author: McFADDEN, Judge.

text:
    A13A0876.
    WOODEN v. SYNOVUS BANK.
    (748 SE2d 275)
   McFADDEN, Judge.

Howard Wooden appeals from the trial court’s order granting summary judgment to Synovus Bank both on the bank’s action against him on a promissory note that he had personally guaranteed and on his counterclaim against the bank for intentional interference with business relations. As detailed below, the bank has presented a prima facie case for enforcing the note; and Mr. Wooden has not demonstrated his claimed affirmative defense of novation. In addition, Mr. Wooden’s guaranty authorized the bank to engage in the acts that he claims constituted intentional interference. Accordingly, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628 (725 SE2d 336) (2012) (citation and punctuation omitted).

So viewed, the evidence shows that Mr. Wooden was a member of Wooden Nickel Plantation, LLC (“Wooden Nickel”). On September 24, 2009, Wooden Nickel borrowed $2,450,852.82 from the bank’s predecessor-in-interest and entered into a promissory note for that amount. Mr. Wooden signed a personal guaranty of the indebtedness. Two other persons affiliated with Wooden Nickel also signed personal guaranties.

Wooden Nickel defaulted on the loan. Without Mr. Wooden’s knowledge, the bank entered into a settlement with the two other guarantors, releasing them from liability on their personal guaranties in exchange for payments that were applied to the outstanding loan balance. It then brought an action on the note against Wooden Nickel and Mr. Wooden. Mr. Wooden answered, asserting the affirmative defense of novation based upon the bank’s settlement with the other guarantors; he also asserted a counterclaim for intentional interference with business relations based upon the bank’s settlement with the other guarantors. Wooden Nickel initially answered the bank’s complaint as well, but then withdrew its answer. The trial court entered a default judgment against Wooden Nickel and granted summary judgment to the bank on both its claim against Mr. Wooden and Mr. Wooden’s counterclaim.

1. Claim on promissory note.

The bank produced the promissory note that it seeks to enforce, and there is no dispute either that Wooden Nickel, through its members, executed the note or that Mr. Wooden executed a personal guaranty of the indebtedness created by that note. Accordingly, the bank established a prima facie case for enforcing the note against Mr. Wooden. See Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 315 (3) (724 SE2d 33) (2012); Core La Vista, LLC v. Cumming, 308 Ga. App. 791, 795 (1) (b) (709 SE2d 336) (2011). This shifted the burden to Mr. Wooden to establish an affirmative defense to the claim on the note. See Han v. Han, 295 Ga. App. 1, 3 (2) (670 SE2d 842) (2008).

He has asserted the affirmative defense of novation. See OCGA § 10-7-21 (“Any change in the nature or terms of a contract is called a ‘novation’; such novation, without the consent of the surety, discharges him.”). He argues that a fact question exists as to whether the bank’s settlements with the other two guarantors effectively changed the terms of the original promissory note, thereby releasing him from his obligations under the note.

In every novation there are four essential requisites: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, and (4) the validity of the new one. If these essentials, or any one of them, are wanting, there can be no novation.

Brown v. Lawrenceville Properties, 309 Ga. App. 522, 524 (1) (710 SE2d 682) (2011) (citation and punctuation omitted). Accord Georgialina Enterprises v. Frakes, 250 Ga. App. 250, 253 (551 SE2d 95) (2001). But Mr. Wooden has pointed to no new contract, to which the bank and Wooden Nickel agreed, that served to extinguish and replace the promissory note; so the promissory note continued to reflect Wooden Nickel’s obligation to repay the loan the bank made to it. Likewise, Mr. Wooden has pointed to no new contract between himself and the bank that served to extinguish and replace his guaranty. Although he argues that the other guarantors’ releases served to increase the amount of risk to which he was exposed under his guaranty, see OCGA § 10-7-22 (act of creditor that increases surety’s risk or exposes him to greater liability shall discharge him), the language of Mr. Wooden’s guaranty unambiguously and unconditionally obligated him — individually —to pay the entire amount of Wooden Nickel’s indebtedness should it default on its loan from the bank. Thus, the releases did not increase Mr. Wooden’s risk under the guaranty. Notwithstanding this language, he argues that the releases went against understandings he had with the other guarantors. But we cannot look to extrinsic evidence to vary the unambiguous terms of Mr. Wooden’s guaranty. See Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 502 (2) (707 SE2d 885) (2011).

Even if we assume, arguendo, that a lender’s release of some guarantors to a promissory note could be viewed as extinguishing the promissory note and creating a new agreement, as required for a novation, in this case Mr. Wooden waived his right to raise a novation defense by consenting to the bank’s release of the other two guarantors. A guarantor can consent to a novation, and such “consent can be given in advance, even at the time the guaranty is signed.” Underwood v. NationsBanc Real Estate Svc., 221 Ga. App. 351, 353 (471 SE2d 291) (1996) (citations omitted). Accord Fletcher v. C. W. Matthews Constr. Co., 322 Ga. App. 751, 758 (2) (b) (746 SE2d230) (2013). The guaranty that Mr. Wooden signed was unconditional, and it included the following language:

The liability of the Undersigned shall not be affected or impaired by any of the following acts or things (which Lender is expressly authorized to do ...):.. . any full or partial release of, settlement with, or agreement not to sue, Borrower or any other guarantor ....
The Undersigned waives any and all defenses, claims and discharges of Borrower, or any other obligor, pertaining to Indebtedness, except the defense of discharge by payment in full. Without limiting the generality of the foregoing, the Undersigned will not assert, plead or enforce against Lender any defense of . . . release[ ] . . . which may be available to Borrower or any such other person liable in respect of any indebtedness [.]

Mr. Wooden argues that this language was not consent to a novation because it did not expressly mention that defense. See Jones v. Dixie O’Brien Div., O’Brien Corp., 174 Ga. App. 67, 69 (2) (329 SE2d 256) (1985) (finding guaranty’s waiver of “notice of acceptance of the guaranty, and all notice of the goods and merchandise sold by you to said debtor, and all notice of defaults by said debtor, and ... consent to any extension of the time of payments” did not constitute consent to a failure of consideration because “there was no express waiver of the defense of consideration”) (citations and punctuation omitted). But this language did expressly give the bank the authority to settle with and release other guarantors, and it did expressly waive any defenses based on such releases. Consequently, even if the bank’s release of the other guarantors could be construed as a novation, this unambiguous language functioned as a consent by Mr. Wooden to that action. See Fielbon Dev. Co. v. Colony Bank of Houston County, 290 Ga. App. 847, 854 (2) (b) (660 SE2d 801) (2008); Underwood, 221 Ga. App. at 353. “Given the language of the guaranty in this case, no issue of fact existed as to whether [Mr. Wooden] was discharged by... any purported novation [caused by the bank’s settlements and releases of the other guarantors] because he agreed in advance to the risk that the bank would take such actions.” Fielbon Dev. Co., 290 Ga. App. at 854 (2) (b) (citations omitted).

Accordingly, the trial court did not err in granting summary judgment to the bank on its claim on the promissory note.

2. Counterclaim for intentional interference with business relations.

Mr. Wooden based his claim for intentional interference with business relations on the bank’s act of settling with the other two guarantors and releasing them from liability on the promissory note. But, as cited above, the guaranty that he signed unambiguously authorized the bank to enter into a settlement and release with any other guarantor.

In order to state a claim under a theory of intentional interference with business relations, it is necessary to show, in part, that the alleged intermeddler acted improperly and without privilege. . . . Since the bank merely asserted its contractual rights [to enter into settlements and releases with the other guarantors], the trial court correctly granted summary judgment as to the counterclaim for tortious interference with business relations.

Russell Corp. v. BancBoston Financial Co., 209 Ga. App. 660, 663 (4) (434 SE2d 716) (1993) (citations omitted).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Decided September 5, 2013.

George L. Williams, Jr., for appellant.

Page, Scrantom, Sprouse, Tucker & Ford, Robert C. Brand, Jr., Travis C. Hargrove, for appellee.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A0951.
    SHELTON v. THE STATE.
    (748 SE2d 278)
   DOYLE, Presiding Judge.

Following a jury trial, Tiffany Shelton appeals her conviction of possession of marijuana with intent to distribute and possession of a firearm during the commission of a felony. Specifically, Shelton contends that the trial court erred by (1) granting the State’s motion in limine preventing her from impeaching her accomplice’s testimony by referring to a separate drug case pending against the accomplice, and (2) sustaining the State’s objection to her cross-examination of a witness about whether the accomplice is a drug dealer. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that a sheriff’s department investigator received a tip from a familiar confidential informant that Patrick Donaldson and an unnamed female (Shelton) were in possession of a large quantity of marijuana in a blue Chevrolet Malibu with a certain license plate number. Based on the tip, the investigator alerted local police who immediately began searching for the described vehicle in the location reported by the tip. Two police investigators located the vehicle and executed a traffic stop. The investigators called for back-up officers and approached the vehicle. Investigator Billy Hunter approached the passenger side, and the passenger, Donaldson, opened the door, but Hunter shut the door and asked him to sit still. As the door closed, Hunter immediately smelled a strong odor of unburned marijuana. Meanwhile, the other investigator, Vernon Nobles, took the driver, Shelton, out of the car and back to the rear of the vehicle. Thereafter, additional officers arrived, Donaldson was removed from the car, and the car was searched, revealing two large sandwich bags of marijuana in the back seat area, digital scales, and a smaller bag of marijuana. Multiple empty bags of the same small type were found in the console and driver’s door pocket. Shelton also notified officers of the presence of her handgun wedged between the driver’s seat and the console, which weapon she was licensed to carry.

Based on the contraband found in the vehicle, Shelton and Donaldson were charged with possession of marijuana with intent to distribute, and Shelton was charged with possession of a firearm during the commission of a felony. Prior to trial, the State moved in limine to prohibit any evidence that Donaldson had unrelated drug charges pending in another county. The trial court granted the motion, and following a trial at which both Donaldson and Shelton testified, Shelton was found guilty on the two indicted counts. Following the denial of her motion for new trial, she filed this appeal.

1. Shelton contends that the trial court erred by granting the State’s motion in limine and preventing her from showing Donaldson’s alleged bias toward the State by cross-examining him about an unrelated pending charge. We agree that the trial court erred, but we conclude that the error was harmless in the context of the evidence at trial.

Donaldson was charged with and pleaded guilty to the same possession charge as Shelton. At Shelton’s trial, Donaldson testified that the marijuana found in the car was not his, but he did not accuse Shelton of possessing it. The fact of Donaldson’s guilty plea was elicited by the State during its direct examination, but, as noted above, Shelton was prevented from cross-examining Donaldson about any potential bias in favor of the State arising from unresolved charges in another case.

The Supreme Court of Georgia has held that the Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees “the defendant in a criminal trial both the general right to cross-examine witnesses against him and the more specific right to cross-examine a key state’s witness concerning pending criminal charges against the witness.” Distinct from introducing evidence of a prior conviction, which is a “general attack on the credibility of the witness,” evidence of a pending charge is a more particular attack aimed at revealing possible bias. “What counts is whether the witness may be shading his testimony in an effort to please the prosecution. . . . [Thus, because] the trial court cut off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination,” it abused its discretion.

Nevertheless, such error does not require reversal if the State shows that the error was harmless beyond a reasonable doubt. First, we note that Donaldson testified that the marijuana was not his, but he did not accuse Shelton of possessing it, instead saying that he did not know who it belonged to and that he never saw it in the car. Thus, his testimony was not wholly favorable to the State. Further, putting aside Donaldson’s testimony, it is undisputed that Shelton drove to Donaldson’s residence, and she had rented the vehicle in which they briefly rode together and in which the marijuana was later found. It is likewise undisputed that marijuana packaging materials were found openly sitting in Shelton’s door pocket. Finally, a small quantity of packaged marijuana was found in the patrol car where Shelton was sequestered; the vehicle had been searched and found to be free of contraband prior to her entry, and Shelton was the only person transported in the vehicle that day. Thus, in light of the marijuana in the patrol car and the packaging materials in Shelton’s car door, we conclude that the erroneous restriction on Shelton’s cross-examination of Donaldson was harmless beyond a reasonable doubt.

2. Shelton also contends that the trial court erred by forbidding her from asking the following question of a police investigator: “To your knowledge, is Patrick Donaldson a drug dealer?” Shelton contends that she intended to use the evidence to show that Donaldson was a drug dealer, so he had a propensity to possess the marijuana found in the vehicle Shelton drove. But, so broadly phrased, the question could be interpreted as an attack on Donaldson’s character or veracity by specific instances of prior misconduct, which must be done using a certified conviction. Further, Shelton was permitted to examine Donaldson about whether he possessed the drugs and whether he was using them at the time of the offense. Accordingly, the trial court did not abuse its discretion by sustaining the State’s objection to the question as posed.

Decided September 5, 2013.

Patrick E. Chisholm, for appellant.

Joseph K. Mulholland, District Attorney, Heather H. Lanier, Assistant District Attorney, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-30 (j) (1).

       OCGA § 16-11-106 (b) (4).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

        Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982). See Manley v. State, 287 Ga. 338, 340 (2) (698 SE2d 301) (2010) (“[DJefense counsel is entitled to a reasonable cross-examination on the relevant issue of whether a witness entertained any belief of personal benefit from testifying favorably for the prosecution.”) (citation and punctuation omitted).

        Hines, 249 Ga. at 260 (2).

       (Emphasis omitted.) Id.

       See Mangum v. State, 274 Ga. 573, 577 (2) (555 SE2d 451) (2001).

       See Martinez v. State, 284 Ga. 138, 140 (3) (663 SE2d 675) (2008) (“a defendant may not attempt to impeach the character or veracity of a witness by specific instances of prior misconduct unless the misconduct has resulted in the conviction of a crime involving moral turpitude”) (punctuation omitted); Kimbrough v. State, 254 Ga. 504, 505 (2) (330 SE2d 875) (1985) (“To impeach a witness by a prior conviction the conviction must be proved by the record of conviction itself, not by cross-examination.”) (punctuation omitted).

       See Boothe v. State, 293 Ga. 285, 294 (3) (745 SE2d 594) (2013) (“To the extent that Appellant wished to question [a witness] about drug use in general [as opposed to at the time of the crime], the trial court did not abuse its discretion in determining that such inquiries were irrelevant and improper”), citing Garcia v. State, 240 Ga. 796, 801 (242 SE2d 588) (1978) (holding that the trial court did not abuse its discretion in limiting the cross-examination of a State witness’s use of drugs to the time of the crime, as opposed to his general abuse of drugs); Lancette v. State, 151 Ga. App. 740, 741 (4) (261 SE2d 405) (1979) (holding that the trial court properly sustained an objection to the defendant’s asking a witness on cross-examination, “Now, do you use marijuana?,” because that issue was irrelevant and the defendant could not, “under the guise of attacking the witness’ credibility, ask questions suggesting illegal or immoral conduct in areas other than that before the court”). See generally Nicely v. State, 291 Ga. 788, 796 (4) (733 SE2d 715) (2012) (“The permissible scope of cross-examination is committed to the sound discretion of the trial court, and we review a limitation of the scope of cross-examination only for abuse of discretion.”).


author: McMillian, Judge.

text:
    A13A1139.
    WHITFIELD v. TEQUILA MEXICAN RESTAURANT NO. 1, INC.
    (748 SE2d 281)
   McMillian, Judge.

Don Anthony Whitfield was stabbed outside the Tequila Mexican Restaurant No. 1, Inc. (“Tequila”) and brought this lawsuit against his assailant Paul Leonard Aydelotte and the restaurant. The basis for Whitfield’s premises liability and gross negligence claims against Tequila was that Tequila had continued to serve Aydelotte alcohol, despite knowing that Aydelotte was drunk, belligerent, and harassing other customers. Whitfield also claimed that Tequila had negligently hired and supervised its employees and that Tequila had failed to provide adequate security. After discovery, the trial court denied Whitfield’s motion for sanctions for spoliation and granted summary judgment for Tequila on all claims. Finding no error, we affirm.

Viewing the evidence in the light most favorable to the nonmovant on summary judgment, on September 12, 2010, Whitfield was having a celebratory dinner with his girlfriend and her family at the Tequila Mexican Restaurant in Dallas, Georgia. Upon their arrival, the group was seated near another patron, Aydelotte, who by that time had consumed an unknown quantity of alcoholic beverages. Aydelotte began harassing a female member of the group, asking if she was fertile and also called another member of the group a “freak.” As a result, Whitfield and other members of his group asked to have their table moved away from Aydelotte, which they were able to do, and complained to the acting manager Luis Martinez. Other patrons also observed Aydelotte cursing and slurring his words and complained to restaurant employees. Even after these complaints, Tequila continued to serve alcohol to Aydelotte.

After the group moved to another table, Aydelotte continued to harass the group, cursing after a two-year-old child began to cry and telling the group to keep her quiet or he would do it. As a result of this behavior and customer complaints, the acting manager spoke to Aydelotte and asked him to leave. Aydelotte got up to leave, but refused to pay his bill and acted somewhat aggressively. This made the acting manager “a little afraid” of Aydelotte, but he did not believe that Aydelotte was a threat or dangerous to anyone in the restaurant. Neither the acting manager nor the general manager could recall any other situation in which a drunk and belligerent patron had been asked to leave the restaurant or any crime at the restaurant other than some customers walking out without paying their bills. They also had not had any previous experience with Aydelotte. Neither Whitfield nor members of his group were aware of any other crimes or violence occurring at the restaurant.

Before Aydelotte was asked to leave, two women from the group, along with the toddler, went outside so they could get better cell phone reception and called 911 to report Aydelotte. As Aydelotte was leaving, he saw the women outside and started calling them names for reporting him to the police. Observing the commotion, Whitfield left the restaurant to protect the women. Once outside, Whitfield and Aydelotte walked toward each other with Whitfield telling Aydelotte that he did not “know who the f — k [he was] messing with.” Whitfield then threw the first punch and after two punches, Aydelotte stabbed him.

In discovery, Whitfield learned that Aydelotte’s electronic ticket had been erased from the computer system on the night of the incident and sought sanctions for spoliation, claiming that the ticket would have shown how long Aydelotte had been at the restaurant and how much alcohol Aydelotte had been served, thereby supporting that Tequila had knowledge of Aydelotte’s dangerous propensities. Tequila, on the other hand, asserted that it was its general practice to erase tickets from the system for those customers who had walked out and failed to pay their bills, as a means of “voiding” the tickets.

1. At the outset, we take this occasion to remind counsel about the page limitations set out in Court of Appeals Rule 24 (f). Accordingly, we strike pages 16 to 27 of appellant’s reply brief and have not considered the argument contained on those pages in this appeal.

2. Turning first to Whitfield’s negligence claims under theories of premises liability and failure to provide adequate security, we review a denial of summary judgment under a de novo standard of review. See Thornton, 297 Ga. App. at 132. The touchstone of any negligence claim is that “the defendant did something that it should not have done or failed to do something that it should have done pursuant to the duty owed the plaintiff.” (Citation omitted.) Parker v. Hovers, 255 Ga. App. 184, 186 (1) (564 SE2d 795) (2002). Here, Tequila is the owner or occupier of the premises upon which Whitfield was injured, and as such, owes invitees like Whitfield the duty to exercise ordinary care “in keeping the premises and approaches safe.” OCGA § 51-3-1. But “a property owner is not an insurer of an invitee’s safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable.” Snellgrove v. Hyatt Corp., 277 Ga. App. 119, 123 (3) (625 SE2d 517) (2006). See also Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 785-786 (482 SE2d 339) (1997) (“A landlord’s duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal acts.”) (emphasis in original); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991) (“If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ ”) (citation omitted).

But “[e]ven if an intervening criminal act may have been reasonably foreseeable, . . . the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citations, punctuation and emphasis omitted.) Cook v. Micro Craft, 262 Ga. App. 434, 438 (1) (585 SE2d 628) (2003). See also Snellgrove, 277 Ga. App. at 124 (quoting Cook); Rappenecker v. L.S.E., Inc., 236 Ga. App. 86,88 (2) (510 SE2d 871) (1999) (“The basis of liability is a proprietor’s superior knowledge of the existence of a condition that may subject an invitee to an unreasonable risk of harm.”). As recently explained in B-T Two, Inc. v. Bennett, 307 Ga. App. 649 (706 SE2d 87) (2011) (physical precedent only), these two principles of reasonable foreseeability and the proprietor’s superior knowledge “guide our consideration of the question [of whether an owner or occupier has breached its duty to keep an invitee safe from the criminal act of a third party] and limit the circumstances in which the law imposes liability for the failure to protect against such a criminal act.” Id. at 654-655 (3).

Whitfield has failed to come forward with evidence from which a jury could have concluded that a landowner in Tequila should have reasonably foreseen Aydelotte’s assault. No evidence exists in the record of similar criminal activities occurring at the restaurant or in the parking lot. See Sturbridge, 267 Ga. at 786 (“Accordingly, the incident causing the injury must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers or tenants against the risk posed by that type of activityL); Aldridge v. Tillman, 237 Ga. App. 600, 604 (2) (516 SE2d 303) (1999) (“A criminal act by a third-party may be foreseeable if the incident causing the injury is substantially similar in type to previous criminal activities occurring on or near the premises at issue . . .”). Nor is there any indication that Tequila or its employees had any previous encounters with Aydelotte such that they should have been put on notice of his violent tendencies. See Dowdell v. Krystal Co., 291 Ga. App. 469, 472 (662 SE2d 150) (2008) (restaurant could not have reasonably foreseen altercation by cashier when cashier did not have a criminal record and cashier had not argued, much less struck, any customers during employment).

Implicitly recognizing the dearth of any similar criminal conduct to put Tequila on notice, Whitfield asserts that Tequila had superior knowledge of the amount of alcohol that Aydelotte had consumed and was informed that Aydelotte was boisterous and harassing other customers, and therefore should have reasonably anticipated that Aydelotte could become violent. But even if we assume that it is common knowledge that an intoxicated person may become violent, that knowledge of the danger is imputed to both Whitfield and Tequila. See B-T Two, 307 Ga. App. at 656 (3) (victim and restaurant had equal knowledge that “when alcohol is served, some people may become intoxicated and ... when people become intoxicated, some of them may become violent”); Aldridge, 237 Ga. App. at 604-605 (previous threats by assailant while intoxicated did not put host on notice that assailant would attack victim with deadly weapon).

Moreover, we do not find that Tequila’s superior knowledge about the amount of alcohol Aydelotte consumed salvages Whitfield’s claim. The issue is whether Tequila had superior knowledge of the “existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citation and punctuation omitted.) Vega v. La Movida, Inc., 294 Ga. App. 311, 315 (2) (670 SE2d 116) (2008). In this case, that condition is the propensity of Aydelotte to become violent when intoxicated, not his blood alcohol level, and the record reflects that both Whitfield and Tequila knew that Aydelotte was drunk and cursing and harassing customers. Because Whitfield has failed to come forward with evidence to support that Aydelotte’s assault was reasonably foreseeable or that Tequila had superior knowledge of Aydelotte’s propensity to commit violence, we affirm the grant of summary judgment on the claims for premises liability and failure to provide adequate security. See B-T Two, 307 Ga. App. at 656 (3) (summary judgment for restaurant on failing to provide security claim); Luong v. Tran, 280 Ga. App. 15, 18 (633 SE2d 797) (2006) (criminal activity in area was not sufficiently similar to render shooting reasonably foreseeable).

3. Whitfield also asserts that the trial court erred in granting summary judgment on the claim that Tequila negligently hired and supervised its employees, and that if the employees had called the police, as they were trained to do, the assault could have been avoided. “The appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment.” (Citations and punctuation omitted; emphasis in original.) Underberg v. Southern Alarm, Inc., 284 Ga. App. 108, 110 (1) (643 SE2d 374) (2007). See also TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 459 (1) (a) (590 SE2d 807) (2003) (“An employer breaches its duty of care by hiring an employee ‘who is not accustomed to act with due care.’ ”) (citation omitted). “With regard to tortious conduct, a claim of negligent hiring and retention is very similar to a claim of premises liability’ in that the employer has the duty to exercise reasonable care to protect its invitees from dangerous employees on its premises. TGM Ashley Lakes, 264 Ga. App. at 460-461 (1) (b).

But Whitfield does not allege that the Tequila employees committed any act that directly caused him injury. And as explained in Division 2, nothing in the record supports that Tequila or its employees should have reasonably foreseen that Aydelotte would draw a knife in the parking lot and stab Whitfield. Accordingly, summary judgment was properly granted to Tequila on this claim. See Underberg, 284 Ga. App. at 113 (2) (“The causation element requires showing that, given the employee’s dangerous propensities, the victim’s injuries should have been foreseen as the natural and probable consequence of hiring the employee.”) (Citation and punctuation omitted.); TGM Ashley Lakes, 264 Ga. App. at 459 (1) (a) (same).

4. We turn now to Whitfield’s claim that Tequila was grossly negligent in continuing to serve alcohol to Aydelotte after it was clear that he was drunk and in failing to call the police. “Gross negligence is defined as the failure to exercise that degree of care that every man of common sense, however inattentive he may be, exercises under the same or similar circumstances; or lack of the diligence that even careless men are accustomed to exercise.” (Citations and punctuation omitted.) Currid v. DeKalb State Court Probation Dept., 274 Ga.App. 704, 707 (2) (618 SE2d 621) (2005). See also OCGA § 51-1-4 (defining “slight diligence” and “gross negligence”). “In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care.” (Citation and punctuation omitted.) Heard v. City of Villa Rica, 306 Ga.App. 291, 294 (701 SE2d 915) (2010). “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 295. See also Morgan v. Horton, 308 Ga. App. 192, 198 (3) (707 SE2d 144) (2011).

Based on our review of the record, we do not believe the facts were sufficient to establish that Tequila failed to act with that “slight degree of care” that is required to support a claim for gross negligence. It is undisputed that Tequila allowed Whitfield and his party to move tables, away from Aydelotte, and upon complaints by Whitfield’s party and other customers, Tequila asked Aydelotte to leave the restaurant. Aydelotte complied with the request, and it was only after he left the restaurant that the altercation began. Accordingly, the trial court correctly granted summary judgment on this claim.

5. Because we have found that the trial court properly granted summary judgment to Tequila on the negligence and gross negligence claims, Whitfield’s claim for punitive damages under OCGA § 51-12-5.1 also must fail. See Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238, 241 (2) (641 SE2d 222) (2007); Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 580 (5) (571 SE2d 557) (2002).

6. Finally, Whitfield asserts that the trial court erred in denying his motion for sanctions based on the deletion of Aydelotte’s electronic ticket on the night of the stabbing. In that order, the trial court found that “at the time of the destruction of the alleged evidence, Defendant and its agents had no notice or knowledge of contemplated or pending litigation and, therefore, there has been no spoliation of evidence.” Finding no error, we affirm.

“The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse.” (Citation and punctuation omitted.) Clayton County v. Austin-Powell, 321 Ga. App. 12, 17 (2) (740 SE2d 831) (2013). See also Powers v. Southern Family Markets of Eastman, 320 Ga. App. 478, 479 (1) (740 SE2d 214) (2013). A spoliation claim cannot be pursued unless the spoliating party was under a duty to preserve evidence. And our appellate courts have time and time again emphasized that

[t]o meet the standard for proving spoliation, the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation. The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.

(Citation omitted.) Clayton County, 321 Ga. App. at 17 (2). See also Silman v. Associates Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009); Powers, 320 Ga. App. at 480; Watts & Colwell Builders, Inc. v. Martin, 313 Ga. App. 1, 5 (1) (720 SE2d 329) (2011); Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 796-797 (1) (697 SE2d 888) (2010). In other words, “notice of potential liability is not the same as notice of potential litigation.” (Citation omitted; emphasis in original.) Clayton County, 321 Ga. App. at 17.

Whitfield argues that the police investigation and arrest of Aydelotte provided notice to Tequila of contemplated litigation. But at most, the arrest put Tequila on notice that there may be a criminal case against Aydelotte, not that Whitfield was contemplating civil litigation against Aydelotte or anyone else. See McLeod v. Wal-Mart Stores, No. 12-13919, 2012 WL 2930769 (S.D. Ga. July 18, 2012) (“Plaintiff provides no authority which dictates that being the victim of criminal theft put the Defendants on notice that they might someday be a defendant in a civil suit.”); Stanfill v. Taiton, 851 FSupp.2d 1346 (M.D. Ga. 2012) (GBI investigation into death did not trigger duty to preserve video for civil defendants).

And we find Whitfield’s reliance on Baxley v. Hakiel Indus., 282 Ga. 312 (647 SE2d 29) (2007), to be misplaced. Baxley involved the destruction of video evidence after an internal investigation was conducted by the defendant, which is not the case here. See Craig, 304 Ga. App. 797, n. 2 (explaining limitations of Baxley)] Paggett v. Kroger Co., 311 Ga. App. 690, 693 (2) (716 SE2d 792) (2011) (distinguishing Baxley because defendant “took more action to investigate potential litigation than incompletely filling out a standardized slip and fall incident form”). And our Supreme Court has subsequently confirmed that the duty to preserve evidence is not triggered merely by notice that someone is injured on one’s property. Silman, 286 Ga. at 28.

Decided September 5, 2013.

Woodward & Stern, Natalie S. Woodward, Corey M. Stern, for appellant.

Swift, Currie, McGhee & Hiers, Pamela N. Lee, for appellee.

Accordingly, we find no abuse of discretion in the trial court’s denial of Whitfield’s motion for sanctions.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       See Thornton v. Georgia Farm Bureau Mut. Ins. Co., 297 Ga. App. 132 (676 SE2d 814) (2009).

       Under Court of Appeals Rule 33 (a), a special concurrence that does not agree with all that is said renders the opinion to he physical precedent only. Although B-T Two is thus not controlling, we find the majority’s discussion of an owner or occupier of land’s potential liability for criminal acts of third parties to he highly persuasive, particularly in light of the similar fact pattern in this case. See Muldrow v. State, 322 Ga. App. 190, 195, n. 29 (744 SE2d 413) (2013) (“This is not to say, however, that a party on appeal should shy away from citing physical precedent as persuasive authority Indeed, some of the judges on this Court are of the view that our physical-precedent cases should be afforded greater consideration than decisions from appellate courts in other jurisdictions.”).

       Under Georgia’s Dram Shop Act, OCGA § 51-1-40, a person who sells, furnishes, or serves alcoholic beverages is not liable for injury or damage caused by or resulting from the intoxication of such person except in limited circumstances not present here. See Solley v.

        Mullins Trucking Co., Inc., 301 Ga.App. 565, 567 (687 SE2d 924) (2009); B-T Two, 307 Ga.App. at 653 (2). We have found no oases, and the parties have not addressed, whether OCGA § 51-1-40 applies to claims for gross negligence, and therefore we decline to decide this claim on these statutory grounds.

       The record is also undisputed that the investigating officers did not request that the electronic ticket be preserved.


author: Phipps, Chief Judge.

text:
    A13A1178.
    MORAST v. THE STATE.
    (748 SE2d 287)
   Phipps, Chief Judge.

Margaret Morast was indicted on two counts of cruelty to children in the first degree in connection with offenses committed against her daughter; she was found guilty of two counts of cruelty to children in the second degree as lesser included offenses. Morast appeals, challenging the sufficiency of the evidence to support the convictions. We affirm.

A person commits the offense of cruelty to children in the second degree “when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” “Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.”

Count 1 of the indictment alleged that Morast committed the offense of cruelty to children (first degree) in that she, between December 20, 2007 and March 7, 2009, unlawfully and maliciously caused her daughter cruel and excessive physical pain by causing multiple fractures to the child’s bones. Count 2 alleged that Morast committed the offense of cruelty to children (first degree) in that she, between March 1, 2009 and March 7, 2009, unlawfully and maliciously caused the child cruel and excessive physical pain by failing to seek medical care for her after the child was bitten by a dog, bitten by a human, and suffered excessive vomiting.

When an appellant challenges the sufficiency of the evidence to support the conviction, the relevant question for this court, after viewing the evidence in the light most favorable to the prosecution, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence showed the following. The child’s maternal grandmother testified that the child had lived with Morast, Watson, and Watson’s father since the child’s birth in December 2007. On Friday, March 6, 2009, the grandmother was scheduled to pick up the child, who was then 15 months old, from the child’s home for a weekend visit; the grandmother had been picking up the child for weekend visits since the child was two or three months old. Morast cancelled the scheduled pick-up. When the grandmother went to pick up the child on the following day, Morast informed her that the child had been vomiting for several days. The child was unable to keep down fluids, and her skin was clammy. To the grandmother’s knowledge, no one had sought medical care for the child. The grandmother also noticed that the child had a bruise on her forehead and what appeared to be a human bite mark on her leg; and at some point that month, the grandmother noticed that the child’s wrist was swollen and that the child was “favoring” one of the wrists. The grandmother took the child to a hospital emergency room for treatment.

The grandmother testified that she had observed bruising to the child’s body “[pjretty much” throughout the child’s life, and that she had observed bruising nearly every time she picked up the child. When the grandmother had asked Morast about the bruising, Morast told her that the child fell down a lot. Morast had also told the grandmother that when she (Morast) arrived home from work, she would check the child’s body for new bruising, after the child’s father had been caring for the child. The grandmother affirmed that Morast had told her that “she [Morast] was afraid DFCS might get involved if [the child’s] injuries were reported to the police.”

A registered nurse testified that she was working in the hospital emergency room on March 7, 2009, when the grandmother brought the child in for treatment. The child was listless and had bruises on her arms and legs. The nurse affirmed that the child had been treated at the hospital for a fractured arm in February 2008, when the child was two months old.

A medical doctor testified that he examined the child after she was admitted to the hospital in March 2009. The doctor, who was qualified as a medical expert in the area of child abuse, observed numerous bruises on the child, including on her scalp, forehead and ear, and clusters of bruises on her back and torso. The child had a human bite mark on her leg, and what the doctor “couldn’t entirely rule out” as dog bite marks on her head.

The doctor testified that bone scans and x-rays revealed at least five bone fractures, which fractures were in various stages of healing, including: two new fractures of bones in the child’s forearm (the ulna and radius, commonly known as the wrist); fractures of both of the child’s shoulder blades, which fractures had begun to heal; and a fracture of a bone in the upper arm (the humerus), which was in the healing stage and was not the same fracture as the one the child had sustained at the age of two months (that previous fracture had completely healed). The doctor opined that the shoulder blade fractures would have resulted from a “major force” or “major impact,” rather than a “simple fall on the hands,” that the fractures would have caused pain to the child in the area of the injury, and that manipulation of the arm after the injury would have been painful; the doctor had not received any information that the shoulder blade fractures had been treated and, to his knowledge, they had not. There had been swelling and bruising at the site of the wrist fracture. The fracture to the humerus was “one of those fractures that is highly specific for abuse,” would have been very painful to the child at the time of the injury, and probably would have caused pain for a few days thereafter. The doctor testified that the bruising on the child’s back and torso was unusual for accidental trauma, especially in a small child; the fractures to the shoulder blades were also unusual and, when observed in young children, “they’re almost always related to abuse.” The doctor opined that most, if not all, of the injuries were related to physical abuse, and that the child had suffered pain as a result of the injuries.

A babysitter testified that she had cared for the child in Morast’s home in about February 2009 for about two to three hours per day, one to three times per week, while Morast and Watson were at work. Each time she babysat the child, she observed new bruises; the bruises were on the child’s torso, arms and legs. When the babysitter noticed bruises on the child, she brought them to Morast’s attention. It appeared that Morast already knew about some of the bruises, and explained that the family dogs (which included two pit bulldogs and a beagle) had caused them.

During the week leading up to March 7, 2009, the babysitter observed that the child appeared to be sick, was vomiting, would not eat, and had bruises on her arms, legs, and back, and “all over” her spine; some of the bruises were “older,” and some were “fresh.” The child also had a gash on her head, and what appeared to be bite marks on her head and leg.

A police detective testified that in March 2009, he saw the child at the hospital and observed bruising on her back, shoulder, arm, and knee, and what appeared to be a human bite mark on her leg and animal bite marks on her head.

Morast testified on her own behalf, stating that she, Watson, and her mother had provided the “day-to-day” care for the child since the child’s birth, and that Morast had never physically abused or seen anyone else physically abuse her child. Morast acknowledged, however, that in the week before her child was taken to the hospital, she knew that her child had been bitten by a dog days earlier, had been bitten by a human, and had vomited continuously; that on more than one occasion, one of the family dogs had become annoyed by the child and had growled at and bitten the child; that the 2008 arm fracture had resulted from one of the dogs jumping on the child’s arm; that Morast had told a detective in March 2009 that the child “always has bruises”; and that the babysitter and maternal grandmother had brought to Morast’s attention the child’s bruises, but that Morast had never sought medical attention for any of the injuries. When asked if she had told her mother (the grandmother) that every day upon coming home from work she checked the child for new injuries, Morast replied, “No, not every day.” Morast had told the detective that the bite marks “could have been ‘play’ bites” inflicted by Watson or the dogs. Morast affirmed that, despite the injuries, she continued to leave the child alone with Watson every day when she went to work. Prior to the 2009 hospital visit, no one (including Morast) had told the grandmother about the child’s bone fractures.

Morast does not contend that the child was not abused, but asserts that the evidence did not show that she had inflicted the child’s injuries or had been present when the injuries were inflicted. She argues that she was but one of four people with caregiving responsibility for the child, and that one of the other persons might have inflicted the injuries. The evidence was sufficient to support the convictions.

As set out above, Count 1 pertinently charged Morast with cruelty to children (first degree) for allegedly causing multiple fractures to the child’s bones; Morast was convicted of cruelty to children in the second degree as a lesser included offense of that charge. Although the evidence did not show that Morast had personally caused the bone fractures, the evidence, some of it circumstantial, authorized findings that multiple bone fractures were being inflicted upon the young child over the course of about 13 months, that the bone fractures had caused the child manifest physical pain, that Morast was aware that the bone fractures were being inflicted while the child was in her and/or Watson’s care, and that Morast had failed to intervene to prevent the injuries from recurring — thereby demonstrating a wilful, wanton, or reckless disregard for the child’s safety.

As set out above, Count 2 pertinently charged Morast with failing to seek medical care for the child after the child was bitten by a dog and a human, and suffered excessive vomiting. “[T]he failure to seek timely medical care for a child may form the basis for the offense of cruelty to children.” Here, Morast knew for several days that the child was suffering from dog and human bites and excessive vomiting, but did not seek medical attention for the child. The evidence, as set forth above, authorized a finding that Morast was criminally negligent by failing to seek medical care for the child.

Decided September 5, 2013.

Clegg & Petrey, John H. Petrey, for appellant.

Daniel J. Porter, District Attorney, James A. Carmichael, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       OCGA § 16-5-70 (b).

       OCGA §§ 16-5-70 (c); 16-1-6.

       OCGA § 16-5-70 (c).

       OCGA § 16-2-1 (b).

       The child’s father, Scott Watson, was also charged in the indictment with the same offenses. Watson died before Morast’s trial.

        Royal v. State, 319 Ga. App. 466, 470 (1) (735 SE2d 793) (2012), citing Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       OCGA § 16-1-6 (1) pertinently provides that an accused may be convicted of a crime included in a crime charged in the indictment or accusation, and that a crime is so included when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.

       As examples, Morast testified that one of the dogs had jumped on the infant and broken her arm; the grandmother had noticed that the child was favoring one wrist and that one wrist was swollen; the doctor testified that the bone fractures would have been painful; Morast had not ever disclosed to the child’s grandmother that the child had sustained any bone fractures (including the bone fracture Morast admittedly knew about); and Morast had said she did not want the child’s injuries reported to authorities.

       See OCGA §§ 16-1-6; 16-2-1 (b); 16-5-70 (c); see generally Adorno v. State, 314 Ga. App. 509 (724 SE2d 816) (2012) (evidence was sufficient to support conviction for child cruelty in the first degree when there was evidence that the victims had told the defendant that the defendant’s boyfriend was molesting them, but the defendant failed to intervene, did not contact police, and tried to dissuade the victims from revealing the boyfriend’s actions); Wells v. State, 309 Ga. App. 661, 664 (2) (b) (710 SE2d 860) (2011) (evidence of cruelty to children in the second degree as a lesser included offense was sufficient to support conviction where the defendant had caused burns to the child, even if accidentally); Hinds v. State, 296 Ga. App. 80, 81 (1) (a) (673 SE2d 598) (2009) (evidence was sufficient to support conviction for child cruelty in the first degree when evidence showed either that the defendant was a party to the crimes committed upon the child by her boyfriend or that the defendant had caused the injuries to the child, which injuries were significant and had occurred over a period of time while the child was in the defendant’s care, and that the defendant had tried to conceal the injuries from the authorities); Thompson v. State, 262 Ga. App. 17, 18-19 (1) (585 SE2d 125) (2003) (evidence, though circumstantial, was sufficient to sustain defendants’ convictions for cruelty to children where there was evidence that the child had suffered scratches, bruises and multiple bone fractures while in the care of the defendants, that they had refused to seek prompt medical treatment, and that they were evasive in explaining the injuries).

        Grayer v. State, 282 Ga. 224, 225 (1) (647 SE2d 264) (2007) (citation omitted).

       See generally OCGA §§ 16-1-6; 16-2-1 (b); 16-5-70 (c); Mikenney v. State, 277 Ga. 64, 66 (2) (586 SE2d 328) (2003) (evidence was sufficient to support the conviction for child cruelty as the predicate act underlying a felony murder count, when it showed that the infant had suffered blunt force trauma to the abdomen, and the defendant had told the child’s mother not to seek medical treatment for the child because authorities would see the bruises and take the child away); Wells, supra; Thompson, supra.


author: McFadden, Judge.

text:
    A13A1446.
    FRANKS v. THE STATE.
    (748 SE2d 291)
   McFadden, Judge.

On July 16, 2012, Crisincio Franks pled guilty to 11 counts of armed robbery, and the trial court sentenced Franks to serve concurrent terms of 25 years in custody as to each count. On August 14, 2012, Franks filed a motion to withdraw his guilty plea, which he subsequently amended to assert that he had an absolute right to withdraw his plea because the 25-year sentences exceeded the statutory range of punishment for armed robbery and were thus illegal and void. After a hearing on the motion, the trial court acknowledged that the 25-year sentences were improper, but nevertheless denied the motion to withdraw and instead resentenced Franks. Franks appeals, asserting that the trial court erred in denying his motion to withdraw his guilty plea. In its appellate brief, the state agrees with Franks that the trial court should have permitted him to withdraw his guilty plea because the original sentences were void. Because Franks and the state are correct in asserting that the trial court erroneously denied the motion to withdraw the guilty plea, we reverse.

As a rule, a defendant has an absolute right to withdraw his plea before sentence is pronounced. Since a void sentence is the same as no sentence at all, the defendant stands in the position as if he had pled guilty and not been sentenced, and so may withdraw his guilty plea as of right before resentencing, even following the expiration of the term of court in which the void sentence was pronounced. If [Franks’] sentence was void, therefore, he had a right to withdraw his guilty plea.

Decided September 5, 2013.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Elizabeth A. Baker, Leonora Grant, Assistant District Attorneys, for appellee.

Hallford v. State, 289 Ga. App. 350, 351 (1) (657 SE2d 10) (2008) (citations and punctuation omitted).

The punishments for armed robbery are death, life imprisonment or imprisonment for “not less than ten nor more than 20 years.” OCGA § 16-8-41 (b). Here, the trial court did not sentence Franks to death or life in prison, and instead imposed sentences of 25 years in custody for each count of armed robbery. “It follows that the [25-year] felony sentence [s] entered by the trial court [were] outside the statutory range and void.” Simmons v. State, 315 Ga. App. 82, 83 (726 SE2d 573) (2012) (citation omitted). See Chester v. State, 284 Ga. 162 (1) (664 SE2d 220) (2008) (sentence is void if court imposes punishment the law does not allow). Because the court imposed void sentences, Franks stood in the position as if he had pled guilty but not yet been sentenced, and thus had the absolute right to withdraw his plea before resentencing. See Kaiser v. State, 285 Ga. App. 63, 68 (1) (646 SE2d 84) (2007). The trial court’s denial of the motion to withdraw the plea prior to resentencing was therefore erroneous and must be reversed. Compare Spencer v. State, 309 Ga. App. 630, 631 (2) (710 SE2d 837) (2011) (as sentence was within statutory range it was not void and therefore defendant had no absolute right to withdraw his guilty plea).

Judgment reversed.

Doyle, P. J., and Boggs, J., concur.

       The Supreme Court of Georgia “has held that armed robbery alone does not warrant the death penalty. Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974).” Collins v. State, 239 Ga. 400, 402 (2) (236 SE2d 759) (1977).


author: Dillard, Judge. McMlLLIAN, Judge,

text:
    A13A1602, A13A1603.
    In the Interest of E. N. R. et al., children (two cases).
    (748 SE2d 293)
   Dillard, Judge.

In this consolidated appeal, the mother and father of four minor children appeal an order of the juvenile court finding their children deprived. The parents contend on appeal that the evidence was insufficient to support the juvenile court’s judgment. For the reasons set forth infra, we affirm the juvenile court’s judgment.

The record reflects that on August 23, 2012, the Department of Family and Children Services (“the Department”) filed complaints for deprivation as to 1-year-old E. N. R., 3-year-old J. W. R., 4-year-old J. W. R., and 5-year-old M. N. R. The complaints alleged, inter alia, that the family’s home had been condemned on August 15, 2012, and that the parents resisted efforts by the Department and refused to cooperate with provided services in spite of a case plan developed after a prior removal. The juvenile court issued an order for shelter care that same day.

Thereafter, on August 30, 2012 (nunc pro tunc August 27, 2012), the juvenile court issued a 72-hour hearing order that, “[b]ased upon the evidence presented and the consent of the parents,” found probable cause to believe that the children were deprived. Thus, the court ordered the Department to maintain temporary custody of the children pending a deprivation petition and adjudicatory hearing. The Department subsequently filed a deprivation petition on August 31, 2012. And following a hearing on September 10, 2012, that was continued on September 17, 2012, the juvenile court issued an order that took judicial notice of its own record, continued custody with the Department, and ordered the parties to return in December for a progress hearing.

The juvenile court held a final hearing on the petition on December 17,2012, and issued an order that day, taking judicial notice of its prior record and noting that the “findings of the September order are a matter of record.” The court then detailed the services the Department continued to provide to the parents since September and determined that it was “patently clear that although these parents love their children, they are incapable of providing for their needs.” Ultimately, the court concluded that the children were deprived and decided that continuation in the parents’ home would be contrary to the children’s welfare based on “the findings of the court’s September 2012 order, and the fact that the parents are not mentally capable of learning how to meet the daily basic care needs of the children, nor are they capable of providing for them financially at this time.” These appeals by the parents follow.

At the outset, we note that on appeal from a deprivation order, “we must view the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the [children were] deprived.” A child is deprived when he or she

[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals;... [h] as been placed for care or adoption in violation of law; . . . [h]as been abandoned by his or her parents or other legal custodian; or ... [i]s without a parent, guardian, or custodian.

To authorize even a temporary loss of custody by a child’s parent, “the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” And in this regard, it is significant that “an order temporarily transferring custody of a child based on alleged deprivation must be grounded upon a finding that the child is at the present time a deprived child, and a finding of parental unfitness is essential to support an adjudication of present deprivation.”

In the case sub judice, viewing the evidence in the light most favorable to the trial court’s judgment, there is clear and convincing evidence that the children were deprived based on the parents’ low level of functioning. At the December hearing, the court heard testimony from a placement prevention program director that the parents had not demonstrated an ability to retain information on what they were taught through Department services — for example, how to properly wash clothing. And in addition to the testimony presented at the December hearing, the juvenile court’s final order took judicial notice of the September proceedings (for which the appellate record contains transcripts), and the order issued in September took judicial notice of the family’s record as a whole. The parents did not object to the taking of judicial notice and, furthermore, do not contend on appeal that the trial court in any way erred by taking judicial notice. And because the transcripts and evidence from any proceedings prior to September 2012 were not included in the appellate record, “we must assume the juvenile court’s findings and judgment to be correct.” In this regard, the September order contained findings that the mother suffered from a brain injury that left her partially paralyzed and with memory deficiency, and that hoth parents were “low functioning” to the point of being unable to parent or supervise the children.

The finding regarding the mother’s disability is supported by an unappealed 72-hour-hearing order that was issued in October 2011, to which the parents consented and of which the juvenile court took judicial notice when it did so as to the family’s whole record. As to the finding that the parents are low functioning, the first such finding of this appears in the court’s September order and, as previously noted, the appellate record contains transcripts of the September 2012 proceedings. During argument in the September 10 proceeding, the Department referenced a “psychological previously entered in this Court’s previous action” that “clearly show[ed] that the mother can’t be on her own and the father is questionable.” In a subsequent order issued in January 2013 — after determining that the children were deprived — the court quotes extensively from psychological evaluations that it notes are “part of the court’s record.” These psychological evaluations apparently contained findings that, inter alia, the father has “borderline intellectual functioning with difficulty conceptualizing and with memory”; the father’s “competency as a parent is limited in that his ability to independently care for [the children] is questionable”; the father has “limited cognitive ability which is a barrier to his judgment about the children’s needs for education and medical care”; the mother has “borderline intellectual abilities” with “many mannerisms and similarities to that of an 8 year old child”; the mother’s “ability to competently parent her children is seriously limited”; and the mother’s “insight, judgment, and decision-making are limited to such a degree that her children would be at risk of harm in her care without significant assistance.” Accordingly, because the juvenile court took judicial notice of its record as a whole in September, which record apparently contained the psychological evaluations quoted extensively in the court’s January order, there was evidence before the juvenile court that would support its finding that the children were deprived due to the parents’ low level of functioning and the impact on their abilities to parent.

Decided September 5, 2013.

Joshua J. Smith, for appellant (case no. A13A1602).

Kermit N. McManus, for appellant (case no. A13A1603).

For all of the foregoing reasons, we affirm the juvenile court’s judgment in both Case No. A13A1602 and Case No. A13A1603.

Judgments affirmed.

Andrews, P. J., concurs. McMillian, J., concurs specially.

McMlLLIAN, Judge,

concurring specially.

I concur specially to note that the record also supports by clear and convincing evidence the juvenile court’s other finding of deprivation — that the parents were not capable of providing for the children financially. It was undisputed that the sole source of income was $637 in disability payments and $200 in food stamps, leaving $7 each month after paying bills. Although an additional $600 in food stamps could have been obtained if the children were returned, there would still be an insufficient amount for other necessities such as clothing or gas. The parents’ precarious financial situation was further demonstrated by the fact that the electricity had been turned off twice in the three months after the September hearing. And during that time, the father did not find consistent employment and had not followed through on an application for disability payments.

Accordingly, viewing the evidence in the light most favorable to the juvenile court’s judgment, I believe that there was clear and convincing evidence that the children were deprived for the reasons stated in the majority’s opinion and this special concurrence.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Bruce A. Kling, for appellee.

       The children were previously removed from the parents’ home in October 2011 due to complaints of deprivation, but the trial court ultimately determined in April 2012 that, although removal had been appropriate, there was insufficient evidence of deprivation to grant the Department’s petition for same. Accordingly, the court dismissed the petition but entered a protective order requiring “strict compliance with the Family Plan” and placing the parents “on notice that a subsequent removal of the children would be considered a second removal.”

        In the Interest of G. S., 279 Ga. App. 89, 91 (630 SE2d 607) (2006) (punctuation omitted).

       OCGA § 15-11-2 (8). As an aside, we note that Title 15 has been significantly revised by the General Assembly, with the revisions effective January 1, 2014. Ga. L. 2013, p. 294, § 5-1 (“This Act shall become effective on January 1,2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.”).

        In the Interest of G. S., 279 Ga. App. at 91-92 (emphasis supplied) (punctuation omitted).

        Id. at 92 (punctuation omitted).

        See In the Interest of A. B., 285 Ga. App. 288, 289 (645 SE2d 716) (2007) (“The judge had presided over prior proceedings involving appellant and her other two children and supported his findings of deprivation by taking judicial notice of these prior proceedings.”). As to a trial court’s ability to take judicial notice, we reiterate that in Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984), our Supreme Court held that “a trial court may take judicial cognizance... of records on file in its own court,” id. at 108. In so holding, our Supreme Court explicitly overruled Glaze v. Bogle, 105 Ga. 295 (31 SE 169) (1898), and its progeny, which includes the following cases: Outz v. Whitworth, 248 Ga. 208 (281 SE2d 620) (1981); Carr v. Car-Perk Servs., Inc., 222 Ga. 793 (152 SE2d 692) (1966); Altman v. Fla. Ga. Tractor Co., 217 Ga. 292 (122 SE2d 88) (1961); King v. Pate, 215 Ga. 593 (112 SE2d 589) (1960); Salter v. Keys, 207 Ga. 591 (63 SE2d 376) (1951); Gray v. Bradford, 194 Ga. 492 (22 SE2d 43) (1942); Greene v. Transp. Ins. Co., 169 Ga. App. 504 (313 SE2d 761) (1984); Recoba v. State, 167 Ga. App. 447 (306 SE2d 713) (1983); Kaplan v. Krosco, Inc., 167 Ga.App. 197 (306 SE2d 88) (1983); Global Assocs., Inc. v. Pan Am. Commc'ns, Inc., 163 Ga.App. 274 (293 SE2d 481) (1982); Int’l Indem. Co. v. Blakey, 161 Ga.App. 99 (289 SE2d 303) (1982); Carey v. Phillips, 137 Ga. App. 619 (224 SE2d 870) (1976); Doyal & Assoc., Inc. v. Blair, 138 Ga. App. 314 (226 SE2d 109) (1976); Thornton v. State, 136 Ga. App. 655 (222 SE2d 158) (1975); Watts v. Kundtz, 128 Ga. App. 797 (197 SE2d 859) (1973); Kazakos v. Baranan, 122 Ga. App. 594 (178 SE2d 222) (1970); Rossville Fed. Sav. & Loan Ass’n v. Ins. Co. of N. Am., 121 Ga. App. 435 (174 SE2d 204) (1970); Boston Ins. Co. v. Barnes, 120 Ga. App. 585 (171 SE2d 626) (1969); Berrie v. State of Ga., 119 Ga.App. 148 (166 SE2d 631) (1969); Napier v. City Prods. Corp., 111 Ga. App. 327 (141 SE2d 552) (1965); Turner v. Am. Mut. Liability Ins. Co., 109 Ga. App. 721 (137 SE2d 385) (1964); Akins v. Beaver, 98 Ga. App. 472 (106 SE2d 91) (1958); Ga. Cas. & Sur. Co. v. Reville, 95 Ga. App. 358 (98 SE2d 210) (1957); Davenport v. S. R. R. Co., 42 Ga. App. 160 (155 SE 340) (1930); O’Connor v. United States, 11 Ga. App. 246 (75 SE 110) (1912).

        See In the Interest of L. B., 319 Ga. App. 173, 175 (1) (735 SE2d 162) (2012) (“[Appellant] gives us no reason to believe that any objection to taking judicial notice of the deprivation order in this case would have had any merit, nor does she identify specific evidence that she would have brought forward to challenge the earlier deprivation order. Eor this reason, [appellant] cannot show that the taking of judicial notice is reversible error.” (footnote omitted)); accord In the Interest of C. B., 308 Ga. App. 158, 160 (2) n.4 (706 SE2d 752) (2011).

        In the Interest of A. B., 285 Ga. App. at 289 (punctuation omitted); see also In the Interest of C. B., 308 Ga. App. at 161 (3) n.5 (“The [appellant] did not include transcripts of the earlier proceedings or copies of the orders entered in those earlier proceedings in the record on appeal. Because he did not, we must presume that the evidence in those earlier proceedings, and the findings in the earlier orders, show precisely what the juvenile court said they show.”).

        See supra notes 6-8.

        See In the Interest of R. B., 309 Ga. App. 407, 409-11 (710 SE2d 611) (2011) (detailing evidence presented by Department, which included expert testimony by licensed clinical psychologist that mother had IQ of 72 with “borderline intellectual functioning,” had difficulty communicating, would have difficulty applying what she learned in parenting classes, and would be “incapable of ever learning the skills necessary to properly care” for her child); In the Interest of B. W., 287 Ga. App. 54, 60 (651 SE2d 332) (2007) (detailing evidence presented by Department, which included testimony by examining psychologist that, inter alia, “father’s IQ placed him in the cognitively impaired range”); In the Interest of H. E. M. O., 281 Ga. App. 281, 285 (1) (b) (636 SE2d 47) (2006) (detailing evidence presented by Department, which included testimony by psychologist who “concluded that [mother’s] ability to function in life was significantly low”); In the Interest of B. J. F., 276 Ga. App. 437, 437 (623 SE2d 547) (2005) (detailing evidence presented by Department, which included testimony by evaluating psychologist that mother had “borderline intellectual functioning, evinced by her IQ of between 7 0 and 79”); In the Interest of K. N., 272 Ga. App. 45, 50-51 (611 SE2d 713) (2005) (detailing evidence presented by Department, which included psychologist’s testimony that mother’s low IQ impacted cognitive functions); In the Interest of J. W., 271 Ga. App. 518, 519 (610 SE2d 144) (2005) (detailing evidence presented by Department, including comprehensive psychological evaluation in which examiner “concluded that the father is mildly retarded with Full Scale IQ of 60”); In the Interest of C. J. B., 239 Ga. App. 755, 755-56 (521 SE2d 891) (1999) (detailing evidence presented by Department, which included psychological evaluations showing that the parents had pronounced, significant cognitive impairment, resulting in “extremely low intellectual functioning”). Compare In the Interest of D. W., 318 Ga. App. 725, 730 (3) (734 SE2d 543) (2012) (“There is no psychological evaluation included in the record, or reports from treating physicians, or medical reports indicating any mental impairment or how said mental impairment might limit the mother’s parental abilities.”).

       Under a previous order, the father was permitted not to work while the children were in his custody, but there was no restriction precluding him from finding employment once the children were placed in the State’s custody.


author: Branch, Judge.

text:
    A13A1069.
    WIMMER v. THE STATE.
    (748 SE2d 297)
   Branch, Judge.

In this appeal, the State concedes the trial court erred by denying Michael Wimmer’s motion for an out-of-time appeal without inquiring into the legally relevant circumstances. We agree and therefore vacate and remand for further proceedings.

Wimmer and the State agree to the following facts: In 1997, Wimmer was tried and convicted of robbery by intimidation, false imprisonment, interference with government property, and making a terroristic threat. The trial court did not advise Wimmer on the record that he had a right to appeal, to an attorney on appeal, or to a court-appointed attorney if he could not afford one. Wimmer’s court-appointed trial counsel never moved for new trial or filed a notice of appeal. In 2012, Wimmer filed a motion for out-of-time appeal, but the trial court did not conduct an evidentiary hearing on Wimmer’s motion.

In addition to the above facts, the record shows that in his motion for out-of-time appeal, Wimmer asserted that he failed to appeal because his counsel, through negligence or ignorance, failed to adequately inform him of his appellate rights. Wimmer asked for a hearing “to determine ... whether the failure to file a timely notice of appeal was due to counsel’s negligence.”

Convicted defendants have a right to effective assistance of counsel on appeal from their conviction. Barnes v. State, 243 Ga. App. 703, 704 (534 SE2d 440) (2000). An appellant is entitled to an out-of-time appeal if “the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights.” (Citation omitted.) Id.; White v. State, 277 Ga. 647 (594 SE2d 329) (2004) (“[A] defendant seeking an out-of-time appeal following a jury trial need only show that the procedural deficiency was due to counsel’s failure to perform his duties.”) (citations omitted). “But when a convicted party by his own conduct or in concert with his counsel has slept on his rights, he forfeits his right to appeal.” (Citation omitted.) Barnes, supra at 704. Thus, following a trial, “[w]hen the movant alleges deprivation of the right to direct appeal due to trial counsel’s ineffective assistance, judicial inquiry must be made whether appellant was responsible for the failure to pursue a timely direct appeal.” (Citation omitted.) Simmons v. State, 276 Ga. 525, 526 (579 SE2d 735) (2003). And “[a] trial court abuses its discretion when it fails to make such a factual inquiry.” (Citations omitted.) Id. Compare Brown v. State, 280 Ga. 658, 659-660 (3) (631 SE2d 687) (2006) (no hearing required on a motion for out-of-time appeal following a conviction based on a guilty plea because the issues can be tested by reference to the record).

Decided September 6, 2013.

Michael D. Wimmer, pro se.

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

In this case, because the trial court failed to make the required inquiry and failed to make relevant findings, “we must vacate the trial court’s order and remand the case to the trial court for an evidentiary hearing and statement of findings on the record regarding whether the responsibility for failing to appeal rests on [the defendant] or his counsel.” (Citations omitted.) Wright v. State, 282 Ga. App. 582, 584 (639 SE2d 563) (2006) (remand necessary where trial court failed to make a specific finding regarding who bore responsibility for the loss of right to appeal). See also Jackson v. State, 280 Ga. 27, 28 (622 SE2d 356) (2005) (abuse of discretion not to hold the required hearing) -, Barnes, 243 Ga. App. at 704 (remand necessary where Court of Appeals could not determine from the record whether the trial court conducted the required inquiry).

Judgment vacated and case remanded with direction.

Phipps, C. J., and Ellington, P. J., concur.

       “Except as controverted [by the appellee], appellant’s statement of facts may be accepted by this Court as true.” Court of Appeals Rule 25 (b) (1).


text:
    A13A1352.
    MACK v. THE STATE.
    (748 SE2d 299)
   Branch, Judge.

Steve Mack appeals the denial of his motion to modify his sentence, asserting that the statutes under which he was sentenced were vague and ambiguous. We affirm.

The record shows that Mack pled guilty to armed robbery, and on January 28,2008, the trial court sentenced Mack to life as a recidivist under OCGA § 17-10-7 (a). Mack later filed a motion to withdraw his guilty plea, which the trial court denied, and Mack appealed. We affirmed the trial court’s ruling in an unpublished opinion {Mack v. State, 313 Ga. App. XXIV (2011)). The remittitur issued on June 22, 2012. On November 16, 2012, Mack filed a motion to modify his sentence, arguing that when read together the sentencing provisions of the armed robbery statute and the recidivist statute are ambiguous and that, in accordance with the rule of lenity, his sentence should be reduced. See Brown v. State, 276 Ga. 606, 608 (2) (581 SE2d35) (2003) (“Where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered.”) (punctuation and footnote omitted). On November 27, the trial court denied the motion, and Mack thereafter appealed.

Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. See Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118 (676 SE2d 465) (2009). Once this statutory period expires, as it had here when Mack filed his motion, a trial court may modify asentenceonlyifitis void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). A sentence is void if the court imposes punishment not allowed by law. Hughes v. State, 273 Ga. App. 705-706 (615 SE2d 819) (2005). Therefore, in order to support a motion for sentence modification filed outside the statutory time period of OCGA § 17-10-1 (f), a defendant must demonstrate that the sentence imposes punishment not allowed by law.

Mack contends that his sentence is void because there is an inherent ambiguity between the recidivist statute, OCGA § 17-10-7 (a), which provides that repeat offenders be sentenced to “the longest period of time prescribed for the punishment of the subsequent offense,” and the armed robbery statute, OCGA § 16-8-41 (b), which provides for a punishment of “imprisonment for life or by imprisonment for not less than ten nor more than 20 years.” Mack contends that it is not possible to determine whether “the longest period of time” means life, or 20 years. Because Mack raises a colorable claim that his life sentence was not allowed by law, Mack was entitled to file his motion in the trial court and to file a direct appeal from the denial of his motion. See Rooney v. State, 318 Ga. App. 385, 386 (734 SE2d 104) (2012); Frazier, 302 Ga. App. at 348.

Decided September 6, 2013

Steve Mack, pro se.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Nevertheless, Mack’s argument fails. This Court has recently held that the construction of OCGA § 17-10-7 (a) as applied to the armed robbery statute is clear: “[t]he longest period of time prescribed for punishment of armed robbery is life imprisonment.” (Citations omitted.) Lester v. State, 309 Ga. App. 1, 5 (2) (710 SE2d 161) (2011); see also Singleton v. State, 293 Ga. App. 755, 757 (2) (667 SE2d 711) (2008) (same). We agree and find no ambiguity in the application of OCGA § 17-10-7 (a) to the sentencing provisions in the armed robbery statute. Mack’s sentence of life imprisonment therefore falls within the statutory range and is not void.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       In relevant part, OCGA § 17-10-7 (a) provides as follows:
      ... any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

       In his amended notice of appeal, Mack requested that the record on appeal omit any transcripts.


text:
    A13A1469, A13A1470.
    MORGAN COUNTY BOARD OF TAX ASSESSORS v. VANTAGE PRODUCTS CORPORATION; and vice versa.
    (748 SE2d 468)
   McMillian, Judge.

Vantage Products Corporation (“Vantage”) manufactures and sells burial grave liners, which it stored on property in Morgan County, among other locations. This appeal involves an attempt by the Morgan County Board of Tax Assessors (“the Board”) to collect ad valorem taxes from Vantage for the tax year 2010. Because the taxability of the stored grave liners was litigated and decided adversely to the Board by consent order in a previous action, we find that the trial court erred in failing to grant summary judgment to Vantage.

The undisputed facts show that Vantage manufactures grave liners, also referred to as burial vaults, and then sells the vaults to funeral homes. The funeral home sells the vaults as part of a funeral package to customers through what is referred to as a “pre-need program.” Each customer is provided with a certificate of ownership for their vault, and Vantage retains possession of the vaults and stores them for the customer until the certificate of ownership is redeemed and Vantage ships the vaults to the directed location.

One of Vantage’s storage sites for the vaults is in Morgan County. In 2010, the Board sought to assess an ad valorem tax against Vantage for the vaults stored at this facility. During the taxable period at issue, Vantage stored 39,543 vault domes and 10,249 vault bases in Morgan County, and the Board valued the vaults at $50 each for purposes of its assessment. Vantage appealed the assessment to the Board of Equalization (“BOE”) and removed the vaults from Morgan County.

The BOE ruled in favor of Vantage, finding “that there is no taxability of funeral vaults stored in Morgan County.” The Board appealed this ruling to the superior court, and both parties subsequently moved for summary judgment. In support of its res judicata defense, Vantage submitted the following “Consent Order,” issued by the Morgan County Superior Court in 2001, which provides in full:

Vantage Products duly filed an Appeal on October 19, 2000 raising the issue of taxability of the funeral vaults that it keeps stored in facilities in Morgan County. These are products that are resold to customers through funeral homes and cemeteries. The customers pay for the vaults in advance and Vantage receives payment for those vaults from funeral homes and memorial gardens. Appellee understands, based in part on representations from Appellant, that each vault is sold by Vantage for less than $500.00. The vaults are then placed in storage and the customer is given a certificate of ownership which is redeemed when the vault is needed.
Vantage keeps the vaults in storage until the vaults are redeemed by the customer. These vaults are not taxable as property of Vantage for ad valorem tax purposes.
ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Vantage’s Appeal is granted and it is the judgment of the Court that the vaults stored by Vantage in Morgan County are not taxable as the property of Vantage for ad valorem purposes. Each party shall bear its own costs and expenses.

The superior court denied both motions for summary judgment but granted the parties’ joint motion for a certificate of immediate review. The Board filed an application for interlocutory appeal to this Court, which we granted, and timely filed its notice of appeal, which was docketed in this Court as Case Number A13A1469; Vantage filed a cross-appeal, which was docketed in this Court as Case Number A13A1470. Because these appeals present identical issues, we decide them together.

OCGA § 9-12-40 provides:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

Our courts have developed two closely related doctrines — res judicata and collateral estoppel — to assess whether a prior judgment precludes the subsequent claim or issue from being relitigated. See City of Demorest v. Roberts & Dunahoo Properties, LLC, 288 Ga. App. 708, 713 (2) (655 SE2d 617) (2007) (contrasting res judicata and collateral estoppel). The primary difference in the two doctrines is that:

Where there is identity of parties and subject matter, res judicata bars religitation of matters that were or could have been litigated in an earlier action. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action.

(Citations and punctuation omitted.) Clayton County Bd. of Tax Assessors v. City of Atlanta, 286 Ga. App. 193, 195-196 (1) (648 SE2d 701) (2007), overruled on other grounds in Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482 (1) (a) (711 SE2d 51) (2011).

In the case sub judice, the parties do not contest that the same parties were involved in the 2001 tax appeal, that the doctrine of “[cjollateral estoppel is applicable to ad valorem property tax appeals to the superior courts,” (citation omitted) Clayton County Bd. of Tax Assessors, 286 Ga. App. at 196 (1), and that a consent judgment has the same preclusive effect as any other final judgment. See Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 424 (627 SE2d 549) (2006) (“Although a consent judgment is brought about by agreement of the parties, it is accorded the weight and finality of a judgment.”).

Instead, the Board argues that Vantage failed to meet its burden of proving the defense of res judicata or collateral estoppel by “clear proof” because the record does not contain a description of the prior action and its proceedings, other than what is set out on the face of the consent order. See Mayer v. Wylie, 229 Ga. App. 282, 283 (2) (494 SE2d 60) (1997). But a final prior certified order or judgment may be sufficient to prove the defense, depending on the circumstances of the particular case. Boozer v. Higdon, 252 Ga. 276, 278 (2) (313 SE2d 100) (1984). Further, where, as here, the prior judgment has been entered by the same court, the court may take judicial notice of the prior judgment, obviating the need for certification. Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984).

We thus turn to the terms of the consent order. Although the order does not specifically set out the claims that were asserted in the prior case, which is an element for determining whether the doctrine of collateral estoppel applies, it does contain sufficient detail to identify the issues litigated and decided in the 2001 tax appeal, which was the taxability of vaults sold to customers but stored by Vantage in Morgan County. See Boozer, 252 Ga. at 278 (order showed that issue was raised in the prior proceeding, fully litigated, decided by a court with competent jurisdiction, and necessary to the final judgment). Indeed, the Board concedes that the “consent order appears to address the similar issue in this case — whether [Vantage] is responsible for the ad valorem taxes on burial liners stored in Morgan County.” Accordingly, we believe this case should be properly analyzed by applying the principles of collateral estoppel.

At the outset, we note that the Board based its assessment on the provisions of OCGA § 48-5-16, and that section has not been amended or changed since the 2001 Consent Order was entered. The Board does not contend otherwise, but argues that, because the order contains very little specific information, there could have been “substantial fact[ ] changes,” which may have occurred since the 2001 order. Specifically, the Board argues that Vantage may have used a different accounting methodology to track the vaults and that the vaults stored at the time of the 2010 assessment may not be the same or have the same owners as those stored at the time of the 2001 order. That assumption is likely true since it can be safely assumed that some of the vaults have been removed for use and others would have been added to the facility in the ensuing years.

We recognize that a past determination may become “obsolete or erroneous, at least for future purposes” due to facts which are “vitally altered” between the first and second judgment, but we do not find that to be the case here. See Gwinnett County Bd. of Tax Assessors v. Gen. Elec. Computer Svcs., 273 Ga. 175, 178 (1) (538 SE2d 746) (2000). Even accepting the Board’s hypotheses to be true, we do not believe that different owners or a different accounting methodology means the situation existing at the time of the 2001 Consent Order had been “vitally altered” when the Board issued the 2010 assessment. For purposes of its assessment under OCGA § 48-5-16, the Board merely divided the owners into two categories — in-state and out-of-state residents — and the individual or specific ownership of the vaults appears to be largely irrelevant to this classification. Further, the 2001 order, which on its face was entered with the consent of the parties, was broadly and generically written to encompass the “vaults that [Vantage] keeps stored in facilities in Morgan County,” and makes no reference to the individual owners and does not refer to specific vaults.

Accordingly, we find that the Board is collaterally estopped from relitigating the issue of whether vaults stored by Vantage in Morgan County are subject to ad valorem taxes. Thus, the superior court properly denied the Board’s motion for summary judgment, but the order denying Vantage’s motion for summary judgment must be reversed.

Decided September 9, 2013.

Christian G. Henry, for appellant.

Davidson, Fuller & Sloan, Stephen P. Fuller, for appellee.

Judgment affirmed in Case No. A13A1469. Judgment reversed in Case No. A13A1470.

Andrews, P. J., and Dillard, J., concur.

       “Our appellate courts have followed the lead of the United States Supreme Court in deciding the circumstances under which collateral estoppel will or will not apply.” Thomas County Bd. of Tax Assessors v. Thomasville Garden Center, Inc., 277 Ga. App 591, 593-594 (2) (627 SE2d 192) (2006). Thus, in Gwinnett County Bd. of Tax Assessors v. Gen. Elec. Capital Computer Svcs., 273 Ga. 175, 178 (1) (538 SE2d 746) (2000), our Supreme Court, relying on the holding of the United States Supreme Court in Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591 (68 SCt 715, 92 LE 898) (1948), noted that the purpose of collateral estoppel is to prevent “redundant litigation of the same question of a statute’s application to the taxpayer’s status.”

       We further note that the Board has not challenged the consent order on the grounds that it is uncertified.

       OCGA § 48-5-12 provides: “Unless otherwise provided by law, all real and personal property of nonresidents shall be returned for taxation to the tax commissioner or tax receiver of the county where the property is located.” OCGA § 48-5-16 (a) governs ad valorem taxes assessed on property owned by Georgia residents:
      Any person who conducts a business enterprise upon real property, which is not taxable in the county in which the person resides or in which the person’s office is located, shall return for taxation the tangible personal property of the business enterprise to the tax commissioner or tax receiver of the county in which is taxable the real property upon which the business enterprise is located or conducted.
      And with respect to non-state residents, OCGA § 48-5-16 (b) provides: “When the agent in this state of any person who is a resident of another state has on hand and for sale, storage, or otherwise merchandise or other tangible property, he shall return the property for taxation as provided in Code Section 48-5-12.”

       It is also pertinent to note that the Board did not challenge Vantage’s assertion of its collateral estoppel defense in the trial court. Although it is true, as the Board points out, that Vantage carried the burden of proof on this issue, it is equally true that such a strategy carries the risk that the prevailing party in the trial court, such as the Board, might be faced with an undeveloped record to support their arguments upon appellate review.