author: McMlLLIAN, Judge. McFADDEN, Judge,

text:
    A16A0162.
    WIGGINS v. THE STATE.
    (787 SE2d 357)
   McMlLLIAN, Judge.

Rebecca Wiggins appealed the denial of her motion for new trial after a jury convicted her of sexual exploitation of children, aggravated sodomy, child molestation, and cruelty to children in the first degree. In Wiggins v. State, 330 Ga. App. 205, 211 (c) (767 SE2d 798) (2014) (“Wiggins I”), this Court found that although the evidence at trial was sufficient to support Wiggins’ convictions, the record failed to demonstrate that the trial judge applied the proper standard in reviewing her convictions on the general grounds. Accordingly, we vacated the judgment and remanded the case to the trial court to reconsider the issue under the appropriate discretionary standard, and we declined to rule on Wiggins’ remaining enumerations of error at that time. Id.

On remand, the trial court held a hearing and issued an order denying Wiggins’ motion for new trial on the general grounds. Wiggins now appeals from that order, reasserting the enumerations of error not reached by this Court in Wiggins I and further asserting that on remand, the trial court failed to give the proper weight to the defense expert’s testimony in reviewing the evidence on the general grounds.

The charges in this case arose out of allegations that sometime between November 17, 2001 and November 16, 2003, Wiggins took sexually explicit pictures of the victim, and sometime between February 25, 2004 and September 30, 2004, she took the victim to David Ray’s house and was present when Ray sodomized her. We summarized the evidence from Wiggins’ trial in Wiggins I, and we need not restate the evidence here. However, we note that the victim testified that on a number of occasions, Wiggins took her to Ray’s house, bathed her in a bathtub, took her to the room where Ray was waiting, stayed in the room while Ray sexually assaulted her, and then accepted payment from Ray afterward.

1. In her first enumeration, Wiggins asserts that the trial court erred in denying her motion in limine to prevent testimony and evidence showing that she had been a victim of molestation when she was a child.

Wiggins’ trial counsel (“Defense Counsel”) made an oral motion in limine at trial to exclude any evidence alleging that Wiggins was the prior victim of sexual assault after the prosecution stated that it wanted to elicit evidence that Wiggins told the victim that she had been molested by her father when she was a child. Defense Counsel argued that such evidence placed her client’s character into evidence, was highly prejudicial, and was hearsay The prosecutor argued, however, that the evidence was not hearsay because it was a statement made by Wiggins as a part of the crime and that the evidence was admissible because it went to the issues of Wiggins’ intent, knowledge, and motive.

The trial court denied the motion in limine, and the victim later testified that when Wiggins took her to Ray’s house, she would talk to her about “what happened to her when she was little, like what her dad molested her with and things like that.” The victim said that Wiggins told her that she was telling her these things “[t]o make me feel comfortable, to make me feel like it was right to do, right for me to do what he was doing to me.” Melissa Dotterweich, the State’s expert witness, a therapist who worked with the victim, testified that during their sessions, the victim went into detail about what Wiggins had told her, including that her father had molested her when she was young. Defense Counsel renewed her prior objections to this evidence, but the trial court overruled them.

Generally, appellate courts review a trial court’s decision on the admission of evidence for an abuse of discretion. See Moore v. State, 295 Ga. 709, 712 (2) (763 SE2d 670) (2014). And

[w]here[, as here,] the evidence at a hearing on a motion in limine is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court’s ruling to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.

(Citation omitted.) State v. Barnard, 321 Ga. App. 20, 20 (740 SE2d 837) (2013).

The evidence at issue concerned statements made by Wiggins as she took the victim to Ray’s house where he performed sexual acts upon the child. Former OCGA § 24-3-3, which was applicable at the time of Wiggins’ trial, provided that “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” And “[u]nder longstanding Georgia law, all the acts and circumstances surrounding and constituting the res gestae are admissible, despite the fact that they may reflect poorly on a defendant’s character.” Baughns v. State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016). Therefore, “evidence of statements made by the defendant during the commission of the offense is admissible as part of the res gestae of the crime even if it puts the defendant’s character in evidence.” Ware v. State, 308 Ga. App. 24, 28 (3) (707 SE2d 111) (2011). Accordingly, pretermitting whether evidence showing that the defendant was herself previously the victim of a sexual crime may be considered evidence of bad character, we find that Wiggins’ statements about her own abuse were admissible as part of the res gestae of the crimes.

Moreover, the evidence was relevant to the issue of Wiggins’ knowledge and intent in taking the child to Ray’s house.

Evidence which is relevant and responsive but which minimally places the character of the defendant into issue, is nevertheless admissible where the relevance of the testimony outweighs any prejudice it may cause. Relevant evidence is not rendered inadmissible because it incidentally puts the defendant’s character into issue.

(Citation omitted.) Moore, 295 Ga. at 714 (3). See also Kendrick v. State, 156 Ga. App. 27, 28 (274 SE2d 78) (1980) (“Evidence which incidentally may place a criminal defendant’s character in issue is admissible if independently relevant, such as to show knowledge, motive, plans, intent, scheme or identity.”).

Here, Wiggins’ statements to the victim showed her intent in bringing the victim to Ray and her knowledge of what was going to happen when they got there. Under the facts of this case, therefore, we find no error in the admission of Wiggins’ statements to the victim. See, e.g., Young v. State, 290 Ga. 392, 398-99 (8) (721 SE2d 855) (2012) (evidence that defendant admitted to police that he sold crack cocaine was admissible because it was relevant to motive for crime of murder, even though it incidentally put defendant’s character into issue).

2. Wiggins next argues that the trial court erred in overruling Defense Counsel’s objections to the prosecutor’s leading questions during the direct examination of the victim.

“A question is leading when it is so framed as to suggest to the witness the answer which is desired; on the other hand, a question not suggesting the desired answer is not leading where it inquires only into a single fact.” (Citations and punctuation omitted.) Milner v. State, 258 Ga. App. 425, 429 (1) (574 SE2d 457) (2002). “Thus, a question is not open to the objection that it is leading when it does not suggest the answer desired.” (Citations and punctuation omitted.) Burden v. State, 332 Ga. App. 811, 812 (1) (775 SE2d 183) (2015).

Wiggins identified the following questions as leading:

- Now, would she actually hold your hand during this time?
- Now, did he ever get his private part inside of your vagina?

However, because each of these questions inquired into a single fact and did not suggest the answer desired, the questions were not leading. Thus, the trial court did not abuse its discretion in overruling Defense Counsel’s objections. See Burden, 332 Ga. App. at 812 (1) (prosecutor did not lead witness by asking, “Was any money demanded of you?”); Wright v. State, 319 Ga. App. 723, 727 (2) (a) (738 SE2d 310) (2013) (trial court did not abuse discretion by allowing prosecutor to ask 14-year-old witness, “Did you see the defendant with a gun?”).

3. Wiggins also asserts that the trial court erred in denying her motion for mistrial based on juror misconduct.

Following a break in Dotterweich’s testimony, the prosecutor notified the trial judge that he had received information that one of the jurors had spoken with the witness during the break. Dotterweich was called to testify about the incident outside the jury’s presence, and she stated that one of the female jurors told her that she was “doing a great job,” to which she replied, “thank you.” The juror was with two other women jurors when this exchange occurred, and the victim/witness coordinator from the district attorney’s office, who was also present, told the juror she could not talk to a witness.

Based on this evidence, Defense Counsel asked to question the juror involved and further requested that the juror be removed or a mistrial be declared for juror misconduct. The trial court denied the request for a mistrial but stated that it would instruct the jury on the issue. After the trial court told the jury that it had received information that a juror had violated the court’s repeated instructions not to discuss the case with anyone, the court cautioned the jurors to follow his instructions to the letter, reminded them that the case was not over, and instructed them that they should not consider the case until they returned to the jury room at the close of the evidence.

The next day, Defense Counsel again moved for a mistrial based on this incident and again requested that she be allowed to question the jurors. The victim/witness coordinator was then called to identify the jurors involved in the incident, and those jurors were questioned.

Juror Lacy was identified as the juror who made the comment. After apologizing to the court, Juror Lacy said that she told Dotter-weich “thank you,” because the expert had helped her understand “what was going on.” Juror Lacy stated that two other jurors were there at the time, and when a lady told her “no conversation,” they got on the elevator and went to lunch. She also said that after the trial court raised the issue, she told the other jurors that she had spoken with Dotterweich and said, “thank you.” The jurors then discussed the trial court’s instructions not to talk to anyone, and Juror Lacy apologized to them. The trial judge asked Juror Lacy if she understood his directions about not discussing the case and would follow them. She replied in the affirmative. And in response to the court’s questions, Juror Lacy indicated that she believed that she could be a fair and impartial juror and that she would keep an open mind until after the conclusion of the evidence, the closing arguments of counsel, and the trial court’s jury charge.

Juror McClure was questioned next, and she stated that she had heard Juror Lacy tell Dotterweich, “thank you,” and another lady tell Juror Lacy that she could not talk to the witness. Juror McClure stated that she had no further conversations with any jurors about the matter and that she had not talked to the witness. Juror McClure stated that she understood the trial court’s instructions, that she believed that she could be fair and impartial, and that she could keep an open mind until after the close of the evidence, the arguments of counsel, and the court’s instructions.

The third juror, Juror Atkins, stated that she did not hear Juror Lacy speak to the witness, nor did she hear the witness say anything because she was “digging around” in her purse. However, she heard someone “yell out” to Juror Lacy that she was not allowed to speak to the witnesses and then heard Juror Lacy say “sorry” Juror Atkins also said Juror Lacy had identified herself to the other jurors as the subject of the trial court’s inquiry and apologized to them. But she said that the jurors had only talked among themselves about following the trial court’s instructions not to discuss the case.

Following this questioning, Defense Counsel again moved for a mistrial, or, in the alternative, to keep the jury intact but remove Juror Lacy from the deliberative panel at the end of the case and replace her with an alternate. The trial court denied the motion for a mistrial, but granted the defense motion to replace Juror Lacy at the close of the evidence.

On appeal, Wiggins asserts the trial court erred in not asking Juror Atkins if she could remain fair and impartial and in not investigating “how it might affect the jury as a whole.” “Whether a mistrial is warranted is a question committed to the sound discretion of the trial court, and when an appeal is taken from the denial of a motion for mistrial, we consider only whether the court below abused its discretion.” (Citations omitted.) Brown v. State, 314 Ga. App. 198, 203 (3) (723 SE2d 520) (2012).

Wiggins “was entitled to be tried by a jury untainted by improper influence, and improper communication with a juror raises a presumption of prejudice to the defendant, which the State must rebut beyond a reasonable doubt.” Russell v. State, 293 Ga. 526, 529 (3) (748 SE2d 393) (2013). However, the presumption “sometimes can be rebutted simply by a showing that the substance of the communications had nothing to do with the case and otherwise was unlikely to influence the jurors in their deliberations and verdict.” Brown, 314 Ga. App. at 203 (3). Moreover, “[t]o upset a jury verdict, the improper communication must have been so prejudicial that the verdict is deemed inherently lacking in due process.” (Citation and punctuation omitted.) Collins v. State, 290 Ga. 505, 507 (3) (722 SE2d 719) (2012).

Here, although the communication involved the case, there was ample evidence to support the trial court’s conclusion that Wiggins suffered no prejudice as a result. Juror Lacy and Juror McClure each stated that this communication would not affect her ability to remain fair and impartial. Although the trial court did not specifically question Juror Atkins about her ability to remain impartial, the evidence supported a finding that she was not tainted by the exchange as she did not hear it. Further, the remainder of the jury was told only that Juror Lacy had thanked Dotterweich and they did not discuss the matter further. Additionally, despite Juror Lacy’s statements that she could remain impartial, the trial court nevertheless removed her from jury service following the final charge to the jury, as Defense Counsel had requested.

Under these circumstances, the trial court was authorized to find beyond a reasonable doubt that Juror Lacy’s contact with the State’s expert caused no prejudice to Wiggins. See Scott v. State, 332 Ga. App. 559, 562 (1) (774 SE2d 137) (2015). Accordingly, we find no abuse of discretion in the trial court’s denial of Wiggins’ motion for mistrial on the ground of juror misconduct.

4. Wiggins further contends that the trial court erred in overruling her objections to testimony by Dotterweich that bolstered the victim’s testimony and went to the ultimate issue in the case.

Wiggins first cites the following testimony:

Q. And all the kids that you see in therapy and counseling, these are children at your place who have been sexually abuse[d,] correct?
A. Correct. I don’t see clients who have not made a disclosure in the interview process. There has to have been some sort of disclosure made and the detectives feel that it’s a credible disclosure.

(“First Incident”). Defense Counsel objected to this testimony, stating, “Objection, Your Honor, as to what the detective — what the detective surmises before it’s being —The trial court then interrupted to overrule the objection “in this context.” The basis of Wiggins’ objection is unclear from this exchange. And although the trial court issued a ruling, the basis for that ruling is also unclear.

Wiggins also cites the following exchange during Dotterweich’s testimony:

A. It’s not uncommon for offenders if they have molested one sister to not try — at least try to molest the other child. So, I was just exploring, not giving information, and that is —
Q. Is that important through therapy to get a history, an accurate history from a child as to what they have actually gone through?

(“Second Incident”). Although Defense Counsel raised no contemporaneous objection to this exchange, shortly thereafter she requested a sidebar conference. That conference was off the record, but Defense Counsel was later given the opportunity to place on the record the objections she raised at that time. Defense Counsel stated that she had objected because Dotterweich’s testimony was bolstering and went to the ultimate issue in the case.

At the time of Wiggins’ trial, former OCGA § 24-9-80 provided that “[t]he credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” Thus, “[a]n expert witness may not bolster the testimony of a victim by opining as to whether the complaining witness is telling the truth, because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror.” (Citation and punctuation omitted.) Thomas v. State, 318 Ga. App. 849, 855 (4) (b) (734 SE2d 823) (2012).

Applying these principles, we examine the First Incident “in the context in which [the testimony] was given.” (Citation and punctuation omitted.) Strickland v. State, 311 Ga. App. 400, 403 (2) (a) (715 SE2d 798) (2011). See also Branesky v. State, 262 Ga. App. 33, 36 (3) (a) (584 SE2d 669) (2003); Brownlow v. State, 248 Ga. App. 366, 369 (2) (b) (544 SE2d 472) (2001). Prior to the First Incident, Dotter-weich was explaining the differences and the interrelationship between forensic interviews and therapy in the “gradual process” of a child’s disclosure of sexual abuse. When the prosecutor asked whether the children she sees in therapy are kids who have been sexually abused, Dotterweich answered in the affirmative, explaining that they are children who have made “some sort of disclosure” of sexual abuse that the police found credible. After the trial court overruled Wiggins’ objection, Dotterweich then further explained that in such cases, the director of the child advocacy center where Dotterweich worked would talk to the child’s parents and recommend therapy and counseling.

Dotterweich’s testimony did not speak to the credibility of the victim in this case, but only to the criteria used for recommending therapy to children who make an outcry of sexual abuse. Because “[h]er testimony was not a clear comment on [the victim’s] credibility as to her allegations of molestation” in this case, it was not improper bolstering. (Citation and punctuation omitted.) Strickland, 311 Ga. App. at 403 (2) (a) (detective’s testimony that he ended interview of child and referred her to a child advocacy center when he “ascertained that a molestation incident occurred” was not improper bolstering but rather an explanation as to why he ended the interview); Brownlow, 248 Ga. App. at 369 (2) (b) (considering expert’s testimony “[i]n its context, given the question and the testimony both before and after the language at issue” and holding that the testimony was “most fairly seen as an attempt to explain child abuse accommodation syndrome to the jury rather than an impermissible opinion on an ultimate issue”). Accordingly, the trial court did not abuse its discretion in overruling the objection to the First Incident.

Similarly, we find that the testimony in the Second Incident was neither bolstering nor did it go to the ultimate issue in the case. Considering the testimony in its context, Dotterweich testified that she received information that Ray had abused the victim’s sister before the victim disclosed that she had been abused by Ray. Dotter-weich subsequently told the victim that her sister had disclosed “some things” about Ray, without disclosing that the “things” were sexual in nature, and asked the victim to tell her about Ray Dotter-weich did not go into further detail because she was not sure if the victim knew anything about Ray’s contact with her sister. Nevertheless, she asked the victim about Ray because it was not uncommon that if an individual had molested one sister, the individual might molest another sister. Thus, this testimony provided an explanation as to why she asked the child about Ray and did not go to the ultimate issue of whether Ray had molested the victim in this case.

Therefore, we find no abuse of discretion by the trial court in overruling Defense Counsel’s objections to the cited testimony

5. Wiggins additionally argues that the trial court erred in allowing the State to play taped jailhouse phone calls recorded after the trial began between Wiggins and Jason Blanpied (the “jailhouse tapes”), neither of whom testified at trial, on the grounds that their admission violated the marital privilege. Although Defense Counsel did not raise a formal objection on the ground of marital privilege, the parties and the trial court discussed whether the evidence would violate the privilege, and we will address Wiggins’ argument in this regard.

In Georgia, confidential communications between a husband and wife are privileged. See former OCGA §§ 24-9-21 (1); 24-9-23. As the party seeking to invoke the marital privilege, Wiggins has the burden of proving it applies to the jailhouse tapes. See Brown v. State, 199 Ga. App. 188, 189 (1) (404 SE2d 469) (1991). See also Frazier v. State, 219 Ga. App. 768, 770 (1) (467 SE2d 338) (1995). In addition, the decision of the trial court as to the fact question of whether a valid, legal marriage existed “should not be disturbed on appeal if there is any evidence to support its finding.” Jordan v. State, 267 Ga. 442, 446 (2) (480 SE2d 18) (1997). See also Conyers v. State, 249 Ga. 438, 441 (3) (291 SE2d 709) (1982).

Pretermitting whether the privilege could have been properly asserted here where the conversations were recorded after notice to the parties, we find that there was sufficient evidence to support the trial court’s implicit finding that no legal marriage existed. Although at trial, Defense Counsel asserted that Blanpied was Wiggins’ husband and that they were married on October 31, 2008, Wiggins has failed to point us to any evidence of record to support these assertions. In fact, Defense Counsel stated at one point that she did not have to prove the fact of their marriage. And although Wiggins testified at the hearing on the motion for new trial, she never testified that Blanpied and she were married. Moreover, two State witnesses gave testimony at trial suggesting that Wiggins and Blanpied were not married. An investigator for the prosecutor’s office stated that she spoke with Blanpied on the phone, and she recalled that during the conversation, he made a reference to his “fiancée.” And another witness for the State, who had lived with Wiggins around the time of the incidents in this case, described Blanpied as Wiggins’ “boyfriend” and stated that as far as she knew, Wiggins and Blanpied were not legally married, although she admitted she had not talked to them in several years.

Accordingly, we find that Wiggins failed to establish that the admission of the jailhouse tapes violated the marital privilege.

6. Wiggins also contends that the trial court erred in denying a second motion for mistrial on the ground that Defense Counsel was rendered ineffective when she became the focus of alleged criminal conduct during the trial.

Although we review this ruling for an abuse of discretion, Brown, 314 Ga. App. at 203 (3), to address Wiggins’ argument, we also must consider whether she has proven that Defense Counsel was rendered ineffective at trial as asserted in the motion for mistrial. In considering a claim of ineffective assistance of counsel,

we apply the two-prong test for determining the validity of a claim of ineffectiveness of counsel established in Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), which asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

(Citation omitted.) Janasik v. State, 323 Ga. App. 545, 548 (2) (746 SE2d 208) (2013). “This burden, although not impossible to carry, is a heavy one,” Young v. State, 292 Ga. 443, 445 (3) (738 SE2d 575) (2013), because “[wjhen reviewing ineffective assistance of counsel claims, this Court applies a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance.” (Citation and punctuation omitted.) Williams v. State, 298 Ga. 208, 219 (9) (779 SE2d 304) (2015). Thus, “[t]o show that the performance of [her] lawyer was deficient, [Wiggins] must prove that [her] lawyer performed [her] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms.” Young, 292 Ga. at 445 (3).

When the prosecutor first informed the trial court that the jailhouse tapes contained evidence suggesting that Defense Counsel had instructed Blanpied to leave Georgia so that the State could not call him as a witness, the trial judge said that based on his research, such actions could constitute the common law crime of obstruction of justice. The trial court later noted that the prosecution’s description of those tapes raised “a serious accusation,” implicating a criminal charge. The next day, Defense Counsel filed a written motion for mistrial, asserting that the prosecution’s request to play the tapes and his allegations of their contents was designed to inhibit Defense Counsel’s cross-examination of the State’s witnesses, rendering her ineffective, as well as to create a conflict of interest between Wiggins and Defense Counsel. The trial judge denied Defense Counsel’s motion for mistrial stating that from his perspective, Defense Counsel had been very zealous in her representation of Wiggins and was very much in control and that he did not believe that she was providing ineffective representation to her client.

At the hearing on the motion for new trial, Defense Counsel explained that when the prosecutor said that he was investigating her during the trial, “everything went off the rails.” She stated that she spent that afternoon during the trial on her phone texting to seek advice about her own situation and further asserted that she was unable to prepare for the next day of trial because she was listening to the jailhouse tapes and addressing the issue of whether charges would be filed against her.

However, Defense Counsel was unable to point to any instance where she rendered inadequate representation to her client and stated that she proceeded with her plan for the defense “for the most part” during the course of the trial. Wiggins also failed to cite any incident of allegedly deficient performance at the hearing on the motion for new trial.

Although the evidence and Wiggins’ arguments indicate that Defense Counsel was concerned about and distracted by the possibility that she might be investigated in connection with the jailhouse tapes, as our Supreme Court has explained, “it is the conduct of the lawyer, not his thinking, that we assess for reasonableness, even though the thinking of the lawyer may inform the reasonableness of his conduct.” (Emphasis omitted.) Powell v. State, 291 Ga. 743, 748 (2) (b), n. 2 (733 SE2d 294) (2012). See also Shields v. State, 307 Ga. App. 830, 831-32 (1) (a) (706 SE2d 187) (2011) (“[O]ur inquiry properly is focused on what the lawyer did or did not do, not what he thought or did not think.”). Thus,

[a] convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.

Strickland, 466 U.S. at 690 (III) (A). See also Harrington v. Richter, 562 U.S. 86, 110 (IV) (A) (1) (131 SCt 770, 178 LE2d 624) (2011) (“Strickland ... calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.”). Accordingly, Wiggins has failed to meet her burden of showing that Defense Counsel’s performance was objectively deficient in light of the circumstances and prevailing professional norms.

And, in fact, the record demonstrates that following the initial discussion of the jailhouse tapes and the suggestion of possible criminal liability, Defense Counsel, inter alia, prepared and argued her motion for mistrial; argued against the introduction of the jailhouse tapes; raised numerous objections during the prosecution’s examination of witnesses and its attempts to introduce evidence; conducted cross-examination and/or re-cross-examination of nine witnesses for the State; reasserted her motions for mistrial and made a motion for directed verdict at the close of the State’s case; and presented evidence from three witnesses on behalf of the defense. She also participated in the charge conference; argued about the procedure for releasing Juror Lacy and seating the alternate; and gave her closing argument to the jury Wiggins raised no timely assertion that her counsel’s performance was deficient in connection with these or any other matters.

Therefore, because Wiggins failed to meet the first prong of the Strickland test, we need not address the second prong, and we find that Wiggins has failed to show that the situation involving the jailhouse tapes rendered her counsel ineffective.

Likewise, we find that Wiggins has failed to establish the existence of any conflict that adversely affected Defense Counsel’s performance. Any such conflict of interest “must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not impugn a conviction or sentence which is supported by competent evidence.” (Citation and punctuation omitted.) Henry v. State, 269 Ga. 851, 854 (3) (507 SE2d 419) (1998).

Accordingly, we cannot say that the trial court abused its discretion in denying the motion for mistrial on this ground.

7. Wiggins also argues that Defense Counsel provided ineffective assistance of counsel by failing to understand and to communicate the maximum penalties to the defendant. Wiggins did not assert this argument in her motion for new trial or her two amendments to this motion. However, at the hearing on the motion, her appellate counsel elicited pertinent testimony on the issue and argued that Defense Counsel failed to inform Wiggins of the maximum penalty she faced on each count and without such information she could not make an intelligent decision whether to accept the State’s plea offer.

As noted above, to prevail on this argument, Wiggins must establish both prongs of the Strickland test. See Sutton v. State, 295 Ga. 350, 354 (6) (759 SE2d 846) (2014). And “[a]bsent clear error and harm, we will affirm the trial court’s finding that [Wiggins] did not receive ineffective assistance of counsel.” (Punctuation and footnote omitted.) Overstreet v. State, 304 Ga. App. 275, 280 (6) (696 SE2d 114) (2010).

“Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him.” Lloyd v. State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1) (1988). Here, Wiggins does not argue that Defense Counsel failed to communicate any plea offers but instead argues that she failed to communicate the maximum penalties that she was facing.

In determining whether a defendant has been prejudiced by counsel’s failure to communicate [her] choices accurately, we must examine the facts of each case to determine whether there is at least an inference from the evidence that defendant would have accepted the offer as made or something similar.

(Citation and punctuation omitted.) Biggins v. State, 322 Ga. App. 286, 290 (3) (a) (744 SE2d 811) (2013). “We also have recognized the self-serving nature of a defendant’s post-conviction testimony regarding his intent with respect to a plea offer, and have required some further objective evidence that defendant would have accepted a plea offer.” (Citations and punctuation omitted.) Id.

Wiggins testified that Defense Counsel never discussed the maximum penalties for her offenses and never told her that she could get a life sentence. She said she would have never turned down the State’s plea offer if she had known she could get a life sentence. Nevertheless, Wiggins later conceded that it was possible that her attorney had told her she could get a life sentence. And Defense Counsel stated that although she did not recall the specific discussions, she reviewed the indictment with Wiggins and she informed Wiggins that she faced a maximum sentence of life on the aggravated sodomy charge. She also stated that Wiggins turned down the State’s best offer of fifteen years, to serve eight, because “she was very specific in that she wanted a five- or a three-year-to-serve deal. That was the most she wanted in the case.”

In denying the motion for new trial on this ground, the trial court found that Defense Counsel had discussed the indictment and the fact that Wiggins could get a life sentence, and the evidence supports these findings. Moreover, the trial court was not required to accept Wiggins’ self-serving testimony that she would have accepted the plea offer if she had known she was facing a potential life sentence. See Silvey v. State, 335 Ga. App. 383, 394 (3) (a) (780 SE2d 708) (2015) (“[W]hen considering claims of ineffectiveness of counsel, the trial judge determines witness credibility and is not required to accept the defendant’s version of events.”) (citation and punctuation omitted). Wiggins offered no objective evidence in support of this assertion, and, in fact, the evidence showed that Wiggins was not interested in entering into any plea deal unless she only had to serve three to five years, an offer the State never made. Under these circumstances, the trial court was authorized to conclude that Wiggins’ testimony regarding the plea offer was not credible and, therefore, that she failed to establish the prejudice prong of her ineffective assistance of counsel claim. See id.; Biggins, 322 Ga. App. at 291 (3) (a); Whitehead v. State, 211 Ga. App. 121, 122 (438 SE2d 128) (1993).

Accordingly, the trial court’s finding that Wiggins did not receive ineffective assistance of counsel is not clearly erroneous, and we will not disturb that finding on appeal.

8. In her only enumeration of error arising from the remand of the case, Wiggins asserts that the trial court abused its discretion in failing to give sufficient weight to the defense’s expert. However, when a defendant seeks appellate review of

a trial court’s refusal to grant a new trial on the general grounds . . . , [the appellate courts] can only review the case under the standard espoused in Jackson v. Virginia, [443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979)], to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.

(Citation and punctuation omitted.) Lewis v. State, 296 Ga. 259, 261 (3) (765 SE2d 911) (2014). As this Court has already determined that the evidence was sufficient to support the verdict under the Jackson v. Virginia standard, Wiggins I, 330 Ga. App. at 209-10 (a)-(c), this enumeration is without merit.

Judgment affirmed.

Miller, P. J., concurs. McFadden, J., concurs fully and, specially.

McFADDEN, Judge,

concurring fully and specially.

I fully concur in the majority opinion. I write separately to make clear that the threat to prosecute defense counsel was unwarranted and gravely improper.

Although he had not subpoenaed Jason Blanpied, the prosecutor promised in his opening statement that the jury would hear from Blanpied. Defense counsel had listed Blanpied as a possible witness. See OCGA § 17-16-8. But during the course of the trial, she made the strategic determination that his testimony would most likely be a net detriment to the defense and told him not to come to court. Blanpied apparently returned to his home in Texas, and the prosecutor found himself unable to keep some of the promises he had made to the jury Rather than recognize that his own omissions were the cause of this embarrassment, he threatened to prosecute defense counsel. Those threats began during the course of trial, apparently continued for a year and a half, and compelled her to retain counsel of her own.

But although clothed in the power of the office of the district attorney, those threats were naked of legal justification. Defense counsel had not committed a criminal act.

The state has made no attempt to show that she had. Its appellate brief relies, correctly, on the Strickland standard and makes no effort to justify those threats. See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). Although those threats were discussed several times during the course of trial, my review of the appellate record has identified no effort by the prosecutor to show a legal justification for them. And defense counsel testified without contradiction at the new trial hearing that she tried unsuccessfully to elicit a specific allegation from him.

It is not the responsibility of defense counsel to help the state present its case. The state had no right to rely on defense counsel’s list of possible witnesses. See Byron v. State, 229 Ga. App. 795, 799 (6) (495 SE2d 123) (1997) (it was defendant’s duty to ensure presence of his witnesses by issuance of subpoena). Defense counsel had the right not to call Blanpied to testify. See Johnson v. State, 232 Ga. App. 717, 719 (1) (b) (503 SE2d 603) (1998) (holding that state was not required to call witness whose name was on state’s witness list because obtaining witnesses to aid in his defense was defendant’s responsibility).

Contrary to the initial observation of the trial court — who later correctly noted that the threatened prosecution of defense counsel was not before him — defense counsel had not committed a common law crime. “There are no common law crimes in this state; they are all statutory.” Gentry v. State, 129 Ga. App. 819, 822 (3) (201 SE2d 679) (1973) (citation and punctuation omitted).

The controlling statute is OCGA § 16-10-93, which prohibits improperly influencing a witness. The parts of that statute that specify the prohibited conduct provide:

(a) A person who, with intent to deter a witness from testifying freely, fully, and truthfully to any matter pending in any court, in any administrative proceeding, or before a grand jury, communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness or to the person, property, or employment of any relative or associate of the witness or who offers or delivers any benefit, reward, or consideration to such witness or to a relative or associate of the witness shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.
(b) (1) It shall be unlawful for any person knowingly to use intimidation, physical force, or threats; to persuade another person by means of corruption or to attempt to do so; or to engage in misleading conduct toward another person with intent to:
(A) Influence, delay, or prevent the testimony of any person in an official proceeding;
(B) Cause or induce any person to:
(i) Withhold testimony or a record, document, or other object from an official proceeding;
(ii) Alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(iii) Evade legal process summoning that person to appear as a witness or to produce a record, document, or other object in an official proceeding; or
(iv) Be absent from an official proceeding to which such person has been summoned by legal process; or
(C) Hinder, delay, or prevent the communication to a law enforcement officer, prosecuting attorney, or judge of this state of information relating to the commission or possible commission of a criminal offense or a violation of conditions of probation, parole, or release pending judicial proceedings.

(Emphasis supplied.) Obviously — even if defense counsel instructed Blanpied to leave the state, which she denied — her conduct did not involve any threat of injury or damage; benefit, reward, or consideration; intimidation, physical force, or threats; means of corruption; or misleading conduct.

But as the majority correctly holds, Wiggins cannot point to any instance in which defense counsel rendered inadequate representation at trial. And so she cannot satisfy the first prong of the Strickland, standard. We therefore do not decide about the second prong. But as to the second prong it should be noted that

[i]n Strickland, the Supreme Court identified three instances in which the defendant would be relieved of his burden to establish prejudice stemming from counsel’s errors: (1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel that labors under an actual conflict of interest that adversely affects his performance.

State v. Heath, 277 Ga. 337, 338 (588 SE2d 738) (2003).

Decided June 24, 2016

Reconsideration denied July 26, 2016

Gary W. Jones, for appellant.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Defense counsel has — as the state’s appellate brief asserts without contradiction — extensive experience as a prosecutor, as a criminal defense attorney, and in child molestation cases. And the record supports the state’s contention that its interference did not reduce her performance below — or anywhere close to — the Strickland, standard.

But it does not follow from the inapplicability of Strickland that the prosecutor’s interference with defense counsel was without consequence. Defense counsel testified that she spent hours that ought to have been devoted to preparing her examinations and arguments listening to recordings of “garbage jail calls” and consulting colleagues about her own defense. We cannot know how defense counsel might have sharpened her arguments or what connections she might have drawn between seemingly unrelated facts if the state had not interfered with her preparation.

Nor does the inapplicability of Strickland in any way justify use of the power of the office of the district attorney to try to intimidate defense counsel. Nor does it justify subjecting defense counsel to the anxiety and expense of dealing with the prospect of a specious prosecution.

A district attorney “may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U. S. 78, 88 (55 SCt 629, 79 LE 1314) (1935); Medlock v. State, 263 Ga. 246, 252 (1) (430 SE2d 754) (1993) (Fletcher, J., dissenting).

       The child molestation and cruelty to children counts were merged with the aggravated sodomy count for sentencing.

       To the extent that Wiggins also attempts to re-argue that the evidence at trial was insufficient to support her convictions, any such argument is barred by our prior ruling in Wiggins I, and we will not consider it. See OCGA § 9-11-60 (h) (“[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”); Pierce v. State, 278 Ga. App. 162, 163 (1) (628 SE2d 235) (2006) (“This law of the case rule is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases.”) (citation omitted). See also Roulain v. Martin, 266 Ga. 353, 354 (1) (466 SE2d 837) (1996).

       The victim was 11 years old at the time she first made the allegations against Ray in this case. Wiggins I, 330 Ga. App. at 207.

       We note that Ray committed suicide on April 4, 2009, after police executed a search warrant on his home in connection with the victim’s allegations, Wiggins I, 330 Ga. App. at 208, and thus he was not tried in connection with these crimes.

       The trial court qualified Dotterweich as an expert “in the field of child sexual abuse and the disclosure process,” including forensic interviewing.

       Because the trial in this case was held before January 1, 2013, we apply Georgia’s old Evidence Code to the evidentiary issues raised on appeal. See Bragg v. State, 295 Ga. 676, 677 (2), n. 3 (763 SE2d 476) (2014).

       Wiggins also asserts that the prosecutor led the victim when he asked, “When Rebecca took you there, before you would go over there to David Ray’s house, would she talk to you about stuff to try to make you feel better?” However, Defense Counsel raised no objection to this question. “In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.” (Citation and punctuation omitted.) Bennett v. State, 334 Ga. App. 381, 383 (1) (a) (779 SE2d 420) (2015).

       Wiggins also asserts that the jailhouse tapes constituted inadmissible hearsay and infringed on her Fifth and Sixth Amendment rights, as well as her rights to confront the witnesses against her under the Georgia Constitution. However, Wiggins failed to point us to any objections she raised at trial on these grounds, and thus any such arguments are waived. Bennett, 334 Ga. App. at 383(1) (a). She additionally asserts that the jailhouse tapes improperly injected her character into evidence. Although Wiggins argued below that the evidence was intended to cast her in a bad light, she fails to provide any argument or authority on appeal in support of this or the other objections noted above. Accordingly, her arguments as to these objections must be deemed abandoned. See Court of Appeals Rule 25 (c) (2); Williams v. State, 323 Ga. App. 88, 89 (2) (a) (746 SE2d 913) (2013).

       Although the trial court did not specifically rule on the invocation of the marital privilege, it denied Wiggins’ objections and allowed portions of the tapes to be played.

       Although this principle was enunciated in connection with an invocation of the privilege by common-law spouses, we find no reason to apply a different standard when the existence of a legal marriage is challenged.

       Blanpied, who lived in Texas, had been listed as a possible witness by Defense Counsel. Blanpied apparently had traveled to Georgia for the trial, visited with Wiggins at the jail, and then left the state without appearing at trial.

       Additionally, Defense Counsel conceded that listening to the jailhouse tapes also served as preparation for the trial since the State was seeking to introduce portions of the tapes into evidence.

       Although in a footnote in her appellate brief, Wiggins points to one instance where she contends her counsel’s performance was deficient, she failed to cite this incident in the trial court below, and thus any argument in that regard is waived. As our Supreme Court has held, claims of ineffective assistance of counsel must be raised “before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.” (Citation omitted; emphasis in original.) Lewis v. State, 291 Ga. 273, 281 (7) (731 SE2d 51) (2012).

       On appeal, Wiggins asserts that even if the evidence shows that she was aware that she could get a life sentence, she was never told that she could get life plus an additional sentence on the other charges. However, Wiggins failed to articulate this specific argument at the hearing on the motion for new trial, and in any event, her claim of ineffective assistance of counsel on such a ground would likewise fail under the prejudice prong of the Strickland test.

       The attorney she retained is now the sitting district attorney.

       Different judges presided over the trial and the hearing on the motion for new trial.


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A0340.
    BARNETT v. HOLT BUILDERS, LLC.
    (790 SE2d 75)
   McMlLLIAN, Judge.

Ken Barnett appeals the trial court’s order denying his motion to dismiss this defamation action filed by Holt Builders, LLC (“Holt”). For the reasons set forth below, we find that the motion to dismiss should have been granted and reverse.

Before addressing the procedural posture of this case, it is helpful to briefly set out the facts of the underlying litigation giving rise to Holt’s defamation action. In 2005, Vintage Communities, Inc. (“Vintage”) borrowed money from Bank of North Georgia (“BNG”) to develop Stonewater Creek subdivision (the “Subdivision”), a gated development with 124 lots planned in the initial phase. Vintage executed a deed to secure debt in favor of BNG in connection with that loan. Vintage also executed a construction deed to secure debt in favor of Integrity Bank, pledging additional property that was intended to comprise a future phase of the Subdivision. In 2007, Vintage recorded the Declaration of Covenants for Stonewater Creek (the “Declaration”) in Gwinnett County, naming itself the Declarant.

In 2009, Vintage defaulted on its loan to BNG, and BNG took title to 62 vacant lots in the Subdivision. Holt subsequently purchased those lots from BNG, as well as three additional lots, for a total of 65 lots. Four days later, Vintage executed an “Assignment of Declarant’s Rights With Reservation of Annexation Right” to Holt, which was filed and recorded in Gwinnett County At that time, only eight houses were occupied, and the roads, clubhouse, and swimming pool remained unfinished.

In 2010, Holt appointed Corbitt Woods and Reiner Rietig as members of the board of directors of the Stonewater Creek Homeowners Association (the “HOA”) and Daryl Chafin as the board’s president. Holt then oversaw the completion of the Subdivision’s amenities, including the clubhouse, tennis courts, and swimming pool, and many of the streets. In order to fund that construction, Holt opened a $625,000 line of credit, secured by the lots it had purchased from BNG. Holt, in turn, loaned over $532,000 to the HOA (the “Loan”) to be repaid in part by the annual HOA fees and a special $6,000 fee assessed on each new lot completed.

In May 2014, nonparty BCR Investments, LLC, a company affiliated with Holt, filed an application to rezone property adjacent to the Subdivision with the intent to annex that property into the Subdivision. Shortly thereafter, Barnett and eight other residents (collectively the “Residents”) filed a derivative suit for the benefit of the HOA against Holt and Chafin, asserting claims for breach of fiduciary duty, declaratory relief, and injunctive relief and seeking punitive damages and attorney fees (the “Litigation”). In August 2014, the Superior Court of Gwinnett County entered a temporary restraining order enjoining Holt from making further HOA payments on the Loan and from proceeding with the annexation of adjacent property. Following discovery, the parties filed cross-motions for partial summary judgment, seeking a declaratory judgment that Holt is not a Declarant under the Subdivision’s Declaration and therefore does not have the authority to annex any additional property into the Subdivision.

As the Litigation proceeded, Holt and Chafin employed various methods of updating the Subdivision’s homeowners regarding the status of the Litigation. For example, on November 7, 2014, Homeowner Management Services (“HMS”) sent a letter to the Subdivision’s homeowners on behalf of the Subdivision’s board of directors, of which Chafin was the president, discussing the status of the ongoing Litigation in which “a group of members in the [HOA] is pursuing a lawsuit against the [HOA], its President, the Declarant, and others.” The letter enclosed correspondence from defense counsel to Chafin regarding the status of the Litigation and criticisms of the Residents’ claims and tactics. And on February 20, 2015, HMS sent an e-mail message on behalf of the HOA’s board of directors with several updates, including commentary on the HOA’s recent bill for legal fees relating to the Litigation and settlement negotiations:

The first update pertains to the lawsuit filed by several members against the Association, et al.
The Association received a bill for $17,098 for the Association’s share of recent legal fees relating to the suit. This is in addition to the amount discussed at the annual meeting. This bill has been paid and will be reflected in the February financials. For perspective, the legal cost last month will consume 100% of 14 annual assessments, and is nearly double the annual pool budget. This would also pine straw the entire common area twice with a bit of money left over.
The recent attempt by the Association and other defendants to settle this were rejected without comment from the Plaintiffs. The Board sincerely hopes that this is resolved quickly and at the smallest cost possible to the Association. It has cost too much already. We will keep the members apprised of future costs and activities relating to this ongoing issue.

Several days later, HMS sent another e-mail to homeowners entitled “Response to Questions from Eblast On Friday 2.20.15,” which attached a list of the Residents who were plaintiffs in the Litigation. The e-mail also stated that the “[HOAj’s share alone of the legal fees thus far is in excess of $70,000 since the choice was made by the Plaintiffs to sue the Association among others.” Later that day, Barnett responded to HMS and all of the e-mail’s original recipients using the “reply all” function of the e-mail in what he maintains was an attempt to clarify the misleading statements made by HMS on behalf of the board of directors. In his reply, Barnett attempted to explain the role of the HOA in the derivative lawsuit and the Residents’ attempts to engage in settlement discussions with Holt and Chafin and attached various items of correspondence between counsel regarding these issues.

On March 11, 2015, Holt filed a defamation suit against Barnett, asserting claims for libel and slander and seeking punitive damages and attorney fees. The only statements specifically referenced in the complaint arise from Barnett’s February 23, 2015 e-mail that “[Holt] want(s) to continue to siphon off our money to pay for their development costs, legal costs, and other costs associated with them running their business,” and that Holt was using HOA funds to pay its own legal expenses. Barnett filed his answer on March 17, 2015, asserting as a defense that Holt failed to include “the certifications required by Georgia law for claims asserted against Barnett related to his actions in furtherance of his right to free speech in connection with an issue of public interest or concern.” On April 2, 2015, Barnett moved to dismiss Holt’s complaint for its continued failure to file the verification required under OCGA § 9-11-11.1. Following a hearing, the trial court denied Barnett’s motion to dismiss, finding that Holt’s suit is not subject to the requirements of OCGA § 9-11-11.1.

In his sole enumeration of error, Barnett asserts that the trial court erred in denying the motion to dismiss because his communication regarding the Litigation was protected under Georgia law. We review de novo the denial of a motion to dismiss. See, e.g., Emory Univ. v. Metro Atlanta Task Force for the Homeless, Inc., 320 Ga. App. 442, 443 (740 SE2d 219) (2013). The purpose of OCGA § 9-11-11.1, Georgia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, is

to encourage citizen participation in matters of public significance through the exercise of the right of free speech and the right to petition the government for redress of grievances, and to prevent their valid exercise from being chilled through abuse of the judicial process.

Atlanta Humane Society v. Harkins, 278 Ga. 451, 452 (1) (603 SE2d 289) (2004). To prevent such abuse, the statute requires any claim that could reasonably be construed as infringing upon these rights to be accompanied by a detailed verification and specifies the circumstances under which the verification must be filed:

For any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, both the party asserting the claim and the party’s attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification under oath. . . .

OCGA § 9-11-11.1 (b). See also Harkins, 278 Ga. at 452-53 (1) (“To accomplish these purposes, the crucial statutory provision is OCGA § 9-11-11.1 (b).”) (citation and punctuation omitted). Although the statute allows a ten-day safe harbor for the claimant to provide the necessary verifications after the omission is called to his attention, it is undisputed that Holt has not filed any verification.

Holt maintains, and the trial court agreed, that his complaint is not subject to the anti-SLAPP statute because the claims asserted by the Residents in the Litigation do not involve “an issue of public interest or concern” as required by the statute. We disagree. Subsection (c) of OCGA § 9-11-11.1 defines the term “act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” under subsection (b) as

any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

See Berryhill v. Ga. Community Support & Solutions, Inc., 281 Ga. 439, 441 (638 SE2d 278) (2006).

Despite Holt’s protestations otherwise, it cannot seriously be contested that Barnett’s statements in the February 23, 2015 e-mail were unconnected with the Litigation. Holt originally initiated the correspondence with Barnett and the other homeowners about the Litigation, and Barnett was responding directly to that correspondence, addressing Holt’s characterizations of the status of the Litigation. Thus, Barnett’s statements clearly fall within the definition of a “written . . . statement. . . made in connection with an issue under consideration or review by a . . . judicial body.” OCGA § 9-11-11.1 (c). See Metzler v. Rowell, 248 Ga. App. 596, 598 (1) (547 SE2d 311) (2001) (where both lawsuit and zoning petition were pending at the time of the neighborhood residents’ statements, those acts fell within the “expansive definition of protected speech and petition under OCGA § 9-11-11.1 (c),” and the trial court correctly dismissed the developer’s suit). See also Adventure Outdoors, Inc. v. Bloomberg, 307 Ga. App. 356, 360 (2) (705 SE2d 241) (2010) (“As the press conference was held to address an issue under consideration by a judicial body, i.e., the lawsuit recently filed in federal court in New York, [plaintiff] was required to file a verification under OCGA § 9-11-11.1 (b).”); Lovett v. Capital Principles, LLC, 300 Ga. App. 799, 802 (686 SE2d 411) (2009) (school board’s consideration of how to implement a computer program was an official proceeding and nothing in the anti-SLAPP statute rendered the verification requirement inapplicable because the defendants acted while engaged in a commercial transaction); cf. Emory Univ., 320 Ga. App. at 445-46 (1) (trial court did not err in finding anti-SLAPP statute inapplicable where there was no averment that defendant’s “defamatory propaganda campaign” to interfere with plaintiff’s business was done in connection with some official proceeding). Accordingly, the trial court erred in denying Barnett’s motion to dismiss.

Although Holt denies filing his defamation suit to discourage Barnett’s right to free speech or from participating in the Litigation, a party’s subjective belief is not the standard for determining whether the verification requirements of the anti-SLAPP statute apply. Rather, the statute applies to any claim arising from any act that “could reasonably be construed” as one done in furtherance of the right of free speech or the right to petition government for a redress of grievances in connection with an issue of public interest. (Emphasis supplied.) OCGA § 9-11-11.1 (b). Thus, because Barnett’s statements regarding the pending Litigation fall within the scope of OCGA § 9-11-11.1 (c), Holt’s lawsuit initiated in response to those protected statements should have been dismissed with prejudice for failure to file a verification as required by OCGA § 9-11-11.1 (b).

Decided June 8, 2016

Reconsideration denied July 26, 2016

Thompson, O’Brien, Kemp & Nasuti, Aaron M. Kappler, for appellant.

Mahaffey Pickens Tucker, Steven A. Pickens, Gerald Davidson, Jr., Joshua P. Johnson, Christopher D. Holbrook, for appellee.

Judgment reversed.

Miller, P. J., and McFadden, J., concur.

       The Declaration defines this term as follows:

        “Declarant' shall mean and refer to Vintage Communities, Inc., a Georgia corporation, and such of its successors-in-title who shall (i) acquire from a predecessor “Declarant,” and for the purpose of development or sale, all or any portion of the real property described in Exhibit “A” and/or Exhibit “B” hereto, and (ii) be designated as the “Declarant” in the deed of transfer by which such successors-in-title shall so acquire its interest in such real property, or by written assignment of Declarant rights in an instrument recorded in the Gwinnett County, Georgia records.

       Vintage, meanwhile, still owned adjacent land shown as a future phase of the Subdivision on the original development plan.

       Chafin is a managing member of Holt, and Woods and Rietig are also affiliated with Holt.

       An interlocutory injunction was subsequently entered.

       The trial court’s grant of partial summary judgment for Chafin and Holt is the subject of a separate appeal.

       HMS is the HOA’s management company.

       HMS continued to send correspondence to the homeowners regarding the Litigation. On April 3, 2015, HMS sent a letter to homeowners stating:
      Despite claims to the contrary, every party involved in the lawsuit is incurring attorney’s fees. . . . The Board offered to meet with the Advisory Board and some (or all) of the Plaintiffs, but as of this writing, the Plaintiffs do not want the Advisory Board to attend, despite the fact that, at a minimum, these members, like all of the Members, are being sued as part of the Association.... This suit does not benefit the entire community. . . .
      And on April 28,2015, HMS sent another letter discussing the Residents’ unwillingness to meet regarding settlement and reiterating its view that the Litigation does not benefit the entire community, again attaching correspondence from defense counsel regarding the HOA’s payment of legal fees and the status of the court’s order enjoining the annexation of any property.

       On August 21, 2015, this Court granted Barnett’s application for interlocutory appeal.

       This verification must be in writing and
      shall certify that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of [OCGA §] 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation. . . .
      OCGA § 9-11-11.1 (b).

       OCGA § 9-11-11.1 (b) (“If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim.”).

       See Hawks v. Hinely, 252 Ga. App. 510, 516 (2) (556 SE2d 547) (2001) (“Minimal effort is necessary by the party bringing suit to verify his complaint, and, if that party verifies improperly, he is given an additional ten days from the day that he is informed of the deficiency to correct his complaint. A party who fails to comply with such a simple prerequisite, which, in turn, protects the important right to petition government, should be subject to dismissal with prejudice.”).

       In a supplemental brief, Holt argues that pursuant to a recent Supreme Court decision, Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community Trust, 298 Ga. 221 (780 SE2d 311) (2015), dismissal is inappropriate because a material issue of fact exists regarding whether Barnett’s statements were made in good faith and therefore afforded the protection of Georgia’s anti-SLAPP statute. However, Holt’s reliance on that case is misplaced. In Ichthus, the defendants asserted that their statements were privileged under OCGA § 9-11-11.1 and OCGA § 51-5-7 (4). Id. at 234. Here, the issue is procedural - whether a verification was required to be filed - such that it is not necessary to consider whether Barnett made the statement in good faith. See Adventure Outdoors, 307 Ga. App. at 361 (2) (trial court not required to consider merits of statement when defendants refused to file verification). See generally Harkins, 278 Ga. at 453 (1).


text:
    A16A0453.
    PARTAIN v. PITTS et al.
    (787 SE2d 354)
   McMlLLIAN, Judge.

Kimberly Partain appeals the trial court’s order denying her motion to enforce a settlement agreement in this personal injury action arising from a motor vehicle accident. In her sole enumeration of error, Partain argues that the trial court erred in finding that the parties had not reached an enforceable settlement agreement. We agree and reverse.

The salient facts are not in dispute, and we apply a de novo review. Smith v. Hall, 311 Ga. App. 99, 100 (714 SE2d 742) (2011). In October 2010, Partain’s vehicle collided with the rear of Elizabeth and James Pitts’ vehicle. The Pitts filed suit on October 5, 2012, alleging that Partain’s negligence caused Elizabeth to suffer bodily injury and James to suffer loss of consortium. On October 9, 2012, their attorney, Stephen Carter, sent a settlement demand letter to a claims adjuster for State Farm Mutual Automobile Insurance Company (“State Farm”), the liability carrier for Partain. In it, Carter provided State Farm with a time-limited settlement demand for Partain’s $50,000 policy limit. Carter also noted:

As previously stated, the settlement opportunity provided herein shall remain open for acceptance up through 5:00 p.m. Eastern Time on Friday, October 26, 2012, or until said offer and settlement opportunity is first rejected, whichever occurs first.
For this settlement offer and opportunity to be timely accepted, I must receive your company’s $50,000 check made jointly payable to “Elizabeth P. Pitts and Stephen C. Carter, P.C., her attorney” by the stated deadline. If this settlement opportunity is timely accepted, Mrs. Pitts will execute the original of the enclosed Limited Liability Release and I will mail the original executed Limited Liability Release back to your attention before your company’s $50,000 check is negotiated.

(Emphasis in original.)

On October 19, 2012, Craig Avery, counsel hired by State Farm to defend its insured, sent an e-mail to Carter, notifying him of State Farm’s acceptance:

In case the adjuster hasn’t already informed you, State Farm is accepting your settlement offer.... Please email me a copy of your LLR [Limited Liability Release] as it was not included in the materials State Farm sent to me. Also, State Farm drafts are technically not checks, so let me know if that’s a problem so I can resolve that issue prior to the deadline.

Shortly thereafter, the adjuster sent a check for $50,000 enclosed in a letter with a salutation directed to “Attorney Avery,” which included some instructions clearly intended for Avery However, for reasons that are unclear, the letter was addressed and delivered to Carter. And the enclosed check was made out to “Elizabeth Pitts & Jimmy Pitts, Individually & as Husband and Wife & Stephen C. Carter, PC., their Attorney” Upon realizing the mistake, the adjuster reissued a check made out to “Elizabeth P Pitts and Stephen C. Carter, PC., her attorney” and had it hand delivered to Carter on October 25, 2012.

Carter, however, informed Avery that he viewed the initial check as a counteroffer, and therefore a rejection of his clients’ settlement demand. He also notified Avery that the Pitts rejected State Farm’s “post-rejection effort to accept the settlement opportunity” by means of the reissued check. Partain later filed a motion to enforce settlement, which the trial court denied before granting the parties a certificate of immediate review. This appeal followed.

In deciding whether the parties entered into an enforceable settlement agreement, we are governed by well-established principles. Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed.

(Citation omitted.) Turner v. Williamson, 321 Ga. App. 209, 212 (738 SE2d 712) (2013). Below, and on appeal, the Pitts argue that only the timely delivery of a $50,000 check made jointly payable to Elizabeth Pitts and Carter could constitute acceptance of their settlement offer and that Carter’s receipt of the nonconforming check constituted State Farm’s rejection and counteroffer, such that no settlement agreement was ever reached by the parties.

It is true, as the Pitts argue, that “[a]n offer may be accepted either by a promise to do the thing contemplated therein, or by the actual doing of the thing. The offer must be accepted in the manner specified by it; and ... if it calls for an act, it can be accepted only by the doing of the act.” (Citation and punctuation omitted.) Hansen v. Doan, 320 Ga. App. 609, 612 (1) (740 SE2d 338) (2013). Conversely, “[a] purported acceptance of a plaintiff’s settlement offer which imposes conditions will be construed as a counter-offer to the offer to settle for the [insurance] policy limits.” (Citation and punctuation omitted.) Frickey v. Jones, 280 Ga. 573, 574 (630 SE2d 374) (2006).

Here, the record shows that the October 22, 2012 letter from the adjuster was meant for Avery, State Farm’s attorney, and thus cannot be considered a communication imposing additional conditions on the offer. In addition to the salutation referencing Avery, the body of the letter further confirmed that Avery was the intended recipient, directing him to:

Please proceed with obtaining the properly executed Order of Dismissal and Release and return, along with your final billing.

Were it directed to Carter, as counsel for plaintiffs, this instruction would make no sense. Accordingly, it is clear that Carter was the unintended recipient of an inadvertently disclosed communication from a client to her attorney Because the privileged nature of a communication between an attorney and client is not lost if an attorney inadvertently discloses it, Carter may not use this inadvertent disclosure as evidence of a counteroffer to his clients’ settlement demand. See Rouse v. State, 275 Ga. 605, 607 (5) (571 SE2d 353) (2002) (cross-examination based on taped interview between lawyer and client not permitted where record was devoid of evidence that client authorized release of tape). See generally Lazar v. Mauney, 192 FRD 324, 330 (N.D. Ga. 2000) (admonishing attorneys who exploited document inadvertently disclosed in discovery after deceiving opposing counsel into believing that the document was being returned).

Moreover, evidence that the adjuster may have intended Avery to confirm whether the check would be accepted as drawn has no legal effect because Avery never made that inquiry In the postscript to the letter intended for Avery, the adjuster noted the following:

Please be advised there is a $3,700.00 hospital lien that has been presented to State Farm and plaintiff attorney instructed us to issue payment [without] Mrs. Pitts [’] spouse listed on payment but includes Mr. Pitts in the suit under consortium. Please confirm if check as it appears will be accepted. Thank you.

However, even if we were to assume that the adjuster’s request to Avery constitutes a communication to Carter, “a mere request for confirmation does not constitute a counteroffer.” Hansen, 320 Ga. App. at 613 (1). Thus, the adjuster’s precatory language directed to Avery asking him to seek confirmation as to the acceptability of the check as presented was not a counteroffer. See Turner, 321 Ga. App. at 214 (2) (because insurance company’s communication included precatory words rather than mandatory direction, it did not impose a new condition on the settlement). And Avery’s subsequent delivery of a conforming check — within the time frame specified by the Pitts — constituted acceptance, and a binding contract was then formed. See Newton v. Ragland, 325 Ga. App. 371, 375 (1) (750 SE2d 768) (2013) (insurer’s acceptance letter contained precatory rather than mandatory words, and transmittal of the policy limits within the offer’s deadline formed a binding settlement agreement). Thus, the trial court erred in denying Partain’s motion to enforce settlement.

Judgment reversed.

Miller, P. J., and McFadden, J., concur.

Decided June 21, 2016

Reconsideration denied July 26, 2016.

Cowsert & Avery, Craig C. Avery, Michael S. Broun II, for appellant.

Stephen C. Carter, for appellees.

       The Pitts assert that Partain argues for the first time on appeal that the delivery of the conforming check to Carter’s office on October 25, 2012 was timely and that we therefore need not consider this argument. However, the record clearly belies this assertion.


author: McFADDEN, Judge.

text:
    A16A0638, A16A0639.
    COLUMBUS, GEORGIA BOARD OF TAX ASSESSORS et al. v. THE MEDICAL CENTER HOSPITAL AUTHORITY; and vice versa.
    (788 SE2d 879)
   McFADDEN, Judge.

Hospital authority property is public property and therefore exempt from ad valorem taxation, as long as the use of the property or its income furthers legitimate functions of the hospital authority. See Columbus, Ga. Bd. of Tax Assessors v. Med. Center Hosp. Auth., 336 Ga. App. 746, 750 (783 SE2d 182) (2016). The question presented in this appeal is whether the Medical Center Hospital Authority’s leasehold interest in a continuing care retirement facility is public property exempt from ad valorem taxation. An earlier, unappealed superior court bond validation order found that it is a public project within the scope of the Hospital Authorities Law. We are bound by that finding, and it is dispositive. We therefore affirm. We do not reach the Medical Center Hospital Authority’s argument that the continuing care retirement facility is entitled to an exemption on alternate grounds.

1. Factual background and procedural posture.

The relevant facts are largely undisputed. The Medical Center Hospital Authority (“Hospital Authority”) is a hospital authority created under the Hospital Authorities Law, OCGA § 31-7-70 et seq. Spring Harbor at Green Island is a continuing care retirement facility built on 40 acres of land owned by Columbus Regional Healthcare System, Inc. (“Columbus Regional”), which is not a party to this appeal. In 2004, the Hospital Authority issued $74.66 million in revenue bonds to finance construction of the Spring Harbor facility on Columbus Regional’s land. It refinanced the bonds in 2007. Until the issuance of the bonds, Columbus Regional had funded the development work on Spring Harbor.

On June 1, 2004, Columbus Regional as the lessor and the Hospital Authority as the lessee entered a lease agreement with a term of 40 years. According to the lease, the Hospital Authority wanted “to construct, own, and operate” Spring Harbor at Green Island and to lease the real estate owned by Columbus Regional for this purpose. For $10, the Hospital Authority leased Columbus Regional’s land and the improvements then existing or to be constructed on the land, which the parties referred to collectively as the “leased property” Columbus Regional warranted that it owned in fee the leased property

The lease included an early termination provision that allowed Columbus Regional to terminate the lease and repossess the leased property once the bonds were retired. It provided that all improvements were completely within the control of the Hospital Authority during the lease term, but once the lease term ended the improvements would become the absolute property of Columbus Regional. The lease prohibited Columbus Regional from encumbering the leased property with a mortgage, absent the Hospital Authority’s consent. It granted the Hospital Authority the right to sell, assign, or transfer its leasehold estate and to sublet all or any portion of the leased property.

When the revenue bonds were refinanced in 2007, the parties entered a superseding lease for a term of 60 years. The 2007 lease was largely unchanged from the 2004 lease. Other than extending the lease term from 40 years to 60 years, the 2007 lease provided that Columbus Regional would pay the real estate taxes on the land, whereas the 2004 lease had provided that the Hospital Authority would pay those taxes.

The same day that it entered the 2004 lease, the Hospital Authority entered a management agreement with Columbus Regional Senior Living, Inc., under which nonparty Columbus Regional Senior Living agreed to develop, market, and manage the operation of Spring Harbor on behalf of the Hospital Authority. (The Hospital Authority and Columbus Regional Senior Living entered an amended management agreement on April 1, 2007, when Columbus Regional Healthcare System and the Hospital Authority entered the amended lease.) The management agreement contemplated that Columbus Regional Senior Living would enter a sub-management agreement for another entity to operate Spring Harbor. Columbus Regional Senior Living then entered this contemplated sub-management agreement with nonparty CRSA Management, LLC, under which it paid CRSA Management an annual fee to assume Columbus Regional Senior Living’s management responsibilities under its management agreement with the Hospital Authority.

In May 2007, the Hospital Authority filed this action against the Columbus, Georgia Board of Tax Assessors; the city of Columbus, Georgia; and Lula Lunsford Huff, the tax commissioner for Muscogee County (together, “the tax board”). It sought, among other things, a declaration that its interest in Spring Harbor under the lease is not subject to ad valorem property taxation. It contended that its interest is public property, the use and income of which furthers its legitimate functions as a hospital authority, and therefore is exempt from ad valorem taxation under OCGA § 48-5-41 (a) (1). It contended alternatively that its interest in Spring Harbor was exempt from ad valorem taxation as a nonprofit home for the aged under OCGA § 48-5-41 (a) (12) (A).

The superior court granted summary judgment to the Hospital Authority on the ground that its “property interest in the facilities and improvements constituting Spring Harbor qualifies as public property, and therefore, it is exempt from ad valorem property taxation.” The court rejected the alternative ground, concluding that the home for the aged exemption applies only to nonprofit corporations, not hospital authorities created under the Hospital Authorities Law. The tax board appeals the ruling that the Hospital Authority’s interest in the property is exempt as public property, and the Hospital Authority appeals the ruling that the property is not exempt as a nonprofit home for the aged.

2. Public property exemption .

Hospital authority property is public property and therefore exempt from ad valorem taxation, as long as the use of the property or its income furthers legitimate functions of the hospital authority. See Columbus, Ga. Bd. of Tax Assessors, 336 Ga. App. at 750. The tax board argues that the Hospital Authority does not own Spring Harbor or exercise sufficient control over it for its leasehold estate to be public property, and therefore its interest in Spring Harbor is not exempt from ad valorem taxation. We disagree.

(a) Hospital Authority’s interest.

Regardless of the nature of the Hospital Authority’s interest in the property, that interest is a distinct estate subject to taxation.

In this [sjtate there can be several separate and distinct estates in the same parcel of land, and . . . the owner of any estate in land less than the fee [must] return it for taxes and pay taxes on it as on other property. A leasehold is an estate in land less than the fee; it is severed from the fee and classified for tax purposes as realty.

Delta Air Lines v. Coleman, 219 Ga. 12, 16 (1) (131 SE2d 768) (1963) (citations omitted). In other words, each estate in land is classified separately in order to determine tax liability See OCGA § 48-5-3 (“All real property including, but not limited to, leaseholds, interests less than fee, and all personal property shall be liable to taxation and shall be taxed, except as otherwise provided by law.”).

Here, the tax board does not dispute that the Hospital Authority has some interest in Spring Harbor. In fact, it assessed Columbus Regional’s interest in the property separately, implying that the Hospital Authority and Columbus Regional each have a separate interest in Spring Harbor. That assessment is not in dispute. Indeed at the hearing on the parties’ motions for summary judgment, counsel for the tax board stated that the “Hospital Authority is just not the legal owner of the improvements,” but conceded that it has “a leasehold interest but the legal owner is Columbus Regional.” And, as noted above, leasehold interests are estates in land that are assessed separately from the other interests in land.

We find this case to be analogous to Douglas County v. Anneewakee, Inc., 179 Ga. App. 270 (346 SE2d 368) (1986). There, a for-profit company leased property to a nonprofit, tax-exempt hospital. We concluded that “the leasehold held by [the nonprofit hospital], when severed from the private — and taxable — fee owned by [the for-profit corporation], took on the tax[-]exempt status of the holder of the leasehold; i.e., [the nonprofit hospital]."Id. at 275 (3). It is true that the ad valorem tax exemption at issue in Douglas Coun ty was not the public property exemption at issue here. But the underlying principle applies equally here: A property interest held by a tax-exempt entity, when severed from a taxable fee owned by another entity, takes on the tax-exempt status of the holder of that interest.

(b) Legitimate functions of the Hospital Authority.

In our recent opinion involving the same parties but different properties, we held that hospital authority property is exempt from property taxes “as long as the use of the property or its income furthers the legitimate functions of the hospital authority.” Columbus, Ga. Bd. of Tax Assessors, 336 Ga. App. at 752 (1). In this case, that issue has been decided in the superior court bond validation orders.

“When presented with a petition for the validation of revenue bonds, a trial court must consider whether the proposal to issue those bonds is ‘sound, feasible, and reasonable.’ ” Greene County Dev. Auth. v. State of Ga., 296 Ga. 725, 726 (770 SE2d 595) (2015) (citation omitted). The trial court in this case so found. And in both the 2004 bond validation order and the 2007 order validating the refinancing of the bonds, it made the constituent finding “that the purposes for which the [b]onds [were] being issued, as described in the petition and complaint, [were] in furtherance of the public purposes for which [the Hospital] Authority was established. . . More specifically, in the 2007 “order concerning bond validation proceedings,” the court wrote:

Spring Harbor is a wonderful community asset and one which does address a public need of an identifiable class of citizens, the elderly. . . . Based on the income required to be a resident of Spring Harbor, the project does not address the needs of the poor and the indigent but with the broad powers of the Authority outlined in Georgia law, the [cjourt cannot say such is a legal impediment to prevent the project. Spring Harbor is [a] public project addressing a real community need, a continuous transition residential community addressing the health needs of elderly citizens at different stages during their senior years. Therefore, the court does find as a matter of law and as a matter of fact this “residential retirement community” is a project contemplated under the Hospital Authorities Law, especially since the “medical components” for “assisted living”, “dementia” and “nursing and doctor care” are all available on site as the resident transitions from independent living.

(Emphasis supplied.)

That finding is conclusive. Our state Constitution directs, “The General Assembly shall provide for the validation of any revenue bonds authorized and shall provide that such validation shall thereafter be incontestable and conclusive.” Ga. Const. of 1983, Art. IX, Sec. VI, Par. IV. And the General Assembly has so provided.

If no appeal is filed within the time prescribed by law or if an appeal is filed and the judgment is affirmed on appeal, the judgment of the superior court confirming and validating the issuance of the bonds and the security therefor shall be forever conclusive against the governmental body upon the validity of such bonds and the security therefor.

OCGA § 36-82-78. Our Supreme Court has explained the reason for the rule.

This preclusion is necessary to protect the ability of governmental bodies to obtain long-term financing in the bond market. Potential purchasers would be reluctant to invest in the state’s bonds without the assurance that the revenue bonds and their security are not subject to collateral attacks after a court with proper jurisdiction has entered a final validation order. Any perceived risk in the revenue bonds as an investment would impede the ability of state and local governments to finance needed public improvement projects.

Ambac Indem. Corp. v. Akridge, 262 Ga. 773, 775 (1) (425 SE2d 637) (1993). For that reason a judgment in a bond validation proceeding is conclusive as to all “questions which could and should have been asserted and adjudicated during the bond validation proceedings.” Woodham v. City of Atlanta, 283 Ga. 95, 98 (3) (657 SE2d 528) (2008) (citations and punctuation omitted), superseded by statute on different grounds, Sherman v. Atlanta Independent School System, 293 Ga. 268 (744 SE2d 26) (2013). The scope of that conclusiveness is broad.

Our Supreme Court has held consistently that [the Revenue Bond Law, OCGA § 36-82-60 et seq.] prevents any collateral attack by the county, county residents, or taxpayers who had proper notice of the validation proceedings but chose not to intervene or appeal. . . . Even if the judgment of validation is unconstitutional or arguably void, it cannot be collaterally attacked.

Turpen v. Rabun County Bd. of Commrs., 251 Ga. App. 505, 508-509 (1) (554 SE2d 727) (2001) (citations and punctuation omitted; emphasis in original). Consequently, the bond validation proceedings conclusively established that Spring Harbor furthers a legitimate function of the Hospital Authority. And the trial court’s ruling is final: Spring Harbor is a project contemplated under the Hospital Authorities Law and the Hospital Authority’s interest in it is exempt from ad valorem taxation.

Decided July 7, 2016

Reconsideration denied July 26, 2016

Robert R. Lomax; Troutman Sanders, Charles F. Palmer, Kevin G. Meeks, for appellants.

Rothschild & Rothschild, Jerome M. Rothschild, Andrew A. Rothschild; Brown & Adams, Jeffrey A. Brown, for appellee.

3. Nonprofit home for the aged exemption.

The Hospital Authority argues that the trial court erred in rejecting its argument that Spring Harbor is exempt from ad valorem taxation as a nonprofit home for the aged. Given our holding that the interest is exempt as public property, we do not reach this argument.

Judgment affirmed.

Miller, P. J., concurs. McMillian, J., concurs in judgment only.

       We therefore do not reach the question whether Georgia law authorizes an institution dedicated to serving wealthy individuals to be deemed a public project. Perhaps so. See Hosp. Auth. of Albany v. Stewart, 226 Ga. 530, 531 (175 SE2d 857) (1970) (property, including pecan groves, held “exempt from ad valorem taxation, where the property itself is not a part of the hospital but its income is properly devoted to public purposes (hospital operations) in the furtherance of the legitimate functions of the hospital authority”) (nature of property specified in Teachers’ Retirement System of Ga. v. City of Atlanta, 249 Ga. 196, 201 (2), n. 4 (288 SE2d 200) (1982)). Perhaps not. See Tift County Hosp. Auth. v. MRS of Tifton, Ga., 255 Ga. 164 (335 SE2d 546) (1985) (judgment enjoining hospital authority “from selling and renting durable medical equipment to the general public” affirmed).
      But if so, the practice of hospital authorities entering lease agreements with private entities is now at some remove from the wellspring of its constitutional legitimacy. In 1970 our Supreme Court rejected a constitutional challenge to the Hospital Authorities Law: a claim that it purported to authorize “the use of ‘public funds’ to engage in a business of a private nature in violation of the equal protection and due process provisions of the Georgia Constitution.. ..” Bradfield v. Hosp. Auth. of Muscogee County, 226 Ga. 575, 580-581 (176 SE2d 92) (1970). In rejecting that claim, our Supreme Court reaffirmed that “hospitals, whether owned directly by a county or city, or by an authority, are designed and intended to serve identical purposes of discharging the governmental obligation to provide for the health of the people.” Id. at 583 (1). That court went on to hold, “[t]here is no apparent reason why a suitable private corporation could not properly operate the hospital, either as lessee or as owner, so as to likewise promote the public health functions of government.” Id.; accord Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183, 184 (1) (336 SE2d 562) (1985). The Richmond County court emphasized that under the terms of the lease before it, the private corporation had agreed
      to operate the hospital for the public benefit on a nonprofit basis; to maintain the hospital; to provide emergency treatment; to set rates using the same nonprofit criteria applicable to hospital authorities (thus not an improper delegation of the Authority’s right to fix rates and charges); to provide ambulance services; and to assume a significant indigent-care burden. . . .

        Richmond County Hosp. Auth., 255 Ga. at 185 (1).