text:
    A16A0353.
    TERRY et al. v. CATHERALL et al.
    (789 SE2d 218)
   Boggs, Judge.

This appeal involves a controversy over surface water runoff between adjoining property owners. John Terry and Karen Correnty (“plaintiffs”) appeal from the trial court’s order granting summary judgment in favor of Leigh Catherall and Edie and Gillespie Smith (collectively “defendants”). The plaintiffs contend that the trial court erred in concluding that they had failed to create a genuine issue of material fact as to whether the defendants artificially increased water runoff from their property onto the plaintiffs’ adjoining property. They also assert that the defendants were not entitled to summary judgment on their claims for punitive damages, attorney fees and a permanent injunction. For the reasons explained below, we reverse the trial court’s grant of summary judgment to the defendants on the plaintiffs’ nuisance claim and remand this case with the instruction that the trial court rule on the issues of punitive damages, attorney fees, and permanent injunction.

“[I]n reviewing this summary judgment case, we must construe all evidence in favor of the nonmovant and need only determine whether some competent evidence supported plaintiff’s claim, not whether all evidence supported that claim.” (Emphasis in original.) Rodrigues v. Ga.-Pacific Corp., 290 Ga. App. 442, 447 (661 SE2d 141) (2008) (on motion for reconsideration). The following facts are undisputed: the plaintiffs moved into their home in October 2011; Catherall’s home is partially behind and uphill from the plaintiffs’ home; the Smiths’ home is adjacent to Catherall’s home and also partially behind and uphill from the plaintiffs’ home; wood fences separate the plaintiffs’ property from the defendants’ property; the Smiths built an addition to their home in 1970 and they added a parking pad for a recreational vehicle in 2006; Catherall added a garage, additional driveway, and parking area in 1996 and a flagstone patio in 2007.

After purchasing the home in 2011, Terry noticed water coming from the defendants’ lots onto his property. In particular, he observed water coming from a pipe embedded in the Smiths’ parking pad onto his property during a rainstorm. He described the water as “[c]oming out of a pipe that’s attached to the parking pad about three feet before it hit the ground” with “the trajectory of the water coming out of the pipe . . . about three feet away from the wall for the parking pad.” Terry testified that the water from this pipe goes “straight to [his] property” On one occasion, Terry observed water coming from the pipe onto his property while Mr. Smith was washing his motor home. Terry also testified that a great volume of water runs from the southwest corner of the Smiths’ patio roof.

With regard to Catherall’s property, Terry observed collected rainwater coming from two pipes near a parking pad on the northwest side of the Catherall house onto his property He described the water coming out of the pipes “like a fire hose” during a heavy rain. He also testified that water from Catherall’s patio and three-car garage is directed onto a different neighbor’s property and then flows through to his property based on his observations after the Cather-all’s driveway was pressure-washed.

The owner of a landscaping company with expertise in drainage and landscaping testified that he observed water coming under a fence from the Catherall property “like a fire hose.” He could tell water came from the Catherall property onto another neighbor’s property before taking a turn onto the plaintiffs’ property because “[t]here was a defined ditch through the yard where the vegetation had died and . . . you could see the water. I mean it was active like a river literally running straight under the fence.” He also observed water coming from the Smiths’ property into the plaintiffs’ yard. He testified that the Smiths and Catherall could help mitigate water runoff to the plaintiffs’ property by planting monkey grass along the fence to reduce the speed of the water. In his opinion, the improvements made to the defendants’ properties significantly increased the water runoff, but he did not do any water volume or velocity calculations. He testified that “adding impervious . . . areas increases velocity and water flow.” He admitted that he did not have any knowledge of the drainage pattern on the defendants’ properties before they added improvements.

The plaintiffs retained an expert witness, Dr. James Spotts, who has a master’s degree in agronomy and a Ph.D. in soil physics. Dr. Spotts inspected the properties at issue and identified several specific locations where water from the defendants’ properties flowed under the wood fences onto the plaintiffs’ property. The water leaving the Smiths’ property did not pass “under the fence uniformly over its entire length.” He saw a drainage channel from the Smiths’ drain pipe and parking pad that “directed the water . . . toward the Terry property” He also observed that the Smiths did not have pads under the gutter downspouts “to absorb the impact energy of the water as it came down.” Additionally, he noticed where the water exited the Catherall property onto the adjoining neighbor’s land and then turned to the right onto the plaintiffs’ property

He obtained measurements for the original footprint of the defendants’ homes and the amount of increased impervious surfaces they added. The Smith house was originally approximately 2,668 square feet, and they added an additional 3,728 square feet of impervious surface, an increase of “about 140%.” The Catherall house was originally 2,681 square feet, and they added an additional 6,612 square feet of impervious surface, an increase “by 250%.” According to Dr. Spotts, the addition of impervious surfaces on both properties increased the volume and velocity of water flowing onto the plaintiffs’ property because it prevented water from infiltrating into the soil. Dr. Spotts admitted that he did not know the drainage patterns on the defendants’ property before they added additional impervious surfaces, that he did not quantify the volume or velocity of water flowing from the defendants’ property onto the plaintiffs’ property, and that he did not measure the slope of the defendants’ properties.

Following discovery, the defendants moved for summary judgment in their favor, asserting, in part, that no genuine issue of material fact existed as to whether they caused an increase in the volume and velocity of water flowing onto the plaintiffs’ property The trial court agreed, concluding in nearly identical orders pertaining to each property:

While Mr. Spotts provided calculations that Defendants [ ] increased the impervious surfaces of their Property ..., Mr. Spotts did not conduct any tests to measure the velocity of water runoff from Defendants’ Property, the volume of water flowing onto Plaintiffs’ Property, nor the slope of Defendants’ Property Rather, Mr. Spotts appears to be relying solely on his calculations of impervious surface additions to speculate that Defendants artificially increased water runoff onto Plaintiffs’ Property. Mr. Spotts’ knowledge and expertise simply cannot overcome the lack of quantifiable data for his opinions on causation to amount to more than mere conjecture and speculation.

The trial court did not address any other grounds asserted in the defendants’ summary judgment motions.

1. In their first enumeration of error, the plaintiffs contend that the trial court erred in granting summary judgment on the basis of the absence of causation. We agree.

In surface water run-off disputes where two lots adjoin, the lower lot owes a servitude to the higher, so far as to receive the water which naturally runs from it, provided the owner of the latter has done no act to increase such flow by artificial means. Thus, although property must accept the natural runoff of water from neighboring lands, an artificial increase or concentration of water discharge may give rise to a cause of action.

(Citations, punctuation and footnotes omitted.) Green v. Eastland Homes, 284 Ga. App. 643, 645 (1) (644 SE2d 479) (2007). The law can also properly be stated:

One landed proprietor has no right to concentrate and collect water and thus cause it to be discharged upon the land of a lower proprietor in greater quantities at a particular locality or in a manner different from that in which the water would be received by the lower property if it simply ran down upon it from the upper property by the law of gravitation.

(Punctuation omitted.) Sumitomo Corp. of America v. Deal, 256 Ga. App. 703, 705 (1) (569 SE2d 608) (2002).

Under Georgia law, in order to be held liable for nuisance, ownership of land by the tortfeasor is not an element, but control is; the essential element of nuisance is control over the cause of the harm. The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.

(Citation and punctuation omitted.) Greenwald v. Kersh, 265 Ga. App. 196, 198 (1) (593 SE2d 381) (2004). “Causation is an essential element of nuisance, trespass, and negligence claims. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury.” (Citations and punctuation omitted.) Toyo Tire North America Mfg. v. Davis, 299 Ga. 155 (787 SE2d 171) (2016). “The existence of proximate cause is a question of fact for the jury, except in palpable, clear, and indisputable cases.” (Citations, punctuation and footnote omitted.) Sprayberry Crossing Partnership v. Phenix Supply Co., 274 Ga. App. 364, 365 (1) (617 SE2d 622) (2005).

Decided July 12, 2016.

Larry E. Stewart, for appellants.

McLaughlin & Loring, Matthew G. McLaughlin; Downey & Cleveland, Sean L. Hynes, Joshua S. Ruplin, for appellees.

In this case, as in Toyo Tire, supra, the defendants did not challenge the admissibility of the plaintiffs’ expert testimony; instead, they asserted that the expert testimony was insufficient to create a genuine issue of material fact as to causation. We disagree. Dr. Spotts’ testimony that the increased impervious surfaces on the defendants’ property increased the volume and velocity of water flowing onto the plaintiffs’ property was sufficient to create a genuine issue of material fact on the issue of causation. See Toyo Tire, supra, 299 Ga. at 161 (2). “[T]he limited scope of the information used by the expert [does not] play a role in determining whether his testimony is competent.” Green, supra, 284 Ga. App. at 647 (1). Instead, it “presents a jury question as to the weight which should be assigned the opinion.” (Citations and punctuation omitted.) Id.

2. In their remaining enumerations of error, the plaintiffs contend that the trial court also erred by granting summary judgment in favor of the defendants on their claims for punitive damages, attorney fees and a permanent injunction. The trial court’s order, however, does not address the viability of any of these claims, presumably because they became moot based on the trial court’s conclusion that no genuine issue of material fact existed as to causation. “Thus, if we were to conclude that the trial court erred, it would be on account of an issue never ruled on below. [Cit.]” Nebo Ventures v. NovaPro Risk Solutions, 324 Ga. App. 836, 848 (4) (752 SE2d 18) (2013). As “we do not think an appellate court properly ought to consider whether the trial court was wrong for any reason[,] . . . we conclude that it is appropriate for the trial court to address in the first instance whether triable issues of fact remain on the question” of punitive damages, attorney fees, and a permanent injunction. (Citations and punctuation omitted.) Id.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Rickman, J., concur.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A16A0385.
    McLAUGHLIN v. THE STATE.
    (789 SE2d 247)
   Branch, Judge.

Following a jury trial, Kimberly West McLaughlin was convicted in Cobb County Superior Court of a single count of aggravated assault. McLaughlin now appeals from the denial of her motion for a new trial, arguing that she received ineffective assistance of counsel based on her attorney’s failure to seek a continuance to obtain evidence of battered person syndrome to use in support of McLaughlin’s sole defense. We agree, and we therefore reverse the trial court’s order.

“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga. App. 58 (739 SE2d 68) (2013) (citation omitted). So viewed, the record shows that McLaughlin’s conviction resulted from a January 2012 altercation between McLaughlin and her then-boyfriend, Jeffrey Kovanda, that resulted in injuries to Kovanda. At the time of the incident, McLaughlin and Kovanda, who had dated or lived together periodically since approximately July 2010, were living together in a camper owned by Jeff Worth. Also present was a mutual friend of the couple, Brent Hanie.

On the night in question, McLaughlin and Kovanda got into an argument during which McLaughlin, who was standing at or near the kitchen sink, picked up a knife. Kovanda testified that he was sitting on the sofa when the argument began, with McLaughlin eventually approaching him holding the knife. Kovanda then stood up and as the argument continued, it apparently became physical to some degree. After the argument ended and Kovanda had returned to sit on the sofa, he felt blood running on his torso and discovered that he had been stabbed. Kovanda asked McLaughlin to apologize, but she refused. According to both McLaughlin and Hanie, when McLaughlin refused to apologize, Kovanda moved toward her aggressively, and Hanie had to get in between the couple to prevent Kovanda from physically assaulting McLaughlin. McLaughlin then picked up a knife, which Hanie took from her and tossed onto the camper’s bed. Hanie then took Kovanda outside the camper, where Kovanda called the police.

A patrol car responded to Kovanda’s 911 call, and the responding officer detained McLaughlin at the scene until detectives arrived. Kovanda was taken to the hospital by ambulance and was treated for his injuries, which included a “puncture-type wound” on the lower part of his left buttock, near the hip; a “slashing or glancing injury” on the left side of his torso, near the rib cage; and a slash on the inside of his right forearm. Doctors closed the puncture wound with staples, but neither of the other wounds was deep enough to require surgical closure.

Detective Amy Worthington, the lead investigator on the case, testified that police collected two knives from inside the camper, and both appeared to have blood on them. A butcher knife was found on top of the bed in the camper, while a smaller knife was found near the sink in the kitchen area. When Worthington interviewed McLaughlin at the police station later that evening, McLaughlin smelled of alcohol. In response to a question from the detective, McLaughlin stated that she had consumed four beers earlier that night.

Following the police investigation, McLaughlin was indicted on one count of aggravated assault and one count of battery. At trial, in addition to the evidence concerning the indicted crimes, the State also introduced evidence of two prior incidents between the couple, each of which had resulted in McLaughlin’s criminal conviction. The evidence showed that a January 2011 altercation between McLaughlin and Kovanda resulted in McLaughlin being indicted on one count of battery and two counts of simple battery (the “January 2011 case”). McLaughlin entered a negotiated guilty plea on this indictment, pursuant to which she pled guilty to a single count of battery and received a sentence of 25 days incarceration, which represented the amount of time she had served in jail following her arrest.

The indictment and guilty plea in the January 2011 case arose out of an incident where McLaughlin bit Kovanda’s finger, drawing blood. According to Kovanda, the bite occurred when, after the couple had argued, Kovanda prepared to exit their apartment. In attempting to leave, Kovanda tried to “move [McLaughlin] out of the way” and he stuck his hand out toward McLaughlin’s face. When he did so, his finger “ended up in [McLaughlin’s] mouth and she took a bite[.]” According to McLaughlin, however, the incident occurred after Kovanda came home brandishing a gun and accusing McLaughlin of being unfaithful. When McLaughlin denied Kovanda’s allegations, Kovanda grabbed her face and pushed her backward. As Kovanda did so, his finger went into McLaughlin’s mouth and she bit him. Kovanda left the apartment with McLaughlin’s cell phone and called police. Police later arrested McLaughlin after they could not locate the gun she claimed Kovanda had threatened her with. At trial, however, Kovanda did not deny that on the day of the January 2011 incident, he came into the house with a gun.

The State also introduced evidence showing that in December 2011, McLaughlin was indicted on one count of simple assault and one count of battery based on an altercation she had with Kovanda in October 2011 (the “October 2011 case”). Shortly after her indictment, McLaughlin entered into a negotiated guilty plea, pursuant to which she pled guilty to both counts of the indictment and was placed on probation for 24 months. The indictment and guilty plea in the October 2011 case resulted from an incident in which McLaughlin injured Kovanda with a knife described as a utility or razor knife. Kovanda testified that as he was sitting at a desk, he and McLaughlin argued over whether Kovanda was texting another woman. McLaughlin approached him with the utility knife in her hand and held the weapon to Kovanda’s neck, inflicting a cut behind his left ear. When Kovanda then stood up, McLaughlin slashed his arm. Kovanda sought treatment for his wounds the following day, and both the cut behind Kovanda’s left ear and on his left forearm required stitches. After receiving treatment, Kovanda then went to the police station to report the incident. After McLaughlin was arrested and indicted, however, Kovanda asked the district attorney to drop the charges.

According to McLaughlin, Kovanda initiated the incident resulting in the October 2011 case by attacking her both physically and verbally while he was under the influence of methamphetamine. McLaughlin testified that when upset, she often cut herself as a form of coping. On the night in question, she was cutting herself with a razor knife. Kovanda encouraged her, telling her that she should “just go ahead and cut [her] wrist and get it over with.” Kovanda then began to walk toward her, encouraging her to cut her wrists and when he reached her, he grabbed the arm in which McLaughlin was holding the knife. In the ensuing struggle, Kovanda received the cut behind his ear and on his forearm.

McLaughlin’s defense at trial was justification, and she claimed that Kovanda’s injuries resulted from her efforts to defend herself. See OCGA § 16-3-21 (a) (“[a] person is justified in threatening or using force against another when and to the extent that . . . she reasonably believes that such threat or force is necessary to defend... herself . . . against such other’s imminent use of unlawful force”). Prior to trial, McLaughlin’s attorney filed a motion pursuant to OCGA § 16-3-24.2 to dismiss the indictment based on justification. The trial court held a hearing on that motion, and after hearing the evidence, denied the same. The court did, however, allow McLaughlin to pursue her justification defense at trial.

In support of her justification defense, McLaughlin offered evidence of the abusive nature of her relationship with Kovanda. Specifically, McLaughlin testified that following the January 2011 incident, Kovanda destroyed her car with a baseball bat and sold it for scrap. In February 2011, Kovanda physically assaulted her twice, and during the second assault he threw McLaughlin to the ground with such force that she sustained a black eye and a broken ankle. Following that incident, Kovanda began a pattern of abusing McLaughlin emotionally and physically. The physical abuse included Kovan-da’s choking her and attempting to suffocate her. The physical abuse resulted in McLaughlin’s suffering bloody noses, black eyes, bruises, cut marks, and scrapes. In June 2011, Kovanda’s assault on McLaughlin led her to seek treatment at a hospital for injuries to her leg, hip, and arm, as well as a concussion. Hospital personnel contacted police, and McLaughlin admitted to them that her boyfriend had beaten her, but she refused to identify the boyfriend to police.

McLaughlin stated that during the time she lived with Kovanda between February 2011 and January 2012, she would leave the couple’s residence approximately once a week and would remain away anywhere from overnight to a few days. She repeatedly returned to Kovanda, however, because she loved him and “because when he’s not on [methamphetamine], he’s a different person. Because he would always call me, begging me to come back and telling me that he would never do it again and I believed him.” McLaughlin also explained that she never reported Kovanda to the police because she had grown up in an abusive home, with parents who frequently fought. During some of those fights, McLaughlin called the police, and her parents were taken to jail. When her parents were released, McLaughlin would then receive a beating for calling the police. McLaughlin then stated, “and I would just — can’t go through that again. I can’t do that anymore.”

Worth, the friend in whose camper McLaughlin was living in January 2012, testified and confirmed McLaughlin’s claims of abuse. According to Worth, beginning in approximately March 2011, McLaughlin frequently called him to come and get her. Worth explained that when he picked her up “depending on the altercation [McLaughlin and Kovanda] had, [McLaughlin] could [have] a bloody nose, a black eye, a scratch here and there . . . I’ve seen her with black eyes from [Kovanda], I’ve seen her throat, where he’s choked her, bruised.” Worth also stated that on one occasion when he went to pick McLaughlin up, Kovanda came out of the house and assaulted him with a baseball bat. According to Worth, McLaughlin asked him not to call the police regarding Kovanda, and he explained his belief that McLaughlin did not want police involved “largely because of what went on in her past life with her mom and dad, her calling the police on her mom and dad.”

Kovanda also acknowledged the abusive nature of his relationship with McLaughlin, admitting on cross-examination to destroying McLaughlin’s car and selling it for scrap; to pushing McLaughlin to the floor so hard that she broke her ankle; and to injuring McLaughlin to the extent that she had to seek treatment at a hospital in June 2011. Kovanda further admitted that McLaughlin had lied to police regarding the origin of her injuries to protect him. Additionally, Kovanda acknowledged that during the late spring and summer of 2011 he was so physically violent toward McLaughlin that she had to call someone to come get her approximately three to four times per month.

The State attempted to refute McLaughlin’s justification defense by eliciting testimony from Detective Worthington as to what factors police rely on to determine whether a person is a victim of domestic violence. According to the detective, the primary factor police consider is whether the victim attempted to distance herself from her abuser. Specifically, police look to whether the alleged victim attempted to obtain a temporary protective order, moved to a shelter for battered women, and/or changed her phone number in an effort to keep her abuser from contacting her. Thereafter, during the prosecutor’s cross-examination of McLaughlin, the State established that McLaughlin had not reported Kovanda’s conduct to police, had never sought a temporary protective order or moved to an available shelter, and had remained with Kovanda during the time the alleged abuse was occurring.

The State also impeached McLaughlin’s testimony by introducing recordings of phone conversations between Kovanda and McLaughlin, which occurred while McLaughlin was in the Cobb County jail awaiting trial on the current charges. During those conversations, McLaughlin appeared to admit fault for the stabbing and repeatedly expressed her remorse for the same, apologizing to Kovanda on multiple occasions. McLaughlin also repeatedly emphasized how much she loved Kovanda and stated that she could not live without him and could not stand to be separated from him. The recordings also showed that McLaughlin granted Kovanda a power of attorney so he could cash her unemployment checks and she encouraged Kovanda to use the money on himself. In only one of those conversations, recorded on February 6,2012, did McLaughlin express any type of anger at Kovanda, and even that conversation ended with McLaughlin sobbing.

Based on the foregoing evidence, the jury found McLaughlin guilty of both aggravated assault and battery Following her conviction, McLaughlin filed a motion for a new trial, arguing that trial counsel was ineffective for failing to obtain expert testimony on the issue of battered person syndrome (“BPS”). At the hearing on that motion, McLaughlin’s trial counsel testified that he had represented McLaughlin on the two criminal cases arising out of the January 2011 and October 2011 altercations between McLaughlin and Kovanda. After a different attorney was appointed to represent McLaughlin in the current case, a friend of McLaughlin contacted trial counsel and told him of the pending charges in this case. The attorney then visited McLaughlin in jail and agreed to represent her pro bono. On June 27, 2012, counsel filed both an entry of appearance in the case and a statutory speedy trial demand.

Trial counsel testified that despite having previously represented McLaughlin, he did not realize the extent to which Kovanda had abused her until the hearing on McLaughlin’s motion to dismiss the indictment based on justification. During his 30-plus years as a criminal defense attorney, counsel had become familiar with BPS, its elements, and how to prove it, including the necessity for expert testimony As he listened to the testimony at the hearing on the motion to dismiss, it occurred to the attorney that McLaughlin likely suffered from BPS and that the same would support her defense. Specifically, counsel stated that he knew that a victim suffering from BPS often accepted the blame for the abuser’s conduct and continued to express love for her abuser. Despite this recognition, however, counsel neither sought a continuance nor withdrew the speedy trial motion in order to seek either a psychiatric evaluation of McLaughlin or expert testimony on BPS.

During trial, defense counsel attempted to qualify Detective Worthington as an expert witness on the issue of BPS, but he found “that [Worthington] was pretty much useless” in that regard. As a result, counsel was unable to present any evidence to explain McLaughlin’s statements in her jailhouse conversations with Kovanda in which she took responsibility for injuring Kovanda and which the State used to impeach her. Nor was the defense able to present any evidence to explain why McLaughlin failed to report Kovanda’s conduct to the police, why she accepted blame for the situation, or why she continued to express her love for Kovanda. Thus, while trial counsel “tried to invent a battered person’s defense” during closing argument, he had no expert testimony to support that theory of defense.

In addition to the testimony of trial counsel, McLaughlin also presented at the motion for new trial hearing the testimony of Dr. Kevin Richards, a forensic psychologist who was qualified as an expert on BPS. Dr. Richards had performed a psychological evaluation of McLaughlin to determine, among other things, whether she suffered from BPS, and a copy of his report was submitted into evidence. Dr. Richards opined that McLaughlin was suffering from BPS at the time she committed the offense at issue, and he would testify to that fact at trial, if asked.

According to Dr. Richards, while many people may have heard of battered person syndrome, “most people are unfamiliar with the specifics” of the syndrome. A woman suffering from BPS tends to believe that no one can help her, so she does not avail herself of resources that might be offered. Additionally, many battered women remain in an abusive relationship because “they don’t perceive themselves as . . . able to extricate themselves from the situation.” Such women eventually come to believe that they will suffer abuse no matter what they do, “so they tend to remain in place and accept the abuse.” Dr. Richards further testified that victims of abuse “often come to believe that [the abuse] is their fault.” Thus, it “is not unusual” for a battered woman to blame herself and take responsibility “for the entirety of the situation.” Dr. Richards further explained that it was not unusual “for the primary abuser to cast themselves as the victim” and to convince the victim that she made the abuser violent and that she therefore brought the abuse on herself. Dr. Richards stated that McLaughlin’s comments in her phone conversations with Kovanda, in which she repeatedly apologized, blamed herself for the situation, and expressed her love for Kovanda, were all consistent with someone suffering from BPS. Additionally, McLaughlin’s lying to medical personnel, the police, and other legal authorities in an effort to protect Kovanda were all consistent with BPS.

Dr. Richards further testified that a battered person who has been exposed to repeated episodes of violence may react to aggressive behavior by seeking to defend themselves in a way that may seem out of proportion to the actual threat presented by a particular situation. Such a disproportionate reaction results from the fact that the battered person no longer has the ability to distinguish between threat levels, and so such a person “may take measures that will appear out of proportion to the average person.”

After hearing the evidence, the trial court denied McLaughlin’s new trial motion in a brief order, stating that McLaughlin had “failed to show that trial counsel’s performance was deficient, and that counsel’s presentation of the case reflected anything more than reasonable tactics and/or strategy” McLaughlin now appeals from that order.

To prevail on her ineffective assistance claim, McLaughlin was required to prove both that the performance of her lawyer was deficient and that she suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). On appeal, McLaughlin argues that the trial court erred in finding that the performance of her trial counsel was not deficient. In reviewing this claim of error, we will defer to the lower court’s factual findings unless clearly erroneous, but we review de novo the court’s legal conclusions. Fedak v. State, 304 Ga. App. 580, 580 (696 SE2d 421) (2010).

1. We begin with whether McLaughlin’s trial counsel rendered deficient performance — i.e., “whether counsel’s representation ‘fell below an objective standard of reasonableness.’ ” Padilla v. Kentucky, 559 U. S. 356, 366 (III) (130 SCt 1473, 176 LE2d 284) (2010), quoting Strickland, 466 U. S. at 688 (III) (A). Whether defense counsel met the standard of competence required by the United States Constitution “is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’ ” Id., quoting Strickland, 466 U. S. at 688 (III) (A). Whether an attorney has met this standard of reasonableness is one of law, Gravitt v. State, 301 Ga. App. 131, 134 (1) (687 SE2d 150) (2009), and in determining this question, “we bear in mind that ‘judicial scrutiny of counsel’s performance must be highly deferential.’ Strickland, 466 U. S. at 689 (III) (A).” Arnold v. State, 292 Ga. 268, 270 (2) (a) (737 SE2d 98) (2013). Thus,

[t]o demonstrate deficient representation, a convicted criminal defendant . . . must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case.

Smith v. State, 302 Ga. App. 128, 133 (2) (690 SE2d 449) (2010) (citation, punctuation and footnote omitted).

In this case, McLaughlin argues that trial counsel performed deficiently when he failed to withdraw the statutory speedy trial demand and seek a continuance so that he could investigate and obtain expert evidence regarding BPS. McLaughlin contends that counsel’s conduct in this regard fell below the objective standard of reasonableness because such evidence was crucial to McLaughlin’s sole defense of justification. We agree.

(a) To evaluate McLaughlin’s claim of ineffective assistance, it is necessary to understand the role that BPS may play in a criminal case. Under Georgia law, a defendant who has suffered previous incidents of domestic violence or child abuse “may offer battered person syndrome evidence to illustrate... her reasonable belief in the imminence of the victim’s use of unlawful force.” Smith v. State, 268 Ga. 196, 199 (486 SE2d 819) (1997) (citation omitted). As our Supreme Court has explained,

evidence that a defendant suffered from battered person syndrome is [a] circumstance which, if believed by the jury, would authorize a finding that a reasonable person, who had experienced prior physical abuse such as was endured by the defendant, would reasonably believe that the use of force against the victim was necessary, even though that belief may have been, in fact, erroneous.

Id. Thus, battered person syndrome “is not a separate defense.” Id. Rather, evidence of BPS may be introduced in an appropriate case to support a defendant’s claim of justification. Id. “To make a prima facie showing of [justification] based upon . . . battered person syndrome, a defendant should present the opinion testimony of an expert as well as independent testimony regarding the historical facts upon which the expert relies.” Bishop v. State, 271 Ga. 291, 293 (3) (519 SE2d 206) (1999) (citations omitted). Specifically, the defendant should present an expert witness to “describe the syndrome, apply that model to the facts shown by the evidence, and opine that the defendant falls within the profile.” Id. (citations omitted). A defendant who meets these evidentiary requirements is entitled to a jury charge on BPS. Smith, 268 Ga. at 200.

(b) With this understanding of the role BPS could have played in McLaughlin’s justification defense, we turn to the question of whether counsel’s failure to request a continuance to pursue the necessary expert testimony constituted deficient performance. As this Court has previously observed, when determining whether trial counsel provided adequate representation, we examine, among other things, whether counsel failed to investigate adequately the facts and/or the applicable law and whether he failed to obtain or present evidence relevant to his client’s theory of defense. See Davis v. State, 169 Ga. App. 601 (1) (314 SE2d 257) (1984). If counsel did fail in one of these regards, we then ask whether those failures “resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.” Id. (citation and punctuation omitted). See also Turpin v. Helmeci, 271 Ga. 224, 226 (518 SE2d 887) (1999) (the right to reasonably effective counsel is violated where trial counsel’s omissions result from either inadequate investigation or inadequate preparation rather than from questionable but deliberate and informed strategic decisions). As the United States Supreme Court has explained:

Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation [into the law and the relevant facts] are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

Wiggins v. Smith, 539 U. S. 510, 521-522 (II) (A) (123 SCt 2527, 156 LE2d 471) (2003) (citation and punctuation omitted). See also Terry v. Jenkins, 280 Ga. 341, 346-347 (2) (c) (627 SE2d 7) (2006).

Here, counsel testified that McLaughlin’s sole defense was justification and that he filed a motion to dismiss based on that defense. After listening to the evidence at the hearing on the motion to dismiss, counsel realized that McLaughlin likely suffered from BPS. Counsel also knew that evidence concerning BPS would provide significant support to the justification defense. Counsel’s recognition of these facts, in turn, was based upon his 30-plus years of experience as a criminal defense attorney, during which he had become familiar with battered person syndrome and its use to support a justification defense. Specifically, counsel testified that he knew the elements required to establish BPS and that such proof required expert testimony Despite this knowledge, however, trial counsel did not request a continuance to investigate whether his client suffered from BPS and/or whether he could obtain expert testimony to support a defense based on BPS.

Notably, counsel’s testimony reflects that this decision was not strategic in nature. Rather, it resulted from counsel’s mistaken belief that because the hearing on the motion to dismiss occurred immediately before jury selection, it was too late to request a continuance. It further appears that counsel believed that the hearing on the motion to dismiss represented the beginning of trial. Counsel testified that “the trial started before” he learned the facts that would support a battered person defense. He then stated that he tried unsuccessfully to qualify Detective Worthington as an expert witness rather than requesting a continuance and seeking his own expert because “we had already gone over the waterfall” by starting trial. Counsel also testified that the information he learned at the pretrial hearing on the motion to dismiss caused him to change the theory of defense “midstream,” after trial had begun.

Based on his understanding of when trial began and the time limits on moving for a continuance, counsel never sought a continuance. Instead, he merely assumed that he could not get one. We find that counsel’s assumption in this regard was not reasonable under the circumstances. Despite counsel’s belief to the contrary, the law does not specifically limit the time in which a party may move for a continuance. Rather, the law simply provides that “[a]ll applications for continuances are addressed to the sound legal discretion of the court and . . . shall be granted or refused as the ends of justice may require.” OCGA § 17-8-22. See also Gipson v. State, 297 Ga. App. 413, 415 (2) (677 SE2d 431) (2009) (“[t]he trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require”) (citation and punctuation omitted). Thus, a trial court may entertain a motion for a continuance made in the middle of trial. See Bogan v. State, 206 Ga. App. 696, 700 (5) (426 SE2d 392) (1992) (trial court denied a defense motion for a continuance “made during the commencement of trial [but in doing so, the court] expressly informed [defense counsel that] the motion could be renewed later in the trial”); Stroud v. State, 176 Ga. App. 300, 301 (2) (335 SE2d 678) (1985) (defense counsel moved for a continuance and the trial court heard evidence on the same “on the very day of trial”).

We find that counsel’s failure to seek a continuance based on his mistaken belief that he was procedurally barred from doing so constituted deficient performance. “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” Hinton v. Alabama, _ U. S. _ (II) (A) (134 SCt 1081, 1088-1089, 188 LE2d 1) (2014) (finding that defense counsel’s “failure to request additional funding ... to replace an expert he knew to be inadequate . . . constituted deficient performance” where the failure resulted from counsel’s mistaken belief that he could obtain no additional funds for an expert witness). See also Ottley v. State, 325 Ga. App. 15, 22 (2) (752 SE2d 92) (2013) (defense counsel’s assumption that a nurse practitioner “would never be allowed to give expert medical testimony was not reasonable” given “well-settled principles of Georgia law,” and this failure placed counsel’s “performance outside the wide range of reasonable professional conduct”).

Our conclusion in this regard is reinforced by the fact that justification was the sole defense that counsel was presenting at trial. Despite this fact, and despite trial counsel’s recognition that evidence of BPS would significantly bolster that defense, counsel nevertheless failed to inquire even as to whether a continuance might be possible. Thus, this is “not a case where, after investigation, counsel for the defendant decided to pursue one strategy rather than another but [instead is] a case where counsel’s investigation into [his] own theory of the case was entirely inadequate.” Terry, 280 Ga. at 347 (2) (c) (punctuation omitted). And we have made clear that trial counsel provides inadequate representation where he fails to investigate the law or any evidence that “might be available to assist him in mounting a defense for his client.” Fedak, 304 Ga. App. at 585 (1) (citation and punctuation omitted). See also Terry, 280 Ga. at 347 (2) (c) (deficient performance occurred where counsel’s decision to forgo investigating the possibility that someone other than the defendant committed the crime at issue “was neither consistent with professional standards nor reasonable in light of the [available] evidence, . . . evidence that would have caused reasonably competent counsel to investigate further”); Darst v. State, 323 Ga. App. 614, 626 (2) (a) (iii) (746 SE2d 865) (2013) (“trial counsel’s failure to enlist the services of an expert witness constituted deficient performance,” where such evidence was necessary to counter the State’s expert testimony and counsel testified “that he simply had not considered the option of using ... an expert witness at trial”); Goldstein v. State, 283 Ga. App. 1, 7-8 (3) (b) (640 SE2d 599) (2006) (same).

2. Having found that trial counsel rendered deficient performance, we now address the question of whether McLaughlin suffered prejudice as a result of trial counsel’s representation. “In this regard, [McLaughlin’s] burden is to show only a reasonable probability of a different outcome in the trial because of trial counsel’s deficient performance, not that a different, outcome would have been certain or even more likely than not.” Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008) (citation, punctuation and footnote omitted). And in this context, “ ‘[a] reasonable probability is a probability sufficient to undermine confidence in the outcome [of trial].’ ” Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009), quoting Strickland, 466 U. S. at 694 (III) (B).

McLaughlin’s sole defense of justification hinged largely on McLaughlin’s own testimony The State, however, was able to impeach that testimony by playing the jailhouse conversations in which McLaughlin apologized to and expressed her love for Kovanda and accepted blame for the incident. As the expert testimony at the hearing on McLaughlin’s new trial motion demonstrates, however, evidence of BPS would have explained why McLaughlin accepted blame and why McLaughlin’s statements were not inconsistent with her claim of justification. Moreover, evidence of BPS would have entitled McLaughlin to a jury instruction that would have allowed the jury to consider whether, given the nature of her abusive relationship with Kovanda, McLaughlin reasonably believed that his use of force against her was imminent and that she therefore needed to protect herself.

Decided July 12, 2016.

Mitchell D. Durham, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

In light of these facts, we find a reasonable probability exists that had counsel sought a continuance to seek expert testimony on the issue of BPS, “that evidence could have influenced the outcome of the trial.” Fedak, 304 Ga. App. at 586 (1) (citation and punctuation omitted) (defendant prejudiced by defense counsel’s failure to investigate whether evidence was available to mitigate his client’s intent). See also Gibbs v. State, 287 Ga. App. 694, 698 (1) (a) (ii) (652 SE2d 591) (2007) (defendant prejudiced by his lawyer’s failure to investigate evidence that alleged victim of child molestation had a history of making false allegations and had a motive for falsely accusing the defendant); Goldstein, 283 Ga. App. at 9 (3) (b) (defendant was prejudiced by trial counsel’s failure to obtain expert testimony, as that failure left the jury with the impression that the opinions of the State’s experts were unassailable).

Given that McLaughlin satisfied both prongs of her ineffective assistance claim, “we must conclude that the trial court erred in denying [her] motion for a new trial.” Fedak, 304 Ga. App. at 586 (1).

Judgment reversed.

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

       Worth, a personal friend of McLaughlin, is also the father of McLaughlin’s adult son.

       Kovanda denied being physically aggressive with McLaughlin, and testified that McLaughlin stabbed him when he stood up as she approached him. McLaughlin, however, testified that the stabbing occurred when during the course of the argument, Kovanda approached her as she was standing at the kitchen sink, holding a knife. According to McLaughlin, Kovanda attempted to grab her and she pushed him away, cutting him in the process. Both parties agreed that, however the stabbing occurred, Kovanda did not realize he had been injured until sometime after the argument had ended.

       The stabbing apparently occurred while Hanie was standing outside of the camper, talking on his cell phone. Thus, Hanie did not witness either the stabbing or any altercation that resulted in Kovanda’s injuries.

       According to the detective in charge of the investigation, Kovanda admitted to police that he did not decide to call them until after McLaughlin refused to apologize.

       The patrol officer encountered McLaughlin as she was in a car, preparing to leave the trailer park. As McLaughlin was exiting the trailer park, however, she saw police driving into the park and, assuming that they were responding to Kovanda’s call, pulled to the side of the road. The responding officer confirmed that McLaughlin pulled over to the side of the road as soon as she saw the patrol car and without the officer having to activate his lights or siren.

       One of the conditions of McLaughlin’s probation was that she could not contact Kovanda without his permission. After McLaughlin was sentenced, however, Kovanda wrote her probation officer, advising him that McLaughlin had Kovanda’s permission to be in contact with him.

       That statute provides, in relevant part, that a person who is justified in threatening or using force against another to defend herself “shall be immune from criminal prosecution.” OCGA § 16-3-24.2.

       We cannot tell from the record if the entire February 6 conversation was played for the jury. In reviewing the record on appeal, therefore, we reviewed this conversation in its entirety. The contents of the recording reveal that an emotional McLaughlin was dealing with the very recent death of her young grandson. Additionally, certain statements made during the February 6 conversation allege that McLaughlin’s trial counsel engaged in conduct with respect to his client that would violate professional and ethical standards. If these statements are true, then such conduct by trial counsel would also be relevant to McLaughlin’s ineffective assistance claim. Given that we have found ineffective assistance for the reasons explained below in Divisions 1 and 2, however, we need not address these statements in this appeal.

       A defendant who files a speedy trial demand pursuant to OCGA § 17-7-170 must be tried either during the term of court in which the demand is filed “or at the next succeeding regular court term thereafter.” Because McLaughlin filed her demand during the May term of court, the State was required to try McLaughlin by the end of the July term of court. See OCGA § 15-6-3 (11) (Cobb County Superior Court has six terms of court per year, with those terms beginning on the second Monday in January, March, May, July, September, and November). We note that the jailhouse recordings indicate that trial counsel had undertaken his representation of McLaughlin by early February 2 012. It is unclear, therefore, why counsel waited until late June to file his notice of appearance.

       Both Worth and McLaughlin testified at the hearing as to Kovanda’s history of physically and verbally abusing McLaughlin.

       As discussed more fully below, trial counsel apparently did not seek a continuance because he mistakenly believed he was procedurally barred from doing so.

       The charge suggested by the Supreme Court of Georgia is as follows:
      I charge you that the evidence that the defendant suffers from battered person syndrome was admitted for your consideration in connection with the defendant’s claim of self-defense and that such evidence relates to the issue of the reasonableness of the defendant’s belief that the use of force was immediately necessary, even though no use of force against the defendant may have been, in fact, imminent. The standard is whether the circumstances were such as would excite the fears of a reasonable person possessing the same or similar psychological and physical characteristics as the defendant, and faced with the same circumstances surrounding the defendant at the time the defendant used force.

        Smith, 268 Ga. at 200-201.

       We recognize that the decision whether to grant a continuance would have rested with the trial court, and there is no guarantee that the trial court would have granted such a motion. See Gipson, 297 Ga. App. at 415 (2) (“[a] motion for continuance is addressed to the sound discretion of the trial court”) (citation and punctuation omitted). At the same time, however, there is no guarantee that the trial court would have denied such a request. And in the context of an ineffective assistance claim, the question we must determine is whether counsel’s failure even to seek a continuance was objectively unreasonable. Moreover, had the trial court denied any request for a continuance, McLaughlin would be able to challenge that ruling on appeal, using much of the same evidence she relied on to prove her ineffective assistance claim. See Miller v. State, 303 Ga. App. 422, 424 (693 SE2d 637) (2010) (“to demonstrate that he was harmed by the denial of [a requested] continuance ... [a defendant must] specifically identify what other e vidence or witne sses he would have put forth in his defense if his counsel had been given more time to prepare”) (citation and punctuation omitted).


author: Dillard, Judge. RAY, Judge, McFADDEN, Judge, ANDREWS, Presiding Judge,

text:
    A16A0395.
    In the Interest of J. F., a child.
    (789 SE2d 274)
   Dillard, Judge.

This Court is faced with a unique dilemma. On the one hand, the Georgia Constitution dictates that we decide each case within two terms of being docketed. On the other hand, that same Constitution also requires us to respect our place in this state’s judicial hierarchy and steadfastly avoid encroaching upon the Supreme Court of Georgia’s exclusive jurisdiction or domain. But in order to decide the case before us, we must choose between two conflicting precedents that are currently being reviewed by our Supreme Court as part of its certio-rari process. And while our constitutional duty to decide cases within two terms of docketing may well authorize us to make this choice, we think that it is inadvisable to do so. Instead, we choose to exercise our authority under Article VI, Section V, Paragraph IV of the Georgia Constitution and certify the question presented in this case to our Supreme Court “for instruction,” to which we “shall then be bound.” We do not take this action lightly. And in doing so, we fully recognize that this Court is treading into murky jurisprudential waters. But faced with the choice of carving out a narrow (and perhaps temporary) exception to this state’s certification jurisprudence or disrupting our Supreme Court’s certiorari process, we choose the former.

Before fleshing out our reasoning for certifying the question presented in this case to our Supreme Court, we will briefly describe the procedural context of the case, as well as the parties’ respective arguments. Specifically, J. F. appeals from the juvenile court’s denial of his motion to dismiss the State’s case against him with prejudice for failure to comply with OCGA § 15-11-521 (b). He argues that because the State failed to file a delinquency petition within 30 days after his release from detention and neglected to seek an extension of time to file same, the trial court was required to dismiss the State’s case with prejudice.

The undisputed facts show that J. F. was detained on January 30, 2015, and charged with robbery by sudden snatching and aggravated assault. The juvenile court released him from custody following a February 2, 2015 detention hearing. But then, on March 16, 2015, J. F. moved to dismiss the case with prejudice due to the State’s failure to file a delinquency petition.

On March 17, 2015, acknowledging that no delinquency petition had been filed within 30 days of J. F.’s release from custody as required by OCGA § 15-11-521 (b), the State simultaneously administratively dismissed the complaint and filed a new complaint identical to the one it had just dismissed. Then, the State filed a delinquency petition within 30 days of the new complaint.

At a March 25, 2015 hearing on J. F.’s motion to dismiss, the assistant district attorney explained that no delinquency petition had been timely filed within 30 days of J. F.’s release because, in the course of implementing a new organizational system within her office, J. F.’s case hadbeen overlooked. The assistant district attorney further informed the court that (1) her office’s procedure was to administratively dismiss and then re-file complaints when the original time limit was missed, and (2) a motion for an extension of time had not been filed because she thought such a motion “would just be a waste of the court’s time.” Ultimately, the trial court denied J. F.’s motion to dismiss with prejudice, and this interlocutory appeal follows.

As always, our analysis necessarily begins with the text of the relevant statute, i.e., OCGA § 15-11-521 (b), which provides:

If a child is not in detention prior to adjudication, a petition alleging delinquency shall be filed within 30 days of the filing of the complaint alleging violation of a criminal law or within 30 days of such child’s release pursuant to a determination that detention is not warranted. Upon a showing of good cause and notice to all parties, the court may grant an extension of time for filing a petition alleging delinquency The court shall issue a written order reciting the facts justifying any extension.

This Court recently addressed this Code section in two procedurally similar cases, which were issued just three days apart: In the Interest of M. D. H., decided on November 10, 2015, and In the Interest of D. V. H., decided on November 13, 2015. However, on March 7, 2016, the Supreme Court of Georgia issued an order granting petitions for a writ of certiorari in both cases. In doing so, our Supreme Court indicated that it was “particularly concerned” with whether this Court “correctly applied OCGA § 15-11-521 (b).”

Again faced with the issue we addressed in M. D. H. and D. V.H., we recognize—as we did on motion for reconsideration in D. V. H.— that there is tension between the analyses employed in those cases. Indeed, the particular facts of this case, as well as our Supreme Court’s decision to grant certiorari in M. D. H. and D. V.H., make this tension even more palpable. This tension, of course, should and must be resolved. And our Supreme Court has strongly signaled its intent to do just that with its consolidated grant of certiorari as to both of those cases. Nevertheless, some members of this Court propose that we should take the opportunity afforded by this case to revisit, clarify, and resolve the tension between M. D. H. and D. V. H. by overruling M. D. H. We think this course of action is inadvisable. To overrule—or even substantially revise or clarify—one of these cases would disrupt the status quo of the very precedents now pending before our Supreme Court and encroach upon that court’s constitutional authority to review this Court’s decisions. This brings us back to the question of whether certifying this case to the Supreme Court of Georgia is appropriate.

As previously noted, we are only faced with this unique dilemma because of Georgia’s constitutionally mandated two-term rule. Unlike federal courts, we are not at liberty to delay the disposition of appeals in anticipation of pending decisions from the Supreme Court of the United States or our own Supreme Court. We have concluded, then, that the only meaningful course of action is for this Court to certify the question presented in this case to our Supreme Court for its consideration along with M. D. H. and D. V.H., as is permitted by the Constitution of the State of Georgia.

In taking this course of action, we are mindful that our Supreme Court has previously held that “[a] certified question of law and fact will not be answered and, even if the question certified is one of law only, it will not be answered if such answer would necessarily control the decision of the case.” Although the answer to the question presented in this appeal would undoubtedly control the decision in this case, we have found no published opinion addressing whether this well-established principle applies in cases in which this Court’s decision to answer such a question would necessarily disrupt our Supreme Court’s certiorari process. Nevertheless, out of respect for the “sacrosanct role” the Supreme Court of Georgia plays “in establishing and maintaining a coherent and consistent body of authoritative decisional law,” the degree of consideration given by our Supreme Court before granting petitions for certiorari, and a desire to avoid confusing the bench and bar while a decision by the Supreme Court is pending, we choose to take the road that has yet to be traveled and certify the question before us (and thus this case) to the Supreme Court of Georgia. If we were merely faced with following a precedent under review by our Supreme Court, that would be one thing. But proposing to overrule or substantially clarify one or more precedents currently under consideration by our Supreme Court, and thereby disrupting that court’s certiorari process, goes a bridge too far. As a result, we hereby certify the following question to our Supreme Court:

DoesOCGA § 15-11-521 (b) require dismissal with prejudice when the State neither files a petition alleging delinquency within the applicable 30-day period nor seeks an extension of time in which to file such petition?

The Clerk of this Court is directed to prepare a certified copy of the foregoing question (as outlined in this opinion) and transmit this case, together with the record, to the Supreme Court of Georgia, as permitted by Georgia Constitution Art. VI, § V, ¶ IV and Georgia Constitution Art. VI, § VI, ¶ III (7).

Question and, case certified to the Supreme Court of Georgia.

Miller, P. J., Boggs, Branch, Rickman, Mercier and Peterson, JJ., concur. Barnes, P. J., Ellington, P. J., McFadden and Ray, JJ., concur fully and specially. Doyle, C. J., Andrews, P. J., Phipps, P. J., and McMillian, J., dissent.

RAY, Judge,

concurring specially

I join in the majority’s decision to certify to our Supreme Court the question of whether OCGA § 15-11-521 (b) required the trial court to dismiss with prejudice the petition alleging delinquency when it was not filed within the 30-day period following the filing of the complaint. This course seems prudent given the Supreme Court’s grant of certiorari to review our holdings in two somewhat procedurally similar cases, In the Interest of M. D. H. and In the Interest of D. V. H., which were decided by different panels of this Court at or about the same time. Most assuredly, the Supreme Court’s resolution of the issues in those cases will impact the ultimate resolution of the issues in the case herein.

In his dissent, Judge Andrews argues that not only should we decide this case on the merits and not forward the case to the Supreme Court for its consideration of the question that we certify, but also that we should reverse the decision of the trial court, thus requiring the trial court to dismiss the State’s petition against J. F. with prejudice. If we were to decide this case on its merits and not allow the Supreme Court to first weigh in, I believe that the appropriate action would be to vacate and remand this case to the trial court to consider whether good cause exists to allow the State to file its petition alleging delinquency outside of the 30-day period found in OCGA § 15-11-521 (b).

The dissent agrees that the State should normally have an opportunity to demonstrate whether good cause exists for its late filing of a petition and, indeed, the statute specifically allows as much. Yet, apparently, by arguing that we should reverse the trial court’s order below, the dissent agrees with J. F. that the State should not get that opportunity herein. While arguably it may be correct that the State cannot manipulate the filing deadline by withdrawing its original complaint and re-filing the same so as to get an additional 30-day safe harbor within which to file its petition for delinquency, I cannot agree with the suggestion that the opportunity to pursue its claim has been lost. As best I can tell, at no point has the trial court ruled whether and to what extent the State’s late filing of the petition was justified. In my view, it is this decision that would determine whether this case can proceed, and the trial court should have the opportunity to consider the same.

Should this case have been decided on the merits, I do agree that we might have properly limited our holding in In the Interest of M. D. H. to the extent it implied that the State, despite its failing to comply with the 30-day deadline under OCGA § 15-11-521 (b), could proceed with its original petition or file a new one without the trial court’s entering of an order with the required written findings of fact justifying an extension of the 30-day deadline. Yet, in M. D. H., the trial court apparently mistakenly believed that it did not have the discretion to extend the 30-day period, despite the wording of the statute. At the same time, it at least implicitly found that good cause existed to justify the State’s continued pursuit of its charges against the juvenile because it refused to dismiss the first petition with prejudice, noting the reason for the delay of its filing and “the serious nature of the charge [s]” against the juvenile, which included threatening to bring guns into his school and to kill his friend if he told anyone about his plans.

The dissent argues that the facts of the present case are similar to those found in In the Interest of D.V. H., wherein we affirmed the trial court’s decision to dismiss with prejudice a petition for delinquency after the trial court found that just cause did not exist to allow an untimely petition to proceed. The facts of D. V. H. are distinguishable, however, from the facts in both the instant case and those found in M. D. H. The trial courts in M. D. H. and the instant case did not rule that the State was without a sufficient excuse to justify a late filing; indeed, arguably, the trial courts in each case implicitly found just the opposite.

In summary, I agree with the majority’s decision to certify this case to the Supreme Court and to allow it, if it so chooses, to resolve the issues herein concurrent to its consideration of the other two cases outlined above which are currently before it. However, if we were to have decided this case on its merits, I believe the appropriate resolution would have been to vacate the trial court’s ruling and remand this case for a determination as to whether the State would be entitled to proceed with its petition although it was not timely filed. Should the trial court agree, then it would be required to issue a written order setting forth the reasons justifying that decision. If the trial court did not believe good cause so existed, then I agree that a dismissal with prejudice would be the proper result.

I am authorized to state that Presiding Judge Barnes and Presiding Judge Ellington join in this special concurrence.

McFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately only to note that, if the question were not to be certified, I would adhere to In the Interest of D. V. H., 335 Ga. App. 299 (779 SE2d 122) (2015), and join Presiding Judge Andrews’s opinion.

ANDREWS, Presiding Judge,

dissenting.

There may be some arguable practicality about certifying the question raised in this appeal to the Supreme Court because of the two similar cases currently pending there, but I do not believe this is an appropriate case to certify. “If an answer by the Supreme Court of a question certified to it by the Court of Appeals would constitute a decision of the main case, the question cannot, under the Constitution, be answered.” (Citations omitted.) Kelly v. Ga. Cas. & Surety Co., 216 Ga. 834, 835 (120 SE2d 329) (1961). As the answer to the question certified to the Supreme Court by the majority would clearly decide the appeal, I believe this Court should decide the appeal.

OCGA § 15-11-521 (b) provides:

If a child is not in detention prior to adjudication, a petition alleging delinquency shall be filed within 30 days of the filing of the complaint alleging violation of a criminal law or within 30 days of such child’s release pursuant to a determination that detention is not warranted. Upon a showing of good cause and notice to all parties, the court may grant an extension of time for filing a petition alleging delinquency The court shall issue a written order reciting the facts justifying any extension.

The procedural posture of this case is similar to two recent appeals decided by this Court: In the Interest of M. D. H., 334 Ga. App. 394 (779 SE2d 433) (2015), and In the Interest of D. V. H., 335 Ga. App. 299 (779 SE2d 122) (2015), both involving the construction of OCGA § 15-11-521 (b). In M. D. H., where the juvenile court dismissed an untimely delinquency petition without prejudice, so that the state could file another petition and obtain an adjudication of delinquency, this Court affirmed the dismissal as one without prejudice.

In D. V. H., the juvenile court denied the state’s request for an extension and dismissed an untimely delinquency petition; after that dismissal, the state filed a new complaint restating the original charges and then filed a delinquency petition within 30 days of the new complaint; and the juvenile court dismissed that delinquency petition, finding that filing a new complaint did not reset the time limits for filing a delinquency petition. This Court affirmed that dismissal, and although neither the juvenile court nor this Court indicated the dismissal was with prejudice, that is exactly what it was.

On motion for reconsideration in D. V. H., this Court distinguished M. D. H. because that case had not involved an untimely petition following the juvenile court’s rejection of the state’s request for an extension. While noting

some tension between the analysis in this case and in In the Interest of M. D. H., given the distinctions between the holdings of those two decisions, we [did] not view In the Interest of M. D. H. to compel a juvenile court to accept a late petition when the court has determined that an extension for filing the petition was unjustified.

D. V H., supra at 301 (on motion for reconsideration). The Supreme Court subsequently granted certiorari in both cases but has not yet decided the cases.

The instant case presents this Court with the opportunity to further confuse the construction and application of OCGA § 15-11-521 (b), a confusion this Court inadvertently created, or to end the confusion and construe the statute in a way so that both the state and the juvenile definitely know what their obligations and rights are. Counsel for J. F. suggests the following analysis and construction of OCGA § 15-11-521 (a) and (b):

1. OCGA § 15-11-521 (a), which governs when a child is detained prior to adjudication, requires the state to file a delinquency petition within 72 hours after the detention hearing. If no petition is filed within that 72-hour deadline, the child must be released and the complaint dismissed without prejudice. The dismissal is without prejudice, thus allowing the state to re-file the petition, because the legislature recognized the state might miss such a short deadline despite its effort to comply.

2. OCGA § 15-11-521 (b), which governs when a child is not detained, requires the state to file a delinquency petition within 30 days of the complaint or the child’s release from detention. Thirty days should be sufficient time for the state to file a petition in most cases. But the legislature recognized there may be rare instances where the state has good cause for not filing within the 30-day deadline, and authorized the juvenile court to grant an extension of time in such a case.

If the state realizes it will be unable to file a delinquency petition within 30 days as required by OCGA § 15-11-521 (b), it should show good cause for the untimeliness and seek an extension of time from the juvenile court. If the state has the unfettered ability to file or refile a complaint and/or petition in disregard of the statutory extension provision, as was done in the instant case and in M. D. H., it renders both the statutory extension provision and the 30-day deadline meaningless and thwarts the legislative intent. For that reason, a dismissal of an untimely filing under OCGA § 15-11-521 (b) should be with prejudice in order to carry out the legislative intent manifested by the mandatory language of that statute.

The above suggested analysis is practical and eliminates all the confusion created by the tension between the analyses in D. V. H. and M. D. H., and I would endorse it. “There must be scrupulous adherence to due process requirements in juvenile court proceedings.” (Citation and punctuation omitted.) In re B. A. P., 180 Ga. App. 433, 434 (349 SE2d 218) (1986). Consistent with that principle, I believe we should hold that a dismissal of an untimely filing under OCGA § 15-11-521 (b) must be with prejudice. To the extent M. D. H. is inconsistent with that proposition, I would overrule it.

Decided July 12, 2016.

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, Nhan-Ai D. Simms, Pareesa H. Arnjadi, Assistant District Attorneys, for appellee.

I am authorized to state that Chief Judge Doyle, Presiding Judge Phipps, and Judge McMillian join in this dissent.

       334 Ga. App. 394 (779 SE2d 433) (2015).

       335 Ga. App. 299 (779 SE2d 122) (2015).

        See Order Granting Writ of Certiorari, Case Nos. S16G0428, S16G0546 (March 7, 2016).

        Id.

        See 335 Ga. App. at 301 (on motion for reconsideration).

        See Ga. Const. Art. VI, § VI, ¶ V (“The Supreme Court may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.”); see also Ga. Const. Art. VI, § VI, ¶ VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”).

        See Ga. Const. Art. VI, § IX, ¶ II (“The Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.”).

        See In the Matter of Singh, 276 Ga. 288, 290 n.3 (576 SE2d 899) (2003) (noting that ‘the ‘remedy’ for an appellate court’s failure to timely dispose of a case to which the two-term rule is applicable is the affirmance of the lower court’s judgment by operation of law”); see generally Ga. Const. Art. VI, § V, ¶ III (“The Court of Appeals shall be a court of review and shall exercise appellate and certiorari jurisdiction in all cases not reserved to the Supreme Court or conferred on other courts of law. The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.”).

        See Ga. Const. Art. VI, § V, ¶ IV (“The Court of Appeals may certify a question to the Supreme Court for instruction, to which it shall then be bound.”); Ga. Const. Art. VI, § VI, ¶ III (7) (“Unless otherwise provided by law, the Supreme Court shall have appellate jurisdiction of the following classes of cases: . . . All cases certified to it by the Court of Appeals [.] ”); see also OCGA § 15-2-8 (2) (noting that the Supreme Court has the authority to “hear and determine all cases, civil and criminal, that may come before it; to grant judgments of affirmance or reversal, or any other order, direction, or decree required therein; and, if necessary, to make a final disposition of a case in the manner prescribed elsewhere in this Code”); OCGA § 15-2-8 (7) (noting that the Supreme Court has the authority to “exercise such other powers, not contrary to the Constitution of this state, as given to it by law,” and that “[t]his paragraph shall not be interpreted to abrogate the inherent power of the court”); Supreme Court of Georgia Rule 47 (“The Court certifying to this Court a question of law shall formulate the question and cause the question to be certified and transmitted to this Court, together with copies of such parts of the record and briefs in the case as the certifying Court deems relevant.”).

        See Kelly v. Ga. Cas. & Sur. Co., 216 Ga. 834, 835 (120 SE2d 329) (1961); see also Womack v. U.S. Fid. & Guar. Co., 208 Ga. 717, 717 (69 SE2d 188) (1952) (“For this court to answer all questions necessary to a decision is for us to decide the case which is, by the Constitution, made the duty of the Court of Appeals.”); S. Exchange Bank v. First Nat’l Bank, 165 Ga. 289, 289 (140 SE 753) (1927) (“[U]nder repeated rulings of this court, where a certified question of law does not propound a distinct issue of law, but in effect calls for a decision of the whole case, this court need not answer it.” (punctuation omitted)). But see Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 203 (219 SE2d 115) (1975) (answering question of law in first certified question from a majority of the Court of Appeals, but declining to answer second certified question, which “call[ed] for a determination and application of facts disposing of the entire case and should not be answered by this court in response to a certified question”); Penn. Mut. Life Ins. Co. v. Blount, 37 Ga. App. 756 (142 SE 183) (1928) (“In certifying a question to the Supreme Court, the Court of Appeals can propound any question of law which in its opinion is presented by the record, and an answer to which might be necessary to a proper disposition of the case. In so doing, the court may limit its inquiry to questions, the answers to which would not be exhaustive of all questions presented by the record, and which might be necessary to the proper disposition of the case.”).

        Cf. C.I.T. Corp. v. Smith, 68 Ga. App. 556, 556 (23 SE2d 503) (1942) (declining to certify question to Supreme Court when “the Supreme Court in so many recent cases has applied the above rule in cases involving similar questions”); Adams v. Powell, 67 Ga. App. 460, 462 (21 SE2d 111) (1942) (“The Court of Appeals is not authorized by the constitutional provision permitting that court to certify questions of law to the Supreme Court to request a review by the Supreme Court of a decision rendered by the Supreme Court.” (punctuation omitted)).

       Report of the Georgia Appellate Jurisdiction Review Commission, 9 (Jan. 2016), https://gov.georgia.gov/sites/gov.georgia.gov/files/related_files/press_release/Final_Appellate Jurisdiction Review Commission Report.pdf; see Ga. Const. Art. VI, § VI, ¶ VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”); Ga. Const. Art VI, § V, ¶ III (“The Court of Appeals shall be a court of review and shall exercise appellate and certiorari jurisdiction in all cases not reserved to the Supreme Court or conferred on other courts by law. The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.”).

        See Ga. Const. Art. VI, § VI, ¶ V (“The Supreme Court may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.”); see also Supreme Court of Georgia Rule 40 (“A review on certiorari is not a right_A petition for the writ will be granted only in cases of great concern, gravity, or importance to the public.”).

        See State v. Hudson, 293 Ga. 656, 661 (748 SE2d 910) (2013) (“In determining whether to reexamine this Court’s precedent, we must consider factors such as the age of the precedent, the reliance interests involved, the workability of the prior decision, and most importantly, the soundness of its reasoning.” (punctuation omitted)).

       In reaching this conclusion, we do not fault our dissenting colleagues for the contrary position they have taken. The question of whether or not to certify this question and case to our Supreme Court is a difficult one, and reasonable judges can (and do) disagree about how best to answer it.

       334 Ga. App. 394 (779 SE2d 433) (2015).

       335 Ga. App. 299 (779 SE2d 122) (2015).

       In M. D. H., supra, it was undisputed that the prosecutor did not receive the complaint on his desk until the thirty-first day after it was filed and that the prosecutor filed the delinquency petition that same day.

       Under the facts of M. D. H„ supra, the proper result may have been for this Court to have vacated M. D. H.’s adjudication and remand the case to the trial court for a ruling on whether it intended to grant an extension under OCGA § 15-11-521 (b) and for a written order providing facts justifying such an extension. At the same time, however, the juvenile in M. D. H. did not enumerate as an error that the trial court did not make written findings justifying the late filing of the petition, only that the trial court had to dismiss the State’s initial petition with prejudice.