author: PHIPPS, Presiding Judge.

text:
    A11A2038.
    In the Interest of A. R. K. L., a child.
    (726 SE2d 77)
   PHIPPS, Presiding Judge.

The mother of A. R. K. L. filed a petition in juvenile court to terminate the parental rights of the child’s father. The juvenile court granted the petition, and the father appeals. He contends that (1) the juvenile court lacked subject matter jurisdiction to rule on the petition because the petition was actually a disguised custody matter; (2) the juvenile court lacked subject matter jurisdiction to rule on the petition because the petition was actually a disguised adoption matter; and (3) the juvenile court erred in denying his motion for a continuance. For the reasons that follow, we affirm.

The record reveals that the parents married in September 2002. A. R. K. L. was born on March 28, 2004. And in April 2007, the parents divorced. Pursuant to the divorce decree, the mother was granted sole physical custody of A. R. K. L. and the parents were granted joint legal custody. The father was ordered to pay child support in the amount of $650 per month. The divorce decree gave the father visitation rights. But on January 18, 2011, the mother filed a petition to terminate the father’s parental rights, citing the father’s inability to provide support for A. R. K. L. and his failure to have any contact with the child.

The father had failed to visit A. R. K. L. for nearly two years before the filing of the termination petition and had also failed to pay child support for nearly a year and a half. The father asserted in his appellate brief that he had not visited the child because he agreed to have no contact with the child, the mother, and the stepfather in exchange for the dismissal of criminal charges. At the termination hearing, however, the father testified that he had not sought visitation with the child for fear of violating the conditions of his probation on account of false accusations.

In the termination petition, the mother alleged that the father’s actions indicated that he had abandoned the child and was an unfit parent. The mother’s petition to terminate the father’s parental rights was filed pursuant to OCGA § 15-11-94. Following a hearing on March 24, 2011, the juvenile court granted the mother’s petition to terminate the father’s parental rights.

1. The father contends that the juvenile court lacked subject matter jurisdiction to rule on the termination petition filed by the mother because the petition was actually a disguised custody matter that could only be properly heard in superior court. We disagree.

“Jurisdiction is a question of law to which we apply a de novo standard of review.” Except where a termination petition is filed in connection with adoption proceedings, the juvenile court has exclusive original jurisdiction over actions involving termination of parental rights. It is true that not every deprivation petition or petition for the termination of parental rights brought by one parent against another can be heard in a juvenile court.

Under the long-established rule that pleadings are to be construed according to their substance and function and not merely as to their nomenclature, being always mindful to construe such documents in a manner compatible with the best interest of justice, each deprivation petition must be judged on its own merits. If it appears from an analysis of the pleading that it is actually a disguised custody matter, then it is outside the subject matter jurisdiction of the juvenile courts.

The Supreme Court of Georgia has held that “juvenile courts should not entertain deprivation proceedings brought by a non-custodial parent to obtain custody from a custodial parent.”

The father argues that the superior court had jurisdiction over the issue of terminating his parental rights because the superior court presided over his divorce from the child’s mother and over a later modification matter in which the court issued a temporary order suspending his rights to visitation and custody because he was incarcerated. The temporary order provided that should the father resolve his incarceration, he may petition the court to address visitation in an accelerated manner. But the father never petitioned the superior court to address visitation in that case, which he filed. And he has failed to show how permission granted to him by the superior court to petition for visitation in a superior court case could override the express statutory provision which gives the juvenile court exclusive jurisdiction over termination of parental rights actions that are not in connection with adoption proceedings.

Here the petition was filed, not by the noncustodial parent, but by the parent who already had been awarded sole physical custody of the child. Moreover, the termination petition dealt specifically with factors relating to the father’s inability to provide proper care and support for A. R. K. L. such that his parental rights should be terminated, and the juvenile court considered as much. The juvenile court properly exercised jurisdiction over the termination proceedings.

2. The father contends that the juvenile court lacked subject matter jurisdiction to rule on the termination petition because the petition was actually a disguised adoption matter that could be properly heard only in superior court. We disagree.

As previously stated, except where a termination petition is filed in connection with adoption proceedings, the juvenile court has exclusive original jurisdiction over actions involving termination of parental rights. In H. C. S. v. Grebel, the Supreme Court of Georgia held that we erred in holding that where a petition for termination of the rights of a putative father of an illegitimate child specifically stated that it was in pursuance of the petitioners’ prospective adoption of the child, the petition was not “in connection with adoption proceedings” within the meaning of OCGA § 15-11-5 (a) (2) (C). In In the Interest of B. G. 15., we found that the juvenile court lacked jurisdiction to consider a petition for termination of a putative father’s parental rights because the termination was sought “in connection with” an adoption proceeding. There, the evidence showed that a mother gave up her newborn daughter for adoption to a couple who attended the child’s birth, and a termination petition was filed in juvenile court by a child placement agency.

In his brief, the father states that he “believes the real reason the Petition was filed in juvenile court is because [the mother] wants her new husband to adopt [the] child.” He argues that because the evidence showed that the stepfather desires to adopt A. R. K. L., the petition was filed in pursuance of an adoption. However, the stepfather’s mere expressed desire to adopt A. R. K. L. (some time in the future) is not sufficient for this court to conclude that the petition was filed in connection with an adoption proceeding. There was no evidence that an adoption petition was pending at the time the petition was filed. The petition did not allege that it was filed in connection with adoption proceedings. Rather, the petition, which stated that the father had failed to provide for the support of the child and failed to have any contact with the child, alleged grounds sufficient for a termination. Accordingly, the juvenile court properly exercised jurisdiction over the termination proceedings.

Decided March 2, 2012

Reconsideration denied March 16, 2012.

James R. Newton, for appellant.

3. The father contends that the juvenile court abused its discretion in denying his motion for a continuance because his attorney did not have sufficient time to prepare for the termination hearing.

A trial court’s decision to grant or to deny a continuance will not be disturbed absent abuse of discretion. . . . [T]he party seeking a continuance must show due diligence.

Here, on January 20, 2011, a summons was personally served upon the father. The summons informed the father that a petition to terminate his rights to A. R. K. L. had been filed (and was attached to the summons), that a hearing was scheduled for March 24, 2011, and that he had the right to a court-appointed attorney if he could not afford one. The last sentence of the summons instructed the father that “[i]f you want a lawyer appointed to represent you, you must let the Court or officer of this Court handling this case know you want a lawyer immediately.” The father submitted an application for a court-appointed attorney on March 11, 2011. On March 14, 2011, the court appointed an attorney to represent the father. The father filed a motion for a continuance on March 23, 2011.

Given the father’s delay in requesting court-appointed counsel and waiting until the day before the hearing to ask for a continuance, we find no abuse of discretion by the juvenile court judge.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

Clark & Williams, Jason R. Clark, Frances W. Dyal, for appellee.

       OCGA § 15-11-94, pertinently provides:
      (a) In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section. If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home. If the court finds clear and convincing evidence of the circumstance provided in paragraph (5) of subsection (b) of this Code section, the court shall presume that termination of parental rights is in the best interest of the child.
      (b) Except as provided in subsections (e) through (h) of Code Section 15-11-96, the court by order may terminate the parental rights of a parent with respect to the parent’s child if:
      (3) The parent has abandoned the child or the child was left under circumstances that the identity of the parent is unknown and cannot be ascertained despite diligent searching, and the parent has not come forward to claim the child within three months following the finding of the child;
      (4) (A) The court determines parental misconduct or inability by finding that:
      (i) The child is a deprived child, as such term is defined in Code Section 15-11-2;
      (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived;
      (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and
      (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.
      (B) In determining whether the child is without proper parental care and control, the court shall consider, without being limited to, the following:
      (iii) Conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship;
      (iv) Egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature;
      (v) Physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent;
      (C) In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights:
      (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner;
      (ii) To provide for the care and support of the child as required by law or judicial decreef]

        In the Interest of C. L. C., 299 Ga. App. 729, 732 (1) (683 SE2d 690) (2009) (punctuation and footnote omitted).

       OCGA § 15-11-28 (a) (2) (C); In the Interest of K. N. C, 264 Ga. App. 475, 479 (1), n. 6 (590 SE2d 792) (2003).

         In re M. C. J., 271 Ga. 546, 548 (523 SE2d 6) (1999).

       Id. (citations and punctuation omitted).

       Id. (citation and punctuation omitted; emphasis in original).

       OCGA § 15-11-28 (a) (2) (C); In the Interest of K. N. C., supra.

       See OCGA § 15-11-94.

        In the Interest of K. E. P., 269 Ga. App. 700, 701-702 (1) (605 SE2d 114) (2004); In re M. C. J., supra.

       253 Ga. 404 (321 SE2d 321) (1984).

       Id. at 406 (1).

       224 Ga. App. 124 (479 SE2d 439) (1996).

       Id. at 125 (1).

       Id. at 124-125.

        In the Interest of C. D. C., 230 Ga. App. 237 (1) (495 SE2d 872) (1998) (jurisdiction in juvenile court upheld because no adoption proceeding in progress and action was “merely a termination of parental rights so that. . . the children may be placed for adoption at some time in the future”).

       See id.

       OCGA § 15-11-94.

        In the Interest of D. L. N., 234 Ga. App. 123-124 (1) (506 SE2d 403) (1998).

        In the Interest of T. R., 270 Ga. App. 401-402 (1) (606 SE2d 630) (2004) (citations omitted); In the Interest of C-J. N., 289 Ga. App. 423, 427-428 (3) (657 SE2d 329) (2008).

        In the Interest of T. R., supra at 402 (1); In the Interest of C-J. N., supra.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A1613.
    A11A1786.
    A11A1787.
    FINCHER ROAD INVESTMENTS, LLLP v. CITY OF CANTON et al. WEBER et al. v. CITY OF CANTON et al. LIGHT v. CITY OF CANTON et al.
    (726 SE2d 120)
   Adams, Judge.

The City of Canton, Georgia, and the Cobb County Marietta Water Authority (referred to collectively as Condemnors) filed petitions for condemnation and declarations of taking with respect to certain contiguous real property owned by the appellees, Fincher Road Investments, LLLR Glen Richard Weber and Carol Ann Weber, and Richard Light and Linda Holmes-Rubin (collectively referred to as Condemnees) for the construction of a reservoir. The petitions and declarations of taking were filed on October 11, 2010, and the declarations were served on the various Condemnees between October 21 and November 2, 2010. Pursuant to OCGA § 32-3-11, the Condemnees timely filed petitions to set aside the declarations on November 22, 2010, and a hearing was scheduled for December 7, 2010. Following a hearing on that date, the trial court dismissed the petitions to set aside on the basis that the Condemnors were not given 15 days notice of the hearing as required by OCGA § 32-3-11 (c), and the Condemnees filed applications for interlocutory review of that order in this Court. We granted the Condemnees’ applications, and these appeals, which we have consolidated for review, timely followed.

The starting point of our analysis is subsection (c) of OCGA § 32-3-11, which provides that after a condemnee timely files a petition to set aside a declaration of taking

[t]he presiding judge shall thereupon cause a rule nisi to be issued and served upon the condemnor, requiring him to show cause at a time and place designated by the judge why the title acquired by the declaration of taking should not be vacated and set aside in the same way and manner as is now provided for setting aside deeds acquired by fraud. Such hearing shall be had not earlier than 15 days from the time of service of the rule nisi upon the condemnor, nor later than 60 days from the date of filing of the declaration of taking. . . .

As the superior court found, the Condemnees in this case timely filed their petition to set aside, and the hearing was scheduled to be held within 60 days from the filing date of the declaration, as required by the statute. However, the superior court found that the rule nisi was not filed and served until five days before the hearing, and thus the Condemnors did not receive fifteen days notice of the hearing as required by OCGA § 32-3-11. Citing Lopez-Aponte v. City of Columbus, 267 Ga. App. 65 (599 SE2d 1) (2004), the court reasoned that it had no discretion to act otherwise than to dismiss the petitions to set aside because the Condemnees failed to strictly comply with the requirements of OCGA § 32-3-11 (c).

However, all 12 judges of this Court recently revisited the issue of strict compliance with the time requirements of OCGA § 32-3-11 (c), finding certain of those requirements to be discretionary rather than mandatory, and additionally that the “plain words” of the statute require the presiding judge to schedule the hearing, not the Condemnee. Further, we disapproved Division 1 of Lopez-Aponte to the extent it “can be construed as reaching a contrary result.” Cobb County v. Robertson, 314 Ga. App. 455, 458, n. 12 (724 SE2d 478) (2012). Just as the statute plainly places the burden on the presiding judge to schedule the hearing, it also places the burden on the presiding judge to issue the rule nisi. Thus, pursuant to Cobb, a superior court does have the discretion to hold a hearing outside the 60-day time period and, based on the underlying reasoning of our decision in that case, the discretion to hold a hearing and consider the merits of the petition if the rule nisi was not issued and served upon the condemnor a full 15 days before the hearing.

Accordingly, we remand the case to the superior court to consider whether, in the exercise of its discretion and considering the attendant circumstances here, the Condemnees should be afforded an opportunity for a hearing and a decision on the merits of their petitions to set aside the declaration of taking.

Judgment vacated and case remanded with direction.

Phipps, P. J., and Andrews, J., concur.

Decided March 16, 2012.

Flint, Connolly & Walker, Douglas H. Flint, Konrad G. Ziegler, for appellant (case no. A11A1613).

Vaughan & Evans, Donald C. Evans, Jr., for appellants (case no. A11A1786).

Dyer & Rusbridge, Robert M. Dyer, Alicia M. Argo, Haynie & Litchfield, Douglas R. Haynie, Daniel W. White, for appellees.

       Pursuant to that subsection, the Condemnee must file the petition to set aside within 30 days of service of the declaration of taking.

       As we also noted in Robertson, this issue is presently pending before our Supreme Court, and the parties in that case have been specifically requested to address whether “ ‘the trial court err(ed) in finding that it was the condemnees’ responsibility to obtain a rule nisi and timely hearing on their motion to vacate. Compare (Lopez-Aponte [v. City of Columbus, 267 Ga. App. 65, 67, n. 1 (599 SE2d 1) (2004)]) with OCGA § 32-3-11 (c) stating the “presiding judge shall thereupon cause a rule nisi to be issued”).’ ” See Adkins v. Cobb County, 291 Ga. 521 (731 SE2d 665) (2012).


text:
    A11A1745.
    WOLFE v. CARTER.
    (726 SE2d 122)
   Adams, Judge.

James Wolfe appeals from the trial court’s grant of summary judgment to Steve Carter in Wolfe’s personal injury lawsuit arising out of a three-car collision in Toombs County on January 13, 2007. For the reasons set forth below, we affirm.

At the outset, we note that on appeal from a grant of a motion for summary judgment, we review the evidence de novo in the light most favorable to the nonmovant to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law.

(Punctuation omitted.) Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 898 (714 SE2d 606) (2011). Summary judgment is proper if the record evidence “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Punctuation omitted.) Benefield v. Tominich, 308 Ga. App. 605, 607 (1) (708 SE2d 563) (2011).

So viewed, the evidence shows that on January 13, 2007, Wolfe was traveling in a pickup truck in the northbound lane of Highway 27 near Odum, Georgia, near the highway’s intersection with Aspinall Break Road. Wolfe was following a tractor-trailer driven by Hollis Bryant, whom Wolfe also named as a defendant in the lawsuit. A second tractor-trailer, driven by Bill Rainey was following Wolfe. According to the accident report, the collision occurred when an unidentified driver made a u-turn across the highway. When Bryant slowed unexpectedly in response, Wolfe struck him from behind, and Rainey, in turn, struck Wolfe, sandwiching his pickup between the two tractor-trailers.

Wolfe, Bryant and Rainey all described the conditions at the time of the collision as smoky and foggy. Wolfe said that the smoke and fog was thick as a wall at the time of the collision, which caused him to reduce his speed from approximately 50 miles per hour to 30 miles per hour. His vision was limited to less than two or three feet in front of the hood of his truck. He was in the smoke for approximately two minutes before the collision occurred. Bryant said that he saw “a lot of fog and smoke” that day. The smoke stretched for approximately one to one-and-one-half miles and caused him to slow to around 20 to 30 miles per hour and turn on his emergency flashers. Bryant said that it smelled like wood burning. Rainey also saw thick smoke and fog for about two miles, making his visibility “very, very poor.” He could not see more than one foot past his hood. It smelled like trees burning. Rainey slowed down to around fifteen miles per hour and turned on his “four-ways” (lights).

On his way to respond to the accident report, Georgia State Trooper Rozier said he encountered fog and smoke about two to three miles from Odum. The smoke was coming from the east side of the roadway, and Rozier could smell it. He described the visibility as “minimum, twenty, twenty-five foot, at the most, you could see ahead of you.” He believed that the fog and smoke played a factor in the accident. Rozier contacted the Forestry Commission, and learned that only one person, Carter, had conducted a controlled burn in the area, but he did not know the location of the burn. Rozier did not know whether the smoke on the roadway was caused by Carter’s controlled burn and conceded that it could have been caused by any fire in the area.

Carter obtained permission from the Georgia Forestry Commission to conduct prescribed burns on January 10, 11 and 12, 2007 on property near the intersection of Georgia Highway 341 (also known as Highway 27) and Aspinall Break Road in Toombs County. Carter conducted three separate controlled burns on consecutive days, burning approximately 120 acres over the three-day period. The fires from the controlled burns on January 10 and 11 had been completely extinguished by January 12. That day, Carter began the prescribed burn between 9:00 a.m. and 10:00 a.m. Carter allowed the fire to burn out over approximately four to five hours and did not use any chemical agents to extinguish it. Carter described the fire as extinguished when he left the property on January 12 at around 2:00 p.m.; no flames were visible and only a small amount of light, white smoke remained. Carter testified that his smoke management plan consisted of not conducting a burn if the wind carried the smoke toward the highway, which was approximately one-half mile away from the burn. Each of the three mornings, Carter lit test fires to check the wind direction before beginning the controlled burns, and each day the wind carried the smoke to the north and northwest of the highway, exactly as Carter predicted. Carter said that he conducted no prescribed burns on either the evening of January 12 or the morning of January 13, and he does not know the source of any smoke on the highway on January 13.

In granting summary judgment, the trial court found no evidence in the record specifically identifying Carter’s burns or any other fire as the source for the smoke the morning of the accident. The court noted “LG here has been no testimony, documents or other proofs offered that would tend to show either that the burn was conducted or concluded improperly, or that smoke present on highway 341 the next day was even from the same general direction as the location of Carter’s prescribed burns.” Additionally, the tried court concluded that Wolfe had failed to establish any gross negligence as required under OCGA § 12-6-148 to impose liability upon Carter, noting that “[h]ere, there is no such evidence of negligence, gross or otherwise.”

1. Wolfe asserts that the trial court erred when it ruled that there is no link between the smoke on the highway and Carter’s prescribed burn on January 12. He points to evidence that smoke, mixed with fog, was on the roadway resulting in limited visibility; that the smoke appeared to be coming from the east shoulder of the roadway; that Carter had conducted a controlled burn the day before within one-half mile of the highway; that Trooper Rozier received information regarding only one controlled burn in the area. He asserts that this circumstantial evidence was sufficient to create a jury issue as to whether Carter’s controlled burn was the source of the smoke. We disagree.

As plaintiff, Wolfe had the burden of proof to establish each element of his negligence claim, including causation. Freeman v. Eichholz, 308 Ga. App. 18, 20 (1) (705 SE2d 919) (2011); Hardnett v. Silvey, 285 Ga. App. 424, 426 (646 SE2d 514) (2007). Thus,

[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

(Citations and punctuation omitted.) Grinold v. Farist, 284 Ga. App. 120, 121-122 (1) (643 SE2d 253) (2007).

Although the evidence showed that the smoke was coming from the east side of the roadway, Wolfe has pointed us to no evidence showing the relation of the property upon which Carter conducted the controlled burn to the highway, and no evidence showing that the smoke was emanating from that property Though a light, white smoke remained when Carter completed the burn, Carter testified that no flames remained. Wolfe presented no evidence to demonstrate that the controlled burn ever re-ignited into a fire, especially a fire sufficient to create the wall of smoke and fog Wolfe described. Nor was any evidence presented of the likelihood of such an occurrence based upon the prevailing wind and weather conditions. Although Wolfe repeatedly argues that Carter’s prescribed burn is the only “identified” source of the fire, he presented no evidence of any investigation to locate the source beyond Trooper Rozier’s call to the Forestry Commission and a subsequent attempt to reach Carter by phone. Although Carter’s fire may have been the only sanctioned controlled burn in the area, Rozier could not identify that burn as the source of the smoke. In fact, as Rozier acknowledged, the smoke may not have been the result of a controlled burn cleared through the Forestry Commission; it may have come from another source.

Even giving Wolfe the benefit of all reasonable inferences, the evidence establishes at most a “mere possibility” that Carter’s controlled burn may have been the source of the smoke on January 13. The jury was left to speculate as to the source of the smoke based upon the evidence presented, and “[sjummary judgment cannot be avoided based on speculation or conjecture.” (Citation omitted.) Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010). Accordingly, the trial court properly granted summary judgment on this ground.

2. Wolfe also asserts that the trial court erred in finding that the record contained no evidence of actionable negligence by Carter in accordance with OCGA § 12-6-148. That statute provides:

(a) Prescribed burning conducted under the requirements of this part shall:
(1) Be accomplished only when an individual with previous prescribed burning experience or training is in charge of the burn and is present on site until the fire is adequately confined to reasonably prevent escape of the fire from the area intended to be burned;
(2) Be considered in the public interest and shall not create a public or private nuisance;
(3) Be considered a property right of the landowner; and
(4) Be conducted in accordance with a permit issued under Part 3 of this article.
(b) No property owner or owner’s agent conducting an authorized prescribed burn under this part shall be liable for damages or injury caused by fire or resulting smoke unless it is proven that there was gross negligence in starting, controlling, or completing the burn.

OCGA § 12-6-148.

(a) Wolfe asserts that the record supports an inference that Carter did not comply with the requirement under subsection (a) (1) of the statute that a trained individual be “present on site until the fire is adequately confined to reasonably prevent escape of the fire from the area intended to be burned,” because he failed to ensure that the fire was completely extinguished when he left the property at 2:00 p.m. on January 12.

But the statute does not require that a fire be completely extinguished or that no smoke be present before the supervisor may leave the site; rather, it requires only that the fire be confined to reasonably prevent its escape from the intended area. And, in fact, this Court has previously found that a landowner was entitled to the protections of OCGA § 12-6-148 where the supervising ranger left the site when “the residual smoke was light and blowing away from the highway.” Morgan v. Horton, 308 Ga. App. 192, 194, 196 (1) (b) (707 SE2d 144) (2011). Moreover, as previously noted, the record is devoid of any evidence that the fire re-ignited after Carter left the premises, much less that any fire escaped from the intended area. Thus, no evidence exists that the fire was not reasonably confined so as to prevent its escape when Carter was away from the site. Accordingly, the evidence presents no jury issue as to Carter’s compliance with OCGA § 12-6-148 (a) (1), and Wolfe was required to prove gross negligence in order to establish Carter’s liability.

Decided March 16, 2012

Savage, Turner, Pinson & Karsman, Brent J. Savage, Ashleigh R. Madison, for appellant.

(b) Even applying a gross negligence standard, however, Wolfe contends that a jury issue exists as to Carter’s liability. We disagree.

“Gross negligence” is defined under OCGA § 51-1-4, as

the absence of even slight diligence, and slight diligence is defined in the Code section as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of the diligence that even careless men are accustomed to exercise.

(Citations and punctuation omitted.) Pottinger v. Smith, 293 Ga. App. 626, 628 (667 SE2d 659) (2008). “Questions of negligence and diligence, even of gross negligence and slight diligence, usually are matters to be determined by the jury, but in plain and indisputable cases the court may solve the question as a matter of law.” (Citation and punctuation omitted.) Id. at 629.

We find that the record in this case presents such a plain and indisputable case. Even if we were to assume, without deciding, that the evidence raised a jury issue as to whether Carter’s actions were negligent, we find no evidence from which a jury could reasonably conclude that Carter failed to exercise even slight care and was therefore grossly negligent. It is undisputed that Carter conducted test burns before starting the controlled burn on January 12 to insure that the smoke would not blow across the highway. He remained on the premises until no flames were visible and only a light smoke remained. Moreover, no evidence exists that any further fire or heavy smoke resulted, which might have necessitated further action on Carter’s part. “[I]t is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.” (Citation, punctuation and footnote omitted.) Hardnett v. Silvey, 285 Ga. App. at 426. Nor can it support an inference of gross negligence. Accordingly, the trial court properly granted summary judgment on this ground.

Judgment affirmed.

Barnes, P J., and Blackwell, J., concur.

Brennan, White & Rominger, Mason White, James D. Kreyenbuhl, for appellee.

       Although Rainey was initially named as a defendant, he apparently was later dismissed from the action.

       In addition to the smoke and fog, Rozier noted on the accident report that Wolfe was following too closely and going too fast for conditions, which he believed also contributed to the accident.

       Carter, who holds a bachelor’s degree in forest management, has worked in the forestry industry for over 25 years and was certified by the Forestry Commission as a controlled or prescribed burner in 2001.

       To the extent that Wolfe relies upon additional affidavits regarding the source of the fire that contain inadmissible hearsay, conclusions or opinions, such evidence “is entitled to no weight in the summary judgment analysis. [Cit.]” Whitlock v. Moore, 312 Ga. App. 777 (1) (720 SE2d 194) (2011).


author: Phipps, Presiding Judge.

text:
    A11A1818.
    TIEGREEN v. THE STATE.
    (726 SE2d 468)
   Phipps, Presiding Judge.

In connection with a single incident, Christopher Tiegreen was indicted for aggravated assault, two counts of criminal attempt to commit a felony, false imprisonment, battery, sexual battery, and cruelty to a child in the third degree. He filed a plea of mental incompetency to stand trial, which was tried in a competency proceeding before a special jury. The jury returned a verdict finding that Tiegreen was competent to stand trial, and judgment was entered thereon. Tiegreen appeals, contending that the evidence was insufficient to support the verdict and that the trial court erred in charging the jury. We affirm.

1. We consider first Tiegreen’s challenge to the sufficiency of the evidence.

OCGA § 16-2-3 establishes the rebuttable presumption that every person is mentally competent to stand trial. OCGA § 17-7-130 permits a criminal defendant to procure review of his or her mental competency by properly alleging mental incompetency to stand trial. Once alleged, the court is required to conduct a trial to determine the defendant’s mental competency.

“In a competency proceeding, the defendant has the burden of proving incompetency by a preponderance of the evidence.”

The constitutional test for competency seeks to determine whether the defendant is capable of understanding the nature and object of the proceedings, whether he comprehends his own condition in reference to such proceedings and whether he is capable of rendering his counsel assistance in providing a proper defense.

The standard of appellate review is whether, after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was incompetent to stand trial.

In support of his claim of incompetency, Tiegreen presented at the trial held on August 2, 2010 two witnesses: his mother and a psychologist. Tiegreen’s mother testified that Tiegreen had a normal childhood until November 15, 2001. At sixteen years old, Tiegreen was involved in an automobile accident in which he sustained a traumatic brain injury (TBI). Thereafter, Tiegreen began to display behavioral problems — e.g., exercising extremely poor judgment; lacking impulse control; engaging in socially inappropriate behaviors, including touching others; becoming aggressive toward family members and others around him who stood in the way of what he wanted to do; and attempting repeatedly to run away from home. Over the course of about eight years, Tiegreen was placed in various residential settings, where he received specialized care. In March 2007, at age 22, Tiegreen was living in one such setting, a duplex, where multiple care givers supervised him 24 hours a day. During his stay at this location, Tiegreen nevertheless fled the premises.

The charges against Tiegreen were summarized to the jury, based on a pretrial ruling procured by the defense, as:

[T]his case arises from an incident that occurred on September the 11th of 2009 in which the Defendant, Mr. Tiegreen left a supervised group home and went to the yard of a nearby residence where he is alleged to have assaulted [a woman], A delivery driver intervened and the incident was over at the point of that. . . intervention by the delivery driver.

Tiegreen’s mother — in an effort to facilitate aiding her son, given his TBI — had earned in 2005 a Master’s Degree in clinical counseling psychology; at the time of the competency trial, she was working toward a doctorate in clinical psychology. She testified that Tiegreen did not have “the ability to assist in his own defense. He’s liable to say things that would incriminate him. I doubt very seriously that he grasps the gravity of this.”

Tiegreen’s second witness was a psychologist with a Ph.D. in clinical psychology, who had an extensive background in neuropsy-chology. He was tendered and qualified, without objection, as an expert in clinical psychology, forensic psychology, neuropsychology, and TBIs. As explained by this psychologist, a TBI can cause cognitive impairment. Based upon his evaluation of Tiegreen, the psychologist opined that, as a result of his particular TBI, Tiegreen was incompetent to stand trial.

As part of evaluating Tiegreen, the psychologist reviewed Tiegreen’s medical records related to injuries he had received in his automobile accident; they showed that Tiegreen had suffered a TBI. In addition, the psychologist reviewed the reports of approximately five other psychologists who had conducted psychological evaluations of Tiegreen since his accident, and he reviewed Tiegreen’s educational records from the schools he had attended.

The psychologist also met with and interviewed Tiegreen over two days, April 27 and April 30, 2010, both times at a jail. The jail, the psychologist recalled, contributed “some background noise” into the evaluation setting, and Tiegreen “became distracted at points and we would have to take short breaks until the noise would pass, and I’d kind of redirect him back to what we were doing.” The psychologist found Tiegreen cooperative and pleasant — although at times, distracted, not appearing to appreciate the seriousness of what was occurring (including joking and reciting lines from movies or songs), and requiring redirection to the task at hand.

The psychologist, who had also reviewed the indictment and police investigative reports concerning the criminal incident, determined that Tiegreen demonstrated a general understanding of the charges against him, as well as an ability to recall and relate facts underlying the criminal charges. In particular, Tiegreen told the psychologist that he had been left alone for a brief period at the duplex; that he then ran outside, where he encountered a woman; and that the woman was holding a child. Tiegreen next described what he had done to the woman and recalled that the woman had dropped the child. The psychologist further ascertained that Tiegreen had a good relationship with his defense attorney, that he could relate to his defense attorney the events that transpired on the day in question, and that he would cooperate with his attorney.

The psychologist administered various cognitive tests to Tiegreen. One test, the psychologist determined, showed that Tiegreen’s IQ was 72, a score considered at the third percentile of the general population and above mental retardation. The psychologist summarized that various other cognitive tests showed significant levels of impairment in Tiegreen’s “attention related skills, especially processing speed, how quickly the brain can process information,” as well as in most areas of his executive abilities — “reasoning, planning, organization skills, judgment.”

In particular, the psychologist administered to Tiegreen the MacArthur Competence Assessment Tool (MacCAT), which he labeled a “gold standard test” for determining competency. The psychologist explained that the MacCAT is commonly used by neuropsycholo-gists (and forensic psychologists) to assess the examinee’s skills of understanding, appreciation, and reasoning. In each of these three domains, the psychologist testified, Tiegreen’s performance on the MacCAT showed impairment.

In addition, the psychologist administered to Tiegreen the Fitness Interview Test, Revised (FIT-R). The psychologist explained that both the FIT-R and the MacCAT were designed to assess the effects of a brain injury. According to the psychologist, Tiegreen’s performance on the FIT-R showed impairment in his ability to understand the nature and object of the pending criminal proceedings, his ability to understand and appreciate possible consequences, and his ability to communicate with his counsel. In particular, the psychologist determined that Tiegreen showed a “superficial understanding” of the roles of defense attorney, prosecutor, and judge”; the psychologist determined also that Tiegreen seemed not to understand the concept of the different pleas.

The psychologist was also asked at trial for his opinion on a note, stipulated as having been written by Tiegreen and given to one of the lawyers representing him at the competency trial. The note stated:

Dear [Attorney],
It is not ok for me to go back to [a specified hospital/residential-setting]. I want you to agree or to plead or even to suck-up to the judge about me going to [a different, specified hospital/residential-setting]. If you choose to accept this mission, or accomplish this task, my mom will give you . . . $1,000,000.00.
Sincerely, Chris Tiegreen.

According to the psychologist, the note “would appear to indicate impairment, the lack of appreciation of how the whole courtroom process works” and that “[i]t does not seem to indicate competency to me.”

The state’s sole witness was a psychologist with a Ph.D. in clinical psychology who further had a specialty in forensic psychology. She had worked in Georgia since 2003 as a forensic psychologist evaluating individuals for trial competency and criminal responsibility, some of whom had suffered TBIs. She was tendered and qualified, without objection, as an expert in the fields of clinical psychology and forensic psychology. She opined that Tiegreen was competent to stand trial, detailing her underlying clinical observations of Tiegreen and the results of tests that she administered to him.

She had initially evaluated Tiegreen in December 2009. The following month, she began the process of conducting a forensic evaluation. She reviewed, among other things, police records regarding the alleged offenses, as well as several IQ tests and numerous other mental health evaluations conducted since Tiegreen’s automobile accident. And she interviewed Tiegreen in a hospital in January and February 2010.

The state’s psychologist testified that Tiegreen approached the interviews in a serious manner and was cooperative and focused throughout them. She recounted only a single instance when Tiegreen’s attention was momentarily diverted. The psychologist described that Tiegreen’s speech was slowed somewhat, but clear and of normal volume; his behavior was appropriate; and his thought processes were logical and goal-oriented. Because she had extensively reviewed the results of the multiple tests of Tiegreen’s intellectual functioning that had been done in 2002, 2003, 2006, and 2007, she administered no formal intellectual testing at that time.

In July 2010, days before the competency trial, the state’s psychologist conducted another interview — this time in a jail. She recalled a few instances during that two-and-a-half hour evaluation when Tiegreen became distracted; each time, however, he was “easily redirected back” to the question and was thus cooperative, paying attention, focusing on the questions, and giving appropriate answers.

During this visit with Tiegreen, the psychologist administered the MacCAT. She found that Tiegreen’s scores fell in the minimal or no impairment range on the understanding and the reasoning sections and that he scored in the mild impairment range on the appreciation section. She testified that Tiegreen’s performance on the MacCAT was consistent with her opinion that he was competent to stand trial.

The state’s psychologist determined that Tiegreen understood the nature and object of the proceedings against him. Tiegreen had described the basic roles and responsibilities of courtroom personnel, stating, for example, that the defense attorney was on his side, would keep him out of trouble, and would talk to the judge and prosecutor. Tiegreen stated that the prosecutor’s job was to “sue” him; when the psychologist asked him what he meant by that, he answered that the prosecutor would try to find him guilty. Tiegreen stated that the prosecutor was charged also with presenting evidence against him in court and that the prosecutor would try to send him to jail or prison. He described the judge’s role as keeping order in the court, and he described the jury as 12 to 15 people who would decide which way the verdict would go, after listening and paying attention to the victim, the defendant, the defense lawyer, and the prosecutor. The psychologist testified that Tiegreen was able also to describe a plea agreement, as well as the advantages and disadvantages of accepting a plea agreement.

The state’s psychologist determined that Tiegreen exhibited a basic comprehension of his own condition in reference to the proceedings. Tiegreen had described the charges against him and provided an account of what had happened during the criminal incident. As potential witnesses against him, he listed the woman, the delivery man, and a neighbor who was outside checking her mail at the time. The neighbor, Tiegreen added, was a half-mile away, and he proposed checking whether she wore glasses or contacts and whether she had them on at the time. Tiegreen also understood that he was facing a lengthy term of imprisonment.

The psychologist determined that Tiegreen had the ability to assist his attorney in his defense. He told the psychologist that he did not want to represent himself and expressed a willingness to work with his attorney. He described his expectation that his attorney would help him make the best decisions, and he stated that he could assist his attorney by telling him the truth about what happened.

The psychologist conceded that a note written by Tiegreen to his lawyer about his case could provide insight into how he related himself to the proceedings. However, the psychologist further recounted that she had specifically tested Tiegreen for whether he harbored any delusion that would interfere with his ability to understand his situation. She concluded from Tiegreen’s test responses that he did not.

On appeal, Tiegreen points out that the state’s expert did not administer the FIT-R to him, whereas his expert did. But even Tiegreen’s expert acknowledged that no specific test was required for determining mental competency; that both the MacCAT and the FIT-R were among the available tools; and that the protocol may appropriately vary, depending on the examiner, the client, and various other circumstances. Notably, Tiegreen’s expert labeled the MacCAT as a “gold standard test”; and the state’s expert did administer that test, as part of her overall evaluation.

Tiegreen points out that even the state’s expert recounted instances that (Tiegreen claims) showed that he continued to experience difficulty concentrating and responding to questions. Notwithstanding those instances, the state’s psychologist ultimately found him to be focused on the questions asked and “easily redirected” when instructed. And she described that Tiegreen was cooperative throughout the interviews, that he approached them in a serious manner, and that his thought process was logical and goal-directed.

Tiegreen cites evidence that his behavioral problems stemmed from his TBI, and he points out that his expert specialized in neuropsychology, whereas the state’s expert did not. Tiegreen asserts further that the state’s expert was not as credentialed as his expert. However, “[t]he jury can consider the expert’s credentials and then give such weight and credit to the expert’s testimony as it sees fit.” Here, the jury heard extensive testimony concerning the professional backgrounds of the two psychologists, and Tiegreen did not object to the state’s psychologist testifying as an expert in her specialty areas. Furthermore, the state’s expert testified that, in reaching her opinion that Tiegreen was competent to stand trial, she had taken into consideration that he suffered from a brain injury; that he had a history of problems with impulse control, including aggressiveness and sexual inappropriateness; and that he had continued to exhibit poor judgment and impulsive behavior. And the jury was aptly instructed on the use of expert testimony.

What is more, Tiegreen elicited before the jury his own expert’s criticisms of the state’s expert’s testing manner and scoring. But on cross-examination, Tiegreen’s expert acknowledged that examiners have some discretion with respect to how testing is administered and scored. Further, Tiegreen’s expert acknowledged that an individual with an IQ of 72 is “not automatically” incompetent to stand trial.

Tiegreen has demonstrated no basis for reversal. The jury, not this court, resolves conflicts in the testimony and weighs the evidence. And decisions regarding credibility are uniquely the province of the jury, which was not required to accept the testimony of Tiegreen’s witnesses, nor to disbelieve that of the state’s witness. The evidence, viewed in the light most favorable to the state, authorized a rational trier of fact to conclude that Tiegreen failed to prove by a preponderance of the evidence that he was not competent to stand trial. Nothing in Wallace v. Kemp, relied upon by Tiegreen, mandates an outcome in Tiegreen’s favor.

2. Tiegreen contends that the trial court erred in responding to the jury when it sent out a note during deliberations requesting “further insight into the meaning of ‘giving the attorney representing him such assistance as a proper defense to the charges,’ ” a factor to be considered when determining mental competency.

The record shows that, during the original final charge, the court instructed the jury:

[T]he question for your determination is whether the Defendant, Christopher Tiegreen, is at this time capable of (a) understanding the nature and object of the proceedings, (b) understanding his own situation in reference to such proceedings, and (c) giving the attorney representing him such assistance as a proper defense to the charges demands.

After having received the jury’s note, the judge conferred with the prosecutor and defense counsel, discussing particularly Sims v. State, wherein the Supreme Court of Georgia set forth:

The factors to consider in determining a defendant’s capability to assist in his defense include whether the defendant can adequately consult with others, knows the names and functions of those involved with the case, and reasonably understands the rules, the specific charges, the penalties and the consequences of the proceedings.

Accordingly, the trial judge responded to the jury in writing:

Giving the attorney representing him such assistance as a proper defense to the charges demands includes whether the defendant can adequately consult with others, knows the names and functions of those involved with the case, and reasonably understands the rules, the specific charges, the penalties and the consequences of the proceedings. Please consider this additional instruction along with all the other instructions given you by the Court.

The jury asked no further question.

On appeal, Tiegreen complains that the trial court did not give further instruction based upon other language in Sims concerning what “competency also encompasses.” Tiegreen describes that the additional language comprised “a list of possibilities that jurors may consider in the competency equation.”

It is axiomatic that “[t]he need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” Where, as here, the jury requests further instructions upon a particular legal point, the court “in [its] discretion may recharge them in full, or only upon the point or points requested.” “The refusal to give a requested charge, even though it is a correct statement of law and pertinent and material to an issue in the case, is error only if it contains information that is not substantially covered by the charge actually given.” “In determining whether the recharge was erroneous, this [c]ourt must consider the original charge given as a whole as well as the recharge in light of the original charge.”

Here, the trial court’s original charge on “mental condition of the defendant” was proper, apt, and tracked the pattern jury charge on mental competency. The jury’s request for additional instruction was specific, and the court’s response thereto provided legally correct additional instruction on that particular point. After receiving the additional instruction, the jury did not indicate any continuing doubt. Although Tiegreen maintains that charging also other language from Sims would have further supplied the jurors with a list of possibilities for consideration, the trial judge made the decision not to do so based on his stated concern not to “give them so much that it becomes less than helpful.”

We cannot conclude that the trial court thereby abused its discretion. As stated above, “[w]here a jury requests a charge or recharge on a particular point, it is within the discretion of the judge to also give or not give additional instructions.” “[Tiegreen] has failed to show any indication that the jury was confused or left with an erroneous impression of the law.”

Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.

Given the foregoing, the trial court’s decision not to give the additional language requested by Tiegreen was not reversible error.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

Decided March 16, 2012

M. Katherine Durant, for appellant.

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Assistant District Attorney, for appellee.

       See Sims v. State, 279 Ga. 389, 390 (1) (614 SE2d 73) (2005).

       See id.

       OCGA § 17-7-130; Sims, supra.

        Velazquez v. State, 282 Ga. 871, 872 (1) (655 SE2d 806) (2008) (citation omitted).

        Sims, supra (citations omitted).

         Velazquez, supra at 873 (1); Sims, supra at 391 (1).

       After a bench conference ensued, the court instructed the jury,
      This is a trial about the competency of the Defendant to stand trial. It’s not a trial about what may have actually happened on the day that these offenses may have arisen from. So, I want to caution you that... to the extent that information is brought in about the conduct that is charged, it is only admissible to the extent it shows anything about his competency. . . .

       The psychologist described, “[IJt’s a structured interview that guides the examiner through a number of questions, areas to ask about that are important, specifically for criminal competency issues.” The psychologist explained further that the examiner assigns a numerical point value to each response given by the examinee and that “it is more subjective. There’s more room for clinical judgment in the FIT-R than there is on the MacArthur.”

       (Ellipsis in note.)

       Tiegreen’s own expert psychologist acknowledged on cross-examination that he had reviewed prior evaluations of Tiegreen’s IQ - one administered in 2002, on which Tiegreen scored 87; and one administered in either 2006 or 2007, on which Tiegreen scored 85. When asked about the discrepancy between the mid-80s scores and the low-70s score, Tiegreen’s expert testified that the prior tests were not full tests, unlike the one he had administered.

       The psychologist recounted: “[A]nother patient [was] making a lot of noise on the other side of a closed door, . . . cursing and screaming and banging on the door and Mr. Tiegreen got up like he was going to go tell him to be quiet and I told him to please sit down. Let the staff handle that and he did.”

       For instance, the psychologist recounted that, early during the evaluation, rather than answer one of the questions, Tiegreen commented that he had not heard the question because he was “looking at [her] beautiful eyes.” And later, after being asked a different question, he commented that he liked her toenails.

        McCoy v. State, 237 Ga. 118, 119 (227 SE2d 18) (1976) (citation omitted).

       See generally Adams v. State, 275 Ga. 867, 868 (3) (572 SE2d 545) (2002) (fact that expert witness did not hold a medical degree went only to the weight the jury may give her testimony).

       See Sims, supra at 393 (2) (a low IQ score alone is not a determinative finding that a defendant is unable to stand trial).

       See Buford v. State, 309 Ga. App. 368 (710 SE2d 582) (2011).

       See id. at 368-369.

       See Velazquez, supra at 872-875 (1); see also Hester v. State, 283 Ga. 367, 369 (3) (659 SE2d 600) (2008); see generally Wadley v. State, 295 Ga. App. 556 (672 SE2d 504) (2009).

       757 F2d 1102 (11th Cir. 1985).

        Sims, supra at 390 (1).

       Supra.

        Sims, supra at 392 (2) (citation and punctuation omitted).

       The additional language states:
      Competency also encompasses the ability to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

        Sims, supra at 392-393 (2).

        Peebles v. State, 260 Ga. 165, 167 (5) (a) (391 SE2d 639) (1990) (citation omitted)

        Watson v. State, 289 Ga. 39, 44 (10) (709 SE2d 2) (2011).

        Velazquez, supra at 877 (7) (citation omitted; emphasis supplied).

        Khan v. State, 235 Ga. App. 229, 232 (4) (509 SE2d 137) (1998).

       See Velazquez, supra at 876-877 (7); Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 3.90.20 (“Mental Condition of the Defendant”).

       See Sims, supra.

        Walter v. State, 256 Ga. 666, 668-669 (2) (352 SE2d 570) (1987) (citation omitted).

        Howard v. State, 288 Ga. 741, 745 (3) (707 SE2d 80) (2011) (citations omitted).

        Phillips v. State, 278 Ga. App. 198, 204 (3) (628 SE2d 631) (2006) (citation omitted).

        Velazquez, supra at 877 (7).


author: BARNES, Presiding Judge.

text:
    A11A1912.
    SKIPPER v. THE STATE.
    (726 SE2d 127)
   BARNES, Presiding Judge.

Following her conviction for criminal attempt to commit armed robbery, Terry Lee Skipper appeals from the order of the trial court denying her motion for new trial. On appeal, Skipper contends that the evidence was insufficient to sustain her conviction, and that trial counsel was ineffective. Upon our review, we affirm.

1. In claiming that the evidence was insufficient to support the jury’s verdict, Skipper argues that the statement from her brother about her involvement, which he later recanted, and her presence at a nearby gas station were insufficient evidence of guilt. We are not persuaded.

In challenges to the sufficiency of the evidence supporting a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

So viewed, the evidence shows that at approximately 4:00 a.m. on July 10, 2011, police were surveilling a Waffle House because of a recent rash of robberies at several Waffle House restaurants. Police observed two people, later identified as Jerry Skipper and Jocelyn Thomas, emerge from the parking lot behind the restaurant and approach the rear of the building. Jerry Skipper was wearing a red and black wig and had a red bandana tied around the lower half of his face. He was armed with a handgun. After he was apprehended, Jerry Skipper confessed to robbing another Waffle House on July 2, 2011, and to robbing the same restaurant where he was apprehended on July 4. Jerry Skipper said that the defendant, Terry Skipper, who is also his twin sister, participated in each robbery as the driver and by providing him with his disguise.

Police questioned Skipper, and she denied any involvement. She told police that she put her brother and Thomas out of the car because they were arguing, but kept Thomas’ baby with her. Skipper also said that her check oil light was on, so she went to the Shell gas station to check out her car, and change the baby’s diaper even though it was approximately 4:00 in the morning. She told police that she saw the police descend upon the Waffle House and merely assumed that it was another robbery attempt, and that she did not leave the station because of the police.

At the trial, Skipper testified that she and her brother had been arguing the night of the attempted robbery, and that she pulled over because her oil light and “check engine” light came on. She testified that they were still arguing and that her brother got out of the car and said that he would walk home. Skipper testified that she and Thomas then “got into it” and that Thomas said that she would take her baby and get someone else to pick her up. Skipper testified that she would not let Thomas have the baby because Thomas had been drinking, did not know anyone in the area, and it was too “airish” for the baby. She further testified that Thomas then walked off.

A third accomplice, Melevina Hagins, testified that she was in the car with Skipper and her brother when they discussed robbing the restaurants. She further testified that she was with Skipper, her brother, and Thomas the night of the July 4 robbery. Hagin said that she saw red and black hair extensions in Skipper’s car, and that she overheard Skipper tell someone on her cell phone that “it’s going down.” Hagin testified that Skipper dropped her at the Waffle House the night of the July 4 robbery and that she had telephoned Skipper when the coast was clear.

Jerry Skipper, who had pled guilty to the charges, testified at trial that Skipper was not involved in the attempted robbery and that he lied to police about Skipper’s involvement because the previous month she had threatened to “call the police on [him] for something that [he] didn’t do.” He testified that on the evening of the July 10 attempted robbery, he and his sister had an altercation at Wal-Mart earlier that night. He further testified that he got out of the car when his sister pulled into the gas station, and that Thomas had gotten out of the car “initially ... [to go] in the store.”

Skipper was indicted for criminal attempt to commit armed robbery for her involvement in the events of July 10, 2011 armed robbery, three counts of aggravated assault, and theft by taking related to the July 2 and July 4 robberies. Following a jury trial, she was convicted of criminal attempt to commit armed robbery, but acquitted of the other charges.

A person commits the offense of criminal attempt to commit armed robbery when, with intent to commit theft, she performs any act which constitutes a substantial step toward taking the property of another from the person by use of an offensive weapon or anything having the appearance of such a weapon. OCGA §§ 16-4-1; 16-8-41 (a). A person is concerned in the commission of a crime and a party thereto when the person “[¿Intentionally aids or abets in the commission of the crime.” OCGA § 16-2-20 (b) (3).

While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.

(Citations, punctuation and emphasis omitted). Butler v. State, 194 Ga. App. 208, 209 (2) (390 SE2d 278) (1990).

While OCGA § 24-4-8 provides that “in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient,” “the testimonies of multiple accomplices suffice to corroborate each other and sustain a conviction.” Hawkins v. State, 290 Ga. App. 686, 688 (660 SE2d 474) (2008). And, to the extent that Skipper’s brother recanted his prior statement that she was involved in the attempted robbery, “the prior inconsistent statement of a witness is admissible as substantive evidence if the witness testifies at trial and is subject to cross-examination,” as was the case here. Kinney v. State, 271 Ga. 877, 880 (2) (525 SE2d 91) (2000).

Solving evidentiary conflicts and inconsistencies is a matter of credibility for the finder of fact, not this Court. Boyd v. State, 259 Ga. App. 864, 866 (3) (578 SE2d 472) (2003). The presence of some evidence, though contradicted, which supports each necessary element of the State’s case, is sufficient for this Court to uphold the jury’s verdict. Alewine v. State, 273 Ga. App. 629 (1) (616 SE2d 472) (2005).

Here, evidence that Skipper discussed the attempted armed robbery beforehand with the co-defendants, provided part of the disguise for her brother, drove the co-defendants to the crime scene, was present near the scene of the attempted robbery, fled the scene after the attempted robbery, and changed her story about the details of the night of the attempted robbery was sufficient to allow the jury to find beyond a reasonable doubt that Skipper aided and abetted the charged crime and was guilty as a party. OCGA § 16-2-20; Jackson v. Virginia, 443 U. S. at 319.

2. Skipper also contends that trial counsel was ineffective for failing to call her father as a witness to testify for her defense. She argues that her father would have corroborated her testimony about why she was at the gas station the night of the robbery.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant must prove (1) that his trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.

Kurtz v. State, 287 Ga. App. 823, 825 (652 SE2d 858) (2007). “Making that showing requires that [Skipper] rebut the strong presumption that her lawyer’s conduct falls within the wide range of reasonable professional assistance.” Simpson v. State, 278 Ga. 336, 337 (2) (602 SE2d 617) (2004). “As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citations and punctuation omitted.) Beck v. State, 292 Ga. App. 472, 474 (2) (a) (665 SE2d 701) (2008). “We will not reverse a trial court’s findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.” Kurtz, supra, 287 Ga. App. at 825.

Skipper’s attorney testified at the motion for new trial hearing that he did not feel that it was necessary to have Skipper’s father as a witness. He did not elaborate further as to his reason for not doing so. Skipper’s father testified at the hearing that his daughter called him the night of July 10 and said that her “check engine” light was on, and also mentioned that she and her brother had gotten into an argument. He further testified that he told her to go to a service station and have it checked out. The father did not know the time the call was made.

Under the circumstances, trial counsel’s [presumed] strategic judgment call not to present largely cumulative testimony from [an] additional defense witness [ ] was not so unreasonable as to establish ineffective assistance of counsel. Trial counsel’s failure to present cumulative evidence does not amount to ineffective assistance.

DECIDED MARCH 16, 2012.

Carnesale, Delan & Flinn, Charles C. Flinn, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Burkes v. State, 302 Ga. App. 895, 898 (691 SE2d 910) (2010); Johnson v. State, 257 Ga. App. 30, 31-32 (1) (570 SE2d 344) (2002) (no ineffective assistance where counsel failed to introduce cumulative testimony).

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: Blackwell, Judge.

text:
    A11A2112.
    GWINNETT COUNTY v. ASCOT INVESTMENT COMPANY et al.
    (726 SE2d 130)
   Blackwell, Judge.

Gwinnett County brought an action to condemn certain property, in which Ascot Investment Company and Peoples Bank & Trust had an interest, for a public roadway project designed to improve the area around Georgia Gwinnett College. A jury awarded more than $3 million to Ascot and the Bank for the taking of the property, and the court below entered a final judgment upon the verdict of the jury. The County appeals, claiming that the trial court erred by admitting evidence of pre-taking damages, failing to give a requested charge that pre-taking damages are not recoverable, admitting evidence about the proposed future development of the property that is hypothetical and speculative, and refusing to strike a juror based upon his difficulty understanding English. We find no error and affirm.

1. We first address the claims that the trial court erred when it admitted evidence of, the County says, pre-taking damages and when it failed to give a jury charge that the County requested about such damages. The Georgia Constitution provides that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Ga. Const. of 1983, Art. I, Sec. Ill, Par. I (a). And where, as here, there is a partial taking of property by condemnation, just and adequate compensation is the sum of the market value of the property that is taken and the consequential damage, if any, to the property that remains, both measured as of the time of the taking. Dept. of Transp. v. Ogburn Hardware & Supply, 273 Ga. App. 124, 125 (1) (614 SE2d 108) (2005). The consequential damage to the property that remains is the difference between its fair market value before the taking and its fair market value after the taking. Id. at 126 (1). Just and adequate compensation does not include damage to the value of the property before the date of taking as a result of mere anticipation that the property later will be taken. Five Forks v. Dept. of Transp., 250 Ga. App. 157, 159-160 (550 SE2d 715) (2001).

Here, the evidence shows that Ascot purchased a 28.606-acre tract of land adjacent to Georgia Gwinnett College in 2006. Shortly thereafter, Ascot entered into negotiations with a third-party developer of student housing, which was interested in buying a portion of the property for the construction of a student housing development. Ascot and the developer signed an agreement in March 2007, in which the developer agreed to buy 19.03 acres of the property for $8 million, or approximately $420,000 per acre. Before the agreement closed, however, Ascot became aware of the County’s intention to condemn a portion of the property that it had agreed to sell to the developer. Consequently, in February 2008, Ascot and the developer entered into an amended purchase agreement, which reduced the acreage being sold to approximately 17.6 acres and decreased the purchase price to approximately $7.4 million, still about $420,000 per acre. In March 2009, the County filed its declaration of taking, which did not pertain to any of the acreage identified for sale in the amended purchase agreement.

At trial, the County did not object to the introduction of the two purchase agreements between Ascot and the student housing developer or to testimony about why the original purchase agreement was amended. But the County unsuccessfully sought to prevent Ascot and the Bank from introducing testimony about exactly which acreage was included in the original purchase agreement but omitted from the amended purchase agreement. The County now claims on appeal that testimony about Ascot’s original agreement to sell 19.03 acres to the developer was irrelevant evidence of pre-taking damages. Assuming that the objections at trial were sufficient to preserve this claim, we conclude that it has no merit.

The testimony about which the County complains tends to show that the developer was willing to pay approximately the same price per acre — about $420,000 — when the property to be sold included land that was later the subject of the taking and when the property excluded that land. This served to discredit the testimony of the County’s expert witnesses, who testified that the topography of the land that was ultimately taken by the County made it less desirable than the land sold by Ascot to the developer. The County has not pointed to any portion of the record, nor could we find any, in which Ascot or the Bank argued or even implied that they were entitled to pre-taking damages as a result of having to renegotiate the purchase agreement with the developer. Instead, they consistently and properly maintained that the jury should award them an amount equal to the value of the taken property, plus the consequential damages to the remainder.

We also disagree with the County’s assertion that the trial court erred when it refused to give a jury charge that would have instructed the jury that Ascot and the Bank were not entitled to recover any losses resulting from the mere anticipation that a taking would occur. As previously noted, there was no evidence presented of pre-taking damages in anticipation of the taking. And the trial court properly instructed the jury that “the only question” it must answer was “[w]hat constitutes just and adequate compensation for the property taken” and that the determination of the value of the property is to be made as of the date of the taking. The trial court also informed the jury of the two types of damages that could be awarded, direct and consequential, and the court defined direct damages as the value of the property actually taken and consequential damages as “pertain[ing] to the property the owner has left after the part the condemnor takes or uses is subtracted.” Viewing the charges as a whole, as we must, we find that they properly explained how the jury was to calculate damages, and the trial court did not err when it refused to provide an additional charge in the exact language requested by the County. See Norton v. Holcomb, 299 Ga. App. 207, 213 (5) (682 SE2d 336) (2009).

2. We next address the claim that the trial court erred when it admitted evidence of the proposed future development of Ascot’s property, which was hypothetical and speculative, the County contends. Specifically, the County argues that the trial court should have excluded the testimony of an expert witness, as well as “financial feasibility studies” prepared by that witness, about the practicality of developing student housing on the property. The expert was the director of development for the student housing developer that purchased a portion of Ascot’s property in February 2008, as described in Division 1. In short, the expert concluded that, before the taking by the County, Ascot’s property was well-suited to develop into lucrative student housing for Georgia Gwinnett College, but the property no longer was suited for such a purpose after it was divided by the taking.

“It has long been the policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective minds in determining the just and adequate compensation to be paid the condemnee.” Dept. of Transp. v. Southeast Timberlands, 263 Ga. App. 805, 808 (2) (a) (589 SE2d 575) (2003) (citation and punctuation omitted). And it is well established that a jury in a condemnation action may consider “all legitimate purposes, capabilities and uses” to which the property might be adapted, “provided that such use is reasonable and probable and not remote or speculative.” Id. (citation and punctuation omitted); see also Carriage Hills Assoc. v. Municipal Elec. Auth. of Ga., 264 Ga. App. 192, 193 (1) (590 SE2d 156) (2003). Here, evidence was presented that, when Ascot purchased the property in 2006, it was zoned for townhomes, but in August 2006, Ascot procured a rezoning of the property to allow student dormitories to be developed on the entire 28.631-acre tract. According to an expert witness who appraised the property, such a rezoning is unusual, and land zoned for student housing was described as “a diamond in the rough.” The zoning for student housing was possible in this case, according to Ascot’s expert witnesses, because Ascot’s property was adjacent to Georgia Gwinnett College. Ascot sold 17.6 acres of its property in February 2008 to a developer of student housing properties, but Ascot retained approximately 11 acres that it planned to use for a second student housing development. That same month, Ascot and the student housing developer entered into an agreement for the construction of a retention pond to collect storm water runoff from the future development of both of the properties. Evidence also was presented that Ascot discussed its plans with the College, and the College assured Ascot that the College would continue to grow and that there would be a need for additional student housing. And while the County made much of the fact that Ascot had only preliminary site plans, and no architectural plans, for the development of student housing on the property, the director of development for the student housing company testified that the lack of architectural plans was not unusual and that his company purchased the 17.6 acres from Ascot in 2008 to develop student housing without first spending the funds to prepare architectural plans.

While the County claims that Ascot and the Bank improperly valued the property as though a development of student housing was an accomplished fact, see, e.g., Dept. of Transp. v. Benton, 214 Ga. App. 221, 222 (1) (447 SE2d 159) (1994), their appraiser explicitly testified that he valued the property as a vacant tract of land and not as if the development was an accomplished fact. And evidence of the value of property is not limited to the use of the property at the time of the condemnation, as long as another use is so reasonably probable as to have an effect on the present value of the land. Shepherd Interiors v. City of Atlanta, 263 Ga. App. 869, 871-872 (2) (589 SE2d 640) (2003). Here, Ascot and the Bank presented expert testimony that the property’s value at the time of the taking was affected by its probable future use for student housing. As a result, the trial court did not commit a manifest abuse of discretion when it allowed evidence that, as a result of the taking of the property, it was no longer feasible to construct student housing on the remainder. See Flint v. Dept. of Transp., 223 Ga. App. 815, 817 (1) (479 SE2d 160) (1996).

3. Finally, we address the claim that the trial court erred when it refused to strike a juror who, according to the County, was not sufficiently able to understand English. Although OCGA § 15-12-163 (b) (6) provides that a juror in a felony case may be excused for cause if he “is unable to communicate in the English language[,]” the decision to strike a juror for cause in both civil and criminal cases lies within the sound discretion of the trial court, and its ruling on a juror’s suitability “may only be reversed upon a finding of ‘manifest abuse’ of that discretion.” Kim v. Walls, 275 Ga. 177, 178 (563 SE2d 847) (2002). Here, during voir dire, the County’s lawyer asked the juror at issue if he spoke English fluently. The juror responded that it “depends [on] what kind of matter we’re talking about. I’m not flexible with technical language, but [if] you repeat and speak slowly to me, I can respond much better.” When asked if he could keep up with expert testimony about appraisals and engineering, the juror acknowledged that, “[cjlearly, I can experience some difficulty understanding because I’m not familiar [with that] type of language.” But the juror also said that he had lived in the United States since 1988, that he works as a consultant and instructor developing training seminars in English and Spanish, and that in his “everyday sort of life,” he uses a combination of English and Spanish. The juror answered all of the lawyers’ questions during voir dire, and although his answers were not grammatically perfect, they suggest that he understood the questions asked of him. And while the juror acknowledged that he might have difficulty understanding some technical language used by expert witnesses, many native English speakers might have the same difficulties if unfamiliar with the worlds of appraisals and engineering. The trial judge was in the best position to assess whether this juror could understand English well enough, and based on our review of the record, we are unable to find that the trial court manifestly abused its discretion when it refused to remove the juror.

Decided March 16, 2012.

Carothers & Mitchell, Richard A. Carothers, Amy B. Cowan, Michael E. Hobbs, for appellant.

Mahaffey, Pickens & Tucker, Steven A. Pickens, Richard L. Tucker, Jr., for appellees.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       Pursuant to the taking, the County acquired fee simple title to 2.38 acres as a “required right of way” and a permanent easement over an additional 0.976 acres for drainage and the construction and maintenance of slopes. The taken property divided an approximately 11-acre tract of land owned by Ascot and in which the Bank possessed a security interest.

       We note that this court has previously held that an executed contract of sale, even if the sale never is closed, is admissible for the purpose of showing comparative valuation by an expert witness. Jordan v. Dept. of Transp., 178 Ga. App. 133, 134 (2) (342 SE2d 482) (1986).

       For example, one of the experts described the land sold by Ascot to the developer as the “tenderloin” and the land that was taken by the County as “second tier.”

       In any event, it is difficult to see how the original purchase agreement could serve as evidence of pre-taking damages resulting from an anticipation that a taking would occur, given that the evidence indicates that the parties did not anticipate then that the agreement would be affected by any condemnation.

       See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.), § 14.020.

       See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.), §§ 14.100 and 14.120.


author: Andrews, Judge.

text:
    A11A1967.
    BROOKS et al. v. IRONSTONE BANK.
    (726 SE2d 419)
   Andrews, Judge.

After Ironstone Bank (the Bank) filed a petition for foreclosure confirmation on two pieces of property, the Bank, the guarantors and the borrowers took part in settlement negotiations and, according to the Bank, reached a final settlement agreement. The guarantors and borrowers (collectively “Brooks”) disputed this, but the court granted the Bank’s petition to enforce the settlement agreement. After reviewing the record, we conclude there were issues of fact as to the existence of a finalized settlement that was agreed to by both parties, and reverse.

This case arose when the Bank filed a “Report of Sale and Petition for Confirmation” after selling two pieces of foreclosed property in Cherokee County. Lonestar Holding Company was the borrower on the first property and a guarantor on the second property. Pillar Development was the borrower on the second property and a guarantor on the first property. John Sutton and J. D. Brooks were guarantors on both pieces of property.

The loans went into default and the Bank foreclosed. The properties sold for approximately $7 million, leaving a deficiency of approximately $3 million.

The parties began negotiating a settlement agreement and, according to the Bank, reached a final agreement on August 19, 2010. On August 30, 2010, Brooks raised the issue of an indemnification provision which had been requested by Brooks previously and which the Bank had refused. After efforts to resolve the issue failed, Brooks announced on December 8, 2010 that he would not sign the settlement agreement. The Bank filed a petition to enforce the settlement agreement and, after hearing argument, the trial court granted the motion. This appeal followed.

Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. This authority is determined by the contract between the attorney and the client and by instructions given the attorney by the client, and in the absence of express restrictions the authority may be considered pie-nary by the court and opposing parties. The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties. Therefore, from the perspective of the opposing party, in the absence of knowledge of express restrictions on an attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority. The client’s remedy, where there have been restrictions not communicated to the opposing party, is against the attorney who overstepped the bounds of his agency, not against the third party.

Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 674-675 (308 SE2d 544) (1983).

Here, the trial court held that there was no limitation on Brooks’s counsel’s authority, as expressed to Bank’s counsel, at the time the agreement was reached. Therefore, Brooks’s counsel’s authority was plenary, and Brooks was bound by the agreement.

“Because the trial court decided this case on motion and not by bench trial, the issues raised in this appeal are analogous to those in a motion for summary judgment. Our review is de novo.” (Punctuation omitted.) Jones v. Frickey, 274 Ga. App. 398, 400 (618 SE2d 29) (2005). To prevail, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. The Bank argues that the “clearly erroneous” standard of review should apply. This is only true where the record reflects that the trial court heard live testimony and was called upon to act as the ultimate finder of fact. OCGA § 9-11-52. In this case, the court did not hear testimony, and the motion was decided on the written record, affidavits, and oral argument. See Walls v. Walls, 260 Ga. App. 673, 675 (580 SE2d 564) (2003) (“Because the trial court decided this case on motion and not by bench trial, the issues raised in this appeal are analogous to those in a motion for summary judgment. Our review is de novo.”). See also Greenwald v. Kersh, 275 Ga. App. 724, 725, n. 3 (621 SE2d 465) (2005) (“We also conduct a de novo review of the factual basis for a trial court’s ruling on a motion to enforce a settlement agreement if the parties rely on submission of affidavits and other evidence similar to that considered by a trial court in a ruling on motion for summary judgment.”). Compare Griffin v. Wallace, 260 Ga. App. 857 (581 SE2d 375) (2003) (when the trial court hears testimony and is called upon to act as the finder of fact regarding a motion to enforce a settlement, the clearly erroneous standard is used); Morrow v. Vineville United Methodist Church, 227 Ga. App. 313, 317 (2) (489 SE2d 310) (1997) (following a nonjury trial on the motion to enforce the settlement, the trial court made findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a)).

On appeal, Brooks claims that the trial court erred in determining that a settlement agreement had been reached. The Bank contends that a settlement was reached during an August 19, 2010 telephone conversation.

The record shows that counsel for the Bank stated in his affidavit that he agreed to certain requests for changes proposed by Brooks’s counsel, and, at that point, an agreement was reached. Bank’s counsel further stated that he was not informed and was not aware of any restrictions on Brooks’s counsel’s authority to settle the case.

Brooks’s counsel, Amy Haywood, submitted an affidavit stating that at the end of the August 19 phone call, she told Bank’s counsel that she had no further comments on the agreement but had not had an opportunity to meet with Brooks and co-counsel. Therefore, she would have to “confirm that they had no further comments.”

According to Haywood, Bank’s counsel then sent an execution copy of the settlement agreement to her co-counsel, asking whether the agreement was final. Haywood responded, stating that she had not heard from Brooks. On September 27, 2010, Haywood e-mailed Bank’s counsel, stating:

When you incorporated the changes I requested, I told you that as far as I knew this was final but that I had not had any contact with the client and had to confirm with John (co-counsel) that the client did not have additional comments. Unfortunately, the client did have additional comments. I am sorry for the frustration.

Bank’s co-counsel e-mailed back: “Thanks for the reply. I didn’t remember that. Where are we? Do you have the additional comments?”

Accordingly, whether Brooks’s counsel communicated to Bank’s counsel that she did not have authority to finalize the agreement during the telephone conversation on August 19 is a disputed issue of fact. Haywood states that she told Bank’s counsel that she would have to confirm that her client did not have additional comments. Bank’s counsel does not remember being told that Haywood would need to confer with her client before the agreement was final.

In Rodebaugh v. Robbins, 180 Ga. App. 338, 339 (349 SE2d 195) (1986), we held:

In granting the appellee’s motion to enforce the settlement agreement, the trial court determined as a matter of law that appellant’s attorney had communicated no restrictions on his authority to settle and consequently that any agreement the appellee reached with him was binding on the appellant. However, the evidence before the court indicated that settlement negotiations were still pending. Although the appellee’s attorney stated that his modified proposal had been accepted by appellant’s attorney, the appellant’s attorney testified that, although it looked satisfactory to him, he had informed appellee’s counsel that he intended to present it to his client for approval. Consequently, it does not appear as a matter of law that a settlement was actually reached, and it follows that the trial court erred in granting the motion to enforce the alleged agreement.

Id. See also Devereaux v. Citizens & Southern Nat. Bank, 172 Ga. App. 53 (322 SE2d 310) (1984) (trial court erred in enforcing settlement agreement because the issue of whether the defendants were apprised prior to their acceptance of the settlement offer that plaintiff was no longer willing to settle the case for $5,000 was a factual question to be resolved by a jury); City of Albany v. Freeney, 313 Ga. App. 24 (720 SE2d 349) (2011) (question of fact as to existence of settlement agreement).

DeCided March 2, 2012

Reconsideration denied March 19, 2012.

Schreeder, Wheeler & Flint, John A. Christy, Robert H. Snyder, Jr., for appellants.

Hewitt & Rogers, A. Kenneth Hewitt III, for appellee.

Thompson, O’Brien, Kemp & Nasuti, Aaron M. Kappler, amicus curiae.

Therefore, because there are issues of fact remaining, it follows that the trial court erred in granting the Bank’s motion to enforce the settlement agreement.

Judgment reversed.

Phipps, P. J., and McFadden, J., concur.