text:
    A12A0639.
    182 TENTH, LLC v. MANHATTAN CONSTRUCTION COMPANY.
    (730 SE2d 495)
   Andrews, Judge.

182 Tenth, LLC appeals from the judgment entered on a jury verdict granting Manhattan Construction Company foreclosure on a speciallienintheamountof$l,750,000pursuanttoOCGA § 44-14-360 et seq. on real property owned by 182 Tenth. For the following reasons, we reverse and remand the case for a new trial.

Manhattan filed a claim of lien pursuant to OCGA § 44-14-361.1 against 182 Tenth’s real property in the amount of $2,148,122 for furnishing labor, services, and materials on a construction project for the improvement of 182 Tenth’s real property. The lien claim arose pursuant to a construction contract between Manhattan, the general contractor, and Mid Atlanta Properties, Inc. in the original amount of $36,250,000 to build a condominium complex on 182 Tenth’s property. Manhattan stopped work on the project due to nonpayment and subsequently filed suit asserting claims for breach of the construction contract against Mid Atlanta and foreclosure of the lien against 182 Tenth’s property. Prior to trial, Manhattan obtained an order granting partial summary judgment establishing that it was entitled at that time to recover $2,729,652 for amounts owed under the construction contract. After applying credits for payments received under the contract, Manhattan subsequently obtained a default judgment against Mid Atlanta for $4,886,606 which included the sum of $2,126,148 for unpaid amounts due under the contract.

1. 182 Tenth claims that the trial court erred in denying its motion for a directed verdict made after the close of the evidence.

In support of the lien foreclosure claim, Manhattan produced testimony from its project manager, along with documentation of the unpaid items, showing that Manhattan submitted payment applications for labor, services, and materials furnished to improve the property pursuant to the contract with Mid Atlanta; that 182 Tenth consented to and made payments on the contract under which items were furnished; and that Manhattan was owed $2,126,148 for unpaid items furnished under the contract to improve 182 Tenth’s property. Manhattan also introduced evidence of its default judgment against Mid Atlanta. After the testimony and documents were admitted without objection, 182 Tenth cross-examined the project manager about the furnished items for the purpose of questioning whether the unpaid sums owed to Manhattan under the contract represented lienable items under OCGA § 44-14-361 or nonlienable items. When Manhattan concluded its case, 182 Tenth rested without presenting any evidence and moved for a directed verdict. While conceding that Manhattan presented evidence of lienable claims against the property, 182 Tenth argued that it was entitled to a directed verdict because Manhattan failed to produce evidence separating lienable and nonlienable items due under the contract, so that “there is nothing in the record at this point that has given the jury any amount of expenses that are lienable on the property of 182 Tenth.” The trial court denied the motion. We find no error. “[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.” St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (508 SE2d 646) (1998); OCGA § 9-11-50 (a). Even if there was evidence ofnonlienable items — admitted without objection — along with evidence of lienable items, it was for the jury to decide, under the court’s instructions, the amount of any hen that Manhattan was entitled to foreclose on the property.

2.182 Tenth contends that the trial court erred by instructing the jury that Manhattan’s pre-trial judgment against Mid Atlanta for unpaid labor, services, or materials furnished under the construction contract shifted the burden to 182 Tenth to separate lienable from nonlienable items.

The trial court correctly instructed the jury that Manhattan had the burden to prove by the preponderance of the evidence that it was entitled to foreclose the lien on 182 Tenth’s property. The trial court then gave the following additional instruction regarding the burden of proof:

In lien foreclosure cases, proof of rendition of a judgment in favor of a materialman, such as Manhattan, against a third party, such as [MidAtlanta], is not conclusive against an owner; but it does establish, as an initial matter, that the materialman has a valid claim against the third party for the amount of the judgment. The burden is then on the owner, in this instance, 182 Tenth, to introduce evidence sufficient to rebut the correctness of the judgment. In other words, in a lien foreclosure proceeding, where a judgment has been obtained against a contracting party, the burden of separating items which are lienable from those which are non-lienable rests upon the property owner. Whether or not such evidence has been presented is a matter solely for your determination.

The portion of the above-quoted instruction placing on 182 Tenth "the burden of separating items which are lienable from those which are non-lienable” was error. 182 Tenth had no burden to prove which items supporting Manhattan’s prior judgment against Mid Atlanta were lienable or nonlienable under OCGA § 44-14-361. As acondition precedent to foreclosing the lien on 182 Tenth’s property, Manhattan obtained a judgment against Mid Atlanta for the underlying debt on the construction contract. OCGA § 44-14-361.1 (a) (3); Stonepecker, Inc. v. Shepherd Constr. Co., 188 Ga. App. 513, 514 (373 SE2d 295) (1988). The reason for the rule is that 182 Tenth’s property should not be subjected to the statutory lien until Manhattan obtained a judgment against Mid Atlanta establishing that Mid Atlanta owed Manhattan the amount for which Manhattan sought to assert the lien. Tri-State Culvert Mfg. v. Crum, 139 Ga. App. 448, 449 (228 SE2d 403) (1976). When Manhattan obtained its default judgment against Mid Atlanta, this was an adjudication of the items furnished and the amount due with respect to the construction contract. Id. at 449-450. The judgment precluded Manhattan from establishing in the lien foreclosure that 182 Tenth’s liability exceeded that of Mid Atlanta or that details of the amounts owed under the contract differed from that proved in the judgment against Mid Atlanta. Id. at 450. Although 182 Tenth was not precluded in the lien foreclosure from contesting the validity of Manhattan’s judgment against Mid Atlanta, proof of the judgment established prima facie that Manhattan had a valid claim against Mid Atlanta for the amount of the judgment. Id. at 451. It follows that proof of the judgment shifted the burden to 182 Tenth to introduce any evidence sufficient to rebut the correctness of the judgment. Id.

But 182 Tenth did not contest the validity, correctness, or amount of the judgment that Manhattan obtained against Mid Atlanta. Rather, 182 Tenth contended by its cross-examination of Manhattan’s witness and in its closing argument that many of the unpaid items supporting Manhattan’s judgment against Mid Atlanta, and on which Manhattan sought to foreclose the lien, were not lienable labor, services, or materials under OCGA § 44-14-361. Even though the amount of Manhattan’s judgment against Mid Atlanta was proved and not contested, this was not conclusive or prima facie proof of Manhattan’s right to a lien in the full amount of the judgment. The burden remained on Manhattan to prove the lien amount to which it was entitled by producing evidence of lienable items included in the judgment against Mid Atlanta. Jackson’s Mill & Lumber Co. v. Holliday, 108 Ga. App. 663, 665 (134 SE2d 563) (1963); Bowen v. Collins, 135 Ga. App. 221 (217 SE2d 193) (1975). “If, under our statutes items lienable can be separated from those which are non-lienable on a foreclosure proceeding . . . the burden of doing so rests upon the plaintiff.” D. H. Overmyer Warehouse Co. v. W. C. Caye & Co., 116 Ga. App. 128, 132 (157 SE2d 68) (1967). “[Wjhere lienable and nonlienable items are included in one contract for a specific sum, and it cannot be determined what proportion is chargeable to each, the benefit of lien law is lost.” (Citation and punctuation omitted.) Holliday, 108 Ga. App. at 665. In this case, Manhattan produced evidence of each item included in its judgment against Mid Atlanta, so there was a basis for separating lienable and nonlienable items. Sears, Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412, 414 (170 SE2d 721) (1969).

The trial court’s instruction erroneously placed the burden on 182 Tenth to separate lienable from nonlienable items. Nevertheless, as set forth above, the record shows that Manhattan produced evidence of each item included in its judgment against Mid Atlanta, so the jury was provided with a basis for separating lienable and nonlienable items under the trial court’s instructions on this issue. Furthermore, the jury found Manhattan was entitled to foreclose a lien for $1,750,000, an amount substantially less than the claim of lien based on Manhattan’s judgment for unpaid labor, services, or materials on the contract. This shows that, despite the erroneous instruction, the jury considered whether items were lienable or nonlienable. Because 182 Tenth failed to object to the erroneous instruction, appellate review on this issue is precluded unless the instruction was substantially erroneous and harmful as a matter of law under the exception set forth in OCGA § 5-5-24 (c). Wier v. Wier, 287 Ga. 443 (696 SE2d 658) (2010). Because we find no basis on the present record for applying the exception set forth in OCGA § 5-5-24 (c), there was no reversible error.

3.182 Tenth claims that there was a lack of evidence in the record sufficient to support the jury’s verdict finding that Manhattan was entitled to foreclose a lien on its property for $1,750,000 of lienable items.

The lien provided by OCGA § 44-14-361 (a) arises as to “property for which [lien claimants] furnish labor, services, or materials.” Manhattan’s project manager testified that the claim of lien arose from items set forth in seven unpaid payment applications submitted under the construction contract. After deductions for credits received by Manhattan, the unpaid payment applications represented items due under the contract in the total amount of $2,126,148. The project manager testified this amount included Manhattan’s “general conditions costs” under the contract for cleanup on the job site, insurance costs, on-site staff, on-site office trailers and on-site temporary toilet system, all of which he described as “overhead costs to manage the j ob site.” The construction contract specifically provided that Manhattan’s general conditions costs “includes the cost of all insurance premiums to be paid by [Manhattan].” A review of the itemized general conditions costs in the seven payment applications supports the project manager’s testimony that these costs represented overhead or administrative costs, and shows charges for items described as staff, preconstruction, mobilization, phone/water, power, job site trailer, safety, job toilets, office supplies, computers, small tools, fuel and oil, temporary road, blueprints, job site copier, record drawings, progress photos, postage/courier, sidewalk barricades, job site communications, temporary fence, job signage, cleanup crew, dumpster rentals/pulls, final clean, unit certifications, builder’s risk insurance, and general liability insurance. The total amount of general conditions costs was fixed under the contract at $2,767,520 and divided into 19 equal payments of $145,659 in each payment application for a total of $1,019,613 in the seven unpaid payment applications.

The right to the lien provided under OCGA § 44-14-361 (a) “proceeds upon the theory that the work and material or machinery for which the lien is sought have increased the value of the realty by becoming a part thereof.” Skandia Draperies Mfg. Co. v. Augusta Innkeepers, 157 Ga. App. 279, 280 (277 SE2d 282) (1981). The object of the lien statutes is to secure a lien for that which actually goes into the structure. Amador v. Thomas, 259 Ga. App. 835, 837 (578 SE2d 537) (2003). Because the lien provided in OCGA § 44-14-361 (a) is in derogation of the common law, “statutes involving such liens must be strictly construed in favor of the property owner and against the materialman.” Browning v. Gaster Lumber Co., 267 Ga. 72, 73 (475 SE2d 576) (1996). So construed, we find that the items of general conditions costs described in the payment applications were not lienable because they were not labor, services, or materials which actually went into and became a part of the property. At trial, Manhattan also sought as part of its lien over a million dollars in interest under the contract on the unpaid payment applications. Similarly, we find that interest due on the unpaid payment applications was not a lienable item.

Decided July 11, 2012.

Johnson & Freeman, Ronald J. Freeman, Raymond C. Humphrey, Christopher T. Portis, Hartman, Simons, Spielman & Wood, Ephraim Spielman, for appellant.

Apart from Manhattan’s overhead or administrative costs itemized under general conditions, the payment applications listed other items which a jury could conclude represented labor and materials actually furnished for improvements to the property. As Manhattan’s project manager testified, the payment applications represented billing for “[t]he actual work performed on site and the office overheads.” When the general conditions costs of $1,019,613 are deducted from the $2,126,148 of unpaid items under the contract, a total of $1,106,535 in unpaid items remains. It was disputed whether all the remaining items represented lienable labor and material actually furnished to improve the property. Because there was no basis for the jury to find lienable items supporting a lien foreclosure on 182 Tenth’s property in the amount of $1,750,000, the judgment entered on the verdict must be reversed.

Where a party prevails on appeal on a contention that the evidence was insufficient to support the verdict under OCGA § 5-6-36 (a), but the record shows the party failed to move for a directed verdict on that ground at trial, the party is entitled only to a new trial, and may not seek judgment as a matter of law. Aldworth Co. v. England, 281 Ga. 197, 199 (637 SE2d 198) (2006). While 182 Tenth moved for a directed verdict, it was on the ground that Manhattan failed to carry its burden to separate lienable from nonlienable items. This was not a motion for a directed verdict on the insufficiency of evidence ground raised on appeal. In any event, we conclude on the present record that the ends of justice require that the case be remanded for a new trial. OCGA § 9-11-50 (e).

Judgment reversed and case remanded with direction.

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

Troutman Sanders, Cory S. Menees, Frank E. Riggs, Jr., Jeffrey J. Nix, Jason D. McLarry, for appellee.


source: Caselaw Access Project

author: Doyle, Presiding Judge.

license: Public Domain

text:
    A12A0650.
    In the Interest of A. T. et al., children.
    (730 SE2d 451)
   Doyle, Presiding Judge.

The father of A. T., T. T, and B. T. appeals the termination of his parental rights, contending that there was not clear and convincing evidence that the causes of the deprivation were likely to continue or that the deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. We affirm, for the reasons that follow.

The record shows that B. T., T. T, and A. T., currently ages nine, seven, and five, respectively, were placed in the custody of the Department of Family and Children Services (“DFCS”) in May 2008, after two of the children accidentally started a fire in the family’s apartment. Police searched the house after the fire was extinguished and discovered drugs, as well as a shotgun under the bed. The mother was arrested and charged with drug and gun possession and failure to properly supervise the children; the father was charged with possession of cocaine and possession of a firearm by a convicted felon. DFCS took custody of the children at that time and placed them in foster care.

Following a May 30, 2008 hearing, the father stipulated that the children were deprived based on his continued incarceration, and he conceded that he had a substance abuse problem and was in need of treatment. The father was subsequently convicted of the possession charges and sentenced to serve ten years on probation.

A reunification case plan was developed for the father that required him to submit to random drug tests, complete drug treatment, provide proof of income, secure stable housing, complete a psychological evaluation, and complete parenting classes. After the father was released from jail, he returned to his job, but he was fired a few months thereafter and remained unemployed for more than a year before obtaining a job in June 2010. After an initial slow start toward compliance with his case plan, the father completed his psychological evaluation and successfully completed drug treatment; he tested negative for drugs during all random drug tests beginning when the children were initially placed in foster care. The father did not, however, complete individual counseling.

DFCS planned to return the children to the father’s care in 2009 and arranged for an evaluation of his Fulton County home. After the home visit but before the final evaluation was completed, the father moved into a home in Clayton County with a girlfriend and requested a home evaluation there. DFCS arranged for Clayton County to conduct a home evaluation, but the father reconciled with and married the children’s mother in 2009 and moved back in with her in Fulton County. The parents began having unsupervised visitation with the children. Thereafter, the father called DFCS and reported that the mother was using drugs while the children were present in the home during visitation, and DFCS removed the children. The parents had a subsequent physical altercation in the apartment, and both were arrested. The father has since pleaded guilty to simple battery and received an additional six months of probation.

The father subsequently filed for divorce, and in August 2010, he moved in with another girlfriend, D. V., in Douglasville. The father obtained a job in June 2010, earning approximately $1,000 per month; he was required to pay $300 per month in probation fees and $366 in child support for the children, plus an additional $112 for another child not at issue in this case. D. V. has a five-bedroom house and three children of her own. D. V. testified that she and the father plan to marry, and she agreed to help support the father and the children.

At the termination hearing, the father conceded that he had lived in six different homes since the children were taken into foster care. According to the father, he had difficulty finding a job and housing because he was on probation and had a criminal history. He had not been paying child support for the children, and his driver’s license had been suspended as a result; at the time of the final hearing, the father owed $ 1,000 in child support. Shortly before the final hearing, however, the father arranged to have his probation fees converted to community service hours. The father regularly visited with the children, but he did not see them between August 2010, when his visitation rights were suspended, and February 12, 2011.

The DFCS caseworker testified at the final deprivation hearing that the father had not completed the recommended counseling, and the caseworker was concerned that his housing arrangements and financial situation were not stable. The children had been in the same foster home since 2008. The foster parents “want to adopt one [of the children] and are considering adopting another”; B. T. is resistant to adoption and wants to remain with family.

The guardian ad litem recommended termination for the younger two, but not B. T. The juvenile court rejected this recommendation and concluded that termination was in the best interest of all three children. The court noted that the father loves the children very much, has remained committed to them, has visited them consistently, and has acted responsibly to protect them since becoming sober. Nevertheless, the court concluded that based on his track record, the father will not be able to provide the children with the permanence and stability they need. Accordingly, it terminated the father’s rights to all three children, and this appeal followed.

A juvenile court considering a petition to terminate parental rights must engage in a two-step analysis:

First, there must be a finding of parental misconduct or inability, which 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.

“On appeal, we view the evidence in the light most favorable to the juvenile court’s ruling and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated.”

1. Here, the father argues that there was insufficient evidence that the children’s deprivation was likely to continue. We disagree.

“In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent.” “And a juvenile court may place more weight on negative past facts than promises of future conduct.”

As we have said time and again, in considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation. Likewise, judging the credibility of [his] good intentions was a task for the juvenile court. And on appeal, we will neither reweigh that evidence nor reevaluate the credibility of the witnesses.

Here, the evidence shows that the father made substantial progress in his case plan, including completing a psychological evaluation, attending parenting classes, successfully completing substance abuse treatment, and remaining drug-free for three years. But evidence was also presented that the father pled guilty to battery against the mother after DFCS became involved with the family, he was behind in his child support payments, he failed to complete individual counseling, and he failed to visit with the children in the six months preceding the hearing. The father also had six separate residences during the pendency of this case, and although he was living with D. V. at the time of the final hearing, he conceded that he was dependent upon her for financial support.

Thus, while we commend the father’s efforts, particularly his efforts to remain drug-free, “judging the credibility of [his] good intentions was a task for the juvenile court.” Based on the evidence presented, the juvenile court was authorized to conclude that the cause of the children’s deprivation was likely to continue.

Decided July 11, 2012.

Ernest C. Crosby, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Andrea R. Moldovan, Penny Hannah, Assistant Attorneys General, for appellee.

2. The father also argues that there was insufficient clear and convincing evidence to support the juvenile court’s finding that continued deprivation would likely cause serious physical, mental, emotional, or moral harm to the children. Again, we disagree.

“The same evidence that the child[ren]’s deprivation is likely to continue . . . may also support a finding that [children] will likely suffer serious harm from that continued deprivation.” As we concluded in Division 1, supra, there was clear and convincing evidence that the cause of the children’s deprivation was likely to continue.

The record also shows that the children have been in the same foster home for three years and are doing well, and T. T. and A. T. are bonded with the foster parents. Further, the children’s therapist testified that permanency was “very important” for all three children.

Having reviewed the record in this case, we find that there is sufficient clear and convincing evidence to support the juvenile court’s conclusion that the [children are] likely to suffer serious harm if the [father’s] parental rights are not terminated and the status quo is allowed to continue indefinitely.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       The father is the biological father of the two younger children, but during the pendency of the case, he learned that B. T., who was named after him, is not his biological child. The father continually expressed his desire to parent B. T. and legitimated all three children (B. T.’s biological father voluntarily surrendered his parental rights on January 20, 2011).

       The mother was allegedly under the influence of drugs at the time and had fallen asleep, leaving the children unsupervised; the father was not home. The mother escaped the home, leaving the children; the oldest two children escaped through a window, but A. T., who was an infant, suffered smoke inhalation before he was rescued.

       DFCS made efforts to place the children with relatives after the parents’ arrests and during the pendency of the case, but those efforts were unsuccessful, so the children remained in foster care.

         The mother also stipulated that the children were deprived.

       The father’s relationship with the girlfriend lasted approximately a year.

       The guardian ad litem, however, filed an appellate brief urging this Court to affirm the termination order for all three children.

       (Punctuation omitted.) In the Interest of T. B., 249 Ga. App. 283, 285-286 (1) (548 SE2d 45) (2001), quoting In the Interest of V. M. T., 243 Ga. App. 732, 735-736 (3) (534 SE2d 452) (2000).

       (Punctuation omitted.) T. B., 249 Ga. App. at 286 (1).

       (Citation omitted.) In the Interest of J. C., 237 Ga. App. 533, 535-536 (1) (515 SE2d 847) (1999).

       (Punctuation omitted.) In the Interest of A. C., 280 Ga. App. 212, 217 (1) (c) (633 SE2d 609) (2006).

       (Punctuation omitted.) In the Interest of Z. P., 314 Ga. App. 347, 352 (2) (724 SE2d 48) (2012).

       (Punctuation omitted.) In the Interest of R. J. D. B., 305 Ga. App. 888, 894 (1) (a) (700 SE2d 898) (2010).

       See In the Interest of S. N. H., 300 Ga. App. 321, 327 (1) (c) (685 SE2d 290) (2009); In the Interest of C. M., 282 Ga. App. 502, 505-506 (1) (c) (639 SE2d 323) (2006).

        In the Interest of D. L. T., 283 Ga. App. 223, 228 (2) (641 SE2d 236) (2007).

       Id. at 228-229 (2). See also In the Interest of B. I. F., 264 Ga. App. 777, 781 (1) (592 SE2d 441) (2003) (“P]t is well established that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.”).


author: MlKELL, Presiding Judge.

text:
    A12A0662.
    COBARRUBIAS-GARCIA v. THE STATE.
    (730 SE2d 455)
   MlKELL, Presiding Judge.

Alfonso Cobarrubias-Gareia (appellant) was convicted by a jury of trafficking in cocaine, trafficking in methamphetamine, and possession of a firearm during the commission of a felony. He was acquitted of misdemeanor possession of marijuana. He appeals the denial of his amended motion for new trial, challenging the sufficiency of the evidence. Because the state failed to prove any connection between appellant and the contraband other than spatial proximity, we reverse.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

The standard of review in evaluating the sufficiency of the evidence is “whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.”

So viewed, the evidence shows that FBI narcotics agents, investigating a suspected shipment of cocaine from Mexico to Atlanta, were led to a house located at 3070 Dowry Drive in Gwinnett County. On April 30, 2008, at 10:30 p.m., the agents conducted a “knock and talk” at the house, hoping to gather information from the occupants and to obtain permission to conduct a search. The agents knocked on the door for about three minutes before Alejandro Navarette-Garcia opened the door and told the agents that he neither lived in nor owned the residence. Appellant, Efrain Navarette-Garcia, Leticia Rodriguez-Fuentes, and Asuel Navarette-Vasquez were also found in the house. Both Efrain and Alejandro told the agents they had been living at the house for several days after arriving from Mexico. Asuel told the agents that he had been living in the house for two weeks, and he consented to the officers’ search of the house, despite the lack of a warrant.

Upon entering, the agents performed a protective sweep of the house, which revealed four weapons and a quantity of marijuana. Following this discovery, the agents placed under arrest all five of the people found in the home, including appellant. After his arrest, Asuel refused to sign a consent to search form, so the agents sought and obtained a search warrant.

Upon execution of the search warrant, officers found the following contraband in the house: hidden in the attic, two guns; hidden in the fireplace chimney, a plastic container of methamphetamine; on the fireplace mantle, a ledger containing drug transaction notes; hidden inside the clothes dryer, a money counter; in a corner of the living room, a “shrine” related to drug trafficking; hidden inside a wall behind a medicine cabinet in one bathroom, five plastic containers of methamphetamine; and in the other bathroom, hidden inside a wall behind a medicine cabinet, a large quantity of cocaine, over $46,000 in cash, and notes regarding drug transactions. Additionally, a search of one bedroom, believed to have been shared by Efrain and Alejandro, revealed three guns: one under a mattress, one inside a suitcase, and one under a bed. The search of another bedroom, identified as room “E,” revealed a gun under a pillow on a sleeping bag lying on the floor, two more guns in the bed, and a pair of plaid shorts and a dark colored t-shirt with a light colored logo across the chest.

FBI Special Agent Ronald Campbell testified that, during his surveillance of the house prior to executing the search warrant, he noticed a man exit the subject house and obtain a lawnmower from a neighboring house. The man, whom Campbell identified as appellant, then pushed the lawnmower back to 3070 Dowry Drive and proceeded to cut the grass. Campbell also identified the clothes located in bedroom “E” as the clothes appellant wore while cutting the grass.

Leticia testified at trial that she knew appellant because she had served him and the co-defendants several times before at the restaurant where she worked. Leticia testified that she was Asuel’s girlfriend; that she saw appellant at the house when she was there cooking for the men about a week prior to the arrests; and that she had been in and out of the house on the night of the arrest in order to shop and cook for the men. Leticia stated that she saw appellant at the house earlier that day, and that she had seen him walk into bedroom “E” at least once.

Miguel Fulleda, the real estate agent who managed the house for its owner, stated that when he visited the house about a month earlier to collect the rent, he saw appellant there, playing cards with the co-defendants.

Appellant testified on his own behalf at trial, stating that he had been living in Roswell with a friend for the past three months. Appellant further testified that he had never visited 3070 Dowry Drive prior to the day of the arrest; and that he was at the house earlier that day because he was to be paid $50 to cut the grass. He borrowed clothes from another occupant in the house to wear while cutting the grass; afterward, he left the clothing in bedroom “E.” Appellant stated that he left the house because there was no one to pay him at that time. He was later told to arrive at the house around 10:00 p.m. to receive his payment. Once at the house, appellant testified that he stood hy the door because he did not know Alej andró or Efrain and did not feel comfortable sitting with them on the couch.

Appellant contends that the state failed to prove that he knowingly possessed the drugs because he was not the owner or lessee of the house; no contraband was found on his person; and the evidence did not link him with the drugs found hidden in the house. We agree.

An essential element of trafficking in cocaine and trafficking in methamphetamine is the knowing possession of 28 grams or more of the substances. Possession maybe actual or constructive and joint or exclusive, but mere spatial proximity to the contraband is not sufficient to prove joint constructive possession, “especially where, as here, the contraband is hidden.” Instead, the state must demonstrate that appellant had the power and intent to exercise dominion or control over the cocaine and methamphetamine.

To do this, the state must provide “evidence of a connection linking the defendant to the contraband other than his mere spatial proximity.”

A connection can be made between a defendant and contraband found in his presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Such occupation and control maybe inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered. However, a mere occupant, as distinguished from a resident, does not necessarily have the requisite control over the premises to authorize the inference that he possesses all property found thereon. If such were the case, a person’s mere presence at the scene of the discovery of illegal drugs would authorize his conviction, and that plainly is not the law.

Accordingly, “[ejvidence merely showing that contraband was found in a residence occupied by the defendant is simply insufficient to support a conviction, especially where other persons had equal access to the contraband and therefore an equal opportunity to commit the offense.”

In this case, it is undisputed that appellant did not reside at the home, so there is no presumption that appellant had control of the drugs. Rather, the state’s arguments purporting to connect appellant to the drugs are that “no one is in a stash house containing drugs worth $750,000 at 10:30 p.m. unless they have a vested interest in what is inside”; that there was a visible drug-trafficking-related “shrine” in the living room and a ledger on the living room mantle; and that the occupants of the house had ample opportunity to hide the weapons during the “missing three minutes” between when the FBI agents first began knocking and when the door was answered. Additionally, the state points to evidence that the clothes appellant wore while mowing the grass were in bedroom “E”; however, none of the drugs were found hidden in that room. This evidence is circumstantial with regard to appellant’s constructive possession of the contraband.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused,” OCGA § 24-4-6, although it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. Whether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant’s guilt is a question for the jury unless the verdict is insupportable as a matter of law.

Aquino involved a prosecution for trafficking in methamphetamine which was discovered in a black bag, hidden in a drawer of a house. Defendant was found standing in the driveway; defendant’s driver’s license was found in the house; keys to the house were found on defendant’s person; and defendant had been seen opening the door of the house while holding a black bag. All of this evidence was circumstantial, however; there was nothing linking defendant to the drugs hidden in the house. This Court concluded that the evidence was insufficient to find defendant in constructive possession of the contraband because the state had not eliminated other reasonable hypotheses, including that others with access to the house could have been responsible for the drugs.

Similarly, here, there is no evidence linking appellant to the drugs hidden in the house. Appellant can be linked to bedroom “E” because of the clothes identified by Campbell and because of Leticia’s testimony, but no drugs were found hidden in that room. Although appellant’s testimony regarding how many times he had visited 3070 Dowry Drive in the past conflicted with the testimony of Leticia and Fulleda, this does not link appellant to the contraband. “While the evidence creates the gravest suspicion that defendant may be guilty of the offense of which he was convicted, suspicion is not sufficient to support a conviction.” No drugs were found on appellant’s person, and he was not seen in proximity to the well-hidden drugs. Because the state did not provide evidence connecting appellant to thé hidden drugs, the evidence did not exclude the hypothesis that the drugs belonged to the others residing in the home. Under OCGA § 24-4-6, the trafficking convictions cannot stand. And, because appellant’s conviction of possession of a firearm during the commission of a felony hinges on these convictions, it also must be reversed.

Decided July 11, 2012.

Matthew D. Crosby, for appellant.

Daniel J. Porter, District Attorney, Keith R. Miles, Rodney K. Miles, Assistant District Attorneys, for appellee.

Judgment reversed.

Miller, J., concurs. Blackwell, J., concurs in judgment only.

       OCGA § 16-13-31 (a) (1) (“Any person... who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine ... in violation of this article commits the felony offense of trafficking in cocaine”).

       OCGA § 16-13-31 (e) (“Any person who knowingly... has possession of 28 grams or more of methamphetamine ... or any mixture containing... methamphetamine ... in violation of this article commits the felony offense of trafficking in methamphetamine”).

       OCGA§ 16-11-106 (b) (5) (“Any person who shall have on or within arm’s reach of his or her person a firearm . . . during the commission of, or the attempt to commit. . . [a]ny crime involving the trafficking of cocaine... or illegal drugs as providedin Code Section 16-13-31, and which crime is a felony, commits a felony”).

       (Citation and punctuation omitted.) Clyde v. State, 298 Ga. App. 283 (680 SE2d 146) (2009).

        Aquino v. State, 308 Ga. App. 163 (1) (706 SE2d 746) (2011), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       The occupants of the house will hereinafter be identified by their first names.

       Appellant, with Asuel, Leticia, Efrain, and Cristobal Pereira Rosales, were charged under a joint indictment with the crimes at issue here.

        In re E. A. D., 271 Ga. App. 531, 532 (610 SE2d 153) (2005).

       (Citations omitted.) Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997).

        Thurmond v. State, 304 Ga. App. 587, 591 (2) (696 SE2d 516) (2010).

       (Footnote omitted.) Johnson v. State, 245 Ga. App. 583, 584 (538 SE2d 481) (2000).

       (Citations omitted.) In re E. A. D., supra at 532-533.

       (Footnote omitted.) Johnson, supra at 585.

       (Citations and punctuation omitted.) Aquino, supra at 166 (1).

       Id.

       Id. at 164.

       Id. at 163-164.

       Id. at 166-167.

       (Citation and punctuation omitted.) Id. at 166.

       See id.

       See Johnson, supra at 585-586.

       See OCGA § 16-11-106 (b) (5); Jackson v. State, 309 Ga. App. 24,29 (1) (b) (709 SE2d 44) (2011) (state’s failure to prove predicate felony, hijacking, resulted in reversal of possession of firearm conviction).


author: Boggs, Judge.

text:
    A12A0776.
    SAULS v. ATCHISON et al.
    (730 SE2d 459)
   Boggs, Judge.

William Christopher Sauls appeals from the judgment of the Baldwin County Superior Court terminating his parental rights in connection with an adoption. He asserts that service of process was insufficient, that the trial court’s order is deficient, and that the trial court erred in terminating his parental rights and issuing a decree of adoption. We find that service of process was sufficient and affirm with respect to that finding, but because the trial court’s decree fails to set forth the mandatory findings of fact and conclusions of law pursuant to OCGA § 19-8-18(b), we vacate the judgment and remand with direction.

Sauls and the child’s mother were never married, but Sauls acknowledged paternity under OCGA § 19-7-21.1 (b). The child was born in 2005, while the father and mother lived in Warner Robins, Georgia. In 2006, the parents separated, and Sauls later moved to the Atlanta area. In 2007, the mother requested that the Atchisons, Sauls’ mother and stepfather, take custody of the child, and the Baldwin County Probate Court issued temporary letters of guardianship. In 2010, the Atchisons filed this petition for adoption under OCGA § 19-8-10.

After receiving extensive evidence, including two days of testimony, the trial court found that (1) Sauls significantly failed for over one year, without justifiable cause, to communicate or attempt to communicate with the child; (2) Sauls significantly failed to support the child financially; and (3) adoption by the Atchisons would be in the child’s best interest. The trial court then granted the petition for adoption. This appeal followed.

1. Sauls contends that the trial court erred in failing to dismiss this action because he was not properly served. Service of an adoption petition on a parent is governed by the provisions of OCGA § 19-8-10 (c):

Whenever it is alleged by any petitioner that surrender or termination of rights of a parent is not a prerequisite to the filing of a petition for adoption of a child of that parent in accordance with subsection (a) or (b) of this Code section, that parent shall be personally served with a conformed copy of the adoption petition, together with a copy of the court’s order thereon specified in Code Section 19-8-14, or, if personal service cannot be perfected, by registered or certified mail or statutory overnight delivery, return receipt requested, at his last known address. If service cannot be made by either of these methods that parent shall be given notice by publication once a week for three weeks in the official organ of the county where the petition has been filed and of the county of his last known address. A parent who receives notification pursuant to this paragraph may appear in the pending adoption action and show cause why such parent’s rights to the child sought to be adopted in that action should not be terminated by that adoption. . . .

We have held that the trial court did not err in allowing service by publication upon a father in a termination action when the father “abdicated his parental responsibilities” by failing to contact DFACS about his children in foster care or tell caseworkers his address. In the Interest of T. B. R., 224 Ga. App. 470, 478 (3) (480 SE2d 901) (1997) (construing OCGA § 15-11-39.1, formerly OCGA § 15-11-27, to allow service by publication in juvenile proceedings “after reasonable effort”). In T. B. R., we observed that the father’s expectation of “extraordinary, perhaps even futile, efforts to locate him” was “without statutory support and would place an undue burden on DF[A]CS, particularly in a case where a parent’s extended and unexplained absence is one basis for the termination proceeding.” (Citations and footnote omitted.) Id.

Here, the Atchisons personally served the mother, but in their verified petition they alleged that they did not know Sauls’ address, that he refused to divulge his whereabouts to them, and that they were unable to serve him personally or by mail. Accordingly, they requested service by publication. Sauls appeared and filed a verified response to the petition, but he did not directly assert insufficiency of process, stating only that the Atchisons’ claim not to know his whereabouts was false because they were “friends” on his social media page. At the end of the first day’s testimony, Sauls orally moved to dismiss on this ground.

Evidence was presented to the trial court that Sauls was in telephone contact with the Atchisons but refused to divulge his physical whereabouts or his residence address to them, other than that it was somewhere in the Atlanta area. In 2007, Sauls gave the Atchisons’ lawyer a work address in Tucker, and in 2008 he gave his mother a general work location in Little Five Points, but did not give her a residence address. Before filing the petition for adoption, the Atchisons attempted to set up a meeting through Sauls’ younger brother, but Sauls again refused to give a residence address for the meeting place, offering instead to meet at a restaurant near Conyers and ultimately not meeting with the Atchisons at all. At the hearing, Sauls testified that he still considered his Warner Robins address his residence, but his fiancée testified that from 2009, Sauls resided with her in Smyrna and later in Woodstock, Georgia, and that he worked in College Park.

This evidence supports a conclusion that Sauls not only failed to give a residence address to the custodians of his child, as in T.B.R., supra, but actively and deliberately concealed his whereabouts from them. Under these circumstances, service by publication was permissible. See generally Melton v. Johnson, 242 Ga. 400, 402 (249 SE2d 82) (1978). The trial court did not abuse its discretion in denying Sauls’ motion to dismiss for insufficiency of service.

2. Sauls next contends that the trial court’s orders are “facially defective” because they fail to include findings of fact and conclusions of law. In terminating Sauls’ parental rights, the trial court recited only that

William Christopher Sauls for a period of at least one (1) year immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed to communicate or to make a bona fide attempt to communicate with [the child] in a meaningful, supportive, parental manner,

and that “William Christopher Sauls for a period of at least one (1) year immediately prior to the filing of the petition for adoption, [failed] without justifiable cause to provide for the care and support of [the child] as required by law.” The order contains no separate findings of fact.

OCGA § 19-8-18 (b) provides: “In all cases wherein Code Section 19-8-10 is relied upon by any petitioner as a basis for the termination of parental rights, the court shall include in the decree of adoption appropriate findings of fact and conclusions of law relating to the applicability of Code Section 19-8-10.” In Maynard v. Brown, 276 Ga. App. 229 (622 SE2d 901) (2005), we determined that “[a] judgment having such a final, ultimate and significant result as that of severing the rights of a parent to a child must conclusively show compliance with the statutory criteria prescribed as a condition precedent for such termination.” (Citations and punctuation omitted.) Id. at 231. “The decree must present more than a mere legal conclusion which is not supported by mandatory findings of fact, or a dry recitation that certain legal requirements have been met.” (Citations and punctuation omitted.) Id.

In the absence of any specific findings of fact to support the trial court’s recitation of the language of the statute, we are constrained to remand this case to the trial court with the direction that it enter a new decree with specific findings of fact and conclusions of law pursuant to OCGA § 19-8-18 (b). We therefore do not reach Sauls’ contentions with regard to the termination and adoption, and we express no opinion upon the merits of those contentions.

Decided July 11, 2012.

M. Katherine Durant, for appellant.

Shane M. Geeter, for appellees.

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

Mikell, P. J., and Miller, J., concur.

       OCGA § 19-7-21.1 (b) provides:
      Prior to the child’s first birthday, a father of a child born out of wedlock may render his relationship with the child legitimate when both the mother and father have freely agreed, consented, and signed a voluntary acknowledgment of paternity and an acknowledgment of legitimation [State Vital Records form 3940] which have been made and have not been rescinded pursuant to Code Section 19-7-46.1____
      This statute, however, circumvents the safeguards inherent in our legitimation statute, OCGA § 19-7-22, which requires a petition in Superior Court and a finding that legitimation is in the best interest of the child. There is no statutory time frame for the filing of these forms and thus no meaningful way for the courts or attorneys to know whether the form has been signed. On occasion this causes the filing of unnecessary petitions for legitimation, and could potentially cause inconsistent findings as well. In short, under OCGA § 19-7-21.1, the mother and any male may agree — whether by mistake or by plan -to have someone other than the biological father sign this form. And a male who simply signs a pre-printed form in the hospital (or within 12 months thereafter) is by that minimal act alone placed on the same legal footing as a father whose paternity has been judicially determined with the benefit of formal notice, evidence and a hearing at which the court must determine whether legitimation is in the best interest of the child. While in this case we find that service on Sauls was proper, there is obvious potential for this statutory acknowledgment to create significant difficulties for our trial judges and practitioners. However, this is for the General Assembly, not this court, to address.

       The mother’s parental rights were also terminated in the same order, but she is not a party to this appeal.

       Sauls does not explain how electronic contact via a cellular telephone or a social media site can establish his physical whereabouts or his residence.

       We need not reach the question of whether Sauls waived this defense by his failure to assert it at the earliest opportunity. See Tavakolian v. Agio Corp., 304 Ga. App. 660, 662-663 (1) (697 SE2d 233) (2010).


author: DOYLE, Presiding Judge.

text:
    A12A0240.
    3 WEST INVESTMENTS, LLC et al. v. HAMILTON STATE BANK.
    (728 SE2d 843)
   DOYLE, Presiding Judge.

Bartow County Bank (“BCB”), the predecessor to Hamilton State Bank (“HSB”), sued 3 West Investments, LLC, Dennis Graham, Michael Allen, and Christie Graham (collectively, “the defendants”) to recover a deficiency on a loan following a nonjudicial foreclosure sale of collateral property. The defendants contended that HSB was precluded from seeking a deficiency judgment because BCB had previously foreclosed on property that secured the loan without obtaining judicial confirmation of the foreclosure sale. The parties filed cross-motions for partial summary judgment on this issue, and the trial court ruled in favor of HSB, concluding that it could pursue a deficiency judgment against the defendants. The defendants appeal this ruling, and we affirm, for the reasons that follow.

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.

The relevant facts in this case are undisputed. The record shows that on February 11, 1998, Dennis Graham and Allen borrowed $211,611.50 from BCB to acquire and improve property located at 301 N. Tennessee Street in Cartersville, Georgia. On December 15,1998, they borrowed an additional $147,955 from BCB to purchase and improve property located at 110 McEver Street in Cartersville, which property is contiguous to the 301 N. Tennessee Street property. By virtue of dragnet clauses contained in the security deeds, the two loans were cross-collateralized and the two parcels (hereinafter the “Real Estate Collateral”) secured both loan obligations. On May 31, 2001, the two loans were consolidated, and the consolidated loan was renewed twice, with the last renewal occurring on October 21, 2009, when BCB renewed the outstanding principal balance of $190,676.94 (hereinafter, “Loan 608076”).

On December 17, 2007, 3 West borrowed $7,056,551 from Unity National Bank (“Unity”), and the loan (“3 West Loan”) was secured by commercial property located near Euharlee, Georgia. The Unity note was guaranteed by Dennis Graham, Allen, and Jimmy Don Crane. Crane’s guarantee was secured by commercial real estate; Graham’s and Allen’s guaranties were unsecured, but they caused Millennium Commercial Contractors, LLC, an entity controlled by them, to pledge commercial property to secure their guaranties. Unity sold a participation in the 3 West Loan to BCB. The participation agreement provided that all payments for the 3 West Loan were owed to Unity, who collected the payments as BCB’s agent. The 3 West Loan was renewed twice, with the final renewal occurring on May 28,2009, in the amount of $7.4 million. Graham, Allen, and Crane guaranteed the payment of the renewal note to Unity; Crane’s guaranty was secured, while Graham’s and Allen’s were not. Again, Unity sold a participation in each renewal to BCB.

On October 21,2009, Graham and Allen borrowed $250,000 from BCB to complete a sewer line to property owned by 3 West. The loan (“Loan 20030”) was secured by the Real Estate Collateral, and was renewed on February 19, 2010, in the amount of $250,000.

3 West subsequently defaulted on the 3 West Loan when it failed to make the interest payment due on December 5,2009. On March 25, 2010, Unity assigned its interest in the 3 West Loan to BCB, including the security documents and guaranties by Graham, Allen, and Crane. Unity simultaneously purchased a 25.34 percent interest in the 3 West Loan.

OnMarch 26,2010, banking regulators closed Unity, and Unity’s banking operations were purchased by Bank of the Ozarks. On May 28, 2010, BCB, with the Bank of the Ozarks — Unity’s successor — declared the 3 West Loan in default, and on July 7, 2010, BCB sued the defendants seeking to recover the full amount due on the 3 West Loan.

On July 6, 2010, BCB declared Loans 608076 and 20030 in default and accelerated the balance on those due by Graham and Allen based on their guaranty obligations on the 3 West Loan. On December 7, 2010, BCB foreclosed on the security deeds for Loans 608076 and 20030 by selling the Real Estate Collateral. BCB then bid for and purchased the Real Estate Collateral for $800,000. The purchase price was applied to pay in full the outstanding balances on Loans 608076 and 20030, and the remaining balance of $380,820.30 was applied toward Graham’s and Allen’s guaranties on the 3 West Loan. BCB did not seek to confirm the foreclosure sale pursuant to OCGA § 44-14-161 (a).

Following the nonjudicial foreclosure sale, the parties filed cross-motions for summary judgment as to the issue of whether BCB’s failure to seek confirmation of the foreclosure precluded it from obtaining a deficiency judgment against the defendants. On May 24, 2011, HSB was substituted as the party plaintiff for BCB. The trial court subsequently granted partial summary judgment to HSB and denied the defendants’ motion for partial summary judgment, concluding that

the note obligations from [defendants Graham and Allen are separate and distinct obligations from the 3 West Loan and guaranties.. .. [T]he dragnet provision . . . alone is not enough to make [d]efendants’ obligation inextricably intertwined. The [cjourt finds that the [pjlaintiffwas not required to confirm the foreclosure sale as a condition precedent to seeking judgment for the deficiency against [djefendants.

The defendants appeal, arguing that the trial court erred by denying their motion for partial summary judgment and granting HSB’s motion for partial summary judgment. We disagree.

The issue before the trial court was whether HSB’s failure to confirm the foreclosure sale pursuant to OCGA § 44-14-161 (a) bars recovery of the outstanding balance on the 3 West Loan. In Georgia,

[a] creditor may not seek a deficiency judgment with respect to any real estate sold on foreclosure unless a confirmation of the sale is obtained. OCGA § 44-14-161. A deficiency judgment is the imposition of personal liability on [a] mortgagor for [the] unpaid balance of mortgage debt after foreclosure has failed to yield [the] full amount of due debt.

With regard to deficiency judgments, OCGA § 44-14-161 (a) provides that

[w]hen any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action maybe taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings

obtains a judicial confirmation of the sale.

Here, the proceeds from the foreclosure sale exceeded the amounts owed on Loans 608076 and 20030, so there was no need to pursue a deficiency judgment as to those loans. However,

[t]his Court has applied OCGA § 44-14-161 (a) to foreclosure proceedings on separate debts which are inextricably intertwined to prevent creditors from circumventing the statute’s mandates by making successive loans against the security of the same property. This prevents creditors from avoiding the very purpose of the confirmation statute; that being to protect debtors from deficiency judgments when their property is sold at a foreclosure sale for less than its market value.

Debts that are “ ‘secured by the same property, held by the same creditor and with the assumption of the debt, [and] owed by the same debtor ... are inextricably intertwined. They are not independent of each other, and a foreclosure of one affects the other.’ ”

The confirmation requirement of OCGA § 44-14-161 (a) does not apply to the instant case because the 3 West Loan is not inextricably intertwined with Loans 608076 and 20030. Loan 608076 and Loan 20030, between Graham and Allen and BCB, were executed in 1998 and 2009, respectively. The 3 West Loan was executed in 2007 between 3 West and Unity. Loans 608076 and 20030 were both secured by the Real Estate Collateral. The 3 West Loan was secured by the Euharlee property, and Graham’s and Allen’s guaranties for the 3 West Loan were unsecured. Thus, we conclude that Loans 608076 and 20030 are separate from the 3 West Loan, and confirmation of the foreclosure sale was not required in order for HSB to pursue collection under the 3 West Loan.

We also reject the defendants’ argument that the dragnet clause contained in the initial loans effectively merged the debts into one debt requiring judicial confirmation of the foreclosure sale. OCGA § 44-14-1 (b) limits the operation of dragnet clauses to debts “arising ex contractu... between the original parties to the security instrument.” Here, Graham, Allen, and BCB were the original parties to Loans 608076 and 20030; 3 West and Unity were the original parties to the 3 West Loan, with Graham and Allen as guarantors. Thus, the loans were separate, and this argument is without merit.

Decided June 14, 2012

Reconsideration denied July 12, 2012

Schreeder, Wheeler & Flint, David H. Flint, Jared W. Heald, Robert H. Snyder, Jr., for appellants.

Vaughan & Evans, Donald C. Evans, Jr., Busch, Slipakoff & Schuh, Jason B. Godwin, Edward Dine, Jr., Michael P. Bain, for appellee.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       BCB’s complaint contained other claims as well, but they are not relevant to this appeal. Further, although there were additional defendants listed in the complaint, they are not parties to this appeal.

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

       Specifically, the December 15, 1998 security deed stated: “It is the intention of this instrument to secure not only the indebtedness hereinabove described along with any and all renewals and extensions thereof, in whole or in part, but also any and all other and further indebtedness now owing or which may hereafter be owing, however incurred, to Grantee, its successors and assigns, by Grantor and Grantor’s successors in title.”

       BCB could not, however, accelerate the balance, declare a default, or begin collection activity on the 3 West Loan of its own volition.

       (Punctuation omitted.) C.K.C., Inc. v. Free, 196 Ga. App. 280, 282 (2) (395 SE2d 666) (1990).

       (Emphasis supplied.)

       The proceeds from the foreclosure applied by BCB to the 3 West Loan did not cover the outstanding balance on that loan, which balance BCB seeks to recover in this action.

       (Citations and punctuation omitted.) Iwan Renovations, Inc. v. North Atlanta Nat. Bank, 296 Ga. App. 125, 128 (1) (673 SE2d 632) (2009).

        Tufts v. Levin, 213 Ga. App. 35, 37 (2) (443 SE2d 681) (1994). See also Oakvale Road Assoc., Ltd. v. Mtg. Recovery Fund-Atlanta Pools, 231 Ga. App. 414, 416 (499 SE2d 404) (1998) (physical precedent only).

       The fact that Loan 20030 was incurred to complete a sewer line to the 3 West property is not enough, in and of itself, to render the 3 West Loan and Loan 20030 inextricably intertwined, given the fact that the lenders were different and the distinctions regarding collateral.

       See Baby Days, Inc. v. Bank of Adairsville, 218 Ga. App. 752, 754 (2) (463 SE2d 171) (1995) (failure to confirm foreclosure did not bar the plaintiff from suing on the remaining debt because: “(a) [t]he loans were not to the same debtor; (b) the debtors executed the loan instruments at different times; (c) each loan was for a separate and distinct purpose . ..; and (d) the corporate debt was backed by certain securities not serving as collateral as to [the other] note and loan”); Clements v. Fleet Finance, 206 Ga. App. 736, 737-738 (426 SE2d 910) (1992) (“two separate debts evidenced by two separate notes and secured by two separate security deeds” did not merge) (emphasis in original) (physical precedent only); Vaughn & Co., Ltd. v. Saul, 143 Ga. App. 74, 77 (1) (237 SE2d 622) (1977) (“We hold that the present action is not to recover a deficiency judgment on the debt for which foreclosure was had, but to recover on a separate, subsequent and different note [two years] later for a different debt and for which a conveyance of other property was made as security. The note sued upon is a separate transaction from that which was the basis for foreclosure, is not within the prohibition of [OCGA § 44-14-161 (a)], and [appellee bank] was not barred from bringing action thereon.”) (emphasis in original). Compare Iwan, 296 Ga. App. at 129 (1) (two debts were inextricably intertwined because the notes “were secured by two separate security deeds, the notes were incurred only seven months apart for the same purpose,... both deeds pertained to the exact same property, [and] both notes were always held by the same creditor and both contained a cross-default clause”); Oakvale Road, 231 Ga. App. at 417-418 (two debts merged by the dragnet clause in the first note).

       See Vaughn, 143 Ga. App. at 77 (1); Baker v. NEI Corp., 144 Ga. App. 165, 166 (1) (241 SE2d 4) (1977).


text:
    A12A0515.
    HOLSEY v. THE STATE.
    (729 SE2d 465)
   DOYLE, Presiding Judge.

Rodney Calvindore Holsey was convicted of making a terroristic threat, simple battery, and family violence battery. Holsey filed a motion for new trial, which the trial court denied. He appeals, challenging the sufficiency of the evidence as to the terroristic threat conviction. Holsey also argues that the trial court erred during sentencing and by failing to give curative instructions after improper remarks by the prosecutor during closing argument. For the reasons that follow, we affirm.

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

So viewed, the record shows that on February 14, 2009, Bridgett Holsey (Holsey’s wife), Gretel Pittman (Bridgett’s sister), and Kimberly Bell went to a bar in Albany. Holsey arrived some time later, approached the women, and grabbed Bridgett by her hair. Then, outside the club, Holsey hit Bridgett in the face, causing her to fall down. Pittman stood between Holsey and Bridgett in an effort to stop Holsey from hitting her again.

Pittman then called 911, and Corporal Rufus Reed responded to the scene. Pittman told Corporal Reed that as Holsey attacked Bridgett, he told Bridgett “that he would kill her and kill [Pittman] too while [Pittman] was on top of her sister trying to keep him from hitting [Bridgett] again.” Bell told the officer that Holsey hit Bridgett in the face and that Holsey threatened to kill Bridgett and Pittman. Corporal Reed documented Pittman and Bell’s verbal versions of the events in written statements. Later that night at the hospital, where Bridgett was receiving treatment for her injuries, Pittman and Bell reiterated their accusations that Holsey threatened to kill Bridgett and Pittman. Bridgett also told Corporal Reed that Holsey pulled her hair, punched her, and threatened to kill her.

Holsey was arrested and charged with simple battery, family violence battery, and two counts of making terroristic threats (one against Pittman and one against Bridgett). Pittman later contacted the police and signed paperwork stating that she no longer wished for Holsey to be prosecuted, explaining that Holsey and Bridgett had reconciled. Bridgett consulted with an attorney and signed an affidavit admitting that Holsey pulled her hair and hit her, but denying that he threatened Pittman; Bridgett gave the affidavit to the police and asked them to drop the charges against Holsey. Bridgett, accompanied by Bell, subsequently told prosecutors that she and Holsey “worked out [their] problems” and that she did not want Holsey prosecuted, and she asked whether she would be required to testify against him.

At trial, Bridgett testified that at the club Holsey “tugged” her hair “to get [her] attention” and slapped her, causing her to fall down because she was “so drunk”; Bridgett denied telling police that Holsey threatened anyone. Bell testified that she saw Holsey hit Bridgett, but did not recall Holsey saying anything, explaining that, there “was a lot of people talking, so I don’t know who said what. We was all drinking.” Bell also stated that she did not recall telling police that she heard Holsey threaten to kill Bridgett and Pittman. Pittman testified that Holsey pulled Bridgett’s hair and hit Bridgett, and he threatened to kill Pittman.

Corporal Reed testified about what the three woman told him about the incident, and the State introduced a copy of the 911 call, a photograph of the injuries to Bridgett’s face, and copies of Bell’s and Pittman’s statements.

The jury found Holsey not guilty of making a terroristic threat against Bridgett (Count 1), but guilty of simple battery (Count 3), family violence battery (Count 4), and making a terroristic threat against Pittman (Count 2). During sentencing, the State introduced certified copies of Holsey’s nine prior felony convictions, and the trial court sentenced him to five years in prison on Count 2, to be served consecutively with the twelve-month concurrent sentences on Counts 3 and 4. This appeal followed.

1. Holsey contends that the evidence was insufficient to support his conviction for making a terroristic threat against Pittman, arguing that the State’s evidence on this charge consisted entirely of out-of-court statements made by Bell and Pittman.

This assertion is belied by the record, which indicates that Pittman admitted signing a statement that Holsey threatened to kill her, and she responded affirmatively when the State asked her on the witness stand whether “that’s what happened.” Pittman’s testimony alone is sufficient to sustain the jury’s verdict. Even without this testimony, however, the witnesses’ statements to Corporal Reed regarding Holsey’s threat to kill Pittman are sufficient to support the verdict. “[E]ven though . . . witnesses] may recant on the stand, [their] prior inconsistent statements constitute substantive evidence on which the [jury] may rely.” “Under circumstances such as this — where there are multiple versions of events or . . . witness [es] change[ ] [their] testimony — the jury is responsible for ascertaining which version is true.” “The fact that at trial the [witnesses] disavowed [their] prior statements went to the weight and credibility that the jury wished to assign to the State’s otherwise sufficient evidence and presents no basis for reversal.” Accordingly, the evidence authorized the jury to conclude that Holsey made a terroristic threat to Pittman.

2. Holsey also argues that the trial court erred by failing to give curative instructions after he objected when, during closing argument, the prosecutor improperly: (1) argued that the jury should take the case seriously because a member of the jury panel — the person was not selected to be on the jury — had a daughter murdered by her boyfriend; and (2) referred to the “domestic violence cycle.” Holsey argues that the foregoing arguments were outside the bounds of the evidence and prejudicial.

OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

Pursuant to this Code section, a trial court has an “independent duty, after defense counsel’s objection, to rebuke the prosecutor, give an appropriate curative instruction, or grant a mistrial in the event that the prosecutor has injected into the case prejudicial statements on matters outside of the evidence.”

Here, the prosecutor’s comment regarding the member of the jury pool was arguably an improper violation of the prohibition against future dangerousness arguments. And there was no testimony admitted regarding the domestic violence cycle. Error resulting from a violation of OCGA § 17-8-75, however, “is subject to harmless error analysis.”

The trial court specifically instructed the jury in this case that the closing arguments of counsel were not evidence. All three witnesses told the officer and testified at trial that Holsey pulled Bridgett’s hair and punched her. And although Bridgett and Bell recanted their testimony about the verbal threats after the couple reconciled shortly after the incident, Bell and Pittman specifically told the responding officer that Holsey threatened to kill Pittman, and Pittman conceded at trial that her statement to Corporal Reed was accurate. Moreover, the jury weighed the evidence and acquitted Holsey of Count 1 (making a terroristic threat to Bridgett). Given this evidence, along with the trial court’s instruction to the jury and the fact that the prosecutor’s statements were brief and immediately objected to, “we conclude that it is highly probable that the trial court’s error in failing to ... perform its duty under OCGA § 17-8-75 did not contribute to the verdict.”

3. In his final enumeration, Holsey contends that his five-year sentence for making a terroristic threat was excessive and violates the Eighth Amendment of the United States Constitution and the Georgia Constitution. We disagree.

“OCGA § 17-10-1 authorizes the trial court to sentence a defendant to any amount of time within the limits provided by law.” The maximum sentence for making a terroristic threat is five years, and the maximum sentence for the misdemeanor battery charges is twelve months each.

There is no constitutionally cognizable right to concurrent, rather than consecutive, sentences. Under Georgia law, whether to impose consecutive or concurrent sentences for multiple offenses is within the trial court’s discretion, so long as the sentence for each offense is within the statutory limits.

Decided June 21, 2012

Reconsideration denied July 12, 2012

James N. Finkelstein, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

Accordingly, because Holsey’s sentence is within the statutory ranges, this enumeration is without merit.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-11-37 (a).

       OCGA§ 16-5-23 (a) (1).

       OCGA § 16-5-23 (a) (2), (f).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See Brown v. State, 314 Ga. App. 198, 200 (1) (723 SE2d 520) (2012) (“the competent testimony of even a single witness can he enough to sustain a conviction”).

       (Punctuation omitted.) Meeks v. State, 281 Ga. App. 334, 336 (636 SE2d 77) (2006).

        Wheeler v. State, 281 Ga. App. 158, 160 (2) (635 SE2d 415) (2006).

       (Punctuation omitted.) Griffin v. State, 262 Ga. App. 87, 88 (1) (585 SE2d 145) (2003).

       See OCGA § 16-11-37 (a) (“A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence,... with the purpose of terrorizing another... or in reckless disregard of the risk of causing such terror.”); Enuka v. State, 314 Ga. App. 466, 468 (1) (724 SE2d 471) (2012) (threat to kill victim meets the definition of a terroristic threat).

       The State agreed to “move on” after the first statement regarding the juror, before the trial court ruled on Holse/s objection. The trial court sustained Holsey’s objection to the comment regarding the domestic violence cycle.

       (Emphasis supplied.)

        O’Neal v. State, 288 Ga. 219, 221 (1) (702 SE2d 288) (2010).

       See Hemp v. State, 314 Ga. App. 730, 732 (3) (726 SE2d 447) (2012) (“It is highly improper for a prosecutor to argue during the guilt-innocence phase of a criminal trial that if found not guilty, a defendant poses a threat of future dangerousness.”) (punctuation omitted). But see Collins v. State, 283 Ga. App. 188, 194 (2) (c) (641 SE2d 208) (2007).

       (Punctuation omitted.) O’Neal, 288 Ga. at 223 (2).

        Walker v. State, 281 Ga. 521, 524 (5) (640 SE2d 274) (2007). See also Dolphy v. State, 288 Ga. 705, 708 (2) (b) (707 SE2d 56) (2011); O’Neal, 288 Ga. at 223 (2); Fincher v. State, 276 Ga. 480, 482 (4) (578 SE2d 102) (2003).

        Baldwin v. State, 217 Ga. App. 866, 869 (3) (460 SE2d 80) (1995).

       See OCGA § 16-11-37 (c).

       See OCGA § 17-10-3 (a) (1).

       (Punctuation omitted.) Simpson v. State, 310 Ga. App. 63,64, n. 4 (715 SE2d 675) (2011).

       See Baldwin, 217 Ga. App. at 868 (3).


author: Dillard, Judge.

text:
    A12A0035, A12A0036, A12A0372, A12A0373.
    PAULDING COUNTY BOARD OF COMMISSIONERS et al. v. MORRISON et al. (four cases).
    (728 SE2d 921)
   Dillard, Judge.

These four related appeals stem from two complaints filed in the Superior Court of Paulding County by appellees Thad Morrison III and Melissa W. Morrison, in which the Morrisons challenged two separate zoning decisions issued by appellant, the Board of Commissioners of Paulding County, Georgia, and asserted claims of fraud against the Board and its members (collectively, the “Board”). The Board filed timely answers to the complaints, both of which included a “Wherefore” clause that contained a prayer for attorney fees. In four separate orders, the superior court concluded that the prayer for attorney fees in the Board’s answers constituted counterclaims against the Morrisons, held that the counterclaims violated the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, struck the Wherefore clauses from the Board’s answers, and ordered both the Board and its attorney to pay over $265,000 in attorney fees to the Morrisons as a sanction for the alleged statutory violations. Finding that the superior court’s orders are neither authorized by the law nor the facts of this case, we reverse.

I. Facts

In May 2006, the Board issued two zoning permits to a company intending to develop real property in Paulding County. One of the permits authorized a rezoning of the real property and the other added more property to the rezoned land (collectively, the “Property”). The Morrisons, who owned land adjacent to the Property, opposed the rezoning. In June 2006, the Morrisons filed two complaints in superior court seeking to appeal the grant of the permits and asserting claims of fraud and corruption against the Board and its individual members. The Morrisons prayed for $500,000 in compensatory damages and $1,000,000 in punitive damages.

The Board timely filed verified answers to the complaints. In its answers, the Board asserted no independent counterclaims, but each pleading included a “Wherefore” clause in which the Board prayed in paragraph (c) “that all costs, expenses, and reasonable attorney’s fees be awarded to [the Board] for responding to” the Morrisons’ complaints (hereinafter, the “Wherefore clauses”).

Shortly thereafter, the Morrisons’ counsel sent a letter to the Board in which he asserted that the Wherefore clauses in the Board’s answers invoked the anti-SLAPP statute, OCGA § 9-11-11.1, and claimed that the Board had improperly failed to verify its answers in compliance with OCGA § 9-11-11.1 (b). The Board responded with a letter in which it “vigorously den[ied]” that the Wherefore clauses constituted “claims” within the meaning of OCGA § 9-11-11.1 (a) and/or that they invoked the statute in any way, and set forth legal authority in support of its position. The Board nonetheless amended its answers in August 2006 to include verifications — filed “under protest” and “solely in an abundance of caution and in order to avoid unnecessary expense and undue delay in the case” — in which the Board maintained that it had not asserted “claims” and that OCGA § 9-11-11.1 had no application to its answers, but certified that the Wherefore clauses were not “interposed for any purpose, such as to suppress [the Morrisons’] right to free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.”

Also in 2006, the Board filed two separate motions to dismiss the Morrisons’ complaints, asserting, inter alia, that the Morrisons failed to present a timely and sufficient ante-litem notice and that the complaints were otherwise barred as a matter of law because: (1) they were untimely, (2) the Morrisons lacked standing to bring the claims, and (3) the damages sought (i.e., punitive damages) were not recoverable against a governmental entity. The superior court never ruled on these motions, which remain pending in that court.

For the next two years, the Morrisons engaged in vigorous litigation, including seeking the recusal of two superior-court judges, although no further express mention was made of the Wherefore clauses. Then, in May 2008, the Morrisons moved to dismiss the Board’s defensive pleadings as violative of the anti-SLAPP statute, asserting that the Board (1) filed counterclaims in its answers and (2) failed to file verifications in accordance with OCGA § 9-11-11.1 (b).

The superior court did not hold a hearing on the Morrisons’ motion until March 2010, nearly two years later. It subsequently issued two separate and nearly identical orders — dated November 22, 2010, and May 12, 2011, respectively — in which it held that the Wherefore clauses in the Board’s answers constituted counterclaims that violated the anti-SLAPP statute and dismissed the Board’s prayers for attorney fees. The superior court acknowledged in the orders that the Board had filed verifications in accordance with OCGA § 9-11-11.1 (b), but summarily concluded that the verifications were false because the “counterclaims” were neither grounded in fact nor warranted by law; that they were asserted for the improper purpose of suppressing the Morrisons’ right to petition the government for the redress of grievances; and that the Morrisons had incurred unnecessary legal expenses in defending them. The court then ruled that the Morrisons were entitled to recover attorney fees as a sanction pursuant to OCGA § 9-11-11.1 (b), and scheduled hearings to determine the amount of those fees.

During the subsequent hearings in each respective case, the Morrisons’ counsel, Glen E. Stinson, was the sole witness. Although Stinson neither produced nor tendered any billing statements, invoices, or business records, he testified that he had incurred $147,765 in fees in one case and $117,348.68 in fees in the other. Stinson further testified that, with the exception of time spent preparing and filing the complaints, “every hour” of the fees incurred during the five years of litigation was directly attributable to the Board’s Wherefore clauses.

The superior court entered two separate orders, both dated July 6, 2011, granting judgment against the Board and awarding Stinson the full amount of the fees requested in the two cases, a total award of $265,113.68, against both the Board and its counsel, to be paid instanter.

We granted the Board’s applications for interlocutory appeal to consider all four of the superior court’s rulings — the orders dated November 22, 2010, and May 12, 2011, in which the superior court held that the Wherefore clauses constituted counterclaims and violated the anti-SLAJPP statute, and the two orders dated July 6, 2011, in which the superior court sanctioned the Board for the full amount of Stinson’s fees. And while we could reverse the superior court’s rulings for any number of reasons, it is only necessary to do so on the ground that the Wherefore clauses in the Board’s answers did not constitute counterclaims.

II. Analysis

We begin by noting that Georgia’s anti-SLAPP statute was adopted in recognition “that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances.” Its purpose is to prevent a “chill[ing]” of “the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances . .. through abuse of the judicial process.”

Consequently, the General Assembly adopted a mandate that,

[fjor any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances ... in connection with an issue of public interest or concern,

the party asserting the claim and his or her attorney must file a verification in accordance with OCGA § 9-11-11.1 (b). The verification in essence certifies that the claim is well-grounded in law and fact, is not directed toward a privileged communication, and is not interposed for an improper purpose. If the court determines that a party falsely verified a claim, the party and/or his or her counsel shall be sanctioned, and the sanction may include dismissal of the claim and/or an order to pay the other party’s attorney fees.

Under well-established Georgia law, however, the Board’s prayer for relief requesting attorney fees does not, in and of itself, constitute a claim. Indeed, even had the Board intended it so, “[t]here is no law by which [a] case brought by a plaintiff can be turned into a damage suit by the defendant against the plaintiff for bringing it, while it is still pending.” Moreover, we have previously held that nothing in the anti-SLAPP statute imposes an obligation to file OCGA §9-11-11.1 (b) verifications in conjunction with purely defensive motions. And finally, the anti-SLAPP statute does not preclude a party defending a lawsuit from preserving its right to seek attorney fees and expenses if the lawsuit later is determined to lack substantial justification.

Decided July 12, 2012.

In sum, the superior court has a duty to construe “[a]ll pleadings ... as to do substantial justice.” That was not done in this case. The court’s determination that the Board’s Wherefore clauses were impermissible counterclaims constitutes plain legal error, and consequently its subsequent holdings that the “counterclaims” were falsely verified and warranted sanctions must also be reversed.

Judgment reversed.

Ellington, C. J., and Phipps, P. J., concur.

Holland & Knight, Keith M. Wiener, Allen A. Hendrick, for appellants.

Hobgood & Rutherford, Thomas T. Hobgood, GlenE. Stinson, for appellees.

       The appellant herein includes the individual members of the Board who were named parties to the original complaints filed by the Morrisons, specifically Jerry Shearin, in his official capacity as chairman of the Board; Larry Ragsdale, in his official capacity as a commissioner/member of the Board; Don Powell, in his official capacity as a commissioner/member of the Board; Hal Echols, in his official capacity as a commissioner/member of the Board; and Wayne Kirby, in his official capacity as a commissioner/member of the Board.

       See OCGA § 9-11-11.1.

       Case Numbers A12A0035 and A12A0372 govern the orders in civil action file number 06-CV-2854, which stems from the grant of zoning application 2006-35-Z. Case Numbers A12A0036 and A12A0373 govern the orders in civil action file number 06-CV-2855, which stems from the grant of zoning application 2006-29-Z.

       The certified verifications were signed by Jerry Shearin, in his official capacity as Chairman of the Board and for each individual Board member, and by the Board’s counsel.

        See OCGA § 9-11-11.1 (b) (“If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim.”).

       As of the time of this appeal, the Board’s motions to dismiss have been pending in the superior court for five years.

       The Morrisons’ motion made no mention of the verifications that the Board filed “in an abundance of caution” two years earlier in response to their letter.

        See OCGA § 9-11-11.1 (d) (“All discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to [OCGA § 9-11-11.1 (b)]. The motion shall be heard not more than 30 days after service unless the emergency matters before the court require a later hearing.”). Although the court issued a rule nisi for a hearing on all pending motions, the court heard only the Morrisons’ motion to dismiss at that time.

       The November 22, 2010 order was issued in civil action file number 06-CV-2854, and the May 12, 2011 order was issued in civil action file number 06-CV-2855.

       The superior court made this finding despite the fact that, by all accounts, the merits of the underlying lawsuits or the Board’s defenses had never been considered.

       The Board sought a certificate of immediate review to appeal the orders, but the superior court denied the request.

       Over strenuous foundational objections by the Board, Stinson testified from a summary “statement” that he created immediately prior to and for the purpose of each respective hearing.

       Stinson testified that he segregated from his total request those fees incurred solely as a result of his litigation with the developer, which was a named party to the original lawsuits but is not a party to this appeal.

        See Hagemann v. Berkman Wynhaven Assocs., 290 Ga. App. 677, 683 (660 SE2d 449) (2008) (recognizing that when awarding attorney fees as a sanction for a violation of OCGA § 9-11-11.1 (b), the court “should apportion its award to the amount attributable only to the [offending] claims”).

       Contrary to the Morrisons’ assertion, we have jurisdiction to consider all four of the superior court’s orders in these appeals. After granting the Board’s applications for interlocutory appeal of the two July 6,2011 orders pursuant to OCGA § 5-6-34 (b), we are authorized to exercise jurisdiction over the previously issued orders pursuant to OCGA § 5-6-34 (d). See E. H. Crump Co. of Ga., Inc. v. Millar, 200 Ga. App. 598, 598 (1) (409 SE2d 235) (1991).

       OCGA § 9-11-11.1 (a).

       Id.

       OCGA§ 9-11-11.1 (b) (emphasis added); see EarthResources, LLC v. Morgan County, 281 Ga. 396, 400 (4) (638 SE2d 325) (2006) (“The coverage of the anti-SLAPP statute extends to abusive litigation that seeks to chill exercise of certain First Amendment rights based upon defamation, invasion of privacy, breach of contract, and intentional interference with contractual rights and opportunities arising from speech and petition of government.” (punctuation omitted)).

        See OCGA § 9-11-11.1 (b).

        See id.; Hagemann, 290 Ga. App. at 682-83.

        See Kinzy v. Waddell, 203 Ga. 689, 692 (1) (47 SE2d 872) (1948) (“The prayer or demand for relief is no part of the [pleader’s] cause of action.” (punctuation omitted)); Acevedo v. Kim, 284 Ga. 629, 635 (669 SE2d 127) (2008) (Hines, J., dissenting) (“As a general matter, a prayer for relief is not deemed to constitute part of the cause of action.”); Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121, 128 (2) (c) (488 SE2d 500) (1997) (holding that appellees’ prayer for relief requesting punitive damages was not sufficient to create a claim for the same); see also Mitchell v. City of Atlanta, 217 Ga. 202, 205 (3) (121 SE2d 764) (1961) (holding that appellant’s prayer for abatement did not create a claim for damages or injunction upon the theory of nuisance because “[t]he sufficiency of a petition depends upon the facts pleaded, not the prayer for relief”); Holloman v. D. R. Horton, Inc., 241 Ga. App. 141, 146 (3) (524 SE2d 790) (1999) (“[T]he prayer is not an allegation in the complaint which requires an answer (OCGA § 9-11-8 (d)) and is not part of [the] cause of action.” (punctuation omitted)).

        Fender v. Ramsey & Phillips, 131 Ga. 440, 440 (2) (62 SE 527) (1908); accord Moody v. Harris, 170 Ga. App. 254, 256 (2) (316 SE2d 781) (1984).

        See Citizens for Ethics in Gov’t, LLC v. Atlanta Dev. Auth., 303 Ga. App. 724,732 (1) (694 SE2d 680) (2010) (“The [appellants] have provided no authority, and we have found none, to support their assertion that [appellees] had an obligation to provide [an OCGA] § 9-11-11.1 (b) verification of a defensive motion.”).

       See OCGA § 9-11-11.1 (e) (“Nothing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule.”); EarthResources, LLC, 281 Ga. at 400 (4) (“[T]he anti-SLAPP statute was not intended to immunize from the consequences of abusive litigation a party who has asserted a claim with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim.” (punctuation omitted)); see also OCGA § 9-15-14.

       OCGA § 9-11-8 (f).

        Page v. Braddy, 255 Ga. App. 124, 126 (564 SE2d 538) (2002) (“The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.” (punctuation omitted)).