author: ELLINGTON, Presiding Judge.

text:
    A13A2473.
    MASTEC NORTH AMERICA, INC. et al. v. WILSON.
    (755 SE2d 257)
   ELLINGTON, Presiding Judge.

Pursuant to a granted application for interlocutory appeal, MasTec North America, Inc. (“MasTec”), and Gregory Piccione, defendants below, challenge an order of the State Court of Carroll County denying their joint motion for partial summary judgment on Gilda Wilson’s claims for punitive damages and for negligent hiring, reten- ■ tion, supervision, and entrustment, in this suit arising from an automobile collision. Because Piccione and MasTec demonstrated that they were entitled to judgment in their favor on these claims, the trial court erred in denying the motion. Consequently, we reverse the court’s order.

A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” (Citations omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). “Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.” (Citations and punctuation omitted.) Id. at 623 (1) (a). We view the evidence of record, as well as all inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party. Id. at 624 (1) (a).

So viewed, the record shows the following. In her complaint, Wilson alleges that, on May 8, 2009, Piccione, while driving a commercial pickup truck owned by MasTec, ran a red light and struck the car that she was driving, causing her serious injuries. Piccione denied that the accident was his fault and contends that Wilson ran the light. The record shows that, on the day of the collision, Piccione was on his way to pick up a work crew. MasTec admits that Piccione was in the course of his employment when the accident occurred. Piccione deposed that he was in no rush to meet the crew, he was alert and well-rested, he was not sick or impaired in any way, he had not consumed any medication or alcohol, and he was focused on the road. Although Piccione was talking to his fiancée on the phone when the collision occurred, he was using a handsfree device.

The collision occurred during morning traffic at the intersection of Highway 166 and South Park Street, a double intersection with two sets of traffic lights on either side of a median. Wilson, who was ejected from her car during the collision, was cited for failing to wear her seatbelt. Given the conflicting accounts of how the accident occurred by the drivers and the eyewitnesses, the police cited both parties for running the red light.

Piccione was not convicted of running the red light. Rather, without the advice of counsel and to avoid legal expenses, he pled guilty to a “reduced” charge of driving “too fast for conditions.” There is no evidence in the record establishing how fast Piccione was driving or whether he was exceeding the posted speed limit at the time of the accident.

Wilson sued Piccione for negligence, and she sued MasTec under a theory of imputed liability. Wilson also sought punitive damages against both defendants and brought a separate claim for negligent hiring, retention, supervision, training, and entrustment against MasTec. In support of her claims against MasTec for punitive damages and negligent hiring, Wilson showed that MasTec had done a background check on Piccione on March 3,2008, and that it knew that Piccione had been convicted three times for speeding, twice in 2002 and once in 2005, and that he also had been convicted in 2004 for failing to obey a stop sign.

The citations were issued to Piccione while he was driving his personal vehicle. There is no evidence that Piccione had been cited for a traffic violation while driving a commercial vehicle. Piccione was 46 years old at the time of the accident and had been driving for 31 years. He had obtained his “class five” driver’s license (the predecessor to a commercial driver’s license) around 1985. Around 1998, he obtained a commercial driver’s license and he has maintained the license continuously since then.

When Piccione was hired by MasTec in March 2008, he had never been in an automobile accident before the instant one, and it is undisputed that Piccione had no traffic citations in the three years preceding his employment with MasTec. There is no evidence in the record that MasTec had ever received any complaints concerning Piccione’s driving. Piccione’s driver’s license had never been suspended or restricted (except for corrective lenses). Further, in the first six months after being hired by MasTec, Piccione completed a defensive driving class required by the company, and a follow-up review of Piccione’s driving record revealed no citations during his first year of employment. The record shows that, on March 11, 2008, Piccione reviewed and signed the MasTec Employee Handbook, which contained driver safety guidelines.

Both Piccione and MasTec argue that the undisputed facts do not support an award of punitive damages against them and that the trial court erred in denying its motion as to these claims. And, since a punitive damages claim is required to support Wilson’s claim against MasTec for negligent hiring, retention, supervision, and training, MasTec argues that it is entitled to summary judgment as to this claim, too. We agree.

Absent evidence supporting a valid claim for punitive damages against MasTec, Wilson’s claims sounding in negligent entrustment, hiring, and retention fail. As we have explained,

when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention. The rationale for this is that, since the employer would be liable for the employee’s negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer. An exception exists for this general rule, however, where a plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee or entrusting a vehicle to such employee. In such case, it cannot be said that the negligence claims against the employer are merely duplicative of the respondeat superior claim. Under these circumstances, the employer is not entitled to summary judgment on the negligent entrustment, hiring, and retention claims.

(Punctuation and footnote omitted; emphasis supplied.) Kelley v. Blue Line Carriers, 300 Ga. App. 577, 580 (2) (685 SE2d 479) (2009). See also Durben v. American Materials, 232 Ga. App. 750, 751 (1) (503 SE2d 618) (1998) (accord).

Thus, to support its claims against MasTec based on its alleged independent negligence, it was incumbent upon Wilson to produce evidence sufficient to support an award of punitive damages with respect to that alleged negligence. OCGA § 51-12-5.1 (c) provides that“[p]unitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.” Given the punitive nature of such damages, OCGA § 51-12-5.1 (b) provides that

[p]unitive damages maybe awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

Negligence, even if gross, will not alone authorize the recovery of punitive damages; there must be circumstances of aggravation and outrage. See Western Indus, v. Poole, 280 Ga. App. 378, 380 (1) (634 SE2d 118) (2006); Durben v. American Materials, 232 Ga. App. at 751 (1) (accord).

At summary judgment, the question is whether Wilson produced evidence from which a jury could infer that MasTec’s actions showed a conscious indifference to the consequences as alleged in the complaint. See Western Indus, v. Poole, 280 Ga. App. at 380 (1). Wilson may carry this burden “by showing that an employer had actual knowledge of numerous and serious violations on its driver’s record, or, at the very least, when the employer has flouted a legal duty to check a record showing such violations.” (Punctuation and footnote omitted.) Id. See also Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 829-830 (3) (435 SE2d 54) (1993) (reversing grant of summary judgment on negligent entrustment and punitive damages where company ignored regulations requiring license record check, where such a check would have unearthed numerous violations, including DUI, and where the evidence otherwise supported an inference that the company had actual knowledge that its driver was incompetent or had a propensity to drive dangerously).

Here, it is undisputed that MasTec checked Piccione’s driving record before hiring him, reviewed it during his first year of employment, and required Piccione to comply with driver training and safety rules. Although Piccione had some moving violations on his record, he was cited while in his personal vehicle as opposed to while operating a commercial vehicle for an employer, and the most recent violation was more than three years old. Moreover, Piccione had never been in an accident. These facts do not rise to the level of clear and convincing evidence demonstrating that MasTec should have known that Piccione was a habitually reckless or dangerous driver or that MasTec acted with the requisite want of care sufficient to raise a presumption of conscious indifference to the consequences in hiring, retaining, supervising, or entrusting Piccione with a company vehicle. See Bartja v. Nat. Union Fire Ins. Co., 218 Ga. App. 815, 818-819 (4) (463 SE2d 358) (1995) (even assuming the employer had actual knowledge of a driving record showing two moving violations associated with the use of a commercial vehicle, neither of which was sufficient to disqualify him as a driver under federal regulations, the record raised “no [facts] sufficient to preclude summary judgment as to punitive damages”).

Additionally, Wilson has not presented evidence from which the jury could infer that the accident at issue was the result of Piccione’s wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. “In cases involving automobile collisions, punitive damages are authorized when the accident results from a pattern or policy of dangerous driving, such as excessive speeding or driving while intoxicated, but not when a driver simply violates a rule of the road.” (Citations omitted; emphasis supplied.) Lindsey v. Clinch County Glass, 312 Ga. App. 534, 535 (718 SE2d 806) (2011). See also Fowler v. Smith, 237 Ga. App. 841, 843 (2) (516 SE2d 845) (1999) (accord); Carter v. Spells, 229 Ga. App. 441, 442 (494 SE2d 279) (1997) (accord).

The record before us does not contain clear and convincing evidence that the collision was the result of either wilful conduct or a pattern or policy of dangerous driving on Piccione’s part. Although the record shows that Piccione pleaded guilty to the misdemeanor traffic violation “too fast for conditions,” whether Piccione’s rate of travel contributed to the accident is disputed. In fact, there is no evidence in the record that Piccione was violating the posted speed limit. Wilson contends that the proximate cause of the accident was Piccione’s having run a red light. Piccione has only one prior citation for failing to obey a stop sign. Further, Piccione has never had an accident as a result of any of his traffic violations, and he has never been cited while driving a commercial vehicle. The record does not support an inference that Piccione caused the instant collision as a result of a “pattern or policy of dangerous driving.” See, e.g., Lindsey v. Clinch County Glass, 312 Ga. App. at 535-536 (no evidence that the driver, who was using his cell phone at the time of the collision, had a history of distraction-related accidents or other evidence that would show a pattern of dangerous driving or other aggravating circumstances so as to authorize an award of punitive damages); Brooks v. Gray, 262 Ga. App. 232, 233-234 (2) (585 SE2d 188) (2003) (crossing the centerline and operating a vehicle without a proper license did not warrant imposition of punitive damages); Miller v. Crumbley, 249 Ga. App. 403, 405 (3) (548 SE2d 657) (2001) (no evidence of pattern or policy of dangerous driving where driver failed to keep a proper lookout and pled guilty to following too closely). Compare Langlois v. Wolford, 246 Ga. App. 209, 210 (1) (539 SE2d 565) (2000) (punitive damages authorized where the driver left the scene of an accident, was intoxicated, and had a history of prior DUIs and traffic violations).

Decided February 28, 2014.

Huff, Powell & Bailey, Michael R. Boorman, L. Evan Cline, for appellants.

Law & Moran, Peter A. Law, Amanda L. Evans, A. Joel Williams, Jr., for appellee.

The facts presented in this case do not support an award of punitive damages against either Piccione or MasTec as a matter of law; consequently, the trial court erred in denying the defendants’ joint motion for summary judgment as to these claims. Further, because the punitive damages claim against MasTec fails, Wilson’s claim against MasTec for negligence in the hiring, entrustment, supervision, or retention of Piccione is duplicative of the negligence claim against the employee, for which the employer admitted responsibility under the doctrine of respondeat superior. See Kelley v. Blue Line Carriers, 300 Ga. App. at 580 (2). The court, therefore, also erred in denying summary judgment in favor of MasTec as to that claim.

Judgment reversed.

Phipps, C. J., and Branch, J., concur.

       OCGA §§ 40-6-180 (requiring reasonable and prudent speeds); 40-6-1 (a misdemeanor).

       Although the record does not indicate that MasTec is subject to the Federal Motor Carrier Safety Regulations, those regulations require that certain employers investigate a prospective employee’s driving record for the previous three years. 49 CFR § 391.23 (a).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A13A1761.
    HARLESS v. THE STATE.
    (755 SE2d 814)
   McFadden, Judge.

A jury found Tania Harless guilty of two counts — aggravated assault and aggravated battery—and she appeals her convictions on those counts. But a case is not final and ripe for appeal until a written sentence has been entered on each count of which a defendant was found guilty. See Keller v. State, 275 Ga. 680, 681 (571 SE2d 806) (2002); Bass v. State, 284 Ga. App. 331, 332 (643 SE2d 851) (2007). Here, the trial court entered only a single written sentence of “20 (Twenty) years.” Because the trial court did not enter a written sentence on each count,

Decided March 3, 2014.

Raina J. Nadler, for appellant.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

the case is still pending in the court below. Therefore, this case is removed from this court’s docket and remanded. With respect to [both] counts of which [Harless] was found guilty, the trial court is . . . directed to . . . enter a written sentence,... thereby in writing, disposing of [both] counts of which [Harless] was found guilty. After such entry, the case may be transmitted to this court for re-docketing because the notice of appeal, prematurely filed, then will have ripened.

Bass, 284 Ga. App. at 332 (citations omitted).

Case remanded with direction.

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


text:
    A13A1942.
    IN THE INTEREST OF C. M. et al., children.
    (756 SE2d 5)
   McFadden, Judge.

The mother of C. M. and I. M. appeals the termination of her parental rights, arguing that the evidence does not support the termination. She also challenges the juvenile court’s decision not to place the children with a family friend. We find that sufficient evidence supports the termination. We also find that, pretermitting whether a parent has standing to challenge the placement of his or her children after his or her parental rights have been terminated, in this case the juvenile court did not abuse its discretion by declining to place the children with the family friend. We therefore affirm.

1. Facts.

On appeal of a juvenile court’s order terminating a parent’s rights, we view the evidence

in the light most favorable to the juvenile court’s ruling, and [our] review is limited to addressing the question of whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In this review, [we] must necessarily defer to the juvenile court’s fact finding, weighing of the evidence, and credibility determinations.

In the Interest of D. T. A., 312 Ga. App. 26, 27 (717 SE2d 536) (2011) (citations and punctuation omitted).

Viewed in this light, the evidence shows that the mother has two children, C. M., who was eight years old at the time of the termination hearing, and I. M., who was four years old at the time of the hearing. The Department of Family and Children Services (“DFCS”) first became involved with the family in 2004, and the children were first removed from the mother’s custody in 2009 because of her precarious housing situation, her lack of income and an occurrence of domestic violence between the mother and the maternal grandmother. The children were placed in the guardianship of a family friend, who originally but mistakenly believed she was the paternal grandmother.

The mother did complete her case plan goals; after the children were removed from her custody, the mother obtained housing and employment, participated in counseling, and completed parenting classes. But she was unable to apply the parenting skills that she was taught, because although the mother was receptive to the teaching, she did not understand the concepts. The mother has an IQ score of 75, which puts her in the “borderline” range, just above the threshold of 70 for intellectual deficiency. Evidence was presented that the mother does not have the skills or the intellectual ability to parent the children, given their behavior issues. For example, she is unable to identify safety concerns, and the children therefore would be in danger if placed in her custody. The psychologist who evaluated the mother testified that even with additional counseling and parenting education, the mother is incapable of improving her parenting ability to a level sufficient to manage C. M., a difficult child. The psychologist and the counselor who tried to teach her parenting skills both testified that in order for the mother to have custody, she would need the constant help of an in-home parenting specialist.

The children’s visits with the mother were routinely chaotic because the mother was not able to manáge the children’s behavior, and the visitation was terminated. C. M. was verbally and physically aggressive toward her mother, and the mother did not know how to respond. I. M. engaged in dangerous behaviors, such as attempting to touch the gas heater, and the mother would not redirect him.

C. M. was removed from the guardian’s custody in March 2011 because C. M.’s behavior was dangerous to herself and to the guardian. She was returned to the home, but in May 2012, both children were removed from the guardian because the guardian had a physical altercation with her adult son.

C. M. has been hospitalized three times because of her extreme temper tantrums. One of the episodes began when her foster mother made a left turn instead of the usual right turn. C. M. is defiant and violent. At one of her counseling sessions, her therapist called the police because she would not stop smashing her fist on the glass windows. During a therapy session attended by both children, C. M. had to be physically restrained, and while she was restrained, I. M. acted wildly, pulling C. M.’s hair, jumping on the furniture, and throwing things.

C. M. has been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder and reactive attachment disorder. I. M. is developmental^ delayed. He has been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, mood disorder, and a learning disorder.

2. Sufficiency of the evidence.

The mother argues that the evidence fails to support the termination. Former OCGA § 15-11-94 sets forth the two-step procedure for terminating a parent’s rights:

First, the juvenile court must find parental misconduct or inability, which under [former] OCGA § 15-11-94 (b) (4) (A) requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

In the Interest of D. T. A., supra, 312 Ga. App. at 27.

(a) Deprivation.

The mother argues that the evidence was not clear and convincing that the children were deprived or that any deprivation was likely to continue. Acknowledging that the mother loves her children and wants to be a good mother, the court nonetheless found that the children are deprived because of the mother’s inability to parent them due to her medically verifiable mental and emotional deficiencies. The court found that the deprivation is not likely to be remedied and is likely to cause harm to the children. The court found that in order to remedy the deprivation, another adult would always need to be present “to make sure that the real parenting was done independent of the mother.”

Although [the mother] has completed . . . her case plan goals and wishes to be part of her [children’s lives], the evidence shows that she lacks the mental capacity to care for [them] without around-the-clock assistance from others, something DFCS is not obligated to provide .... The test must be whether the parent, ultimately standing alone, is capable of mastering and can effectively demonstrate the ability to utilize parenting skills. The majority of cases in this state dealing with factual situations of this type have enunciated a rule that in termination cases the welfare of a child is of paramount importance provided there is also evidence that the parent suffers from some mental disability that renders the parent unable to care for the child. This case clearly fits that mold. There is no dispute that as of the time of the hearing and for the foreseeable future, the ... mother is unable to furnish proper parental care and control necessary for the [children]’s physical, mental and emotional health and that these conditions and causes of deprivation are likely to continue for the foreseeable future. As the uncontested evidence shows that [the mother] cannot independently fulfill her parenting responsibilities, we reach the same conclusion.

In the Interest of H. F. G., 281 Ga. App. 22, 26-27 (1) (635 SE2d 338) (2006) (citations and punctuation omitted). Clear and convincing evidence, including the testimony of the psychologist who evaluated the mother, supports the juvenile court’s finding that the mother’s intellectual ability is insufficient to enable her to parent her children safely. Moreover, there was testimony that the mother is incapable of improving her parenting ability, given her intellectual limitations. A rational trier of fact could have found by clear and convincing evidence that the children were deprived and that the deprivation was likely to continue. See In the Interest of D. T. A., supra, 312 Ga. App. at 27.

(b) Best interests.

“The mother argues that the evidence was insufficient to show that it was in the [children’s] best interest [s] to terminate her parental rights. The same evidence showing parental misconduct or inability may support this requirement, and it does here.” In the Interest of R. J. D. B., 305 Ga. App. 888, 895 (1) (c) (700 SE2d 898) (2010) (citation omitted). In addition to the evidence discussed above, there was evidence that the children’s visits with their mother were disturbing to them and that they have made progress in foster care. This evidence supported the juvenile court’s conclusion that terminating the mother’s parental rights was in the best interests of the children. In the Interest of K. N., 272 Ga. App. 45, 54 (b) (611 SE2d 713) (2005).

Decided March 3, 2014.

Robert M. Bearden, Jr., for appellants.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, James E. Patterson, for appellee.

3. Placement of the children.

The mother argues that the children’s best interests required their placement with the former guardian (the family friend who originally but mistakenly believed she was the paternal grandmother), instead of the foster parents with whom they were placed. Pretermitting whether a parent whose parental rights have been terminated has standing to challenge her child’s placement, we find that the mother has not shown that the trial court abused its discretion.

The DFCS caseworker testified that returning the children to the guardian was not a viable option because of the guardian’s inability to manage the children’s behavior, the guardian’s physical altercation with her son, and the chaotic nature of her home, given the children’s need for structure, stability and individualized attention. The children’s therapist testified that placement with the guardian would not be appropriate because the children have learned how to manipulate her. The juvenile court must place the children in a placement that serves the children’s best interests. See In the Interest of C. B., 300 Ga. App. 278, 280 (2) (b) (684 SE2d 401) (2009). As evidence supports the juvenile court’s conclusion that placing the children with their former guardian is not in their best interests, we affirm.

Judgment affirmed.

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


author: McFADDEN, Judge.

text:
    A13A1954.
    KILGORE v. THE STATE.
    (756 SE2d 9)
   McFADDEN, Judge.

After a jury trial, James Kilgore was convicted of possession of methamphetamine with intent to distribute. He appeals, challenging the sufficiency of the evidence. Because there is enough evidence from which a rational trier of fact could have found Kilgore guilty beyond a reasonable doubt, we affirm.

1. Jurisdiction.

“It is the duty of this [c]ourt in all instances to inquire into our jurisdiction.” Segura v. State, 280 Ga. App. 685, 686 (1) (634 SE2d 858) (2006) (footnote omitted). In that regard, the record shows that the jury returned its guilty verdict on November 1,2011, and the trial court imposed sentence and entered final judgment of conviction on December 1, 2011. Kilgore did not move for a new trial or file a notice of appeal within 30 days of the final judgment. Rather, on January 23, 2012, his trial attorney filed a document entitled “Extraordinary Motion for New Trial.” In that filing, counsel alleged that on December 8, 2011, he had sent a letter to the circuit public defender indicating that Kilgore wished to appeal his conviction but could not afford to hire private counsel, and that the Georgia Public Defender Standards Council did not subsequently contact and ask counsel to handle Kilgore’s appeal until more than 30 days after entry of the final judgment. The extraordinary motion requested that the trial court inquire into the basis for the need to file the extraordinary motion, and also challenged the sufficiency of the evidence supporting the verdict. On April 24, 2013, the trial court entered an order denying the motion on the basis that there was sufficient evidence to support the jury’s verdict, and also granting Kilgore 30 days to file an appeal. Kilgore timely filed a direct appeal from that order.

To the extent Kilgore is deemed to have directly appealed from the denial of an extraordinary motion for new trial, such an appeal would not be properly before us because a party must file an application for discretionary appeal from such an order. See OCGA § 5-6-35 (a) (7); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). However, “our jurisdictional review is [also] guided by the principle that courts are not bound by the designation given motions by the parties and that we look to substance over nomenclature.” Miller v. State, 264 Ga. App. 801, 803 (b) (592 SE2d 450) (2003) (citation and punctuation omitted). Here, even though Kilgore designated his filing as an extraordinary motion for new trial, in substance it was a motion for leave to file an out-of-time appeal based on allegations that even though he had expressed his desire to appeal his conviction and could not afford an attorney, appellate counsel was not appointed to represent him until after expiration of the 30-day period for filing an appeal.

“An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Simmons v. State, 276 Ga. 525, 526 (579 SE2d 735) (2003) (citation and punctuation omitted). “The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.” Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001) (citations omitted). “The out-of-time appeal is granted where the deficiency involves not the trial but the denial of the right of appeal.” Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995) (citations and punctuation omitted). Thus, an out-of-time appeal may be granted where a defendant in a criminal case is not advised of his right of appeal or his counsel fails to appeal as directed. Tyner v. State, 289 Ga. 592, 593 (1) (714 SE2d 577) (2011); Birt v. Hopper, 245 Ga. 221, 221-222, n. 1 (265 SE2d 276) (1980). Under the circumstances here, it is apparent that the trial court found that Kilgore’s right to appeal was frustrated and thus the trial court granted him 30 days to file an out-of-time appeal. Kilgore timely filed his notice of appeal, and thus the appeal is properly before us.

2. Sufficiency of the evidence.

In his sole enumeration of error, Kilgore claims that there is insufficient evidence to support the verdict. The claim is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Brown v. State, 318 Ga. App. 334, 334-335 (733 SE2d 863) (2012) (citations and punctuation omitted).

So viewed, the evidence shows that a sheriff’s drug task force set up a controlled purchase of methamphetamine with a confidential informant. The informant contacted Grady Burns and Virginia Thornley, who then contacted Kilgore about buying an ounce of methamphetamine. Kilgore agreed to provide the drugs. The confidential informant, Burns and Thomley were waiting at the site of the arranged drug sale when Kilgore arrived in a truck with a passenger named Anna Henderson. Thomley went to the truck, gave Kilgore $1,800 that had been provided by the drug task force, and asked for the drugs. Kilgore said that they would all have to drive to another location to get the drugs. Kilgore pulled out of the location, but a short time later was stopped by officers who had the drug buy under surveillance. Before the officers arrived at the truck, Kilgore gave a pill bottle to Henderson and told her to hide it, and she put it down her pants. The officers found the $1,800 and digital scales in the truck, and recovered the pill bottle from Henderson. Inside the bottle was a crystal substance that weighed almost nine grams and tested positive for methamphetamine.

Decided March 3, 2014.

Roger L. Curry, for appellant.

Shannon G. Wallace, District Attorney, Jana W. Allen, Assistant District Attorney, for appellee.

In arguing that the evidence was insufficient, Kilgore points to conflicts and inconsistencies in the evidence. However, such matters are issues “that were solely within the province of the jury and play no part in this court’s sufficiency of the evidence review.” Chamblee v. State, 319 Ga. App. 484, 485 (735 SE2d 810) (2012) (citation and punctuation omitted). See also Parker v. State, 320 Ga. App. 319 (1) (741 SE2d 159) (2013) (discrepancies in testimony, witness credibility and other factual issues relate entirely to matters within the exclusive province of a jury). Accordingly, “[w]e conclude that the jury rationally could have found from the evidence discussed above . . . that [Kilgore] possessed the methamphetamine with the intent to distribute it.” Dodd v. State, 324 Ga. App. 827 (1) (752 SE2d 29) (2013).

Judgment affirmed.

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


author: MCFADDEN, Judge.

text:
    A13A2033.
    WOODEN v. SYNOVUS BANK.
    (756 SE2d 19)
   MCFADDEN, Judge.

This appeal is from a grant of summary judgment to a bank on three promissory notes signed by appellant in favor of the bank. Because there exist no genuine issues of material fact, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Trendmark Homes v. Bank of North Ga., 314 Ga. App. 886 (726 SE2d 138) (2012) (citation omitted).

So viewed, the record shows that Howard Wooden executed three promissory notes in favor of Synovus Bank. On March 24, 2010, he executed a note for $57,617; on July 30, 2010, he executed a note for $168,827; and on December 17,2010, he executed a note for $156,257. On all three notes, Wooden was listed, and signed, as the sole borrower. Wooden defaulted on the notes, and the bank demanded payment. After he failed to pay, the bank filed the instant complaint. The trial court granted summary judgment in favor of the bank, and Wooden appeals.

Wooden claims the trial court erred in granting summary judgment because there exist genuine issues of material fact as to whether he was merely an accommodation party under the notes. The claim is without merit.

OCGA § 11-3-419 (a) provides:

If an instrument is issued for value given for the benefit of a party to the instrument known as the “accommodated party,” and another party to the instrument known as the “accommodation party” signs the instrument for the purpose of incurring liability on the instrument without being a direct beneficiary of the value given for the instrument, the instrument is signed by the accommodation party “for accommodation.”

In this case, the three promissory notes do not include any obligated party other than Wooden. He is identified as the sole borrower in all three notes, and he signed the notes in such capacity. Thus, the clear and unambiguous terms of the notes do not show that there was an accommodated party and that Wooden was a separate accommodation party; rather, they simply identify Wooden as the obligated borrower. “[Wjhere the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 794 (1) (709 SE2d 336) (2011) (citation and punctuation omitted).

Despite the clear language of the notes, Wooden attempts to show that the parties’ intentions were for him to be an accommodation party on the notes by pointing to parol evidence purportedly showing, among other things, that a bank officer made statements that there would be other obligors under the notes. However, Wooden “cannot modify the [notes] by imposing conditions not apparent on [their] face[s]. ‘Parol evidence is inadmissible to add to, take from, or vary a written contract.’OCGA § 13-2-2(1).” Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 864 (2) (734 SE2d 847) (2012). Indeed,

[a] promissory note is an unconditional contract whereby the maker engages that he will pay the instrument according to its tenor. It is well established that a promissory note may not be modified by the imposition of conditions not apparent on its face. The note being an unconditional promise, the contract is complete as written. Parol evidence may not be used to impose conditions which are not apparent from the face of the note. An oral agreement between the parties, made contemporaneously with the execution of the note or prior thereto relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note.

Id. at 863 (2) (citation and punctuation omitted).

Moreover, even if there were other obligors, that would not relieve Wooden of his obligations to pay under the terms of the notes. All three notes contain an “Obligations Independent” clause, which provides that Wooden understands that he “must pay this note even if someone else has also agreed to pay it”; that the bank “may sue [Wooden] alone, or anyone else who is obligated on this note, or any number of us together, to collect this note”; that the bank “may without notice release any party to this note without releasing any other party”; and that if the bank gives up any of its rights “it will not affect [Wooden’s] duty to pay this note.” Accordingly,

the intentions of the parties with regard to whether appellant was an accommodation party are simply irrelevant, since the plaintiff is the bank, which took the note[s] for value. As to the bank, therefore, there is no question that, as a matter of law, whether or not appellant signed as an accommodation party, he is liable in the capacity in which he signed. It is undisputed that appellant signed the note[s] as “borrower,” leaving no question of material fact for jury resolution. Therefore, summary judgment was properly awarded. OCGA § 9-11-56 (c).

Decided March 3, 2014.

George L. Williams, Jr., for appellant.

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

Brice v. Northwest Ga. Bank, 186 Ga. App. 871, 872 (368 SE2d 816) (1988).

Judgment affirmed.

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


author: DOYLE, Presiding Judge.

text:
    A13A2068, A13A2069.
    BARTOW COUNTY v. SOUTHERN DEVELOPMENT, III, L.P. (two cases).
    (756 SE2d 11)
   DOYLE, Presiding Judge.

These interlocutory appeals stem from the same case in which Southern Development, III, L.P. (“Southern”), sued Bartow County seeking payment of excess funds following a tax sale. The County appeals from the denial of its summary judgment motion (Case No. A13A2069) and the grant of Southern’s motion to add the Bartow County tax commissioner as a party (Case No. A13A2068). For the reasons that follow, we reverse in Case No. A13A2069 and dismiss as moot Case No. A13A2068.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment asa matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and.we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that in 2004, Southern conveyed a parcel of property to James and Sandra Wade, and Southern was granted a security deed in the property. Both deeds were recorded in 2004. According to Southern, the Wades defaulted on their loan agreement with Southern, and Southern foreclosed on the property in a nonjudicial foreclosure sale in May 2009. Southern did not record the deed under power of sale until January 2011.

Meanwhile, as a result of unpaid taxes on the property, in September 2009 the Bartow County tax commissioner sent notices of a tax levy and sale to persons believed to have an ownership interest, including to the address listed for Southern on a website maintained by the Georgia Secretary of State. The tax commissioner received a signed return receipt of the notice, but Southern disputes receiving any notice of the tax levy or sale. A tax sale was held in November 2009, and a third party bought the property for $31,000 and recorded the tax sale deed in January 2010.

Also in January 2010, the tax commissioner issued a check to the County for $26,052.31 in excess funds from the tax sale. The tax commissioner sent notice of this to Southern’s address on file with the Secretary of State, but Southern maintains that it never received the notice.

In July 2010, the Wades (or their daughter) inquired about claiming the excess funds and filled out paperwork to claim the funds from the County. A week later, the Wades visited the County offices, presented identification, filled out paperwork averring that there were no other legal claimants, and claimed the excess funds.

Thereafter, Southern learned of the excess funds, and in May 2011 sent an ante litem notice to the County demanding payment of the excess funds. The County refused, citing its payment to the Wades, and Southern filed suit against the County in February 2012. The County answered, asserting a sovereign immunity defense, and following discovery, moved for summary judgment. Following a hearing, the trial court denied summary judgment in a one-sentence order and issued a certificate of immediate review. The trial court also granted a motion filed by Southern to add the tax commissioner as a party. This Court granted the County’s application for interlocutory review, giving rise to these appeals.

Case No. A13A2069

1. The County contends that the trial court erroneously denied its summary judgment motion because the present action against the County is barred by sovereign immunity. We agree.

Southern’s complaint asserts a single claim for excess funds (plus attorney fees) pursuant to OCGA § 48-4-5, which Code section provides as follows, in relevant part:

(a) If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale. Such notice shall be sent by first-class mail within 30 days after the tax sale. The notice shall contain a description of the land sold, the date sold, the name and address of the tax sale purchaser, the total sale price, and the amount of excess funds collected and held by the tax commissioner, tax collector, sheriff, or other officer. The notice shall state that the excess funds are available for distribution to the owner or owners as their interests appear in the order of priority in which their interests exist.

Based on this, Southern’s complaint alleged that the County breached its statutory duty by failing to notify Southern that excess funds from the tax sale were available for distribution and by disbursing the funds to the Wades.

In response, the County answered and asserted sovereign immunity among its defenses. When it later moved for summary judgment, the County did not brief the issue, but it raised it three times at the hearing on the motion. Southern, on appeal and below, has not addressed the merits of the sovereign immunity defense, but merely argues that the defense was not sufficiently asserted below such that it needed to respond. In light of the County’s answer and explicit argument at the summary judgment hearing, Southern misconstrues the parties’ burdens in this case.

Sovereign immunity extends to the [Sjtate and all of its departments and agencies[, including counties].[] The sovereign immunity of the [S]tate and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. . . .
Furthermore, OCGA § 36-1-4 provides that “[a] county is not liable to suit for any cause of action unless made so by statute.” [Thus, a] county’s immunity is thus complete unless waived by statute.

Further,

sovereign immunity is not an affirmative defense (see OCGA § 9-11-8 (c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver. Thus, [Southern], not [the County], had the burden of establishing [a waiver of] sovereign immunity.

Here, Southern has pointed to no statute creating a waiver or any factual scenario warranting a waiver with respect to the claim it brought in its complaint. For example, a county sheriff, which could be liable in a money rule petition brought under OCGA § 15-13-3, is subject to the explicit statutory waiver of immunity under OCGA § 15-13-2 providing that “[a]ny sheriff shall be liable to an action for damages . . . whenever it appears that the sheriff has injured the party by... [n] eglecting to pay over to the plaintiff or his attorney any moneys collected by the sheriff by virtue of any fi. fa. or other legal process. . . .” By contrast, there is no such waiver of immunity in OCGA § 48-4-5, particularly with respect to the County itself. Accordingly, Southern has failed to meet its burden to show waiver of immunity on the part of the County with respect to the claim stated in Southern’s complaint. Thus, the trial court erred by denying the County’s motion for summary judgment.

Case No. A13A2068

2. In light of our holding in Case No. A13A2069 resolving the controversy between the parties to this appeal, the County’s challenge to the motion to add the tax commissioner is moot. Accordingly, Case No. A13A2068 is dismissed.

Decided March 3, 2014.

Womack, Gottlieb & Rodham, Steven M. Rodham, J. Matthew Williamson, H. Boyd Pettit III, for appellant.

John T. Mroczko, for appellee.

Judgment reversed in Case No. A13A2069. Appeal dismissed as moot in Case No. A13A2068.

McFadden and Boggs, JJ., concur.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See generally Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994).

       (Citation and punctuation omitted.) Rutherford v. DeKalb County, 287 Ga. App. 366, 367-368 (1) (651 SB2d 771) (2007), citing Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).

       (Citation omitted; emphasis supplied.) Ga. Dept. of Human Resources v. Pass, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993), overruled on other grounds by Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 272 Ga. 209, 211 (1) (528 SE2d 508) (2000).

       See Barrett v. Marathon Investment Corp., 268 Ga. App. 196, 199 (4) (601 SE2d 516) (2004).

       See Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187(674 SE2d 894) (2009) (“without specific statutory language providing for (1) a waiver of sovereign immunity and (2) the extent of such waiver, no waiver can be shown”) (emphasis omitted).

       See generally Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196, 197, n. 3 (620 SE2d 447) (2005) (noting that the tax commissioner was an ex-officio sheriff pursuant to OCGA § 48-5-137).

       See Nuvell Nat. Auto Finance, LLC v. Monroe Guar. Ins. Co., 319 Ga. App. 400, 410 (3) (736 SE2d 463) (2012).


text:
    A13A2291.
    SWEENEY v. LOWE.
    (755 SE2d 813)
   McFadden, Judge.

David Sweeney filed a complaint against Michelle Lowe, claiming that he incurred damages after being bitten by Lowe’s dog. The trial court granted summary judgment to Lowe. Sweeney appeals, arguing that the trial court erred because genuine issues of material fact exist as to whether Lowe was in violation of a county ordinance or “leash law.” However, Sweeney failed to properly plead and prove the ordinance, and therefore we must affirm the trial court’s ruling.

It is well established that in order for a superior court or this court to consider city or county ordinances they must be alleged and proved, and “[t]he proper method of proving a city [or county] ordinance is by production of the original or of a properly certified copy.” Thorsen v. Saber, 288 Ga. 18, 19 (1) (701 SE2d 133) (2010) (citations and punctuation omitted). See also OCGA § 24-2-221 (judicial notice may be taken of a certified copy of county ordinance). In this case, Sweeney claims a violation of Fulton County Ordinance 34-205. However, the record does not contain the original or a properly certified copy of the ordinance upon which Sweeney relies. Thus, “[t]he trial court would have been in error if it had [considered] the terms of an ordinance not properly before the court.” Thorsen, supra (citations omitted).

Decided March 3, 2014.

Wood & Craig, Harlan H. F. Wood, J. Blair Craig II, for appellant.

Groth & Makarenko, Paul L. Groth, Laura D. Johnson, for appellee.

Sweeney attempts to circumvent this deficiency in the record by asserting in a footnote that he and Lowe “impliedly agreed” to permit citation to the county ordinance by referencing local ordinances in their summary judgment briefs. However, Lowe’s summary judgment brief did not refer to any Fulton County ordinance, let alone the same county ordinance relied upon by Sweeney, and instead made reference only to a purported City of Atlanta ordinance. Thus, this is not a case in which the ordinance upon which the plaintiff relies was “set forth verbatim in the pleadings or an uncertified copy [was] attached to the complaint and the defendant admitted] the ordinance ... in the answer.” Prime Home Properties v. Rockdale County Bd. of Health, 290 Ga. App. 698, 700 (1) (660 SE2d 44) (2008) (citation and punctuation omitted). Rather, this is a case in which the parties do not even agree upon which alleged local ordinance is relevant. “Because the record does not contain proper proof of the local ordinance [upon which Sweeney relies], we cannot consider it, and any argument based on its purported language provides no basis for reversing the trial court’s order.” Cormier v. Willis, 313 Ga. App. 699, 701 (1) (722 SE2d 416) (2012) (citation omitted). See also Younger v. Dunagan, 318 Ga. App. 554, 556 (733 SE2d 81) (2012) (ordinances could not be considered in evaluation of summary judgment where properly certified copies were not produced).

Judgment affirmed.

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

       We note that two different spellings of the appellant’s last name — “Sweeny” and “Sweenejf’ — appear in the record. Appellant uses the latter spelling in his appellate brief, so that is the spelling used in this opinion.


text:
    A13A2393.
    PARSONS v. CAPITAL ALLIANCE FINANCIAL, LLC.
    (756 SE2d 14)
   McFadden, Judge.

We granted Latasha Parsons’s application for discretionary review of the superior court’s order denying as untimely her appeal from a magistrate court judgment. Because Parsons’s appeal was not untimely, we reverse.

1. Procedural posture.

Capital Alliance Financial, LLC brought an action in the magistrate court to recover amounts allegedly owed by Parsons on a charge account. On December 16, 2011, the magistrate court entered judgment against Parsons. On January 17, 2012, Parsons filed an appeal from that decision in the superior court. On June 6, 2012, she voluntarily dismissed without prejudice the superior court case pursuant to OCGA § 9-11-41 (a) (1). See generally Long v. Greenwood Homes, 285 Ga. 560, 561 (679 SE2d 712) (2009) (explaining that voluntary dismissal under these circumstances resulted in “the dismissal of [the] case”). On December 6, 2012, she filed with the superior court a “notice of re-filing of superior court appeal,” citing OCGA § 9-11-41 (a) (1) in her pleading. Her counsel signed that pleading and placed a service copy of it in the mail on December 4, 2012.

Capital Alliance filed a motion challenging the refiling, arguing that OCGA § 9-11-41 (a) (1) did not authorize Parsons to refile her appeal and that Parsons’s initial appeal to the superior court was untimely. It requested that the superior court “deny [the] Notice of Re-filing of appeal to the superior court and [that] judgment against [Parsons] remain in full effect.” The superior court granted the motion, but on different grounds. The superior court ruled that Parsons’s refiled appeal was untimely, finding that she had refiled it on December 4, 2012, a date the superior court concluded was “not... within the 6 month time frame provided by OCGA § 9-2-61 (a)” for renewing an action after a voluntary dismissal.

2. Parsons timely filed her initial appeal to the superior court.

Capital Alliance argues that we should affirm the dismissal as right for any reason because Parsons’s initial appeal of the magistrate court judgment to the superior court, which she filed on January 17, 2012, was untimely. We disagree.

“Appeals to the superior court shall be filed within 30 days of the date the judgment, order, or decision complained of was entered.” OCGA § 5-3-20 (a). Pursuant to OCGA § 1-3-1 (d) (3), however, when the last day for filing falls on a Saturday or Sunday, the appealing party may file the appeal the following Monday, and when the last day for filing falls on a public and legal holiday as defined under OCGA § 1-4-1, the appealing party may file the appeal the next business day.

In this case, the magistrate court entered its ruling on December 16,2011. Because the thirtieth day following that ruling fell on Saturday, January 15, 2012, and the following Monday was Martin Luther King, Jr.’s Birthday (a public and legal holiday under OCGA § 1-4-1), the deadline for Parsons to file her appeal under OCGA § 5-3-20 (a) was Tuesday, January 17,2012. Consequently, Parsons’s January 17, 2012 filing of her appeal was timely. Potter-Miller v. Reed, 302 Ga. App. 199, 199-200 (1) (690 SE2d 215) (2010).

3. Parsons timely renewed her superior court case after voluntarily dismissing the case.

Our Supreme Court has held that an appeal of a magistrate court judgment to superior court gives rise to a de novo case that the plaintiff (the party appealing from the magistrate court ruling) may voluntarily dismiss under OCGA § 9-11-41 (a) and subsequently renew. See Long, 285 Ga. at 562 (holding superior court correctly denied summary judgment to defendant in renewal action of plaintiff’s voluntarily dismissed appeal from a magistrate court judgment). Pursuant to OCGA § 9-2-61 (a), a plaintiff who has dismissed her case may renew the case “within six months” after the dismissal.

The superior court found that Parsons did not renew her case within six months. She dismissed the case on June 6, 2012, and filed her “notice of re-filing” on December 6, 2012. Capital Alliance argues that the December 6 filing was not “within six months” of June 6. Again, we disagree.

OCGA § 1-3-1 (d) (3) sets forth the method of computing time periods in most instances. It states:

Except as otherwise provided by time period computations specifically applying to other laws, when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted....

OCGA § 1-3-1 (d) (3) (emphasis supplied). We have not previously applied the provision that the first day shall not be counted in computing the six-month period for filing a renewal action under OCGA § 9-2-61 (a). Butin Hanna v. Savannah Svc., 179 Ga. App. 525, 525-526 (1) (347 SE2d 263) (1986), we applied to a renewal action a prior version of OCGA § 1-3-1 (d) (3) that did not contain that provision. See generally Reese v. City of Atlanta, 247 Ga. App. 701, 702 (545 SE2d 96) (2001) (prior version of OCGA § 1-3-1 (d) (3) did not contain provision that first day shall not be counted). For the following reasons, we find that the current version of OCGA § 1-3-1 (d) (3) applies in this case.

The renewal statute does not expressly provide another method of calculating the six-month period, instead simply stating that the renewal action must be filed “within six months.” OCGA § 9-2-61 (a). We have applied the computation method of OCGA § 1-3-1 (d) (3) to similar language in other statutes requiring filing “within” a particular period of time. See, e.g., Infinite Energy v. Pardue, 310 Ga. App. 355, 361-363 (4) (713 SE2d 456) (2011) (applying OCGA § 1-3-1 (d) (3) to requirement that certain type of action be brought “within one year” after the right of action accrues); Baskin v. Ga. Dept. of Corrections, 272 Ga. App. 355, 358-359 (2) (612 SE2d 565) (2005) (applying OCGA § 1-3-1 (d) (3) to requirement that amendment to civil complaint against state to attach ante litem notice be filed “within 30 days” of state’s motion raising issue). While our Supreme Court has declined to apply the computation method of OCGA § 1-3-1 (d) (3) to a requirement that a materialman’s lien be filed “within three months” of a triggering event, it did so on the ground that the statute authorizing the lien was in derogation of common law and subject to “the strictest rules of strict construction.” U. S. Filter Distribution Group v. Barnett, 273 Ga. 254, 254-255 (538 SE2d 739) (2000) (citation and punctuation omitted). We have declined to apply this rationale to a remedial statute that is subject to liberal construction. See Parke v. Fant, 260 Ga. App. 84, 85-86 (1) (578 SE2d 896) (2003). The renewal statute is just such a remedial statute. Hobbs v. Arthur, 264 Ga. 359, 361 (444 SE2d 322) (1994). Consequently, the rationale in U. S. Filter Distribution Group, supra, is inapposite.

Decided March 3, 2014.

David A. Cox, for appellant.

Axam Roberts, Danielle P. Roberts, Stenger & Stenger, Laura D. Duston, for appellee.

And application of OCGA § 1-3-1 (d) (3)’s method of computation to the filing of renewal actions under OCGA § 9-2-61 (a) is implicit in some of our case law. See, e.g., Cleveland v. Katz, 311 Ga. App. 880, 881 (717 SE2d 500) (2011) (noting that renewal period ended on August 18, 2009, in case where plaintiff dismissed action on February 18, 2009); Cooper v. Lewis, 288 Ga. App. 750, 750-751 (655 SE2d 344) (2007) (noting that renewal period ended on August 25, 2005 in case where plaintiff dismissed action on February 25, 2005). Although these cases do not discuss how the filing deadline was calculated, they describe deadlines consistent with the method provided for in OCGA § 1-3-1 (d) (3).

Applying OCGA § 1-3-1 (d) (3) to this case, we find that Parsons’s six-month period for filing her renewal action began on June 7, 2012, the day after she dismissed the original superior court action, and ran until December 6, 2012. Accordingly, her refiling of the action on December 6 was timely and the superior court erred in granting Capital Alliance’s motion.

Judgment reversed.

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


text:
    A13A2417.
    DUNN v. THE STATE.
    (756 SE2d 17)
   McFADDEN, Judge.

After a nonjury trial, Charles Dunn was convicted of battery under the Family Violence Act, and the trial court imposed a sentence of 12 months probation. Dunn appeals, enumerating that the trial court was biased against him, improperly curtailed his right to cross-examine witnesses, and erroneously questioned witnesses. However, Dunn failed to preserve any of these issues for appellate review, and even if he had, he has failed to show reversible error. Accordingly, we affirm.

1. Judicial bias.

Dunn claims that the trial judge was not impartial based on two comments he made before the trial, one a reference to a prior case in which the judge had found Dunn guilty of an offense and the other a statement that during a bench trial the judge would “hear the evidence and give it my best shot.” However, Dunn never objected to the comments or moved for recusal, and by failing to do so he “waived any objection to the judge’s presiding in his case. [Cit.]” Parker v. State, 226 Ga. App. 462, 466 (8) (b) (486 SE2d 687) (1997). See Lacy v. Lacy, 320 Ga. App. 739, 744 (4) (740 SE2d 695) (2013) (issues regarding trial court’s alleged bias not preserved for appellate review where there was no motion for recusal or mistrial on those grounds). Moreover, even if Dunn had timely raised the issue of bias, it provides no grounds for reversal. It is clear from a review of the transcript that after Dunn had indicated a desire to proceed pro se with a bench trial, the trial court’s comments were merely part of its attempt to ensure that he understood his rights and the risks of proceeding in a bench trial without an attorney. Thus, “we find no merit to [Dunn’s] contention of unfairness or lack of impartiality based on the trial court’s comments.” Brunson v. State, 293 Ga. 226, 228 (3) (744 SE2d 695) (2013).

2. Cross-examination.

Dunn argues that the trial court improperly curtailed his right to cross-examine the state’s witnesses by not giving him an opportunity to do so until after all four of the witnesses had testified on direct examination. The transcript of the bench trial shows that the four state witnesses did testify consecutively without any cross-examination by Dunn, but also without any objection from Dunn as to the procedure. After the state rested, the trial court stated, “Okay, Mr. Dunn, you have the right to ask questions of the State’s witnesses if you want to do so. Do you have any questions you want to ask anybody?” Dunn declined, stating, “No, I have a statement I’d like to make.” The trial court told Dunn that he did not have to ask questions of the witnesses, but reiterated that “this will be your chance to do that if you want[ ] to.” Dunn again responded that he only wanted to make a statement. Thereafter, Dunn testified, denying that he had put his hands on the victim and claiming that she had slipped and fallen.

While the procedure was certainly unusual and not one that we encourage, we note that this was a bench trial at which the court has broader discretion and “certain evidentiary allowances [can be] made that differ from a jury trial.” Graves v. State, 227 Ga. App. 628, 630 (490 SE2d 111) (1997), reversed on other grounds, 269 Ga. 772 (504 SE2d 679) (1998). Further, a trial court has the authority to

exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) Make the interrogation and presentation effective for the ascertainment of the truth; (2) Avoid needless consumption of time; and (3) Protect witnesses from harassment or undue embarrassment.

OCGA § 24-6-611 (a). Nevertheless, we need not determine whether the procedure was improper because Dunn acquiesced in it by failing to object and by expressly stating that he did not want to cross-examine any of the witnesses. Thus, even assuming error, “this enumeration of error is waived on appeal because appellant acquiesced in the procedure [used] by the court.” Wilkins v. State, 291 Ga. 483, 488 (8) (731 SE2d 346) (2012) (citation omitted). See also Compton v. State, 281 Ga. 45, 46 (2) (635 SE2d 766) (2006) (defendant may not submit to court’s ruling or acquiesce in holding and then complain of same on appeal).

3. Trial court questioning witnesses.

Dunn contends that the trial court erred in questioning witnesses after the state had finished questioning them. However,

[b]ecause [Dunn] raised no objection to the questioning, he waived his right to assert the issue on appeal. Even if [Dunn] had objected, we find that no error occurred because [the transcript establishes that] the trial court merely sought to clarify [the witnesses’] testimony. The trial court may propound questions to any witness to develop the truth of the case.

Craft v. State, 274 Ga. App. 410, 414 (3) (618 SE2d 104) (2005) (citations omitted).

Judgment affirmed.

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

Decided March 3, 2014.

Andrew S. Foster, for appellant.

Rebecca L. Grist, Solicitor-General, for appellee.


author: Boggs, Judge.

text:
    A13A1735.
    WARD v. THE STATE.
    (756 SE2d 21)
   Boggs, Judge.

Following a stipulated bench trial, Theodis Ward was found guilty of DUI, driving with a suspended license, driving without a license, and improper stopping. He now appeals, arguing that the trial court erred in denying his motion to dismiss based upon the denial of his constitutional right to a speedy trial. For the following reasons, we affirm.

The record reveals that Ward was arrested on February 8, 2006, and indicted on July 25, 2006. He entered a plea of not guilty on August 14,2006, and the case was set for a calendar call in September 2006. When Ward’s counsel requested time to file motions, the trial court reset the case for October 12. On October 23, the case was reset to December 13 by the consent of both parties. But on December 6, Ward’s counsel filed a conflict notice informing the trial court that Ward’s case conflicted with two other court matters on December 13. The trial court found that Ward did not appear on December 13.

On January 29, 2007, Ward’s jury trial was continued to March 6, with a notation that he was in custody in DeKalb County. On February 9, Ward’s counsel filed an application for a leave of absence for March 12-16 and March 30-April 4. And less than three weeks later, on February 26, counsel filed another conflict notice for the week of March 5, showing that Ward’s jury trial conflicted with an arraignment in another case. Nothing appears in the record to explain the status of the case from March 2007 until a December 16, 2011 notice of a February 16, 2012 calendar call. On February 16, 2012, however, the case was continued to March 8, 2012 by the consent of both parties. Ward filed his motion to dismiss on February 22, 2012, which the trial court denied on May 8, 2012.

At the hearing on the motion to dismiss, Ward’s counsel explained that Ward had been incarcerated on unrelated charges in two other counties between April 2006 and April 2010. The trial court found that Ward failed to appear for trial on March 6, 2007, that it was during that hearing that the State learned that Ward was incarcerated in another county, and that it informed the State that if it “wanted to pursue the case, a production order would have to issue — [T]here is no activity on the file until a note in the [State]’s file on September 6, 2010, indicating that [Ward] was still in custody.” The court found further that the case next appeared on a December 2011 calendar call.

In a single enumeration, Ward contends that the trial court erred in denying his motion to dismiss the charges against him based upon a violation of his constitutional right to a speedy trial.

The principles that guide a court in its consideration of whether a delay in bringing an accused to trial works a deprivation of the right to a speedy trial are set out in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

(Punctuation omitted.) State v. Brown, 315 Ga. App. 544, 544-545 (726 SE2d 500) (2012). To determine whether the Sixth Amendment right to a speedy trial has been violated, our courts consider: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Barker, supra, 407 U. S. at 530-532 (IV). With these four factors in mind, “the question is whether the trial court abused its discretion in ruling that the defendant’s speedy trial rights were not violated.” (Citation and punctuation omitted.) Lambert v. State, 302 Ga. App. 573, 575 (692 SE2d 15) (2010).

1. Presumptive prejudice.

First, a court must determine whether the delay “has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, [the accused] cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Doggett, [supra]. If the delay passes this threshold test of “presumptive prejudice,” then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with “the presumption that pretrial delay has prejudiced the accused intensifying] over time.”

(Citations and punctuation omitted.) Fallen v. State, 289 Ga. 247, 248 (1) (710 SE2d 559) (2011). As the trial court found and the State concedes, the pretrial delay of six years in this case is presumptively prejudicial, triggering the Barker inquiry.

2. The Barker-Doggett Factors.

(a) Length of the delay. “The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation, whichever comes first, to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion.” (Citation and punctuation omitted.) State v. Curry, 317 Ga. App. 611, 613 (2) (a) (732 SE2d 459) (2012). Ward was arrested on February 8, 2006, and the ruling on the motion to dismiss was filed on May 8,2012. This over six-year delay is uncommonly long and weighs against the State. See State v. Johnson, 291 Ga. 863, 865 (2) (a) (734 SE2d 12) (2012) (more than five-year delay uncommonly long and weighs against State); Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012) (over four-year delay weighs against State).

(b) Reason for the delay. The trial court, in concluding that “this portion of the balancing test is neutral as to both parties,” found that “some of the delay was the fault of the State, some of the delay was the fault of Defendant and some of the delay is unexplained.” The record reveals that the case was delayed for a few months between September 2006 and March 2007 due to Ward’s counsel’s request for more time to file motions, her application for a leave of absence, and her notices of conflict. But the bulk of the delay is unexplained. The State offered no explanation for the reason for delay from March 2007 to February 2012. The prosecutor argued that Ward did not appear for the March 6, 2007 trial date, that he sent an e-mail to the trial judge in March 2007 “seeking information from the Judge, what to do with this case,” and that he sent another e-mail in October 2011 “seeking information about [Ward] .” The prosecutor explained that in March 2007, he learned from Ward’s mother that he was incarcerated in yet another county, and that when Ward was released, defense counsel informed the State that she could not locate him.

Based upon the record before us, the State’s failure is unexplained, or at most, a result of the State’s uncertainty in how to proceed. The State was aware as early as March 2007 that Ward was incarcerated in another county. “[W]here no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” (Citations, punctuation and footnote omitted.) Ruffin v. State, 284 Ga. 52, 61 (2) (b) (ii) (663 SE2d 189) (2008). And “this factor weighed to a lesser degree or benignly against the State.” Goffaux v. State, 313 Ga. App. 428, 429 (721 SE2d 635) (2011). Because the majority of the delay, approximately five years, was due to the negligence of the State, this factor should have been weighed against the State, even if to a lesser degree, and is not neutral as to both parties as found by the trial court. See, e.g., Franklin v. State, 305 Ga. App. 354, 359 (1) (b) (699 SE2d 575) (2010) (reason for delay should have been weighed against State where only a portion was attributable to the defendant; majority of the delay was due to the State’s decision to dead docket).

(c) Assertion of the right.

The relevant question for purposes of the third speedy trial factor is whether the accused has asserted the right to a speedy trial in due course. This factor requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately. Because delay often works to the defendant’s advantage, this factor is afforded strong evidentiary weight.

(Citations and punctuation omitted.) Phan, supra, 290 Ga. at 595 (1) (c). Ward first asserted his right to a speedy trial when he filed his motion to dismiss in February 2012, more than six years after his arrest. The trial court found that there was no evidence that Ward, who was at all times represented by counsel, “asserted any objection to the slow pace of the case.” Therefore, as found by the trial court, this factor weighs heavily against Ward. See id.

(d) Prejudice. “Whether the defendant has established prejudice as a result of the delay requires consideration of the oppressiveness of pre-trial incarceration, undue anxiety suffered by the defendant, and impairment of his ability to mount a defense.” (Citation omitted.) Phan, supra, 290 Ga. at 596 (1) (d); see Ogletree v. State, 303 Ga. App. 581, 584 (d) (693 SE2d 909) (2010). Ward claims his key witness, who would have testified that he was not driving the vehicle at the time of the incident, is now unavailable. The trial court found that while trial counsel explained at the hearing that he attempted to locate this witness by “talking] to a couple of people,” “Googling” him, contacting county jails, and going “back to the place where [the witness] lived,” counsel admitted that Ward lost track of the witness while he was incarcerated for four years on other charges. The court concluded that therefore Ward was “partially responsible for the loss of the witness,” and that this factor must weigh “against the State, although it is modified by Defendant’s actions.”

While counsel argued that Ward attempted to locate the witness at some point, there is no evidence that Ward had ever located or could locate this witness at any time during the six years his case was pending. Ward has simply not shown that this witness’s unavailability was due to the State’s delay in bringing his case to trial. See, e.g., Watkins v. State, 267 Ga. App. 684, 687 (d) (600 SE2d 747) (2004) (no evidence that defendant lost contact with out-of-state individuals because of delay in bringing case to trial); cf. Salahuddin v. State, 277 Ga. 561, 563 (2) (592 SE2d 410) (2004) (defendant shared partial responsibility for loss of alibi witness; defendant not precluded from asserting alibi defense). Under these circumstances, the failure to show prejudice should have been weighed against Ward.

(e) Balancing the factors. The trial court concluded that its balancing of the four Barker factors required it to deny Ward’s motion to dismiss.

Atrial court exercises substantial judgment in applying the Barker balancing test; however, if the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.

(Punctuation omitted.) State v. Gay, 321 Ga. App. 92, 99 (3) (e) (741 SE2d 217) (2013), citing State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). Here, the trial court erred in concluding that the reason for the delay is neutral rather than weighing this factor against the State, and erred in concluding that the prejudice factor weighs against the State but “modified by Ward” rather than weighing it fully against Ward. But had the court properly weighed these factors before balancing them, it would have had no discretion to reach a different judgment. See, e.g., Brown v. State, 287 Ga. 892, 896 (1) (700 SE2d 407) (2010) (court did not abuse its discretion in denying motion to dismiss on speedy trial grounds after balancing state’s negligent delay in bringing case to trial against defendant’s failure to timely assert right to speedy trial and his failure to show that delay impaired his defense); Watkins, supra, 267 Ga. App. at 687 (d) (same). Ward did not assert his right to a speedy trial for six years following his arrest, and failed to show that the delay in the State bringing the case to trial impaired his defense. See Williams v. State, 279 Ga. 106, 110 (1) (d) (610 SE2d 32) (2005). As Justice Nahmias explained in a concurrence in Phan v. State, 287 Ga. 697 (699 SE2d 9) (2010): “[I]t shouldbe recognized that delayed assertion of the right to a speedy trial and lack of prejudice are the two factors that most often weigh heavily against defendants and which then support the overall conclusion that speedy trial rights have not been violated.” Id. at 700.

Decided March 4, 2014.

S. Michael Holmes, for appellant.

Sherry Boston, Solicitor-General, Wystan B. Getz, Assistant Solicitor-General, for appellee.

Under these circumstances, we cannot say that the trial court abused its discretion in denying Ward’s motion to dismiss.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       Neither the transcript of the March 6, 2007 hearing, nor the note from the State’s file appear in the record.

       These e-mails were not included in the record on appeal.

       Ward makes no argument on appeal with, regard to pretrial incarceration or undue anxiety. The State asserted at the hearing on the motion to dismiss that Ward was held “less than 72 hours” on the charges in this case.


text:
    A13A2126.
    A13A2127.
    JONES v. THE STATE. NICHOLSON v. THE STATE.
    (755 SE2d 815)
   Boggs, Judge.

In State v. Nicholson, 321 Ga. App. 314 (739 SE2d 145) (2013), we reversed the trial court’s grant of a new trial to both Jason Nicholson and Laranda Jones based on alleged errors in the jury instructions and verdict form. We then remanded the case for the trial court to consider the remaining issues raised in the motions for new trial but not ruled upon in its original orders. Id. at 320 (3). Upon remand, the trial court denied both motions, and Jones and Nicholson appeal, asserting identical allegations of ineffective assistance of counsel and the improper limitation of cross-examination by the trial court. Finding no error, we affirm.

1. As we noted in the previous appearance of this case,

[t]he record shows that the charges against Nicholson and Jones arose out of Nicholson’s methamphetamine transactions with the male victim, allegations of theft against the male victim by Nicholson, and a subsequent physical altercation between Nicholson, Jones, and the male victim and his girlfriend, the second victim.

Nicholson, supra, 321 Ga. App. at 314-315. Jones and Nicholson contend that the trial court erred in curtailing the cross-examination of the victims “regarding the events of the next day.” The day after the robbery and aggravated assaults for which Jones and Nicholson were convicted, the female victim called the police to complain that the male victim had stolen her car. The police investigation uncovered drug paraphernalia in the male victim’s room, and he was arrested. At the time of trial, charges remained pending against the male victim.

As the trial began, the State moved in limine to exclude evidence of the male victim’s arrest. After some discussion, the trial court denied the State’s motion, stating that it would rule when the evidence was offered. The following day, the issue was again raised when defense counsel noted that he wanted to mention the male victim’s possession of drugs during his opening statement. The trial court again noted that the events of the following day did not appear to be relevant unless a connection could be shown to the female victim’s injuries, but that he would revisit the issue depending on the evidence adduced at trial.

Later in the trial, after the examination of the second victim, trial counsel again sought a ruling on the admission of evidence of the later events, asserting that the male victim had “opened the door” by testifying that the robbery “ruined his relationship” with the female victim. The trial court again declined to allow the testimony. When the female victim testified, trial counsel yet again sought to admit the testimony, and the prosecutor responded, “Actually, fine. Just let it happen •— let it in. That’s fine. Go for it.” The State then presented the evidence regarding a protective order obtained by the female victim against the male victim, the drug paraphernalia, and the stolen car on redirect examination, and trial counsel cross-examined the female victim.

On remand, the trial court found that, even though the evidence was originally ruled irrelevant, it was later introduced. Jones and Nicholson must show harm as well as error. Clayton v. State, 319 Ga. App. 713, 714 (1) (738 SE2d 299) (2013). Assuming without deciding that the exclusion was error, the presentation of the evidence to the jury later in the trial renders any error harmless. Williams v. State, 178 Ga. App. 581, 591 (11) (344 SE2d 247) (1986). See also Mitchell v. State, 293 Ga. 1, 2-3 (2) (742 SE2d 454) (2013) (exclusion of evidence harmless because cumulative of other testimony).

Jones and Nicholson now argue that they should have been able to cross-examine the male victim on the pending charges against him because it could have shown a “motive and bias that may influence the witness’ testimony.” But, even though the male victim had already testified, he was subject to recall at the express reservation of defense counsel. The witness could have been recalled and cross-examined once the State conceded to admission of the evidence, but Jones and Nicholson failed to do so, and they cannot now complain. See Green v. State, 298 Ga. App. 17, 24 (5) (679 SE2d 348) (2009) (appellant could not claim denial of right to confront witness when he declined opportunity to cross-examine).

2. Jones and Nicholson raise a number of allegations of ineffective assistance of counsel.

The burden of establishing the ineffective assistance of trial counsel is a heavy one that requires an appellant to establish both that counsel’s performance fell below an objective standard of reasonableness, and that, but for counsel’s deficient performance, there is a reasonable probability that the outcome of the trial would have been different. Regarding this second prong, it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings, he must establish a reasonable probability that but for the error, his trial would have ended differently. A failure to make a sufficient showing on either of these prongs will be fatal to a claim of ineffective assistance. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

(Citations, punctuation and footnotes omitted.) Polite v. State, 273 Ga. App. 235, 239 (4) (614 SE2d 849) (2005).

(a) Jones and Nicholson claim that trial counsel was ineffective in failing to object when the trial court excluded evidence regarding the male victim’s arrest on the day following the incident. As noted in Division 1, supra, this evidence was heard by the jury later in the trial. The claim of ineffective assistance in failing to object to any earlier exclusion is therefore without merit. “Failure to raise a meritless objection cannot constitute ineffective assistance of counsel.” (Citations and punctuation omitted.) Jones v. State, 294 Ga. App. 854, 856 (3) (670 SE2d 506) (2008). See also Polite, supra, 273 Ga. App. at 239-240 (4) (“As we determined . . . , even if objection to the statement had been both proper and timely, the same evidence was properly introduced later in the trial, and, as such, counsel’s failure to object to the statement did not contribute to the proceeding’s outcome. [Cit.]”).

(b) Jones and Nicholson now contend that trial counsel should have raised a Confrontation Clause objection to not being allowed to cross-examine the male victim. But, as noted in Division 1, above, trial counsel reserved the right to recall the male witness for purposes of cross-examination and was not prevented from doing so. Jones and Nicholson therefore cannot demonstrate that they were prejudiced by failure to raise such an objection. See Green, supra, 298 Ga. App. at 24 (5).

Decided March 4, 2014.

September Guy, for appellants.

(c) Jones and Nicholson also complain that trial counsel was ineffective in failing to object to testimony regarding the medical status of the victims. Trial counsel testified at some length to his reasons for not objecting to testimony regarding the male victim’s HIV status, including that it “did not justif[y] me getting involved in trying to make such an issue of it.” He observed that the male victim was an unsympathetic witness who was “very unstable looking,” and in light of that he did not believe his HIV status would affect the jury’s decision one way or the other. He testified similarly regarding the female victim’s alleged depression and social security disability status, asserting that he chose not to “get into this mental business” because he did not believe it would affect the jury’s verdict. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 757 (4) (b) (732 SE2d 810) (2012). Because we cannot say that trial counsel’s strategy was patently unreasonable under the circumstances presented, the trial court was authorized to deny this ineffective assistance claim.

(d) Finally, Jones and Nicholson also allege that trial counsel was ineffective in failing to cross-examine a police officer regarding inconsistencies between what the witnesses testified and what he observed on the day of the incident. Trial counsel testified that he did not want to give the officer the chance to explain away the inconsistencies, or to add more unfavorable testimony on cross-examination, but preferred to address any inconsistencies in closing argument. This strategy is likewise not patently unreasonable. Flemister, supra. Counsel’s strategic decision to forego cross-examination of the officer and employ another tactical method or goal was reasonable and did not constitute deficient performance. Pitts v. State, 323 Ga. App. 770, 775 (3) (747 SE2d 699) (2013).

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.