author: Adams, Judge.

text:
    A12A1186.
    MARIETTA PROPERTIES, LLC v. CITY OF MARIETTA et al.
    (732 SE2d 102)
   Adams, Judge.

Marietta Properties, LLC sued the City of Marietta (the “City”) seeking a declaration that it had a vested right to build an approximately sixty-six foot tall, five-story building on its property, notwithstanding that a recently enacted ordinance limited the height of structures within portions of the City’s historic district to forty-two feet. The trial court dismissed the action, and Marietta Properties appeals. We agree with the trial court that Marietta Properties’ claim is not ripe for judicial determination. Accordingly, we affirm.

The record shows that Marietta Properties owns real property (the “Property”) in the historic district established by the Code of Marietta, Georgia. The Code requires that within the historic district certain activities, including new construction of a principal building, must be authorized by a Certificate of Approval issued by the Marietta Historic Board of Review. The City Code was amended in 2000 to provide that no Certificate of Approval would be issued for buildings with a height exceeding 85 feet. Marietta Properties bought the Property in 2001.

On September 15, 2008, the Historic Board issued a Certificate of Approval allowing Marietta Properties to demolish the building then existing on the Property and to construct an approximately sixty-six foot tall, five-story building thereon. Pursuant to the City Code, a Certificate of Approval “must be implemented by commencement of substantial and ongoing construction within a period of 36 months from the date of approval and if substantial and ongoing construction is not so commenced, the certificate shall expire at the end of the 36-month period.”

In November 2010, the City approved a permit application for the demolition of the then existing building. Marietta Properties paid approximately $40,000 to demolish the building and for attendant hazardous waste removal and other fees.

In March 2011, over Marietta Properties’ stated opposition, the Marietta City Council approved an ordinance (the “2011 Height Ordinance”) providing that, as to a specified area in the historic district, no structure or building which exceeds 42 feet in height “shall be allowed, permitted or receive a certificate of approval.” The 2011 Height Ordinance further amended the City Code to provide that “[notwithstanding any other provision under this Code Section, all actions permitted shall be governed by the applicable construction codes and ancillary ordinances governing construction as of the date of the issuance of the permit.” The Property lies within the area subject to the 2011 Height Ordinance.

In April 2011, the City’s Public "Works Director, Daniel Conn, along with another City official, presented the manager of Marietta Properties, Philip Goldstein, with a statement prepared by the City Attorney. The statement provided in part that: “[a]ny application for a building permit within the [district included in the 2011 Height Ordinance] willbe reviewedby the [City] in accordance with [the 2011 Height Ordinance] and said Ordinance will apply to any such application or applications.” Goldstein refused to sign the statement on behalf of Marietta Properties. According to Conn, who is responsible for overseeing receipt of building applications, it was not necessary for Goldstein to sign the statement in order for Marietta Properties to proceed with the application process. Rather, the City would accept an application by Marietta Properties to build a five-story building, and Conn was unsure whether the City would apply the old ordinance or the 2011 Height Ordinance to the review of that application.

On April 27, 2011, Marietta Properties filed the underlying lawsuit. According to the complaint, Marietta Properties has not obtained and, it is apparent, has not applied for and been denied, a building permit to construct a five-story building on the Property. The complaint sought a declaration that Marietta Properties had a vested right to construct an approximately 66 foot tall building on the Property pursuant to the Certificate of Approval issued on September 15, 2008, and to enjoin, pending a final determination of the matter, the possible expiration of the Certificate of Approval.

In addition to the complaint, Marietta Properties filed a separate motion for interlocutory injunction, and the City filed a motion to dismiss and plea in abatement. Following a hearing, the trial court issued its order denying Marietta Properties’ request for interlocutory injunction and granting the City’s motion to dismiss the complaint.

1. Marietta Properties contends that the trial court erred in granting the City’s motion to dismiss and plea in abatement because the court based its ruling on the merits of the action. We disagree.

The trial court found that Marietta Properties’ claim for declaratory judgment was not ripe and, for that reason, granted the City’s motion to dismiss and plea in abatement. As part of its analysis, the trial court also found that Marietta Properties’ vested rights claim could not be raised for the first time in superior court. These findings address the trial court’s subject matter jurisdiction. See Mayor &c. of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173, 174 (476 SE2d 581) (1996) (the action was an attempt to circumvent the requirement to exhaust available administrative remedies and so was procedurally barred); Effingham County Bd. of Commrs. v. Effingham County Indus. Dev. Auth., 286 Ga. App. 748, 749 (650 SE2d 274) (2007) (in absence of justiciable controversy, trial court lacked power to rule on declaratory judgment claim).

Generally, when a motion to dismiss involves a factual issue as to a question of abatement, that is, lack of jurisdiction, improper venue, insufficiency of process, insufficiency of service of process or failure to join a party, the trial court is authorized under [OCGA § 9-11-12 (d)] to hear and determine these defenses before trial without a jury on application of any party.

Myers v. McLarty, 150 Ga. App. 432, 433 (258 SE2d 56) (1979). In this case, the trial court held a motions hearing at which it heard evidence, and it then issued an order denying Marietta Properties’ motion for an interlocutory injunction and granting the City’s motion to dismiss and plea in abatement. To the extent the evidence presented at the motion hearing shed light on the trial court’s jurisdiction, the trial court was entitled to consider it for that purpose. See Dept. of Transp. v. Dupree, 256 Ga. App. 668, 675 (1) (b) (570 SE2d 1) (2002) (trial court may hear evidence to determine defense in abatement); Hatcher v. Hatcher, 229 Ga. 249, 250-251 (190 SE2d 533) (1972) (trial court could conduct hearing on jurisdictional issue before trial). The trial court’s order shows, however, that it did not dismiss the case due to any finding on the underlying merits. Accordingly, we find no basis for reversal.

2. Marietta Properties contends that the trial court erred in finding that because Marietta Properties had not exhausted its administrative remedies its declaratory judgment claim was not ripe for adjudication. We disagree.

Marietta Properties sought a determination that in light of its expenditure of significant funds toward the construction of a five-story building, and pursuant to the Certificate of Approval issued in September 2008, it had a vested right to construct an approximately sixty-six foot tall building on the Property. A vested right under a zoning ordinance, such as claimed here, is based upon the same constitutional principle “which precludes [its] retroactive application.” (Punctuation and footnote omitted.) Cooper v. Unified Govt. of Athens-Clarke County, 277 Ga. 360, 361 (589 SE2d 105) (2003). The Supreme Court “has firmly adhered to the rule that constitutionally-based zoning claims . . . cannot be raised for the first time in the Superior Court, but must first be brought before the local zoning authority.” (Punctuation and footnotes omitted.) Id. Rather, the “long-standing procedure is to address these vested rights claims only after the local zoning authority has refused to issue the necessary permits for the proposed project, or has imposed unconstitutional restrictions on an existing project.” (Footnote omitted.) Id.

Marietta Properties argues that this principle does not apply because “there are no administrative remedies from the newly enacted height ordinance,” and because it need not exhaust its administrative remedies where “the defect urged by the complaining party goes to the jurisdiction or power of the involved agency.” (Citation and punctuation omitted.) City of Atlanta v. Hotels.com, L.P., 285 Ga. 231, 233 (674 SE2d 898) (2009). But Marietta Properties’ inability to seek administrative remedies for the enactment of the 2011 Height Ordinance is not determinative. Marietta Properties’ “constitutional rights are not being violated merely by the existence of a certain zoning classification. Those rights would only be violated if the [City] used the new zoning classification to deprive [Marietta Properties] of vested property rights.” Cooper, 277 Ga. at 362. Nor did Marietta Properties seek a ruling on a threshold issue, such as the City’s power to regulate development of the Property. Compare Hotels.com, 285 Ga. at 235 (declaratory judgment proper “to determine whether the administrative process is relevant (i.e., whether the hotel tax ordinance, and its attendant administrative process, apply herein)”) with Northeast Ga. Cancer Care v. Blue Cross & Blue Shield of Ga., 297 Ga. App. 28, 32 (1), n. 6 (676 SE2d 428) (2009) (affirming dismissal of declaratory judgment action where clear statutory authority vested insurance commissioner with jurisdiction over question at issue).

Marietta Properties also contends that the City’s actions “conclusively prove” that the City did not intend to honor the Certificate of Approval allowing the construction of a five-story building, and so an application for a building permit would be futile and, therefore, not a prerequisite to judicial review. See Powell v. City of Snellville, 266 Ga. 315, 316 (467 SE2d 540) (1996); WMM Properties v. Cobb County, 255 Ga. 436, 440 (3) (339 SE2d 252) (1986). But “[ejxhaustion of administrative remedies is futile only where further administrative review would result in a decision on the same issue by the same body....” (Citation, punctuation and emphasis omitted.) Little v. City of Lawrenceville, 272 Ga. 340, 342 (3) (528 SE2d 515) (2000). Here, Marietta Properties has never submitted an application for a permit to construct the building. Further, the Code of Marietta Zoning Ordinance directs the City’s Planning and Zoning Director to review “any proposed use of land before any building permit is issued,” and establishes a Board of Zoning Appeals to hear appeals from the decisions of the Planning and Zoning Director. It does not appear any of these entities has previously made a decision which would render futile any requirement that Marietta Properties seek a permit to construct the building. See id. (under zoning ordinance, administrative proceedings would result in a decision by a body other than the City Council). It follows that because Marietta Properties has not applied for a building construction permit nor has the appropriate City authority denied it such a permit, the trial court correctly recognized that it would be premature for a superior court to determine whether Marietta Properties had acquired vested rights to build a five-story building on the Property. See Cooper, 277 Ga. at 362 (“It is impossible for this Court or the Superior Court to determine whether [appellant’s] vested rights have been violated, since he has never applied for a permit, nor has the appropriate County authority ever denied him any such permit.”).

3. After filing its complaint, Marietta Properties moved the trial court for issuance of an interlocutory injunction to “toll the running of the time limits and extend the expiration date of the Certificate of Approval until such time as [its] rights are judicially determined.” The trial court denied interlocutory relief because, it concluded, Marietta Properties would be unlikely to prevail on the merits. Marietta Properties assigns error to this ruling.

“It is axiomatic that the sole purpose of a temporary or interlocutory injunction is to maintain the status quo pending a final adjudication on the merits of the case.” Hampton Island Founders v. Liberty Capital, 283 Ga. 289, 293 (1) (a) (658 SE2d 619) (2008). See OCGA § 9-4-3 (b) (allowing for interlocutory extraordinary relief in declaratory judgment actions “to maintain the status quo pending the adjudication of the questions or to preserve equitable rights”). Marietta Properties’ case has been dismissed, and so an interlocutory injunction would not have been appropriate to maintain the status quo pending a ruling on the merits which would never occur. Accordingly, Marietta Properties’ motion for interlocutory injunction was moot and the trial court did not err in its denial.

Decided August 31, 2012

Reconsideration denied December 5, 2012

Hallman & Wingate, F. Edwin Hallman, Jr., Richard A. Wingate, Zachary M. Wilson III, for appellant.

Haynie & Litchfield, Douglas R. Haynie, Daniel W. White, Freeman, Mathis & Gary, Dana K. Maine, for appellees.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       The City contends that the Certificate of Approval expired on September 15,2011, during the pendency of this appeal, and, no court having tolled the certificate’s expiration, Marietta Properties must now apply for a new Certificate of Approval subject to the 2011 Height Ordinance. It follows, the City argues, that this appeal is moot and must be dismissed. We disagree. First, this appellate court is not in a position to conclusively (and initially) determine whether Marietta Properties sufficiently “implemented” the Certificate of Approval for purposes of the City’s Code so as to avoid its otherwise scheduled expiration. Second, “[i]f an appellant or cross-appellant will benefit by reversal of a case, his appeal is not moot.” (Citation and punctuation omitted.) Dean v. City of Jesup, 249 Ga. App. 623, 624 (2) (549 SE2d 466) (2001). As discussed infra, we ultimately disagree with Marietta Properties’ claims of error and affirm the trial court’s judgment. But Marietta Properties would have practically benefitted, we believe, from the reversal of the trial court’s order, which includes the trial court’s refusal to enjoin the possible expiration of the Certificate of Approval and its refusal to review, as unripe, Marietta Properties’ contention that it retained a vested right to construct the five-story building. Accordingly, we deny the City’s motion to dismiss the appeal.

       Before the 2011 Height Ordinance was approved, Marietta Properties filed an “updated application for a new Certificate of Approval” for construction of a five-story building. In its complaint, Marietta Properties also asked the trial court to declare that the “updated” application be considered by the Historic Board under the law and ordinances in effect at the time of its filing. On May 16,2011, and before the motions hearing, the Historic Board failed to approve the request for a new certificate. Perhaps because the issue had been mooted, the trial court did not specifically address Marietta Properties’ request for a declaratory judgment as to the updated application, and no error is alleged on that account.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A1662.
    RIGGS v. THE STATE.
    (733 SE2d 832)
   MILLER, Presiding Judge.

Darren David Riggs, proceeding pro se, appeals from the trial court’s order denying his motion to withdraw his guilty plea. On appeal, Riggs contends that (i) his plea was involuntary. Riggs further contends that the trial court erred in (ii) denying his motion to discharge appointed counsel and to proceed pro se, (iii) denying several pretrial motions, and (iv) intervening in plea negotiations. In addition, Riggs contends that (v) trial counsel provided ineffective assistance. For the reasons discussed below, we affirm.

After sentencing, “a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice — ineffective assistance of counsel or an involuntary or unknowingly entered guilty plea.” (Footnote omitted.) Wilson v. State, 302 Ga. App. 433, 434 (1) (691 SE2d 308) (2010). The trial court is the final arbiter of all factual issues raised by the evidence, and its refusal to allow a withdrawal will not be disturbed absent a manifest abuse of discretion. Lawton v. State, 285 Ga. App. 45, 46 (645 SE2d 571) (2007).

The record shows that in September 2008, Riggs was charged with three counts of delivery and distribution of cocaine (OCGA § 16-13-30 (b)); one count of criminal attempt to commit child molestation (OCGA §§ 16-4-1,16-6-4 (a) (1)); six counts of child molestation (OCGA § 16-6-4 (a) (1)); one count of enticing a child for an indecent purpose (OCGA § 16-6-5 (a)); two counts of cruelty to children in the first degree (OCGA § 16-5-70 (b)); two counts of false statements (OCGA § 16-10-20); one count of statutory rape (OCGA § 16-6-3 (a)); one count of incest (OCGA § 16-6-22 (a) (1)); and one count of aggravated child molestation (OCGA § 16-6-4 (c)). Riggs was appointed counsel from the public defender’s office.

The State subsequently proposed a plea offer involving dismissal of the three counts of distribution of cocaine and the incest charge, a reduction of the aggravated child molestation charge to child molestation, and entry of a guilty plea to the remaining charges. The State’s plea offer included a total sentence of 40 years to serve 20 years in prison and the balance on probation. At a hearing to discuss the plea offer, trial counsel testified that he advised Riggs of the plea offer. The trial court explained the total sentencing ranges for each offense, and asked Riggs if he understood the sentencing ranges and the terms of the State’s plea offer.* Riggs confirmed that he understood the terms of the plea offer and was aware of the total sentence he faced if he went to trial and was convicted. Riggs stated that, while he did not wish to go to trial, he could not accept the plea offer. The State agreed to keep the offer open for a few more days to allow Riggs to consider his options, but Riggs did not accept the offer before it expired.

On the day of his trial, Riggs stated that he wished to accept the State’s prior plea offer. The State refused to renew its prior plea offer, but agreed to allow Riggs to enter a non-negotiated plea. As part of the non-negotiated plea, the State agreed to nolle prosse the incest charge and reduce the aggravated child molestation charge to child molestation. During the ensuing plea colloquy, the State laid out the factual basis for each crime to which Riggs entered a guilty plea. Riggs testified under oath that he understood the charges of the indictment, the rights that he was waiving by entering the guilty plea, the sentencing ranges for the charged offenses, and the conditions of probation. Riggs further affirmed that no promises or threats had been made in exchange for his guilty plea, and that he was satisfied with his counsel’s services. The trial court accepted Riggs’s guilty plea, and imposed a total sentence of 50 years to serve 30 years in prison, along with general and special conditions of probation.

Following oral pronouncement of the sentence, Riggs filed a motion to withdraw his guilty plea. Following an evidentiary hearing, the trial court denied Riggs’s motion.

1. Riggs contends that he was entitled to withdraw his guilty plea because it was not voluntarily entered. We disagree.

[W]hen the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.

(Citation and punctuation omitted.) Blass v. State, 293 Ga. App. 346 (667 SE2d 140) (2008).

In this case, the plea hearing transcript reveals that Riggs confirmed that he understood the charges pending against him, the rights that he was waiving by entering the guilty plea, and the sentencing ranges for the charged offenses. Riggs further stated that no promises or threats had been made in exchange for his guilty plea. Given this evidence, the State met its burden of showing that Riggs freely and voluntarily entered his guilty plea, and the trial court did not err in denying his motion to withdraw the plea on this ground. See id.

2. Riggs also contends that the trial court erred in denying his bond request, denying the same without conducting a hearing, and denying other unspecified pretrial motions. We disagree.

“Once a defendant solemnly admits in open court that he is, in fact, guilty of the offense charged, he generally may not thereafter raise independent claims that occurred prior to the entry of his guilty plea.” (Citation omitted.) Greason v. State, 312 Ga. App. 859, 859-860 (720 SE2d 311) (2011). “An exception will only be made if the error goes to the very power of the State to bring the defendant into court.” (Citations and punctuation omitted.) Moore v. State, 285 Ga. 855, 858 (2) (684 SE2d 605) (2009). Having entered a valid plea of guilty, Riggs cannot now raise claims challenging the denial of pretrial motions. Cf. Moore, supra, 285 Ga. at 858 (2) (valid guilty plea barred appeal to challenge arrest warrant); Umbehaum, v. State, 251 Ga. App. 471, 472-473 (2) (554 SE2d 608) (2001) (valid guilty plea precluded challenge on speedy trial grounds).

3. Riggs raises numerous claims that he failed to raise in his written motion to withdraw his plea or at the hearing on said motion. Specifically, Riggs attempted to amend his motion to withdraw his plea by adding claims that the trial court improperly participated in the plea negotiation process; the trial court improperly denied his motion to substitute counsel and allow him to proceed pro se; and the trial court ignored trial counsel’s lack of preparation before trial. Riggs, however, failed to raise these claims until after the hearing on his motion to withdraw his plea. To the extent Riggs attempted to amend his motion, we cannot consider such amendment on appeal.

A defendant must file a post-sentencing motion to withdraw a guilty plea in the same term in which he was sentenced. After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea. Thus, after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings.

(Citations and punctuation omitted.) Matthews v. State, 295 Ga. App. 752, 754 (1) (673 SE2d 113) (2009). The judgment of conviction was entered on October 1, 2010, during the trial court’s September 2010 term. OCGA § 15-6-3 (17). While Riggs filed his initial motion to withdraw during the same term, it was not until the June 2011 term of court, however, that he attempted to amend his motion to add the above claims. Id. Consequently, “the amended motion[ ], containing new claims, [was] therefore not within the court’s jurisdiction and could not form a basis for withdrawal.” (Citation and punctuation omitted.) Matthews, supra, 295 Ga. App. at 754 (1); cf. Wilcox v. State, 236 Ga. App. 235, 238-239 (4) (511 SE2d 597) (1999) (defendant waives a claim when he fails to raise it in motion to withdraw or at hearing on the same).

4. Riggs contends that he was entitled to withdraw his guilty plea based upon the ineffective assistance provided by his counsel. We disagree.

Where .. . the defendant bases his motion to withdraw on an ineffective assistance of counsel claim, he bears the burden of showing that his attorney’s performance was deficient and that, but for counsel’s errors, a reasonable probability exists that he would have insisted on a trial. A court need not address both the deficient performance and prejudice prongs of this test if the showing on one prong is insufficient. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

(Citation and punctuation omitted.) Williams v. State, 307 Ga. App. 780 (706 SE2d 82) (2011).

(a) Riggs asserts that trial counsel was ineffective for failing to file a demurrer to the indictment. We disagree.

(i) Riggs argues the indictment was subject to demurrer because the child molestation counts should have also merged with the rape offense.

An accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. An indictment is sufficient to withstand a general demurrer if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.
An indictment is sufficient to withstand a special demurrer if it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) Raybon v. State, 309 Ga. App. 365, 366 (710 SE2d 579) (2011).

Here, Riggs does not contend that the indictment did not apprise him of the charges against him, nor does he contend that he could have admitted the allegations charged and still be found innocent of child molestation. Rather, he claims that the indictment was subject to demurrer on the basis that the child molestation offenses should have merged with the rape offense. However, Riggs has provided no authority, and we have found none, for the proposition that the rule of merger could subject an indictment to demurrer. Indeed, his claim of merger was “premature and inappropriate for resolution by way of demurrer.” (Citation omitted.) Drewry v. State, 201 Ga. App. 674, 676 (3) (411 SE2d 898) (1991); see also Raybon, supra, 309 Ga. App. at 367, n. 13 (“[Wjhere single act, as factual matter, violates more than one penal statute, defendant may be prosecuted for more than one crime; the injustice to be avoided in that circumstance is sentencing the defendant for more than one crime following his conviction of multiple crimes; this injustice is avoided through merger[.]”) (citation and punctuation omitted).

(ii) Riggs claims that trial counsel was ineffective for failing to challenge the indictment on the ground that the child molestation counts were multiplicious. “Multiplicity is the charging of the same crime in several counts of a charging document.” (Citations and punctuation omitted.) Chancey v. State, 256 Ga. 415, 433 (7) (349 SE2d 717) (1986). Riggs asserts that Counts 2, 4, 7, 8, 9, 10, and 11 were multiplicious because they occurred at the same time and place and involved the same participants. While the challenged counts all charge Riggs with committing child molestation, each count is based upon different allegations. In other words, the facts needed to prove each count were entirely different from the other counts, and therefore, the indictment was not multiplicious. Id. Consequently, trial counsel’s failure to move for demurrer on the grounds claimed by Riggs did not constitute ineffective assistance of counsel.

(b) Riggs also asserts that trial counsel was deficient for failing to file a speedy trial demand under OCGA § 17-7-170 (a). Riggs claims that trial counsel ignored his repeated requests for a speedy trial. At the hearing on Riggs’s motion to withdraw his plea, however, trial counsel testified that he declined to file a statutory demand for strategic reasons. “[T]he decision to file a speedy trial demand is usually tactical in nature, and with regard to trial strategy, effectiveness should not be evaluated in hindsight.” (Citations and punctuation omitted.) Jenkins v. State, 282 Ga. App. 55, 56 (637 SE2d 785) (2006). Consequently, trial counsel’s decision to not file a speedy trial demand did not amount to ineffective assistance of counsel. See id.

(c) Riggs asserts that trial counsel was ineffective for presenting incomplete plea offers, which hindered Riggs’s ability to make a sound decision. There is no merit to his claim.

At the hearing on Riggs’s motion to withdraw his plea, trial counsel testified that he visited Riggs on multiple occasions to discuss the merits of the plea offers made by the State. While trial counsel admitted that he did not present a complete plea offer to Riggs on one occasion, trial counsel explained that Riggs was not interested in accepting any plea offer at the time. Notwithstanding Riggs’s claim that trial counsel lied about their communications, “[t]he trial court was authorized to believe counsel’s testimony over [Riggs’s]. Thus, [Riggs] has demonstrated no deficient performance in connection with the plea offer.” (Punctuation and footnote omitted.) Allen v. State, 302 Ga. App. 190, 192 (2) (a) (690 SE2d 492) (2010).

(d) Riggs argues that trial counsel was ineffective for hiding and destroying several photographs that would have impeached the testimony of two key witnesses. Contrary to Riggs’s claim, however, trial counsel testified at the hearing on Riggs’s motion to withdraw his plea that he was unaware of the subject photographs, never received them, and never misplaced or destroyed any evidence or information given to him by Riggs. Trial counsel further stated that he investigated the information provided by Riggs, and that much of that information turned out to be unhelpful or hurtful to Riggs’s defense. While Riggs again challenges trial counsel’s veracity, the trial court was authorized to believe trial counsel’s testimony. See Allen, supra, 302 Ga. App. at 192 (2) (a); see also McDaniel v. State, 279 Ga. 801, 801-802 (2) (621 SE2d 424) (2005) (noting that trial court’s factual findings and credibility determinations must be accepted unless they are clearly erroneous).

(e) Riggs also raises several enumerations of error asserting that trial counsel was unprepared at pretrial hearings and for trial. His claim is without merit.

(i) Riggs asserts that trial counsel was deficient in ensuring that two witnesses were available to testify at his trial. Riggs relies on the fact that trial counsel filed a first supplemental witness list only days before the scheduled trial. Trial counsel explained that the delay in filing the supplemental list occurred because he had only learned that these witnesses were material to Riggs’s defense about a month prior to his trial and there was a delay in getting the necessary discovery. While Riggs complains that trial counsel did not initially list these witnesses’ phone numbers, trial counsel subsequently filed a second supplemental witness list prior to trial that provided the necessary information. To the extent Riggs also argues that trial counsel had failed to subpoena these witnesses with less than a week prior to trial, there is no evidence that these witnesses were unavailable to testify at his trial. Indeed, on the day of the scheduled trial, trial counsel indicated that he was ready to proceed. Consequently, there is no evidence showing that the two witnesses were unavailable to testify at Riggs’s trial, and his claim of ineffectiveness on this ground fails.

(ii) Riggs next argues that trial counsel displayed his lack of preparation when counsel indicated that he was still working on a jury questionnaire several days prior to trial. Pretermitting whether trial counsel was deficient in this respect, Riggs has not demonstrated that he was prejudiced by counsel’s performance. Notably, after reviewing the proposed questionnaire prepared by the State, trial counsel indicated that he had only a few additional questions that he wanted to include. The trial court permitted counsel to supplement the State’s questionnaire, and indicated that trial counsel would not be limited by the State’s questionnaire in selecting the jury. In light of this evidence, Riggs has failed to demonstrate that had counsel completed the jury questionnaire sooner, he would have elected to proceed to trial. See Williams, 307 Ga. App. at 780.

(iii) Riggs also contends that trial counsel displayed his lack of preparation in failing to collect a complete list of phone numbers and addresses for the State’s witnesses. At a pretrial hearing, trial counsel requested that the State supplement its witness list to provide all of the witnesses’ contact information. There is no indication that the State failed to provide this information to trial counsel. There is also no evidence that trial counsel was unable to contact the State’s witnesses, or that his defense was hampered in any way as a result of the delay in receiving the requested information. Indeed, on the day of Riggs’s scheduled trial, trial counsel stated that he was ready to proceed. Consequently, Riggs has failed to demonstrate that he would have proceeded to trial had trial counsel been provided with the addresses and phone numbers of the State’s witnesses at an earlier date. See Williams, 307 Ga. App. at 780.

(iv) Riggs asserts that trial counsel was ineffective for failing to adequately prepare for the similar transaction hearing. Riggs relies on the fact that at a pretrial hearing on trial counsel’s motion to withdraw, trial counsel indicated that he was unaware that the trial court was also planning to consider the State’s request to introduce similar transaction evidence. The trial court stated that it was also surprised that the similar transaction hearing had been scheduled for the same time, as it believed the hearing’s sole purpose was to consider trial counsel’s motion to withdraw. The trial court then rescheduled the similar transaction hearing, where trial counsel provided extensive argument.

Riggs contends that trial counsel did not provide “valid” legal arguments at the similar transaction hearing. In his appellate brief, however, Riggs did not address what arguments trial counsel should have presented. Consequently, he has waived his argument regarding his trial counsel’s alleged failure to present adequate legal arguments at the similar transaction hearing. See Lloyd v. State, 263 Ga. App. 234, 238 (5) (587 SE2d 372) (2003).

Riggs also claims that trial counsel ignored evidence that would have allegedly disproved the similar transaction allegations. At the hearing on Riggs’s motion to withdraw his plea, trial counsel testified that in light of the proffer made by the State at the similar transaction hearing, he did not know of any material evidence that he failed to present. Trial counsel further testified that one individual who wrote a character letter on Riggs’s behalf could not be used as a witness because that individual was not alleged to have seen the similar transaction. Riggs also argues that trial counsel could have disproved the similar transaction evidence because the mother of one of the similar transaction victims was misidentified somewhere in the record. This misidentification, if true, would not have refuted the occurrence of the similar transaction. Therefore, Riggs has not demonstrated that trial counsel performed deficiently at the similar transaction hearing.

(f) Riggs next asserts that trial counsel showed no interest in defending him, as counsel allegedly failed to make a single objection during twelve pretrial hearings. In his brief, however, Riggs did not address what objections were necessary, or how they prejudiced his case. Consequently, he has waived his argument that trial counsel was deficient on this ground. See Lloyd, supra, 263 Ga. App. at 238 (5).

Decided October 31, 2012

Reconsideration denied December 5, 2012

Darren D. Riggs, pro se.

Larry Chisolm, District Attorney, Christine S. Barker, Margaret Heap, Assistant District Attorneys, for appellee.

(g) Riggs’s remaining enumerations of error relating to ineffective assistance of counsel are not supported by citations of authority or argument, Therefore, these enumerations are deemed abandoned. See Slmbey, supra, 288 Ga. App. at 718.

5. Lastly, Riggs argues that the trial court violated various statutes. Riggs, however, did not enumerate this argument as error. “[A] party cannot expand [his] enumerations of error through argument or citation in [his] brief.” (Punctuation and footnote omitted.) Manley v. State, 287 Ga. App. 358, 360 (4) (651 SE2d 453) (2007). As a result, we cannot consider his additional claims.

Accordingly, Riggs has failed to demonstrate that withdrawal of his plea was necessary to correct a manifest injustice, and the trial court did not abuse its discretion in denying his motion.

Judgment affirmed.

Ray and Branch, JJ., concur.

       As a threshold matter, we address the deficiencies in Riggs’s appellate brief, which fails to comply with our Rule 25. We note that Riggs’s election to proceed with his appeal pro se does not excuse him from compliance with the substantive and procedural requirements of the law. See Salazar v. State, 256 Ga. App. 50, 53 (4) (567 SE2d 706) (2002). Notably, Riggs has enumerated 32 errors, but the argument in his brief fails to follow the order and number of the enumeration of errors, as required by Court of Appeals Rule 25 (c) (1). The argument itself does not even address each enumeration of error. “As this Court has noted in the past, such briefs hinder this Court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown to a pro se appellant.” (Punctuation and footnote omitted.) Slmbey v. State, 288 Ga. App. 717, 718 (655 SE2d 223) (2007). Nonetheless, we will review his claims of error to the extent we can, “based on what we perceive his arguments to be.” (Citation and punctuation omitted.) Cameron v. State, 295 Ga. App. 670 (1) (673 SE2d 59) (2009).

       The parties agreed that the total maximum statutory sentence for the charges was life plus 370 years.

       Nevertheless, since Riggs argues that his trial counsel was ineffective in failing to adequately prepare for trial and other pretrial proceedings, we shall review his contentions of error relating to trial counsel’s alleged lack of preparation in the context of his ineffective assistance of counsel claims in Division 4 (f) below.

       Count 2 alleged that Riggs exposed the naked victim to one individual with the intent to arouse and satisfy Riggs’s sexual desires. Count 4 charged Riggs with displaying the naked victim to a second individual and spreading the victim’s legs for the purpose of exposing the victim’s genitalia. Count 7 alleged that Riggs displayed an explicit video to and in the victim’s presence. Count 8 charged Riggs with encouraging one male to engage in sexual acts with the victim. Count 9 charged Riggs with encouraging another male to engage in sexual acts with the victim. Count 10 alleged that Riggs lifted the victim’s clothing to expose her genitalia to one male. Count 11 charged Riggs with lifting the victim’s clothing to expose her genitalia to a different male.


author: Boggs, Judge.

text:
    A12A2210.
    MORRIS v. THE STATE.
    (734 SE2d 926)
    Decided December 5, 2012.

      Jennifer F. Arndt, for appellant.
   Boggs, Judge.

Glendon Morris filed a direct appeal from the trial court’s denial of his pre-trial plea in bar based upon an alleged violation of his constitutional right to a speedy trial. The Supreme Court of Georgia has recently ruled, however, that such a claim is not directly appeal-able and that a defendant must follow the interlocutory appeal procedures of OCGA § 5-6-34 (b). Sosniak v. State, 292 Ga. 35, 36 (2) (734 SE2d 362) (2012). Morris’s appeal is therefore dismissed. See Stevens v. State, 292 Ga. 218 (734 SE2d 743) (2012).

Appeal dismissed.

Doyle, P. J., and Andrews, J., concur.

Layla H. Zon, District Attorney, JillianR. Hall, Assistant District Attorney, for appellee.


author: DOYLE, Presiding Judge.

text:
    A12A1044.
    ALEXANDER v. THE STATE.
    (734 SE2d 432)
   DOYLE, Presiding Judge.

Jacquin Alexander appeals from the denial of his motion for new trial following his conviction by a jury of battery (two counts), simple battery (two counts), disorderly conduct, and criminal trespass to property. He contends that he received ineffective assistance of counsel based on his trial counsel’s failure to (1) investigate his mental health, (2) adequately prepare him for testifying, (3) object to references to a prior protective order entered against him, and (4) object to leading questions andnarrative testimony by the victim. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that Alexander had a tumultuous relationship with his girlfriend. After dating for a few months, the girlfriend decided to break up with Alexander. To end the relationship in person, the girlfriend requested that he pick her up from her workplace, which was two hours from his home in Clarke County. After the girlfriend informed Alexander of her decision, Alexander grew angry and took away her two cell phones so that she could not leave or contact anyone. Alexander pushed her onto a bed and physically restrained her for approximately an hour while she screamed and attempted to retrieve her phones. The girlfriend grew exhausted, andAlexander eventually slumped against the closed bedroom door, blocking the exit. Because Alexander was unresponsive, the girlfriend splashed some water in his face to awaken him, and Alexander quickly opened his eyes and replied “What the f— are you doing?” The girlfriend then ignored him, and the two eventually fell asleep.

The next day, Alexander awoke and returned one phone to the girlfriend, keeping the one she used to communicate with her family. Alexander went to work, and the girlfriend waited for him to return so she could retrieve her second phone. Later that day, Alexander arranged to pick up the girlfriend in his car, and when he briefly went back inside his workplace to obtain his cell phone charger, the girlfriend looked through Alexander’s text messages on his phone, a practice they each openly engaged in while they were dating. The girlfriend discovered a message confirming that Alexander had lied to her about his whereabouts on an earlier occasion, and she confronted him when he got back in the car. An argument ensued as Alexander drove, and after the girlfriend slapped Alexander’s arm in anger, Alexander punched her in the face with his fist, scratching her eye, knocking out both contact lenses, and causing her nose to bleed profusely.

Alexander then drove at excessive speed to a subdivision, where he parked, and the two continued arguing. Alexander obtained the girlfriend’s phones and refused to return them, smashing one to the ground, breaking it. After a subdivision resident approached them, they got back in the car and resumed driving. As Alexander drove, the girlfriend attempted to access her remaining phone in Alexander’s front pants pocket. Alexander leaned forward to hinder her efforts and violently headbutted her with the back of his head, cutting her lip. The girlfriend retreated to her seat and waited to arrive back at Alexander’s residence.

Upon arrival, Alexander initially refused to return her phone, but ultimately gave it back when the battery had expired. The girlfriend called a friend, who picked her up and took her to her residence, where they photographed her face and called the police.

Alexander was charged with battery (two counts), simple battery (three counts), disorderly conduct, and criminal trespass. He was found guilty by a jury of all but one simple battery count. Alexander moved for a new trial, arguing that he received ineffective assistance of counsel. Following a hearing, the trial court denied the motion, giving rise to this appeal.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

1. Alexander contends that his trial counsel performed deficiently by failing to properly investigate his mental health prior to trial. At the motion for new trial hearing, Alexander’s mother testified that, as a child, he had received counseling for behavior problems, was diagnosed as clinically depressed, and had been prescribed anti-depressants. Trial counsel testified at the hearing that she was unaware of these issues and had not asked Alexander about his mental health because he stated that he had no mental health issues on his intake form at the public defender’s office. She stated that she came to believe he could have mental health issues when Alexander testified that he had passed out during times of mental stress, and that, during an argument, he had stabbed himself in the arm and sent his girlfriend a photograph of his wound to demonstrate his affection for her.

Alexander argues on appeal that trial counsel should have discovered this evidence and used it at trial to provide context to his actions and at sentencing to mitigate his sentence. But this ignores the fact that Alexander never made this assertion to trial counsel, and he did not disclose it when asked about it in an intake interview.* Further, the alleged mental health problems would not have been relevant to his stated trial strategy of self-defense. For example,

[a] defendant is not permitted to support a justification defense with an explanation that he or she had been the victim of an earlier attack committed by an unknown person; such evidence is not relevant to the critical question of whether the circumstances surrounding the commission of the crimes on trial would have excited the fears of an objective reasonable person to the point where the defendant’s actions were justified.

Likewise, there was no evidence presented at the motion for new trial hearing that Alexander was impaired by a mental health condition at the time he battered his girlfriend. Based on these facts, this ground fails to support his claim.

With respect to sentencing, the trial court heard the testimony by Alexander’s mother that he historically had suffered from mental illness. There was no additional evidence proffered as to the effect of Alexander’s mental health on his behavior as it related to the offenses for which he was tried. In the absence of evidence as to whether or how Alexander’s mental condition caused or exacerbated his behavior in this case, Alexander has not established that a reasonable probability existed that his sentence would have been more lenient if his mental health history had been offered at sentencing. Accordingly, Alexander has failed to meet his burden under Strickland.

2. Alexander next contends that his trial counsel faded to adequately prepare him for testifying, so his testimony and demeanor on cross-examination damaged his credibility. At the motion for new trial hearing, trial counsel testified that she intended to pursue a strategy of self-defense and that she expected to be able to elicit sufficient testimony to support her theory, so she did not plan to call Alexander as a witness. After the State rested at trial, however, trial counsel did not feel confident that the evidence would support a jury instruction on self-defense, so at a lunch break, she discussed with Alexander the option of calling him as a witness, including weighing the costs and benefits of his testimony. At the conclusion of the break, Alexander elected to testify to support his self-defense theory.

On appeal, Alexander argues that his trial counsel inadequately prepared him to testify because he acted defensive on the stand, answered questions with questions, claimed he had other witnesses he could call to support him, and referred to a protective order against him. But it is clear that trial counsel’s actions were done in furtherance of her reasonable trial strategy of establishing a self-defense theory. After the State rested, trial counsel made a mid-trial calculated risk to reinforce the self-defense theory with Alexander’s testimony, so she could ensure that the trial court would grant a request for a jury instruction on justification. Although trial counsel might have pursued a different course in hindsight, we view “the effectiveness of trial counsel’s performance from counsel’s perspective at the time of trial,” and Alexander’s claim “is judged by whether counsel rendered reasonably effective assistance, not by a standard of error-less counsel or by hindsight.” The constitutional guarantee of effective legal assistance means that “[a] defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials.”

Based on trial counsel’s reasonable self-defense strategy, trial counsel reconsidered the risk of not letting Alexander testify and prepared him to testify in light of the developments at trial. The fact that Alexander’s demeanor and responses to the State’s cross-examination may have been less than optimal does not render his trial counsel’s representation constitutionally deficient.

3. Alexander next contends that his trial counsel performed deficiently by failing to object to a witness’s mention of a protective order, which the girlfriend had obtained after Alexander continued to contact her following the offenses. The first reference occurred in the following colloquy during his trial counsel’s cross-examination of the victim:

Q: [Alexander] had attempted to contact you after this incident, right?
A: Right. After April the 10th.
Q: Okay. And at any point did you tell him not to contact you?
A: No, I — I refused to respond to anything.
Q: Okay. But you didn’t explicitly say “stop contacting me”?
A: No, I didn’t but from how I left the scene on April 10th, from his house, it was really implied that I did not want to be around him at all whatsoever.
Q: Okay. And then after April 27th, Mr. Alexander has not — or he stopped trying to contact you?
A: When the TPO was filed. I can’t remember the exact date, if that was the exact date or not.
Q: So that would have been the first time Mr. Alexander got notice he should not be contacting you?
A: Yes.

Brief references to the “TPO” were made twice more during trial.

As demonstrated by the colloquy above, trial counsel elicited the first reference to the protective order during a line of questioning showing that the girlfriend had never asked Alexander to stop contacting her and that he ultimately did stop contacting her altogether. This questioning reflects a reasonable trial strategy of attempting to show that the girlfriend did not explicitly end the relationship and that Alexander ultimately did respect her wishes to cease contact. That trial counsel might regret this line of questioning after the fact does not demonstrate deficient performance because the inquiry in an ineffective assistance claim “focuses on the reasonableness of counsel’s conduct from counsel’s perspective at the time of trial. Thus, the courts will not second-guess counsel’s decisions concerning matters of trial strategy and tactics.”

Further, the protective order is indicative of a subsequent difficulty between the victim and Alexander. This Court has held that “[a] subsequent difficulty between a defendant and the victim is admissible as evidence of the relationship between the two, and may show the defendant’s motive, intent, and bent of mind in committing the alleged crime against the victim.” Thus, it was not unreasonable for trial counsel to avoid an objection to the testimony and run the risk of drawing further attention to it in a way that would not serve her purpose. Accordingly, this ground fails as a basis for Alexander’s claim.

4. Finally, Alexander argues that his trial counsel should have objected to the victim’s testimony on the ground that it was provided in long, narrative answers, sometimes in response to leading questions from the State. The record reveals, however, that the testimony in this case was not provided on a strictly narrative basis; instead, the victim answered the State’s questions — primarily open-ended questions such as “What happened after that?” and “What happened next?” — and did not stray into irrelevant information. We find no basis for an objection to the testimony in this case, and Alexander does not cite any case demonstrating an abuse of discretion by the admission of such testimony over an objection.

Decided November 16, 2012

Reconsideration denied December 6, 2012.

Elizabeth M. Grant, for appellant.

Carroll R. Chisholm, Jr., Solicitor-General, William W. Fleenor, Assistant Solicitor-General, for appellee.

Further, we note that our courts have approved of true narrative testimony, particularly in cases involving youthful victims of sex or violent crimes: “It is not error to allow a witness to deliver his testimony in narrative form, without the aid of questions from counsel, when counsel so request, provided the witness is not permitted to state anything which is inadmissible as evidence. This practice is rather to be commended than condemned.” Accordingly, because the failure to make a meritless objection will not provide support for finding trial counsel ineffective, this enumeration is without merit.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-5-23.1 (a).

       OCGA § 16-5-23 (a) (1).

       OCGA § 16-11-39 (a) (1).

       OCGA § 16-7-21 (a).

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

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       See Tyner v. State, 313 Ga. App. 557, 566 (6) (d) (722 SE2d 177) (2012) (finding no ineffective assistance because defendant did not disclose alleged mental health problem to trial counsel).

       (Emphasis supplied.) Harris v. State, 279 Ga. 304, 308 (3) (c) (612 SE2d 789) (2005).

       See Baker v. State, 259 Ga. App. 433, 437 (3) (d) (577 SE2d 282) (2003), disapproved of on other grounds by Schofield v. Holsey, 281 Ga. 809, 812, n. 1 (642 SE2d 56) (2007).

       See Hernandez v. State, 303 Ga. App. 103, 106 (2) (692 SE2d 712) (2010) (“Mere speculation will not support a claim of ineffective assistance of counsel.”); Whited v. State, 258 Ga. App. 195, 200 (7) (573 SE2d 449) (2002), overruled on other grounds by Schofield, 281 Ga. at 812, n. 1.

       (Punctuation omitted.) Coats v. State, 303 Ga. App. 818, 822 (3) (695 SE2d 285) (2010).

       (Punctuation omitted.) Rouse v. State, 290 Ga. App. 740, 742 (1) (660 SE2d 476) (2008).

       (Punctuation omitted.) Sutton v. State, 238 Ga. 336, 338 (232 SE2d 569) (1977).

       (Punctuation omitted.) Smith v. State, 261 Ga. App. 25, 27 (3) (581 SE2d 673) (2003).

        Reed v. State, 309 Ga. App. 183, 188 (2) (709 SE2d 847) (2011) (noting that no notice and pre-trial hearing is required for the introduction of subsequent difficulty evidence). To the extent that Alexander argues that trial counsel was ineffective by failing to request a jury charge limiting the jury’s consideration of the testimony, we find no cause for reversal in this case. See Freeman v. State, 269 Ga. App. 435, 438 (1) (604 SE2d 280) (2004) (‘‘[W]hen evidence of subsequent difficulties is admitted, the trial court is not required to give a limiting charge in the absence of a request for such a charge.”).

       See, e.g., Anglin v. State, 173 Ga. App. 648, 651 (3) (327 SE2d 776) (1985) (“The court may, in the exercise of its discretion, permit a party calling a witness to propound leading questions. A judge is given latitude and discretion in permitting leading questions, and unless there has been an abuse thereof, resulting in prejudice and injury, there is no reversible error.”) (punctuation omitted).

       (Punctuation omitted.) Burroughs v. State, 186 Ga. App. 40,44(7) (366SE2d378) (1988), quoting Horton v. State, 123 Ga. 145 (1) (51 SE 287) (1905).

       See Wesley v. State, 286 Ga. 355, 357 (3) (e) (689 SE2d 280) (2010).


author: Ellington, Chief Judge.

text:
    A12A1059.
    CENTER FOR A SUSTAINABLE COAST, INC. et al. v. GEORGIA DEPARTMENT OF NATURAL RESOURCES.
    (734 SE2d 206)
   Ellington, Chief Judge.

The Center for a Sustainable Coast, Inc., and two named plaintiffs (collectively, “the Center”) filed a petition for injunctive relief and declaratory judgment challenging the Georgia Department of Natural Resources’ (“DNR”) use of “letters of permission” to allow alterations to the coast that the Center contends require a permit.* The trial court dismissed the petition, and the Center appeals this ruling.

On appeal, this Court reviews the denial of a motion to dismiss de novo. Scott v. Scott, 311 Ga. App. 726 (1) (716 SE2d 809) (2011). In deciding the motion, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiffs favor. Id. So viewed, the relevant facts show that the Center filed suit against several defendants, including DNR and the Coastal Resources Division (“CRD”), which is a division of the DNR. The complaint alleged that the CRD was violating the Shore Protection Act (“the Act”) by issuing letters of permission for construction activities that, under the Act, require a permit. OCGA § 12-5-230 et seq. Pursuant to OCGA § 12-5-237:

(a) No person shall construct or erect any structure or construct, erect, conduct, or engage in any shoreline engineering activity or engage in any land alteration which alters the natural topography or vegetation of any area within the jurisdiction of this part, except in accordance with the terms and conditions of a permit therefor issued in accordance with this part. A permit may authorize the construction or maintenance of the project proposed in an application. After construction of a project pursuant to a permit, the project may be maintained without a permit so long as it does not further alter the natural topography or vegetation of the site or increase the size or scope of the project.
(b) No permit shall be required for a structure, shoreline engineering activity, or land alteration which exists as of July 1,1979, provided that a permit must be obtained for any modification which will have a greater adverse effect on the sand-sharing system or for any addition to or extension of such shoreline engineering activity, structure, or land alteration; provided, further, that, if any structure, shoreline engineering activity, or land alteration is more than 80 percent destroyed by wind, water, or erosion as determined by an appraisal of the fair market value by a real estate appraiser certified pursuant to Chapter 39A of Title 43, a permit is required for reconstruction.

In order to obtain a permit, an applicant must comply with myriad requirements, which includes providing the names and addresses of all landowners whose property adjoins or abuts the parcel of land. See, e.g., OCGA § 12-5-238. The permit is then submitted to a Shore Protection Committee, which is comprised of the commissioner of the DNR and four others. OCGA § 12-5-235 (a), (b). The interested parties and adjoining landowners are provided notice of the proposed action before any permit is granted. See OCGA § 12-5-239 (b). In determining whether to grant the permit, the granting authority must consider whether the proposed action is unreasonably harmful; whether completion of the project will unreasonably interfere with conservation of marine life or wildlife; and whether completion of the project will unreasonably interfere with public access and enjoyment of public properties. OCGA § 12-5-239 (i).

Although the Act does not contain any provision for circumventing the permit process, the CRD often issues letters of permission for certain requests without requiring the applicant to formally seek a permit. Such letters of permission have allowed petitioners to take actions ranging from the rebuilding of houses and drainage systems, to the construction of a film set. The Center sought injunctive relief and declaratory judgment stating that the issuance of letters of permission were ultra vires acts. The Center also asserted claims for equal protection violations, due process violations, and attorney fees.

DNR and CRD (collectively, “the Respondents”) moved to dismiss the complaint. According to the Respondents, the crux of the Center’s claim was its request for a declaratory judgment and that all other counts in the complaint flowed from the contention that the issuance of letters of permission were ultra vires acts.3 The Respondents maintained that declaratory judgment was unavailable as no justiciable controversy existed. Because the remaining counts flowed from the declaratory judgment, the Respondents argued those counts should be dismissed as well. The trial court agreed with these arguments and granted the Respondents’ motion to dismiss.

The Center seeks to appeal this ruling. Although the Center raises several arguments in its brief, the two main issues are: (1) whether the trial court properly dismissed the declaratory judgment claim; and (2) whether dismissal of the declaratory judgment claim required dismissal of the remaining claims and the request for injunctive relief.

1. Under OCGA § 9-4-2, a trial court is authorized to declare rights and other legal relations of interested parties in any civil matter “in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.” OCGA § 9-4-2 (b).

However, a declaratory judgment may not be granted in the absence of a justiciable controversy. The object of thra declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole.

(Punctuation omitted.) Cox v. Athens Regional Med. Center, 279 Ga. App. 586, 594 (5) (631 SE2d 792) (2006). To constitute a justiciable controversy, “there must be a concrete issue, a definite assertion of legal rights, and a positive legal duty with respect thereto, which are denied by the adverse party.” (Punctuation omitted.) Airport Auth. of City of St. Marys v. City of St. Marys, 297 Ga. App. 645, 648 (678 SE2d 103) (2009).

The trial court properly concluded that there is no justiciable controversy. The Center is not seeking guidance with respect to actions it might take. Rather, it seeks a declaration that past actions taken by the Repondents were ultra vires. “Where the rights of the parties have already accrued and the party seeking the declaratory judgment does not risk taking future undirected action, a declaratory judgment would be‘advisory.’ ” Baker v. City of Marietta, 271 Ga. 210, 214 (1) (518 SE2d 879) (1999). Although it is possible that the Repondents will issue letters of permission in the future, “ [declaratory judgment will not be rendered based on a possible or probable future contingency.” (Punctuation omitted.) Id. at 215 (1). Under these circumstances, the trial court did not err in dismissing the declaratory judgment petition.

2. The trial court did err, however, in dismissing the Center’s claim for injunctive relief. “A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of the plaintiff’s claim.” (Punctuation omitted.) South Point Retail Partners v. North American Properties Atlanta, 304 Ga. App. 419, 420 (696 SE2d 136) (2010).

In its petition, the Center asserted that it was authorized to bring suit under OCGA § 12-5-245, which provides, in relevant part, that

[u]pon showing of any activity in violation of this part or of any ordinance or regulation adopted pursuant to this part, a temporary restraining order, a permanent or temporary injunction, or other order shall be granted without the necessity of showing lack of an adequate remedy at law and irreparable injury.

Decided November 13, 2012

Reconsideration denied December 7, 2012

Because this Code section did not expressly waive sovereign immunity, the trial court found that the injunctive relief claim was barred.

Pretermitting whether OCGA § 12-5-245 permits a claim for injunctive relief, the Center is able to bring such a claim without running afoul of sovereign immunity. Appellate courts have “long recognized an exception to sovereign immunity where a party seeks injunctive relief against the state or a public official acting outside the scope of lawful authority.” Intl. Business Machines Corp. v. Evans, 265 Ga. 215, 216 (1) (453 SE2d 706) (1995). This is so because a governmental entity cannot cloak itself in sovereign immunity while performing illegal acts to the detriment of its citizens. See id.; see also Chilivis v. Nat. Distrib. Co., 239 Ga. 651, 654 (1) (238 SE2d 431) (1977) (sovereign immunity not applicable to injunctive relief claim alleging action beyond scope of official power).

The Center’s petition clearly alleges that the CRD has issued letters of permission for activities that, under OCGA § 12-5-237, require a permit. Having alleged such ultra vires conduct, the Center should be permitted to bring suit. See Chilivis, 239 Ga. at 654; see also League of Women Voters &c. v. City of Atlanta, 245 Ga. 301, 303 (1) (264 SE2d 859) (1980) (plaintiff may bring action to restrain public official from acting outside scope of authority). It follows that the trial court erred in dismissing the Center’s claim for injunctive relief.

3. Finally, the Center asserts that the trial court erred in dismissing its due process and equal protection claims and request for attorney fees and expenses. Although the trial court dismissed these counts, it did so on the basis that the claims were either derivative of the declaratory judgment claim or moot. The trial court otherwise did not engage in any analysis regarding the viability of these claims. Moreover, neither party provides any cogent argument as to their viability. Given the lack of meaningful analysis or cogent argument, we vacate the court’s ruling as to these claims and remand for consideration below in light of this Court’s opinion.

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded.

Phipps, P. J., and Dillard, J., concur.

Donald D. J. Stack, Jennifer R. Culler, for appellants.

Samuel S. Olens, Attorney General, James D. Coots, Senior Assistant Attorney General, Isaac Byrd, Deputy Attorney General, John E. Hennelly, Assistant Attorney General, for appellee.

       The appellees moved for permission to file a supplemental brief, which was attached to the motion. The motion is hereby granted.

       Local governments that have enacted ordinances meeting or exceeding the standards of the Act may also be certified to issue permits. See OCGA § 12-5-241 (a).

       Compare OCGA § 12-5-283 (d) (granting commissioner authority to permit minor alterations to marshlands under Coastal Marshlands Protection Act).

       OCGA § 50-13-10, which governs declaratory judgment actions, provides a limited waiver of immunity for such actions. See, e.g., Southern LNG v. MacGinnitie, 290 Ga. 204, 206-207 (1) (719 SE2d 473) (2011) (Benham, J., dissenting).


text:
    A12A1185.
    SCSJ ENTERPRISES, INC. et al. v. HANSEN & HANSEN ENTERPRISES, INC. et al.
    (734 SE2d 214)
   Ellington, Chief Judge.

The Fulton County Superior Court entered judgment confirming an arbitration award, which required SCSJ Enterprises, Inc., and Shandton Williams (collectively, SCSJ) to pay approximately $800,000 to Hansen & Hansen Enterprises, Inc., and Juden Enterprises, Inc. (collectively, Hansen). SCSJ appeals this ruling, arguing that the trial court erred in returning the case to arbitration; the trial court erred in confirming the arbitration award; and the judgment was inconsistent with the arbitration award. For the reasons that follow, we affirm.

This is the third appearance of this case before this Court. The dispute arose after SCSJ Enterprises purchased two UPS Store franchises from Hansen. In connection with the purchase, SCSJ executed two $250,000 promissory notes, one in favor of Hansen and one in favor of Juden Enterprises. Williams signed a personal guaranty for each note.

SCSJ filed a claim against Hansen, asserting that Hansen had fraudulently misrepresented the value of the two stores. Hansen filed counterclaims for nonpayment of the two promissory notes. In accordance with the sales agreement, the claims were submitted to arbitration. The arbitrator found in favor of Hansen, who filed an application for confirmation of the arbitration award. SCSJ, however, filed a motion to vacate the award, which the trial court granted.

Hansen appealed, and in Hansen & Hansen Enterprises v. SCSJ Enterprises, 299 Ga. App. 469 (682 SE2d 652) (2009), we affirmed the judgment in part, reversed in part, and remanded the case with direction. Succinctly stated, this Court ruled that the arbitrator knew and applied the applicable Georgia law with respect to the fraud claim, and thus the trial court erred in concluding the arbitrator manifestly disregarded the law. Id. at 472. We also concluded that the arbitrator did not overstep its authority in awarding attorney fees, and the trial court erred in concluding otherwise. Id. at 472-473 (2) (a). Finally, we agreed with the trial court that no final arbitration award had been made because the arbitrator failed to consider Hansen’s counterclaim on the promissory notes. Although the promissory notes did not contain an arbitration clause, the notes expressly incorporated the sales agreement, which required arbitration of “any and all disputes.” Id. at 473-474 (2) (b). This Court remanded the case to the trial court with direction to “vacate the arbitrator’s award consistent with this opinion and order a rehearing before the same arbitrator on Hansen’s counterclaim only.” (Citations omitted.) Id. at 474.

On remand, the trial court entered an order confirming the arbitrator’s award with respect to SCSJ’s claims, but vacating that portion of the award dismissing Hansen’s counterclaim. SCSJ appealed, and we reversed. See SCSJ Enterprises v. Hansen & Hansen Enterprises, 306 Ga. App. 188 (702 SE2d 12) (2010). The sole issue on appeal was whether the trial court properly vacated a portion of the arbitrator’s award. We found that the trial court erred because an arbitration award may only be vacated in its entirety. Id. at 189. We nonetheless noted that vacatur of the entire award did not render the prior proceeding a nullity because, under OCGA § 9-9-13 (e), rehearing before the arbitrator could be limited to the specific issue necessitating the vacatur. Id. at 190. Therefore, we remanded the case and directed the trial court to vacate the arbitrator’s entire award and to direct the arbitrator to consider Hansen’s counterclaims. Id.

Following our ruling, SCSJ filed a motion to dismiss the arbitration proceedings. According to SCSJ, the fact that the arbitration award had been vacated meant that no final award had been made, which permitted SCSJ to terminate arbitration in accordance with the original sales contract. The trial court denied the motion.

The trial court then vacated the prior arbitration award in its entirety and remanded the case to the arbitrator directing him to consider Hansen’s counterclaim for nonpayment of the promissory notes. The arbitrator issued a new award in which it found in favor of Hansen on the counterclaims on the promissory notes. Specifically, the arbitrator entered an award in favor of Juden Enterprises for $394,931.59 and in favor of Hansen and Hansen Enterprises in the amount of $394,931.59. The arbitrator also found that Williams was liable under his personal guaranties in the amount of $789,863.18. Finally, the arbitrator required SCSJ and Williams to reimburse Hansen $12,261.35 for the fees and expenses of arbitration.

The trial court confirmed the arbitration award and entered judgment against SCSJ and Williams “jointly and severally, in the amount of $789,863.18.” The court also required payment of arbitration fees, attorney fees, and interest, for a total judgment of $814,142.54. SCSJ appeals this ruling.

1. In its first enumeration of error, SCSJ contends that it was entitled to terminate arbitration proceedings under the sales contract and, thus, the trial court erred in remanding the case to the arbitrator. The arbitration clause in the contract provided, in pertinent part, that the arbitration shall promptly proceed to hearing and determination provided, however, that “if a final decision has not been rendered within thirty (30) days after the conclusion of the [arbitration] hearing, then any party may terminate the arbitration and proceed to litigation.” Although the arbitrator issued a final decision, SCSJ contends that this Court’s subsequent ruling, which vacated the decision, meant no final award had been rendered, permitting SCSJ to terminate arbitration proceedings.

Arbitration in Georgia is a matter of contract. See Helms v. Franklin Builders, 305 Ga. App. 863, 864 (700 SE2d 609) (2010) (construction of arbitration agreement is question of law subject to de novo review). As such, “[t]he construction of an arbitration clause in a contract is subject to the ordinary rules of contract construction.” (Citation omitted.) South Point Retail Partners v. North American Properties Atlanta, 304 Ga. App. 419, 421 (1) (696 SE2d 136) (2010). One such rule requires that we interpret a contract in accordance with its plain language. See id. at 422 (1). Another “well-established rule of contract interpretation [is] that the construction which will uphold a contract in whole and in every part is to be preferred. It is likewise well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless.” (Citation and punctuation omitted.) Etowah Environmental Group v. Advanced Disposal Svcs., 297 Ga. App. 126, 131-132 (2) (676 SE2d 456) (2009).

The contract at issue provided that a party could avoid arbitration and proceed to litigation if no final decision was rendered. Here, it is undisputed that the arbitrator rendered a final decision. SCSJ essentially contends that the vacatur of that decision rendered it a nullity. But the mere fact that an award is vacated is not synonymous with the award never having been made. See, e.g., SCSJ Enterprises, 306 Ga. App. at 190 (“vacatur of the entire arbitration award will not render the prior proceedings a nullity”). Indeed, if we were to interpret the contract in the manner advocated by SCSJ, we would render the arbitration provision largely meaningless. Accordingly, this argument lacks merit.

2. According to SCSJ, the trial court erred in confirming the award because the arbitrator exceeded his authority by: (a) issuing an award against Williams, who was not a party to the arbitration agreement; (b) issuing an award that deviates from the liquidated damages provisions set forth in the promissory notes; and (c) misinterpreting various default provisions.

The bases for vacating an arbitrator’s award are limited to those set forth in OCGA § 9-9-13, and these bases must be strictly construed by the courts. See Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408, 411 (1) (696 SE2d 663) (2010). Acourt may not vacate an arbitrator’s award on the basis of overstepping authority unless the arbitrator determines matters beyond the scope of the case and addresses issues not before him. See Brookfield Country Club v. St. James-Brookfield, LLC, 299 Ga. App. 614, 620 (2) (683 SE2d 40) (2009).

(a) SCSJ asserts that the arbitrator exceeded his authority in issuing an award against Williams, who was not a named party to the arbitration agreement. As a general rule, only those signatories to an arbitration agreement may be compelled to arbitrate. See Witherington v. Adkins, 271 Ga. App. 837, 842 (1) (610 SE2d 561) (2005). “Nevertheless, under both the [Georgia Arbitration Code] and federal law, in certain circumstances, the theory of equitable estoppel provides a means of bringing a nonsignatory within the terms of an arbitration agreement.” (Citations omitted.) Helms v. Franklin Builders, 305 Ga. at 866.

Here, Williams signed two guaranties, which obligated him to repay specific notes. The notes, in turn, expressly provided that they were made “subject to the terms and conditions of [the] Memorandum of Sale,” which included an arbitration clause. Accordingly, Williams’ obligations under the guaranty agreements encompass SCSJ’s obligations under the promissory note. Under these circumstances, equitable estoppel may be applied to require Williams’ participation in arbitration. See Helms v. Franklin Builders, Inc., 305 Ga. App. at 866. Moreover, it was Williams who initiated arbitration proceedings against Hansen, and “[a] party cannot rely on [a] contract when it works to [his] advantage and then repute it when it works to [his] disadvantage.” (Citation and punctuation omitted.) Id.

(b) SCSJ maintains that the arbitration award does not conform to the liquidated damages provisions specified in the promissory notes.. Pretermitting whether the arbitrator departed from the terms of the underlying agreements, SCSJ has presented no basis for this Court to reverse the trial court’s judgment.

SCSJ does not contend that the arbitrator overstepped his authority as contemplated by OCGA § 9-9-13 (b) (3). Rather, SCSJ asks this Court to ascertain whether the evidence was sufficient to support the arbitrator’s awards against both SCSJ and Williams individually. But “an appellate court will not consider the sufficiency of the evidence underlying an arbitrator’s award.” (Punctuation and footnote omitted.) Phan v. Andre & Blaustein, LLP, 309 Ga. App. 191, 195(2) (709 SE2d 863) (2011)i (“‘[A] llowing an appellate court to make a determination of the sufficiency of the evidence in arbitration cases would only frustrate the purpose of arbitration. Aprimary advantage of arbitration is the expeditious and final resolution of disputes by means that circumvent the time and expense associated with civil litigation.’ ”).

(c) In a related argument, SCSJ asserts that the arbitrator misinterpreted the various default provisions under the documents. For the reasons discussed in Division (2) (b), this argument does not present a valid basis for vacating the award.

3. SCSJ contends that the trial court erred in confirming the arbitration award because the arbitrator manifestly disregarded the law by rejecting SCSJ’s defense of failure of consideration and/or recoupment. We disagree.

As we made clear in our decision in Hansen & Hansen, manifest disregard of the law involves a two-part inquiry:

[w] e first consider whether the governing law alleged to have been ignored by the arbitrator was well defined, explicit, and clearly applicable. We then look to the knowledge actually possessed by the arbitrator. The arbitrator must appreciate the existence of a clearly governing legal principle but decide to ignore or pay no attention to it. Both of these prongs must be met before a court may find that there has been a manifest disregard of law. An error in interpreting the applicable law does not constitute “manifest disregard.” The applicable law must have been deliberately ignored.

(Citations and punctuation omitted.) 299 Ga. App. at 471 (1).

SCSJ has not shown that the arbitrator deliberately disregarded the law. To the contrary, the arbitrator included with his award a detailed legal memorandum in which he considered the cases cited by SCSJ, but distinguished them on the facts. The fact that the arbitrator rejected SCSJ’s legal argument does not mean he ignored the arguments. This is true even where the arbitrator misconstrues the law. See Hansen & Hansen, 299 Ga. App. at 471 (1); see also Savannah Dodge v. Bynes, 291 Ga. App. 281, 282-283 (661 SE2d 660) (2008). Accordingly, this argument presents no basis for reversal. See America’s Home Place v. Cassidy, 301 Ga. App. 233, 235-236 (2) (687 SE2d 254) (2009).

4. SCSJ contends that the trial court erred in issuing a judgment that did not conform to the arbitration award. The arbitrator entered an award against SCSJ in favor of Juden Enterprises for $394,931.59; an award against SCSJ in favor of Hansen & Hansen Enterprises for $394,931.59; and an award against Williams as guarantor for $789,863.18. The trial court then entered judgment, finding that “Hansen & Hansen Enterprises, Inc., and Juden Enterprises, Inc., are entitled to recover from Defendants SCSJ Enterprises, Inc., and Shandton Williams, jointly and severally, in the amount of $789,863.18.” According to SCSJ, this judgment “inherently assumes an indivisible character to the arbitration award.” SCSJ also suggests that the award constitutes a double recovery.

Under OCGA § 10-7-1, a guarantor is jointly and severally liable with the principal unless the contract provides otherwise. As Williams signed an unconditional guaranty for both notes that does not preclude joint liability, we fail to see how the trial court’s order improperly assumes an indivisible character. See, e.g., Hassell v. First Nat. Bank of Newton County, 218 Ga. App. 231, 232 (1) (461 SE2d 245) (1995) (guarantor jointly and severally liable with principal). We further see no impermissible double recovery. We agree that the arbitrator was somewhat inartful in drafting the award without specifying that the amount owed by Williams under the guaranties was joint and several with SCSJ. But, given the fact that Williams’ individual liability arises solely from his role as a guarantor, it cannot reasonably be argued that his obligations would be in addition to the obligations of the principal. See OCGA § 10-7-1. To the extent the arbitrator’s award was vague or confusing, the trial court clarified in its judgment that Williams’ liability was joint and several with SCSJ.

Decided November 13, 2012 —

Reconsideration denied December 7, 2012 — Cert, applied for.

Johnson & Freeman, Raymond C. Humphrey, for appellant.

Krevolin & Horst, Jeffrey D. Horst, for appellee.

In a related argument, SCSJ contends the trial court lacked authority to clarify the arbitrator’s ruling in the judgment. In support of this contention, SCSJ cites Phan v. Andre & Blaustein, supra. SCSJ reads this case too broadly. In Phan, we held that a trial court could not enter judgment in an amount greater than that awarded by the arbitrator. See id. at 196 (3). We did not hold, however, that the trial court’s judgment must track the exact language of the arbitration award. As long as a trial court’s judgment does not affect the merits of the arbitrator’s ruling, reversal is not required. See Lowe v. Center Neurology Assoc., 288 Ga. App. 166, 169 (2) (653 SE2d 318) (2007). Furthermore, a trial court may interpret and enforce an ambiguous arbitration award as long as the ambiguity can be resolved from the record. See Flender Corp. v. Techna-Quip Co., 953 F2d 273, 280 (II) (3) (7th Cir. 1992). Here, the trial court’s judgment does not undermine the merits of the arbitration award. If anything, the judgment simply clarified an ambiguity. See id.

Judgment affirmed. Phipps, P. J., concurs. Dillard, J., concurs in judgment only.

       Juden Enterprises and Hansen & Hansen Enterprises are owned and operated by husband and wife Dennis and Judith Hansen.

       In. keeping with this Court’s directive, the arbitrator also reentered the original award in which it found in favor of Hansen on SCSJ’s fraud claims. See SCSJ Enterprises, 306 Ga. App. at 190.

       The amount of damages on the promissory notes included principal, accrued interest, and attorney fees.

       Under OCGA § 9-9-13 (b), permissible bases for vacating an arbitrator’s award include:
      (1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; (4) Afailure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection; or (5) The arbitrator’s manifest disregard of the law.

       Although Williams signed both the promissory notes and the guaranty agreements, he signed the former in his capacity as president and CEO of SCSJ and the latter in his individual capacity.


text:
    A12A1769.
    In the Interest of T. H., a child.
    (735 SE2d 287)
   Ellington, Chief Judge.

The mother of six-year-old T. H. appeals from an order of the Juvenile Court of Fulton County in which the court ruled that the child was deprived. The mother contends that there was insufficient clear and convincing evidence to support the court’s conclusion. It is unnecessary to reach the merits of this issue, however, because we conclude that it has been rendered moot by subsequent, unappealed deprivation and custody judgments in this case in the juvenile court, as explained below. Accordingly, this appeal is dismissed.

The record shows the following, undisputed facts. In March 2007, the Department of Human Services’ Division of Family and Children Services (“the Department”) obtained temporary custody of five-month-old T. H., whose sixteen-year-old mother (the appellant herein) was already in the Department’s custody and living in foster care. T. H. remained in the Department’s custody through February 10,

2011, when the Department filed a deprivation petition in which it asserted that T. H. was still deprived. The juvenile court conducted a deprivation hearing in June 2011, and, on July 18, 2011, it issued an adjudication order in which it found T. H. deprived, extended the Department’s temporary custody, and ordered that the Department continue reunification efforts. The order stated that it would expire on February 16, 2012, unless the court terminated it sooner. The mother filed a timely notice of appeal from this adjudication order on July 21, 2011. However, this Court did not docket the appeal (hereinafter, “the instant appeal”) until May 7, 2012. By that date, the February 2012 expiration date of the order had passed.

Significantly, in the time period between the issuance of the July 2011 order and the May 2012 docketing of this appeal, the juvenile court conducted various, standard proceedings in this ongoing deprivation and custody case. On July 19,2011, two days before the mother filed the instant appeal from the adjudication order, the juvenile court conducted a disposition hearing. 3***On August 16, 2011, it issued a disposition order in which it reaffirmed its finding of T. H.’s deprivation and its grant of temporary custody to the Department. The disposition order stated that it would expire on February 16, 2012, unless the court terminated it sooner. The mother did not appeal from the disposition order.

On January 4, 2012, in anticipation of the upcoming expiration of the July 2011 order at issue in this case, the Department filed a motion to extend its temporary custody of T. H. In the motion, the Department asserted that the conditions of deprivation previously found by the court “have not been alleviated [because] the mother is without independent housing or sufficient income,” “is unable to independently care for the child,” and is unable to provide the child with adequate care, control, supervision, home, or support, and, that as a result, T. H. is still in “need of a parent or proper and legal guardian or custodian.” The court conducted a motion hearing on January 12, 2012, during which it accepted evidence on the issue of whether T. H. was deprived. In its February 7, 2012 permanency order finding that T. H. was still deprived and extending the Department’s custody of her, the court stated that, during the hearing, “[t]he mother stipulated to the [Department’s] Motion to Extend as amended and acknowledged that the allegations therein are true.” (Emphasis supplied.) The mother did not appeal from this order.

Turning to whether the mother’s challenge to the July 2011 deprivation order in the instant appeal has been rendered moot by the subsequent judgments in the juvenile court, we are guided by the following principles:

Consistent with its requirement that appellate courts address only those rulings that “may affect the proceedings below,” OCGA § 5-6-34 (d) expressly provides that “[n]othing in this subsection shall require the appellate court to pass upon questions which are rendered moot.” [Thus, the] general rule is that appellate courts do not consider moot questions. Mootness is a question of court policy based on the theory that courts do not give opinions on abstract propositions of law that do not involve an actual controversy between parties.

(Citation and punctuation omitted.) In the Interest of I. S., 278 Ga. 859, 861 (607 SE2d 546) (2005). See also OCGA § 5-6-48 (b) (3) (“No appeal shall be dismissed or its validity affected for any cause nor shall consideration of any enumerated error be refused, except . . . [w]here the questions presented have become moot.”). Among the exceptions to the “mootness rule” are when a ruling addresses an issue of significant public concern; involves an alleged error that is capable of repetition in future proceedings, yet evades appellate review; or creates collateral consequences that will continue to plague the affected party. In the Interest of I. S., 278 Ga. at 862; In the Interest of J. R. P., 287 Ga. App. 621, 623 (1) (652 SE2d 206) (2007). The first of these exceptions does not appear to apply in this case.

Further, we conclude that the second exception is inapplicable, also, because the issue in the instant appeal (i.e., whether the juvenile court erred in finding that T. H. was deprived in July 2011) will not be the subj ect of repeated inquiries or judicial determinations in the future. It is axiomatic that each individual deprivation order must be supported by clear and convincing evidence that the child at issue is currently deprived, i.e., at the time of the hearing. See, e.g., In the Interest of R. C. M., 284 Ga. App. 791, 798 (III) (1), n. 6 (645 SE2d 363) (2007) (A juvenile court must determine whether a child is a deprived child at the time of the hearing, not whether the child has ever been a deprived child.). Thus, although the juvenile court may have taken judicial notice of its July 2011 deprivation order during the January 2012 deprivation hearing, its legal conclusion that T. H. was deprived in January 2012 had to be supported by additional evidence of such deprivation. See id.; see also In the Interest of T. P., 291 Ga. App. 83, 85 (1) (661 SE2d 211) (2008) (concluding that the question of whether the evidence was sufficient to support a finding of deprivation was moot when the record showed that, a year after issuing the order on appeal, the juvenile court had conducted another deprivation hearing and had found the children deprived at that time based upon evidence received during that hearing). And, given the lack of a transcript of the January 2012 hearing that shows what evidence was presented therein, as well as her failure to appeal from the resulting deprivation order, the mother is precluded from asserting in the instant appeal that there was insufficient evidence to support the court’s finding that T. H. was deprived at that time. See In the Interest of I. S., 278 Ga. at 861, n. 6 (When parents do not appeal a deprivation order, they are bound by the juvenile court’s determination that their children were deprived.); In the Interest of C. J., 279 Ga. App. 213, 216 (1) (630 SE2d 836) (2006) (Because the mother never appealed any of the juvenile court’s orders finding that her child was deprived and extending custody, she is bound by the juvenile court’s finding of deprivation.).

Decided December 10, 2012.

Stephanie M. Mason, Janine M. Carson, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Leslie Y. Abbott, for appellee.

Finally, the third mootness exception — that the ruling creates collateral consequences that will continue to plague the affected party — is inapplicable here, because there are numerous, subsequent, unappealed orders in the record in which the juvenile court concluded that T. H. was deprived. Thus, even if this Court addressed the merits of the instant appeal and concluded that the juvenile court erred in finding that T. H. was deprived in July 2011, the mother would still be bound by the juvenile court’s determinations that T. H. was deprived in the months thereafter. It follows that the potentially detrimental effect of those unappealed orders will not change regardless of an appellate ruling in the instant case. Consequently, we discern no future collateral consequences to the mother that could arise solely from this Court’s failure to consider the order on appeal. See generally In the Interest of I S., 278 Ga. at 862 (The Supreme Court acknowledged that, although a matter does not become moot if adverse consequences continue to plague the affected party, the appellants failed to show any such adverse consequences on the record, and the Court declined to presume them under the circumstances presented. Thus, the Court concluded that the collateral consequences exception to the mootness rule did not apply.); In the Interest of J. R. P., 287 Ga. App. at 623 (1) (accord).

Accordingly, we dismiss this appeal as moot. OCGA § 5-6-48 (b) (3); In the Interest of T. P., 291 Ga. App. at 85 (1).

Appeal dismissed.

Phipps, P. J., and Dillard, J., concur.

       The putative father of T. H. failed to legitimate or provide for the child and is not a party to this appeal.

       The July 2011 disposition hearing was not transcribed.

       In addition, in September and November 2011, the juvenile court conducted review hearings, and, on October 24 and December 9, 2011, it issued review orders extending the Department’s custody of T. H. Each order stated that it would expire on February 16, 2012, unless the court terminated it sooner. The mother did not appeal from either order.

       The mother did not file a transcript of the January 2012 hearing in the juvenile court, nor did she request that one be included in the appellate record.

       This order stated that it would expire on February 15,2013, unless the court terminated it sooner.

       See In the Interest of M. O., 233 Ga. App. 125, 128 (1) (503 SE2d 362) (1998) (Such a stipulation is an admission in judicio that “is conclusive and binding upon the party and estops the p arty from denying the admission or introducing any evidence to controvert such admission, even if the admission is not true.”) (citations and punctuation omitted).

       “A court may take judicial notice of records in the same court.” (Punctuation and footnote omitted.) In the Interest of J. P. V., 261 Ga. App. 194, 196 (2) (582 SE2d 170) (2003).

       See also Self v. State, 232 Ga. App. 735, 737 (3) (503 SE2d 625) (1998) (“It is incumbent upon [the mother], as appellant, to provide this Court with a record from which we can ascertain whether the trial court correctly ruled upon [the Department’s] motion, and mere assertions of error in her brief do not suffice. In the absence of a sufficient record, we must assume that the trial court’s ruling was proper[.]”) (citations and punctuation omitted).