author: BARNES, Presiding Judge.

text:
    A15A0202, A15A0203.
    WELLS FARGO BANK, N.A. v. COOK et al.; and vice versa.
    (775 SE2d 199)
   BARNES, Presiding Judge.

These companion appeals center on the administration of a charitable remainder annuity trust (“CRAT”) that was formed in 2000. The trustee of the CRAT was Wells Fargo Bank, N.A., and the beneficiaries were Gail L. Cook and Lance A. Lipman (collectively, the “plaintiffs”). In 2011, after the corpus of the trust was exhausted, the plaintiffs sued the bank for breach of fiduciary duty and breach of contract. Following discovery, the plaintiffs moved for partial summary judgment on their breach of contract claim, and the bank moved for summary judgment on both of the plaintiffs’ claims. The trial court denied both summary judgment motions but granted a certificate of immediate review. Following the grant of their applications for interlocutory appeal, the bank and the plaintiffs now challenge the trial court’s summary judgment rulings.

For the reasons discussed below, we conclude that the plaintiffs’ claims for breach of fiduciary duty that accrued more than two years before the filing of their lawsuit are barred by the two-year statute of limitation imposed by the Revised Georgia Trust Code of 2010, OCGA § 53-12-307 (a). We conclude that the plaintiffs’ remaining claims for breach of fiduciary duty fail as a matter of law because the plaintiffs did not come forward with evidence to support all of the essential elements of those claims. Lastly, we conclude that the plaintiffs’ claim for breach of contract is precluded by the plain language of the parties’ trust agreement. Consequently, we reverse the trial court’s denial of summary judgment to Wells Fargo in Case No. A15A0202, and we affirm the trial court’s denial of partial summary judgment to the plaintiffs in Case No. A15A0203.

Summary judgment is proper if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from the trial court’s denial of summary judgment, our review is de novo, and we construe the evidence in the light most favorable to the nonmoving party. Tucker Fed. S & L Assn. v. Balogh, 228 Ga. App. 482 (491 SE2d 915) (1997).

So viewed, the record reflects that the plaintiffs are married. Plaintiff Cook has her Masters of Business Administration, is a former certified financial planner, and previously owned a financial services company. Plaintiff Lipman owns his own video production company. From 1972 to 1999, the plaintiffs obtained, through a series of gifts from Cook’s uncle, shares of stock in Analog Devices, Inc., a publicly traded digital and communications technology company.

By 2000, the shares of Analog stock owned by the plaintiffs had a market value of over $1,900,000. At that time, Plaintiff Cook was 47 years old, and Plaintiff Lipman was 50 years old. Because the plaintiffs were small business owners with no corporate retirement plan, they decided to use 12,000 shares of the Analog stock to fund their future retirement. However, the plaintiffs had no tax basis in the stock, and they faced considerable capital gains taxes if the stock were sold outright because it had appreciated greatly over the years.

In early 2000, after consulting with their estate-planning attorney, the plaintiffs decided that the formation of a CRAT, with the plaintiffs designated as the lifetime beneficiaries of the trust, likely would best serve their retirement goals while also providing tax benefits. By using a CRAT, the plaintiffs could reduce their taxable income by receiving a charitable tax deduction (valued at the time the trust was created) and by deferring capital gains taxes. 26 USC § 664 (b), (c); 26 CFR § 1.664-2 (d).

The Internal Revenue Code and related Internal Revenue Service (“IRS”) rules and regulations govern whether a trust qualifies as a CRAT under federal tax law. See 26 USC § 664 (d) (1); 26 CFR § 1.664-2. Under a CRAT, donors can transfer assets into a trust and then provide for, among other options, an annual distribution to one or more beneficiaries for their lifetime, with the remainder of the trust paid to a qualified charity upon the beneficiaries’ death. 26 USC § 664 (d) (1). The annuity amount paid to beneficiaries must be in a predetermined fixed sum (calculated on the date that the CRAT is funded), and it must be no less than 5 percent and no greater than 50 percent of the initial fair market value of the trust. 26 USC § 664 (d) (1) (A).

After consulting with their estate planning attorney, the plaintiffs met with their personal banker at Wells Fargo, who referred them to the bank’s trust department. The plaintiffs, their estate-planning attorney, and bank officials from the trust department then met and discussed the feasibility of a CRAT as a retirement vehicle for the plaintiffs. The parties agreed that the 12,000 shares of Analog stock would be transferred into the trust, after which the stock would be sold at some point and the proceeds used to diversify the trust’s investment portfolio. The plaintiffs reiterated that they wished to receive a fixed annual distribution as beneficiaries of the trust that would last for their lifetimes without depleting the corpus of the trust.

The parties agreed that the plaintiff’s estate-planning attorney would draft a trust agreement, and Wells Fargo would supply calculations suggesting the percentage rate for the annual distributions that would be paid to the plaintiffs as the lifetime beneficiaries. Subsequently, Wells Fargo provided the requested calculations and suggested an annual fixed distribution to the plaintiffs of 7.5 percent of the initial fair market value of the trust. The plaintiffs agreed to the annual distribution percentage recommended by Wells Fargo, and the trust agreement was drafted accordingly.

On February 18, 2000, the plaintiffs executed the trust agreement under which Wells Fargo was appointed as trustee of the CRAT into which the 12,000 shares of Analog stock would be transferred (the “Trust” or “Trust Agreement”). Item 2 (A) of the Trust Agreement provided in relevant part:

The Trustee shall invest and reinvest the trust property and in each taxable year of this trust shall pay, in equal quarterly installments, equally to [the plaintiffs], during their lifetimes, and after the death of the first to die of the two of them, to the survivor of them, for such time as such survivor lives, the “annuity amount” equal to seven and one-half percent (7.5%) of the initial net fair market value of the property passing into this trust as finally determined for federal gift tax purposes. The annuity amount shall be paid from income and, to the extent income is not sufficient, from principal. . . .

The Trust Agreement further provided that upon the death of the surviving plaintiff, the bank would pay “all of the then principal and income of this trust” to certain designated charitable beneficiaries.

On February 25, 2000, the plaintiffs transferred the 12,000 shares of Analog stock into the Trust. On the day of the transfer, the 12,000 shares of stock were valued at $1,904,250. Based upon the stock’s fair market value of $1,904,250 at the time of the transfer, the 7.5 percent annual distribution to the plaintiffs was fixed at $142,818.

On February 28, 2000, Wells Fargo sold all of the Analog stock and used the proceeds to diversify the Trust’s investment portfolio. By that date, the value of the stock had decreased to $1,678,984, a decline of $225,266 from the day of the transfer.

Wells Fargo invested and reinvested the proceeds from the sale of stock in various investment funds over the next several years and paid the required 7.5 percent annual distributions of $142,818 to the plaintiffs. However, the annual returns on the investments in the Trust did not exceed the 7.5 percent annual distribution amount, and the corpus of the Trust declined in value every year. From March 2000 through September 2011, Wells Fargo sent the plaintiffs statements on a quarterly and yearly (and sometimes monthly) basis that reflected the overall declining value of the Trust.

In May 2002, Plaintiff Cook expressed her concern about the declining value of the Trust to a Wells Fargo investment manager. Because of their continued concerns over the management of the Trust, the plaintiffs subsequently retained an attorney to represent them in the matter. In November 2003, the plaintiff’s attorney sent a letter to the Wells Fargo senior vice president of charitable services expressing concern as to whether the Trust would be able to pay the plaintiffs $142,818 per year for their lives and still have a remainder to distribute to the designated charitable beneficiaries. The attorney also asserted that Wells Fargo had assumed the obligation of ensuring that there was a sufficient income stream from the Trust to make the required annual distributions to the plaintiffs for life. In December 2003, the vice president wrote back to the plaintiffs and their attorney, assuring them that the bank would continue to prudently exercise its fiduciary duties in managing the trust, but denying that the bank had ever promised to guarantee an annual distribution to the plaintiffs for their lives even if the corpus of the Trust was exhausted.

The plaintiffs and their attorney met with the Wells Fargo senior vice president in June 2004 to discuss the depletion of the Trust and their concern over its management. In July 2004, the senior vice president again wrote to the plaintiffs reiterating the bank’s position that it had not guaranteed an annual distribution to the plaintiffs for life irrespective of whether the Trust corpus was depleted, and suggesting that any decline in the Trust was the result of the fixed annual distributions and unfavorable market conditions affecting the return on the Trust’s investments.

By September 2011, the corpus of the Trust was completely depleted. Wells Fargo made a final distribution that year to the plaintiffs of $75,744, and then closed the Trust account. From February 2000 through September 2011, the plaintiffs received $1,625,288 in annual distributions from the Trust. The plaintiffs deferred $335,796 in federal capital gains taxes and received a charitable deduction of $203,012 in tax years 2000 and 2001.

On April 16, 2012, the plaintiffs sued Wells Fargo for damages, alleging that the bank in its capacity as trustee had violated its fiduciary duties of prudent administration and loyalty by failing to adhere to the investment objectives of the plaintiffs and mismanaging the assets of the Trust, causing the corpus to be exhausted after 11 years. The plaintiffs also claimed that Wells Fargo had breached a contractual promise to provide them with an annual distribution of $142,818 for the rest of their lives.

Wells Fargo answered, denying liability. Following discovery, the plaintiffs moved for partial summary judgment on their claim for breach of the Trust Agreement, asserting that the uncontroverted evidence showed that the bank had a contractual obligation to pay them $142,818 annually for their lifetimes, even if the Trust corpus was exhausted. Wells Fargo then moved for summary judgment on all of the plaintiffs’ claims, contending that they were barred by the applicable statute of limitation and/or that the plaintiffs could not prove all of the necessary elements to recover under either a breach of fiduciary duty theory or a breach of contract theory.

After conducting a hearing where the parties presented oral argument, the trial court denied both motions for summary judgment. The trial court issued a certificate of immediate review, and both parties filed applications for interlocutory appeal. We granted the applications, and these companion appeals followed.

Case No. Al 5A0202

1. Wells Fargo contends that the trial court erred in denying its motion for summary judgment on the plaintiffs’ claims for breach of fiduciary duty because (a) any claims relating to the failure to follow the plaintiffs’ investment objectives and mismanagement of the Trust that accrued before April 2010 are barred by the applicable statute of limitation and (b) any remaining claims that accrued after 2010 fail as a matter of law because the plaintiffs have not come forward with evidence sufficient to prove all of the essential elements of a breach of fiduciary duty claim. We agree with Wells Fargo.

(a) Claims Relating to the Management of the Trust before April 2010. The plaintiffs’ claims relating to the alleged failure to follow their investment objectives and mismanagement of the Trust that accrued before April 2010 are barred as a matter of law by the applicable statute of limitation. Wells Fargo had the burden of proving that the limitation period had run on these claims, see Smith v. SunTrust Bank, 325 Ga. App. 531, 539 (1) (754 SE2d 117) (2014), and it met that burden as a matter of law.

The parties do not dispute that the plaintiffs’ breach of fiduciary duty claims are governed by the limitation period set forth in the Revised Georgia Trust Code of 2010, OCGA § 53-12-307 (a). See Smith, 325 Ga. App. at 537-538 (1), n. 8. OCGA § 53-12-307 (a) provides two different limitation periods for actions brought by beneficiaries against trustees — six years and two years. See Hasty v. Castleberry, 293 Ga. 727, 730 (2) (749 SE2d 676) (2013); Smith, 325 Ga. App. at 537-538 (1). The limitation period is reduced from six to two years for claims where “a beneficiary has received a written report that adequately discloses the existence of a claim against the trustee for a breach of trust.” OCGA § 53-12-307 (a). A written report provides adequate disclosure of a claim “if it provides sufficient information so that the beneficiary knows of such claim or reasonably should have inquired into the existence of such claim.” Id. If such a written report has been received by the beneficiary, a claim for breach of trust is “barred as to that beneficiary unless a proceeding to assert the claim is commenced within two years after receipt of the report.” Id.

“Report” is not defined in OCGA § 53-12-307 (a). But

[o]ur Supreme Court recently held that a “report” under this statutory provision should be construed to mean a report from a trustee to a beneficiary containing “detailed information” that includes “the assets, liabilities, receipts, and disbursements of the trust, the acts of the trustee, and the particulars relating to the administration of the trust, including the trust provisions that describe or affect such beneficiary’s interest.”

Smith, 325 Ga. App. at 541 (1) (quoting from Hasty, 293 Ga. at 731-732 (2)). See OCGA § 53-12-243 (a).

Here, the uncontroverted evidence shows that Wells Fargo sent detailed trust statements to the plaintiffs on a quarterly, yearly, and sometimes monthly basis beginning on March 21, 2000, and continuing through September 30, 2011, when the Trust was exhausted. The plaintiffs admitted to receiving the statements from Wells Fargo. Among other things, the Trust statements identified the Trust, the trustee, the time period covered by each statement, a breakdown of the investment funds in which the Trust was invested, and a description of every transaction and disbursement made by the trustee during the time period designated in each statement. The statements included an account summary for the designated time period and information regarding the gains and losses on investments made by the Trust, income and dividend receipts, current yields of the investment funds, and beginning and ending balances. These statements consistently showed the value of the Trust declining over time.

The Trust statements contained sufficiently detailed information to inform the plaintiffs of potential claims based on the alleged failure to follow their investment objectives and mismanagement of the Trust, as the plaintiffs’ own conduct over the years reflects. The plaintiffs informed bank officials of their concerns over the management of the Trust as early as 2002, and they retained an attorney in 2003 who sent a letter to the Wells Fargo senior vice president of charitable services indicating their continued concerns regarding the management of the Trust. The plaintiffs met with the senior vice president in 2004 to reiterate their concerns over depletion of the Trust and its management.

Under these circumstances, we conclude that the regular periodic Trust statements received by the plaintiffs met the requirements of a “report” under OCGA § 53-12-307 (a), and upon receipt of each statement the two-year statute of limitation began to run on any claims that had accrued by that point. See Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 388-389 (4) (649 SE2d 779) (2007) (plaintiff’s claims based on alleged mismanagement of retirement savings account barred by statute of limitation where the plaintiff received quarterly account statements that disclosed the allocation of stock holdings in the account and the losses sustained as a result of those holdings). Compare Hasty, 293 Ga. at 732 (2) (letter to plaintiff from his accountants that failed to contain detailed information and “was simply a form of general correspondence” did not constitute a “report” under OCGA § 53-12-307 (a)). Accordingly, all of the plaintiffs’ breach of fiduciary duty claims predicated on the alleged failure to follow their investment objectives and mismanagement of the Trust are barred as a matter of law, except for claims that accrued in the two years before the plaintiffs filed suit (April 2010 to April 2012).

The plaintiffs argue, however, that none of their breach of fiduciary duty claims accrued until September 2011, when Wells Fargo first failed to pay them their full annual distribution of $142,818, because that was when they were first damaged by the bank’s management of the Trust. We disagree.

Georgia courts have rejected application of a continuing tort theory to claims for breach of trust. See Allen v. Columbus Bank & Trust Co., 244 Ga. App. 271, 272 (1) (534 SE2d 917) (2000). Rather, “[e] ach act of alleged mismanagement by a trustee that detrimentally affects a beneficiary creates a new cause of action for that specific act of mismanagement” on which the statute of limitation begins to run. Smith, 325 Ga. App. at 545 (2) (b). See Mayfield v. Heiman, 317 Ga. App. 322, 325 (1) (730 SE2d 685) (2012); Allen, 244 Ga. App. at 272 (1).

Furthermore, the limitation period begins to run when the plaintiff first experiences any appreciable harm, even though the harm might be slight and most of the harm occurs at some later point. Cf. Stocks v. Glover, 220 Ga. App. 557, 558 (1) (469 SE2d 677) (1996) (breach of fiduciary duty claim against attorney “begins as soon as there is a breach of the attorney’s duty and some degree of harm, however, even if the degree of harm is minimal and much or most of the harm occurs later”); Leon Jones Feed & Grain v. Gen. Business Svcs., 175 Ga. App. 569, 570 (333 SE2d 861) (1985) (noting that cause of action accrues “where even slight or nominal damage occurs as a result of the wrongful act” in the context of a claim for negligent performance of financial and tax advice services). Based on this principle, we have held that each time a trustee makes an investment which the beneficiary alleges to have constituted mismanagement, the trust is detrimentally affected, and a cause of action accrues in favor of the beneficiary at that point and the limitation period begins to run on that specific claim. See Mayfield, 317 Ga. App. at 325 (1); Allen, 244 Ga. App. at 272 (1).

When these principles are applied to the present case, it is clear that any claim for breach of fiduciary duty by the plaintiffs based on Wells Fargo’s decision to sell all of the Analog stock on February 28, 2000, after the value of the stock had declined $225,266 from the day of the transfer, accrued on the date of the stock sale. See Mayfield, 317 Ga. App. at 325 (1); Allen, 244 Ga. App. at 272 (1). Likewise, any breach of fiduciary duty claim based on Wells Fargo’s alleged failure to comply with the plaintiffs’ investment objectives and mismanagement of the Trust’s investment portfolio accrued on the date the specific investment was made with which the plaintiffs take issue. See id. Consequently, in light of the applicable two-year limitation period, all of the plaintiffs’ breach of fiduciary duty claims are barred, except for those based on specific investment decisions made by Wells Fargo within two years of when the lawsuit was filed (April 2010 to April 2012). The trial court therefore erred in failing to grant Wells Fargo’s motion for summary judgment on those claims that accrued before April 2010.

(b) Claims Relating to the Management of the Trust after April 2010. The plaintiffs’ remaining breach of fiduciary claims that accrued after April 2010 also fail as a matter of law, but for a different reason. It is well established that a defendant can succeed on summary judgment

by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of [the] plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). That is the situation in the instant case.

“Establishing a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” (Punctuation and footnote omitted.) SunTrust Bank v. Merritt, 272 Ga. App. 485, 489 (2) (612 SE2d 818) (2005). A trustee is not a guarantor of the value of a trust and thus can be held liable for the depreciation in value of trust assets only if the plaintiff shows that the loss in value was caused, at least in part, by a breach of fiduciary duty. See C & S Nat. Bank v. Haskins, 254 Ga. 131, 134 (1) (327 SE2d 192) (1985).

Here, it is undisputed that the corpus of the Trust continued to decline in value from April 2010 until it was completely depleted in September 2011, but that, standing alone, is insufficient to prove a breach of fiduciary duty by Wells Fargo. Notably, the plaintiffs did not present any expert testimony regarding the investment decisions or management of the Trust by Wells Fargo and otherwise have failed to cite to any evidence reflecting what the bank should have done differently to administer the Trust investments from April 2010 to September 2011 to avoid the losses to, and ultimate exhaustion of, the corpus. Nor have the plaintiffs cited to any evidence reflecting that the depletion of the Trust assets was proximately caused by any breaches of trust during the relevant time period rather than solely as the result of the required annual distributions to the plaintiffs of 7.5 percent or market conditions. Furthermore, the plaintiffs themselves cite to testimony of a Wells Fargo trust advisor reflecting that it was foreseeable by 2008 that the corpus of the Trust ultimately would be exhausted, but they nevertheless failed to present any evidence that the losses in the Trust could have been reversed or exhaustion prevented by the time period relevant here (April 2010 to September 2011). Based on this record, there has simply been a failure of proof by the plaintiffs on their breach of fiduciary duty claims relating to the administration of the Trust from April 2010 onward, and the trial court erred in failing to grant Wells Fargo’s motion for summary judgment on these claims.

2. Wells Fargo contends that the trial court erred in denying its motion for summary judgment on the plaintiffs’ claim for breach of contract. The plaintiffs claimed that the bank was contractually obligated to pay them an annual distribution of $142,818 for the remainder of their lives, irrespective of whether the Trust corpus was exhausted. According to Wells Fargo, the plain language of the Trust Agreement belies the plaintiffs contract claim. We agree with Wells Fargo.

“In construing an express trust, we look first and foremost to the language therein and interpret that language to effectuate the intent of the settlors. We turn to parol evidence only if the trust instrument is ambiguous, and we find no ambiguity here.” Ovrevik v. Ovrevik, 242 Ga. App. 95, 97 (1) (527 SE2d 586) (2000). As previously noted, Item 2 (A) of the Trust Agreement provides that “[t]he annuity amount shall be paid from income and, to the extent income is not sufficient, from principal.” Hence, by the express terms of the Trust Agreement, the trustee was only obligated to remit payments to the plaintiffs from income of the Trust, and if income was insufficient, from the principal of the Trust. Moreover, because the Trust states that payments can be made from principal, there is a recognition that payments can deplete the corpus of the Trust, but nothing in the Trust Agreement suggests that the trustee must continue making payments from its own funds if the Trust is depleted.

Decided July 8, 2015

Bryan Cave, Jennifer D. Odom, Tiffany N. McKenzie, for appellant.

James L. Ford, Sr.;Moraitakis &Kushel, Nicholas C. Moraitakis, for appellees.

Consequently, the plain language of the Trust Agreement precludes the plaintiffs’ argument that Wells Fargo was contractually obligated to pay them an annual distribution for their lives even after the corpus of the Trust had been exhausted. It follows that the trial court erred in denying summary judgment to Wells Fargo on the plaintiffs’ breach of contract claim.

Case No. A1SA0203

3. The plaintiffs contend that the trial court erred in denying their motion for partial summary judgment on their claim for breach of contract. For the reasons discussed in Division 2, the plaintiffs’ claim for breach of contract failed as a matter of law. The trial court thus did not err in denying partial summary judgment to the plaintiffs on their breach of contract claim.

Judgment affirmed in Case No. Al 5A0203. Judgment reversed in Case No. A15A0202.

Ray and McMillian, JJ., concur.

       Wells Fargo is the successor-in-interest to Wachovia, the original trustee. For ease of reference, we refer simply to “Wells Fargo” or the “bank” throughout this opinion.

       The statute of limitation may be tolled by a defendant’s fraudulent conduct, Smith, 325 Ga. App. at 538(1), but the plaintiffs concededat the summary judgment hearing that they were not claiming that the limitation period had been tolled.

         The plaintiffs argue that the Trust statements do not constitute “reports” because they do not reference any specific provision of the Trust. We are unpersuaded. In Hasty, 293 Ga. at 732 (2), our Supreme Court held that the “report” should contain the “type of detailed information contemplated by the Legislature” in OCGA § 53-12-243 (a), not that the reports under OCGA § 53-12-307 must include every item listed to qualify for the two-year statute of limitation. See Smith, 325 Ga. App. at 541 (1). The Trust statements, as previously discussed, provided sufficiently detailed information to put the plaintiffs on actual or constructive notice of any claims.

       In their appellee brief, the plaintiffs assert that “[a]ll [the bank’s investment manager assigned to the Trust during the relevant time period] did was to sell off enough of the mutual fund investments each quarter to pay [the plaintiffs] their annuity distribution.” The plaintiffs cite to one page of the investment manager’s deposition testimony to support their assertion, but the manager simply testified on that page that when distributions were due the plaintiffs, he would sell some of the assets in the Trust to raise cash; he did not testify that all he did in managing the Trust was to sell assets to fund the distributions. Elsewhere in his deposition, the investment manager testified that he had the responsibility for determining which assets were held in the trusts assigned to him, including the Trust at issue here, and would decide which equity funds to buy or sell as part of the allocation of securities for those trusts. According to the investment manager, in making these allocation decisions, he would look to a list of recommended mutual funds developed by the bank, and he would use a software program created by the bank that recommended what types of investments should be included in a particular type of trust. The plaintiffs presented no evidence that any of the decisions by the investment manager to buy or sell particular investments in the Trust during the relevant time period constituted a breach of fiduciary duty.

       Wells Fargo also argues that the statute of limitation under the Revised Georgia Trust Code of 2010, OCGA § 53-12-307 (a), should apply to the plaintiffs’ breach of contract claim and that a trust is not a contract under Georgia law. We do not address these arguments in light of our conclusion that the plaintiffs’ contentions are inconsistent with the plain language of the Trust Agreement.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A15A0284.
    GAUSE et al. v. FIDELITY BANK.
    (775 SE2d 207)
   Miller, Judge.

This case arises from William L. Gause and Gause Construction Company, Inc.’s (collectively “Defendants”) default on a promissory note and unconditional guaranty. Fidelity Bank, the holder of the note and guaranty, sued the Defendants for breach of the note and guaranty. Defendants counterclaimed for, inter alia, set-off and recoupment. The trial court subsequently granted summary judgment to Fidelity, and the Defendants appeal, contending that (1) the trial court erred in granting summary judgment to Fidelity on the guaranty and note, (2) the trial court erred in granting summary judgment to Fidelity on the Defendants’ counterclaims for set-off and recoupment, and (3) the trial court abused its discretion in considering and relying on certain deposition testimony. For the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280, 281 (682 SE2d 369) (2009).

So viewed, the evidence shows that Gause obtained a $ 1.1 million loan from Fidelity’s predecessor-in-interest, Securities Exchange Bank (“SEB”) on August 11, 2008, for the purchase of 25 lots in a subdivision. The loan was evidenced by a contemporaneous promissory note signed by Gause (hereinafter the “Note”). That same day, as part of the security for the loan, Gause signed an unconditional guaranty of the note on behalf of Gause Construction (hereinafter the “Guaranty”), as well as a corporate resolution authorizing him to execute the Guaranty and a corporate W-9 form. On April 28, 2010, Gause renewed the Note for a two-year term in the principal amount of $1,100,900. Gause and Gause Construction admittedly failed to pay the Note in full by the due date, April 28, 2012.

1. The Defendants contend that the trial court erred in granting summary judgment to Fidelity on the Note and Guaranty. We agree in part.

(a) Gause’s Breach of the Note

“A promissory note is an unconditional contract whereby the maker engages that he will pay the instrument according to its tenor. . . . The note being an unconditional promise, the contract is complete as written[.]” (Citations and punctuation omitted.) Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747, 749 (2) (426 SE2d 645) (1992).

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

(Punctuation and footnote omitted.) Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 795 (1) (b) (709 SE2d 336) (2011).

Defendants argue that a question of fact remains regarding mutual assent to the Guaranty and, therefore, the trial court erred in finding that the Note is a separate, independent and enforceable contract. Contrary to Defendants’ argument, a

guaranty, whether entered into on the same or another instrument as that of the original obligation, whether executed at the same or a different time, and whether or not purporting to be the separate obligation of the signer... is a separate [and enforceable] contract^]

(Citations omitted.) Bearden v. Ebcap Supply Co., 108 Ga. App. 375 (133 SE2d 62) (1963); see also OCGA § 10-7-1 (defining guaranty contract and providing that principal remains bound for its debt regardless of whether guaranty is given in consideration for benefit flowing to guarantor or for benefit given to principal). Fidelity established a prima facie case by producing the Note; the undisputed evidence showed that the Note was duly executed and was admittedly in default; and Defendants failed to establish a defense to enforcement of the Note. Accordingly, the trial court properly determined that Fidelity was entitled to summary judgment on its claim for breach of the Note.

(b) Gause Construction’s Breach of the Guaranty

In a suit on a guaranty, production of the instrument entitles the holder to recover on it when the signature is admitted or established and the defendant does not establish a defense. See L. D. F. Family Farm v. Charterbank, 326 Ga. App. 361, 363 (756 SE2d 593) (2014).

Here, Fidelity produced the contemporaneous Guaranty which identifies Gause Construction as the guarantor. The Guaranty is incorporated into the Note; the Guaranty provides that it was given in consideration of the Note and other financial accommodations made by Fidelity which are of direct interest and benefit to Gause Construction as the guarantor; and the Guaranty provides that Gause Construction “unconditionally guarantees the full and prompt payment” of the Note when due. Moreover, the closing attorney, who prepared the loan documents, including the Note and Guaranty, testified in his deposition that the Guaranty was prepared under his supervision at SEB’s direction and that Gause signed the Guaranty at the loan closing.

Defendants nevertheless argue that a question of fact remains regarding mutual assent to the Guaranty. Specifically, Defendants argue that they have disputed the authenticity and validity of the Guaranty from the beginning of this case, and argue that the page bearing Gause’s genuine signature on the Guaranty was attached without his knowledge or consent. In their defense, Defendants point to Gause’s testimony.

Gause initially deposed that he did not recall executing that instrument. In his subsequent affidavit, Gause averred:

Since my deposition, I have carefully examined the copy of the purported August 11, 2008 Guaranty Agreement handed to me and attached to Fidelity Bank’s Complaint. I am certain that I did not execute the Guaranty. While it does appear to bear my signature on the last page, I believe the signature page may have [sic] come from another document and [was] attached to give the appearance that I signed it.

As the nonmoving party to Fidelity’s summary judgment motion, the Defendants were not required to present conclusive proof that Gause’s signature was invalid. Lee v. SunTrust Bank, 314 Ga. App. 63, 65 (722 SE2d 884) (2012). Rather, Defendants only had to point to evidence giving rise to a triable issue of material fact, which they did by submitting Gause’s affidavit averring that he did not sign the Guaranty. Id.

Notwithstanding considerable evidence in the record to the contrary, including the closing attorney’s testimony, we are constrained to conclude that Gause’s affidavit testimony stating that he did not execute the Guaranty is sufficient to create a genuine issue of fact with regard to the enforceability of that instrument. See Virgil v. Kapplin, 187 Ga. App. 206, 207 (1) (369 SE2d 808) (1988) (guarantor’s affidavit stating that he did not sign guarantees at issue raised genuine issue of fact); Lee, supra, 314 Ga. App. at 65 (affidavit denying validity of signature created factual dispute for trial). Accordingly, we reverse the grant of summary judgment to Fidelity on its claim for breach of the Guaranty.

2. Defendants contend that the trial court erred in granting summary judgment on the Defendants’ counterclaims for set-off and recoupment. We do not agree.

Under Georgia law, a set-off... allows the defendant to set off a debt owed him by the plaintiff against the claim of the plaintiff. A recoupment isa right of the defendant to have a deduction from the amount of the plaintiff’s damages because the plaintiff has not complied with the cross-obligations or independent covenants arising under the contract being sued upon.

(Footnotes omitted) Automated Print v. Edgar, 288 Ga. App. 326, 330 (2) (654 SE2d 413) (2007). The Defendants argue that they are entitled to set-off and recoupment based on $200,000 in loans to SEB which Gause made between December 30, 2008 and January 2, 2009. Gause’s own deposition testimony, however, shows that the loans in question were made to a separate and distinct entity, SEB Bancorp, Inc., and not to Fidelity’s predecessor-in-interest, SEB. Accordingly, the trial court did not err in granting summary judgment to Fidelity on the Defendants’ counterclaims for set-off and recoupment.

3. Defendants contend that the trial court erred in considering the closing attorney’s deposition testimony. We discern no error.

The record belies Defendants’ argument that they were unaware that Fidelity intended to take the closing attorney’s deposition. Notably, the record shows that, more than a week prior to taking the deposition, Fidelity served Defendants with a copy of the subpoena requiring the closing attorney to appear for his deposition, as well as the notice of the deposition, and Fidelity filed these documents with the trial court the day after such service. Moreover, Defendants admitted at the hearing in this case that they had notice of the closing attorney’s deposition, but did not participate in or attend the deposition.

Defendants also argue that the trial court erred in failing to strike the closing attorney’s deposition from the record because it was taken after the close of formal discovery in this case. “Atrial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” (Citations omitted.) Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 473 (1) (467 SE2d 517) (1996). Defendants have not shown that the trial court abused its discretion in failing to strike the closing attorney’s deposition testimony.

Decided July 8, 2015

Caldwell & Watson, Harmon W. Caldwell, Jr., Robert S. Carlson; Cauthorn Nohr & Owen, Thomas E. Cauthorn, for appellants.

Arnall Golden Gregory, David J. Marmins, Rebecca I. Lunceford, for appellee.

Judgment affirmed in part and reversed in part. Andrews, P. J., concurs.

Branch, J., concurs fully as to Divisions 1 (a), 2 and 3 and concurs in judgment only as to Division 1 (b).

       After SEB failed and went into receivership, Fidelity purchased SEB’s assets from the FDIC.

       In connection with the loan, Gause also signed a waiver of rights to notice and hearing in the event of default.

       The loan security also included a security deed on the 25 lots and an assignment of rents and leases.

       Since Gause initially deposed that he did not remember signing the Guaranty, his affidavit testimony stating that he certainly did not sign the Guaranty cannot he construed as contradictory, and we must construe his affidavit testimony in the light most favorable to him as the nonmovant. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (1) (343 SE2d 680) (1986); Virgil, supra, 187 Ga. App. at 207 (1).


author: BARNES, Presiding Judge. RAY, Judge,

text:
    A15A0329.
    SMITH v. THE STATE.
    (775 SE2d 211)
   BARNES, Presiding Judge.

A jury found Velbert Denorris Smith guilty of forgery in the first degree, tampering with evidence, misdemeanor obstruction of a law enforcement officer, and possession of cocaine. Smith filed a motion for new trial, which the trial court denied. On appeal, Smith contends, among other things, that the trial court deprived him of his constitutional right to self-representation by not allowing him to represent himself at trial. We agree with Smith and therefore must reverse his convictions and remand the case to the trial court for a new trial.

Following a criminal conviction, we view the evidence in the light most favorable to the verdict. Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). So viewed, the evidence showed that on December 4, 2009, Smith walked into a branch of Bank of America in Douglas County. Smith approached one of the bank tellers and handed her a check made payable to him for $965. The check was drawn on a restaurant’s business account and was signed in the name of the individual who owned the restaurant. Smith told the teller that he did not have an account at the bank but wanted to cash the check.

When the teller entered information about the check into her computer, she received a prompt to verify the signature on the check. After comparing the restaurant owner’s signature card that was on file at the bank to the signature on the check, the teller determined that the signatures did not match. The teller then notified her supervisor of the issue and called the restaurant owner to verify if he knew Smith. The restaurant owner denied that he knew Smith and asked the bank to call the police.

While another bank employee called the police, the teller informed Smith that the bank was attempting to verify the signature of the account holder. Smith became agitated and demanded that the teller return the check to him. He then snatched the check away from the teller and went to leave the bank.

To delay Smith from leaving the bank until the police arrived, an assistant branch manager who had been informed of the potential forgery approached Smith, asked if she could help him, and requested to see the check and his identification. Smith handed the check and his identification to the assistant manager and told her that he had performed some work for the restaurant’s owner and that this was his payroll check. The assistant manager noted from the check that the restaurant had a Suwanee address and from Smith’s identification that he lived in Atlanta. When the assistant manager asked Smith why he had traveled to such a distant bank branch to cash a check from a Suwanee business when he lived in Atlanta, Smith asked for the check and his identification back from the assistant manager and then grabbed the check from her. The assistant manager handed Smith back his identification, and he left the bank.

A police officer who was working off-duty as a security guard for the bank was parked nearby in his marked patrol car. After receiving information about the forgery in progress at the bank, including a description of the suspect, the officer, who was in his police uniform, approached Smith outside the bank and inquired about the check. Smith responded that he had been trying to cash the check, and the officer saw that Smith was holding the check in his left hand. The officer advised Smith that he was under arrest for forgery and attempted to handcuff him, but Smith began struggling with the officer. The officer ultimately was able to subdue Smith and handcuff him, but the officer noticed that the check was missing. The officer searched through Smith’s clothing in an effort to find the check, and, in the process of doing so, discovered a glass pipe with cocaine residue inside of it. The officer, however, was unable to find the check in Smith’s clothing, and he asked Smith to open his mouth. When Smith complied, the officer saw the check dangling from the roof of his mouth. Smith started to chew it. The officer applied pressure to Smith’s cheek to keep him from swallowing the check, and Smith eventually spit it out.

Smith was indicted for forgery in the first degree, tampering with evidence, felony obstruction of a law enforcement officer, and possession of cocaine. At the ensuing jury trial, the forged check and glass pipe with cocaine residue inside of it were introduced into evidence. The bank teller, assistant branch manager, and police officer testified to the events as set out above. The restaurant owner also testified that he did not know Smith, had not written a check to him, and had not authorized anyone in his business to write a check to him. The owner was shown the check at issue and confirmed that the signature on it was not his own. Additionally, a forensic chemist, who worked at the State crime lab and was qualified as an expert in drug identification, opined that the residue inside the glass pipe found in Smith’s clothing was cocaine.

After the close of the evidence and charge of the court, the jury found Smith guilty of forgery in the first degree, tampering with evidence, the lesser included offense of misdemeanor obstruction of a law enforcement officer, and possession of cocaine. Smith then filed a motion for new trial. Following a hearing, the trial court denied Smith’s motion, resulting in this appeal.

1. The evidence introduced at trial and summarized above was sufficient to authorize a rational jury to find Smith guilty beyond a reasonable doubt of forgery in the first degree, tampering with evidence, misdemeanor obstruction of a law enforcement officer, and possession of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Smith contends that the trial court deprived him of his constitutional right to self-representation by summarily ruling that he could not represent himself at trial without following the procedures as set forth in Faretta v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975), and its progeny. We agree.

The record reflects that in December 2009, an attorney with the Douglas County Public Defender’s Office was appointed to represent Smith. In February 2010, Smith sent a letter to the clerk of the trial court indicating that he wished for his appointed counsel to be dismissed from the case so that he could represent himself. A few months later, Smith filed a “Motion to Have Attorney Removed as Ineffective Counselor.”

In April 2010, based on Smith’s conduct and demeanor during pretrial proceedings, and with the agreement of Smith’s appointed counsel, the trial court ordered a mental health evaluation to determine, among other things, whether Smith was competent to stand trial. Because Smith refused to cooperate with the evaluation, the forensic psychologist who attempted to interview him was unable to offer an opinion as to his competency.

The trial court subsequently entered an order confining Smith in an inpatient mental health facility so that his mental competency could be better evaluated. Smith participated in his inpatient evaluation with a forensic psychologist, who concluded that Smith was competent to stand trial. The psychologist noted in his report that Smith had expressed a desire to have his appointed counsel removed from the case; that Smith understood the role of defense counsel; that Smith could participate in his legal defense; that Smith understood “the nature and object of the proceedings and his situation in reference to the proceedings”; and that his request to represent himself was the result of “willful personal choice rather than mental incompetence.”

After receiving the inpatient mental health evaluation and conducting a hearing, the trial court allowed Smith’s appointed counsel to withdraw from the case so that Smith could represent himself. Thereafter, at a calendar call on April 28, 2011, Smith appeared pro se and announced that he was ready for trial. However, on May 2, 2011, the day before his trial was set to commence, Smith filed a “Motion For Requested Private Effective Attorney And/Or Counselor Of Law.” The trial court granted the motion, continued the trial date, and appointed a new attorney to represent Smith. The new counsel filed his notice of appearance in the case on May 9, 2011.

The case was called for trial a second time on November 14,2011. Before a jury was selected, Smith’s counsel announced that he was ready to proceed, but Smith immediately asserted to the trial court, “I would like to bring notice to you, he’s not going to represent me. I will represent myself.” Smith then asked for a continuance so that he could “prepare [himself] for this jury trial and have this attorney removed from [the] case.” Smith further stated in part, “He don’t need to represent me during nothing. I can do that very well____There’s no way possible that this attorney can represent me during anything. I refuse to acknowledge him as the attorney, period.” Smith then reiterated several times to the trial court that he wished to represent himself and did not want his appointed counsel to try the case on his behalf.

The trial court denied Smith’s request to represent himself and ordered that the trial would proceed forward that day with Smith’s appointed counsel continuing to represent him. The court denied Smith’s request to proceed pro se in light of the fact that Smith had previously requested and been permitted to represent himself but then had changed his mind on the eve of trial. As the trial court later explained in its order denying Smith’s motion for new trial, the court had been “fully prepared to allow [Smith] to represent himself” at trial after he made his first request for self-representation, but the court believed that Smith’s request to represent himself a second time was a dilatory tactic, designed to delay the administration of justice, and had denied his second request on that basis.

The trial court’s decision to deny Smith’s request for permission to represent himself was in error. Both the federal and state Constitutions guarantee a criminal defendant the right to represent himself. See U. S. Const. Amend. VI; 1983 Ga. Const., Art. I, Sec. I, Par. XII; Faretta, 422 U. S. at 819 (III) (A); Howard v. State, 251 Ga. App. 243, 245 (6) (553 SE2d 862) (2001). We recently summarized the proper procedure that must be followed when a defendant asserts his constitutional right to self-representation:

If a defendant makes an unequivocal assertion of his right to represent himself prior to trial, the request should be followed by a Faretta hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation. Once given pro se status, the defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial. Deprivation of the right to self-representation is structural error, i.e., errors that require automatic reversal. There are limits to this right, however. Even for those who are competent to stand trial, a State may insist upon representation by counsel for those who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.

(Citations, punctuation and emphasis omitted.) Thomas v. State, 331 Ga. App. 641, 658 (7) (771 SE2d 255) (2015). See Faretta, 422 U. S. at 819-820 (III) (A), 835-836 (V); Indiana v. Edwards, 554 U. S. 164, 178 (III) (128 SCt 2379, 171 LE2d 345) (2008); Lamar v. State, 278 Ga. 150, 152 (1) (b) (598 SE2d 488) (2004); Bettis v. State, 328 Ga. App. 167, 168-169 (1) (761 SE2d 570) (2014).

Here, although Smith made several unequivocal assertions of his right to represent himself before the trial commenced, the trial court did not conduct a Faretta hearing and apprise Smith of the dangers and disadvantages of self-representation. Instead, the court summarily denied Smith’s request to represent himself after concluding that the request was a dilatory tactic. But the motives of a defendant are irrelevant in determining whether to honor a defendant’s pretrial, unequivocal request to represent himself; rather, the proper test is whether the defendant “knowingly and intelligently waives his or her right to counsel.” (Citation and punctuation omitted.) Lamar, 278 Ga. at 153 (1) (b). See Bettis, 328 Ga. App. at 171 (1). And while a defendant may be denied his right to self-representation if he suffers from severe mental illness to the point where he is not competent to conduct trial proceedings by himself, see Edwards, 554 U. S. at 178 (III); Thomas, 331 Ga. App. at 658 (7), the inpatient mental health evaluation ordered by the trial court and performed on Smith reflected that he was mentally competent. Indeed, after reviewing the mental health evaluation and conducting a hearing on the issue, the trial court allowed Smith to represent himself in pretrial matters and had been “fully prepared to allow [Smith] to represent himself” at trial; it was only when the court later concluded that Smith’s second request to represent himself was done with a dilatory motive that the court reversed course and refused to allow Smith to represent himself solely on that basis. “Accordingly, because the record shows that [Smith] both wished to make and was mentally competent to make a knowing and intelligent waiver of his right to counsel, and the trial court employed the wrong standard for making this determination, the trial court erred.” (Punctuation omitted.) Bettis, 328 Ga. App. at 171 (1). Because the improper denial of the right to self-representation constitutes structural error, see Thomas, 331 Ga. App. at 658 (7), Smith’s convictions must be reversed and the case remanded for a new trial.

In reaching this conclusion, we note that Williams v. State, 183 Ga. App. 373 (358 SE2d 914) (1987), relied upon by the trial court, is distinguishable from the present case. It is true that in Wiliams, this Court stated that a trial court may deny a defendant’s request to represent himself if the court finds that the request is a “dilatory tactic [ ] calculated to disrupt the proceedings against him.” Id. at 374 (1). Significantly, however, the defendant in Wiliams made his first unequivocal request to represent himself after trial had commenced, see id. at 373 (1), and the denial of a request for self-representation “made after the beginning of trial is not reversible error because a defendant cannot frivolously change his mind in midstream by asserting his right to self-representation in the middle of his trial.” (Citations and punctuation omitted.) Mason v. State, 325 Ga. App. 609, 614 (2) (a) (754 SE2d 397) (2014). Hence, read in context, the reference in Wiliams to dilatory tactics has no bearing in cases with a procedural posture like the present one, where the defendant unequivocally requests to represent himself before the trial begins.

3. Smith also contends that the trial court erred in failing to grant him a discharge and acquittal on statutory speedy trial grounds. We disagree under the facts of this case.

Under OCGA § 17-7-170, “[a] defendant who has made a proper demand for a speedy trial is entitled to an automatic discharge without further motion if he is not tried within the second term of court, provided that a jury is present at each term and is qualified to try him.” (Citation omitted.) Gifford v. State, 301 Ga. App. 50, 51 (686 SE2d 831) (2009). “But the underlying requirement remains that a valid demand for trial must exist. Absent such a demand, no right exists to be tried within a certain time frame.” Doehling v. State, 238 Ga. App. 293, 294 (518 SE2d 137) (1999).

Smith failed to file a valid demand for speedy trial pursuant to OCGA § 17-7-170. Rather, Smith filed a pro se demand for a statutory speedy trial while he was represented by his first counsel.

As a consequence of [Smith’s] representation by counsel, his pro se motion [was] void. In Georgia, a criminal defendant no longer has the right to represent himself and also be represented by an attorney. As [Smith] was represented by counsel when he filed the pro se motion, this motion was of no legal effect whatsoever.

(Citation and punctuation omitted.) Voils v. State, 266 Ga. App. 738, 742 (3) (598 SE2d 33) (2004). Because Smith did not file a valid demand for speedy trial, the trial court did not err in failing to grant Smith a discharge and acquittal pursuant to OCGA § 17-7-170. See Maddox v. State, 218 Ga. App. 320, 321 (1) (461 SE2d 286) (1995); Goodwin v. State, 202 Ga. App. 655, 656 (415 SE2d 472) (1992).

4. Smith’s remaining enumerations of error are moot and need not be addressed in light of our decision in Division 2 that his convictions must be reversed and the case remanded for a new trial.

Judgment reversed and case remanded for a new trial.

McMillian, J., concurs. Ray, J., concurs fully and specially.

Decided July 8, 2015.

Velbert D. Smith, pro se.

Brian K. Fortner, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

RAY, Judge,

concurring fully and specially.

Although I concur fully in the majority’s opinion in this case, I write to stress that I believe that the trial court acted in good faith and was understandably frustrated with the defendant.

Originally, legal counsel was provided to the defendant by the Douglas County Public Defender’s Office. By letter sent in February 2010, he asked to represent himself. With the aid of a mental health evaluation which concluded that the defendant was competent to make such a decision and generally understood the ramifications of the decision, the trial court allowed the defendant to go it alone. Yet, just before the case was called for trial, the defendant changed his mind, contacted the trial court and asked that he receive both another attorney and a continuance to allow that attorney to get up to speed. The trial court so obliged the defendant. When the case was called for trial thereafter, however, the defendant for the second time sought the discharge of his court-appointed attorney and another continuance. I find no fault in the trial court being skeptical of this request, believing it to be just a delay tactic by the defendant.

Understanding that “hindsight is 20/20,” in retrospect the trial court might have engaged in a little more dialogue with the defendant when he requested to represent himself again. If the procedures set forth in Faretta v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975), had been followed and the trial court had concluded therefrom that the defendant was authorized to make a decision to represent himself, the court could have simply stated that the trial would be that very day. A pool of citizens, after all, was waiting for jury selection to begin. I see no reason why the trial court would have automatically been required to grant another continuance. Based upon my own experiences in similar situations and the record in this case, I think the trial court was correct in concluding that the defendant was merely trying to gain a continuance so as to put off his trial as long as possible. Had his request to represent himself been granted, but with the case proceeding to trial immediately, the defendant’s real intentions may have become completely transparent, as he might well have chosen to utilize the services of the attorney that the court had provided.

       Smith was indicted on a second count of forgery in the first degree, hut the trial court later granted Smith’s motion for a directed verdict of acquittal on that count.

       Smith does not enumerate as error the trial court’s denial of his request for a continuance.

       In Coppolla v. State, 238 Ga. App. 567, 573 (2) (519 SE2d 494) (1999), we quoted the “dilatory tactics” language from Williams, but in the context where a defendant objected to his appointed counsel but then refused to respond when the trial court asked him whether he wished to represent himself without the assistance of any counsel. Coppolla thus addresses the narrow context where a defendant complains about his appointed counsel but then thwarts the trial court’s efforts to determine whether the defendant desires to represent himself. That is clearly not the situation in the present case, where Smith repeatedly and unequivocally asserted that he wanted to represent himself at trial.


author: Dillard, Judge.

text:
    A15A0340.
    AA-PROFESSIONAL BAIL BONDING v. DEAL.
    (775 SE2d 217)
   Dillard, Judge.

In this matter, AA-Professional Bail Bonding (“AAPB”) appeals from the trial court’s order denying its motion to set aside the forfeiture of a bond it issued on behalf of Anne Kisudila following her arrest for shoplifting. Specifically, AAPB contends that the trial court erred in finding that Kisudila’s entry into a pretrial diversion program did not release it from liability on the bond under a statute pertaining to that issue. For the reasons set forth infra, we affirm.

At the outset, we note that under OCGA § 9-11-60 (d) (3), a motion may be brought to set aside a judgment based upon, inter alia, a “nonamendable defect which appears upon the face of the record or pleadings.” And a trial court’s decision regarding a motion to set aside a judgment will not be reversed absent a “showing of manifest abuse of discretion.”

Here, the undisputed record shows that on February 11, 2011, Kisudila was arrested for shoplifting. That same day, she was released on bond after entering into a bond agreement with AAPB as the surety. Then, on February 23, 2011, the Gwinnett County Solicitor-General (the “State”) charged Kisudila, via accusation, with a single count of shoplifting. However, on April 13,2011, Kisudila enteredinto a pretrial diversion program, the terms of which were specifically provided for in a “Notice of Diversion/Abeyance” signed by the solicitor-general, Kisudila, and her probation officer, and which was then filed with the clerk of court.

On May 25, 2011, it was determined that Kisudila failed to comply with the terms required by the pretrial diversion program, and therefore, her shoplifting case was placed back on the court’s July 2011 arraignment calendar. When Kisudila failed to appear for arraignment on July 20, 2011, the State filed a motion for a bench warrant for her arrest and a forfeiture of her bond, both of which the trial court immediately granted. Subsequently, on December 1, 2011, the trial court held an execution hearing, after which it entered judgment on the bond forfeiture for $1,357.

Thereafter, AAPB filed a motion to set aside the order of bond forfeiture based upon a nonamendable defect in the record. Specifically, AAPB argued that it was released from liability on the bond under OCGA § 17-6-31 (d)(1)(C), prior to the order of bond forfeiture, because of Kisudila’s entry into the pretrial diversion program. The trial court held a hearing on the issue, but ultimately denied AAPB’s motion. AAPB then filed an application for discretionary review, which we granted. This appeal follows.

1. Although enumerated as three separate errors, AAPB essentially contends that the trial court erred in ruling that it was not released from liability on the bond under OCGA § 17-6-31 (d) (1) (C). Specifically, AAPB argues that the court erred in interpreting the statute to find that Kisudila’s voluntary entrance into the pretrial diversion program did not constitute entrance into a court ordered pretrial diversion program. We disagree.

In interpreting any statute, we necessarily begin our analysis with familiar and binding canons of construction. And in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Thus, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” Importantly, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must “construe the statute accordingly.”

Bearing the foregoing principles in mind, OCGA § 17-6-31 (d) (1) (C) provides that a “surety shall be released from liability if, prior to entry of judgment, there is ... [a] court ordered pretrial intervention program ... .” But here, Kisudila’s entry into the pretrial diversion program was based upon an agreement with the State’s solicitor-general rather than as the result of an explicit court order. In fact, the trial court was not involved in any part of the State’s decision to enter Kisudila into the program; its signature appears nowhere on the “Notice of Diversion/Abeyance” form, which both Kisudila and the State’s solicitor-general signed; and the court did not monitor Kisudila’s compliance — or lack thereof — with the terms of the program.

Nevertheless, AAPB contends that the pretrial diversion program at issue here was, essentially, court ordered. Specifically, AAPB posits that because an accusation formally charging Kisudila was filed, the case was completely within the jurisdiction of the trial court, and consequently, any agreement between Kisudila and the State, including an agreement for the entry of nolle prosequi, required court approval. Thus, AAPB reasons that because dismissal of the case in this instance required court approval, the Notice of Diversion/ Abeyance — which provides that the charges will be dismissed if the defendant complies with the State’s terms for the program — was, at least implicitly, similarly court-sanctioned.

We do not find AAPB’s argument persuasive. While it is certainly true that an entry of nolle prosequi must be approved by the trial court, as a practical matter, if the State chooses to no longer prosecute a defendant, the case will more than likely ultimately be dismissed. Thus, contrary to AAPB’s argument, the language used in the Notice of Diversion/Abeyance does not necessarily write a check that can only be cashed with the trial court’s endorsement. Moreover, AAPB’s reading of the term “court ordered” as embracing mere court approval of actions initiated wholly by the State is far too expansive. Indeed, such a reading does a disservice to the unequivocal term “order,” which implies a directness lacking in the term “approve.” In any event, given the court’s complete lack of involvement in this pretrial diversion program and the clear and unambiguous text of OCGA § 17-6-31 (d) (1) (C), indicating that direct involvement by the court is required in order to release a surety from liability for a principal entering into such a program, we find that the trial court’s interpretation of the statute is correct and its denial of AAPB’s motion to set aside did not amount to a manifest abuse of discretion.

2. In somewhat of an alternative argument, AAPB contends that the General Assembly implicitly excised the requirement that a pretrial diversion program be court ordered before a surety can be relieved of liability under OCGA § 17-6-31 (d) when it subsequently enacted OCGA § 15-18-80, which authorizes the State’s prosecutors to create such programs. Once again, we disagree.

Under OCGA § 15-18-80 (a),

[t]he prosecuting attorneys for each judicial circuit of this state shall be authorized to create and administer a Pretrial Intervention and Diversion Program. The prosecuting attorney for state courts, probate courts, magistrate courts, municipal courts, and any other court that hears cases involving a violation of the criminal laws of this state or ordinance violations shall also be authorized to create and administer a Pretrial Intervention and Diversion Program for offenses within the jurisdiction of such courts.

Explaining the meaning of the statute, subsection (b) provides that “[i]t shall be the purpose of such a program to provide an alternative to prosecuting offenders in the criminal justice system.” Additionally, subsection (c) directs that “[e]ntry into the program shall be at the discretion of the prosecuting attorney based upon written guidelines.”

Reading OCGA § 15-18-80 in conjunction with OCGA § 17-6-31 (d), AAPB argues that the former’s grant of authority to create pretrial diversion programs to prosecutors dispensed with the prosecutors’ need to seek court orders for such programs. Consequently, AAPB asserts that the requirement in OCGA § 17-6-31 (d) (1) (C)that only court-ordered pretrial diversion programs can relieve a surety of liability is, at best, vestigial. But again, we are not persuaded.

AAPB is correct that statutes in pari materia — i.e., statutes relating to the same subject matter — must be construed together. However, while there is slight overlap between the focus of OCGA § 15-18-80 and this one small aspect of OCGA § 17-6-31 (d) (1) (C), the assertion that the two statutes relate to the same subject matter such that the former statute implicitly amended the latter one strains credulity. Indeed, AAPB’s argument is belied by the fact that court-ordered pretrial diversion programs still currently exist (evenifrare), despite the passage of OCGA § 15-18-80. And importantly, OCGA § 15-18-80 contains no language explicitly eliminating such programs.

More accurately characterized, AAPB argues that the court-ordered pretrial diversion requirement for relieving a surety of liability in OCGA § 17-6-31 (d) (1) (C) conflicts with the authority in OCGA § 15-18-80 that allows prosecutors to bypass such orders, and that we should resolve this conflict by reading “court ordered” out of OCGA § 17-6-31 (d). But as discussed in Division 1, supra, this Court is not at liberty to casually construe statutory language as “mere surplusage.” Thus, even if we were inclined to agree that the statutes conflicted, the resolution of any tension between the two statutes is a matter for our General Assembly to address. And while AAPB may have sound policy arguments in favor of allowing a surety to be relieved of liability when a defendant enters into any type of pretrial diversion program, it is emphatically the province and duty of the judiciary to say what the law is, not what judges or parties believe it should be.

Decided July 8, 2015.

Atkins & Fife, David B. Fife, for appellant.

Rosanna M. Szabo, Solicitor-General, Casey C. Doyle, Assistant Solicitor-General, for appellee.

Accordingly, for all of the foregoing reasons, the trial court did not manifestly abuse its discretion in denying AAPB’s motion to set aside the bond forfeiture.

Judgment affirmed.

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

        A.A. Prof‘l Bail v. State of Ga., 265 Ga. App. 42, 42 (592 SE2d 866) (2004) (punctuation omitted).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (punctuation omitted); see Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013) (same).

        See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.” (punctuation omitted)); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“Ajudge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies)....”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (1st ed. 2012) (“Textualism, in its purest form, begins and ends with what the text says and fairly implies.”).

        See Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _ , _ (II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words----”); Scalia & Garner, supra 167 (“Context is a primary determinant of meaning.”).

        Deal, 294 Ga. at 172-73 (1) (a); accord Martinez, 325 Ga. App. at 273.

        In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (punctuation omitted); accord Holcomb v. Long, 329 Ga. App. 515, 518 (1) (765 SE2d 687) (2014); see also Scalia & Garner, supra 174 (“The surplusage canon holds that it is no more the court’s function to revise by subtraction than by addition.”).

        Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (punctuation omitted); accord Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009); Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

       (Emphasis supplied).

       While OCGA § 17-6-31 (d) (1) (C) references a pretrial “intervention” program, the Solicitor-General’s Office of Gwinnett County refers to this type of program as “Diversion/Abeyance.” For the sake of simplicity, we will characterize this program as a pretrial diversion program throughout the opinion, except when we are directly quoting the statutory language.

        See State v. Hanson, 249 Ga. 739, 744 (2) (295 SE2d 297) (1982) (noting that the prosecutor, as part of the authority of the office, has the sole discretion to dismiss cases prior to indictment but that the prosecutor must obtain court approval for the entry of a nolle prosequi).

        See id.

        See The Compact Oxford English Dictionary 1223 (2d ed. 1991) (defining “order” as, inter alia, to give order, to command, authoritatively direct. .. .”); id. at 66 (defining “approve” as, inter alia, to make good, assent to as good . .. .”).

        See Abdulkadir v. State, 279 Ga. 122, 123 (2) (610 SE2d 50) (2005) (noting that when “the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden” (punctuation and footnote omitted)) superseded by statute on other grounds as stated in Krirat v. State, 286 Ga. App. 650, 653 (1) (649 SE2d 786) (2007); Telecom USA, Inc. v. Collins, 260 Ga. 362, 363 (1) (393 SE2d 235) (1990) (noting that the “golden rule” of statutory construction requires an appellate court to follow the literal language of the statute unless it “produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else” (punctuation omitted)); Fidelity and Deposit Co. of Md. v. LaFarge Bldg. Materials, Inc., 312 Ga. App. 821, 823 (720 SE2d 288) (2011) (recognizing that the fundamental principle of statutory construction “requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else” (punctuation omitted)).

        See Deal, 294 Ga. at 173 (1) (a) (“|I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)); cf. Rosenberg Bail Bonds v. Orange County, 663 S2d 1389, 1389-90 (Fla. 5th DCA 1995) (holding that surety’s obligation was relieved upon defendant’s admission to a pretrial intervention program not ordered by a court pursuant to Fla. Stat. § 903.31, which provided that “[t]he original appearance bond shall not he construed to guarantee ... conduct during or appearance after admission to a pretrial intervention program .. . .”).

        See OCGA § 15-18-80 (b).

        See OCGA § 15-18-80 (c).

        See U.S. Bank Nat. Ass’n v. Gordon, 289 Ga. 12, 15 (4) (709 SE2d 258) (2011); accord Tew v. State, 320 Ga. App. 127, 130 (739 SE2d 423) (2013).

        See In the Interest of L. T., 325 Ga. App. at 592.

        See Layman v. State, 280 Ga. 794, 795 (631 SE2d 107) (2006).

        See generally Marbury v. Madison, 5 U. S. 137, 177 (2 LE 60) (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”); Finney v. Dep’t of Corr., 263 Ga. 301, 302 (1) (434 SE2d 45) (1993) (noting that the purpose of the judiciary is not to say what the law ought to provide, and that its authority extends only to interpreting the law as it was enacted by the legislature); Able, 321 Ga. App. at 636 (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies). .. .”)•


author: DOYLE, Chief Judge.

text:
    A15A0408.
    THE STATE v. GRAYSON.
    (775 SE2d 222)
   DOYLE, Chief Judge.

Laderyle Eugene Grayson was accused of committing multiple counts of battery and simple battery. During the ensuing trial, the court sua sponte declared a mistrial, and soon thereafter Grayson filed a plea in bar, which the court granted on double jeopardy and constitutional speedy trial grounds. The State now appeals, contending that (1) retrial was not barred by double jeopardy because the State did not request the mistrial and Grayson did not object to the mistrial, and (2) the trial court erred in its speedy trial analysis. For the reasons that follow, we reverse.

The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s factual findings support its legal conclusion. [Questions of law are reviewed de novo. Where the basis for the mistrial was the unavailability of critical prosecution evidence, including the unavailability of prosecution witnesses, the strictest scrutiny is appropriate.

The record shows that the State filed an accusation against Grayson in August 2012, alleging six counts of battery and seven counts of simple battery. On November 19, 2013, the first day of trial, a jury was empaneled and sworn, and the State called its first witness, a police officer. The State attempted to have the officer authenticate recordings of 911 calls made by the victim, who was under subpoena but had failed to appear at trial. Rather than hold a hearing on the admissibility of the 911 recordings as nontestimonial statements or as a necessity in light of the victim’s unexpected absence, the trial court granted a request by Grayson’s counsel to recess for the day and hear the issue the next morning.

The next morning, the trial court held a hearing on whether the victim’s statements in the 911 calls would be admissible under the hearsay exception in OCGA § 24-8-804 (b) for unavailable witnesses. During the hearing, it became clear that the 911 caller made reference to Grayson’s alleged cocaine use, but Grayson’s counsel apparently had been unaware of this content in the recording. The trial court then announced as follows:

COURT: This case has a plethora of issues with it, none intentionally caused by [the State. The 911 recording] is just a statement that [defense counsel] did not have before the trial started concerning his client had been using cocaine; is that correct, [defense counsel]?
DEFENSE COUNSEL: Yes, Your Honor.
COURT: All right. Also, the [S]tate was ambushed by the witness who didn’t show up for court and said she’d be there. It is a fact that [defense counsel] didn’t have the statement that he needed as far as to provide a proper representation for Mr. Grayson. I erred by not granting a mistrial yesterday. It’s not something anyone requested, but I should have given a mistrial because he didn’t have all the information he needed to properly represent his client.
There is nothing I’ve seen today that I think could cure that. I think that he and his client needed more of an opportunity to flesh out that call and to speak to the witness about it, to be able to have cross-examination. Because of that, I’m declaring a mistrial in this case. We will reset it [for retrial in two months]. I think that any issue that either side has between now and then ... we should be able to . . . straighten out all discovery issues.
I know, [prosecutor,] you inherited this case from other attorneys. [Defense counsel,] do you believe that will be a sufficient time for you to make sure that you have everything necessary to represent Mr. Grayson?
DEFENSE COUNSEL: Thank you, Your Honor.

The court then adjourned the matter until the retrial.

On November 25, 2013, Grayson filed a plea in bar raising his constitutional right to a speedy trial, later amending it on December 17, 2013, to argue that double jeopardy had attached barring a retrial. The State responded on January 13, 2014, and the trial court granted Grayson’s out-of-time statutory speedy trial demand on April 30, 2014. Grayson then filed a Demand for Constitutional Speedy Trial on June 10,2014. On July 14, the trial court granted the plea in bar on double jeopardy grounds and ruled that Grayson could not be retried, giving rise to this appeal.

1. The State argues that retrial is not barred under the present circumstances because the State did not request the mistrial and Grayson did not object to the mistrial. We agree.

The trial court’s double jeopardy order focused on Julian v. State. As stated in that case,

[o]nce a defendant’s jury is impaneled and sworn, jeopardy attaches, and he is entitled to be acquitted or convicted by that jury. If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a “manifest necessity” for the mistrial.

Finding that there was no “manifest necessity” for the mistrial it granted sua sponte, the trial court ruled that Grayson could not be retried.

Pretermitting whether reversal is required by the trial court’s ruling that there was no “manifest necessity” for the mistrial, the trial court committed reversible error by overlooking the fact that Grayson consented to the mistrial, which was done in part to aid his defense. As explained by the trial court, it perceived a need for the mistrial based in part on the “ambush” to the State by the absence of a subpoenaed witness, but also to allow Grayson additional time to properly investigate the evidence in light of that witness’s absence and to prepare for appropriate testing of that evidence at trial. Thus, despite acknowledging that neither party requested the mistrial, the trial court deemed it necessary to benefit both parties, explicitly finding that Grayson “didn’t have all the information he needed to properly represent his client.”

When informed of the trial court’s ruling, Grayson’s counsel did not question the ruling or pose any objection, merely stating, “Thank you, Your Honor.” Based on this record, we conclude that the mistrial was not granted over Grayson’s objection or without his consent. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.”

Consent to the grant of a mistrial can be express or implied[, and although [Grayson] did not expressly consent to a mistrial, he impliedly consented by failing to object timely to the mistrial declaration. It follows that the trial court erred in barring further prosecution of [Grayson].

2. The State also contends that Grayson’s plea in bar fails on constitutional speedy trial grounds, which Grayson urged in his initial plea, and on which the trial court also based its ruling granting the plea in bar in a separate order. Specifically, the State argues that the trial court erred in its speedy trial analysis.

The Sixth Amendment of the United States Constitution guarantees that, in all criminal prosecutions, the accused shall enjoy the right to a speedy trial. This right is enshrined in the Georgia Constitution and is co-extensive with the federal guarantee made applicable to the states by virtue of the Fourteenth Amendment of the United States Constitution. Every constitutional speedy trial claim is subject to a two-tiered analysis as set forth in the United States Supreme Court decisions Barker v. Wingo,[] and Doggett v. United States. [] As for the first tier of the analysis, it must be determined if the delay in question is presumptively prejudicial. If not, there has been no violation of the constitutional right to a speedy trial and the second tier of analysis is unnecessary. If, however, the delay is determined to be presumptively prejudicial, then the court must engage the second tier of analysis by applying a four-factor balancing test to the facts of the case. Those four factors include: (1) whether the delay is uncommonly long; (2) reason for delay/ whether the government or the defendant is more responsible; (3) defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant. On appeal, the relevant standard of review is whether the trial court abused its discretion.

“As the delay approaches one year it generally is presumptively prejudicial.”

Here, the trial court concluded that the delay in trial was more than one year, apparently relying on the date of the August 2012 accusation.

While typically the time for speedy trial attaches at the date of arrest (or date of indictment/accusation if earlier), in this case [Grayson was] actually tried[, and he had not moved for dismissal on speedy trial grounds prior to that trial]. . . . Therefore, . . . the relevant time frame for purposes of the instant motion to dismiss on constitutional speedy trial grounds is from the date of the mistrial, November [20], 20 [13], through the date the motion was [ruled upon on July 14, 2014].

Decided July 8, 2015.

TashaM. Mosley, Solicitor-General, ShalondaJones-Parker, Assistant Solicitor-General, for appellant.

Lister & Holt, Steven E. Lister, Rashida A. Davis, Reginald B. McClendon, Audrey A. Lewis, for appellees.

This delay was approximately eight months and therefore not presumptively prejudicial.

Grayson points out that this Court has construed this analysis to apply only where there is no prosecutorial misconduct on the part of the State that caused the mistrial. Grayson argued to the trial court that the mistrial was caused by the State’s lack of diligence in securing its witness’s presence in court. Nevertheless, the State countered that it had subpoenaed the witness, and an investigator had been in close contact with the witness in the days and weeks leading up to the trial, even arranging to transport the witness to the courthouse. In light of this scenario, the trial court found that the State was not at fault and was not to blame for the witness’s failure to appear. We discern no error in this aspect of the trial court’s ruling, and in light of this finding, the trial court erred by calculating the delay from the date of the accusation. Properly calculated, the delay was less than one year and not presumptively prejudicial. Accordingly, Grayson’s “rights to a speedy trial have not been violated, and there is no basis to engage in the four-factor Barker-Doggett balancing test.”

Judgment reversed.

Phipps, P. J., and Boggs, J., concur.

       (Citations and punctuation omitted.) Jackson v. State, 305 Ga. App. 727, 727-728 (700 SE2d 714) (2010).

       The State argued that it was not required to disclose the victim’s nonexculpatory written statement to the defendant because it was a misdemeanor case, citing Brown v. State, 246 Ga. App. 517, 520 (4) (541 SE2d 112) (2000). Elsewhere, the State argued that the defense was aware of the 911 recordings. We do not opine on that issue in the present context.

       319 Ga. App. 808 (738 SE2d 647) (2013).

       (Punctuation omitted.) Id. at 810.

       The trial court based this conclusion on the fact that reasonable minds could differ as to whether a mistrial was required. This misconstrues Julian, which merely holds that, on appeal, the reviewing court will afford the trial court “great deference” as to whether there was a manifest necessity to grant a mistrial. Thus, a mistrial can he properly affirmed “even though in a strict, literal sense, the mistrial is not ‘necessary.’ ” Id. at 811. Contrary to the trial court’s reading, Julian does not stand for the proposition that “whether a defendant can be tried again ... hinges on whether reasonable judges could differ as to the proper way to handle the matter that was the subject matter of the mistrial [in this case].”

       The State was ready to proceed and argued that the trial could go forward without the missing witness.

       (Punctuation omitted.) Compton v. State, 281 Ga. 45, 46 (2) (635 SE2d 766) (2006).

       (Citations and punctuation omitted.) State v. Johnson, 267 Ga. 305, 305-306 (477 SE2d 579) (1996).

       407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).

       505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992).

       (Citations and punctuation omitted.) Brewington v. State, 288 Ga. 520, 520-521 (1) (705 SE2d 660) (2011).

       (Citation and punctuation omitted.) State v. White, 282 Ga. 859, 861 (2) (a) (655 SE2d 575) (2008).

       (Footnote omitted.) Brewington, 288 Ga. at 521 (2).

       See id.

       See Whatley v. State, 326 Ga. App. 81, 90 (2) (755 SE2d 885) (2014).

        Brewington, 288 Ga. at 521 (2).