.

Ellington, P. J., and Rickman, J., concur.


author: Doyle, Judge.

text:
    A17A0929.
    PLUMMER v. PLUMMER.
    (804 SE2d 179)
   Doyle, Judge.

Christopher Plummer (“the father”) appeals the dismissal of his custody modification action, arguing that the superior court erred by determining that it lacked jurisdiction to modify custody pursuant to OCGA § 19-9-62 (a) (2). For the following reasons, we affirm.

The procedural history in this case is undisputed. The father and Elia Marie Plummer (“the mother”) were divorced on December 12, 2013, in Camden County, Georgia, and they were granted joint legal custody of their minor son, with the mother having primary physical custody. At the time of the divorce, the mother and the child had moved to Florida; the father remained in Georgia. Thereafter, the father filed a motion for contempt in Camden County, and the superior court granted the motion on April 30, 2015.

On May 21, 2015, the father filed a modification action in Camden County. On July 8, 2016, following a telephone conference with counsel and the guardian ad litem, the trial court entered a temporary order granting the father additional visitation, including a month of summer visitation. On August 19, 2016, the mother filed a motion to dismiss for lack of jurisdiction pursuant to OCGA § 19-9-62 (a) (2). In his memorandum in opposition to the motion, the father conceded that due to military obligations he moved to Virginia on July 1, 2016, and he alleged that on August 29, 2016, the mother moved to Arizona with the child. The superior court granted the motion to dismiss, concluding that it lost subject matter jurisdiction pursuant to OCGA § 19-9-62 (a) (2) because neither the child nor the parents resided in Georgia. This appeal followed.

In 2001, Georgia adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), replacing its predecessor

because, in application, imprecision in [the prior act’s] language often allowed for the existence of concurrent jurisdiction over custody matters in multiple states, thereby fostering competition among jurisdictions and forum shopping by the parties. The UCCJEA now remedies these earlier unintended problems by establishing continuing jurisdiction in the state in which the original custody decree was entered.

“Therefore, under the UCCJEA, a Georgia court that makes an initial child custody determination generally will have exclusive, continuing jurisdiction over custody matters.” OCGA § 19-9-62 (a) provides, however, that such jurisdiction shall continue until

(1) A court of this state determines that neither the child nor the child’s parents or any person acting as a parent has a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that neither the child nor the child’s parents or any person acting as a parent presently resides in this state.

Subsection (b) of this Code section provides: “Acourt of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this Code section may modify that determination only if it has jurisdiction to make an initial determination under Code Section 19-9-61.”

Here, the superior court concluded that it lost jurisdiction pursuant to OCGA § 19-9-62 (a) (2) because “neither the child nor the parents now reside in Georgia,” finding that “the [father] lives in Virginia, [and] the [mother] lives in Florida with the child.” Once the superior court determined that OCGA § 19-9-62 (a) (2) applied, it no longer had exclusive, continuing jurisdiction under the UCCJEA. And the superior court did not have jurisdiction to modify custody under OCGA § 19-9-62 (b) because it would not have had jurisdiction to make an initial determination under OCGA § 19-9-61.

The father argues that the superior court erred by dismissing his petition because subject matter jurisdiction attached at the time he filed the modification petition, relying upon the official comment to UCCJEA § 202andcases from other jurisdictions. OCGA § 19-9-101 provides: “In applying and construing [the UCCJEA], consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.” And we have previously recognized that “[i]n accordance with this mandate, and given the relative dearth of Georgia law on this subject, we will look to the cases of other jurisdictions when appropriate to resolve the issues presented in [a case involving the UCCJEA] .” Cases of other jurisdictions and the comments are not, however, binding, particularly if they conflict with the plain wording of a Georgia statute.

Decided August 17, 2017

Garnett Harrison, Jacqueline N. Fortier, for appellant.

Joseph E. East, for appellee.

Under our well-established rules of statutory construction, we presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. In our interpretation of statutes, we thus look to the text of the provision in question and its context within the larger legal framework to discern the intent of the legislature in enacting it.

Here, the plain language of the statute provides that a Georgia court that makes an initial child custody determination generally will have continuing, exclusive jurisdiction until “[a] court of this state . . . determines that neither the child nor the child’s parents . .. presently resides in this state.” Having made such a determination and lacking jurisdiction to modify custody under OCGA § 19-9-62 (b), the superior court did not err by dismissing the father’s modification petition.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       The Georgia court found that the mother engaged in a pattern of alienation; failed to place the father’s name on school paperwork or to include him in therapy appointments; filed for an injunction in Florida to restrict the father’s visitation; and accused the father of child abuse. The court concluded that the actions filed by the mother against the father in Florida “were dismissed or found to be unsubstantiated,” and it awarded the father an additional week of summer visitation for the 2015 summer.

       OCGA § 19-9-40 et seq.

        Fish v. Fish, 266 Ga. App. 224, 225, n. 1 (596 SE2d 654) (2004).

        Hall v. Wellborn, 295 Ga.App. 884, 885 (673 SE2d 341) (2009), citing Fish, 266 Ga.App. at 226; OCGA § 19-9-62 (a).

       (Emphasis supplied.)

        See Hall, 295 Ga.App. at 886; Fish, 266 Ga.App. at 226 (“[PJursuant to [OCGA § 19-9-62 (a)], the [sjuperior [cjourt . . . retains exclusive, continuing jurisdiction over the . . . custody matter until it determines that [subsection (1) or (2)] is present.”

       OCGA § 19-9-61 (a) provides:
      [A] court of this state has jurisdiction to make an initial child custody determination only if: (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; (2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Code Section 19-9-67 or 19-9-68 and: (A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; (3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Code Section 19-9-67 or 19-9-68; or (4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3) of this subsection.
      None of these bases would provide a basis for jurisdiction in this case. We note that under OCGA § 19-9-67 (a),
      [a] court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
      The appellate record does not contain such a motion, nor does the trial court refer to it in its order.

       A portion of the comment to UCCJEA § 202 provides:
      Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding. State B would not have jurisdiction to hear a modification unless State A decided that State B was more appropriate under Section 207.

       The father cites S. K. C. v. J. L. C., 94 A3d 402 (Pa. 2014), and Wahlke v. Pierce, 392 SW3d 426 (Ky. App. 2013).

        Kogel v. Kogel, 337 Ga.App. 137, 140 (786 SE2d 518) (2016), citing Delgado v. Combs, 314 Ga. App. 419, 425 (724 SE2d 436) (2012).

       See State Farm Fire & Cas. Co. v. American Hardware Mut. Ins. Co., 224 Ga. App. 789, 792 (3) (482 SE2d 714) (1997) (“[T]he decisions of other jurisdictions are not binding on this Court and will be followed only when they are determined to be consistent with the orderly and fair development of the law of this state.”).

       (Citation and punctuation omitted.) Jackson v. Sanders, 299 Ga. 332, 334 (788 SE2d 387) (2016), quoting Deal v. Coleman, 294 Ga. 170, 172-173 (751 SE2d 337) (2013).

       OCGA § 19-9-62 (a) (2).


text:
    A17A1842.
    FRAZIER v. GODLEY PARK HOMEOWNERS ASSOCIATION, INC. et al.
    (804 SE2d 176)
   Andrews, Judge.

This appeal is from the grant of summary judgment for the defendants in an action arising out of a drowning death at a community swimming pool. We affirm.

On July 4, 2014, four-year-old King Frazier drowned in a swimming pool operated by the defendants for the residents and guests of the Godley Park residential community in Savannah, Georgia. He was at the pool with his mother and several relatives, none of whom were residents of that community But his aunt was a resident there, and although she was not there that day, she had given her relatives her pool key card so that they could access the pool.

The pool was very crowded that day, and King Frazier was under water for almost five minutes before he was discovered. Resuscitation efforts by his mother and a nurse who was at the pool failed. Emergency personnel were called, but it took them almost 20 minutes to arrive, partly due to some confusion over the address of the pool.

King Frazier’s father commenced this action against the Godley Park Homeowners’Association, Gold Crown Management, Inc., and Aaron Hettesheimer in his individual capacity as property manager for Gold Crown, blaming King Frazier’s death on their negligent management of the pool. The trial court granted summary judgment for the defendants, and this appeal followed. In granting summary judgment for the defendants/appellees, the trial court found that King Frazier was a trespasser; that the appellees had owed him only a duty of not wilfully or wantonly injuring him; that the appellees did not breach that duty; and that none of the appellees’ actions caused King Frazier’s death.

The appellant contends the trial court erred in finding King Frazier was a trespasser. We agree. The aunt who provided the pool key card for accessing the pool was a resident of the community, and as such she was an invitee. See Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811 (440 SE2d 545) (1994). And “[a] guest of a tenant is an invitee upon the premises of the landlord where he is invited by the tenant and visits him in such premises.” (Citation and punctuation omitted.) Paul v. Sharpe, 181 Ga. App. 443, 444 (1) (352 SE2d 626) (1987).

The trial court’s basis for finding King Frazier a trespasser was the homeowners’ association rules requiring that residents register before getting a pool key card, and accompany any guests invited to the pool. The aunt did neither in this case, but she claimed never to have been informed of such requirements. She also stated that she had frequently allowed her family to use her key card to gain access to the pool, and that the pool was often open and unlocked so that anyone could get in even without a key card. “An invitation may arise from known customary use, and it may be inferred from conduct or from any state of facts upon which it naturally and necessarily arises.” (Citation omitted.) Chambers v. Peacock Constr. Co., 115 Ga. App. 670, 676 (3) (155 SE2d 704) (1967).

It thus appears at least a jury question existed as to whether King Frazier was a trespasser or an invitee. However, even assuming King Frazier was an invitee, the trial court correctly concluded that the appellees were entitled to summary judgment on the grounds they had not been negligent in any fashion.

The appellant contends the appellees had been negligent in three ways: (1) by failing to have a lifeguard present; (2) by failing to have a safety rope with floats demarcating the change in slope from the beginner’s area of the pool (having a depth of three feet or less) to the shallow area of the pool (having a depth of five feet or less); and (3) by failing to post a sign displaying the pool’s address. With regard to the need for a lifeguard, it was undisputed that the appellees posted signs at the pool that no lifeguard was present, and that the applicable safety regulations for swimming pools did not require the provision of a lifeguard for the type of pool maintained by the appellees at Godley Park.

The Godley Park pool was a zero depth entry pool, having the same gradual slope starting from zero feet at the edge of the pool to the deepest part (with a depth of five feet). Chapter 290-5-57-.05 (4) (b) of the Chatham County Department of Public Health regulations for swimming pools requires flotation lines at “[t]he transition point or point of slope change of the pool from the beginners’ area to the shallow area and from the shallow area to the deep area. . . (Emphasis supplied.) As there was no change in the slope or break in grade at any point in the gradual slope of the Godley Park pool, the Chatham County swimming pool inspectors found that regulation inapplicable to a zero depth entry pool and that no flotation line was required. Likewise, both the district environmental health director for the coastal health district and a licensed instructor for the National Swimming Pool Foundation’s Certified Pool and Spa Operator’s Course indicated the applicable rules and regulations for swimming pools did not require a flotation line for the configuration and depth of the Godley Park pool.

The appellant adduced the deposition testimony of an expert who interpreted that regulation as requiring a flotation line at the three feet level of the Godley Park pool, where the beginners’ area ended and the shallow area began. However, the appellant’s expert’s interpretation of the regulation was mistaken, as the regulation clearly applies only where there is a transitional change in slope of the pool’s floor.

The appellees maintained an emergency land-line phone station at the entry area of the pool. At the time of the incident, there was no address posted by the emergency phone. The pool’s street address was posted at the street. After King Frazier was retrieved from the pool, several observers called 911 on cell phones, and did not use the land-line emergency phone which would have indicated the exact address to the 911 operator.

Decided August 17, 2017.

The Suggs Law Firm, Eldridge Suggs TV, for appellant.

The appellant contends the possible confusion over the correct address related to the 911 operator, which might have been avoided if the appellees had posted the pool’s address by the emergency phone, may have contributed to the late arrival of the emergency responders. However, according to the appellees’ expert who was a licensed instructor for the National Swimming Pool Foundation’s Certified Pool and Spa Operator’s Course, Godley Park’s signage was code compliant; Godley Park was not required to post an address at the pool’s location, and the street signage properly displayed the street address.

Moreover, the evidence was undisputed that the arrival time of the emergency responders had no bearing on King Frazier’s death. The doctor who performed an autopsy on the child testified that it was unlikely he could have been resuscitated after being under water for four minutes. Even the appellant’s own swimming pool expert was of the opinion it served no purpose to criticize the adequacy of the rescue efforts, because by the time the child was discovered at the bottom of the pool, it was way too late. So any delay in arrival time of the emergency responders did not contribute to King Frazier’s death.

“An owner of a swimming pool is not an insurer of its safety but is liable for injury only if its negligence was the proximate cause of the injury.” (Citation omitted.) Plantation at Lenox Unit Owners’ Assn. v. Lee, 196 Ga. App. 420, 423 (395 SE2d 817) (1990). “Regardless of the age or capacity of the injured person, if there is no breach of any legal duty on the part of the defendant toward such person, there can be no legal liability” (Citation and punctuation omitted.) Winchester v. Sun Valley-Atlanta Assocs., 206 Ga. App. 140, 142 (424 SE2d 85) (1992). In the instant case, even if King Frazier were considered an invitee and the appellees owed him a duty of ordinary care, the evidence of record failed to show any type of negligence on the part of the appellees that contributed to his drowning death. Rather, as indicated in the report by the police officer who investigated the incident, the evidence showed “lack of proper adult supervision.”

Accordingly, the trial court properly granted summary judgment for the appellees.

Judgment affirmed.

Ellington, P. J., concurs. Rickman, J., concurs in judgment only.

Barrow & Ballew, Walter W. Ballew III, for appellees.


author: Self, Judge.

text:
    A17A0949.
    WORTHEN v. THE STATE.
    (804 SE2d 139)
   Self, Judge.

Tobias Worthen appeals from his convictions for insurance fraud, two counts of theft by deception, making a false statement, and false report of a crime. In related enumerations of error, Worthen complains about various waivers of his rights that occurred after he absconded during the middle of his trial. He also argues that he is entitled to a new trial based upon the absence of a complete trial transcript. For the reasons explained below, we disagree and affirm.

The record shows that Worthen’s trial began on March 31, 2015, with a senior judge presiding. On the fourth day of trial, Worthen failed to return to court, and the trial court issued a bench warrant for his arrest. The trial continued in his absence, and the jury found him guilty of all charges. On April 6, 2015, the senior judge sentenced Worthen to serve a total of 27 years. On April 10, 2015, Worthen’s trial counsel filed a motion for new trial asserting the general grounds, along with a request for a trial transcript on the grounds that Worthen was indigent and represented by the Clayton County Public Defender’s Office.

On April 14, 2015, a different judge signed an order prepared by Worthen’s counsel which granted his request for a transcript at public expense. The first sentence of the order incorrectly stated that Worthen “continues to be indigent and incarcerated after being sentenced by this Court on April 6, 2015,” when in fact Worthen “remained an unapprehended fugitive until May 1, 2016 — more than a year following his conviction.” (Emphasis supplied.) After learning that Worthen had absconded during a trial over which the senior judge had presided, the judge set aside her order granting a transcript and denied a subsequent request by Worthen for a free transcript.

On May 25,2016, the trial court held a status conference in which counsel for both parties and Worthen were present. In this conference, the trial court “informed the parties that it appeared that the Defendant’s Motion for New Trial was subject to dismissal due to its having been filed while the Defendant was a fugitive.” After giving Worthen an opportunity to file briefs on the issue, the trial court dismissed the April 10, 2015 motion for new trial based upon Worth-en’s absence. Worthen then filed a timely notice of appeal from this order.

1. Worthen contends that there was no valid waiver of his right to be present at sentencing, arguing that the State failed to prove a “valid, intelligent and knowing waiver.” In Worthen’s view, the State must prove that he knew he was waiving his right to be present at sentencing if he absented himself from the trial. We disagree. It is well established that if a trial has begun in the defendant’s presence and he voluntarily absents himself, “this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.” (Citation and punctuation omitted.) Taylor v. United States, 414 U. S. 17, 19 (94 SCt 194, 38 LE2d 174) (1973). See also Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975) (finding no violation of right to be present where defendant “voluntarily absents himself from the trial”).

2. In related enumerations of error, Worthen claims that his trial counsel was authorized to file a timely motion for new trial during his absence, that there was no valid waiver of his post-conviction rights, that the trial court’s failure to consider the merits of his motion for new trial violated his due process rights under the state and federal constitutions, and that his motion for new trial was not subject to dismissal because he was back in custody by the time the trial court dismissed it. As the State correctly asserts in its brief, longstanding authority precludes these claims.

Commonly known as the “fugitive disentitlement doctrine,” this equitable doctrine limits access to courts by fugitives from justice. Fed. Deposit Ins. Corp. v. Pharaon, 178 F3d 1159, 1161 (II) (11th Cir. 1999). “Aside from the difficulty of enforcing a judgment against a fugitive, other rationales underlying the doctrine include promoting the efficient operation of the courts, discouraging flights from justice, and avoiding prejudice to the other side caused by the appellant’s fugitive status.” Pesin v. Rodriguez, 244 F3d 1250, 1253 (11th Cir. 2001). See also Harper v. State, 300 Ga. App. 25, 28 (684 SE2d 96) (2009).

In Harper, supra, we addressed nearly identical facts and claims. The defendant in that case became a fugitive during his trial, the trial court issued a bench warrant for his arrest, the trial proceeded without him, and he was sentenced in absentia. 300 Ga. App. at 26. His trial counsel filed a timely motion for new trial in his absence in an attempt to preserve his right to a direct appeal. Id. at 26-27. After the State filed a motion to dismiss the motion for new trial and before the trial court ruled upon it, the defendant was captured. Id. A few days later, the trial court dismissed the motion for new trial. Id. at 27.

We affirmed, explaining: “Georgia law is clear . . . that where a defendant becomes a fugitive before filing any post-conviction motions and then remains a fugitive during the time in which he could assert such a motion, he waives his right to seek post-conviction relief.” Harper, 300 Ga. App. at 27. And, “[a]s the Supreme Court of Georgia explained over a century ago, a fugitive defendant does not have ‘a right to appear by counsel until he has returned into custody.’ ” (Citation and punctuation omitted.) Id. at 28. Additionally, no due process violations are implicated in dismissals under this doctrine. See Goeke v. Branch, 514 U. S. 115, 118-119 (115 SCt 1275, 131 LE2d 152) (1995); Allen v. Georgia, 166 U. S. 138 (17 SCt 525, 41 LE 949) (1897); Brown v. Ricketts, 235 Ga. 29 (218 SE2d 785) (1975). Finally, the fact that Worthen was captured before the trial court dismissed the motion for new trial filed by his attorney does not preclude its application. As we held in Harper, supra, Worthen waived his right to seek a new trial “[b]ecause [he] remained a fugitive during the entire time in which he could have filed a motion for new trial.” 300 Ga. App. at 28.

3. Worthen argues that the General Assembly’s 1980 enactment of a statute making bail jumping a crime, OCGA § 16-10-51, means “the prior judicially-created penalty is no longer available.” We disagree.

It is well established “that, to the extent that statutory text can be as reasonably understood to conform to the common law as to depart from it, the courts usually presume that the legislature meant to adhere to the common law.” (Citation and punctuation omitted.) Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 591 (2) (761 SE2d 332) (2014). As nothing in the plain language of the statute criminalizing bail jumping can be viewed as superseding the equitable common law doctrine of fugitive disentitlement, and no inconsistencies exist between the common law and the statute, Worthen’s argument has no merit. Id. at 593 (2) (common law consistent with and not supersededby statute); Culpepper v. Veal, 246 Ga. 563, 564 (272 SE2d 253) (1980) (rejecting argument that statute superseded common law).

Worthen’s argument that as a penal statute, OCGA § 16-10-51 should be construed in his favor misses its mark. The rule of lenity requires a court to interpret an ambiguous criminal statute in favor of the defendant. See Banta v. State, 281 Ga. 615, 617-618 (2) (642 SE2d 51) (2007) (“rule of lenity... applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute”) (citation and punctuation omitted). As no ambiguity exists in this case, the rule of lenity does not apply.

Decided August 3, 2017

Reconsideration denied August 22, 2017

John W. Kraus, for appellant.

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

4. In his remaining enumeration of error, Worthen asserts that he is entitled to a new trial based upon “[t]he absence of a complete transcript.” We disagree. The authorities cited by Worthen in support of this claim of error involve the lack of a complete transcript in pending appeals where the defendant had not been a fugitive. See, e.g., Sheard v. State, 300 Ga. 117, 119-120 (2) (793 SE2d 386) (2016). Based upon our decision to affirm the trial court’s decision to dismiss the motion for new trial filed by Worthen’s counsel, the lack of a complete trial transcript is moot and does not entitle him to a new trial. See Lewis v. Duckworth, 680 F2d 508, 509 (7th Cir. 1982).

Judgment affirmed.

Dillard, C. J., and Ray, R J., concur.

       See, e.g., State v. Wood, 338 Ga. App. 181, 186 (2) (790 SE2d 84) (2016).


author: Dillard, Chief Judge.

text:
    A17A1128.
    GUNN v. THE STATE.
    (804 SE2d 118)
   Dillard, Chief Judge.

Following a trial by jury, Kenneth Bernard Gunn was convicted of trafficking cocaine, possessing cocaine with the intent to distribute, and possessing a firearm as a convicted felon. Gunn appeals from these convictions, arguing that the trial court erred by (1) admitting “other acts” evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”); (2) denying a motion to suppress his statement to law enforcement when he had used cocaine prior to his interview; (3) failing to grant a mistrial after learning that the State’s witnesses violated the rule of sequestration; and (4) failing to grant a new trial when trial counsel rendered ineffective assistance by stating that he was on probation, thereby putting his character at issue. For the reasons set forth infra, we affirm.

At the outset, before addressing his enumerations of error, we note that Gunn previously filed an appeal with this Court (Case No. A17A0244), which was dismissed for failure to timely file an appellate brief. The present appeal follows a consent-order granting Gunn’s subsequent motion for out-of-time appeal in the trial court. In the present notice of appeal, Gunn indicates that the clerk should omit nothing from the appeal and that a transcript of evidence and proceeding will be filed for inclusion in the record on appeal. But the electronic record for the current appeal is limited to filings relevant to the case after the dismissal of the prior appeal, which contained a lengthy electronic record. And Gunn has not indicated an intention to rely upon the record and transcript from the previously filed appeal. Nevertheless, this Court—having noticed the existence of the electronic record in the related case number—has reviewed the previously filed record to address Gunn’s enumerations of error.

We take this opportunity to, once again, remind appellants that the burden is upon them to ensure that a complete record is transmitted to this Court for review in every appeal and to notify this Court of their intent to rely upon a previously transmitted record or transcript, including any audio- or video-recorded exhibits.

Turning now to Gunn’s contentions on appeal, and viewed in the light most favorable to the jury’s verdict, the record reflects that on February 8, 2012, the Gwinnett County SWAT team and Narcotics Unit executed a “no knock” warrant at a mobile home where Gunn and a co-defendant were occupants. In the search that followed, officers located miscellaneous loose pills and sets of digital scales with white powdery residue in the kitchen area; chunks of crack cocaine on the floor of the dining area; drug paraphernalia in the living room area with cocaine residue on the coffee table; and chunks of cocaine, baggies associated with packaging narcotics, and a loaded handgun in one of three bedrooms. In total, officers seized 35.01 grams of cocaine with 53.4 percent purity from the residence, worth an estimated $3,500—an amount of drugs consistent with an intent to distribute. And in addition to the drugs and the distribution-related paraphernalia (i.e., digital scales, large amounts of sandwich baggies, smaller baggies) found throughout the home, in the kitchen area, Gunn’s name was found on a piece of mail sent to the mobile home’s address. Elsewhere, officers located receipts that also reflected Gunn’s name.

Following his arrest, and while still in the mobile home, Gunn gave a videotaped statement to law enforcement, and he was photographed. The photograph of Gunn depicts what appears to be a white powder substance in his nostrils, although law enforcement did not conduct testing to confirm the nature of the substance.

Gunn was subsequently indicted for and convicted of the offenses set forth supra. He filed a motion for new trial, which was denied. This appeal follows.

1. First, Gunn asserts that the trial court erred by admitting “other acts” evidence under Rule 404 (b). We disagree.

The record reflects that prior to trial, the State gave Gunn notice of its intent to present evidence of a 2001 conviction for possession of cocaine with the intent to distribute. And in a pretrial hearing, the State proffered that an officer would testify to stopping Gunn’s vehicle and, upon a search incident to arrest for providing a false name, finding in Gunn’s groin area three grams of cocaine and a packet of small plastic baggies typically used to package cocaine. Gunn objected to the admission of this evidence on the basis that it was not similar to the facts at issue in the current case and due to the lapse of time from 2001 until the time of the charged offenses. But after taking the matter under advisement, the trial court ultimately ruled that it would admit the evidence because Rule 404 (b) “is a law of inclusion rather than exclusion” and because the court found that the evidence could be appropriately admitted to show motive, intent, and knowledge.

At trial, the trial court maintained its earlier ruling after hearing a proffer from the officer, who clarified that during the traffic stop, he observed Gunn take something from “his backside” and then “stuff[ it into his crotch[,]” and, therefore, upon reaching the jail, he ordered and observed a strip search of Gunn that revealed a cellophane wrapper containing 3.5 grams of crack cocaine in his genital area. Previously, during Gunn’s arrest, the officer located in Gunn’s pocket approximately 30 small plastic baggies. And the State subsequently presented the same testimony by the officer to the jury before presenting a certified copy of Gunn’s conviction for the 2001 incident following a guilty plea. Prior to this testimony, the trial court instructed the jury as follows:

[Sjometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose for which the evidence is limited and not for any other purpose.
In order to prove its case, the State must show intent, must show knowledge, and may show motive. To do so, the State is about to offer evidence of other crimes allegedly committed by the accused. You are permitted to consider that evidence only insofar as it may relate to those issues and not for any other purpose. You may not infer from such evidence that the defendant is of a character that would commit the crimes alleged in this case.

The court repeated this charge to the jury just prior to deliberations, and it expounded upon same.

Gunn asserts that the trial court erred in admitting this “other acts” evidence because the 2001 incident was factually dissimilar and because of the time span between 2001 and the events in 2012.

Rule 404 (b) provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Nevertheless, even evidence that is offered for a proper purpose under Rule 404 (b) maybe excluded under OCGA § 24-4-403 (“Rule 403”) if the evidence’s “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

The Supreme Court of Georgia has adopted a three-part test by which we evaluate the admissibility of so-called “other acts” evidence. Under that test, “(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.” As to the first factor, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” And as to the second factor, even if Rule 404 (b) evidence is relevant, we must decide whether “the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403.” Of course, application of the Rule 403 balancing test is “a matter committed principally to the discretion of the trial courts, but as we have explained before, the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly.” Finally, on appeal, we review the admission of Rule 404 (b) evidence “for a clear abuse of discretion, a review requiring the appellate court to make a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.”

Here, Gunn has failed to establish that the trial court abused its discretion by admitting evidence of his 2001 conviction for possessing cocaine with the intent to distribute same when he placed his intent in issue by pleading not guilty to the charges of trafficking in cocaine and possessing cocaine with the intent to distribute. Additionally, Gunn did nothing to remove intent as an issue and, indeed, as discussed in Division 2 infra, he told law enforcement that he did not live in the house throughout which the drugs and drug-distribution paraphernalia were found. And because Gunn’s participation in the earlier crime required the same intent as the charged crimes, the evidence of the earlier other act was relevant.

As for the time span between the two incidents (2001 to 2012), Gunn provides no citation to authority to support his assertion that such a span in time is too remote for admissibility. Instead, given precedent from the Eleventh Circuit Court of Appeals (to which we may look when construing the provisions in our new Evidence Code), we hold that under the facts of this case, this temporal nexus was not too remote to erode the probative value of the prior conviction. Accordingly, this enumeration of error is without merit.

2. Next, Gunn argues that the trial court erred by denying a motion to suppress his statement to law enforcement when he used cocaine prior to the interview. Again, we disagree.

At the pretrial hearing held under Jackson v. Denno, the law enforcement agent who interviewed Gunn testified that he was taken into custody at the time the search was performed; that when the search was performed, Gunn had a white, powdery residue in his nose that appeared to be cocaine, although this was not noticed until after Gunn was interviewed; that Gunn “seemed like he knew what was going on” and his faculties appeared to be intact; that Gunn was advised of his Miranda rights; that Gunn was not coerced or threatened; that Gunn was not offered any hope of benefit or reward in order to speak; and that Gunn voluntarily spoke to her after being advised of his rights. In the brief interview, Gunn told the law-enforcement officer that he “didn’t stay at the house” and that she should “just take him in.” After hearing the officer’s testimony and viewing a video recording of the interview, the trial court denied Gunn’s motion to suppress, finding that Gunn’s statement was freely and voluntarily given, that Gunn knowingly and intelligently waived his Miranda rights, and that there was no fear of injury or hope of benefit.

When a trial court rules upon the admissibility of a custodial statement, the court must determine whether, “based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily.” And unless clearly erroneous, a trial court’s findings as to “factual deter - minations and credibility relating to the admissibility of the defendant’s statement at a Jackson u. Denno hearing will be upheld on appeal.” Here, based upon the foregoing evidence and testimony, we find the trial court was authorized to conclude that Gunn gave a voluntary statement and made a knowing and intelligent waiver of his Miranda rights. Accordingly, the trial court did not err in admitting the custodial statement.

3. In his final two enumerations of error, Gunn argues that the trial court erred by (1) failing to grant a mistrial after learning that the State’s witnesses violated the rule of sequestration, and (2) failing to grant a new trial when trial counsel was ineffective by stating that Gunn was on probation, thereby placing his character in issue. But we do not address these contentions because Gunn has abandoned them for appellate review.

In both enumerations of error, beyond one or two case citations to the most basic legal authority as to the purposes of the rule of sequestration and the standard applied to claims of ineffective assistance of counsel, Gunn provides no authority in support of his specific contentions as to how and why the trial court committed error in these instances. Instead, his “arguments” are reduced to single paragraphs in both enumerations, which largely focus on the factual allegations of what occurred at trial and omit any meaningful appellate argument beyond mere conclusory statements of error. But as we have previously emphasized, under the rules of this Court, “an appellant must support enumerations of error with argument and citation of authority,” and “mere conclusory statements are not the type of meaningful argument contemplated by our rules.” Thus, Gunn has abandoned these final enumerations of error, and we will not address them.

Decided August 2, 2017

Reconsideration denied August 23, 2017

Teri L. Thompson, for appellant.

Daniel J. Porter, District Attorney, Samantha Routh, Bruce E. Roberts, Assistant District Attorneys, for appellee.

Accordingly, for these reasons, we affirm the trial court’s denial of Gunn’s motion for new trial.

Judgment affirmed.

Ray, P J., and Self, J., concur.

       The trial court merged the conviction for possession with intent to distribute with the conviction for trafficking cocaine for purposes of sentencing.

        See Case No. A17A0244 (Nov. 4, 2016).

       The State filed a motion to supplement the record with the transcript of the jury trial proceedings. But because the transcript was previously transmitted to this Court in Case No. Al 7A0244, and because this Court noticed and reviewed same, the State’s motion is moot. See, e.g., Cherry v. Moreton Rolleston, Jr. Living Trust, 273 Ga. App. 876, 878 n.4 (616 SE2d 157) (2005).

        See Holman v. State, 329 Ga. App. 393, 396-97 (1) (765 SE2d 614) (2014) (holdingthat it is the appellant’s burden to notify this Court if he intends to rely upon a transcript in a previously filed appeal, and noting that “to the extent [the appellant] wished to rely upon the transcript transmitted by the trial court in the prior appeal . . . , he had a duty under OCGA § 5-6-37 to specify in the notice of appeal that he was not requesting the transmission of the transcript in this appeal because one had previously been transmitted in a prior appeal and was already on hold at the Court”).

        See Court of Appeals Rule 18 (b) (“When the notice of appeal directs that transcripts of a trial or a hearing be included in the record, copies of all video or audio recordings that were introduced into evidence shall be transmitted to this Court along with the trial or hearing transcript. It shall be the responsibility of the party tendering the recordings at a trial or a hearing to ensure that a copy of the recording is included in the trial court record; however, it is the burden of the appealing party to ensure that a complete record is transmitted to this Court on appeal, including the transmission of video or audio recordings. If a transcript of a trial or a hearing is designated as part of the appellate record, the clerk of the trial court shall then include the copy of the recording in the appellate record transmitted to this Court. If a copy of a recording played at a trial or a hearing is not included with the transcript designated to be transmitted in the appellate record, this Court may take whatever action is necessary in order to ensure completion of the record, including, but not limited to, issuing a show-cause order requiring an explanation of its absence. The appellant’s failure to complete the record may also result in this Court declining to consider enumerations of error related to the missing evidence.”).

        See, e.g., Sowell v. State, 327 Ga. App. 532, 534 (759 SE2d 602) (2014).

       It is undisputed that the co-defendant passed away prior to trial.

       The person to whom the property was leased testified that Gunn lived at several different places, including the property; that the co-defendant, to her knowledge, did not live at the property; and that Gunn would come and go from the property.

       We note that Gunn does not challenge the sufficiency of the evidence . See Dixon v. State, 224 Ga. 636, 637 (1) (163 SE2d 737) (1968) (“The only question presented by the motion for new trial, as amended, which is not specifically raisedby the enumeration of errors is the sufficiency of the evidence to support the conviction. No argument has been made on this issue, and it will be considered as abandoned.”); Treadwell v. State, 272 Ga. App. 508, 510 (1) n.4 (613 SE2d 3) (2005) (“[Defendant] presents no argument as to the sufficiency of the evidence supporting his conviction for possessing cocaine, and thus has abandoned such claim.”).

       We note that Georgia’s new Evidence Code applies to this case because Gunn was tried in 2014. See Ga. L. 2011, pp. 99, 214, § 101 (providingthat Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

        See, e.g., State v. Frost, 297 Ga. 296, 300 (773 SE2d 700) (2015) (explaining that Rule 404 (b) is “an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered into evidence” (punctuation omitted)); State v. Jones, 297 Ga. 156, 159-60 (2) (773 SE2d 170) (2015) (same); see also United States v. Moody, 763 FSupp. 589, 598 (IV) (M.D. Ga. 1991) (“In this Circuit, the rule is one of ‘inclusion’ regarding Rule 404 (b) evidence, for the balance is struck in favor of admissibility.”).

        See OCGA § 24-4-404 (b) (“Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”).

       OCGA § 24-4-404 (b); accord Smart v. State, 299 Ga. 414, 417 (2) (788 SE2d 442) (2016).

       OCGA § 24-4-403 (b); accord Smart, 299 Ga. at 417 (2); Morris v. State, 340 Ga. App. 295, 305 (4) (797 SE2d 207) (2017). See generally Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 130 (5th ed. 2016) (“Evaluating the balance between probativity and prejudice under Rule 403 calls for a commonsense assessment of all the circumstances surrounding the other act, including [the] proponent’s need for the [Rule 404 (b)] evidence, the overall similarity between the extrinsic act and the offense at issue, and the temporal proximity of the two.”).

        Smart, 299 Ga. at 417 (2); Morris, 340 Ga. App. at 306 (4). See generally Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (adopting the three-part test used by the Eleventh Circuit Court of Appeals in evaluating such evidence pursuant to the Federal Rules of Evidence, upon which Georgia’s new Evidence Code is modeled).

        Smart, 299 Ga. at 417 (2) (punctuation omitted) (quoting United States v. Ellisor, 522 F3d 1255, 1267 (II) (A) (11th Cir. 2008)); accord Morris, 340 Ga. App. at 306 (4). We note that Gunn does not challenge the third prong, and the State presented evidence to show that Gunn was convicted of the crimes relevant to the Rule 404 (b) evidence when he pleaded guilty to same.

       OCGA § 24-4-401; accord Smart, 299 Ga. at 418 (2) (a); Morris, 340 Ga. App. at 306 (4).

        Smart, 299 Ga. at 418 (2) (b) (punctuation omitted); accord Jones, 297 Ga. at 159 (1); Morris, 340 Ga. App. at 306 (4).

        Smart, 299 Ga. at 418 (2) (b) (punctuation omitted); accord Morris, 340 Ga. App. at 306 (4).

        Graham v. State, 337 Ga. App. 664, 669 (2) (788 SE2d 555) (2016) (punctuation omitted); accord Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016); Morris, 340 Ga.App. at 307 (4); see also United States v. Matthews, 431 F3d 1296, 1312 (V) (11th Cir. 2005) (“While this panel may have decided the issue differently, particularly given the lack of similarity and the extended period of time between the offenses, we cannot say that the trial court’s decision to [admit the evidence] constituted such a clear error of judgment as to amount to an abuse of discretion.”); United States v. Frazier, 387 F3d 1244, 1259 (II) (11th Cir. 2004) (en banc) (“[W]hen employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.”).

        See Parks v. State, 300 Ga. 303, 307 (2) (794 SE2d 623) (2016) (“We have held that intent is put at issue any time a defendant pleads not guilty and so evidence that goes to prove intent would be relevant.”); see also United States v. Taylor, 618 Fed. Appx. 969, 972 (I) (B) (11th Cir. 2015) (holding that not-guilty plea to charge of possession with intent to distribute made intent a material issue and that evidence of prior conviction was highly probative of intent); United States v. Green, 40 F3d 1167, 1174-75 (11th Cir. 1994) (holding that district court did not abuse its discretion by admitting evidence of prior arrest for possession of distributable amount of cocaine when “ [t] he challenged act involved the same mental state as the charged crime because both incidents involved possession of the same illicit drug, cocaine” and, thus, district court “properly admitted similar act evidence of the prior arrest for possession of a distributable quantity of cocaine base to establish intent where [defendant] pleaded not guilty, placing intent in issue, and where intent is an element of the crime charged, in this case, possession with intent to distribute”). Cf. Parks, 300 Ga. at 307 (2) (holding that other acts evidence was not admissible to prove intent, despite a not-guilty plea, when defendant admitted to shooting victim but claimed that he did so in self-defense, making the only factual issue the reason for the admitted act, and noting that “[t]he fact that the defendant had committed an assault on another person 24 years earlier had nothing to do with his reason for—his intent in—shooting the victim” because “[a]ll that the evidence of the prior conviction of assault could possibly show was the defendant’s propensity to commit assaults on other persons or his general propensity to commit violent crimes” (punctuation omitted)).

        See Hood v. State, 299 Ga. 95, 102 (4) (786 SE2d 648) (2016) (acknowledging that a defendant may sometimes remove intent as an issue at trial but declining to accept appellant’s assertion that a rejected stipulation as to intent would eliminate the relevance of other acts evidence introduced to prove same); see also Jones, 297 Ga. at 161 (2) n.4 (“[A] defendant puts his intent in issue when he pleads not guilty unless he takes affirmative steps to withdraw intent as an element to be proved by the State.”).

        See Jones v. State, 299 Ga. 377, 383 (4) (788 SE2d 477) (2016) (“As appellant’s participation in the earlier crimes required the same intent as the charged [crime], the evidence of these other acts was relevant.”); Graham, 337 Ga.App. at 669 (2) (“Evidence of these other acts, which involved the same sort of intent as required to prove the [charged crime] here and had a tendency to prove such intent, was relevant and satisfied the first requirement for admission.”).

        See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

        See Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016) (“Many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when we consider the meaning of these provisions, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit. Rule 404 (b) is one such provision, and so, when we have considered the meaning of Rule 404 (b), we consistently have looked for guidance in the decisions of the federal appellate courts construing and applying Federal Rule of Evidence 404 (b).” (citations omitted)).

        See United States v. LeCroy, 441 F3d 914, 926 (II) (E) (11th Cir. 2006) (holding that ten-year time period between “other acts” evidence and charged offense was not too remote); United States v. Lampley, 68 F3d 1296, 1300 (A) (11th Cir. 1995) (holding that district court did not abuse its discretion by admitting “other acts” evidence of drug dealings that took place 15 years before the offense in issue); see also Taylor, 618 Fed. Appx. at 971-972 (I) (B) (relying upon Lampley to hold that nine-year temporal nexus was not too remote in time to have probative value); United States v. Jones, 550 FSupp.2d 1377, 1380 (II) (S.D. Fla. 2008) (looking to precedent from Eleventh Circuit to determine that probative value was not eroded by approximately eight-year temporal nexus). Cf. United States v. Sanders, 668 F3d 1298, 1315 (III) (B) (11th Cir. 2012) (declining to establish bright-line rule for when “other acts” evidence is too old to be admissible, but holding that trial court abused its discretion by admitting evidence of 22-year-old conviction for street-level sale of 1.4 grams of marijuana in trial on charges of international conspiracy to traffic 153 kilograms of cocaine).

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

        See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       The officer repeated these assertions in her testimony at trial.

        Bell v. State, 284 Ga. 790, 794 (2) (671 SE2d 815) (2009) (punctuation omitted); accord Roberts v. State, 282 Ga. 548, 548 (2) (651 SE2d 689) (2007).

        Bell, 294 Ga. at 794 (2) (punctuation omitted); accord Roberts, 282 Ga. at 548-49 (2).

        See Wallace v. State, 296 Ga. 388, 390 (3) (768 SE2d 480) (2015) (holdingthat despite the fact that defendant told detective he had used cocaine a few hours before providing statement, in light of detective’s testimony that defendant “did not appear to be under the influence of cocaine or any other drugs, alcohol, or medication, that he appeared to understand his rights and waived them orally, and that he was coherent and answered questions appropriately,” trial court did not err in admitting statement); Garcia v. State, 267 Ga. 257, 258 (5) (477 SE2d 112) (1996) (rejecting claim that custodial statement was inadmissible when given under the influence of cocaine because “the evidence adduced at [the] hearing authorized the finding that [defendant] freely and voluntarily gave the statement”); Philmore v. State, 263 Ga. 67, 68 (2) (428 SE2d 329) (1993) (holding that, based upon officers’ testimony regarding defendant’s demeanor during interview, trial court was authorized to conclude that statement was voluntary “even assuming [defendant] had earlier used cocaine and was still under that drug’s effect during the interview”); see also Norton v. State, 293 Ga. 332, 335 (2) (745 SE2d 630) (2013) (“The mere fact that [defendant] may have been somewhat intoxicated at the time of the interview does not automatically render evidence thereof inadmissible.”); Jones v. State, 285 Ga. 328, 329 (2) (676 SE2d 225) (2009) (“The mere fact that appellant was intoxicated at the time of the statements does not automatically render them inadmissible.”).

        Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106) (2014); see Court of Appeals Rule 25 (a) (3) (providing that part three of appellant’s brief “shall contain the argument and citation of authorities” and “a concise statement of the applicable standard of review with supporting authority for each issue presented in the brief”); see also Court of Appeals Rule 25 (c) (2) (providing that “[a]ny enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned”).

        Brittain, 329 Ga. App. at 704 (4) (a) (punctuation omitted); accord Davenport v. State, 308 Ga. App. 140, 156 (2) (e) (706 SE2d 757) (2011); Towry v. State, 304 Ga. App. 139, 148 (2) (g) n.7 (695 SE2d 683) (2010).

        See Humphrey v. Riley, 291 Ga. 534, 544 (II) (1) (731 SE2d 740) (2012) (deeming portions of ineffective-assistance-of-counsel argument abandoned when several claims were “not supported by specific citation or argument” in violation of Ga. Supreme Court Rule 22); Brittain, 329 Ga. App. at 704 (4) (a) (deeming arguments abandoned by failure to provide citation to authority and/or meaningful argument as contemplated by Court Rules); Patterson v. State, 327 Ga. App. 695, 698 (3) (761 SE2d 101) (2014) (deeming arguments of ineffective assistance abandoned when alleged errors were not “supported with any further argument, citations to the record, or legal authority”); Wynn v. State, 322 Ga. App. 66, 71 (4) (b) (744 SE2d 64) (2013) (deeming portions of argument abandoned when they were “not supported by specific citation or argument”); see also Stephen Louis A. Dillard, Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals, 68 Mercer L. Rev. 1, 7 (II) (2016) (“The quickest way to sabotage your appeal is to fail to substantiate legal arguments or key factual or procedural assertions.”).