author: BARNES, Presiding Judge.

text:
    A16A1990.
    EXTREMITY HEALTHCARE, INC. et al. v. ACCESS TO CARE AMERICA, LLC et al.
    (793 SE2d 529)
   BARNES, Presiding Judge.

This case centers on a dispute between several businesses over the enforceability of an arbitration clause in a buyout agreement relating to a failed joint venture. Plaintiffs Extremity Healthcare, Inc. (“EHI”), Village Podiatry Group, LLC (“Village Podiatry”), and EHI Vascular Solutions — Marietta, LLC f/k/a Extremity ASC, LLC (“Vascular Solutions”) appeal the trial court’s order compelling arbitration of their claims against Defendants Access to Care America, LLC (“ATCA”) and Sweet Dreams Nurse Anesthesia, Inc. (“Sweet Dreams”) and dismissing the case. The plaintiffs contend that the trial court erred in compelling arbitration because the buyout agreement containing the arbitration clause was invalid and unenforceable due to lack of mutual assent and a mutual mistake. The plaintiffs also argue that the defendants waived enforcement of the arbitration clause based on their participation in this litigation. For the reasons discussed below, we conclude that the trial court properly ordered the case to arbitration and therefore affirm.

Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Therefore, the question of arbitra-bility, i.e., whether an agreement creates a duty for the parties to arbitrate the particular grievance, is undeniably an issue for judicial determination.

(Punctuation and footnote omitted.) Perry Golf Course Dev. v. Columbia Residential, 337 Ga. App. 525, 528 (1) (786 SE2d 565) (2016). See Granite Rock Co. v. Intl. Brotherhood of Teamsters, 561 U. S. 287, 296 (II) (130 SCt 2847, 177 LE2d 567) (2010); Triad Health Mgmt. of Ga., III v. Johnson, 298 Ga. App. 204, 206 (2) (679 SE2d 785) (2009); Panhandle Fire Protection v. Batson Cook Co., 288 Ga. App. 194, 197-198 (1) (b) (653 SE2d 802) (2007). On appeal from a trial court’s order compelling arbitration, the standard of review is whether the court “was correct as a matter of law.” Simmons Family Properties, LLLP v. Shelton, 307 Ga.App. 361, 362 (1) (705 SE2d 258) (2010). And “[t]he construction of an arbitration agreement, like any other contract, presents a question of law, which is subject to de novo review.” Id. Mindful of these principles, we turn to the record here.

The Joint Ven ture. The record reflects that Village Podiatry is a wholly owned subsidiary of EHI. In 2012, Village Podiatry, a practice group of podiatrists, and Sweet Dreams, a practice group of nurse anaesthetists, entered into a joint venture to establish a podiatric ambulatory surgery center. To that end, Sweet Dreams formed another legal entity, ATCA, and on October 1, 2012, ATCA secured a five-year lease with the landlord of an office building in Marietta, Georgia, where the parties intended to construct their surgery center. The parties also formed Vascular Solutions, a limited liability company in which Village Podiatry and ATCA would be members, through which the parties would operate their joint venture at the office building.

The Buyout Agreement. The parties’joint venture did not operate smoothly, and they ultimately decided to end their business relationship. In 2015, after lengthy negotiations, the parties executed a document entitled “Release and Settlement/Buyout Agreement” (the “Buyout Agreement” or “Agreement”) under which EHI, Village Podiatry, and Vascular Solutions (collectively, the “EHI Parties”) agreed to buy out the joint venture interests of Sweet Dreams and ATCA (collectively, the “SDNA Parties”), and the parties agreed to release one another from all claims related to the joint venture.

More specifically, under the Buyout Agreement, in return for a cash payment totaling over $800,000 from the EHI Parties paid out over a five-year term, the SDNA Parties agreed to take several steps to withdraw from the joint venture, including having ATCA relinquish its membership interest in the parties’ joint venture company, Vascular Solutions. ATCAalso executed a “Lease Assignment” attached as an exhibit to the Buyout Agreement, which would assign ATCA’s rights and obligations under the office building lease to Vascular Solutions once approved by the landlord.

In addition to the substantive provisions addressing the SDNA Parties’ withdrawal from the joint venture in return for the cash payment, the Buyout Agreement contained an “entire agreement” clause and an arbitration clause. The “entire agreement” clause provided:

This Agreement and any Exhibits and Schedules hereto contain the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior written and oral agreements, negotiations, commitments, writings, and understandings between the Parties with respect to the subject matter contained herein. It is agreed that there are no collateral agreements or representations, written or oral, related to the [ambulatory surgery center joint venture] which are not contained in this Agreement.

The arbitration clause provided in part:

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Lastly, the Buyout Agreement included a provision specifying when it would become binding on the parties. The provision stated that the Agreement would “become effective following execution of the Agreement by all of the Parties” in counterparts and/or by facsimile, by PDF exchange via e-mail, or by electronic signature.

The EHI Parties signed the Buyout Agreement and subsequently delivered the signed Agreement to the SDNA Parties by e-mail in PDF format on June 15, 2015. In the e-mail, counsel for the EHI Parties stated, “We consider the documents to be held in escrow until they are fully executed by all parties.” Two days later, on June 17, 2015, the SDNA Parties returned the fully executed Buyout Agreement to the EHI Parties by e-mail in PDF format.

The Proposed Lease Amendment. Before execution of the Buyout Agreement, a dispute had arisen between the landlord and ATCA over the payment of certain costs and other issues related to the office building lease. The landlord sought to settle the dispute with ATCA, and the landlord ultimately proposed an amendment to the office building lease that, among other things, would have extended the term of the lease from five years to ten years (the “Proposed Lease Amendment”).

Following execution of the Buyout Agreement, the EHI Parties asked the landlord to approve and sign the Lease Assignment attached as an exhibit to the Buyout Agreement to effectuate the assignment of the office building lease from ATCA to Vascular Solutions. However, the landlord indicated that its approval of the Lease Assignment was contingent on ATCA first executing the Proposed Lease Amendment.

The EHI Parties requested that ATCA sign the Proposed Lease Amendment as requested by the landlord, but ATCA ultimately declined to do so because it did not want to risk bearing any potential legal obligation for an extended lease term. Because ATCA declined to sign the Proposed Lease Amendment, the landlord refused to approve the Lease Assignment. In the absence of a valid and enforceable Lease Assignment, the landlord was unwilling to provide access to the office building to any party other than ATCA, including the EHI Parties.

Procedural History. Because ATCA refused to sign the Proposed Lease Amendment and the landlord refused to sign the Lease Assignment, the EHI Parties refused to make any cash payments to the SDNAParties under the terms of the Buyout Agreement. In response, the SDNA Parties filed a claim for arbitration with the American Arbitration Association under its Commercial Arbitration Rules, alleging that the EHI Parties had breached their payment obligations under the Buyout Agreement.

After the SDNA Parties filed their arbitration claim, the EHI Parties initiated the present action against them for declaratory relief in the Superior Court of Fulton County, seeking a declaration that the Buyout Agreement, including the payment terms and the arbitration clause, was invalid and unenforceable because the parties had not mutually assented to all of the essential contractual terms. The EHI Parties sought a temporary restraining order and permanent stay of the arbitration on the same basis.

The trial court temporarily stayed the arbitration with the consent of the parties and entered a case management order. The SDNA Parties thereafter filed an answer that included the affirmative defense that the EHI Parties’ claims were barred by the arbitration clause in the Buyout Agreement. The SDNAParties also asserted several counterclaims that went to the merits of the parties’ underlying dispute over the joint venture, including counterclaims for unjust enrichment and promissory estoppel, in the event that the trial court “determine[d] that the fully executed . . . Buyout Agreement [was] not enforceable.”

The parties proceeded with discovery. The SDNA Parties subsequently filed a motion for summary judgment, arguing that the parties had mutually assented to all essential terms of the Buyout Agreement by signing it; that the Agreement was unambiguous and constituted a complete and final expression of the parties’ intent to settle all matters relating to their joint venture; and that parol evidence was inadmissible to change the unambiguous terms of the Agreement. Based on these arguments, the SDNA Parties asserted that the Buyout Agreement was valid and enforceable as a matter of law, that the temporary stay should be lifted, and the case should be ordered to arbitration.

The EHI Parties opposed the motion, arguing that the Buyout Agreement, including the arbitration clause, was invalid and unenforceable for lack of mutual assent to all of the essential contractual terms. According to the EHI Parties, the parties had never reached agreement as to whether the EHI Parties’ payment and other obligations under the Buyout Agreement were conditioned on ATCA signing the Proposed Lease Amendment and the landlord approving the Lease Assignment. Alternatively, the EHI Parties argued that the Buyout Agreement was unenforceable on the ground of mutual mistake because the parties had mistakenly believed, when they entered into the Agreement, that the office building lease was valid and could be assigned to Vascular Solutions.

After a hearing where the parties presented oral argument, the trial court concluded that the arbitration clause was enforceable as a matter of law and granted the SDNA Parties’ motion, lifted the temporary stay, and ordered the parties to arbitration. The SDNA Parties’ counterclaims were voluntarily dismissed without prejudice, and the trial court stated that its order in favor of the SDNA Parties was a final judgment and directed that the clerk of court close the case on the docket. This direct appeal by the EHI Parties followed.

1. The EHI Parties contend that the trial court erred in ordering the case to arbitration because the Buyout Agreement containing the arbitration clause was unenforceable for lack of mutual assent of the parties to all of the essential contractual terms. According to the EHI Parties, the parties never reached agreement regarding whether the EHI Parties’ obligations under the Buyout Agreement were conditioned on ATCA executing the Proposed Lease Amendment in connection with the Lease Assignment and on the landlord approving the Lease Assignment. We are unpersuaded.

“[T]he validity of an arbitration agreement is generally governed by state law principles of contract formation.” (Punctuation and footnote omitted.) Perry Golf Course Dev., 337 Ga. App. at 528 (1). To form a valid contract under Georgia law, “there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. Thus, unless and until there is the mutual assent of the parties to all essential terms, there is no complete and enforceable contract. TranSouth Financial Corp. v. Rooks, 269 Ga. App. 321, 323 (1) (604 SE2d 562) (2004). See Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982) (“It is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject-matter, and in the same sense.”). And if the contract is unenforceable for lack of mutual assent, an arbitration clause contained within the contract is likewise unenforceable. TranSouth Financial Corp., 269 Ga. App. at 324 (1).

“In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable person in the position of the other contracting party would ascribe to the first party’s manifestations of assent.” (Citations and punctuation omitted.) Hart v. Hart, 297 Ga. 709, 711 (777 SE2d 431) (2015).

In some branches of the law, most notably in the criminal law, a person’s subjective or secret intent is important. In the formation of contracts, however, it was long ago settled that secret, subjective intent is immaterial, so that mutual assent is to be judged only by overt acts and words rather than by the hidden, subjective or secret intention of the parties.

1 Williston on Contracts § 4:1 (4th ed. 2016).

Guided by these principles of contract formation, we conclude that the uncontroverted evidence showed that the parties had the requisite meeting of the minds necessary to reach agreement in this case. As explained below, the parties mutually assented to the Buyout Agreement through their signatures, and the Buyout Agreement specifically addressed the parties’ respective obligations in connection with the Lease Assignment and the consequences that would follow if the Lease Assignment was never finalized with the approval of the landlord. Hence, the fully executed Buyout Agreement reflects that the parties did reach a meeting of the minds regarding all essential matters relating to the Lease Assignment.

As an initial matter, as previously noted, the Buyout Agreement specified that it would “become effective following execution of the Agreement by all of the parties,” and it is undisputed that the Agreement was signed by all the contracting parties in this case. “The affixing of their signatures to the instrument by the parties shows their mutual assent to its terms and provisions.” Russell v. Smith, 77 Ga. App. 70, 72 (47 SE2d 772) (1948). See Ayer v. Norfolk Timber Investment, 291 Ga. App. 409, 411-412 (1) (662 SE2d 221) (2008) (noting that “any writing ... in which the party charged admits, over his signature, all of the terms of the contract insisted upon by the opposite party, is sufficient” to prove his assent to the contractual terms) (citation, punctuation and footnote omitted). The parties’ signatures on the Buyout Agreement therefore reflected that they mutually assented to all of its terms.

Furthermore, the unambiguous language of the fully executed Buyout Agreement reflects that the parties intended for it to be a complete and final expression of their agreement to settle all matters relating to their joint venture, including a resolution of all issues between them that pertained to the Lease Assignment. As noted above, the Lease Assignment, which would assign the office building lease from ATCA to Vascular Solutions once approvedby the landlord, was executed by ATCA and attached as Exhibit E to the Buyout Agreement. The Lease Assignment contained a blank signature line for the landlord, and the Buyout Agreement also contained the following assignment provision:

Assignment of Lease. Immediately upon execution of this Agreement, the EHI Parties will use their maximum/best efforts to have the [landlord] execute EXHIBIT E, which assigns the October 1, 2012, “Office Lease Agreement” (as amended, if at all) between ATCA and the Landlord (the “Lease”) to [Vascular Solutions], and removes ATCA as tenant from the Lease. Any proposed landlord changes to Exhibit E must be reviewed and approved by the SDNA Parties, which shall not be unreasonably withheld.
Regardless of whether or not EXHIBIT E is actually executed by the Landlord, the EHI Parties and [Vascular Solutions] agree that they are wholly responsible for all past, present, and future operations, financing, debts, liens, liability for, contracting with respect to, payments, covenants, obligations, and restrictions related to the Lease and/or the Leased Premises (as definedinthe Lease Assignment attached as EXHIBIT E).

(Emphasis supplied.)

This contractual language reflects that, far from being incomplete, the Buyout Agreement obligated the EHI Parties to use their best efforts to obtain the landlord’s approval of the Lease Assignment, and obligated the SDNA Parties to consider and not unreasonably withhold their approval to any changes proposed by the landlord in connection with the negotiations between the EHI Parties and the landlord over the Lease Assignment. The Buyout Agreement further contemplated that the original office lease between the landlord and ATCA might be amended as part of the Lease Assignment. Additionally, the Buyout Agreement indicated that the landlord might never approve the Lease Assignment and that any risk in that regard would be borne by the EHI Parties, who would continue to have binding contractual obligations even if the landlord’s approval was not obtained. The plain language of the Buyout Agreement therefore shows that there was a meeting of the minds between the parties regarding all matters related to the Lease Assignment. This is particularly true in light of the “entire agreement” clause, which ruled out any “collateral agreements or representations, written or oral.”

The EHI Parties, however, point to parol evidence that they contend shows that there was never any meeting of the minds as to whether their contractual obligations under the Buyout Agreement would be conditioned on ATCA executing the Proposed Lease Amendment and the landlord approving the Lease Assignment. According to the EHI Parties, e-mail correspondence between the parties’ attorneys shows that, although the SDNA Parties took the position that the Buyout Agreement was final and complete upon being executed by the parties, the EHI Parties repeatedly responded that the Buyout Agreement would not be final and binding until ATCA had signed the Proposed Lease Amendment and the landlord had approved the Lease Assignment. In reply to the EHI Parties’ argument, the SDNA Parties contend that the EHI Parties cannot rely on parol evidence to contradict the plain and unambiguous language of the Buyout Agreement regarding all matters related to the Lease Assignment, especially in light of the “entire agreement” clause contained in the Buyout Agreement.

The EHI Parties are correct that they can rely upon parol evidence in the context of their claim of lack of mutual assent to the contract. “Although parol evidence cannot be used to contradict or vary the terms of a valid written agreement, parol evidence may be used to show no valid agreement ever went into existence.” Moreno v. Smith, 299 Ga. 443, 445 (1) (788 SE2d 349) (2016), quoting BellSouth Advertising & Publishing Corp. v. McCollum, 209 Ga. App. 441, 444 (2) (433 SE2d 437) (1993). See Cox Broadcasting Corp., 250 Ga. at 395. As our Supreme Court has explained, “the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence.” Hart, 297 Ga. at 711, quoting Frickey v. Jones, 280 Ga. 573, 575 (630 SE2d 374) (2006).

Therefore, even though a writing purports to be a complete integration, evidence of negotiations is admissible to show that no enforceable agreement was reached. As Learned Hand reminded, “whatever the formal documentary evidence, the parties to a legal transaction may always show that they understood a purported contract not to bind them.”

(Footnotes omitted.) E. Allan Farnsworth, Contracts§ 7.4, at 439-440 (3d ed. 1999). See In re H. Hicks & Son, Inc., 82 F2d 277, 279 (2d Cir. 1936) (Hand, J.).

The EHI Parties thus could rely on parol evidence in an effort to show that they conditioned their acceptance of the Buyout Agreement on ATCA executing the Proposed Lease Amendment and on the landlord approving Lease Assignment, and that the SDNA Parties never accepted those conditions, such that there was never any meeting of the minds between the parties. See generally 20/20 Vision Center v. Hudgens, 256 Ga. 129, 133 (1) (345 SE2d 330) (1986) (“An absolute acceptance of a proposal, coupled with a condition, will not be a complete contract[ ] because there does not exist the requisite mutual assent to the same thing in the same sense. Both parties must assent to the same thing, in order to make a binding contract between them.”) (citations and punctuation omitted).

The e-mail correspondence relied upon by the EHI Parties as parol evidence, however, does not show a lack of mutual assent. Notably, there is no evidence that the EHI Parties ever communicated to the SDNA Parties, prior to or at the time o/the execution of the Buyout Agreement, that they considered their acceptance of the Buyout Agreement to be conditioned on ATCA executing the Proposed Lease Amendment and the landlord approving the Lease Assignment. Rather, the relevant e-mail correspondence relied upon by the EHI Parties was sent after the Buyout Agreement had been signed by all of the parties and had become effective under its express terms, with the parties disagreeing at that point over whether the Buyout Agreement had already become binding and enforceable.

Given this record,

[the EHI Parties’] objective manifestation of intent was shown through the express language of the [Buyout Agreement], and there is no evidence that the [SDNA Parties] were aware of the meaning the [EHI Parties] ascribed to the [Buyout Agreement at the time it was executed]. It was long ago settled, that in the making of contracts secret intent was immaterial, only overt acts being considered in determining whether or not the parties to an agreement had agreed to the same thing in the same sense.

(Punctuation and footnote omitted.) Greenwald v. Kersh, 275 Ga. App. 724, 727 (621 SE2d 465) (2005). The EHI Parties’ e-mail correspondence merely shows that the parties began “to disagree about the interpretation of the contract language after the contract ha[d] been executed,” which is insufficient, without more, to show a lack of mutual assent when the contract was formed. Cox Broadcasting Corp., 250 Ga. at 395. Consequently, the EHI Parties’ reliance upon the e-mail correspondence that occurred after execution of the Agreement to show a lack of mutual assent is misplaced. Compare Moreno, 299 Ga. at 445 (1) (parol evidence of the parties’ conduct after execution of their purported contract, combined with affidavit evidence of the parties’ statements made at the time the purported contract was signed, provided evidence of lack of mutual assent).

For these combined reasons, the uncontroverted evidence showed that the parties mutually assented to the Buyout Agreement, which was a full and complete expression of the parties’ intent regarding the Lease Assignment and other matters related to the SDNA Parties’ withdrawal from the joint venture. And because there was mutual assent to all the terms of the Buyout Agreement, the parties mutually assented to the arbitration clause contained within the Agreement as a matter of law. Compare TranSouth Financial Corp., 269 Ga. App. at 324 (1) (absent evidence that parties mutually assented to all the essential contractual terms, the parties’ alleged agreement, including the arbitration clause contained within it, was unenforceable).

2. Alternatively, the EHI Parties contend that the trial court erred in ordering the case to arbitration because the Buyout Agreement containing the arbitration clause was unenforceable on the ground of mutual mistake. The EHI Parties note that when the parties entered into the Buyout Agreement, they believed that the office building lease between the landlord and ATCA was valid and could be assigned to Vascular Solutions as part of their settlement of all matters related to the joint venture. The EHI Parties emphasize, however, that during discovery, the SDNA Parties for the first time took the position that the lease was invalid from its inception on several grounds. If the lease was in fact invalid from its inception, the EHI Parties argue that the Buyout Agreement is unenforceable because both parties at the time of contracting had a mistaken belief regarding a basic assumption on which the Buyout Agreement was made, namely, that the lease was valid and subject to assignment. Again, we are unpersuaded.

Pretermitting whether the office building lease was invalid from its inception, we conclude that the doctrine of mutual mistake would not render the Buyout Agreement unenforceable in light of the record in this case. “An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when the mistake operates as a gross injustice to one and gives an unconscionable advantage to the other, may be relieved in equity.” OCGA § 23-2-22. “The power to relieve mistakes shall be exercised with caution; to justify it, the evidence shall be clear, unequivocal, and decisive as to the mistake.” OCGA §23-2-21 (c). Furthermore, to prove mutual mistake, “it must be shown that the alleged mistake resulted in a contract which fails to express accurately the intention of the parties.” CS-Lakeview at Gwinnett v. Simon Property Group, 283 Ga. 426, 429 (659 SE2d 359) (2008).

Here, the assignment provision of the Buyout Agreement, quoted supra in Division 1, specifically referred to the possibility of an “amended” office building lease and to “proposed landlord changes” to the Lease Assignment attached to the Buyout Agreement, and the provision further stated that the EHI Parties would continue to have contractual obligations “[rjegardless of whether or not [the Lease Assignment was] actually executed by the Landlord.” Hence, as the language of the assignment provision in the Buyout Agreement clearly reflects, the parties specifically contemplated that the original office building lease and/or the Lease Assignment might have to undergo amendment or revision before any assignment would become enforceable, that the assignment of the lease to Vascular Solutions might never occur even with the best efforts of the parties, and that any risk in that regard would be assumed by the EHI Parties.

Under these circumstances, where the parties foresaw the possible need for revisions to the original office building lease and to the Lease Assignment, understood that there was a risk that the lease would never be assigned to Vascular Solutions, and contracted over which parties would bear the risk that the assignment of the lease ultimately would fail, it cannot be said that the alleged mistake regarding the lease would work a gross injustice to the EHI Parties, or would result in a contract that failed to accurately express the intentions of the parties. Consequently, the EHI Parties’ argument that the arbitration clause was unenforceable because of a mutual mistake in entering the Buyout Agreement failed as a matter of law.

3. The EHI Parties further argue that the SDNA Parties waived their right to enforce the arbitration clause in the Buyout Agreement by engaging in discovery, asserting counterclaims, and moving for summary judgment. However, the EHI Parties failed to raise this specific argument in the trial court as a basis for the court not to order the case to arbitration. “We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.” (Citation and punctuation omitted.) Dan J. Sheehan Co. v. Ceramic Technics, 269 Ga. App. 773, 777 (3) (605 SE2d 375) (2004). Thus, we decline to consider the EHI Parties’ new argument on appeal that the SDNA Parties could not enforce the arbitration clause because of their active participation in this litigation.

Decided October 28, 2016.

McGuireWoods, Robert J. Waddell, Jr., Nathan A. Wood, for appellants.

Joseph, Aleem & Slowik, Jacob J. Slowik, Erin A. Lerner, L. John Edwards, for appellees.

In sum, the uncontroverted evidence of record showed that the parties mutually assented to all of the essential terms of the complete and binding Buyout Agreement, such that the Agreement, including the arbitration clause contained within it, was valid and enforceable. Additionally, the uncontroverted evidence established that the Buyout Agreement was not rendered unenforceable on the basis of mutual mistake. The trial court’s order holding that the arbitration clause in the Buyout Agreement was enforceable and ordering the case to arbitration therefore is affirmed.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       There is an exception to the general rule that issues of contract formation are for resolution in court rather than before the arbitrator, namely, where there is “clear and unmistakable evidence that the parties agreed to arbitrate the issue of arbitrability.” Panhandle Fire Protection, 288 Ga.App. at 197 (1) (b). See Losey v. Prieto, 320 Ga.App. 390, 393 (739 SE2d 834) (2013). But none of the parties have argued that the exception should apply here.

       Although the parties and the trial court characterized the SDNA Parties’ motion seeking enforcement of the arbitration clause as a motionfor summary judgment, the motion is properly considered a matter of abatement that did not go to the substantive merits of the action and thus is more accurately characterized as a motion to dismiss. See Helms v. Franklin Builders, 305 Ga. App. 863, 865, n. 6 (700 SE2d 609) (2010). And because the motion to dismiss concerned a matter of abatement, the trial court’s consideration of matters outside the pleadings to determine whether the arbitration clause was valid and enforceable did not convert the motion to dismiss into a motion for summary judgment. See Odion v. Avesis, Inc., 327 Ga.App. 443, 446 (3) (b) (759 SE2d 538) (2014).

       An order compelling arbitration generally is interlocutory in nature and must be appealed through our interlocutory application procedures. See Goshayeshi v. Mehrabian, 232 Ga. App. 81, 82 (501 SE2d 265) (1998). But, here, the trial court’s order did not merely stay the judicial proceedings pending arbitration, leaving the case still pending below; instead, the trial court entered a final order in favor of the SDNA Parties and dismissed the entire case. The present appeal is thus controlled by our decision in Torres v. Piedmont Builders, 300 Ga. App. 872, 872 (1) (686 SE2d 464) (2009), where we held that the appeal of an order compelling arbitration was from a final judgment directly appealable under OCGA § 5-6-34 (a) (1) because the trial court’s arbitration order “dismissjed] the original action in its entirety, and the case [was] no longer pending in the superior court.”

       In other words, the EHI Parties argue that the parties never agreed whether ATCA’s execution of the Proposed Lease Amendment and the landlord’s approval of the Lease Assignment would serve as conditions precedent to the EHI Parties’ contractual obligations under the Buyout Agreement. See, e.g., OCGA § 13-3-4 (“A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.”); L. Gregg Ivey, Inc. v. Land, 148 Ga. App. 667, 669 (3) (252 SE2d 88) (1979) (“When the existence of a debt is conditional on the happening of some event, payment cannot be enforced until the event happens[.]”) (citation and punctuation omitted).

       The EHI Parties also cite to the deposition testimony of the SDNA Parties’ principals in an effort to show a lack of mutual assent regarding issues related to the Lease Assignment. But the deposition testimony does not show that the EHI Parties ever communicated to the SDNA Parties that their acceptance of the Buyout Agreement would be condit ioned on ATCA executing the Proposed Lease Amendment and the landlord signing the Lease Assignment. Rather, the deposition testimony simply reflects more generally that the SDNA Parties knew that the EHI Parties’ ultimate goal was to obtain an assignment of the office building lease from ATCA to Vascular Solutions with the approval of the landlord and that, without the assignment becoming finalized, the Buyout Agreement would be of little practical value to the EHI Parties.

       The parties agree on appeal that the issue of mutual mistake was a matter of contract formation for the trial court rather than the arbitrator to decide.

       While the EHI Parties argue that the trial court did not employ the proper legal reasoning in determining whether the case was subject to arbitration, we affirm under the “right for any reason” rule to the extent there was any error, in light of our conclusions reached supra in Divisions 1 and 2. See City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369) (2002) (courts have discretion to apply the “right for any reason” rule); Ashburn Health Care Center v. Poole, 286 Ga. App. 24, 27 (648 SE2d 430) (2007) (trial court’s decision regarding whether to compel arbitration will be affirmed if right for any reason).


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A16A0951.
    SEAGRAVES v. THE STATE.
    (793 SE2d 164)
   McFADDEN, Judge.

Terry Lynn Seagraves entered a nonnegotiated guilty plea to aggravated assault, aggravated battery, and reckless driving. The trial court sentenced him to 30 years, with 15 years to be served in confinement and the remainder to be served on probation. Seagraves timely moved to withdraw his guilty plea, but the trial court denied the motion. Seagraves appeals, arguing that he was denied his right to allocution (to speak before the trial court imposes sentence). We find that any right to allocution was satisfied when counsel argued on Seagraves’ behalf. Seagraves argues that he received ineffective assistance of counsel, but we find that counsel’s performance was not deficient. We therefore affirm the trial court’s denial of Seagraves’ motion.

1. Facts.

The facts, as set forth at the guilty plea hearing, show that the victim was a friend of Seagraves’ estranged wife. On the day of the incident, the victim was a passenger in the wife’s car when they happened to drive past Seagraves. Seagraves began following them in his truck and tried to run them off the road. The victim called 911, and the operator instructed them to drive to a public place. The wife pulled into the parking lot of a convenience store. Seagraves followed and parked next to them. He opened the victim’s door and told him to get out of the car. The victim refused. Seagraves retrieved a gun from his truck and shot the victim in the leg. Seagraves then pointed the gun at the victim’s head and told him to get out of the car. The victim got out and tried to run toward the store, but he was hampered by his injured leg. Seagraves went back to his truck and retrieved a baseball bat. Before the victim could enter the store, Seagraves began hitting him with the baseball bat. He continued hitting the victim once he entered the store, breaking the victim’s arm.

The victim and Seagraves’ wife both testified at the plea hearing. The victim informed the court that he would be satisfied with a sentence of five years and restitution in the amount of his medical bills. Seagraves’ wife informed the court that she would be satisfied with a sentence of time served.

After the state presented all of its witnesses, defense counsel told the court that the defense would present no evidence, even though Seagraves had several witnesses in attendance and even though Seagraves had written a letter of apology, which counsel had intended to introduce.

In closing argument, defense counsel asked that Seagraves be sentenced to five years, the sentence the victim had testified would satisfy him. The state recommended that the court sentence Sea-graves to 30 years, the first 15 years to be served in confinement. The court adopted the state’s recommendation and entered judgment on the guilty plea.

Within the same term of court, Seagraves filed the instant motion to withdraw his guilty plea. The trial court conducted a hearing, at which Seagraves, the three attorneys who represented him at the plea hearing, and other witnesses testified. The trial court denied the motion, and Seagraves filed this appeal.

2. Standard of review.

“After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court’s discretion, and withdrawal of the plea is allowed only when necessary to correct a manifest injustice.” Wright v. State, 292 Ga. 825, 826 (1) (742 SE2d 468) (2013) (citations omitted). We review the trial court’s decision for a manifest abuse of discretion. Walden v. State, 291 Ga. 260, 261 (1) (728 SE2d 186) (2012). Seagraves has not shown that the trial court abused his discretion.

3. Allocution.

Seagraves argues that the trial court erred by denying his motion to withdraw his guilty plea because he was denied his right to allocution. We disagree.

First, it is not clear that Seagraves had any right of allocution since he entered a guilty plea. Our Supreme Court has held that there is no federal or state constitutional right to allocution upon entry of a guilty plea. Barksdale v. Ricketts, 233 Ga. 60, 61 (209 SE2d 631) (1974). Seagraves does attempt to distinguish Barksdale, but the state declines to rely on it — noting that Seagraves’ guilty plea was nonnegotiated. But it is not clear from the opinion in Barksdale whether Barksdale’s plea was negotiated or nonnegotiated. See Barksdale, 233 Ga. at 61 (defendant indicated to the trial court that he had “a full understanding of the range of punishment”). And the court’s language was unequivocal:

[The defendant] had no constitutional or statutory right which was violated by his attorney’s failure to make a statement to the court on his behalf in mitigation of punishment, nor had he any right in Georgia to allocution upon entry of a guilty plea. There is no federal constitutional provision granting such right, nor is there any such state constitutional right.

Id. (citation omitted). We do not decide whether Seagraves had a constitutional right to allocution since his plea was nonnegotiated because, as detailed below, any such right was satisfied when counsel argued on his behalf.

A statutory right to allocution is embodied in OCGA § 17-10-2, which, among other things, grants the defendant or his attorney the right to speak before the trial court imposes sentence. Pretermitting whether the statute applies when a defendant has entered a non-negotiated guilty plea and whether there is a common law right of allocution in such circumstances, our Supreme Court has held that any right to allocution is satisfied by compliance with OCGA § 17-10-2 (a). See Murray v. State, 269 Ga. 871, 872-873 (1) (505 SE2d 746) (1998). That statute provides in pertinent part: “The judge shall. . . hear argument by the accused or the accused’s counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed.” OCGA § 17-10-2 (a) (2) (emphasis supplied). Here, the trial court complied with the statute when he gave counsel the opportunity to speak on behalf of Seagraves.

Seagraves argues that the right to allocution is personal and cannot be satisfied by counsel’s speaking on his behalf. But our Supreme Court has rejected that argument. See Guyton v. State, 281 Ga. 789, 794-795 (10) (e) (642 SE2d 67) (2007) (addressed in the context of ineffective assistance of counsel). The case upon which Seagraves relies for the proposition that the right can be satisfied only when the defendant himself is given the opportunity to speak is a federal case interpreting Federal Rule of Criminal Procedure 32, which explicitly requires the defendant personally to be given the right to speak. Federal Rule of Criminal Procedure 32 (i) (4) (A) (ii). See United States v. Perez, 661 F3d 568, 583-584 (III) (11th Cir. 2011). 4. Assistance of counsel.

Seagraves argues that he received ineffective assistance of counsel because his attorneys ignored his request to withdraw his plea before he was sentenced; his attorneys failed to call his mitigation witnesses or present mitigating evidence; and his attorneys refused to allow him to present a statement.

A defendant who pleads guilty and seeks to overturn his conviction because of counsel’s errors must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Trauth v. State, 283 Ga. 141, 142 (2) (657 SE2d 225) (2008) (citation and punctuation omitted).

(a) Ignoring Seagraves’ request to withdraw plea.

Seagraves argues that his attorneys were ineffective because they ignored his request to withdraw his plea before the court pronounced sentence. At the hearing on the motion to withdraw his guilty plea, Seagraves testified that during the guilty plea hearing, he instructed his attorneys to stop the proceedings and that he wanted to withdraw his plea. But his testimony was contradicted by that of all three of his attorneys, each of whom testified that Sea-graves never indicated that he wanted to stop the proceedings or withdraw his plea, or at least, that they did not hear or recall that. “[I]n rejecting [Seagraves’] ineffective assistance claim and finding that defense counsel’s performance fell well within the range of reasonable professional assistance, the trial court implicitly credited defense counsel’s testimony.” Arnold v. State, 292 Ga. 95, 96 (1) (734 SE2d 382) (2012) (citation omitted). Accordingly, Seagraves has not shown deficient performance on this ground.

(b) Failure to call mitigation witnesses or to presen t mitigating evidence.

Seagraves argues that counsel was ineffective for failing to call his mitigating witnesses and for failing to present evidence of three mitigating circumstances: that he was distraught at the time of the crimes because his good friend recently had committed suicide; that he was upset that his children could be exposed to the victim, who had sold illegal drugs to children; and that he did not retrieve his gun until after the victim had cut his arm with a knife.

Lead counsel testified that he did not believe the mitigating evidence would have been helpful. And the attorneys testified that they did not believe calling the mitigation witnesses would have benefitted Seagraves. The attorneys testified that their primary strategy was to introduce evidence of mitigation through cross-examining Seagraves’ wife and the victim, particularly about the sentence they would accept. They were able to secure that testimony

An attorney’s reasonable decision about what evidence to introduce and which witnesses to call does not amount to ineffective assistance of counsel. Perdue v. State, 298 Ga. 841, 845 (3) (785 SE2d 291) (2016); Brown v. State, 302 Ga. App. 515, 518 (1) (b) (692 SE2d 386) (2010).

(c) Refusal to allow Seagraves to present a statement.

Seagraves testified at the motion hearing that he had written a statement and wanted to address the court. But his attorneys testified that they had concluded that if he presented his written statement, he would have to testify and that the cost of having him testify outweighed any benefit of introducing the statement. Further, lead counsel testified that Seagraves himself made the decision not to make a statement.

And counsel argued on his behalf at the guilty plea hearing. In urging the court to impose a lighter sentence than the fifteen years the state requested, counsel pointed out that the victim had asked for only five years and restitution. He argued that should the court sentence Seagraves to 15 years, then Seagraves would be unable to pay restitution. He urged the court to order probation conditions that would protect the victim and Seagraves’ wife. He argued that a sentence of five years would satisfy all the purposes of sentencing.

Decided October 31, 2016.

James W. Smith, for appellant.

J. Bradley Smith, District Attorney, Michael D. DeTardo, Gregory L. Wagner, Assistant District Attorneys, for appellee.

Seagraves’ “counsel did not render ineffective assistance because [they] failed to insist that [Seagraves] be afforded an opportunity to address the trial court personally on the subject of sentencing. Counsel spoke at the sentencing hearing on [Seagraves’] behalf regarding mitigation and punishment.” Guyton, 281 Ga. at 794-795 (10) (e) (citations omitted).

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


text:
    A16A1059.
    GREEN v. THE STATE.
    (793 SE2d 156)
   McFADDEN, Judge.

After a jury trial, Roger Lee Green II was convicted of battery and obstruction of a law enforcement officer. He argues on appeal that the trial court erred in admitting other acts evidence, but the trial court did not abuse his discretion in admitting the evidence. Green argues that the trial court erred in refusing to admit evidence of the victim’s prior conviction, but the trial court was authorized to find that Green had not timely notified the state of his intent to introduce the evidence. Green argues that the trial court erred in denying his motion for a mistrial because the state made an improper propensity argument, but the trial court did not abuse his discretion by instead addressing the improper argument through instruction to the jury Finally, Green argues that the trial court improperly increased his sentence, but the record does not support this claim. Accordingly, we affirm.

Viewed in the light most favorable to the judgment, the evidence showed that on the morning of December 11, 2013, Green and a neighbor got into an argument outside of Green’s house. Green became enraged, approached the neighbor as the neighbor backed away, and hit the neighbor in the face, visibly injuring him and causing him to drop his phone. Green threatened to hit the neighbor again, then picked up the phone and threw it across the neighbor’s yard.

The neighbor retrieved his phone and called 911. An officer was dispatched with information that the complainant (Green’s neighbor) had been assaulted by the person who lived next door. That officer arrived at the scene in a marked police vehicle and wearing a uniform. As he pulled into the driveway of Green’s neighbor, he saw Green, whom he recognized from previous interactions, standing in the driveway next door.

The officer approached Green, who knew that he was dealing with a law enforcement officer. Green suspected that the officer wanted to talk with him about the altercation with his neighbor. Three times the officer told Green to come speak with him, and three times Green refused. Green then ran into his house and closed his garage door behind him.

The responding officer called for backup. Once a second officer arrived, the first officer began knocking on Green’s front door and yelling for him to open the door. Instead, Green jumped out a rear window and fled. After a chase, the officers found Green hiding and arrested him.

The jury found Green guilty on two counts of battery against his neighbor and one count of misdemeanor obstruction of the officer who had commanded him to come speak with him. The jury found Green not guilty on another count of misdemeanor obstruction of the other officer.

1. Other acts evidence.

Green challenges the trial court’s admission of other acts evidence regarding two earlier instances in which he obstructed a law enforcement officer. In both instances, law enforcement officers were dispatched to Green’s house in response to calls from his mother complaining of his behavior. In one instance, Green refused to answer the officers’ questions and walked away from the officers despite being told several times that he was not free to leave. He was arrested for obstruction of an officer. In the other instance, Green initially refused to comply with an officer’s commands and made a threatening gesture and comment to the officer; then, after a physical altercation with the officer, he ran from the scene. Officers chased and apprehended him.

The trial court admitted evidence of these incidents as other acts evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”) to show Green’s knowledge. The trial court refused to admit the evidence for any other purpose, including intent.

Rule 404 (b) pertinently provides: “Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including . . . knowledge^]” OCGA § 24-4-404 (b). For other acts evidence to be admissible under Rule 404 (b), the state must make a showing that:

(1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant’s character, see Rule 404 (b); (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403 [OCGA § 24-4-403]; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question.

State v. Jones, 297 Ga. 156, 158-159 (1) (773 SE2d 170) (2015) (citations omitted). Accord Olds v. State, 299 Ga. 65, 69-70 (2) (786 SE2d 633) (2016). “Atrial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.” Jones, 297 Ga. at 159 (1) (citations omitted).

(a) Relevance.

As to the first requirement, Green argues that the evidence was not relevant to an issue other than his character because the ground for which it was admitted—knowledge — was not at issue in the case. We disagree. “Rule 404 (b) permits the admission in cases of all sorts of evidence of other acts relevant to any fact of consequence to the determination of the action, so long as the evidence is not offered to prove the character of a person in order to show action in conformity therewith.” State v. Frost, 297 Ga. 296, 300 (773 SE2d 700) (2015) (punctuation and footnote omitted; emphasis supplied). The applicable standard for determining relevance is set forth in OCGA § 24-4-401. Jones, 297 Ga. at 159 (2). Under that Code section, “the term ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. This is a liberal standard. Jones, 297 Ga. at 159 (2) n. 2.

Applying this definition of relevant evidence, “we find no abuse of discretion in the trial court’s determination that evidence of [the other instances in which Green obstructed an officer] was relevant and admissible under Rule 404 (b).” Jones, 297 Ga. at 160 (2). The trial court held that the evidence was relevant to the issue of Green’s knowledge. A defendant’s knowledge may be at issue where, as here, “it is an element of the charged crime; that is, when knowledge itself is part of the statutory definition of the crime, and thus must be proven by the prosecution.” 2 Weinstein’s Federal Evidence, § 404.22 [2] (2016) (citations omitted). See also United States v. Merriweather, 78 F3d 1070, 1076 (II) (C) (6th Cir. 1996) (“the government’s purpose in introducing the evidence must be to prove a fact that the defendant has placed, or conceivably will place, in issue, or a fact that the statutory elements obligate the government to prove”) (emphasis supplied). Knowledge is part of the statutory definition of misdemeanor obstruction of an officer, which offense occurs when “a person . . . knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties[.]” OCGA § 16-10-24 (a) (emphasis supplied). See Martinez v. State, 322 Ga. App. 63, 65 (2) (743 SE2d 621) (2013) (conviction for misdemeanor obstruction “requires proof of some form of knowing and wilful opposition to the officer”) (citation and punctuation omitted); Mitchell v. State, 312 Ga. App. 293, 297 (2) (718 SE2d 216) (2011) (“as one of the essential elements of this misdemeanor offense, the state must show that the defendant committed the act knowingly and wilfully”) (citation omitted).

Nevertheless, Green argues that his knowledge was not at issue in this particular case because he admitted at trial that he knew the person from whom he ran was a law enforcement officer. But there are other types of knowledge relevant to a misdemeanor obstruction charge. See, e.g., Connelly v. State, 298 Ga. App. 223, 225 (679 SE2d 790) (2009) (physical precedent) (defendant’s knowledge that he did not have the right to flee the encounter); Williams v. State, 285 Ga. App. 190, 192 (1) (645 SE2d 676) (2007) (physical precedent) (defendant’s knowledge that the officer was pursuing him); Veal v. State, 226 Ga. App. 897 (487 SE2d 696) (1997) (defendant’s knowledge that the officer “sought him”); Cline v. State, 221 Ga. App. 175, 175-176 (471 SE2d 24) (1996) (defendant’s knowledge that the officers had come to “effectuate his arrest”).

At trial, Green challenged the state’s ability to show that he knowingly failed to comply with a lawful command of a law enforcement officer. In defense of the obstruction charge, Green argued that the officer was not acting in the lawful discharge of his official duties when he commanded Green to come speak with him. See generally Ewumi v. State, 315 Ga. App. 656, 658 (1) (727 SE2d 257) (2012) (describing circumstances in which a citizen may walk or even run from a law enforcement officer). By expressly challenging whether the officer was lawfully discharging his official duties in their encounter, Green implicitly challenged his own knowledge that the officer’s commands to him were lawful. Indeed, Green’s counsel argued at trial that, because the officer made no lawful commands to Green, the state could not show that Green had the knowledge required by the statute for the offense of misdemeanor obstruction. See Thomas v. State, 322 Ga. App. 734, 738 (2) (b) (746 SE2d 216) (2013) (holding that defendant’s disobedience cannot have been knowing and wilful if officer has not made clear to defendant that he or she was compelled to obey); Gibson v. State, 265 Ga. App. 325, 328 (593 SE2d 861) (2004) (holding that defendant, who “admitted that he knew when he deliberately drove off [in his truck] that he was disobeying [an] officer’s lawful order to park his truck at the side of the road,” had engaged in conduct that was “both knowing and willful”); McClendon v. State, 12 Ga. App. 691, 692 (78 SE 139) (1913) (holding, in addressing crime of obstructing an officer in serving or attempting to serve or execute a legal process or order, that “[i]t is not enough that the accused should know that the person attempting to make the arrest is an arresting officer; [i]t must also appear that he knew that the officer was attempting to execute a lawful process or order”).

The other acts evidence was relevant to the knowledge issue raised by Green’s defense. It established that, on past occasions, Green had encountered officers under similar circumstances and been apprehended or accused of obstructing them when he fled. This evidence tended to show that, on this occasion, Green knew that the officer’s command that he talk with him was made in the lawful discharge of the officer’s official duties and that he was not free to flee. The state argued this use of the other acts evidence below. “[T]he introduction of evidence of repetitive conduct to allow a jury to draw logical inferences about a defendant’s knowledge . . . from such conduct is well-established.” Jones, 297 Ga. at 162 (2) (citations and footnote omitted). Our Supreme Court has explained that

[t]he justification for admitting evidence of other acts to show knowledge is similar to the justification for allowing such evidence to show intent and is based on the principle that it is unlikely that repetitive conduct, even if originally innocent, will not result in a defendant having the requisite state of knowledge by the time of the charged crime.

Id. at 161-162 (2) n. 6 (citing 2 Weinstein’s Federal Evidence § 404.22 [2] (2014)).

(b) Probative value.

As to the second requirement, regarding the probative value of the other acts evidence, we look to Rule 403. See Jones, 297 Ga. at 159 (1). That rule provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403. Rule 403 is

an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility. The reason for such caution is that relevant evidence in criminal trials is inherently prejudicial.... [T]he major function of Rule 403 is to exclude evidence of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.

Flading v. State, 327 Ga. App. 346, 351-352 (2) (759 SE2d 67) (2014) (citations and punctuation omitted).

“Probative value refers to the strength of the connection between the evidence and what it is offered to prove[.]” Milich, Georgia Rules of Evidence § 6:1 (2015). See Huff v. State, 299 Ga. 801, 804 (3) (792 SE2d 368) (2016); Olds, 299 Ga. at 76 (2). As discussed above in Division 1 (a), the state had to establish that Green knowingly obstructed a law enforcement officer in the lawful discharge of his official duties; Green challenged the state’s ability to show this statutory element of the misdemeanor obstruction offense. Although the jury could have inferred, solely from the circumstances of Green’s interaction with the officer, that Green knew the officer was acting in the lawful discharge of his official duties, the other acts evidence of repetitive conduct under similar circumstances provided strong additional support for that inference. See Jones, 297 Ga. at 162 (2) and n. 6. Accordingly, there was a significant connection between the other acts evidence and the required element of Green’s knowledge, giving the other acts evidence probative value. See Huff, 299 Ga. at 804 (3).

Green argues that the prejudicial value of the other acts evidence substantially outweighed the probative value of the evidence because the other acts evidence went only to show Green’s propensity to obstruct law enforcement officers and did not have a relevant, permissible purpose. But, as discussed above, “we have already determined that [the permissible purpose of Green’s knowledge] was indeed a material issue in this case, and he provides no further argument or citation to authority to support his contention that the [other acts] evidence was inadmissible [under Rule 403].” Curry v. State, 330 Ga. App. 610, 615 (1) (768 SE2d 791) (2015) (citations omitted). Accordingly, Green has not shown that the trial court abused his discretion in declining to exclude the evidence under Rule 403.

(c) Sufficiency of evidence that Green committed other acts.

Green does not dispute that the third requirement — the sufficiency of evidence that he committed the other acts — was satisfied.

2. Prior conviction of victim.

Green argues that the trial court erred in refusing to admit evidence of his neighbor’s 2001 conviction for deposit account fraud. Under OCGA § 24-6-609, “evidence of a conviction more than ten years old, as calculated in this subsection, shall not be admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.” OCGA § 24-6-609 (b). The trial court held that Green had not given the state sufficient advance written notice and excluded the evidence. We review this ruling for abuse of discretion. See Crowder v. State, 305 Ga. App. 647, 650 (2) (700 SE2d 642) (2010) (construing similar language in former OCGA § 24-9-84.1 (b)).

The record shows that this case went to trial on Monday, June 23, 2014. It had been continued from an April trial date. At 1:24 p.m. the prior Thursday, June 19, Green filed with the trial court a written notice of his intent to use his neighbor’s conviction in evidence. Green’s counsel represented to the trial court that this notice was hand-delivered to the state that same day. The state, however, denied receiving the notice on that day The trial court found that, even if Green had given the state written notice immediately after filing it with the court on June 19, this notice was insufficient because it was only “11 business hours” before trial.

We find no abuse of discretion. Although OCGA § 24-6-609 (b) does not set forth a specific time period for “sufficient” notice, it requires that the notice must afford the other party a “fair opportunity to contest the use of such evidence.” In a case construing former OCGA § 24-9-84.1 (b), which contained similar language, we held that the trial court had not abused his discretion in refusing to admit evidence of a conviction where notice of intent to introduce the evidence was given “the day after the jury had been selected but before the presentation of evidence to the jury” Crowder, 305 Ga. App. at 649-650 (2) (footnote omitted). In support of this holding, we cited Ricciuti v. New York City Transit Auth., 1998 U.S. Dist. LEXIS 5083 (I) (a) (S.D. N.Y. 1998), which held that, under Fed. R. Evid. 609 (b), notice given on the “eve of trial” would not be sufficient. Crowder, 305 Ga. App. at 650 (2). Here, the trial court found that a time period that the parties disputed but that was, at most, “11 business hours” before the start of trial was insufficient to meet the notice requirement for use of an old conviction. Under the circumstances of this case, we do not find that the trial court abused his discretion in his ruling.

3. Denial of mistrial.

Green argues that the trial court erred by failing to grant a mistrial after the prosecutor made an impermissible argument during closing. We disagree.

In his closing, the prosecutor argued: “Mr. Green saw [the officer]. He knows him, sure. Yeah, he [—] he keeps with the police because he keeps getting in trouble; and when they come out there to talk to him about it, he runs. That’s what he does. And he did it today — he did it that day” Defense counsel objected, pointing out in the jury’s presence that the prosecutor “was talking about the past crimes[.]” In response, the trial court told the jury: “That’s coming in for a very limited purpose, and I’ll give you an instruction on that. It’s only for knowledge so — I’ll give you the instruction on a very limited purpose to consider the other obstructions.” The prosecutor then continued his closing argument.

Defense counsel subsequently moved for a mistrial, which the trial court denied. Defense counsel then asked for a further limiting instruction. The trial court denied this request, noting that he had instructed the jury about the limited purpose of the other acts evidence both before its admission and again before the jury began deliberating.

“Whether to declare a mistrial is a question committed to the discretion of the trial judge, and the denial of a mistrial is reversible error only if it appears that a mistrial was essential to preserve the defendant’s right to a fair trial.” McKibbins v. State, 293 Ga. 843, 848 (3) (750 SE2d 314) (2013) (citation and punctuation omitted). Green argues that the trial court should have granted him a mistrial because the prosecutor’s argument invited the jury to draw an impermissible conclusion that Green was guilty of obstruction in this case because he has a propensity to obstruct officers. But a curative instruction can be an adequate remedy when a defendant’s character is impermissibly injected into a case, see Robinson v. State, 298 Ga. 455, 460 (3) (782 SE2d 657) (2016), and in this case the trial court immediately reminded the jury of the limited purpose for which it could consider the other acts evidence. This reminder supplemented the other points in the trial when the trial court instructed the jury as to the limited purpose of the other acts evidence. Green has cited no authority that would require a trial court to grant a mistrial under these circumstances, and we find no abuse of discretion in the trial court’s decision to deny a mistrial. We do not address Green’s argument that the trial court was required to rebuke the prosecutor, which Green raises for the first time in his reply brief, because he did not enumerate as error the trial court’s failure to rebuke the prosecutor. See Leonard v. State, 325 Ga. App. 577, n. 1 (754 SE2d 155) (2014) (declining to consider argument made for first time in reply brief that was beyond scope of enumerated error).

Decided October 31, 2016.

Arjun S. Nair, Alisha M. Scott, for appellant.

JamieK. Inagawa, Solicitor-General, JosephB. Myers, Jr., Audrey H. Cruzan, Assistant Solicitors-General, for appellee.

4. Sentence.

Green argues that the trial court improperly increased his sentence. The record shows that, on June 26, 2014, the trial court orally declared that Green would serve two concurrent twelve-month sentences for his battery and obstruction convictions, and Green was taken into custody “immediately.” Also on June 26, the trial court signed a written sentence stating that Green would serve two consecutive twelve-month sentences for the two convictions.

We find no error. “An oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is.” Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981) (citation and footnote omitted). Green correctly notes that a trial court cannot increase an oral sentence after the defendant has begun to serve it. See id. (citing Carrindine v. Ricketts, 236 Ga. 283, 290 (223 SE2d 627) (1976)). But in addressing this issue in ruling on Green’s motion for new trial, the trial court stated that he signed the written sentence before Green was taken into custody and began to serve his sentence, and the record supports the trial court’s statement. Compare Carrindine, supra (where appellant spent more than half a year in custody under orally-prescribed two-year sentence, his sentence could not then be increased to more than two years). As a result, Green has not met his burden, as appellant, of proving error by the record. See White v. State, 257 Ga. App. 861, 862 (1) (572 SE2d 692) (2002).

Judgment affirmed.

Miller, P J., and McMillian, J., concur.

       “[BJecause our new Evidence Code is comparable to the Federal Rules of Evidence, this [c]ourt will give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” Curry v. State, 330 Ga. App. 610, 613(1) (768 SE2d 791) (2015) (citations and punctuation omitted). In the event of a conflict between circuits, our “General Assembly has expressed its intent to follow the Eleventh Circuit[.]” Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015). See Ga. L. 2011, p. 100, § 1.


author: Boggs, Judge. RICKMAN, Judge,

text:
    A16A0792.
    THE STATE v. VICKERS et al.
    (793 SE2d 167)
   Boggs, Judge.

Treland Jones, Ladairius Vickers, andDeonte Sims were charged by accusation with two counts of violation of the Georgia Controlled Substances Act. The State appeals from the trial court’s grant of the appellees’ motions to suppress evidence obtained in a warrantless search of a vehicle parked in the driveway of Sims’ home. Because the evidence supports the trial court’s conclusion that officers failed to obtain a warrant and showed no consent or exigent circumstances to support a search or arrest in the curtilage of the residence, we affirm.

A trial judge’s findings of fact on a motion to suppress should not lie disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed most favorably to the upholding of the trial court’s findings and judgment. [Cits.]

Kirsche v. State, 271 Ga. App. 729 (611 SE2d 64) (2005). And

[w]hether evidence is found within the curtilage of a residence is a mixed question of fact and law. On appeal, we accept the trial court’s findings of fact unless clearly erroneous, but owe no deference to the trial court’s conclusions of law. Instead, we are free to apply anew the legal principles to the facts.

(Punctuation and footnotes omitted.) Rivers v. State, 287 Ga. App. 632, 633-634 (1) (b) (653 SE2d 78) (2007).

So viewed, the evidence shows that Gwinnett County police officers were executing an unrelated arrest warrant when they noticed a car parked in the driveway of the house next door. The car was wholly inside the boundaries of the private property, “fairly closely parked to the actual garage of the home” as shown in a photograph identified by a police witness. A plainclothes officer testified that as he walked through the side yard of the neighboring house, about ten or fifteen feet from the car, he smelled a strong odor of marijuana and observed heavy smoke inside the vehicle. He also testified that he saw individuals in the car passing “something” back and forth but that he did not know what it was. Asked, “You never saw them passing a marijuana cigarette or joint?” he responded, “No,” and that “as far as what they were passing, I don’t know.” He testified that he “assumed that it was marijuana,” (emphasis supplied) and the trial court so found. And the trial court also found that, other than the odor of marijuana, even after approaching the vehicle “the officers still could not see any contraband in plain view to seize within the car.”

The plainclothes officer informed other officers via radio of the occupants of the car and that he “believe[d] they were smoking marijuana. They needed to come and make contact with them.” A police sergeant testified that he observed the car for over an hour. As he walked up the driveway, he could smell the odor of marijuana, but did not see anyone in the vehicle smoking and did not see any marijuana in plain view. He further testified that he did not observe any traffic offense and did not “witness[ ] any criminal activity out of the car or the occupants of the car prior to approaching the driveway.” He could not even see how many people were inside until he was “actually right at the vehicle” and “could actually touch it.”

The sergeant determined that four individuals were in the car and “decided to just detain the individuals in the car until I could get my officers back. Because at that point we were outnumbered, and it became a safety issue for me.” He testified, “I didn’t do an investigation. I decided to detain and hold what I’ve got.” Police removed the four occupants of the vehicle but saw no illegal substances or other evidence “in plain view.” No search warrant was ever obtained, as the officers testified that they relied upon the “automobile exception.” Once the occupants were removed, officers searched the vehicle and found 1.4 grams of suspected marijuana and alprazolam under the front passenger seat. No evidence of burnt marijuana was found. The State did not elicit and the officers did not testify to any exigent circumstances or consent to search, and the trial court found that neither existed.

[Ejven if the officers had probable cause to investigate a crime, the Fourth Amendment prohibited them from entering [the] home or its curtilage without a warrant absent consent or a showing of exigent circumstances. Carranza v. State, 266 Ga. 263, 264-265 (1) (467 SE2d 315) (1996); Bunn v. State, 153 Ga. App. 270, 274 (265 SE2d 88) (1980). See also State v. Gallup, 236 Ga. App. 321, 323 (1) (b) (512 SE2d 66) (1999) (constitutional protection extends to curtilage of home).

(Footnote omitted.) Kirsche, supra, 271 Ga. App. at 731; see also Bowman v. State, 332 Ga. App. 407, 408 (1) (773 SE2d 33) (2015) (“yard immediately surrounding a dwelling falls within the curtilage of a home. [Cit.]”).

Moreover, we have held specifically that a defendant has a reasonable expectation of privacy in a vehicle parked within the curtilage of his home. State v. O'Bryant, 219 Ga. App. 862, 864 (467 SE2d 342) (1996). There, drug agents went without a warrant to O’Bryant’s residence for a “knock and talk” based on “an anonymous tip of possible drug dealing.” Id. at 862. After they knocked on two doors without result, one agent walked over to a truck parked in the driveway beside the house. “While looking inside the closed and tinted windows, he claimed he was able to discern what appeared to be a plastic bag of marijuana, partially hidden under the driver’s seat.” Id. We held that the officers “had finished their official business” and “had no valid reason to look into the truck.” Id. at 863-864. “At the point where [the agent] elected to peer inside the truck, his actions became investigative in nature. Furthermore, the vehicle was within the curtilage of the home, and O’Bryant had a reasonable expectation of privacy in his driveway [Cit.]” Id. at 864.

In this case, as in OBryant, “the vehicle was not on a street or a roadway and the incriminating evidence was not plainly visible,” but required a search of the interior of the vehicle to discover. Id. at 863. No evidence was presented that the officers intended to engage in a “knock and talk” at the residence or its curtilage. They simply approached the car, opened the doors, and removed the occupants. See Gallup, supra, 236 Ga. App. at 324 (1) (c) (opening door of refrigerator exceeded scope of officer’s investigation of burglary). When the officers here searched the interior of the vehicle without a warrant, consent, or exigent circumstances, their discovery of the drugs under the seat was illegal and was correctly suppressed. Id.; see also Bowman, supra, 332 Ga. App. at 408-409 (1).

Both in the trial court and on appeal, the State relies upon the “ ‘automobile exception’ to the warrant requirement imposed by the Fourth Amendment” to contend that the search was permissible, contending that it applies to searches “on private property” on the authority of State v. Sarden, 305 Ga. App. 587, 589 (699 SE2d 880) (2010). But the State, while citing our decision in Sarden, ignores the distinction made there between the curtilage of a private residence and private commercial property. The police arrested Sarden on four outstanding felony warrants after he parked in a convenience store parking lot, and they looked through the window of his car and saw drugs in plain view. Id. at 588. Sarden argued that the automobile exception did not apply because he was parked on private property, but we rejected that contention, relying on numerous Georgia decisions:

The automobile exception is justified on two grounds: the ready mobility of automobiles and the diminished expectation of privacy that citizens have in them. See California v. Carney, 471 U. S. 386, 391-392 (II) (105 SC[t] 2066, 85 LE2d 406) (1985). And “[wjhen a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes — temporary or otherwise — the two justifications for the vehicle exception come into play.” (Footnote omitted.) Id. at 392-393 (II). Hence, the automobile exception applies even if the car is not stopped along a highway, but is stationary in a place not regularly used for residential purposes, as in the present case, where Sarden’s car was in a parking space outside a commercial establishment.

(Citation omitted; emphasis supplied.) Id. at 590. Other United States Supreme Court decisions and the Eleventh Circuit decision cited by the State likewise do not involve the search of a vehicle within the curtilage of a defendant’s residence. And to the extent the State attempts to rely upon Harris v. State, 948 S2d 583 (Ala. Crim. App. 2006), holding that the automobile exception continues to apply within the curtilage, “we are not bound by decisions of other states or federal courts except the United States Supreme Court.” Gresham v. Harris, 329 Ga. App. 465, 467 (765 SE2d 400) (2014). We decline to alter the established Georgia rule that vehicles, like any other item or location within the curtilage of a residence, are not to be searched without a warrant, consent, or exigent circumstances. See O’Bryant, supra. Here, the trial court explicitly found that “there was insufficient evidence that the vehicle was even operational to support a finding of exigency” Given that finding of fact, to which we must show deference, the rationale for the automobile exception as delineated in Sarden, supra, does not exist here.

Our Supreme Court has recently reiterated, in a unanimous opinion, that we are bound to three standards in reviewing a trial court’s ruling on a motion to suppress:

First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

(Citations, punctuation and footnotes omitted.) Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). We cannot reweigh the evidence, particularly in order to rely upon facts expressly discounted by the trial court.

The special concurrence recognizes that the argument that the search was permissible as incident to the arrest of the appellees under Arizona v. Gant, 556 U. S. 332, 336 (I) (129 SCt 1710, 173 LE2d 485) (2009) was never raised below and is therefore waived, but nevertheless addresses the merits of this analysis. Our ability to consider this issue is precluded because we cannot engage in meaningful analysis precisely because it was not raised below. No evidence was presented as to whether the appellees were in fact arrested or were simply detained for officer safety pursuant to what officers contended was a search under the “automobile exception.” See Brannon v. State, 231 Ga. App. 847, 850 (500 SE2d 597) (1998) (distinguishing between “traffic Terry stop” for officer safety and “a search conducted incident to arrest”). Nor was evidence developed regarding the indicia of arrest or whether the appellants were within “reaching distance” of the vehicle within the meaning of Gant, supra.

Moreover, even if we were to consider this argument, and even accepting the contention that probable cause existed to arrest appel-lees, the officers still were not authorized to enter the curtilage to make the arrests. On the contrary, “to justify a nonconsensual, warrantless intrusion into a person’s home, there must exist probable cause for the arrestor search inside the home and a showing of exigent circumstances. [Cit.]” (Citation and punctuation omitted; emphasis supplied.) Watson v. State, 302 Ga. App. 619, 622 (1) (691 SE2d 378) (2010) (police violated Fourth Amendment by opening trailer door without exigent circumstances). See also Corey v. State, 320 Ga. App. 350, 355 (1) (b) (739 SE2d 790) (2013) (even if officer had probable cause to arrest, no exigent circumstances authorized entry into curtilage to effect arrest). And “the presence of contraband without more does not give rise to exigent circumstances, sufficient to authorize a warrantless entry into a home.” (Citations, punctuation and footnote omitted.) State v. Gray, 285 Ga. App. 124, 128 (2) (645 SE2d 598) (2007). Here, the officers had no more right to enter the curtilage of the home to make an arrest than they did to enter it to institute a search. Indeed, they acknowledged as much by relying upon the “automobile exception” to justify their search.

In addition, the cases cited by the special concurrence are inap-posite here. In Gant, supra, the arrest itself was authorized because of an outstanding warrant for Gant’s arrest and because police observed him driving without a license as he entered his driveway 556 U. S. at 336-337 (I). And in Kirkland v. State, 316 Ga. App. 310 (728 SE2d 907) (2012), we held that an officer initiated a permissible first-tier encounter, and Kirkland consented to a pat-down and to the removal of a bag containing contraband from his pocket. Id. at 312-313. Moreover, while we noted in passing that Kirkland’s car was “backed into a private residence” when the officer approached him, id. at 310, no facts were noted regarding the type of residence, the extent of the curtilage, or the position of the car with reference to “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by” (Citations and punctuation omitted.) Espinoza v. State, 265 Ga. 171, 173 (2) (454 SE2d 765) (1995). “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (Citation and punctuation omitted.) State v. Outen, 289 Ga. 579, 582 (714 SE2d 581) (2011).

The trial court’s conclusion that the officers failed to obtain a warrant and entered the curtilage without consent or exigent circumstances is supported by the evidence, and we therefore affirm.

Judgment affirmed.

Barnes, P. J., concurs. Rickman, J., concurs specially and in judgment only.

RICKMAN, Judge,

concurring specially and in judgment only

I disagree with the majority opinion to the extent that it can be read to create a bright-line rule that the automobile exception may never justify the warrantless search of a vehicle located on a private residence — even within its curtilage — or implies that such a rule is already established under Georgia law. Nevertheless, I am constrained to affirm the ruling of the trial court under our standard of review and the arguments preserved before that court.

I write separately because I think it important to recognize that at no time did the officers in this case act unreasonably in the context of the situation presented to them, nor did their warrantless search of the vehicle at issue constitute a violation of the Fourth Amendment; rather, the search was authorized incident to appellees’ arrest. Because this argument was not preserved on the record before us, however, we are precluded from considering it. See McCormack v. State, 325 Ga. App. 183, 188 (1) (b) (751 SE2d 904) (2013).

The officers here personally observed, from a place they were lawfully entitled to be, appellees “hotboxing” in a vehicle, smelled the strong — at one point “overwhelming” — odor of marijuana, viewed smoke inside of the vehicle so thick it was difficult to see from one side of the car to the other, and witnessed appellees passing what, in their training and experience, they believed to be marijuana. They thus had probable cause to arrest appellees. See Hughes v. State, 296 Ga. 744, 748 (2) (770 SE2d 636) (2015) (probable cause to arrest requires “[f'jacts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person ... in believing . . . that the suspect has committed, is committing, or is about to commit an offense”) (citation and punctuation omitted). Because they were authorized to arrest appellees, they were also authorized to conduct a search of the vehicle incident to that lawful arrest, regardless of the vehicle’s location. See Arizona v. Gant, 556 U. S. 332, 351 (VI) (129 SCt 1710, 173 LE2d 485) (2009) (“Police may search a vehicle incident to a recent occupant’s arrest... if ... it is reasonable to believe the vehicle contains evidence of the offense of arrest.”); Kirkland v. State, 316 Ga. App. 310, 313 (728 SE2d 907) (2012).

Decided November 1, 2016.

Daniel J. Porter, District Attorney, J. Drew Unger, Assistant District Attorney, for appellant.

Kemay L. Jackson; The Chan cey Law Firm, Elizabeth L. Chancey; The Fluker Law Firm, Deborah R. Fluker, for appellees.

       A fourth defendant, Takhiyra Turner, pled guilty and is not a party to this appeal.

       While the State asserts that “the car pulled up,” this was not supported by the evidence. On direct examination, an officer testified that he was “not 100 percent sure, but I want to recall” that the vehicle arrived during the police surveillance. On cross-examination, however, he acknowledged that was “a guess” and he did not see it pull up as he was not present; he suggested that the other officer might know. That officer, however, testified that he first noticed the car when it was parked in the driveway of the adjoining house and that he did not see it arrive. The trial court found “insufficient evidence that the vehicle was even operational,” and we must construe the evidence to uphold that finding.

        Carney, supra (vehicle parked in a downtown parking lot open to the public and not regularly used for residential purposes); Pennsylvania v. Labron, 518 U. S. 938 (116 SCt 2485, 135 LE2d 1031) (1996) (on public street and on another’s property with owner’s consent); United States v. Lindsey, 482 F3d 1285 (11th Cir. 2007) (vehicle parked in gas station).

       The State did not argue search incident to arrest during the hearing on the motion to suppress. Following that hearing, the trial court ordered the parties to submit additional briefing in order to discuss under what authority the officers were permitted to conduct a warrantless search of the vehicle . The additional briefs, however, were either never submitted or not filed in the trial court and are not part of the appellate record.

       It is irrelevant to our consideration whether the officers believed themselves to be operating pursuant to the “vehicle exception” to the warrant requirement, since the objective nature of Fourth Amendment inquiries into the reasonableness of police conduct has been repeatedly emphasized by the United States Supreme Court. See, e.g., Whren v. United States, 517 U. S. 806, 813 (II) (A) (116 SCt 1769, 135 LE2d 89) (1996) (“[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”) (citation and punctuation omitted); Maryland v. Macon, 472 U. S. 463, 470-471 (II) (A) (105 SCt 2778, 86 LE2d 370) (1985) (“Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer’s actual state of mind at the time the challenged action was taken.”) (citation and punctuation omitted); Scott v. United States, 436 U. S. 128, 136 (II) (98 SCt 1717, 56 LE2d 168) (1978) (“Subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.”).