author: Smith, Presiding Judge.

text:
    A10A2349.
    JR REAL ESTATE DEVELOPMENT, LLC v. CHEELEY INVESTMENT, L.P. et al.
    (709 SE2d 577)
   Smith, Presiding Judge.

JR Real Estate Development, LLC (“JR Real Estate”), the buyer, appeals from the trial court’s grant of summary judgment to Cheeley Investment, L.P, Genevieve Breedlove, and SMC Properties, L.P (“Cheeley”), the seller, on its claim to $900,000 in earnest money as liquidated damages. Because genuine issues of material fact remain, we reverse.

1. JR Real Estate contends that the trial court erred in granting summary judgment to Cheeley because “the liquidated damages fail to pass the tripartite inquiry required under Georgia law.”

Determining whether a liquidated damages provision is enforceable is a question of law for the court, which necessarily requires the resolution of questions of fact. At trial the burden is on the defaulting party to show that the provision is a penalty, but this burden does not arise at the summary judgment stage. To obtain summary judgment, the moving party must show there is no genuine issue of material fact as to the three factors set out [in Southeastern Land Fund v. Real Estate World, 237 Ga. 227 (227 SE2d 340) (1976)] and that the undisputed facts warrant judgment as a matter of law. To obtain summary judgment, a defendant need not produce any evidence, but must point to an absence of evidence supporting at least one essential element of the plaintiffs claim. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Nat. Svc. Indus., Inc. v. Here to Serve Restaurants, 304 Ga. App. 98, 100 (695 SE2d 669) (2010).

So viewed, the evidence showed that on May 12, 2008, JR Real Estate entered into a “Land Purchase and Sale Agreement” (the “agreement”) with Cheeley for the purchase of 53.937 acres of land in Gwinnett County, Georgia. The agreement provided for a purchase price of $5,933,070, and a deposit of $100,000 in earnest money. Paragraph 12 of the agreement provided further:

Seller shall be entitled to the earnest money if this Agreement is terminated due to the default of Buyer. In such event, Holder may pay the earnest money to Seller by check, which if accepted and deposited by Seller, shall constitute liquidated damages in full settlement of all claims of Seller. It is agreed to by the parties that such liquidated damages are not a penalty and are a reasonable pre-estimate of Seller’s actual damages, which damages are difficult to ascertain.

In a “Rider to Land Purchase and Sale of Agreement” (the “rider”) to the agreement, the parties agreed to “close the sale of the Property in escrow (the ‘Escrow Closing Date’) on July 31, 2008.” The rider explained that JR Real Estate entered into the contract to develop a soccer and sports facility, and that the property would have to be rezoned to a commercial class as a result, but that Cheeley would not permit the rezoning until after the escrow closing date. The rider provided further:

Buyer may extend the Escrow Closing Date: (i) to August 31, 2008 provided that the earnest money deposit of $100,000.00 shall be deemed non refundable to Buyer unless Seller defaults under this Agreement and (ii) to September 30, 2008 provided that Buyer deposits with Holder an additional earnest money deposit of $50,000.00, which additional earnest money deposit shall be deemed non refundable to Buyer unless Seller defaults under this Agreement.

The rider also revised paragraph 12 of the agreement to provide:

Notwithstanding anything to the contrary herein, the parties have agreed that the actual damages suffered by Seller if this Agreement is terminated due to a default by Buyer would be extremely difficult or impracticable to ascertain. After negotiation, the parties have agreed that, considering all the circumstances existing on the date of this Agreement, the amount of Earnest Money deposit is a reasonable estimate of the damages that Seller would incur in such an event and that the aforesaid payment of Earnest Money deposit is liquidated damages hereunder and not a penalty.

During the months of September and October 2008, the parties, through their counsel, exchanged a series of communications regarding extending the closing date beyond September 30. Cheeley proposed that JR Real Estate provide an additional $1,000,000 in earnest money and a lender’s commitment to finance the purchase. Cheeley then stated that if the lender’s commitment was not provided, the required earnest money would increase to $2,816,535, half of the purchase price.

When the closing did not occur on September 30, the parties entered into an amendment to the agreement (the “amendment”) which provided that in exchange for waiving the escrow closing requirement, (1) the closing date would be extended to November 14, 2008, (2) the purchase price would be reduced to $5,735,000, and (3) JR Real Estate would have to provide $750,000 in earnest money in addition to the $150,000 already held. The amendment provided that the $750,000 shall constitute “ ‘Earnest Money’ under the Agreement.” The sale was also made contingent upon the rezoning of the property: “If the Rezoning is denied for any reason, . . . Earnest Money shall be immediately released by Holder to Purchaser, and the parties shall have no further obligations or liability under the Agreement.”

Although JR Real Estate’s rezoning application was approved, the closing did not occur. Cheeley declared JR Real Estate in default and claimed that it was entitled to the $900,000 in earnest money as liquidated damages. JR Real Estate filed a verified complaint for specific performance, declaratory judgment, and injunctive relief. Cheeley filed a verified answer and counterclaim seeking a declaratory judgment that it was entitled to the $900,000 in earnest money, and seeking prejudgment interest and attorney fees, and to dismiss JR Real Estate’s complaint.

The parties filed cross-motions for summary judgment with Cheeley claiming that because JR Real Estate breached the agreement, Cheeley was entitled to $900,000 in earnest money as liquidated damages. Following a hearing, the trial court granted Chee-ley’s motion for summary judgment and denied JR Real Estate’s motion, concluding that Cheeley was entitled to liquidated damages in the amount of $900,000. It is from this order that JR Real Estate appeals.

In Southeastern Land Fund[, supra], our Supreme Court developed a three-part test for analyzing liquidated damages provisions. As explained by that court: “First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.” (Citations and punctuation omitted.) Id. at 230. A liquidated damages clause is enforceable only if it meets each of these requirements.

(Citation and punctuation omitted.) Fuqua Constr. Co. v. Pillar Dev., Inc., 293 Ga. App. 462, 463-464 (667 SE2d 633) (2008).

(a) Here, the parties do not dispute the first factor — that the injury caused by the breach is difficult or impossible of accurate estimation.

(b) “As for the second [liquidated damages] requirement, we ascertain the intent of the parties by first looking to the language of the contract. Although the words used by the parties are not conclusive, they are a significant factor in determining the parties’ intent.” (Citation and footnote omitted.) Mariner Health Care Mgmt. Co. v. Sovereign Healthcare, 306 Ga. App. 873, 876 (1) (703 SE2d 687) (2010). Construed together, the agreement and rider provided that $150,000 in earnest money “is a reasonable estimate of the damages” and “is liquidated damages.” This supports a finding that the parties intended to provide for liquidated damages in the amount of $150,000 rather than a penalty. See id.

The amendment provided for another $750,000 as “ ‘Earnest Money’ under the Agreement” that was “non-refundable to [JR Real Estate],” but the payment of that amount was “in exchange for waiving the Escrow Closing requirement and the extension of the Closing Date.” In fact, the amendment provided that Cheeley would be entitled to the additional earnest money if the rezoning application was denied or if any rezoning appeal extended longer than 60 days, conditions involving no fault of JR Real Estate. So although the parties agreed that the additional $750,000 payment was “ ‘Earnest Money’ under the Agreement,” it is not clear whether they intended it be included as a part- of the liquidated damages. The amendment contained no liquidated damages provision or revised liquidated damages provision as was contained in both the original agreement and in the rider. Indeed, “a liquidated damages provision is or is not enforceable based upon the intent that was manifested at the time that the provision was originally proposed and agreed to.” Adams v. D & D Leasing Co. of Ga., 191 Ga. App. 121, 123 (1) (381 SE2d 94) (1989).

Robert Cheeley of Cheeley Investments, L.E averred that Cheeley initially requested $1,100,000 when negotiating the amendment because Cheeley “did not want to risk default by [JR Real Estate] and be saddled with a C-2 zoning for 54 acres of land in a mid-block location, as the property would be much less marketable.” This evidence creates an inference that could support either conclusion: that Chee-ley intended to include the additional $750,000 in earnest money as part of the liquidated damages, or that Cheeley intended it to be a penalty. But we must construe this inference in favor of JR Real Estate as the nonmovant. See Nat. Svc. Indus., Inc., supra, 304 Ga. App. at 100 (all reasonable inferences are viewed in the light most favorable to the nonmovant). And “in cases of doubt the courts favor the construction which holds the stipulated sum to be a penalty, and limits the recovery to the amount of damages actually shown, rather than a liquidation of the damages.” (Citation and punctuation omitted.) Southeastern Land Fund, supra, 237 Ga. at 231.

Under these circumstances, we cannot say that Cheeley as the movant on summary judgment has shown that there is no genuine issue of material fact concerning whether the additional $750,000 in earnest money was intended to provide for damages rather than a penalty.

(c) Finally, Cheeley was required to show that there is no issue of material fact that the sum stipulated was a reasonable pre-estimate of the probable loss. The record must show evidence that prior to the execution of the agreement, Cheeley “endeavored to estimate damages resulting from a potential breach.” Physician Specialists in Anesthesia, P.C. v. MacNeill, 246 Ga. App. 398, 401 (539 SE2d 216) (2000). Robert Cheeley averred that in March 2008, before agreeing to the earnest money amount, he consulted with a licensed real estate appraiser. He stated that based upon the data obtained by the appraiser and his own analysis of comparable real estate in the area, he concluded that the property would be worth $20,000 less per acre if it were rezoned and that the probable loss in value would be approximately $1.08 million.

In opposition to Cheeley’s affidavit, JR Real Estate presented the affidavit of its own real estate expert, J. Carl Schultz, Jr., who opined that based upon his own comparables as well as Robert Cheeley’s, there was insufficient data to conclude that the change in zoning would have an effect on the value of the property. The trial court concluded that Schultz’s opinion was not the product of reliable principles and methods because his comparables included sales occurring after the date of the agreement. The court concluded further that Schultz failed to offer his own opinion as to a pre-estimate of the damages.

The admissibility of evidence on motion for summary judgment, whether contained in affidavits or otherwise, is subject to the rules relating to the admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would generally be inadmissible on motion for summary judgment.

(Citation and punctuation omitted.) Lance v. Elliott, 202 Ga. App. 164, 167 (413 SE2d 486) (1991). Schultz averred specifically why many of Cheeley’s comparables were not suitable. He stated that (1) some of Cheeley’s comparables were for sales in 2006 and 2007, one to two years before the agreement, and that sales closer to the date of the agreement were available, (2) two of the comparables “support a ‘12% higher premium’ on value for multifamily zoning as opposed to commercial zoning on the Property,” and (3) in two of the comparables Cheeley made no reference to adjustments for time of sale, zoning, topography, and availability for zoning. Schultz’s own comparables reveal some sales occurring within the same month as the original agreement date and some within a month of the last anticipated closing date of November 14, 2008. The trial court therefore erred in rejecting Schultz’s affidavit on the ground that his comparables included sales occurring after the date of the agreement.

Decided March 16, 2011

Reconsideration denied April 12, 2011.

Davis, Matthews & Quigley, Matthew R. Thiry, for appellant.

Chilivis, Cochran, Larkins & Bever, John K. Larkins, Jr., Koehler & Riddick, Christine A. Koehler, John R Cheeley, for appellees.

The trial court also erred in concluding that Shultz was required to produce his own opinion as to a pre-estimate of damages. As the nonmovant, JR Real Estate was only required to come forward with evidence creating an issue of material fact with regard to Cheeley’s claim that $900,000 was a reasonable pre-estimate of Cheeley’s damages.

JR Real Estate’s expert directly contradicted the conclusion of Cheeley’s expert concerning whether the sum of $900,000 was a reasonable pre-estimate of the probable loss. JR Real Estate has therefore pointed to specific evidence giving rise to a triable issue.

Because genuine issues of material fact remain with regard to the second and third prongs of the Southeastern Land Fund three-part test, the trial court erred in concluding that Cheeley was entitled to $900,000 in liquidated damages and in granting Cheeley summary judgment on. this ground.

2. JR Real Estate’s remaining enumerations are rendered moot by our holding in Division 1.

Judgment reversed.

Mikell and Adams, JJ., concur.

       The claim for specific performance and one of the claims for a declaratory judgment subsequently were dismissed.

       Cheeley contends that this court cannot consider the court’s findings and conclusions with regard to Schultz’s affidavit, but our review of the court’s summary judgment ruling requires a determination of whether the parties submitted competent evidence to support their claims. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (appellate review of ruling on summary judgment is de novo). See, e.g., Dierkes v. Crawford Orthodontic Care, 284 Ga. App. 96, 99 (2) (a), n. 10 (643 SE2d 364) (2007) (even where motion to strike affidavit not ruled upon, appellate court review on summary judgment requires a determination of whether competent evidence supported claim).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A0032.
    CROY v. THE STATE.
    (709 SE2d 913)
   Adams, Judge.

On August 23, 2004, Aaron Croy entered a plea of guilty to one count of kidnapping with bodily injury. He was sentenced to twenty years, to serve ten, and he is required to serve the entire ten years in prison with no chance of parole. On September 20, 2004, Croy moved to withdraw his plea, which, following a hearing, the trial court denied.

On appeal, Croy does not contend that his plea was not voluntary, nor does he challenge any other aspect of his plea, save one. Although Croy admits that he knew he was subject to a ten-year minimum sentence, he contends his trial counsel was ineffective because counsel told him prior to the plea that he would “do but two or three years on this and you will be out,” that he “would do a couple of years on it and . . . get paroled.” At the hearing his mother testified that she was present for the relevant conversation and that she, too, heard trial counsel say that her son would not serve the whole ten years. Thus, Croy asserts that counsel misled him about the mandatory minimum prison term, and that if he had known he would have to serve the entire ten years, he would not have taken the plea.

The defendant carries the burden on a motion to withdraw a plea based on ineffective assistance of counsel:

[I]f the motion to withdraw is based on an ineffective assistance of counsel claim, the defendant bears the burden of showing that, had it not been for his attorney’s deficient representation, a reasonable probability exists that he would have insisted on a trial.

(Punctuation and footnotes omitted.) Hill v. State, 267 Ga. App. 357, 357-358 (599 SE2d 307) (2004). See also Rollins v. State, 277 Ga. 488, 490-491 (2) (591 SE2d 796) (2004). “ ‘A trial court’s ruling on a motion to withdraw a guilty plea after sentencing is pronounced will not be disturbed absent an abuse of discretion.’ [Cit.]” Clue v. State, 273 Ga. App. 672, 673 (615 SE2d 800) (2005).

At the plea hearing, the prosecutor explained that Croy would plead guilty to kidnapping with bodily injury with a recommendation that the court nolle prosse counts of simple battery and cruelty to children. The prosecutor continued, “The State recommends on Count One he plea to a sentence of twenty years, that upon service of ten in the state penal system the remainder be served on probation. ...”

At the hearing on the motion to withdraw the plea, trial counsel testified that he told Croy that there was a possibility he would get life in prison. The testimony continued as follows:

Q: Do you recall if you spoke with him about parole at all?
A: I don’t recall whether I spoke to him about parole or what he would get or what he wouldn’t get. I usually would have gone over — with all my clients I would go over the possibilities that they could get and the evidence against him, that is all I recall. ... I don’t recall exactly what I said to Mr. Croy, but I’m certain that I told him about what his consequences were.
Q: Do you — so you don’t really know whether you told him that he would be out in less than ten years?
A: I know that I didn’t tell him that he would — that I would guarantee that he would be out in less than 10 years.
Q: But you may have told him there was a possibility that he would be?
A: I don’t think I would have told him that, but I could have. He could have took it that way. I don’t recall exactly what I said to him.

On cross-examination, counsel testified that he was sure that he reviewed OCGA § 17-10-6.1 (b) in connection with talking to Croy about the sentence he was facing.

The trial court found as a matter of fact and law that Croy’s plea was voluntary and that trial counsel provided reasonably effective assistance of counsel. The court also concluded

that there is no evidence which establishes that there were any errors on the part of counsel for the defendant upon which the Court could find that but for those errors there is a reasonable probability that the defendant would not have entered a plea of guilty and would have gone to trial.

It is true that “trial counsel’s affirmative act of providing misinformation concerning a defendant’s basic parole eligibility falls outside the range of professional competence for attorneys in criminal cases. . . .” Clue, 273 Ga. App. at 673-674. But merely failing to inform the defendant on the same topic is not ineffective assistance. See Smith v. Williams, 277 Ga. 778, 779 (1) (596 SE2d 112) (2004) (distinguishing “the failure to inform about those consequences from an affirmative misrepresentation about those consequences”).

Decided April 12, 2011.

Jennifer E. Hildebrand, for appellant.

Herbert E. Franklin, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

Here, it was within the trial court’s discretion to conclude that trial counsel did not affirmatively provide Croy misinformation regarding his parole eligibility. Counsel testified that he reviewed the relevant statute, that he told Croy what the consequences would be to a plea, and that he does not believe he would have told Croy that he might get out sooner than ten years. The court also could have found incredible Croy’s claim that he would rather have risked a possible life sentence than take the plea had he known he was not eligible for parole. Compare Clue, 273 Ga. App. at 673 (trial court held that trial counsel incorrectly advised defendant about his parole eligibility).

Judgment affirmed.

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

       Prior to the 2006 amendment, OCGA § 17-10-6.1 (b) read:
      (b) Notwithstanding any other provisions of law to the contrary, any person convicted of a serious violent felony as defined in paragraphs (2) through (7) of subsection (a) of this Code section shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles. . . .
      See also Priest v. State, 281 Ga. App. 89, 91 (635 SE2d 377) (2006).

       The State’s argument that Croy’s motion to withdraw was untimely is without merit. As long as the motion to withdraw is filed in the same term of court as the plea, it is timely regardless of when the related hearing occurs or when the court’s order is issued. McKiernan v. State, 286 Ga. 756 (692 SE2d 340) (2010); Watson v. State, 307 Ga. App. 839 (706 SE2d 194) (2011).


author: McFadden, Judge.

text:
    A11A0270.
    GRAVES v. THE STATE.
    (710 SE2d 212)
   McFadden, Judge.

Justin Marquis Graves appeals his convictions of aggravated assault and entering an automobile with the intent to commit a felony. He contends that the evidence does not support the convictions and that the trial court should have merged the convictions. We affirm because sufficient evidence supports the convictions, and they do not merge as one offense was complete before the other began.

The state charged Graves with committing aggravated assault upon Shepperd Bailey with a knife and with entering an automobile with the intent to commit a felony by entering Bailey’s car with the intent of committing an aggravated assault. After a jury returned a guilty verdict on both counts, the trial court sentenced Graves to ten years, four to serve in confinement and six on probation. The court denied Graves’ motion for new trial, and he filed this appeal.

When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. Viewed in this light, the evidence shows that on November 16, 2007, Shepperd Bailey entered his car after having dinner with his girlfriend. He locked the doors, then saw something out of the corner of his eye. He turned and saw Graves, his girlfriend’s roommate, trying to open the rear driver’s side door. Unable to open the locked door, Graves walked to the driver’s side window. Bailey saw a knife in Graves’ right hand.

Through the closed car window, Bailey asked Graves why he had a knife. Graves “kind óf chuckled and kind of blew it off,” then put the knife in the waist of his sweat pants and pulled his sweatshirt over it. Graves asked Bailey to talk, so Bailey got out of the car.

Graves told Bailey that the girlfriend was his best friend, and that he did not want to see her hurt. When they had finished talking and Bailey was about to re-enter his car, Graves grabbed Bailey around the neck from behind, as if he were going to put Bailey in a choke hold. Bailey broke free, and Graves left the area.

While Bailey was deciding what to do, Graves returned. Bailey then saw him quickly coming toward him while holding the knife. Graves was encouraging Bailey to “come on.” Frightened, Bailey ran to the other side of the parking lot. Graves again walked away.

Bailey returned to his car, got back in, closed the door and locked it, and called 911. Graves returned to Bailey’s car for the last time, still holding the knife. Bailey began backing up the car. Graves tried to open the door and then leapt onto the hood. Bailey backed into an embankment, where the car became stuck. Graves rolled off the hood and stabbed the side-view mirror, breaking it off. Graves then began kneeing the driver’s side window. Bailey slid over to the passenger’s side, and Graves began kneeing the passenger’s side window. Bailey slid back to the driver’s side. Graves succeeded in breaking the passenger’s side window and jumped into the car with the knife. Bailey managed to escape, and Graves ran from the scene.

OCGA § 16-5-20 (a) (1), (2) defines “simple assault” as when a person “[attempts to commit a violent injury to the person of another; or . . . [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” Under OCGA § 16-5-21 (a) (2),

[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .

The evidence supports the aggravated assault conviction. Graves quickly approached Bailey while holding a knife, after already having confronted him once, urging Bailey to “come on” and causing Bailey to fear for his safety and run away. See Williams v. State, 299 Ga. App. 345, 347 (682 SE2d 586) (2009) (“State need only establish that [defendant] placed the victim in reasonable apprehension of injury by a deadly weapon,” and “the mere ‘presence of a deadly weapon would normally place a victim in a reasonable apprehension of being injured violently.’ ”) (citation omitted).

Under OCGA § 16-8-18, it is a felony to enter an automobile with the intent to commit a felony. The evidence that Graves broke the car’s window, jumped into the car while holding the knife, and caused Bailey to flee, was sufficient for a rational trier of fact to find Graves guilty beyond a reasonable doubt of entering an automobile with the intent to commit a felony. See Jackson v. Virginia, supra.

2. Graves argues that his convictions merge. A defendant may not be convicted of more than one crime if one crime is included in the other. See OCGA § 16-1-7 (a). In determining whether one crime is included in another, we apply the “required evidence” test:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

(Citation and punctuation omitted.) Drinkard v. Walker, 281 Ga. 211, 216 (636 SE2d 530) (2006).

Graves argues that, given the distance between himself and Bailey while they were in the parking lot, he could not have used his knife offensively, and this portion of their encounter does not support the aggravated assault conviction. Consequently, he argues, the only possible aggravated assault occurred when Graves entered the car with the knife, and therefore the aggravated assault and entering an automobile convictions merged.

But as noted above, the evidence that Graves quickly approached Bailey while holding a knife, urging Bailey to “come on” and causing Bailey to fear for his safety and run away, supports the aggravated assault conviction. Graves entered Bailey’s automobile after he had completed the aggravated assault. “[I]f one crime is complete before the other takes place, the two crimes do not merge.” (Punctuation omitted.) Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998). Because these were separate, complete crimes that required proof of different facts, the trial court did not err in failing to merge them. See Lavigne v. State, 299 Ga. App. 712, 714 (2) (683 SE2d 656) (2009).

Decided April 12, 2011.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Robby A. King, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A10A2303.
    POWERS v. THE STATE.
    (709 SE2d 821)
   Adams, Judge.

Stephen Powers was charged with three counts of aggravated child molestation. The trial court directed a verdict on Count 3, and the jury convicted Powers on Count 1 and found him not guilty on Count 2. Powers appeals following the denial of his motion for new trial, arguing that the State failed to prove venue and that his trial counsel was ineffective. We agree that the State failed to prove venue beyond a reasonable doubt, and that his conviction must be reversed.

1. Powers argues that the State failed to prove venue was proper in Cherokee County, the county where he was tried.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. . . . The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence.

(Punctuation and footnotes omitted.) Jones v. State, 272 Ga. 900, 901-903 (2) (537 SE2d 80) (2000). Graham v. State, 275 Ga. 290, 292 (2) (565 SE2d 467) (2002).

The evidence pertinent to this issue shows that the molestation occurred at the victim’s home, where he lived with his mother, his sister and Powers, who is his biological father. According to the mother’s testimony, their address was 3760 Creekmore Street in Canton, Georgia. During his videotaped interview with police, which was played for the jury, Powers also stated he lived at this address.

The mother testified that she spoke with an investigator with the Cherokee County Sheriffs Department, and that investigator testified that she became involved in the case after she received a referral from the Department of Family and Children Services. The investigator did not identify the particular DFCS office that sent the referral, and when the mother was questioned whether she met with anyone from the Cherokee County DFCS she responded that she met with a social worker at the children’s hospital where she took the victim to be examined, but that she did not know her affiliation. She also testified that a person from DFCS came to the hotel where she was staying with the children after she moved out of the family home, but she did not identify which DFCS. The children’s hospital was located near Northside Hospital off 1-285, Meridian Drive, and the hotel was located in Roswell “off of 92.” Lastly, an employee of Sawnee EMC testified that the company performed work at 3760 Creekview in Canton, Georgia, at a time that corresponded to one of the victim’s outcries in which he stated to his mother that his father molested him while some diesel trucks were outside. That worker also testified that the company, which is located in Cumming, Georgia, serviced parts or portions of Cherokee County.

The direct evidence of venue in this case was that the molestation occurred at the victim’s residence, and that the residence was located on a specific street in Canton, Georgia. “As the Supreme Court of Georgia has held, ‘(b)y long-standing precedent, proving that a crime took place within a city without also proving that the city is entirely within a county does not establish venue.’... Graham v. State, 275 Ga. 290, 293 (2) (565 SE2d 467) (2002).” Melton v. State, 282 Ga. App. 685, 688 (1) (a) (639 SE2d 411) (2006). Mock v. State, 306 Ga. App. 93, 96-97 (701 SE2d 567) (2010). Similarly, “a street name, standing alone, is never sufficient to establish venue, because streets frequently run through more than one county.” (Punctuation and footnote omitted.) Mock, 306 Ga. App. at 97 (1) (a). Lynn v. State, 275 Ga. 288, 289 (2) (565 SE2d 800) (2002). And the utility company employee’s testimony did not constitute additional evidence concerning venue, since his testimony was that the company performed service at 3760 Creekcieic and the victims’s residence was located at 3760 Creekmore Drive. Further he did not testify that this address was located in Cherokee County, only that Sawnee EMC serviced portions of Cherokee County.

Decided March 9, 2011

Reconsideration denied April 11, 2011

Brian Steel, for appellant.

Garry T. Moss, District Attorney, Wallace W. Rogers, Jr., Cliff Head, Assistant District Attorneys, for appellee.

The only other evidence concerning venue was that, based on a referral from an unspecified DFCS, a detective with the Cherokee County Sheriffs Department investigated the case. But as we have stated on numerous occasions, “the investigating officers’ county of employment does not, in and of itself, constitute sufficient proof of venue to meet the beyond a reasonable doubt standard.” Thus, because the only evidence of venue is the officers’ county of employment, the record before us does not authorize a finding that the State proved beyond a reasonable doubt that the [aggravated child molestation] occurred in [Cherokee] County.” (Punctuation omitted.) Mock, 306 Ga. App. at 97 (1) (a). In the Interest of B. R., 289 Ga. App. 6, 9-10 (2) (656 SE2d 172) (2007) (explaining Thompson v. State, 277 Ga. 102, 104 (3) (586 SE2d 231) (2003)).

However, because the evidence of the crime was otherwise sufficient, Powers may be retried. Mock, 306 Ga. App. at 97 (1) (b).

2. In light of our holding in Division 1, it is unnecessary for us to consider Powers’s remaining enumerations of error challenging the effectiveness of his trial counsel.

Judgment reversed.

Smith, P. J., and Mikell, J., concur.

       The officer testified that she never visited the residence.

       The State’s brief contains an informative analysis of early Supreme Court of Georgia cases on proof of venue, as well as an analysis of proof of venue rules applicable in other states. However, we believe our outcome in this case is in accord with the binding precedent of both this Court and our Supreme Court. Moreover, although the State expresses some frustration with the evolution of the law in this area, our appellate courts have likewise repeatedly expressed frustration with the state’s failure to prove venue since it seems to us in many instances, and especially in cases such as this one where direct evidence of venue was readily available and there was no dispute about the location of the crime, that “[plroving venue is a simple exercise that generally requires the asking of one question.” Chapman v. State, 275 Ga. 314, 317 (4), n. 4 (565 SE2d 442) (2002). E.g., Lynn v. State, 275 Ga. 288, 289-290 (3) (565 SE2d 800) (2002); In the Interest of B. R., 289 Ga. App. 6, 10 (656 SE2d 172) (2007) (Blackburn, E J., Smith, E J., and Miller, J., concurring fully and specially).


author: PHIPPS, Presiding Judge. MCFADDEN, Judge,

text:
    A09A1814.
    HARMON v. INNOMED TECHNOLOGIES, INC. et al.
    (709 SE2d 888)
   PHIPPS, Presiding Judge.

Kevin C. Harmon appeals the grant of summary judgment against him in this lawsuit, wherein he claims ownership of certain intellectual property purchased by Innomed Technologies, Inc. We review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party. Because Harmon has demonstrated no reversible error, we affirm.

In 1996, Thomas J. Wood obtained a patent in connection with a nasal ventilation device he had invented. The patent was held by a company wholly owned by Wood. Years later, in late 1998, Wood met with Harmon to discuss the feasibility of getting the device “to market.” In January 1999, the two executed an agreement, wherein Harmon and Wood contemplated developing a corporation, in which Harmon would acquire shares by contributing funds, and in which Wood would contribute patents procured for his inventions. Specifically, with respect to patents, the agreement stated: “All patents related to medical devices developed by Thomas J. Wood will be transferred into the name of the corporation that is to be formed.”

The following month, February 1999, articles of incorporation were filed with the Georgia Secretary of State’s Office. A business bank account was opened. Harmon began depositing money therein; and Wood began writing checks on that account. Beginning in about February and continuing through September 1999, Harmon’s attorney repeatedly sent to Wood various corporate documents such as bylaws and a subscription agreement, with accompanying letters instructing Wood to sign and return them. Wood never did so. Instead, as Harmon deposed, Wood expressly told him by March 2000 that he was no longer interested in any business relationship. Communications between Harmon and Wood halted.

In September 2002, Harmon discovered that Wood had continued to develop a nasal ventilation device, which had been taken to market. In fact, Wood had applied for and obtained another patent; had applied for and obtained FDA approval to market the device; had entered a business relationship with his in-laws in connection with that device; and together with his in-laws and his in-laws’ company, had entered into an asset purchase agreement with a company that later became Innomed. Assets purchased in accordance with that agreement included any associated trade name for the device(s), all trademarks, patents, patent applications, and patents pending, as well as “At Buyer’s option, all Patent, and related technology pertaining to respiration and ‘sleep apnea’ both presently and which may be developed by any party hereto for a period of five (5) years from the date of the Closing.”

Claiming that his 1999 agreement with Wood entitled him to at least some interest in the intellectual property underlying the nasal ventilation device, Harmon filed suit against several defendants, including Innomed. Moving for summary judgment, Innomed claimed that records at the United States Patent and Trademark Office showed an unbroken ownership path of the patent issued in 1996 from the company wholly owned by Wood to Innomed. Further, Innomed argued that Harmon had no ownership in the subject intellectual property because the 1999 agreement underlying Harmon’s claim had no legal force, asserting it was a mere agreement to agree. In addition, Innomed raised the defense that it was a bona fide purchaser without notice that Harmon had any interest in the property.

Opposing Innomed’s motion, Harmon asserted that his claim of ownership was premised upon his agreement with Wood in 1999. Harmon also claimed that he held equitable title to the intellectual property. And he countered that Innomed had failed to establish that it had no notice of his interest in the property. After a hearing, the trial court summarily granted Innomed’s motion.

On appeal, Harmon enumerates two claims of error. He contends that the trial court erred in granting summary judgment “on grounds that [he] did not have equitable title to certain property created with his funds.” Also, Harmon contends that the trial court erred in granting summary judgment “on grounds that [Innomed] was a bona fide purchaser without notice of Harmon’s interest in certain property.”

1. Harmon has failed to demonstrate any merit in his claim that he holds an “ownership interest,” stemming from the 1999 agreement, in the intellectual property.

(a) As a preliminary matter, to the extent Harmon sought to enforce contractual rights, we agree with Innomed’s argument asserted below that the agreement was unenforceable because it was a mere agreement to agree.

It is well established that no contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means that there is no agreement to be enforced. If a contract fails to establish an essential term, and leaves the settling of that term to be agreed upon later by the parties to the contract, the contract is deemed an unenforceable “agreement to agree.”
(A)s a rule, the consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition. Finally, a promise must be sufficiently definite as to both time and subject matter to be enforceable.

Here, the 1999 agreement was not an enforceable contract because, as a whole, it failed to establish essential terms. Among other things, the agreement failed to establish the amount of money due from Harmon. What is more, the terms that were specified within the agreement were tempered by alternatives and otherwise subject to unspecified future changes.

The agreement stated as its purpose: “[T]o establish $80,000.00 financing for the development of a corporation to be named ‘Breathing Technologies Corporation’ at the expense of Kevin C. Harmon in exchange for a 49% ownership of the corporation.” And it set forth that there would be “three phases of financing”; that at those respective phases, Harmon would transfer to the corporation first $25,000, next $30,000, and finally $25,000; and that with each financial transfer, a percentage ownership of the corporation would be transferred to Harmon. But there was no time frame established for any of these funding phases; rather, the agreement provided, “These phases are a rough guideline and timetable of the funds to be dispersed.” Even the funding amounts were not definite; the agreement allowed Harmon to unilaterally “stop purchasing interest in the corporation at any time.” And as for Wood, the agreement failed to specify time frames during which he would transfer existing or future patents; and, the agreement failed to provide any limitation upon the time frame during which future patents related to medical devices developed by Wood would belong to the anticipated corporation.

Regarding the structure of the anticipated corporation, the agreement stated only that Harmon would be appointed as a vice president “with all of the benefits afforded other officers in the corporation” and that Wood would be given “opportunity to input on all major corporate decisions.” And while the agreement provided that Harmon could purchase up to 49% of the corporation, the agreement did not expressly provide for the remaining ownership. At the end of the agreement was language: “This agreement may be revised at a later date to include conditions in the corporate by-laws, more detail, or other considerations.”

Notably, no corporation named “Breathing Technologies Corporation” was ever formed; articles of incorporation for “Breathing Technologies of Georgia, Inc.,” however, were filed with the Georgia Secretary of State. Harmon was listed therein as registered agent; Wood’s name did not appear therein. It is undisputed that Wood never assigned any patent to any corporation as contemplated by the 1999 agreement; it is also undisputed that Wood never returned to Harmon or to Harmon’s lawyer any signed subscription agreement. As Harmon concedes in his brief, “[wjithout a signed subscription agreement from [Wood], the organization of Breathing Technologies was never completed.”

“Under these circumstances, the evidence demonstrates only an unenforceable agreement to agree, not an assent by the parties to the essential terms of a contract.” An agreement that is “originally and inherently too indefinite may later acquire precision and become enforceable by virtue of the subsequent acts, words, or conduct of the parties.” Harmon’s acts consistent with the agreement, however, did not cure the deficiencies so as to render the agreement an enforceable contract. Notably, Harmon does not present any argument that the agreement constituted an enforceable contract.

(b) Harmon contends that the trial court erred by granting summary judgment to Innomed “on grounds that [he] did not have equitable title to certain property created with his funds.” Harmon has failed to demonstrate merit in this contention.

At the summary judgment hearing, as to this matter, Innomed’s counsel argued that Harmon had failed to make the threshold showing — that a cognizable interest in the intellectual property had vested in Harmon. Innomed’s counsel pointed out that Harmon’s claim of ownership was premised upon the 1999 agreement, but that agreement failed as unenforceable. Therefore, Innomed’s counsel stated, because Harmon had failed to otherwise demonstrate that any cognizable interest was “ever conveyed [to him] to start off with, there’s no equitable right.” Harmon’s counsel conceded,’’We’re not trying to enforce this [agreement].” Nevertheless, he asserted, the agreement had given Harmon “equitable rights.” Innomed’s counsel countered, “There’s no case law to support what he’s saying.”

Indeed, Harmon has cited this court to no supporting authority. Instead, he reasserts that “[he] owns part of the [intellectual property] because he paid for [it] in connection with the [1999 agreement].” But as we have held in Division 1 (a), and as Harmon seems to concede, the agreement was not enforceable as a contract.

In addition, Harmon asserts that “the language in the [1999 agreement] about assigning ‘[a] 11 patents related to medical devices developed by Thomas J. Wood’ is perfectly valid for conveying equitable title.” Harmon has articulated no legal argument, however, demonstrating how equitable title was conveyed here — pursuant to an agreement that was unenforceable.

The cases that Harmon cites are inapposite to the circumstances here. In each case, an implied trust was imposed over the property to which the claimant had demonstrated a cognizable interest. As the Supreme Court of Georgia pointed out in its order transferring this case back to this court: “The trial court did not impose a constructive or implied trust. Moreover, even if it had, the imposition of that relief would have been merely ancillary to the trial court’s resolution of the legal and factual issues involved below.” Harmon has articulated no argument that the trial court erred by not imposing a constructive or implied trust. “We will not speculate or make arguments on [Harmon’s] behalf; to do so would improperly change this court’s role from disinterested decision-maker to appellate advocate.” Under these circumstances, Harmon’s claim of equitable title fails.

2. Given our conclusions in Division l, we need not reach Harmon’s contention that the trial court erred to the extent it determined that Innomed was a bona fide purchaser without notice of his interest in the intellectual property.

Judgment affirmed.

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

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority’s opinion. I write to add that Harmon’s equitable argument is not only foreclosed by the fact that he has not articulated a legal argument demonstrating how equitable title was conveyed pursuant to an unenforceable contract. It is also foreclosed by:

[T]he first maxim of equity is that equity follows the law. Thus, a court of equity has no more right than a court of law to act on its own notion of what is right in a particular case. Where rights are defined and established by existing legal principles, they may not be changed or unsettled in equity. Although equity does seek to do complete justice, it must do so within the parameters of the law.

(Citations and punctuation omitted.) Hopkins v. Virginia Highland Assoc., 247 Ga. App. 243, 249 (1) (541 SE2d 386) (2000). See also Dolinger v. Driver, 269 Ga. 141, 143 (4) (498 SE2d 252) (1998); OCGA § 23-1-6.

Decided March 30, 2011

Reconsideration denied April 14, 2011

Beal & Blitch, James D. Blitch TV, for appellant.

Conner & Jackson, Neal L. Conner, Jr., Hall, Booth, Smith & Slover, Anthony A. Rowell, Kevin A. Leipow, for appellees.

        Latson v. Boaz, 278 Ga. 113 (598 SE2d 485) (2004).

        Hardnett v. Ogundele, 291 Ga. App. 241, 243 (1) (661 SE2d 627) (2008) (citation and footnote omitted).

        Hunt v. Thomas, 296 Ga. App. 505, 509 (2) (675 SE2d 256) (2009) (punctuation and footnotes omitted).

        Hunt, supra (footnote omitted); see Massih v. Mulling, 271 Ga. App. 685, 687 (1) (610 SE2d 657) (2005) (promise of 20 percent ownership interest in company unenforceable where parties had not agreed on when interest would be conveyed or how company was to be structured); Key v. Naylor, Inc., 268 Ga. App. 419, 425 (3) (602 SE2d 192) (2004) (agreement to transfer 20 percent of stock unenforceable where agreement did not provide for when or if transfer was to be made, what stock was to be conveyed, and what the percentage related to); Burns v. Dees, 252 Ga. App. 598, 602-606 (1) (a) (i) (557 SE2d 32) (2001) (oral agreement giving party 1/s interest in profits and ultimate sale of business venture was unenforceable because it lacked terms concerning allocation of costs and losses, frequency of payments, manner of calculating proceeds, and time of distribution); Lemming v. Morgan, 228 Ga. App. 763, 764 (1) (492 SE2d 742) (1997) (oral partnership contract obligating one party to transfer xh interest in real property to other party “if and when” second party’s tax problems subsided insufficiently definite to be enforced); Demer v. Capital City Cable, 190 Ga. App. 40, 42-43 (2) (378 SE2d 162) (1989) (agreement to transfer stock pursuant to an equity participation plan was unenforceable where party conceded that several provisions of plan remained to be determined, including which type and amount of stock party would receive); Sierra Assoc. v. Continental Illinois Nat. Bank &c., 169 Ga. App. 784, 788-789 (1) (315 SE2d 250) (1984) (agreement setting out various options for future agreement was unenforceable, because it was merely an agreement to agree in the future on one of the options).

        Pine Valley Apartments v. First State Bank, 143 Ga. App. 242, 245 (237 SE2d 716) (1977) (citation and punctuation omitted).

       See Tattersall Club Corp. v. White, 232 Ga. App. 307, 310 (1) (b) (501 SE2d 851) (1998) (“part performance of [a] contract is sufficient to validate an otherwise vague and objectionable document, provided that the part performance itself relates to the contested clause”) (punctuation and footnote omitted).

       This case was originally filed in this court. We transferred it to the Supreme Court of Georgia as an equity case falling within its exclusive jurisdiction. The Supreme Court determined that “this appeal does not invoke [the] Court’s subject matter jurisdiction” and therefore returned the case to this court.

       For general propositions, Harmon cites Bunting v. McDonnell Aircraft Corp., 522 SW2d 161 (Mo. 1975). Inapposite, that case provides no persuasive authority for his assertion. Id. (concerning patent assigned in connection with terms of employment contract).

       See Whiten v. Murray, 267 Ga. App. 417-418, 420 (2) (599 SE2d 346) (2004) (implied trust arose in favor of plaintiff, where her ownership claim rested upon an enforceable agreement to purchase the real property); Padgett v. Collins, 89 Ga. App. 769, 776-778 (2) (81 SE2d 309) (1954) (constructive trust arose over automobile for the benefit of employer, where employer’s ownership claim stemmed from fact that the automobile was purchased with employer’s funds that were converted by terminated employee); Stimpson v. Rogers, 23 F. Cas. 105 (D. Conn. 1859) (concerning a patent obtained by executor for invention of the testator and noting that what executor did was in trust for those to whom such property is given by the will). Harmon also cites another inapposite case, Kennedy v. Wright, 676 FSupp. 888 (C.D. Ill. 1988) (where a company purchased in a bankruptcy proceedings “[a]ny and all patents or trademarks owned by” the bankrupt company, the purchasing company also obtained equitable title to patents held in the name of an individual who owned the company, which individual was determined to be the alter ego of the company and which individual treated the patents as if his business owned them).

        Pierce v. State, 251 Ga. App. 600, 605 (5) (554 SE2d 787) (2001) (footnote omitted).

       Supra.


author: MILLER, Presiding Judge.

text:
    A10A1632.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HALL.
    (709 SE2d 867)
   MILLER, Presiding Judge.

In September 2006, Linda W Hall was injured in an automobile accident and sued the other driver, Jose Manuel Vazquez. Following a trial, the trial court entered judgment on the jury’s verdict in the amount of $85,000, of which $49,174.93 compensated Hall for her medical expenses and $35,000 compensated her for her pain and suffering. Citing Dees v. Logan, 282 Ga. 815 (653 SE2d 735) (2007), Hall’s uninsured motorist (“UM”) carrier, State Farm Mutual Automobile Insurance Company (“State Farm”), appeals from the trial court’s denial of its motion for reduction of the jury verdict, arguing that it is entitled to setoff its pretrial payment of Hall’s medical expenses in the amount of $46,794.96 under the medical coverage term of Hall’s insurance policy against the remaining benefits available to her under the UM coverage — this in satisfaction of the trial court’s award of medical expenses. At the times relevant to this appeal, UM carriers were not permitted to setoff benefits received for personal injury from collateral sources, including, as here, the medical payments term of Hall’s policy. Accordingly, we conclude that the trial court properly denied State Farm’s motion for reduction of the jury’s verdict and affirm.

A trial court’s ruling on a motion to reduce verdict based on a question of law, as here, is reviewed de novo. When reviewing a trial court’s ruling on a legal question, we owe no deference to that court. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

The record shows that Vazquez’s insurer, GEICO, tendered the $25,000 limit of his policy before trial. The parties concede that the $25,000 paid by GEICO reduced Hall’s available UM coverage with State Farm from $100,000 to $75,000. At issue, is whether State Farm may reduce its contractual obligation to pay available UM benefits to Hall in light of its payment of her medical expenses in the amount of $46,794.96 under the medical payments coverage of her State Farm policy.

Before its amendment in 2008, OCGA § 33-7-11 (i) provided:

The endorsement or provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury or destruction of property of the insured for which he has been compensated by other property or physical damage insurance.

In 2007, the Supreme Court of Georgia held that

[t]he plain meaning of [the foregoing] subsection is that an uninsured motorist carrier can setoff benefits which its insured may have received to compensate for property loss. This being so, we must conclude that the legislature did not intend to authorize an insurer to setoff benefits received for personal injury. That is because when a statute expressly mentions one of many things, the omitted things must be regarded as having been deliberately excluded. Alexander Properties Group v. Doe, 280 Ga. 306, 309 (626 SE2d 497) (2006); C. Brown Trucking v. Rushing, 265 Ga. App. 676, 677 (595 SE2d 346) (2004).

(Emphasis supplied.) Dees, supra, 282 Ga. at 816. Further, our Supreme Court held that

[w]hen an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33-7-11, the policy provision is unenforceable and the statute controls. Hartford Accident & Indemnity Co. v. Booker, 140 Ga. App. 3, 4 (1) (230 SE2d 70) (1976). Exclusions in uninsured motorist endorsements cannot circumvent the clear mandate of the Georgia Uninsured Motorist Act by withholding the protection required. Rampley v. Doe, 179 Ga. App. 475, 476 (347 SE2d 255) (1986).

(Punctuation omitted.) Id. Since the UM policy provision in this case permits a setoff of State Farm’s payment of Hall’s medical expenses under the medical payments term of her policy, it conflicts with the plain mandate of OCGA § 33-7-11 (i), which, prior to 2008, did not authorize insurers to setoff benefits received for personal injury. It is well settled that to construe the 2008 amendment to OCGA § 33-7-11 (i) retroactively to avoid the foregoing result is impermissible. See London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 156-157 (1) (25 SE2d 60) (1943) (“Retrospective statutes are forbidden by the first principles of justice. . . . Retrospective laws which divest previously acquired rights on principle occupy the same position with ex post facto laws. Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.”) (citations and punctuation omitted.)

Additional support for the trial court’s refusal to reduce the verdict in this case is evident in the 2008 amendment to OCGA § 33-7-11 (i), supra, wherein the legislature authorized insurers to setoff compensation paid to injured insureds pursuant to medical payments coverage in addition to compensation paid to them under other workers’ compensation laws. Certainly, our legislature enacted the 2008 amendment to OCGA § 33-7-11 (i) with full knowledge of the reach of that subsection prior to its amendment. Dove v. Dove, 285 Ga. 647, 649 (4) (680 SE2d 839) (2009). It follows that the UM term in this case permitting a setoff for medical expenses paid Hall for personal injury under the medical payments coverage of her State Farm policy is void and unenforceable. London Guarantee, supra, 69 Ga. App. at 156-157 (1); Dove, supra, 285 Ga. at 649.

Decided March 28, 2011

Reconsideration denied April 14, 2011

Harper, Waldon & Craig, Russell D. Waldon, Hilliard V. Castilla, Kimberly A. McNamara, for appellant.

Killian & Boyd, Robert P. Killian, Brown, Readdick, Bumgartner & Carter, Garret W. Meader, for appellee.

Under the circumstances, therefore, the trial court did not err in denying State Farm’s motion for reduction of the jury’s verdict.

Judgment affirmed.

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

       OCGA § 33-7-11 (i) was amended in 2008 as follows:
      In addition to any offsets or reductions contained in the provisions of division (b)(l)(D)(ii) of this Code section, an endorsement or the provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury to or destruction of property of the insured for which such insured has been compensated by other property or physical damage insurance and may contain provisions which exclude any liability of the insurer for personal or bodily injury or death for which the insured has been compensated pursuant to “medical payments coverage, ” as such term is defined in paragraph (1) of Code Section 33-34-2, or compensated pursuant to workers’ compensation laws.

      (Emphasis supplied.) Ga. L. 2008, p. 1192, §§ 1, 2. The amendment applies to cases on and after January 1, 2009 and thus not to the instant case.

       Such provision provided “[a]ny expense paid or payable under the medical payments coverage will not be paid for again as damages under this coverage. This does not reduce the limits of liability of this coverage.”

       State Farm cites Johnson v. State Farm &c. Ins. Co., 216 Ga. App. 541 (455 SE2d 91) (1995), for the proposition that the nonduplication of benefits clause in this case as to medical payments coverage is enforceable. Significantly, however, in deciding Dees the Supreme Court of Georgia disapproved the ruling in Johnson and decided that insurers were not authorized to setoff benefits received for personal injury. Dees, supra, 282 Ga. at 816. By a comparison citation, Dees points to Orndorff v. Brown, 197 Ga. App. 591 (399 SE2d 77) (1990), for the proposition that the “collateral source rule does not require [an] insurer to pay. . . twice.” Dees, supra, 282 Ga. at 817. The Supreme Court does not expressly overrule Orndorff in citing it for purposes of comparison in Johnson. The Supreme Court, however, otherwise overrules cases predating the 2008 statutory amendment that hold that an uninsured policy provision may not permit a setoff for personal injury benefits. Simply stated, the Supreme Court held that the law as then applicable under OCGA § 33-7-11 (i) did not authorize insurers to setoff benefits received for personal injury. Dees, supra, 282 Ga. 816.


author: BARNES, Presiding Judge.

text:
    A10A1696.
    SHY v. THE STATE.
    (709 SE2d 869)
   BARNES, Presiding Judge.

Following his convictions for two counts of first degree vehicular homicide (reckless driving), reckless driving, failure to maintain lane, driving in the emergency lane, and driving with a suspended license, John Wesley Shy appeals from the denial of his motion for new trial, contending that the trial court erred in admitting similar transaction evidence, and that the evidence was insufficient to support his conviction for reckless driving. Upon our review, and discerning no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on September 24, 2005, at approximately 4:00 p.m., a group of fire and rescue firefighters from DeKalb County were traveling back from assignment in the Gulf Coast when they saw a traffic accident on 1-285 at Jonesboro Road. The firefighters stopped to assist until emergency officials could respond. Two of the people involved in the accident were obviously deceased. Another man, later identified as Shy, was still in the pickup truck that was apparently involved in the accident. The firefighters administered care to Shy until paramedics could arrive. An officer with the DeKalb Police Department responded to the scene of the traffic accident. When the officer arrived, “fire fighters . . . [were] rendering assistance to the driver of the red and white truck. And they had already covered the two deceased people on the scene there.” The victims were later identified as a husband and wife who were traveling in separate cars. The officer soon determined that the accident was within Atlanta’s jurisdiction, and notified Atlanta police.

When paramedics arrived shortly thereafter, Shy had been removed from his truck and was lying on the ground next to the driver’s side of his pickup truck. The paramedics immobilized him, placed him on a stretcher and loaded Shy into the ambulance. They noted that he had a small laceration on his lip, and could ascertain no other injuries, but out of concern for possible internal injuries “started two I.V’s. One was a normal saline and one with lactated ringers ... an electrolyte solution.” Once in the ambulance, the paramedic smelled “a strong smell” of alcohol on Shy’s breath and reported it to police when Shy was transported to Grady Hospital. When it was discovered that Shy did not have a driver’s license, an officer was dispatched to the hospital to detain Shy until police could investigate the accident scene. The officer also noticed the smell of alcohol on Shy’s breath, and after receiving direction from a superior officer, read Shy the implied consent warning. Shy consented, and his blood was drawn at 7:00 p.m. Shy told his treating doctor that he had been “drinking alcohol that day” and had struck another car. The test results were negative for the presence of alcohol.

There were no witnesses to the accident, but a police officer who specialized in accident reconstruction who was dispatched to the scene testified that based on his analysis of the accident scene, Shy was traveling northbound in the emergency lane of 1-285 when he sideswiped a Honda belonging to the husband that was parked in the grassy area to the right of the emergency lane. He then collided with the wife’s Grand Am that was parked a short distance ahead in the emergency lane, after which he hit the couple who had been standing near the car. They were lifted on the hood of the truck, which then traveled into the grassy area where it and the victims’ bodies were found. The officer calculated that Shy was traveling between 28 and 31 miles per hour when he struck the couple. There was “no evidence of braking, of a quick maneuver to the right or anything on the roadway lanes itself. It was all on the shoulder or emergency lane.”

Shy was charged with two counts of first degree vehicular homicide (DUI, alcohol), two counts of first degree vehicular homicide (DUI, alcohol and drugs), two counts of first degree vehicular homicide (reckless driving), one count of DUI (alcohol-less safe), and one count of DUI (less safe-alcohol and drugs). He was also charged with reckless driving, failure to maintain a lane, driving in the emergency lane, and driving with a suspended license. Following a jury trial, he was acquitted of the two counts of vehicular homicide (DUI), and DUI. He was found guilty of two counts of first degree vehicular homicide (reckless driving), reckless driving, failure to maintain a lane, driving in the emergency lane, and driving with a suspended license.

1. Shy first maintains that he was unfairly prejudiced by the admission of similar transaction evidence. He argues that the true purpose of the evidence of his four prior DUI convictions was to show his “general criminal character,” and that while the DUI convictions were similar to each other, they were not sufficiently similar to the charged offenses. We disagree.

Before evidence of independent acts may be admitted into evidence, the State must show that it seeks to introduce the evidence for an appropriate purpose; that there is sufficient evidence to establish that the accused committed the independent act; and that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). “ ‘[A] transaction does not have to mirror every detail in order to authorize its admission; rather, the proper focus is upon the similarities between the incidents and not upon the differences.’ [Cit.]” [Cit.] Where, as here, such evidence is admitted for the purpose of showing bent of mind, a lesser degree of similarity is required than if introduced to prove identity. [Cit.]

Collum v. State, 281 Ga. 719, 723 (4) (642 SE2d 640) (2007).

However, with regard to prior DUI convictions,

it is the simple act of driving while under the influence that establishes the commission of the crime. Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

(Citations, punctuation and footnote omitted.) Sanders v. State, 258 Ga. App. 16, 20 (4) (572 SE2d 712) (2002). See Shockley v. State, 256 Ga. App. 892, 896 (5) (570 SE2d 67) (2002) (in DUI case, “unlike crimes against persons or property which might occur under various factual circumstances, it is the simple act of driving while under the influence that establishes the commission of the crime ). This court has also previously held that where an accused is charged with reckless driving, test results showing his use of drugs are admissible because the reckless driving violation could have been precipitated by the drug usage. Nash v. State, 179 Ga. App. 702 (4) (347 SE2d 651) (1986), overruled on other grounds, Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (469 SE2d 22) (1996).

2. Shy also contends that the trial court’s charge on similar transaction evidence was overly broad and permitted the jury to consider the evidence for improper purposes. We do not agree.

Shy argues that the trial court erred in charging the jury, in relevant part, as follows:

Now ladies and gentlemen, this is the similar transaction charge you have heard. Sometimes evidence is admitted for a particular purpose. Such evidence may be considered by you, the jury, for the sole purpose for which the evidence is introduced and not for any other purpose. The law provides that evidence of other offenses of this defendant that are similar to the offense for which the defendant is on trial may be considered for the limited purpose of showing, if it does, the course of conduct and/or bent of mind in the crimes charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose.

We find no error, however, with the charge as given. The language at issue mirrors the language of the first paragraph of the charge on similar transaction evidence found in the Suggested Pattern Jury Instructions for Criminal Cases.

The language in the questioned charge does not expand the limited purposes for which similar transaction evidence can be used, but informs the jury that it could only consider the similar transaction evidence for the very limited purpose of showing “course of conduct” or “bent of mind” in the crimes charged. Contrary to Shy’s contention, it did not, as did the instruction we found to be erroneous in Rivers v. State, 236 Ga. App. 709, 710 (1) (513 SE2d 263) (1999), direct the jury that they could consider similar transaction evidence to show any “element of the offense charged in this indictment,” or otherwise expand its use for any improper purpose.

3. Shy enumerates as error that the trial court permitted prejudicial evidence of prior crimes to be admitted with State’s Exhibit 57, the certified copy of his 2002 conviction for DUI. He contends that the exhibit contained a document entitled “State’s Recommendation on Sentencing” which listed prior DUIs, other crimes, and other prejudicial information that should have been redacted. Shy did not object on this basis, but was only granted a continuing objection to having the similar transaction evidence admitted. Thus, this error was not preserved for appellate review. McDaniel v. State, 204 Ga. App. 753, 754 (1) (420 SE2d 636) (1992) (record reflects that appellant reviewed the exhibits prior to their submission to the jury and voiced no objection; thus, the issue was not preserved for our review).

Decided March 29, 2011

Reconsideration denied April 14, 2011.

Jones, Morrison & Womack, Wallace C. Clayton II, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Christopher M. Quinn, Assistant District Attorneys, for appellee.

4. Shy contends that the circumstantial evidence was insufficient to support his conviction for reckless driving. We disagree. Reckless driving occurs when a person drives a vehicle “in reckless disregard for the safety of persons or property.” OCGA § 40-6-390 (a). If the evidence is sufficient, whether a defendant’s manner of driving under the circumstances demonstrated a reckless disregard for the safety of others is a question that is reserved for the jury. Lesh v. State, 259 Ga. App. 325, 326-327 (577 SE2d 4) (2003). To sustain a conviction based solely on circumstantial evidence, “the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference beyond a reasonable doubt, of guilt.” (Punctuation and emphasis omitted.) Davis v. State, 187 Ga. App. 517, 521-522 (3) (370 SE2d 779) (1988).

Although Shy argues that there was no direct evidence of his manner of driving, and that the circumstantial evidence supported a separate hypothesis that he had lost consciousness because of heat exhaustion and dehydration before the accident, the jury considered the testimony regarding this alternative theory and obviously rejected it.

We conclude the evidence was sufficient for the jury to find beyond a reasonable doubt that Shy was driving his truck in a manner exhibiting a reckless disregard for the safety of others. OCGA §§ 40-6-393 (a); 40-6-390 (a). See Shadix v. State, 179 Ga. App. 644, 645 (3) (347 SE2d 298) (1986).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       At the close of the evidence the State nolle prosequi the two counts of first degree vehicular homicide (drugs and alcohol), and the DUI (drugs and alcohol) charge. The trial court noted for the record that it would have directed a verdict on those counts had they not been nol-prossed.