author: Dillard, Judge.

text:
    A14A0929.
    PARK et al. v. BAILEY.
    (765 SE2d 721)
   Dillard, Judge.

Jana and Derek Park filed a petition in the Superior Court of Tattnall County to adopt C. M. shortly after his birth and, pursuant to that petition, moved to terminate the parental rights of C. M.’s biological father, Tracy Bailey. Following a hearing, the trial court denied the Parks’ motion to terminate Bailey’s parental rights and ultimately denied their adoption petition. The Parks appeal, arguing that the trial court erred in ruling that Bailey substantially complied with the requirements under Georgia law for legitimating C. M. by establishing paternity under the law of Bailey’s home state of Alabama. For the reasons set forth infra, we affirm.

The record shows that in late 2009, Bailey, a resident of Alabama, and Melissa Mayo, a resident of Georgia, began dating while Mayo was attending Samford University in Birmingham, Alabama. Within a month, their relationship became exclusive, and nearly one year later, in November 2011, Mayo learned that she was pregnant. Initially, both Bailey and Mayo wanted to keep the child, but after the couple visited Mayo’s parents in Georgia a few weeks after learning she was pregnant, Mayo decided that she wanted to place the child for adoption. Bailey objected and maintained that he wanted to be a father. This disagreement ultimately ended the couple’s relationship, at which point Mayo moved back to Georgia.

Over the course of the next few months, Bailey frequently called or sent text messages to Mayo in an effort to keep apprised of her and his unborn child’s health. However, Mayo expressed to Bailey that she was hesitant to involve him in the pregnancy given his objection to placing the child for adoption. Nevertheless, Bailey maintained his objection, and in July 2012, when a counselor with an adoption agency in Georgia (Bethany Christian Services, Inc.) contacted him on Mayo’s behalf to discuss obtaining his consent, Bailey informed the counselor, in no uncertain terms, that he would not consent to the adoption and that any further attempts at communication should be made through his legal counsel. And following this incident, Mayo ceased all contact with Bailey despite his continued efforts to inquire about his unborn child’s status.

On July 6, 2012, Bailey filed a notice of intent to claim paternity as to his unborn child in the District Court of Chilton County, Alabama, and served Mayo with a copy of the notice shortly thereafter. A few weeks later, Mayo filed a notice of limited appearance and motion to dismiss, alleging lack of jurisdiction. In addition, Mayo filed a motion requesting that any hearing on the matter be continued until September. The district court granted the continuance, scheduling a hearing for September 21, 2012.

Meanwhile, Bailey continued his attempts to maintain contact with Mayo, but she refused to respond to any of his inquiries. Eventually, Mayo’s counsel in Alabama informed Bailey’s counsel that all future inquiries should be directed to Mayo’s Georgia counsel and that any further attempts at direct communication would be viewed as harassment. Thereafter, Bailey’s counsel requested the contact information for Mayo’s Georgia counsel, but his request went unanswered for quite some time. In fact, although Mayo and Bailey’s son, C. M., was born on August 31, 2012, Bailey received no information about the birth of his child until nearly two weeks later. And almost immediately after C. M.’s birth, the adoption agency placed C. M. with the Parks, despite its knowledge that Bailey opposed any such adoption.

On September 5,2012, the Parks filed a petition for the adoption of C. M. in the Superior Court of Tatnall County, Georgia, and Bailey received notice of the petition approximately one week later. In that notice, the Parks acknowledged Bailey as C. M.’s biological father and informed him that Mayo had surrendered her parental rights to the child. This petition notwithstanding, on September 21, 2012, the Chilton County Alabama District Court held its previously scheduled hearing on Bailey’s notice of intent to claim paternity. And although Mayo did not attend the hearing, her Alabama counsel stated that Mayo’s Georgia counsel, again, acknowledged that Bailey was the biological father of C. M. and that the child was conceived in Alabama. Consequently, on September 25,2012, the district court issued an order declaring Bailey as C. M.’s natural father “with all the rights, duties and obligations associated with being said child’s natural father.” Mayo did not appeal this order.

On October 5, 2012, Bailey filed a motion to intervene in the adoption proceeding in the Tattnall County Superior Court, which that court granted. In that same court, Bailey also filed a petition for custody of C. M. and to domesticate the Alabama order, in which he included the order of the Chilton County District Court establishing his paternity; and he later added Mayo as a party to this action. Shortly thereafter, Bailey filed an objection to the adoption, in which he again asserted that he was the biological and legal father of C. M. The Parks then moved to vacate the order granting Bailey the right to intervene in the adoption proceeding, and on November 14, 2012, the court held a hearing on the matter, which concluded with the court ruling that the Chilton County District Court’s paternity order was substantially equivalent to a Georgia legitimation order such that Bailey had not lost his right to contest the adoption.

Approximately one month later, the Parks filed a motion to terminate Bailey’s parental rights pursuant to the adoption petition. Bailey filed a response, and on January 9, 2013, the court held a hearing on the issue, during which Bailey testified regarding his numerous attempts to assist Mayo during her pregnancy and to keep apprised as to her and his unborn child’s health. At the conclusion of the hearing, the court denied the Parks’ petition to terminate Bailey’s parental rights and their motion to vacate the intervention order, issuing an order to that effect on January 31, 2013.

The Parks subsequently sought a direct appeal, which we dismissed as premature because the adoption proceeding was still pending and they failed to follow the interlocutory appeal procedures under OCGA § 5-6-34 (b). Then, on December 11,2013, the trial court issued a final order denying the Parks’ adoption petition. This direct appeal follows.

At the outset, we note that in an adoption case, “the trial judge sits as both judge and jury and is vested with a broad range of legal discretion.” Furthermore, on appeal, we construe the evidence to “uphold the trial court’s findings and judgment and affirm if there is any evidence to support the findings.” However, as to questions of law, we apply a de novo standard of review. With these guiding principles in mind, we turn now to the Parks’ specific claims of error.

1. The Parks contend that the trial court erred in ruling that Bailey substantially complied with the requirements under Georgia law for legitimating C. M. when he established paternity under Alabama law. Specifically, the Parks contend in two separate enumerations that the court erred in ruling that Bailey’s pleadings in this matter substantially complied with Georgia law and in equating the Alabama paternity order with a Georgia legitimation order. Nevertheless, because those two issues are inextricably intertwined, we will address them together. And in doing so, we find that the trial court did not err.

Under OCGA § 19-8-12 (b), a biological father whose identity is known must be notified regarding adoption proceedings being held in this state. Moreover, OCGA § 19-8-12 (e) provides:

When notice is to be given pursuant to subsection (b) of this Code section, it shall advise such biological father who is not the legal father that he loses all rights to the child and will neither receive notice nor be entitled to object to the adoption of the child unless, within 30 days of receipt of such notice, he files: (1) Apetition to legitimate the child pursuant to Code Section 19-7-22 or an acknowledgment of legitimation pursuant to Code Section 19-7-21.1; and (2) Notice ofthe filing of the petition to legitimate or acknowledgment of legitimation with the court in which the action under this Code section, if any, is pending and to the person who provided such notice to such biological father.

Here, it is undisputed that Bailey did not file a legitimation petition in the Tattnall County Superior Court specifically pursuant to OCGA § 19-7-22. But contrary to the Parks’ contention, that did not end the trial court’s inquiry, nor does it end ours. Indeed, it is well established that “pleadings are to be construed according to their substance and function and not merely as to their nomenclature, being always mindful to construe such documents in a manner compatible with the best interest of justice.” Accordingly, we must determine whether Bailey’s successful action to claim paternity in an Alabama court, and subsequent filing of that order with his pleadings in the Tattnall County Superior Court proceedings, constituted substantial compliance with the relevant Georgia law. And toward that end, we turn first to the relevant Alabama law.

The Chilton County District Court could (and did) properly exercise jurisdiction over Mayo pursuant to Alabama Code § 30-3A-201 (6), and, thus, Bailey filed his notice of intent to claim paternity under Alabama Code § 26-10C-1 (c), which provides:

A person filing a notice of intent to claim paternity of a child or an acknowledgment of paternity shall include all of the following: (1) The father’s name, Social Security number, date of birth, and current address. (2) The mother’s name, including all other names known to the putative father that have been used by the mother, Social Security number, date of birth, and address, if known. (3) The father’s current income and financial information by attaching a child support obligation income statement/affidavit form to be prescribed by regulations of the department. (4) The child’s name and place of birth, if known. (5) The possible date or dates of sexual intercourse.

This same code section further provides that “[t]he putative father may file his notice of intent to claim paternity prior to the birth of the child.” Furthermore,

[a]ny person who claims to be the natural father of a child and fails to file his notice of intent to claim paternity pursuant to subsection (a) prior to or within 30 days of the birth of a child born out of wedlock, shall be deemed to have given an irrevocable implied consent in any adoption proceeding. This subsection shall be the exclusive procedure available for any person who claims to be the natural father of a child born out of wedlock on or after January 1,1997, to entitle that person to notice of and the opportunity to contest any adoption proceeding filed and pending on or after January 1, 1997.

Given this language, there is no doubt that the statute has two purposes: “protecting the rights of responsible fathers and facilitating speedy adoptions of children whose fathers do not wish to assume parental responsibility.”

As previously noted, following a hearing, the Chilton County District Court found that Bailey complied with the requirements of Alabama Code § 26-IOC-1 and declared him to be C. M.’s “natural father” with “all the rights, duties and obligations associated with being said child’s natural father.” Thus, under Alabama law, Bailey was, at the very least, the putative father of C. M. And under Alabama law, even a putative father has “the right to veto the adoption of his biological child when two circumstances are present: (1) the court is made aware of the identity of the putative father, and (2) the putative father, having received notice of the proposed adoption, responds to the notice within 30 days.” Here, Bailey met both requirements. In fact, Bailey did more than this: He obtained a judicial determination of paternity as to C. M., and in doing so, effectively legitimated the child under Alabama law.

Given the foregoing circumstances, Bailey had every right to contest C. M.’s adoption under Alabama law. And we agree with the trial court that when Bailey filed his pleadings in the proceedings here in Georgia within 30 days of the Parks filing their adoption petition, included a copy of the Chilton County District Court’s adjudication of paternity, and ultimately added Mayo as a party, he substantially complied with the requirement of OCGA § 19-8-12 (e) that he legitimate C. M. Indeed, in complying with Alabama Code § 26-10C-1, Bailey arguably provided more information — such as his ability to provide support — than what OCGA § 19-7-22 requires for legitimation. And under OCGA § 1-3-1, “substantial compliance with any statutory requirement . . . shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” Furthermore, applying this statutory directive here is especially appropriate “because there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring [and] [termination of that right can be done by the court only under the most carefully controlled and regulated circumstances.”

To be sure, the Parks are correct in noting that “[b]iology is not destiny, and a man has no absolute right to the grant of his petition to legitimate a child simply because he is the biological father.” But we have repeatedly held that public policy is not advanced by “the disestablishment of legitimacy and paternity.” And furthermore, any characterization of Bailey’s efforts in this matter as simply claiming that his biological connection to C. M. trumps all is disingenuous to say the least. In fact, the record shows that from the moment Bailey learned of Mayo’s pregnancy, he made every effort to be a father in every sense that term entails. Accordingly, in light of the fundamental constitutional right at stake and Bailey’s substantial compliance with OCGA § 19-8-12 (e), we conclude that the trial court did not err in denying the Parks’ motion to terminate Bailey’s parental rights and their adoption petition.

2. The Parks also contend that the trial court erred in finding that Bailey properly domesticated the Chilton County District Court’s paternity order. Again, we disagree.

Pursuant to Article 4, Section 1 of the United States Constitution, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” And in Georgia, it is well established that “[u]nder the full faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by the courts of this state.” In fact, the judgment may be attacked only if “the foreign court lacked jurisdiction over the person of the defendant or of the subject matter of the action, or if the judgment was procured by fraud.”

Here, it is undisputed that Bailey included the Chilton County District Court’s order adjudicating his paternity with the pleadings he filed in the Tattnall County Superior Court, and there has been no claim that this order is inauthentic. And although the Parks claim that the Alabama court did not have jurisdiction to issue its order, as previously noted, that court properly exercised jurisdiction over Mayo pursuant to Ala. Code § 30-3A-201 (6), which provides that “[i]n a proceeding to . . . determine parentage, a court of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if... the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse.” Accordingly, the trial court did not err in relying upon the Alabama court’s paternity order.

For all of the foregoing reasons, the trial court’s order is affirmed.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

Decided November 13, 2014.

Hester Outman, Jerrold W. Hester, James B. Outman, Justin Y. Hester, Dubberly & McGovern, Joseph D. McGovern, for appellants.

Stafford Law Group, April R. Stafford, Leslie H. Cushner, for appellee.

Sherriann H. Hicks, amicus curiae.

        Albright v. Peterson, 247 Ga. App. 203, 204 (2) (539 SE2d 919) (2000) (punctuation omitted).

         Id.

        Snyder v. Carter, 276 Ga. App. 426, 426 (623 SE2d 241) (2005).

        See OCGA § 19-8-12 (b) (1) (“If there is a biological father who is not the legal father of a child and he has not executed a surrender ... he shall be notified of adoption proceedings regarding the child in the following circumstances... [i]f his identity is known to the petitioner, department, or licensed child-placing agency or to the attorney for the petitioner, department, or licensed child-placing agency. . . .”).

        In the Interest of M. D., 293 Ga. App. 700, 702 (667 SE2d 693) (2008) (punctuation omitted); accord In re M. C. J., 271 Ga. 546, 548 (523 SE2d 6) (1999).

        See, e.g., Brewton v. Poss, 316 Ga. App. 704, 706-07 (728 SE2d 837) (2012) (holding that biological father’s legitimation petition complied with the substance of the legitimation statute, and thus trial court abused its discretion in quashing biological father’s petition).

        See Ala. Code § 30-3A-201 (6) (“In a proceeding to establish, enforce, or modify a support order or to determine parentage, a court of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if... the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse . . . .”).

       Ala. Code § 26-10C-1 (c).

       Ala. Code § 26-10C-1 (i).

        Ex parte S. C. W., 826 So2d 844, 851 (Ala. 2001) (punctuation omitted).

        See J. L. P. v. L. A. M., 41 So3d 770, 771 (Ala. Civ. App. 2008) (discussing the distinction in Alabama law between putative and presumed fathers and noting that both may object to adoptions).

        Ex parte S. C. W., 826 So2d at 848 (punctuation omitted); see also Ala. Code § 26-10A-7 (a) (5).

        See Abrams v. Wheeler, 468 So2d 126, 128 (Ala. 1985) (noting that “judgment of paternity serves the same state purpose as legitimation in establishing the right to intestate succession”); see also Ala. Code § 43-8-48 (2) (b) (“If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person[,]” a child born out of wedlock is the child of the father if “[t]he paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof____”); Clemons v. Howard, 124 So3d 738, 745-46 (Ala. Civ. App. 2013) (discussing the two statutory schemes for judicial determination of paternity under Alabama law).

       The trial court did not abuse its discretion in allowing Bailey to add Mayo as a party in these proceedings outside of the 30-day deadline in OCGA § 19-8-12 (e). See Brewton, 316 Ga. App. at 707 n.ll (holding that father’s failure to complete service on the mother within the 30-day deadline in OCGA § 19-8-12 (e) was not fatal).

        See Brewton, 316 Ga. App. at 707 (holding that trial court erred in denying father’s legitimation petition given father’s substantial compliance with statute).

        See OCGA § 19-7-22 (b) (“The petition shall set forth the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name. If the mother is alive, she shall be named as a party and shall be served and provided an opportunity to be heard as in other civil actions under Chapter 11 of Title 9, the ‘Georgia Civil Practice Act.’ ”).

       OCGA § 1-3-1 (c).

        Brewton, 316 Ga. App. at 707 (punctuation omitted); see also Nix v. Dep’t of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976) (“There can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to [his or her] offspring.”).

        LaBrec v. Davis, 243 Ga. App. 307, 314 (2) (534 SE2d 84) (2000) (punctuation omitted).

        Id. (punctuation omitted); see Grice v. Detwiler, 227 Ga. App. 280, 283 (488 SE2d 755) (1997) (“It is clear from our examination of the legitimation and paternity statutes that the primary purpose of these statutes is to provide for the establishment rather than the disestablishment of legitimacy and paternity.. . .” (punctuation omitted)).

        See Lehr v. Robertson, 463 U. S. 248, 261 (103 SCt 2985, 77 LE2d 614) (1983) (“When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he acts as a father toward his children.”) (citations and punctuation omitted).

        See Brewton, 316 Ga. App. at 707 (holding that trial court erred in denying father’s legitimation petition given father’s substantial compliance with statute).

        See U. S. Const, art. IV, § 1.

        Gordon v. Gordon, 237 Ga. 171, 171 (1) (227 SE2d 53) (1976); see former OCGA § 24-7-24 (a) (1), (2) (“The records and judicial proceedings, or copies thereof, of any court of any such state, territory, or possession... so authenticated, shall have the same full faith and credit in every court within this state as they have by law or usage in the courts of such state, territory, or possession from which they are taken.”), repealed by Ga. Laws 2011, p. 99, § 2. This action was commenced in 2012, and therefore the former law still applied at the time that Bailey sought to domesticate the Alabama order. However, the hearing on the Parks’ motion to terminate Bailey’s parental rights was held on January 9, 2013. Thus, OCGA § 24-9-922 was then applicable. See Ga. Laws 2011, p. 99, § 101. Regardless, the new law contains language that closely tracks the former law. See OCGA § 24-9-922 (“The acts of the legislature of any other state, territory, or possession of the United States, the records and judicial proceedings of any court of any such state, territory, or possession, and the nonjudicial records or books kept in the public offices in any such state, territory, or possession, if properly authenticated, shall have the same full faith and credit in every court within this state as they have by law or usage in the courts of such state, territory, or possession from which they are taken.”).

        Green Certified Energy Prof’ls, Inc. v. Insulation Distribs., Inc., 327 Ga. App. 468, 469 (759 SE2d 554) (2014) (punctuation omitted).


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A14A1093.
    YELLOW CREEK INVESTMENTS, LLC et al. v. MULTIBANK 2009-1 CRE VENTURE, LLC.
    (765 SE2d 728)
   McFADDEN, Judge.

This is an appeal from the confirmation of a foreclosure sale. The debtors and guarantors maintain that the sale should not have been confirmed and therefore that they should not be liable for any deficiency of the sale price to satisfy the secured debt.

The present case is the second confirmation proceeding arising out of the foreclosure at issue. In 2011, Multibank 2009-1 CRE Venture, LLC (“Multibank”) unsuccessfully sought to confirm a foreclosure sale of property securing a loan evidenced by a promissory note executed by Yellow Creek Investments, LLC and guarantied by two individuals (collectively, ‘Yellow Creek”). The trial court instead ordered a resale of the property, which Multibank conducted in early 2013, resulting in the sale of the property to its wholly-owned subsidiary, MB REO-GA Land, LLC. The trial court confirmed the 2013 sale, and Yellow Creek appeals.

Yellow Creek argues that Multibank lacked title to the property at the time of the 2013 sale because the trial court did not rescind the 2011 sale, but the trial court’s resale order had the effect of setting aside the 2011 sale and Yellow Creek’s challenge to Multibank’s title falls outside the ambit of a confirmation proceeding. Yellow Creek argues that Multibank’s advertisement of the 2013 sale was defective as a matter of law because its description of the property did not match the legal description in the deed to secure debt, but we find that the evidence authorized the trial court to find the advertisement’s description was sufficient. Finally, Yellow Creek argues that Multibank did not show that it consummated its sale of the property to MB REO-GALand, but the evidence authorized the trial court to find that the sale was consummated. Accordingly, we affirm.

In ruling on a confirmation petition, a trial court “is required not only to determine whether the property sold brought its true market value but also to pass upon the legality of the notice, advertisement, and regularity of the sale.” Martin v. Fed. Land Bank of Columbia, 173 Ga. App. 142 (325 SE2d 787) (1984) (citations and punctuation omitted); see OCGA § 44-14-161. “The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. We apply a de novo standard of review to any questions of law decided by the trial court.” Citizens Bank of Effingham v. Rocky Mountain Enterprises, 308 Ga. App. 600, 601 (708 SE2d 557) (2011) (citations and punctuation omitted).

So viewed, the record shows that in 2011, Multibank (the successor to original lender Magnet Bank) initiated foreclosure proceedings on two tracts of property after Yellow Creek defaulted on its obligations under a promissory note and guaranties. After selling the property at foreclosure to MB REO-GA Land, Multibank sought confirmation of the sale. Errors were identified in the legal description of the property found in the deed to secure debt from Yellow Creek to Magnet Bank; the deed’s legal description omitted a land lot reference and did not match the metes and bounds survey of the property in other respects. Yellow Creek argued that these errors invalidated the foreclosure sale, but the trial court did not agree, instead finding that “[n]o evidence has been introduced that the errors in the legal description were discovered prior to the sale or that the errors affected the bidding,” and concluding that the “foreclosure procedures complied with the legal requirements as to notice, advertisement and regularity of the sale.” Nevertheless, the trial court was persuaded by Yellow Creek’s expert appraisal witness that the property’s true market value was higher than what it had brought at foreclosure and, accordingly, denied confirmation. The trial court also ordered that the property be resold.

Accordingly, in January 2013 Multibank advertised a second foreclosure sale of the property, this time using a description that corrected the errors previously identified in the deed to secure debt’s legal description. Multibank also stated in the advertisement that it would provide the purchaser at foreclosure a title insurance policy on the property. MB REO-GA Land again purchased the property at foreclosure. Subsequently, Multibank applied the foreclosure purchase price to the amount Yellow Creek owed under the promissory note, thereby reducing that amount.

Multibank again sought confirmation. In response, Yellow Creek argued, among other things, that Multibank did not have title to the property at the time of the 2013 foreclosure sale; that the advertisements of the second sale inadequately described the property because they did not match the legal description found in the deed to secure debt; and that Multibank had not shown that the foreclosure sale was consummated because it did not present evidence of the transfer of consideration from MB REO-GALand to Multibank. After an evidentiary hearing, the trial court confirmed the second foreclosure sale. Yellow Creek appeals.

1. Title to the property.

Yellow Creek argues that the trial court erred in confirming the 2013 sale on the ground that “the subject foreclosure sale was invalid because, as of the date of that sale (February 5, 2013), [Multibank] had already transferred title to the Property through a recorded Deed Under Power [related to the first foreclosure sale] that had not been rescinded.” We are not persuaded.

OCGA § 44-14-161 (c) permitted the trial court to “order a resale of the property for good cause shown.” The trial court’s order required Multibank to resell the property. See Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233 (1) (230 SE2d 324) (1976). The resale order also had the effect of setting aside the 2011 sale. See Frank S. Alexander, Ga. Real Estate Finance and Foreclosure Law, § 9:5 (2014) (“A denial of confirmation which is accompanied with an order of resale is itself an order setting aside the foreclosure.”) (citations omitted). Accordingly, that order, “denying confirmation and setting aside the foreclosure sale[,] return[ed] the parties to the position they occupied prior to the sale.” Id. (citations omitted). Although Yellow Creek questions the fairness of this procedure in cases involving a third-party purchaser, this court has recognized that “the purchaser at public outcry, whether a party to the debt, or a third person, bids at the sale with full knowledge of’ the possibility that the trial court will order a resale in connection with a subsequent confirmation proceeding. Davie v. Sheffield, 123 Ga. App. 228, 230 (180 SE2d 263) (1971). See generally Homes of Tomorrow v. Fed. Deposit Ins. Corp., 149 Ga. App. 321, 323 (3) (254 SE2d 475) (1979) (issue of and potential for resale is part of every confirmation case).

Moreover, Yellow Creek’s challenge to Multibank’s title to the property at the time of the 2013 sale

falls outside the ambit of OCGA § 44-14-161. Confirmation proceedings brought under OCGA § 44-14-161 do not adjudicate title. And even if title of the property was not clear on the date of the [second foreclosure] sale, [Yellow Creek] has not shown that, under the circumstances of this case, a cloud of title adversely affected any protection afforded [them] as debtor[s] under OCGA § 44-14-161.

Friedman v. Regions Bank, 288 Ga. App. 57, 58-59 (653 SE2d 507) (2007) (citations omitted). Accordingly, this claim of error provides no ground for reversal.

2. Sufficiency of property description in advertisement.

Yellow Creek argues that the trial court erred in confirming the 2013 sale because the corrected property description in Multibank’s sale advertisement did not match the incorrect legal description in the deed to secure debt. We disagree.

“A nonjudicial foreclosure sale must be advertised in the same manner as a judicial foreclosure sale. OCGA § 44-14-162 (a). That manner is set forth in OCGA §§ 9-13-140 (a) and 9-13-141 [.]” Nexgen Cumming, LLC v. State Bank & Trust Co., 313 Ga. App. 715, 716 (722 SE2d 428) (2012). “OCGA § 9-13-140 (a).. . requires that the advertisement include a full and complete description of the property to be sold____In the case of real property, such advertisement shall include the legal description of such real property!.]” Dan Woodley Communities v. SunTrust Bank, 310 Ga. App. 656 (714 SE2d 145) (2011) (punctuation omitted). The requirements prescribed in OCGA § 9-13-140 (a) are the “minimum legal requirements of a foreclosure advertisement..., and only a failure to properly include those items will render the advertisement defective as a matter of law.” Southeast Timberlands v. Security Nat. Bank, 220 Ga. App. 359, 360 (1) (469 SE2d 454) (1996) (citation omitted; emphasis supplied).

If a foreclosure advertisement is not defective as a matter of law, defects in it will prevent confirmation only if the fact-finder determines those defects chilled bidding and caused an inadequate selling price. A primary object of the advertisement is to attract buyers who will compete against one another so as to yield the highest price; its contents are important to the process. Thus, errors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained.

Dan Woodley Communities, 310 Ga. App. at 657 (citation and punctuation omitted).

There was evidence at the confirmation hearing that advertisement for the 2013 sale contained a correct legal description of the property. Accordingly, the trial court was authorized to find that the advertisement met the minimum legal requirements prescribed by OCGA § 9-13-140 (a). See Collier v. Vason, 12 Ga. 440, 443 (1853) (requirement that advertisement contain full and complete description of property can be met by description “by which the public may readily understand what particular property is embraced in the advertisement,” considering the particular characteristics of that property, and whether description met requirement was question of fact for factfinder) (emphasis omitted). We find no merit in Yellow Creek’s argument that our decision in Diplomat Constr. v. State Bank of Texas, 314 Ga. App. 889 (726 SE2d 140) (2012), renders an advertisement containing a correct legal description defective as a matter of law if that correct description does not match the description found in the deed to secure debt. Instead, Diplomat Constr. stands for the proposition that an advertisement containing an incorrect legal description nevertheless meets the requirements of OCGA § 9-13-140 (a) if the description matches that found in the deed to secure debt. Diplomat Constr., 314 Ga. App. at 894-895 (3). Moreover, in Shantha v. West Ga. Nat. Bank, 145 Ga. App. 712, 713 (244 SE2d 643) (1978), we held that a foreclosure advertisement’s property description, which corrected “misdescriptions in the warranty deed and loan deed,” was “fully adequate.”

There also was evidence that the discrepancies between the incorrect description in the deed to secure debt and the correct description in the advertisement did not chill the bidding. Multibank’s expert witness testified that the discrepancies were minor, the advertisement informed potential bidders that Multibank would provide a title insurance policy covering any title concerns related to the discrepancies, and parties other than MB REO-GA Land (the eventual purchaser) were present at the sale. See Oates v. Sea Island Bank, 172 Ga. App. 178, 179 (2) (a) (322 SE2d 291) (1984) (evidence supported trial court’s finding that incorrect plat book number in legal description in advertisement did not have chilling effect on sale, where there was evidence that parties other than bank were present at sale, appraisal witness had no trouble locating property using description in advertisement, and appellant presented no evidence to support contention of chilling effect). The trial court was not required to deny confirmation on account of the legal description used in the advertisement for the 2013 sale. See Shantha, 145 Ga. App. at 714.

3. Transfer of consideration.

Yellow Creek argues that the trial court erred in confirming the foreclosure sale because Multibank failed to show the transfer of consideration required to consummate the sale. See Tampa Investment Group v. Branch Banking & Trust Co., 290 Ga. 724, 727 (1) (723 SE2d 674) (2012) (“Until a deed under power is transferred and consideration is passed, the sale itself has not occurred; there is only a contract to buy and sell.”) (citations and punctuation omitted).

Decided November 13, 2014

Eric S. Chofnas, for appellants.

Morris, Manning & Martin, Jason P. Wright, for appellee.

The evidence supported the trial court’s determination that the sale had been consummated. There was no dispute that Multibank conveyed the property to the buyer, its wholly-owned subsidiary MB REO-GALand, through a deed under power that was recorded. And the fact that Multibank reduced Yellow Creek’s debt by the sale amount permitted the inference that Multibank had received consideration in that amount. Given these facts, we disagree with Yellow Creek that Multibank was required to show more specific details about the transfer of consideration in order to prove that the sale had been consummated. Cf. Adcock v. Berry, 194 Ga. 243 (1) (21 SE2d 605) (1942) (foreclosure sale was not invalidated by subsequent arrangement between seller and highest bidder whereby seller accepted bidder’s note in lieu of cash but was accountable for the note as cash in settling with debtor).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: Miller, Judge.

text:
    A14A1113.
    THE STATE v. SHELTON.
    (765 SE2d 732)
   Miller, Judge.

Following a jury trial, Fredrick Leon Shelton, Sr., was convicted ofpossession of cocaine (OCGA § 16-13-30 (a)), two counts of obstructing an officer (OCGA § 16-10-24 (a)), and a sound violation (OCGA § 40-6-14 (a)). The trial court granted Shelton’s motion for new trial, finding that trial counsel was ineffective for failing to file a motion to suppress, properly investigate the case, interview and call witnesses on Shelton’s behalf at trial, and object to the admission of evidence. The State appeals, contending that the trial court erred in finding that trial counsel was ineffective. For the reasons that follow, we reverse.

The first grant of a new trial on the general grounds will ordinarily not be disturbed by the appellate court absent an abuse of discretion in that the evidence demanded the verdict rendered. However, the first grant of a new trial on special grounds involving a question of law is reviewable in a proper appeal. We review such a question of law de novo and reverse if the trial court committed legal error.

(Citations and punctuation omitted.) O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009). In this case, the motion for new trial was granted on special grounds, namely that trial counsel’s deficiencies were so serious that they deprived Shelton of his Sixth Amendment right to effective assistance of counsel. The determination of whether Shelton received effective assistance of counsel, however, involves a mixed question of law and fact, which requires this Court to employ two different standards of review. Accordingly, we review de novo the trial court’s decision as to any questions of law, while applying the clearly erroneous standard of review to the trial court’s factual findings and credibility determinations. Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000); State v. Wakefield, 324 Ga. App. 587, 587-588 (751 SE2d 199) (2013).

So viewed, the record shows that on March 16, 2012, around 7:00 p.m., Corporal Manning of the Camilla Police Department was sitting in his patrol car with the windows down at the intersection of North Butler and Marietta Street in Camilla, Georgia. Corporal Manning heard loud music coming from Shelton’s blue Chevrolet Impala from at least 100 feet away. Corporal Manning noticed that the music got louder as the Impala approached the intersection.

Corporal Manning stopped the Impala based on the loud noise, and advised Shelton of the reason for the stop. Upon receiving Shelton’s license and registration, Corporal Manning returned to his patrol car to conduct a status check on those items. Around the time that Corporal Manning finished running Shelton’s driver’s license and registration, Lieutenant Davis arrived to assist with the traffic stop. Corporal Manning then checked the tint on the Impala’s dark windows. Corporal Manning determined that the windows were in compliance with Georgia law, noticed that Shelton’s hands were a little shaky and then asked Shelton if he had any marijuana, crack cocaine or large sums of cash inside the vehicle. Shelton responded by pulling out his wallet and stating, “this is all I have.”

Corporal Manning then asked Shelton for consent to search the vehicle, and Shelton verbally consented. Corporal Manning asked Shelton to exit and place his hands on the vehicle. Another backup officer, Captain Adkins, arrived just as Shelton was exiting the vehicle. Corporal Manning, who was standing behind Shelton, conducted a weapons pat-down of Shelton and felt a bulge in his right pocket. Corporal Manning asked Shelton what he had in his pocket and Shelton responded by taking his hand off of the car and trying to reach into his pocket. When Lieutenant Davis grabbed Shelton’s wrist and put Shelton’s hand back on top of the car, Shelton tried to snatch his hand away and reach for his pocket.

Corporal Manning brought Shelton’s hand back up and tried to secure Shelton’s hands to make sure that he was not going for a weapon. Shelton then reached back down, and Lieutenant Davis was able to grab one of Shelton’s hands. When Lieutenant Davis attempted to handcuff Shelton, he began to fight and physically resist all three officers.

Shelton continued to resist when Lieutenant Davis and Captain Adkins tried to take Shelton to the ground, so Corporal Manning deployed his taser to the center of Shelton’s back. Shelton fell to the ground on his stomach, but he continued to struggle with the officers and again tried to reach into his pocket, so Corporal Manning tasered him again. Shelton reached back and tried to grab the taser, so Corporal Manning tasered Shelton several more times, until Shelton stopped struggling and the officers were able to handcuff him. Corporal Manning then secured Shelton in his patrol car.

Once Shelton was finally restrained, the officers removed a small cloth bag containing air freshener from his pocket. The officers searched Shelton’s vehicle before turning the vehicle over to a towing service. In the vehicle, the officers found a set of digital scales containing a white powdery substance under the driver’s seat of the vehicle and an unopened box of sandwich bags in the vehicle’s trunk. While searching the vehicle, the officers also found an open pack of rolling papers, a cigar and a ziplock baggie containing a razor blade that had a white powdery substance on it. Following Shelton’s arrest, $507 in cash in small denominations was found on his person.

Lieutenant Davis retrieved the set of digital scales from the vehicle, and Corporal Manning placed it in an evidence bag and initialed the bag. Corporal Manning subsequently placed the sealed bag in the evidence locker at the Camilla Police Department.

At trial, Investigator Connell testified as a drug investigations expert. Investigator Connell stated that he retrieved the sealed bag containing the digital scales from the evidence locker and took it to the Moultrie crime lab. Investigator Connell further stated that the baggies, the rolling papers, the razor blade and the digital scales were all items that are used in the sale of drugs. Investigator Connell also opined that the small denominations of cash found on Shelton’s person indicated street level drug dealing.

Tara Weinreich, a forensic chemistry expert with the Georgia Bureau of Investigation, also testified at trial. Weinreich stated that she retrieved the sealed bag containing the digital scales, which was delivered to the crime lab. Weinreich testified that the white powder residue found on the digital scales tested positive for cocaine.

At the hearing on his motion for new trial, Shelton called a witness who testified that in January 2012, a man by the name of Freddie, who was wanted by police for an outstanding warrant, installed a water pump and brake pads on Shelton’s vehicle, and the witness stated that he washed and detailed the vehicle after it was repaired. At some point the witness saw Freddie place a set of digital scales under the passenger seat of Shelton’s vehicle. Freddie forgot to retrieve the scales when Shelton picked up his vehicle. When Freddie learned that Shelton had been stopped by the police, he was concerned that the police would find the scales.

1. The State contends that the trial court erred in ruling that trial counsel was deficient for failing to file a motion to suppress. We agree.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.

(Citations and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 742 (3) (719 SE2d 601) (2011). As set forth above, “[i]n reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this [C] ourt upholds the trial court’s factual findings unless they are clearly erroneous; we review the trial court’s legal conclusions de novo.” (Footnote omitted.) State v. Wofford, 321 Ga. App. 249, 256 (1) (739 SE2d 110) (2013).

(a) Trial counsel was not ineffective for failing to move to suppress the evidence obtained during the search of Shelton’s vehicle.

Here, trial counsel testified at the motion for new trial hearing that, after viewing the videotape of the traffic stop, conducting some research, and speaking with Shelton, she made a strategic decision not to file a motion to suppress. Trial counsel further testified that her primary motivation was trying to get the most reasonable deal for Shelton because he was a recidivist, and filing a motion to suppress would have hampered her strategy in this respect. Trial counsel spoke with the State several times with Shelton’s knowledge and, shortly before trial, the State offered a plea deal of probation with five years to serve without recidivist sentencing.

“Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008). Moreover, “the failure to file a motion to suppress does not constitute per se ineffective assistance of counsel.” Stanley v. State, 283 Ga. 36, 39 (2) (a) (656 SE2d 806) (2008). Rather, Shelton had to make a strong showing that the evidence would have been suppressed had a motion to suppress been filed. Roberts v. State, 263 Ga. 807, 809-810 (2) (e) (439 SE2d 911) (1994). This he failed to do.

The Fourth Amendment is not violated when, during the course of a valid traffic stop, an officer questions the driver or occupants of a vehicle and requests consent to conduct a search. The Supreme Court of the United States has held repeatedly that mere police questioning does not constitute a seizure. Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his [vehicle]. Unless the detention was prolonged by the questioning, there is no additional seizure within the meaning of the Fourth Amendment.

(Citations and punctuation omitted.) Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006).

The evidence shows that after Corporal Manning stopped Shelton for a sound violation, he checked Shelton’s license and registration, checked the window tint on Shelton’s vehicle and immediately thereafter asked for consent to search the vehicle. The videotape of the stop shows that Corporal Manning asked for consent to search less than four minutes after the stop began. Corporal Manning did not unreasonably prolong the stop by running a check of Shelton’s driver’s license and registration. See Valentine v. State, 323 Ga. App. 761, 765 (2) (748 SE2d 122) (2013) (reasonable time to conduct traffic stop includes time necessary for officer to check driver’s license and registration). Likewise, Corporal Manning did not violate Shelton’s Fourth Amendment rights by contemporaneously checking the window tint or asking Shelton whether he had contraband in the vehicle and whether he would consent to a search because Shelton was lawfully detained for the sound violation during this short period of time. See Salmeron, supra, 280 Ga. at 736 (1) (no Fourth Amendment violation where driver is questioned and gives consent to search during lawful detention).

Since Shelton has not shown that his Fourth Amendment rights were violated, he cannot establish that a motion to suppress would have been granted if one had been filed. Roberts, supra, 263 Ga. at 809 (2) (e). Accordingly, Shelton has not shown that trial counsel was ineffective for failing to file a motion to suppress, and the trial court erred in granting a new trial on this ground.

(b) Trial counsel was not ineffective for failing to file a motion to suppress with regard to the pat-down search of Shelton’s person.

Pretermitting whether Officer Manning had a reasonable suspicion that Shelton was armed and dangerous to warrant a pat-down search, the very brief pat-down before Shelton began resisting the officers did not unreasonably extend the duration of the traffic stop, and the search yielded no contraband or weapons. Even if the pat-down search was unjustified, it did not taint the subsequent search of Shelton’s vehicle because authority to search the vehicle was based on Shelton’s valid consent. Therefore, Shelton cannot show that a motion to suppress based on the brief pat-down search would have succeeded. See St. Fleur v. State, 296 Ga. App. 849, 853 (2) (676 SE2d 243) (2009) (brief pat-down search yielded no weapons or contraband, and officer had independent authority to search defendant’s vehicle). Accordingly, Shelton has not shown that trial counsel was ineffective in failing to file a motion to suppress on this basis.

2. The State contends that the trial court erred in finding that trial counsel was ineffective for failing to properly investigate the case, talk to witnesses and call witnesses on Shelton’s behalf at trial. Again, we agree.

Generally, trial counsel has a duty to make a reasonable investigation. Horne v. State, 298 Ga. App. 601, 605 (2) (680 SE2d 616) (2009). Nevertheless, “[t]he decisions on which witnesses to call, .. . and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Punctuation and footnote omitted.) Wofford, supra, 321 Ga. App. at 257 (1).

Shelton argued in his new trial motion that trial counsel was deficient for failing to follow up on information that the digital scales were put in his vehicle by someone else while his vehicle was being repaired and detailed prior to the stop. Shelton did not testify at the new trial hearing, and he admittedly failed to give trial counsel the name or location of the place where his vehicle was repaired and detailed, even though trial counsel met with and spoke to Shelton numerous times prior to his trial. Moreover, Shelton specifically informed the trial court during his trial that he did not wish to present any witnesses in his case; there were no witnesses whom he wanted his trial counsel to call on his behalf; and trial counsel had done everything he wanted her to do in connection with trial counsel’s representation of him. Under these circumstances, Shelton failed to establish that trial counsel was deficient in investigating or preparing the case. Accordingly, the trial court erred in granting Shelton’s motion for new trial on this ground. See Wofford, supra, 321 Ga. App. at 258 (1).

3. The State also contends that the trial court erred in finding that trial counsel was deficient for failing to object to the admission of the digital scales with the cocaine residue. We agree.

Here, the State presented the complete chain of custody of the digital scales from the time the officers retrieved the digital scales from Shelton’s vehicle and sealed them in an evidence bag at the scene of the stop to the time when the forensic chemist at the crime lab retrieved the sealed bag and tested the white powder residue that she found on the digital scales. Moreover, the forensic chemist identified the set of digital scales at trial as the item of evidence that was submitted to the crime lab for testing, and Shelton presented no evidence that the digital scales were tampered with.

Shelton nevertheless argued in his motion for new trial that the chain of custody was not fully established by the State because no witness testified that he retrieved the digital scales from the crime lab and brought them to trial. Contrary to Shelton’s contention, “there is no need to prove chain of custody for non-fungible physical evidence [such as the digital scales] identified by a witness, since these items can be recognized by observation.” (Citation and punctuation omitted.) Anderson v. State, 295 Ga. App. 594, 595 (672 SE2d 541) (2009). Since any objection to admission of the digital scales would have been futile, trial counsel was not deficient in this regard, and the trial court erred in granting Shelton’s motion for new trial on this ground.

In sum, Shelton failed to establish that trial counsel’s representation was ineffective or deficient; therefore, Shelton was not entitled to a new trial. Accordingly, the trial court erred in granting the motion for new trial on this ground.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

Decided November 13, 2014.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellant.

Harrell & Lewis, Jami L. Lewis, for appellee.

       In so holding, we note that, in granting Shelton’s motion for new trial, the trial court found that Officer Manning “classified” the search as an inventory search. Even assuming that the search was actually performed as an inventory search, Shelton cannot show that a motion to suppress would have been successful. Police officers may inventory the contents of a vehicle that has been lawfully impounded, and Shelton does not argue, nor does the evidence show, that the impoundment of his vehicle was unlawful. See Humphreys v. State, 287 Ga. 63, 77 (7) (694 SE2d 316) (2010); see also Grizzle v. State, 310 Ga. App. 577, 581 (2) (713 SE2d 701) (2011) (inventory search to document contents of impounded vehicle upheld where there was no showing that police acted in bad faith or for investigative purposes).

        See Arizona v. Johnson, 555 U. S. 323, 326 (129 SCt 781, 172 LE2d 694) (2009) (in order to proceed with pat-down search during lawful investigatory stop, officer must reasonably suspect that person stopped is armed and dangerous).


author: McFadden, Judge.

text:
    A14A1128.
    BAXTER v. THE STATE.
    (765 SE2d 738)
   McFadden, Judge.

After a jury trial, Jared U. Baxter was convicted of one count of rape, one count of kidnapping, three counts of burglary, three counts of terroristic threats, and one count of peeping tom. He appeals, arguing that his sentence of life without the possibility of parole for the rape conviction is illegal; that trial counsel was ineffective; and that the state failed to prove asportation as required for the kidnapping conviction.

As the state concedes, the sentence of life without the possibility of parole for the rape conviction is illegal. Accordingly, we vacate that sentence and remand for resentencing. We reject Baxter’s other claims. Baxter argues that trial counsel was ineffective for failing to object to the admission of certain evidence. We find that some of the evidence was admissible and trial counsel had strategic reasons for failing to object to the other evidence. We also find that the state sufficiently proved asportation. We therefore affirm Baxter’s convictions.

1. The evidence was sufficient to support the convictions.

Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013), the evidence shows that on June 29, 2008, the first victim woke up in her bedroom to find Baxter putting his hand on her mouth threatening to kill her if she screamed. When she fought back, Baxter fled through the back door. The victim called the police and left her apartment. When she returned, she discovered that her television was missing. The police later recovered the television in Baxter’s apartment while executing a search warrant.

Less than a week later, Baxter forced his way into the apartment of the second victim. He threatened to slit her throat if she screamed. Baxter raped the victim, ejaculated on her back, and then made her take a shower. The victim described her assailant as wearing a mask with eye holes cut out of it and a long-sleeved t-shirt. Investigators found a similar mask and a long-sleeved t-shirt in Baxter’s storage closet.

On July 14,2008, the third victim was watching television on her laptop. She heard a sound and went to check that the door was locked, when Baxter forced his way into her apartment, covered her mouth with his hand, and threatened to slit her throat. Baxter told the victim to remove her shirt, but she fought him, and he retreated. The victim described her assailant as wearing a black ski mask with white stripes above the eyes, the same kind of mask found in Baxter’s storage closet.

A few days later, the sheriff’s office set up a surveillance operation at the apartment complex. At around 5:20 in the morning, a deputy saw an individual, who was later identified as Baxter, drive up and park in a bright blue Saturn, take a black, cloth object from the trunk of the car, and place it in his back pocket. Baxter looked into the back window of an apartment. He heard a noise, thought someone had seen him peeping into the window, and fled in his car, pursued by two undercover Richmond County deputies. Baxter was eventually stopped in South Carolina. Baxter admitted looking into the window, but he said he was spying on his girlfriend. But his girlfriend did not live in that apartment; instead that apartment belonged to the fourth victim.

Baxter testified at trial. He admitted being a peeping tom and admitted peeping into the window of the fourth victim.

Although Baxter did not raise the issue, we find that the evidence at trial was sufficient to support the convictions of rape, burglary, terroristic threats, and peeping tom beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). As discussed in more detail in Division 4, we also find that the evidence was sufficient to support the kidnapping conviction beyond a reasonable doubt.

2. Baxter is entitled to resentencing on the rape conviction.

Baxter argues that, under the circumstances of this case, he could not be sentenced to life without the possibility of parole for the rape conviction. See Merritt v. State, 286 Ga. 650 (690 SE2d 835) (2010); State v. Velazquez, 283 Ga. 206 (657 SE2d 838) (2008). The state, to its credit, concedes the point. Accordingly, we vacate Baxter’s sentence on the rape conviction and remand for resentencing.

3. Baxter did not receive ineffective assistance of trial counsel.

Baxter argues that he received ineffective assistance of trial counsel because trial counsel did not obj ect to the admission of certain evidence seized in searches of his apartment, car, and computer. To prevail on his claim of ineffective assistance of counsel, Baxter was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Baxter “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted).

Baxter argues that trial counsel was ineffective for failing to object to the admission of evidence seized during the execution of a search warrant for his apartment. Although he does not state it explicitly, his argument seems to be based on the premise that by failing to object to the admission of this evidence, trial counsel rendered defective performance because he waived the challenges to the admissibility of the evidence that he had asserted in his motion to suppress. However, “fffailing to object at trial is not a waiver of the motion to suppress grounds, [although] affirmatively stating there is no objection in effect concedes the point.” Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998) (citations omitted; emphasis in original). Regardless of whether counsel failed to object to this evidence or whether he affirmatively stated there was no objection, Baxter cannot show ineffective assistance of counsel because the evidence either was admissible or was not challenged because of a reasonable trial strategy.

(a) Counsel’s failure to object to the admission of evidence seized from Baxter’s apartment.

Baxter argues that the warrant to search his apartment was not supported by probable cause. Our Supreme Court, in State v. Palmer, 285 Ga. 75 (673 SE2d 237) (2009), described the standards applicable to the various levels of judicial scrutiny involved in the warrant process as follows:

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause.
A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.
Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis.... The duty of the appellate courts is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. ... In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

Id. at 77-78 (citations and punctuation omitted).

Viewed with these principles in mind, we turn to the warrant in this case. The warrant authorized the search of Baxter’s apartment for items that included a 35-inch Samsung television, a ski mask, gray gloves, a red long-sleeve shirt, and electronically stored material including material on computers and external hard drives. The warrant was supported by a lengthy affidavit in which the affiant related that on June 29, 2008, at 5:25 a.m., the first victim reported that she awoke in her bedroom to find a man with a red bandana covering his face standing at her bedroom door. The man grabbed her, placed his hand over her mouth, and threatened to kill her if she screamed. The victim was able to push the man in the chest and run out her front door. She ran to her neighbors’ residence and called the police. When she returned to her apartment, she saw that her 35-inch Samsung television had been taken. That victim lived at a particular address on Iron Horse Drive.

The affiant averred that on July 3, 2008, at 1:42 a.m., the second victim reported that she was getting ready for bed, and while she was naked, entered her kitchen to get a drink. She decided to place the trash outside her back door, when a man forced his way into her residence. The perpetrator put his hand over the victim’s mouth, told her he had a knife, and threatened to cut her throat if she resisted. The perpetrator inserted his fingers into the victim’s vagina and then unsuccessfully tried to penetrate her with his penis. The perpetrator made the victim kneel on the couch and then began having sexual intercourse with her. He pulled out his penis and ejaculated on her back. The perpetrator wiped off the victim’s back with his shirt and then forced her to shower. He told her to stay in the bathroom as he left. The victim described the perpetrator as a white male, approximately five feet, ten inches tall, weighing 155 pounds with blue eyes, wearing blue jeans and a mask. That victim lived at another address on Iron Horse Drive.

The affiant related that on July 8,2008, two individuals reported that on March 26, 2008 at 1:09 a.m., they had heard a noise outside their bedroom window. One of them looked out the window and saw a bald white male, approximately five feet, ten inches tall, weighing 155 pounds standing outside their window. The man ñed. One of the individuals thought that the man was familiar from the apartment complex. They also lived on Iron Horse Drive.

The affiant related that on July 14, 2008 at 1:20 a.m., the third victim reported that she was sitting by the rear sliding glass door to her apartment while she was working on her computer. She heard a scratching noise by the door and pushed open the blinds to see whether the door was locked, when a man pushed open the door. The third victim described the man as a white male, approximately five feet, ten inches tall, weighing from 150 to 160 pounds with blue eyes, wearing blue jeans, a red long sleeve T-shirt, and a mask. The perpetrator put his hand over her mouth and threatened to slit her throat if she screamed. He told her to stand up and take off her shirt, but she ran for the front door, screaming. As she looked back, she saw the man fleeing the scene out the same door he had entered. That victim lived at an address on Ridgecrest Drive.

The affiant explained that based on these facts, investigators believed that there was a serial sexual offender in the area, who had firsthand knowledge of the area from either living or working there, and that based on the information from the two individuals, the investigators believed that the perpetrator may have been conducting surveillance of his victims prior to their attacks.

The affiant described the officers’ surveillance operation: On July 17, 2008 at 5:20 a.m., officers were conducting surveillance in the Iron Horse and Ridgecrest apartments from an apartment. One of the officers was monitoring video and noticed a blue Saturn Ion pull into the complex. He lost sight of the vehicle when it went out of range of the video cameras, so the officer looked out the front window of the apartment and saw a man later identified as Baxter exit the Saturn and retrieve from the trunk a cloth object, which he stuffed into his back pocket. The officer watched Baxter walk to the rear patio door of an apartment, and then look into the window, where the fourth victim was showering. When Baxter heard a noise from the officers, he fled to his vehicle and left the complex. He was stopped by South Carolina police. When asked about his presence in the Iron Horse Apartments he said he was attempting to spy on his mistress, but gave the name of a person other than the fourth victim, who lived alone in her apartment. Baxter matched the description given by the second and third victims, and has blue eyes. Baxter lived on Ridgecrest Drive.

Under the totality of the circumstances, the magistrate had a substantial basis to determine that there was a fair probability that evidence of a crime would be found in Baxter’s apartment. The police caught Baxter peeping into a woman’s apartment in the area where they believed a serial sexual offender was operating, and they believed the offender was conducting surveillance on his victims prior to their attacks. Baxter matched the description of the perpetrator given by two of the victims and he lied, falsely claiming to be spying on his girlfriend.

Further, the magistrate properly allowed the police to seize the clothing and the mask the victims described the perpetrator as wearing, as well as the television that the first victim reported had been stolen. OCGA § 17-5-21 (a) (1), (3). Consequently, Baxter has failed to establish that he was prejudiced by counsel’s failure to object to or acquiescence in the admission of the clothing, mask, and television seized pursuant to a search of his apartment.

(b) Counsel’s failure to object to the admission of evidence seized from Baxter’s camera and computers.

Baxter argues that trial counsel was ineffective for failing to object to the admission of peeping tom images taken from his camera and computers. He asserts that the admission of this evidence violated the Fourth Amendment and that it constituted evidence of other crimes. At the motion for new trial hearing, trial counsel explained that he did not object to the admission of this evidence because he wanted to establish credibility with the jury, given that Baxter was “caught red-handed” committing the act of peeping tom. His strategy was to establish for the jury that Baxter may have been a peeping tom, but he was not a rapist. Baxter himself testified at trial that he was a peeping tom.

Baxter has not shown counsel’s failure to object to the admission of this evidence amounted to a deficient performance. See Paul v. State, 257 Ga. App. 86, 87 (570 SE2d 399) (2002) (given overwhelming evidence of theft, trial counsel’s strategy of showing state could prove robbery but not armed robbery was reasonable); see also Mallon v. State, 266 Ga. App. 394, 396 (2) (597 SE2d 497) (2004) (bench trial strategy of showing that evidence established lesser charged offense but not greater charged offense was reasonable). Consequently, this ineffective assistance of counsel claim fails.

4. The state proved asportation sufficient to support the kidnapping conviction.

Citing Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), Baxter argues that his kidnapping conviction must be reversed because the slight movement of the second victim solely occurred during the commission of the separate violent crimes and did not expose her to any danger independent of the danger already in progress.

In Garza, our Supreme Court set out four factors to determine whether the asportation element was met:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Id. at 702 (1). After our Supreme Court’s decision in Garza, the legislature amended the kidnapping statute, effective July 1,2009, to provide that slight movement is sufficient to prove kidnapping as long as the movement was not incidental to another offense. Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011). But because Baxter’s acts occurred prior to the statute’s July 1, 2009 effective date, Garza applies. Id. at n. 2. The state is not required to satisfy all four Garza factors in order to prove the element of asportation. Brown v. State, 291 Ga. 750, 753 (2) (733 SE2d 300) (2012).

The second victim testified that after Baxter raped her on her couch and ejaculated on her back, he made her take a shower, instructing her to wash the small of her back and her genital area. He would not allow her to close the shower curtain, and he watched her shower. He became impatient with her, and she was afraid of upsetting him. He eventually left the bathroom, and the victim, afraid that Baxter was still in the apartment, waited in the bathroom for about five minutes before she left to call for help.

The movement of the victim to the bathroom was not an inherent part of the rape, as that crime had already ended. “Further, moving [the victim] into the bathroom placed [her] in a more dangerous situation because isolating [her] made it easier for [Baxter] to maintain control over [her] and made it impossible for [her] to call for help.” Brown, supra, 291 Ga. at 753 (2). We conclude that the state presented sufficient evidence to support the kidnapping verdict. Id. (movement of victim from front of house to back bathroom was not insignificant, was not an inherent part of other charged crimes and placed victim in more dangerous situation). Accord Williams v. State, 307 Ga. App. 675, 678 (1) (705 SE2d 906) (2011) (moving victim from hotel room into bathroom was sufficient asportation as it created additional danger to her by increasing defendant’s control over her and was not inherent part of aggravated assault); Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010) (pulling victim back into hotel room from hallway sufficient to prove asportation because it occurred before defendant threatened her with a razor and raped her).

Decided November 13, 2014

Steel Law Firm, Brian Steel, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

Judgment affirmed, sentence vacated in part, and case remanded for resentencing.

Andrews, P. J., and Ray, J., concur.


text:
    A14A1155.
    TOMEH v. BOHANNON et al.
    (765 SE2d 743)
   Miller, Judge.

Alikina Bohannon, individually and on behalf of her deceased son, Xavier Bohannon, sued Dr. Mohammad Tomeh, South Fulton Medical Center (“South Fulton”), and numerous other medical providers, alleging that the hospital and its staff committed malpractice prior to and during Bohannon’s labor and delivery, resulting in Xavier’s death shortly after he was born prematurely. Dr. Tomeh, a pediatrician, filed a motion for summary judgment, arguing that no doctor-patient relationship existed between him and either Bohannon or Xavier. Following a hearing, the trial court denied Dr. Tomeh’s motion, and this Court subsequently granted Dr. Tomeh’s application for interlocutory review. On appeal, Dr. Tomeh contends that is it undisputed that no doctor-patient relationship existed between himself and Bohannon or Xavier. We agree and reverse.

[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). We review the denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party opposing the motion for summary judgment. Id. at 624 (1) (a).

So viewed, the evidence shows that Bohannon first sought prenatal care from obstetrician Dr. Gabriel Nassar when she was approximately 25 weeks pregnant. Bohannon was of advanced maternal age and suffered from insulin-dependent diabetes and hypertension. Her baby’s estimated due date was July 25, 2011. On June 22, 2011, Bohannon arrived at South Fulton’s labor and delivery unit, complaining of pain and leaking fluid. Bohannon underwent fetal monitoring and was discharged a few hours later with instructions to rest and drink water.

Bohannon alleged in her complaint that at approximately midnight on June 26, 2011, she called 911 complaining of contractions, pain and vaginal bleeding and was taken to South Fulton by ambulance. She arrived at the hospital at around 1:15 a.m. on June 27 and was examined by Dr. Nassar an hour later. At 3:19 a.m., Dr. Nassar delivered Xavier by cesarean section.

Immediately after birth, Xavier was blue and limp. Medical personnel intubated Xavier and attempted to resuscitate him, but he died around 3:44 a.m. The handwritten notations on Xavier’s medical records show that a respiratory therapist intubated Xavier and neonatal nurse practitioner Sara Posley oversaw his treatment. Nurse practitioner Posley was overseen by Dr. Babatunde Onasanya. The intraoperative record, as well as the handwritten records, show that Dr. Nassar, nurse practitioner Posley, an anesthesiologist, a respiratory therapist, a scrub tech, and several nurses were present in the operating room during Xavier’s birth. Under South Fulton’s written policies, a neonatologist, nurse practitioner, physician’s assistant, or respiratory therapist is responsible for the intubation of high-risk newborns.

Prior to delivery, Bohannon had not chosen a pediatrician for Xavier. Dr. Tomeh just happened to be the on-call pediatrician at South Fulton on June 27, 2011. As an on-call pediatrician, Dr. Tomeh treated infants in the normal nursery but did not treat infants in the neonatal intensive care unit, and he did not intubate or resuscitate infants immediately following delivery. According to South Fulton’s policies, a pediatrician trained in resuscitation and capable of intubation was to be present, upon request, during cesarean sections and high-risk vaginal deliveries. Xavier’s computer-generated admission records from South Fulton list Dr. Tomeh as Xavier’s admitting and attending doctor. Dr. Tomeh is also listed on an automatically-generated coding summary as the provider who intubated Xavier and performed resuscitation efforts.

In his affidavit in support of his motion for summary judgment, Dr. Tomeh averred that he never consulted with nor provided treatment for Xavier or Bohannon. Dr. Tomeh further averred that he was not consulted about Xavier; he was not called or asked to treat Xavier at any point; he did not refuse to treat Xavier; he was not present at South Fulton on June 27, 2011; and he was not required to be present at that time. Dr. Tomeh also averred that he had never met Bohannon or Xavier, he did not charge Bohannon or her insurance for any treatment, and he accepted no payment for any alleged treatments. Specifically, Dr. Tomeh denied that he participated in the efforts to intubate or resuscitate Xavier.

In his sole enumeration of error, Dr. Tomeh contends that the trial court erred in denying his motion for summary judgment because there was no doctor-patient relationship between him and Xavier or Bohannon. We agree.

It is well settled Georgia law that proof of three essential elements is required to establish liability in a medical malpractice action: “(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” (Citation and punctuation omitted.) Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003); see also OCGA § 51-1-27. Additionally,

[djoctor-patient privity is [an essential element] because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. The relationship is considered consensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.

Anderson v. Houser, 240 Ga. App. 613, 615 (1) (523 SE2d 342) (1999); see also Herrington v. Gaulden, 294 Ga. 285, 286 (751 SE2d 813) (2013) (plaintiff in medical malpractice case must usually prove the existence of a doctor-patient relationship).

(a) The evidence does not show the existence of a doctor-patient relationship between Dr. Tomeh and Bohannon or Xavier.

Dr. Tomeh, by his affidavit, presented a plethora of evidence that he did not treat Bohannon or Xavier. Moreover, the director of medical records at South Fulton in her affidavit averred that when a baby is born alive at the hospital, a medical chart is created and an admitting and attending physician must be assigned to the baby. Where, as here, the parent has not selected a pediatrician for the child, the pediatrician who is on call at the time of the baby’s birth is assigned automatically as the admitting and attending physician in the child’s chart. The director of medical records specifically averred, “If the baby dies in the operating room and prior to the transfer to the nursery, the on-call pediatrician will still be listed as the admitting and attending physician in the baby’s medical records, even if the pediatrician never treated the baby.”

The director of medical records also averred that South Fulton’s patient software system automatically creates a coding summary, which lists the name of each patient’s attending physician in conjunction with all the treatment rendered to the patient, regardless of whether the attending physician actually performed the treatment. The coding summary is not a billing document and does not necessarily reflect the services billed by the hospital. Accordingly, even though the medical records listed Dr. Tomeh as Xavier’s pediatrician and the coding summary indicated that Dr. Tomeh provided certain treatments to Xavier, those records do not necessarily establish that Dr. Tomeh treated Xavier. Accordingly, Dr. Tomeh presented evidence negating an essential element of Bohannon’s claim — the existence of a doctor-patient relationship — and the burden then shifted to Bohannon to point to specific evidence giving rise to a triable issue. Cowart, supra, 287 Ga. at 623 (1) (a). Bohannon failed to do so.

Notably, in response to Dr. Tomeh’s motion for summary judgment, Bohannon did not address Dr. Tomeh’s affidavit, nor that of the director of medical records. Bohannon also did not address the handwritten hospital records showing that Dr. Tomeh was not present in the operating room at Xavier’s birth and did not participate in the efforts to save Xavier. Instead, in opposition to Dr. Tomeh’s motion for summary judgment and on appeal, Bohannon relies solely on the coding summary from South Fulton and on the fact that Dr. Tomeh is listed on Xavier’s computer-generated medical records as his attending and admitting physician.

Before circumstantial evidence can have any probative value to rebut or contradict direct and positive testimony of an unimpeached witness of the alleged facts in question, such evidence must point at least more strongly to a conclusion opposite to the direct testimony. It is not sufficient that such circumstantial evidence points equally one way or the other.

(Citation omitted.) Rosales v. Davis, 260 Ga. App. 709, 712 (2) (580 SE2d 662) (2003). Here, the circumstantial evidence, such as the coding summary and the computer-generated medical records, which were shown to sometimes be inaccurate, cannot rebut Dr. Tomeh’s direct testimony that he did not treat Xavier or Bohannon. Since the burden shifted to Bohannon and she failed to point to any specific evidence giving rise to a triable issue, the trial court erred in denying Dr. Tomeh’s motion for summary judgment.

(b) Moreover, the mere fact that Dr. Tomeh was the on-call pediatrician at the time of Xavier’s birth does not establish a doctor-patient relationship.

Although a doctor who has agreed to be on-call makes himself available to be consulted regarding a patient’s condition, that fact alone does not indicate that the doctor has agreed to establish a doctor-patient relationship with any patient who presents herself to the hospital for diagnosis and treatment.

Anderson, supra, 240 Ga. App. at 619 (1).

Here, although Dr. Tomeh was the on-call pediatrician at the time of Xavier’s birth, he presented affidavit evidence showing that he did not diagnose or treat Xavier, consult on his care, or even meet him. A doctor who is merely on call, but who renders no treatment nor care to a patient does not have a doctor-patient relationship. See Anderson, supra, 240 Ga. App. at 615-619 (1) (no doctor-patient relationship existed where on-call doctor did not consult with or treat patient); Minster v. Pohl, 206 Ga. App. 617, 620 (1) (426 SE2d 204) (1992) (no doctor-patient relationship existed where on-call doctor merely reviewed patient’s x-ray at nurse’s request); compare Rindsberg v. Neacsu, 317 Ga. App. 269, 274 (730 SE2d 525) (2012) (question of fact remained as to whether doctor-patient relationship existed where on-call doctor asked nurse about patient’s status, spoke to patient’s family, and refused family’s request to examine patient).

Decided November 13, 2014.

Huff, Powell & Bailey, M. Scott Bailey, Bailey A. Blair, for appellant.

James H. Potts II, for appellees.

A plaintiff has to show more than that a doctor was the on-call physician at the time of the patient’s injury. Georgia law requires some evidence of an actual doctor-patient relationship. In this case, that Dr. Tomeh was the on-call pediatrician at the time of Xavier’s birth alone cannot give rise to any liability for malpractice, and since Bohannon has failed to come forward with any evidence to contradict Dr. Tomeh’s sworn statement that he did not treat her or Xavier, the trial court erred in denying Dr. Tomeh’s motion for summary judgment.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

       This appeal only concerns Bohannon’s claims against Dr. Tomeh. Accordingly, we express no opinion as to her claims against other medical providers.


author: DOYLE, Presiding Judge.

text:
    A14A1205.
    THOMAS v. JOHNSON et al.
    (765 SE2d 748)
   DOYLE, Presiding Judge.

Jane Thomas, as the presiding elder of the Sixth Episcopal District of Georgia of the Christian Methodist Episcopal Church (“the CME”), filed a petition for declaratory judgment and an injunction against Beulah Johnson, Marion Shannon, Jr., Thomas Howard, and Robert Hunt, seeking use and control of the Bethel Christian Methodist Church (“Bethel Church”). Following an evidentiary hearing, the trial court entered final judgment in favor of the defendants. The CME appeals, and we vacate and remand the case for the reasons that follow.

In its petition, the CME, “a hierarchical religious denomination^ which] is organized and functions solely as a connectional church with subordinate governing districts and location churches,” alleged that for over 100 years, Bethel Church has been “a subordinated, connectional member of the national CME church,” which is “subject to the practice, procedures, rules, and regulations as stated in The Book of Discipline of the [CME], and other governing documents.” The CME further alleged that Bethel Church used the name of the CME church; abided by the CME policies and customs; accepted the pastorate and literature of the CME ministers; paid conference assessments and dues to the CME; and participated and enrolled as a subordinate member of the CME at annual and quarterly conferences.

On January 10, 2011, Bethel Church executed a resolution acknowledging that although “in recent years [it] has enjoyed an affiliation with the Sixth District of the [CME],” it was effectively “terminating] and canceling] any and all affiliation with the [CME] in all respects, effective on January 1, 2011.” On January 9, 2011, the CME filed its petition for declaratory judgment and injunctive relief, alleging that pursuant to The Book of Discipline, the Bethel Church property was held in trust for the CME, which is “the legal and equitable owner” of the property.

The CME attached as exhibits to the complaint an excerpt from the 2010 CME Book of Discipline and a copy of a quitclaim deed for the church property, executed on March 13,1996, which reflects that C. C. Ranch, Inc., a Florida corporation, conveyed the property at issue

unto BEULAH JOHNSON, SOLOMON McCRARY, MARION SHANNON, LUCILLE EZELL, and THOMAS HOWARD as the Trustees of Bethel Church and to their successors in office (Bethel Church being an unincorporated religious association) of Crawford County, Georgia, their successors, heirs, executors, administrators[,] and assigns.

The defendants filed an answer, and the trial court conducted a final hearing on August 1, 2013. The defendants presented a witness at the hearing, but the trial court did not hear the testimony of the CME’s witnesses.

On December 16, 2013, the trial court entered a final judgment in favor of the defendants. In its order, the trial court found that the 1996 quitclaim deed conveying the church property at issue to Bethel Church did not create a trust in favor of the CME. And despite concluding that Bethel Church “is a member of . . . [the CME],” a hierarchical organization, and that Bethel Church “is, by agreement, bound to follow its organizational by-laws, codified in The Book of Discipline,” the trial court ruled that the CME had no rights to the property because there was insufficient evidence that Bethel Church’s conduct and relationship with the CME created an implied trust in favor of the CME. The CME appeals, arguing that the trial court denied it due process of law by precluding it from presenting evidence at the final hearing and that the trial court erred by finding that the CME had no interest in the property.

While the State has a legitimate interest in the peaceful resolution of property disputes and provides a civil forum in which the ownership of church property can be determined, the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. As a result, civil courts use neutral principles of law, i.e., statutes, charters, relevant deeds of conveyance, and the organizational constitutions and bylaws of the denomination, to resolve hierarchical church property disputes. A trust in favor of the general church can be created by the deed on the property, can be implied under state statutes, or can be required by the constitution of the general church.
We review all of these materials, keeping in mind that the outcome of these church property disputes usually turns on the specific facts presented in the record, that the neutral principle factors are interrelated, and that our ultimate goal is to determine the intentions of the parties at the local and national level regarding beneficial ownership of the property at issue as expressed before the dispute erupted in a legally cognizable form.

The CME’s Book of Discipline provides that “[t]itles to all properties held at [various] levels, local churches, or an agency or institution of the church shall be held in trust for the [CME] and subject to the provisions of its Discipline.” Paragraph 602.2 (2010 ed.) of The Book of Discipline provides that every deed of property to a local church shall include a trust clause, which provides that the property is held in trust for the use of the members and ministry of the CME. Given this language in the governing CME documents, evidence regarding whether Bethel Church was affiliated with the CME, accepted the benefits afforded to it as a result, and was subject to the trust provisions of The Book of Discipline was relevant.

Here, however, the trial court prohibited the CME from presenting witnesses and evidence to support its claims. At multiple times during the final hearing, counsel for the CME asked to present witnesses, but the trial court did not permit her to do so, instead limiting the hearing to argument from counsel and testimony from a defense witness and an unsworn defendant. At one point near the end of the hearing, the trial court noted a lack of evidence in the record on a particular issue, and counsel for the CME responded that she would have presented evidence if given the opportunity to do so.

The constitution of this [S]tate guarantees to all persons due process of law and unfettered access to the courts of this [S]tate. These fundamental constitutional rights require that every party to a lawsuit be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. Integral to these rights is the ability to present witnesses and other lawful evidence; thus, limitations imposed by a trial judge that prevent a full and meaningful presentation of the merits of the case mandate reversal.

In this case, the trial court’s conduct at the final hearing deprived the CME of its right to due process. Accordingly, we vacate the final judgment and remand for a full evidentiary hearing.

Judgment vacated and case remanded.

Miller and Dillard, JJ., concur.

Decided November 13, 2014.

Edwards & Youmas, Brenda C. Youmas, for appellant.

Rodney E. Davis, for appellees.

       The CME attached as exhibits to the petition multiple documents to support these allegations, including Bethel Church programs bearing the name “Bethel CME Church” and various CME conference documents listing “Bethel CME Church.”

       The CME alleged that the defendants changed the locks to the church, changed the church name, refused to allow the CME pastor and presiding elder to enter the church, and misused funds.

       Although the trial court engaged in colloquy with defendant Howard, Howard was not sworn in, nor did he take the stand, despite the CME’s lawyer’s request that he do so.

       The trial judge attempted to distinguish the instant case from Rector, Wardens, and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Ga., 290 Ga. 95, 96-97 (1) (718 SE2d 237) (2011) (applying the neutral principles of law and affirming the trial court’s finding that the property of a local church is held in trust for the benefit of the Protestant Episcopal Church in the United States of America).

       (Citations omitted.) Kemp v. Neal, 288 Ga. 324, 326 (2) (704 SE2d 175) (2010), citing Jones v. Wolf, 443 U. S. 595, 602 (III) (99 SCt 3020, 61 LE2d 775) (1979).

       (Citations and punctuation omitted.) Presbytery of Greater Atlanta v. Timberridge Presbyterian Church, 290 Ga. 272, 276-277 (2) (719 SE2d 446) (2011). See also Christ Church in Savannah, 290 Ga. at 96-97.

       (Punctuation omitted.) The Book of Discipline, Par. 602 (2010 ed.). We note that there is no evidence in the record regarding whether the provisions of The Book of Discipline cited herein were in effect at the time the church property was conveyed. Because, however, the CME was precluded from presenting evidence, we assume that the provisions were in effect at the relevant time for purposes of this appeal.

       See Christ Church in Savannah, 290 Ga. at 115-116 (1) (c) (7); Sirmans v. Bd. of Trustees of South Ga. Annual Conference of the United Methodist Church, 295 Ga. App. 378, 382-384 (4) (672 SE2d 423) (2008).

       (Citation and punctuation omitted.) Cousins v. Macedonia Baptist Church of Atlanta, 283 Ga. 570, 573-574 (1) (662 SE2d 533) (2008), citing Ga. Const, of 1983, Art. I, Sec. I, Pars. I, XII.

       See Cousins, 283 Ga. at 574 (1).