text:
    A11A2299.
    SHEEHAN v. THE STATE.
    (723 SE2d 724)
   PHIPPS, Presiding Judge.

Renee Wise Sheehan was found guilty of criminal trespass. She appeals, contending, among other things, that the evidence was insufficient to sustain her conviction. We agree and reverse.

On appeal, [Sheehan] no longer enjoys a presumption of innocence, and we construe the evidence, and all reasonable inferences therefrom, in a light most favorable to the jury’s verdict. We neither weigh the evidence nor assess witness credibility, but merely ensure that the evidence was sufficient to enable a rational trier of fact to find each element of the crime charged beyond a reasonable doubt.

So viewed, the evidence showed that on July 15, 2008, a final judgment and decree of divorce was entered, dissolving the marriage of Sheehan and her husband. The divorce decree provided, among other things, that Sheehan was “not to be on the property of [her ex-husband]’s residence, place of employment, . . . [and] is to have no contact with [her ex-husband] . . . until further Order of the Court.” The ex-husband testified that he had given Sheehan copies of the order on multiple occasions.

The ex-husband’s employer operated a business in a small complex, consisting of a one-story suite of offices with approximately four to five other businesses. On November 11, 2008, Sheehan drove to her ex-husband’s place of employment, where he had worked as a forensic engineer for the past eighteen years. Sheehan entered the building and was told by the receptionist to wait in the lobby. But instead of complying, Sheehan rushed past the receptionist, and walked around a corner to her ex-husband’s office. Her ex-husband was shortly thereafter seen walking to his office, and after a few minutes, escorting Sheehan, who was cursing and yelling, to her vehicle outside. The ex-husband went back inside the building, and the receptionist, afraid that Sheehan might re-enter the building, went to her boss’s office. The receptionist testified that after Sheehan cursed and yelled some more and “pounded” on a glass wall from outside, the “boss” asked Sheehan to leave. At some point Sheehan drove away.

Sheehan was accused of criminal trespass for that she did “unlawfully knowingly and without authority, enter upon the land or premises of [her ex-husband’s work place] after receiving, prior to such entry, notice from the owner or rightful occupant ... in violation of OCGA § 16-7-21 (b) (2). . . ,”

OCGA § 16-7-21 (b) (2) pertinently provides that a person commits criminal trespass when he or she “[ejnters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden.” Essential to establishment by the state of the offense charged was a showing that Sheehan’s entry into the premises had previously been expressly forbidden. The statute also requires that the notice to not enter the premises be given to the accused by the owner, rightful occupant, or by an authorized representative of the owner or rightful occupant.

Here, there was no evidence that the owner, rightful occupant, or authorized representative of the owner or rightful occupant of the premises gave Sheehan prior notice to not enter the premises. The evidence was that pursuant to a divorce decree, Sheehan was prohibited from being on the property of her ex-husband’s work place until further order of the court. Under OCGA § 15-1-4 (a) (3), a court may inflict punishment for contempt of court in response to, among other things, “[disobedience or resistance by any . . . party, ... or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts.” While a court may inflict punishment for contempt, this was not a contempt of court proceeding.

Nor was there evidence that the ex-husband was the rightful occupant of the premises. We have previously acknowledged that, for purposes of issuing a criminal trespass warning, notice was sufficient when authorized or given by employees such as managers or supervisors, and some other employees (such as security officers) when it was shown that they were acting as authorized representatives of the owner, manager, or supervisor of the premises.

Decided February 23, 2012.

Andrew T. Mosley II, for appellant.

Rosanna M. Szabo, Solicitor-General, Joelle M. Nazaire, Assistant Solicitor-General, for appellee.

Sheehan argues that there was insufficient evidence that her ex-husband was an authorized representative of his employer because he was a regular employee, and not a manager. But under the accusation, as it regards the individual giving the trespass warning, the state was required to show that notice was given by the owner or rightful occupant, not an authorized representative.

In accord with the cases cited herein, the evidence failed to show that the ex-husband owned, managed, or supervised the premises, or that he was otherwise a rightful occupant. In the absence of supporting authority, we do not find, as the state would have us do, that an employee is, by virtue of the length of time he has been employed at his work place, a rightful occupant of the premises. Accordingly, because the state failed to establish beyond a reasonable doubt that Sheehan was provided prior notice by the owner or rightful occupant that her entry was forbidden, we must reverse the conviction.

Judgment reversed.

Andrews and McFadden, JJ., concur.

       OCGA § 16-7-21 (b) (2).

        Alexander v. State, 264 Ga. App. 251 (1) (590 SE2d 233) (2003) (footnotes omitted).

       Sheehan was accused of disorderly conduct, but the court granted a directed verdict as to that charge.

        Rayburn v. State, 250 Ga. 657 (2) (300 SE2d 499) (1983) (notice is an essential element of the offense of criminal trespass, and must be proven by the state beyond a reasonable doubt at trial); Osborne v. State, 290 Ga. App. 188, 189 (665 SE2d 1) (2008); Scott v. State, 130 Ga. App. 75, 78 (3) (202 SE2d 201) (1973).

       See Osborne, supra.

        Osborne, supra at 189-190 (criminal trespass conviction reversed where there was no evidence that when a police officer working security at a movie theater gave notice to the defendant to not return to the premises, he was acting as the authorized representative of the theater owner; no one from the theater testified at trial; court noted that notice given the following night however, was sufficient, when the manager had signed a criminal trespass warning forbidding the defendant from returning to the theater and the warning was served upon the defendant by a security officer); Jackson v. State, 242 Ga. App. 113, 114 (528 SE2d 864) (2000) (criminal trespass conviction reversed because there was no evidence that patrolman was acting as the authorized representative of the owner or rightful occupant of the apartment when patrolman warned defendant to stay away from the apartment); Hope v. State, 193 Ga. App. 202, 204 (1) (b) (387 SE2d 414) (1989) (criminal trespass conviction affirmed where city owned the airport and defendant argued that the police officer who prohibited his return to the airport was not the owner, rightful occupant, or authorized representative of the owner or rightful occupant; we held that a police officer, whether possessing power of arrest or not, is a representative of the city of which he is a sworn officer while protecting the property of that city and is authorized to bar him from property); Rayburn, supra at 657-658 (2) (criminal trespass conviction affirmed where security officer, as an authorized representative of the owner of a bus station, warned defendant to stay off the premises); see also W. L. N. v. State, 170 Ga. App. 689, 690 (1) (318 SE2d 80) (1984) (affirming adjudication of delinquency for violation of OCGA § 16-7-21 (b) (2) where appellant remained on premises upon being given notice by an apartment complex maintenance supervisor, as an authorized representative of the owner, to depart from the premises).

       Id.; Alexander, supra.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A11A2426.
    KEMP v. THE STATE.
    (724 SE2d 41)
   Miller, Judge.

Robert Kemp was indicted on two counts of aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)), possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b)), criminal damage to property in the second degree (OCGA § 16-7-23 (a)), obstruction of a law enforcement officer (OCGA § 16-10-24 (a)), carrying a concealed weapon (OCGA § 16-11-126 (h)), and reckless conduct (OCGA § 16-5-60 (b)). Kemp filed a motion to dismiss the indictment, alleging a violation of his constitutional right to a speedy trial. The trial court denied Kemp’s motion, and Kemp appeals. For the reasons that follow, we reverse and remand with direction.

“[W]e review the trial court’s denial of a motion to dismiss an indictment on speedy trial grounds for abuse of discretion and defer to the trial court’s findings of fact and its weighing of disputed facts.” (Citations and footnote omitted.) Grizzard v. State, 301 Ga. App. 613, 614 (688 SE2d 402) (2009).

So viewed, the evidence shows that Kemp was arrested on November 3, 2007, for charges stemming from the shooting of two individuals. Kemp was indicted on November 13, 2007, and was released on bond on November 19, 2007. On December 3, 2007, Kemp was arraigned. The State provided formal discovery on February 25, 2008, and on the same date, the case was set on the trial court’s final plea calendar. The trial court then scheduled motions hearings on April 7, 2008, and June 23, 2008, but neither Kemp nor the State appeared at either hearing. The trial court set the case on the trial calendar with notice to counsel that any pending motions would be heard at trial.

The case next appeared on the trial calendar on June 14, 2010. However, Kemp’s attorney had filed a leave of absence covering part of the June 2010 trial calendar. In July 2010, the State filed supplemental discovery and served Kemp with a witness list. That same month, Kemp filed his motion to dismiss, arguing that his constitutional right to a speedy trial had been violated.

The case was again called for trial on August 6, 2010, at which time one of Kemp’s attorneys requested that the pending motions, including his motion to dismiss, be addressed before trial. Although the case next appeared on the October 18, 2010, trial calendar, it was not called, and Kemp’s counsel had filed a leave of absence for much of that calendar.

In November 2010, the State reindicted Kemp on the same original charges, plus the charge of aggravated battery (OCGA § 16-5-24). The case was ultimately called on December 2, 2010, to resolve Kemp’s speedy trial claim. The hearing was continued on January 31, 2011, to allow the presentation of additional testimony. On April 4, 2011, the trial court denied Kemp’s motion. This appeal followed.

When considering a motion to dismiss on speedy trial grounds, the trial court must conduct a two-part test as set forth in the United States Supreme Court decisions in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). See Stewart v. State, 310 Ga. App. 551, 552-553 (713 SE2d 708) (2011).

The first stage requires a determination of whether the interval from the defendant’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” Where the delay is only ordinary, rather than presumptively prejudicial, the defendant’s speedy trial claim fails at the threshold. A delay that is deemed to be presumptively prejudicial, however, triggers the second stage of the analysis. At this second stage, a court must determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers the conduct of both the State and the defendant (i.e., the Barker-Doggett factors): (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.

(Citations and punctuation omitted.) Stewart, supra, 310 Ga. App. at 552-553.

1. Presumptive Prejudice. “Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” (Citation and punctuation omitted.) Stewart, supra, 310 Ga. App. at 553 (1). Here, the trial court incorrectly determined that the delay was approximately 31 months, starting from the date Kemp was indicted on November 13, 2007, and ending on the date the court called the case to trial on June 14, 2010. The relevant interval, however, was the period between Kemp’s arrest on November 3, 2007, and the trial court’s April 4, 2011, denial of his motion to dismiss. See Stewart, supra, 310 Ga. App. at 553 (1) (concluding that the relevant interval was the time that elapsed between the defendant’s arrest and the trial court’s denial of the defendant’s motion to dismiss). Consequently, the actual delay was 41 months.

In addition to inaccurately calculating the length of the delay, the trial court erred by failing to consider whether this delay was presumptively prejudicial. The 41-month delay in this case is presumptively prejudicial. See Hayes v. State, 298 Ga. App. 338, 340 (1) (680 SE2d 182) (2009) (a pretrial delay exceeding 12 months is presumptively prejudicial). Therefore, we will proceed to review the trial court’s findings with respect to the second stage of the Barker-Doggett analysis.

2. Barker-Doggett Analysis

(a) Whether the Delay was Uncommonly Long.

It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. This is because uncommonly long delays have a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify. As a result, the weight accorded the other factors in the balancing test depends, to a large degree, on the length of the delay.

(Citations and punctuation omitted.) Hayes, supra, 298 Ga. App. at 341 (2) (a).

As described in Division 1, the trial court erred by failing to accurately determine the length of the delay. See Hayes, supra, 298 Ga. App. at 341 (2) (a). Significantly, there is nothing in the trial court’s order indicating that it considered whether the pretrial delay was uncommonly long given the circumstances of the case. “To the extent the trial court overlooked this factor in the four-factor balancing process, it erred.” Ruffin v. State, 284 Ga. 52, 59 (2) (b) (i) (663 SE2d 189) (2008); Teasley v. State, 307 Ga. App. 153, 157 (1) (704 SE2d 248) (2010).

(b) Reasons and Responsibility for the Delay. To determine the reasons for the delay, we are required to “assign various degrees of weight to the different reasons provided by the prosecution and the defense respectively.” (Citations and punctuation omitted.) Teasley, supra, 307 Ga. App. at 158 (2) (b). For instance,

[djeliberate delay to hamper the defense weighs heavily against the prosecution. More neutral reasons such as negligence or overcrowded courts weigh less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.
In contrast, delay caused by the defense weighs against the defendant: If delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine. That rule accords with the reality that defendants may have incentives to employ delay as a defense tactic: delay may work to the accused’s advantage because witnesses may become unavailable or their memories may fade over time.

(Citations and punctuation omitted.) Vermont v. Brillon, 556 U. S. 81, 90 (II) (129 SC 1283, 173 LE2d 231) (2009). “Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” (Citations omitted.) State v. Reimers, 310 Ga. App. 887, 889 (2) (b) (714 SE2d 417) (2011).

Here, the trial court found Kemp and the State were each partly responsible for the circumstances that caused the delay, but it erred by weighing this factor more heavily against Kemp. In particular, the trial court concluded that the eight-month delay between Kemp’s arrest on November 3, 2007, and June 23, 2008, was directly attributable to Kemp, since defense counsel failed to appear for the hearings scheduled to resolve certain pretrial motions. While delay caused by defense counsel can be charged against Kemp, see Brillon, supra, 556 U. S. at 89-90 (II), the amount of time that elapsed because of defense counsel’s failure to appear amounted to a three-month interval, starting in April 2008 and ending in June 2008. The record does not support a finding that Kemp was responsible for any delay between Kemp’s November 2007 arrest and April 2008, as he was not arraigned until December 3, 2007, and the State did not provide discovery until February 25, 2008.

With respect to the two-year delay between June 2008 and June 2010, the trial court explained that it was necessitated by the trial court’s calendar, was unintentional, and would be weighed against the.State. The trial court also weighed this two-year delay against Kemp, because he failed to contact the court to schedule a hearing to resolve his motions or to put the case on the trial calendar. However, the record shows that the trial court notified the parties that it would not schedule another motions hearing and, instead, would resolve all motions at trial. Moreover, “the primary burden is on the prosecutor and the court — not the defendant — to bring the case to trial[.]” (Citation, punctuation and emphasis omitted.) Hester v. State, 268 Ga. App. 94, 97 (2) (601 SE2d 456) (2004); see also Ward v. State, 311 Ga. App. 425, 429 (3) (715 SE2d 818) (2011) (holding that the government is responsible for bringing a defendant promptly to trial, and this “includes all state actors, even trial and appellate court judges”) (citation and punctuation omitted). Additionally, both the record and the trial court’s order reflected that part of the reason for the two-year period of inactivity was that the trial court gave priority to cases involving incarcerated individuals. “[W]here ‘jail cases’ are given priority over ‘bond cases,’ the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” (Citation and punctuation omitted.) Lambert v. State, 302 Ga. App. 573, 575-576 (2) (692 SE2d 15) (2010).

As for the remaining delay, the trial court attributed most of it to Kemp because defense counsel failed to appear at the June 2010 trial calendar, failed to announce ready at the August 2010 trial calendar, and filed leaves of absences for much of the November and December 2010 calendars. The trial court’s order, however, stated that most of the August and September 2010 trial calendars were unavailable because of other criminal trials and the need to try cases with defendants who were in custody. The trial court also stated that the case was not reached at the October 2010 calendar, because of an ongoing trial and the pending motion to dismiss in this case. The delay caused by the trial court’s overcrowded docket and decision to prioritize “jail cases” over Kemp’s case was attributable to the State, not Kemp. See Lambert, supra, 302 Ga. App. at 575-576 (2); Teasley, supra, 307 Ga. App. at 160 (2) (b) (unintentional delays caused by overcrowded court dockets are weighed against the State).

Given that the record shows that the State, rather than Kemp, was primarily responsible for the delay in this case, the trial court erred by weighing the reason for the delay factor heavily against Kemp.

(c) Assertion of the Right. Since the defendant may benefit by delaying a trial, the defendant bears the responsibility for asserting his right to a speedy trial. See State v. Moses, 301 Ga. App. 315, 319 (2) (c) (692 SE2d 1) (2009). An extended delay in asserting this right should be weighed heavily against the defendant. See, e.g., State v. Porter, 288 Ga. 524, 529 (2) (c) (3) (705 SE2d 636) (2011); Frazier v. State, 277 Ga. App. 881, 882 (c) (627 SE2d 894) (2006). Indeed, “[t]he failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (Citation and punctuation omitted.) Frazier, supra, 277 Ga. App. at 882 (c). “This factor weighs especially strongly against a defendant where he has been represented by counsel since soon after his arrest but does not assert his right to a speedy trial until just before trial.” (Citation omitted.) Howard v. State, 307 Ga. App. 822, 827 (2) (c) (706 SE2d 163) (2011).

Here, Kemp secured counsel shortly after his arrest on November 3, 2007. He did not, however, assert his right to a speedy trial until he filed his motion to dismiss in July 2010, a period of approximately 32 months. The trial court found that the extended delay was a factor to be weighed heavily against Kemp, and we conclude that the trial court did not err in this respect. See Howard, supra, 307 Ga. App. at 827 (2) (c); Green v. State, 295 Ga. App. 468, 470 (4) (672 SE2d 414) (2008) (holding that the trial court did not err in heavily weighing against the defendant his near three-year delay in asserting speedy trial right against him).

(d) Prejudice to the Defendant. In evaluating the final Barker-Doggett factor, we consider three types of prejudice normally associated with an unreasonable delay before trial: oppressive pretrial detention; anxiety and concern of the accused; and the possiblity that the accused’s defense will be impaired. Porter, supra, 288 Ga. at 529 (2) (c) (4). Of these three types of prejudice, the last is the most serious because the inability of the defendant to adequately prepare his defense affects the fairness of the justice system. Id.

Before addressing the three specific types of prejudice, however, we first consider Kemp’s contention that this case gives rise to a presumption of actual prejudice. As discussed above in Division 1, the 41-month delay in this case was presumptively prejudicial. Once established, the presumption of prejudice always exists, although it increases in weight over time. Stewart, supra, 310 Ga. App. at 558 (2) (d). Nevertheless, a finding of presumptive prejudice cannot alone carry Kemp’s speedy trial claim without regard to the other Barker-Doggett criteria. See id.

Beyond the presumptive prejudice that arose in this case, however, and as the trial court found, Kemp made no showing of any prejudice otherwise. Indeed, the record reflects no oppressive pretrial incarceration, because Kemp was out on bond for much of the four-year delay. See Green, 295 Ga. App. at 471 (6). Further, Kemp made no showing of anxiety and concern arising out of the delay, especially since he chose not to alleviate any anxiety or concern during the time he was out on bond. See id. Additionally, Kemp presented no evidence that his defense was impaired by the delay. Consequently, although a presumption of prejudice arose with the significant delay in this case, Kemp failed to substantiate this presumption with any evidence of actual prejudice. Accordingly, we conclude that the trial court properly weighed this factor heavily against Kemp. Stewart, supra, 310 Ga. App. at 561 (2) (e); cf. Falagian v. State, 300 Ga. App. 187, 190 (1) (d) (684 SE2d 340) (2009) (defendant’s conclusory statements were insufficient to show prejudice and this factor weighed heavily against the defendant).

(e) Barker-Doggett Balancing Test. “A trial court exercises substantial discretion in applying the Barker[-Doggett\ balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” (Citation omitted.) Porter, supra, 288 Ga. at 533 (2) (e). Nevertheless, “where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” (Citation and punctuation omitted.) Id.

Decided February 23, 2012.

Kimberly H. Cornwell, Bruce S. Harvey, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Here, the trial court’s order contains significant factual and legal errors. Notably, the trial court failed to accurately determine the length of the delay. It also failed to consider whether this delay was presumptively prejudicial as a threshold matter, or uncommonly long as the first of the Barker-Doggett factors. Further, it erred by weighing the reason for delay heavily against Kemp, when the record shows that the State was mostly responsible for the delay.

Based on these errors, the trial court could not properly balance the Barker-Doggett factors, and the trial court’s order must be vacated and the case remanded “for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.” (Citations omitted.) Porter, supra, 288 Ga. at 534 (2) (e); see also Reimers, supra, 310 Ga. App. at 893 (3). Accordingly, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion.

Judgment reversed and case remanded.

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


author: Blackwell, Judge.

text:
    A11A1588.
    MARTIN v. HAMILTON STATE BANK.
    (723 SE2d 726)
   Blackwell, Judge.

Bartow County Bank loaned more than $2.7 million to Larry Martin, and Martin gave four promissory notes to the Bank in connection with these loans. When Martin failed to make several payments required under the terms of these notes, the Bank declared a default for nonpayment and accelerated the debt due under the notes. Martin and the Bank then discussed whether the indebtedness might be restructured, but they were unable to come to an agreement, and the Bank later sued Martin on the four notes. The court below entered summary judgment for the Bank, and Martin appeals, contending that the Bank breached the implied duty of good faith and fair dealing when it declared a default and refused to restructure his debt. Martin also argues that the court below should have permitted him to take discovery on the question of good faith before entering summary judgment. We see no error and affirm.

Generally speaking, “every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” Hunting Aircraft, Inc. v. Peachtree City Airport Auth., 281 Ga. App. 450, 451 (1) (636 SE2d 139) (2006) (citation and punctuation omitted). But “[t]here can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do.” Automatic Sprinkler Corp. of America v. Anderson, 243 Ga. 867, 868 (257 SE2d 283) (1979). See also Marathon U. S. Realties v. Kalb, 244 Ga. 390, 392 (260 SE2d 85) (1979); Cox v. Athens Regional Med. Center, 279 Ga. App. 586, 591 (1) (b) (631 SE2d 792) (2006); Nobel Lodging, Inc. v. Holiday Hospitality Franchising, Inc., 249 Ga. App. 497, 500 (3) (548 SE2d 481) (2001); Williams v. South Central Farm Credit, 215 Ga. App. 740, 741 (2) (452 SE2d 148) (1994). Put another way:

Firms that have negotiated contracts are entitled to enforce them to the letter, even to the great discomfort of their trading partners, without being mulcted for lack of “good faith.” Although courts often refer to the obligation of good faith that exists in every contractual relation, this is not an invitation to the court to decide whether one party ought to have exercised privileges expressly reserved in the document. “Good faith” is a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties. When the contract is silent, principles of good faith ... fill the gap. They do not block use of terms that actually appear in the contract.

Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F2d 1351, 1357 (III) (7th Cir. 1990) (citations omitted). See also Westinghouse Credit Corp. v. Hall, 144 Bankr. Rep. 568, 576 (II) (S.D. Ga. 1992). Consistent with this principle, we recently held that, when a debt instrument explicitly confirms the right of the creditor to pursue one or more specified remedies for default, the creditor owes no duty to the debtor to pursue any particular remedy and may pursue whatever contractual remedy it chooses. See REL Development, Inc. v. Branch Banking & Trust Co., 305 Ga. App. 429, 431-432 (1) (699 SE2d 779) (2010) (lender was not required to pursue foreclosure before commencing suit to collect indebtedness).

In this case, the occurrence of default is undisputed. In the event of default, the notes expressly authorize the Bank to demand immediate payment of the entire amount owed under the notes and to pursue its legal remedies, among other things. And the notes explicitly provide that, if the Bank elects to pursue a specific remedy, it does not thereby waive its right to pursue other remedies. The express terms of the note identify the remedies available to the Bank in the event of a default, and the Bank was entitled to choose whichever remedy it preferred. So, although the. Bank was perfectly free to negotiate an agreement to restructure the debt that Martin owed if it wished, it also was free to forego restructuring and instead declare default, accelerate the debt, and pursue collection of the debt in court.

When the Bank filed its motion for summary judgment, Martin sought discovery from the Bank, in hopes of finding evidence of its “motivation” in declaring a default and ultimately refusing to restructure his debt. And when the Bank refused to produce all of the discovery he requested, Martin moved to compel discovery and moved for a continuance of the motion for summary judgment. The court effectively denied both motions, finding that the “motivation” of the Bank was immaterial because Martin could not properly contend that the decision to declare a default and pursue collection of the debt amounts to a breach of the duty of good faith and fair dealing. About this, the court was exactly right, and the denial of the motion to compel discovery and the motion for a continuance was, therefore, no abuse of discretion. See Pointer v. Roberts, 288 Ga. 150, 152 (702 SE2d 130) (2010) (“[t]he trial court’s discretion in granting or refusing a continuance will not be interfered with by the appellate courts unless it clearly appears that the judge abused his discretion”) (citation and punctuation omitted); McMillian v. McMillian, 310 Ga. App. 735, 737 (713 SE2d 920) (2011) (“[a]s a general rule, we review the denial of a motion to compel discovery only for an abuse of discretion”) (citation omitted). And because the notes explicitly authorized the Bank to declare a default, accelerate the debt, and sue to collect it, the court below properly entered summary judgment for the Bank. Accordingly, we affirm the judgment below.

Decided February 24, 2012

Smith, Shaw & Maddox, Virginia B. Harman, Jackson B. Harris, for appellant.

Edward Hine, Jr., for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       After the notice of appeal was filed below, the assets of Bartow County Bank apparently were assigned to Hamilton State Bank, and we allowed Hamilton State Bank to substitute as a party for Bartow County Bank. Because it is unnecessary to distinguish between Bartow County Bank and Hamilton State Bank for the purposes of this appeal, however, we simply refer in our opinion to the “Bank,” meaning Bartow County Bank as the predecessor-in-interest of Hamilton State Bank.

       It is undisputed that Martin failed to make required payments on three of the notes, which amounts to a default on those notes. Although Martin apparently was current on his payments on the fourth note, the fourth note contains a cross-default provision, under which a default on any other note that Martin had given to the Bank also amounts to a default on the fourth note.

       The Georgia Commercial Code recognizes an implied duty of good faith in the performance and enforcement of contracts within its scope, see OCGA § 11-1-203, but this duty is implied only with respect to matters “not regulated by the contract.” Fulton Nat. Bank v. Willis Denney Ford, Inc., 154 Ga. App. 846, 848-849 (269 SE2d 916) (1980).

       Although Martin does not dispute the occurrence of default, he says that the Bank waived his default by accepting partial payments after its declaration of default. We have held before, however, that the mere acceptance of partial payments after a declaration of default and acceleration of a debt “does not amount to a waiver of the prior default or undo the maturity of the remainder of the indebtedness.” Chapman u. Nation, 193 Ga. App. 632, 634 (2) (388 SE2d 744) (1989) (citation omitted).

       Martin points to our decisions in Fulton v. Anchor Savings Bank, 215 Ga. App. 456 (452 SE2d 208) (1994), and Crosson v. Lancaster, 207 Ga. App. 404 (427 SE2d 864) (1993), in support of his contention that the implied duty of good faith attaches to a decision to declare a default. Those decisions are, however, distinguishable because they involved a lender accelerating a debt based on the lender having deemed itself insecure, not accelerating a debt based on a default for nonpayment. See Fulton, 215 Ga. App. at 467 (4); Crosson, 207 Ga. App. at 405 (4). Under OCGA § 11-1-208, “[a] term providing that one party . . . may accelerate payment or performance or require collateral or additional collateral ‘at will’ or ‘when he deems himself insecure’ or in words of similar import” implies an obligation to exercise the power to do so only in good faith. But in this case, the Bank did not exercise any power at will, or based on a determination that it was insecure, to accelerate payment. Its authority to declare a default and accelerate the debt was triggered instead by the occurrence of default for nonpayment, an occurrence that is, as we have said, undisputed. OCGA § 11-1-208 simply has no application in this case.


text:
    A11A1716.
    NDLOVU v. PHAM et al.
    (723 SE2d 729)
   Blackwell, Judge.

In a medical malpractice case, when the plaintiff files her complaint, she also must file an affidavit, in which a competent expert sets out the basis for her allegation of malpractice. See OCGA § 9-11-9.1 (a). If the plaintiff files an expert affidavit that is inadequate for some reason, the defendant can move to dismiss the case, but OCGA § 9-11-9.1 (e) says that dismissal is warranted in such a case only if the motion identifies “with specificity” the respects in which the affidavit is inadequate, and only if the plaintiff fails within 30 days to cure these inadequacies by amendment. The question presented in this case is whether a court properly can dismiss a case for an inadequacy about which the defendant says nothing in his motion to dismiss, but about which the plaintiff otherwise arguably has some notice, or whether OCGA § 9-11-9.1 (e) instead means what it says about the defendant having to identify an inadequacy “with specificity” in his motion. We conclude that OCGA § 9-11-9.1 (e) is clear and unambiguous, and the statute, therefore, means exactly what it says.

Sniobuhle Ndlovu sued Dr. Robert Pham and Dr. Rumm Morag for malpractice, and she filed expert affidavits with her complaint. Dr. Pham and Dr. Morag moved to dismiss the case, arguing, among other things, that the affidavits were inadequate, and the court below eventually granted the motion. The court did not, however, dismiss the case for any inadequacy identified in the motion to dismiss “with specificity.” Instead, the court dismissed the case for another perceived inadequacy, one about which the motion to dismiss says nothing. This was error, and we reverse the judgment below and remand for further proceedings consistent with this opinion.

When an appeal is taken from a ‘dismissal under OCGA § 9-11-9.1, our review is de novo, and we view the pleadings in the light most favorable to the plaintiff, resolving any doubts in her favor. Estate of Shannon v. Ahmed, 304 Ga. App. 380, 380 (696 SE2d 408) (2010). In this case, Ndlovu sought treatment in the emergency room at Grady Memorial Hospital in April 2006. Ndlovu alleges that Dr. Morag, an emergency room physician, treated Ndlovu in the emergency room, and Dr. Pham, a radiologist, later reviewed x-ray images of her injuries, although apparently only after Ndlovu was discharged from the emergency room. Ndlovu contends that Dr. Pham and Dr. Morag failed to diagnose a fracture of her thoracic spine and that their failure to diagnose amounts to malpractice.

Ndlovu originally sued Dr. Pham and Dr. Morag in Fulton County, and when she filed her complaint there in April 2008, she also filed two affidavits — one with respect to Dr. Pham, the other with respect to Dr. Morag — in which a physician opined that Dr. Pham and Dr. Morag were negligent in their treatment of Ndlovu. These affidavits speak in terms of ordinary negligence, and they say nothing about gross negligence. Dr. Pham and Dr. Morag apparently moved to dismiss the case, but before the Fulton County court ruled on the motion to dismiss, Ndlovu voluntarily dismissed her case without prejudice. She later renewed her case in Cobb County, and when she filed her complaint there in July 2009, she filed the same affidavits she previously had filed in Fulton County.

Once again, Dr. Pham and Dr. Morag moved to dismiss, and they asserted that the case should be dismissed for, among other things, want of an adequate affidavit. The affidavits that Ndlovu filed with her complaint were inadequate, Dr. Pham and Dr. Morag argued in their motion, because the physician who made the affidavits is not competent to offer expert testimony about the treatment at issue, because the affidavits fail to identify a specific act or omission that forms the basis for the claim of malpractice, and because Ndlovu filed only a photocopy of these affidavits, rather than the originals. Dr. Pham and Dr. Morag said nothing in their motion to dismiss about the fact that the affidavits speak in terms of ordinary negligence, rather than gross negligence.

Dr. Pham and Dr. Morag also contended in their motion to dismiss that the statute of limitation had run, and in connection with this contention, they referred to gross negligence. They first acknowledged that Ndlovu filed her original complaint in Fulton County a few days before the statute would have run, and they did not dispute that she filed her renewed complaint in Cobb County within six months of her voluntary dismissal of the Fulton County case. Under OCGA § 9-2-61 (a), of course, “[w]hen any case has been commenced . . . within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced . . . within six months after the discontinuance or dismissal.” Nevertheless, Ndlovu could not properly renew her case under OCGA § 9-2-61 (a), Dr. Pham and Dr. Morag argued, because her original complaint in Fulton County was “void.” One of the reasons it was “void,” they explained, is that Ndlovu failed in her Fulton County complaint “to plead the applicable standard of care,” and they referred to OCGA § 51-1-29.5, which requires proof of gross negligence to make out “a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department.” Although Dr. Pham and Dr. Morag complained in their motion to dismiss about the failure to plead the proper standard of care in the Fulton County complaint, they said nothing about the failure to mention the proper standard of care in any affidavit.

The motion to dismiss was filed in August 2009, and Ndlovu timely filed a brief in opposition to the motion. In October 2009, Dr. Pham and Dr. Morag filed a reply brief in support of the motion, and in that brief, they argued for the first time that expert affidavits were inadequate because they say nothing of gross negligence, although their argument appears to relate mostly, if not exclusively, to the adequacy of the affidavits filed in the Fulton County case, not those filed in Cobb County. On the same day the reply brief was filed, the court below set a hearing for December 14, 2009 on the motion to dismiss. At that December hearing, the court pointedly asked the lawyer for Ndlovu whether the affidavits say anything about gross negligence, and the lawyer conceded that they do not. On January 4, 2010, Ndlovu filed an amended complaint and a new affidavit, in which a physician opined that Dr. Pham “grossly failed to exercise the degree of care and skill exercised by members of the medical profession under the same or similar circumstances” and that Dr. Morag “grossly breached the standard of care.” This new affidavit was filed, of course, within 30 days of the hearing on the motion to dismiss, but more than 30 days after the motion was filed.

The court below initially denied the motion to dismiss, finding that the filing of the amended complaint and the new affidavit in January 2010 cured any failure with respect to pleading gross negligence. The court did not, however, explicitly address the timeliness of the new affidavit in its order denying the motion to dismiss. Dr. Pham and Dr. Morag subsequently moved the court to reconsider its denial of the motion to dismiss, and they argued, among other things, that Ndlovu failed to amend her affidavit within 30 days of the filing of their motion to dismiss, as OCGA § 9-11-9.1 (e) requires. Ndlovu responded that Dr. Pham and Dr. Morag “never specifically indicated [in their motion to dismiss] that [her] affidavits were defective because of failure to plead gross negligence.” The court below granted the motion for reconsideration, and it dismissed the case, finding that Ndlovu was required to file an expert affidavit averring gross negligence, that she did not do so until January 2010, more than four months after the motion to dismiss was filed, and that her filing of the new affidavit in January 2010 was untimely under OCGA § 9-11-9.1 (e). The court made no explicit findings about whether the motion to dismiss alleged “with specificity” that any affidavits were inadequate because they say nothing about gross negligence. Ndlovu appeals from the dismissal of her case.

Ndlovu contends that the dismissal of her case was error because Dr. Pham and Dr. Morag failed to allege “with specificity” in their motion to dismiss that the affidavits filed with her Cobb County complaint were inadequate because they say nothing of gross negligence, and we agree. When a plaintiff in a medical malpractice case has, in fact, filed an expert affidavit with her complaint, but the affidavit is inadequate in some respect, OCGA § 9-11-9.1 (e) governs the procedure by which the case can be dismissed for want of an adequate affidavit. The statute quite clearly, we think, permits dismissal only when the plaintiff fails to cure an inadequacy within 30 days of the filing of a motion to dismiss that identifies the same inadequacy “with specificity”:

If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiffs complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective.

OCGA § 9-11-9.1 (e). “When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant,” Clark v. Rush, 312 Ga. App. 333, 336 (2) (718 SE2d 555) (2011) (citation omitted), so, “[w]hen a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.” Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). See also Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946) (“[Appellate courts] must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning.”). As we already have explained, the motion to dismiss says nothing at all about the failure of any affidavit to aver gross negligence. The inadequacy for which the court below dismissed the case is not one identified “with specificity” in the motion to dismiss, and the dismissal of the case, therefore, was error. See Tucker v. Thomas C. Talley, M.D., EC., 267 Ga. App. 820, 822 (1) (600 SE2d 778) (2004) (“As Talley and LLC did not object with specificity to the Johnson affidavit, they were not entitled to a dismissal for failure to state a claim on account of a failure to comply with OCGA § 9-11-9.1.”).

Dr. Pham and Dr. Morag insist, however, that Ndlovu had plenty of notice that the affidavits filed with her Cobb County complaint were inadequate because the affidavits say nothing of gross negligence, and as proof that Ndlovu had such notice, they point to the motion to dismiss filed in the Fulton County case, as well as the argument in their Cobb County motion that the Fulton County case was “void” because it alleged ordinary negligence, not gross negligence. About the Fulton County motion to dismiss, we note 'that it appears nowhere in the record, so we do not know what it says. And about the argument in the Cobb County motion to dismiss about the Fulton County case having been “void,” we note that this argument concerns only the adequacy of the Fulton County complaint, not the adequacy of any affidavits. Perhaps Ndlovu or her lawyer might have read between the lines of the motion, inferred that an argument about pleading requirements also was meant to pertain to the requirements for an affidavit under OCGA § 9-11-9.1, and figured out, as a result, that Dr. Pham and Dr. Morag, though they never said so, really meant to complain about the failure of affidavits to speak of gross negligence. But even if we were to assume that Ndlovu or her lawyer could have, and should have, figured out what Dr. Pham and Dr. Morag intended to argue, it would not solve a more fundamental problem with the dismissal below, namely that notice of an inadequacy, even if Ndlovu had such notice, is entirely beside the point.

If the General Assembly had intended that mere notice of an inadequacy form a sufficient basis for dismissal, surely it would have said so. It did not. About this, OCGA § 9-11-9.1 (e) is perfectly clear, and it says that dismissal is warranted if the plaintiff fails within 30 days to cure “the alleged defect,” meaning the defect that is “allege[d], with specificity, by motion to dismiss.” The question, then, is not whether a plaintiff has notice of an inadequacy, but rather, whether the inadequacy is “ allege [d], with specificity, by motion to dismiss.” OCGA § 9-11-9.1 (e). And to ascertain whether something is “alleged, with specificity, by motion to dismiss,” we need look no further than the motion to dismiss itself.

Decided February 24, 2012.

Kimberly F. Bandoh, for appellant.

James C. West III, Gailya L. McElroy, for appellees.

It was error to dismiss this case for an alleged inadequacy in an affidavit that Dr. Pham and Dr. Morag failed to identify “with specificity” in their motion to dismiss. Accordingly, we reverse the judgment below and remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Barnes, P. J., and Adams, J., concur.

       More specifically, the affidavit must “set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a).

       Although the plaintiff ordinarily has only 30 days after the filing of the motion to cure any inadequacies identified in the motion, “[t]he trial court may, in the exercise of its discretion, extend the time for filing said amendment... as it shall determine justice requires.” OCGA § 9-11-9.1 (e).

       The court originally denied the motion, but Dr. Pham and Dr. Morag moved the court to reconsider, and it did. On reconsideration, the court granted the motion to dismiss.

       The motion to dismiss in Fulton County appears nowhere in the record, so we do not know exactly what grounds for dismissal were asserted in that motion.

       The originals apparently were filed in the Fulton County case, and Ndlovu filed only a photocopy of these originals in Cobb County.

       Besides the alleged inadequacy of the affidavits and the statute of limitation, Dr. Pham and Dr. Morag also moved to dismiss the case for a failure to perfect service upon Dr. Morag and a failure to pay the required filing fees. The court below did not, however, rely upon either of these grounds for dismissal, and they have no relevance to this appeal.

       Dr. Pham and Dr. Morag actually cited “OCGA § 51-2-29,” but we are willing in this case to assume that Ndlovu should have figured out that they meant to cite OCGA § 51-1-29 and the sections that follow it, inasmuch as there is no “OCGA § 51-2-29.”

       Ndlovu argues on appeal that she is not required to plead or prove gross negligence on the part of Dr. Pham because he is only alleged to have reviewed images of her injuries after she was discharged from the emergency room, and in this respect, she may be right. Although gross negligence is required “[i]n an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department,” OCGA § 51-1-29.5 (c), “emergency medical care” does not include “medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient.” OCGA § 51-1-29.5 (a) (5). Nevertheless, we do not decide whether gross negligence is required as to Dr. Pham in this case because, whether it is or not, the dismissal for failure of the affidavits to speak of gross negligence was error in any event.

       For this reason, that Dr. Pham and Dr. Morag specifically argued in their reply brief about the failure of affidavits to speak in terms of gross negligence does not save the dismissal of the case below. Even assuming that this argument relates to the affidavits filed in Cobb County and not just the affidavits filed in Fulton County, an argument advanced in a reply brief is not one made “with specificity, by motion.” Most lawyers understand that briefs and motions are different creatures, and we do not think it appropriate to construe the reply brief here — in which Dr. Pham and Dr. Morag ask for no relief other than the grant of the motion to dismiss they previously had filed, and in which they do not even disclose that they are raising a new argument — as a brand new motion to dismiss, the filing of which would have triggered the running of a period of 30 days in which Ndlovu might have cured an inadequacy of her affidavits. To require a lawyer to treat a brief filed in support of a motion as a brand new motion would lead to tremendous inefficiencies, and in any event, would be inconsistent with the statutory requirement that “[a]n application to the court for an order shall be by motion,” OCGA § 9-11-7 (b) (1), a requirement that suggests, consistent with the understanding of most lawyers, that motions and other papers filed with a court are different in kind.


text:
    A11A1853.
    BRANDT v. THE STATE.
    (723 SE2d 733)
   Blackwell, Judge.

Ryan Brandt and William Kollie were tried by a Gwinnett County jury and convicted of crimes arising from a home invasion and two restaurant robberies. They previously appealed their convictions, and as to Brandt, we vacated the denial of his motion to suppress and remanded for reconsideration of that motion in light of Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009), a decision that came down while the appeal was pending. See Kollie v. State, 301 Ga. App. 534, 547 (15) (687 SE2d 869) (2009). On remand, the court below again denied the motion to suppress, and Brandt appeals for a second time. Finding no error in the denial of the motion to suppress, we affirm.

When we review the denial of a motion to suppress, we owe no deference to the way in which the court below resolved questions of law, Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011), but we accept its findings about questions of fact and credibility unless clearly erroneous, and we view the evidence in the light most favorable to its findings and judgment. Culpepper v. State, 312 Ga. App. 115, 115-116 (717 SE2d 698) (2011). So viewed, the evidence in this case shows that, early on the morning of November 4, 2005, Gwinnett County police officers were advised by radio that an Applebee’s restaurant, located on Ronald Reagan Parkway in Snellville, had just been robbed and that Snellville police officers were responding to the armed robbery. One Gwinnett Couñty officer, who happened to be patrolling Ronald Reagan Parkway when he heard the dispatch, started to drive toward the restaurant, thinking that perhaps he could be of help to the Snellville officers. As this officer drove along Ronald Reagan Parkway, he passed a second Gwinnett County officer, who was parked on the opposite side of the road. A few moments later, the first officer met a black truck, which was occupied by two men, later identified as Kollie and Brandt, and was traveling away from the location of the restaurant at a high rate of speed. The first officer slowed and put a spotlight on the truck, and as the truck passed him, it suddenly accelerated. The first officer turned around and attempted to catch up to the truck, and as he did so, the truck passed the second officer, who also noted that the truck was traveling at a high rate of speed and observed the driver momentarily lose control of the truck.

The second officer stopped the truck, and the first officer arrived a few moments later at the scene of the stop. As the second officer approached the truck on foot and obtained the license of Kollie, the driver, the officers began to overhear additional radio dispatches about the armed robbery of the restaurant. According to these dispatches, two black men, one wearing a white shirt and black jeans, the other wearing a light-colored shirt and a red bandana on his head, had robbed the restaurant and were believed to be driving a black, Harley-Davidson edition, Ford pickup truck. The officers realized that the truck they had stopped and its occupants matched exactly the descriptions contained in the radio dispatches, and at first, they decided to await the arrival of additional officers before doing anything else. But before anyone else arrived, the officers observed Brandt moving frantically about the cab of the truck, reaching repeatedly toward the center console and looking over his shoulder at the officers.

To keep the scene safe, the officers decided at that point to remove the occupants from the truck and secure them. With their weapons drawn, the officers instructed Kollie to exit the truck, and when he did so, the officers handcuffed him and put him in the back of a patrol car. The officers then directed Brandt to exit the truck, and although he initially failed to comply, he eventually exited the truck as well, was handcuffed, and was put into the second patrol car. After Kollie and Brandt were secured, the first officer approached the truck again to ensure that no one else was inside. As he did so, he saw several liquor bottles in the bed of the truck, the contents of which had spilled into the bed. And when he looked into the cab of the truck, he saw two firearms in plain view, one in the center console, the other on the floor, as well as some money bags. The first officer retrieved and secured the firearms that he saw in plain view, but he did not undertake a more thorough search of the truck at that time. Some Snellville officers arrived soon thereafter, and they impounded the truck and eventually searched the truck thoroughly, discovering additional evidence that implicated Kollie and Brandt in the Applebee’s robbery, another restaurant robbery, and a home invasion. The Snellville officers also brought an eyewitness to the scene of the stop, where the eyewitness identified Kollie and Brandt as the robbers of the Applebee’s restaurant. Before trial, Brandt moved to suppress the evidence recovered from the truck, contending that the officers lacked probable cause to arrest him and that the search was not, therefore, incident to a lawful arrest.

Like the court below, we conclude that the search of the truck was a reasonable one. When the Gwinnett County officers first stopped the truck, they had probable cause to believe that the driver had committed a violation of the traffic laws, and for this reason, they had cause to stop it. See Whren v. United States, 517 U. S. 806, 810 (II) (116 SC 1769, 135 LE2d 89) (1996). After they stopped the truck and heard the additional radio dispatches about the restaurant robbery, they also had objective and particularized reasons to suspect that the occupants of the truck might be armed robbers. See, e.g., Boone v. State, 282 Ga. App. 67, 70 (2) (637 SE2d 795) (2006) (radio dispatch concerning truck in which armed robbers had been seen, which described “the truck’s color, number of occupants, road of travel, and direction of travel,” gave officer reasonable suspicion to stop truck and investigate); Faulkner v. State, 277 Ga. App. 702, 704 (1) (627 SE2d 423) (2006) (radio dispatch concerning vehicle involved in criminal activity, which described “the color, manufacturer and model of the vehicle, the number and race of its occupants, and its location and direction of travel,” gave officer reasonable suspicion to stop vehicle and investigate); McNair v. State, 267 Ga. App. 872, 874 (1) (600 SE2d 830) (2004) (radio dispatch concerning car observed leaving crime scene, which described the car, gave officer reasonable suspicion to stop similar car driving away from location of crime scene only minutes later and investigate). At that point, the officers had cause to detain Kollie and Brandt for further investigation, see Culpepper, 312 Ga. App. at 119-120, and the officers had every right to make the scene safe for their investigation, both by requiring Kollie and Brandt to exit the truck, see Maryland v. Wilson, 519 U. S. 408, 415 (117 SC 882, 137 LE2d 41) (1997), and by securing them with handcuffs and putting them in patrol cars. See King v. State, 258 Ga. App. 872, 875 (1) (575 SE2d 679) (2002).

After Kollie and Brandt were secured, the officers were entitled to approach the truck and look into it to see whatever contents might be in plain view. See Parker v. State, 229 Ga. App. 217, 219 (3) (493 SE2d 558) (1997). The first officer did so, and he saw two firearms and money bags in the truck, as well as liquor bottles and spilled liquor in the bed. With these observations, the officers might well have had probable cause to arrest Kollie and Brandt for armed robbery, see Gebremedhin v. State, 202 Ga. App. 811, 812-813 (415 SE2d 529) (1992), but we need not decide that question. The officers undoubtedly had good cause to continue to detain Kollie and Brandt until Snellville officers arrived, at which point a witness identified Kollie and Brandt as the armed robbers, clearly supplying probable cause for their arrest. See Brown v. State, 307 Ga. App. 797, 801-802 (2) (706 SE2d 170) (2011). By then, there also was reason to believe that evidence of that crime might be found inside the truck, which was a proper basis for the more thorough search of the truck that followed. See Gant, 556 U. S. at 343 (“[Circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”) (citation and punctuation omitted). Accordingly, the search of the truck was reasonable, the motion to suppress properly was denied, and we affirm the judgment below.

Decided February 24, 2012.

Mark A. Yurachek, for appellant.

Daniel J. Porter, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P J., and Adams, J., concur.

       In this opinion, we discuss only the evidence that relates to the motion to suppress. Other evidence concerning the crimes of which Brandt and Kollie were convicted is detailed in our previous opinion. See Kollie, 301 Ga. App. at 534-537.

       At the hearing on the motion to suppress, the officer did not say explicitly that he was outside the truck when he saw these things, but he did say that they were in “plain view,” and that generally connotes observation from a place in which an officer is entitled to be. In any event, Brandt does not appear on appeal to dispute that these items were in plain view, and considering our obligation to view the evidence in the light most favorable to the judgment of the court below, we understand the record to show that the officer saw these things from outside the truck. The record would support a finding that the officer was outside the truck, even if it also would permit a different finding. See Baker v. State, 306 Ga. App. 99, 101 (1) (a) (701 SE2d 572) (2010).

       One of the officers explained that, although he observed the contents of the truck that were in plain view and retrieved the firearms, he did not open any closed compartments or containers in the cab of the truck.

       As we noted earlier, both Gwinnett County officers had observed the truck traveling at a high rate of speed, and the second officer saw the driver momentarily lose control of the truck, weaving between lanes in the process.

       By that point, the officers knew that the truck occupied by Kollie and Brandt matched the description of the truck involved in the robbery, they knew that Kollie and Brandt matched the description of the robbers, they knew that the robbery had occurred only recently, they knew that the truck was driving fast along the road on which the restaurant was located and away from the restaurant, and they knew that the truck had accelerated when the first officer put his spotlight on it.

       By this time, the officers also had observed furtive movements by Brandt inside the cab of the truck and his initial refusal to comply with their lawful instruction to exit the truck.

       The only thing of any significance that appears to have happened between the time the first Gwinnett County officer saw the firearms and other items in plain view and the time Kollie and Brandt were identified by an eyewitness as the robbers is that the first officer retrieved the firearms from the truck, and the officer was entitled at least to do that. See State v. Peterson, 273 Ga. 657, 658 (543 SE2d 692) (2001) (“The plain view doctrine . .. permits the warrantless seizure of evidence visible to a police officer who sees it from a vantage point the officer is legally entitled to occupy.”); Wise v. State, 201 Ga. App. 412, 413 (411 SE2d 303) (1991) (physical precedent only) (when officer saw cocaine in plain view in vehicle, he was authorized to immediately seize it).

       The officers had reason to believe that evidence of the armed robbery might be found in the truck inasmuch as they had observed firearms and other potentially relevant items in plain view, besides the fact, of course, that the truck was stopped driving away from the scene of the robbery and only a short time after the robbery occurred.


author: DOYLE, Presiding Judge.

text:
    A11A2183.
    In the Interest of Z. P., a child.
    (724 SE2d 48)
   DOYLE, Presiding Judge.

The juvenile court terminated the natural mother’s parental rights to her ten-month-old daughter, Z. E The mother appeals, challenging the sufficiency of the evidence. We affirm, for reasons that follow.

Our responsibility on appeal is to determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

So viewed, the record shows that on May 26, 2010, two days after Z. E was born, the Whitfield County Department of Family and Children Services (“the Department”) filed a complaint alleging that Z. E and her mother had tested positive for methamphetamine at the child’s birth. The juvenile court awarded custody of Z. E to the Department, and the infant was initially placed in a nonrelative foster home, but subsequently transferred to Steven and Wendy Bates, paternal relatives, when she was seven weeks old.

On July 7, 2010, the juvenile court entered a provisional order adjudicating Z. E deprived as to both the mother and putative biological father and subsequently finalized the provisional order on September 3, 2010; the deprivation finding was not appealed by either parent. On July 28, 2010, the court adopted the Department’s nonreunification/termination/adoption case plan, which required the mother to maintain steady employment and housing for six months, to pay child support, to maintain meaningful contact with Z. E through visitation, to complete a parenting class, to complete a psychological evaluation and any recommended treatment, to successfully complete drug and alcohol counseling, and to remain drug and alcohol free for six months. On February 17, 2011, the mother filed a motion to establish visitation with the child. Five days later, the Bateses filed a petition to terminate the parents’ rights to Z. E

At the hearing, the mother testified that she had two other children, B. K. and G. K. The mother’s parental rights to B. K., who was born in August 1999, were terminated in 2001. G. K, who was six years old at the time of the hearing, had been in the custody of his grandmother since he was two years old. The mother testified that she was uncertain about who had legal custody of G. K, stating that she had let him live with his grandmother since she went to jail in 2007 and that her failure to attempt to regain custody of the child was by choice.

The mother testified that she began using methamphetamine when she was fifteen, and that she had been arrested on drug-related charges approximately nine times. Two of her arrests resulted in felony drug convictions. According to the mother, she used methamphetamine five times while pregnant with Z. E, beginning five months into her pregnancy. The mother was arrested on September 22, 2010, for a probation revocation based on a positive drug test, failure to complete community service, and failure to report as required; the mother remained in jail until October 18, 2010, and was then required to report to the Northwest Georgia Day Reporting Center (“NGDRC”) the following day to complete the program or return to jail.

In order to complete the NGDRC program, the mother was required to secure employment; attend therapy and other classes, including drug and alcohol treatment; and submit to and pass drug tests. The mother successfully complied with the conditions of the program, including passing drug tests and attending drug treatment and parenting classes. She also obtained a job approximately five weeks before the termination hearing; prior to obtaining that job, the mother last worked in 2007.

Since Z. E’s birth, the mother has had five separate residences, excluding her time in jail. The mother has paid a total of $120 in child support, with the payments beginning approximately four weeks before the termination hearing. The father had a drug problem during the entire three years that the mother has known him, and the two used methamphetamine together during the mother’s pregnancy; there is no evidence that the father has received drug treatment. At the hearing, the mother testified that she would be willing to reconcile with Z. E’s father upon his release from prison. The mother’s motion for visitation, filed when Z. E was nine months old, was her first attempt to see her daughter after the baby left the hospital in the custody of the Department; the mother made no efforts whatsoever to contact the child or the Bateses to inquire about her. The mother also admitted that she missed several juvenile court dates regarding custody of Z. E because she was afraid she would be arrested on her outstanding warrant(s).

Stephen Bates testified that he and his wife, who have two other children, want to adopt Z. E When Z. E began living with the Bateses, she suffered from tremors, and she has had breathing problems. The Bateses administer breathing treatments to Z. E, who is in the bottom fifth growth percentile, has possible lung problems, and has problems sleeping through the night. Z. E has been hospitalized twice for pneumonia. After one of the hospitalizations, Stephen quit his military job to help care for her, but he and his wife both retained employment, which they have held for 24 and 14 years, respectively. Stephen has never met the mother.

The guardian ad litem appointed for Z. E testified at trial that in his opinion there was overwhelming evidence to support the termination of the mother and father’s parental rights and to grant the Bateses’ petition for permanent custody.

In the termination order, the juvenile court found that the mother “repeatedly perjured herself in her testimony before the court.” The court stated that

both parents have a history of chronic[,] un-rehabilitated abuse of illegal, intoxicating substances with the effect of rendering them incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child. While the court applauds the mother’s apparent compliance with mandated treatment, the court has no confidence the mother will be able to maintain her sobriety after only one attempt at rehabilitation, especially considering that she must complete that treatment or go to jail, and especially considering that she has maintained her sobriety for only five months. The parents have convictions for felony charges and imprisonment therefor[,] which have had a demonstrable negative effect on the quality of the parent[-]children relationship. Indeed, the parents have absolutely no relationship with this child due to their legal problems and drug abuse problems. Their drug abuse and felony convictions have rendered them completely incapable of providing for this child in any way. Their drug abuse and felony convictions have caused them to have absolutely no parental bond or relationship with this child, and they have abandoned this child since her birth. Neither parent has seen the child since she was born.

The court also stated that it “is concerned that despite allegedly knowing relapse triggers, the mother has subjected herself to same, and would consider reconciling with the father.”

To terminate a parent’s rights to a child, the juvenile court must find clear and convincing evidence of “parental misconduct or inability” in that

(i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

1. Here, the mother argues that there was insufficient evidence of deprivation or parental inability on her part at the time of the termination hearing to support the juvenile court’s determination. We disagree. To prove that Z. E was deprived under the circumstances here, the Bateses were required to present evidence that the child was “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” In this case, because Z. E has been in the custody of DFCS and cared for by the Bateses, the proper inquiry is whether she would be deprived if returned to the mother’s care and control as of the date of the termination hearing.

The mother has a 12-year history of drug addiction, and she repeatedly used methamphetamine while pregnant with Z. E The mother has two other children, neither of whom are in her custody. She also has multiple felony drug convictions, and she was in jail after Z. E’s birth. Although the mother completed a drug treatment program, it was her first attempt at drug rehabilitation and was court-ordered. The mother failed to financially support Z. E until four weeks before the termination hearing. Since giving birth to Z. E, the mother has had five separate residences, and she was unemployed from 2007 until February 2011. Most importantly, the mother made no attempt whatsoever to visit Z. E until she filed her motion for visitation when Z. E was nine months old, and she made no attempts to contact the Bateses to inquire about Z. E Given the evidence presented, the trial court did not err by finding that Z. E was deprived at the time of the termination hearing and that the mother was the cause of the deprivation.

2. The mother further contends that there was insufficient evidence that Z. E’s deprivation was likely to continue and would not be remedied. Specifically, the mother points out that she has resolved her legal issues, completed drug treatment, and obtained employment and housing.

The juvenile court was, however, permitted to consider the mother’s past conduct in determining whether Z. E’s deprivation was likely to continue. “This is because recent improvements do not establish that the parent is capable of maintaining the progress[,] and the decision as to a child’s future must rest on more than positive promises [that] are contrary to negative past fact.” Thus, despite the mother’s recent completion of drug treatment and employment, the juvenile court was entitled to weigh her progress against her past conduct and “to assign less weight to her assertion of sudden parental fitness based on these belated efforts. . . .”

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 her 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, we echo the juvenile court’s commendation of the mother’s recent efforts, and we note that additional time might well have revealed that the mother has in fact turned her life around. Nevertheless, given the evidence that the mother’s sobriety was recent, her compliance with the drug treatment was mandatory to avoid jail, she failed to adequately support Z. E, her testimony in the termination hearing was evasive, she relinquished and lost custody of her two other children, she made no efforts whatsoever to contact ór visit Z. E until the child was nine months old, and she was willing to reconcile with the father, who was also addicted to methamphetamine and had not completed any type of drug treatment, the trial court was authorized to find that the deprivation was likely to continue.

3. Finally, the mother argues that the trial court abused its discretion by concluding that termination was in Z. E’s best interest.

Decided February 24, 2012.

Katherine L. O’Gwin, for appellant.

Rodney Q. Quarles, for appellee.

In determining how the interest of the child is best served, the juvenile court is vested with a broad discretion which will not be controlled in the absence of manifest abuse. And the same factors that show parental misconduct and inability support a finding that termination of parental rights is in the child’s best interest.

Based on the evidence of the mother’s prior drug problems, her failure to support or develop any bond or contact with Z. E, her willingness to reconcile with the father, and the Bateses’ desire to adopt Z. E, we conclude that the trial court did not manifestly abuse its discretion by finding that termination was in Z. E’s best interest.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       The father’s rights were also terminated. He is not a party to this appeal.

       (Punctuation omitted.) In the Interest of J. E., 309 Ga. App. 51, 52 (711 SE2d 5) (2011).

       The trial court consolidated the termination petition and the mother’s motion for visitation into a single hearing.

       The NGDRC program was the mother’s first organized treatment program.

       The mother conceded that she spent more money on the purchase of methamphetamine while pregnant with Z. E than she paid to support the child since her birth.

       The mother spoke with the father two weeks prior to the termination hearing before he was sent to prison for violating his parole.

       OCGA § 15-11-94 (b) (4) (A).

       OCGA § 15-11-2 (8) (A).

       See In the Interest of C. H., 305 Ga. App. 549, 559 (2) (a) (700 SE2d 203) (2010), citing In the Interest of P. D. W., 296 Ga. App. 189, 191 (1) (a) (674 SE2d 338) (2009).

       See In the Interest of R. B., 309 Ga. App. 407, 409-412 (1) (710 SE2d 611) (2011); In the Interest of S. R. M., 283 Ga. App. 463, 465-466 (1) (641 SE2d 666) (2007).

       See In the Interest of M. S. S., 308 Ga. App. 614, 621-622 (2) (a) (708 SE2d 570) (2011).

       (Punctuation omitted.) Id. at 622.

       (Punctuation omitted.) Id., citing In the Interest of D. L. T., 283 Ga. App. 223, 227 (1) (641 SE2d 236) (2007). See also In the Interest of J. S., 232 Ga. App. 876, 880 (1) (502 SE2d 788) (1998) (noting that “a few months of partial stability does not establish for the court that the parent[ ] [is] capable of maintaining the progress”) (punctuation omitted).

       (Citations and punctuation omitted.) In the Interest of M. S. S., 308 Ga. App. at 622 (2) (a).

       See In the Interest of C. A. S., 308 Ga. App. 757, 762 (4) (708 SE2d 655) (2011); In the Interest of M. S. S., 308 Ga. App. at 621-622 (2) (a).

       (Citation and punctuation omitted.) In the Interest of C. A. S., 308 Ga. App. at 762 (5).

       See id., citing In the Interest of C. M., 282 Ga. App. 502, 507 (2) (639 SE2d 323) (2006). See also In the Interest of C. J. L. C., 293 Ga. App. 848, 852 (1) (c) (668 SE2d 821) (2008).


author: BARNES, Fresiding Judge.

text:
    A11A1621.
    WRIGHT v. THE STATE.
    (723 SE2d 737)
   BARNES, Fresiding Judge.

Following his convictions for aggravated assault with intent to rape, attempted rape, false imprisonment, simple battery, and simple assault, Cameron W Wright filed a motion for new trial, which the trial court denied after a hearing. He appeals from that order, contending that the evidence was insufficient to support the aggravated assault and attempted rape convictions, and that the trial court erred in admitting evidence of a similar transaction because the State failed to prove similarity between the similar transaction and the current offense. Upon our review, and finding the evidence sufficient and the similar transaction admissible, we affirm.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [Wright] no longer enjoys a presumption of innocencef.]” (Citations, punctuation and footnotes omitted.) Jackson v. State, 252 Ga. App. 268 (1) (555 SE2d 908) (2001). So viewed, the evidence shows that on October 12, 2008, the victim was walking in her neighborhood at approximately 8:00 a.m. The victim testified that she usually walks the same mile-long route around her subdivision twice a week. As she approached the entrance to her subdivision, she suspected that a man, later identified as Wright, was following her. The victim was nervous so she called her father on her cell phone and advised him that she thought she was being followed. She stopped walking and turned toward Wright and asked him if he was following her. Wright appeared startled and said no. The victim picked up her pace but stayed on her cell phone with her father as she continued walking toward her home. Wright suddenly started running toward the victim, lunged at her and pushed her down. Wright then grabbed the victim’s foot and dragged her toward a nearby vacant lot at the top of an embankment. As the victim struggled, her right shoe came off and she briefly escaped Wright’s grasp. When she attempted to run, Wright once again knocked the victim to the ground, and as he dragged her by her left ankle, her remaining shoe came off. At this point, Wright grabbed the victim by both ankles and continued to pull her toward the vacant lot. The victim testified that as he pulled her, her sweat pants came down, but she held on to them as she continued to struggle and “look[ed] around ... to find anything [she could] to knock the hell out of him because he [was] violating [her].” Wright, apparently tiring of the struggle, suddenly dropped the victim’s ankles, looked around and ran off. The victim later identified Wright from a photographic lineup, and an analysis of blood on her sweatshirt confirmed Wright as her attacker.

1. We first address Wright’s contention that the evidence was insufficient to support his convictions for aggravated assault and attempted rape. Specifically, Wright argues that because there was no evidence of his intent to rape the victim, as the State could not show that he took substantial steps to fulfill the requisite elements of rape. We disagree.

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Here, the evidence shows that Wright knocked the victim down and attempted to pull her into an isolated vacant lot and continued to do so despite the victim’s struggles and attempted escape. Further, the victim was not carrying a purse, and any contention that the motive was robbery is belied by the fact that Wright did not attempt to take the victim’s cell phone or keys even though he could have easily taken both. Whether Wright intended to rape the victim was a matter for the jury to determine. Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990).

Although Wright maintains that there is no evidence that he touched the victim in a sexual manner,

[i]t is not necessary for the state to show that [Wright] expressed an intent to rape in so many words, or declared a purpose to carry the intent into effect, for the jury to arrive at the conclusion he so intended. The intention may be gathered from the circumstances of the case as proved.

(Citation and punctuation omitted.) Butler, 194 Ga. App. at 897 (2).

Here, under the circumstances, the jury was authorized to conclude that Wright’s actions, although circumstantial insofar as intent is concerned, provided sufficient evidence to establish that he attempted to rape the victim. See Butler, 194 Ga. App. at 897 (2); Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983). “It is not necessary for circumstantial evidence to exclude every conceivable hypothesis of a defendant’s innocence in order to authorize a conviction; only reasonable hypotheses must be excluded,” and whether a hypothesis is reasonable is for the jury to conclude. (Punctuation and footnotes omitted.) De’Mon v. State, 262 Ga. App. 10, 12 (1) (584 SE2d 639) (2003).

Thus, the evidence was sufficient for a rational trier of fact to find Wright guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Wright also contends that the trial court erred in allowing the State to introduce similar transaction evidence of a prior offense involving a nine-year-old victim that occurred when Wright was fourteen. Wright asserts that the State failed to prove similarity between the prior offense and the current case.

In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offense [ ] charged.

(Citations and punctuation omitted.) Condra v. State, 238 Ga. App. 174, 175 (2) (518 SE2d 186) (1999). This rule is most liberally extended in cases involving sexual offenses because “[s]uch evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.” Payne v. State, 285 Ga. 137, 138 (674 SE2d 298) (2009). It is well established that “[t]he decision of a trial court to admit evidence of similar transactions will be upheld unless clearly erroneous.” Id.

In reviewing whether there were sufficient similarities to create a connection between the previous crime and the instant crimes such that the former tends to prove the latter, we focus on the similarities rather than the dissimilarities. Similar transactions need not be identical to the offense being tried but must show sufficient similarity or connection between the independent incidents and the offense at issue.

(Citations, punctuation and footnotes omitted.) Susan v. State, 254 Ga. App. 276, 282 (4) (562 SE2d 233) (2002).

Here, the State presented evidence that on October 2, 2002, when Wright was fourteen, he tricked the nine-year-old victim into following him into the woods, and threw her to the ground, ripped off her pants and underwear, and attempted to place his penis into her vagina. The victim kicked Wright in the groin and escaped. Wright’s admission of guilt for the designated offenses of aggravated child molestation and aggravated assault and the juvenile court’s order of delinquency were admitted at trial.

Although Wright contends that the transactions were dissimilar because of the victims’ ages and lack of sexual contact with the present victim,

[t]o hold that these cases are too dissimilar to constitute similar transaction evidence based solely on the difference in the victims’ ages would ignore our precedent. No Georgia case holds that the difference in age of the victims is alone determinative of similarity. Our precedent consistently holds that it is the totality of the similar facts surrounding the crimes which are properly considered in a similar transaction analysis.

(Citations omitted.) Payne v. State, 285 Ga. at 139; see Kingsley v. State, 268 Ga. App. 729, 730 (1) (603 SE2d 78) (2004) (when sufficient similarities exist between crimes, a mere difference in age of the victims will not render the prior transaction inadmissible). Moreover, “a transaction does not have to mirror every detail in order to authorize its admission.” (Citation and punctuation omitted.) Daniels v. State, 281 Ga. 226, 228 (1) (637 SE2d 403) (2006).

Decided February 27, 2012.

Charles M. Evans, for appellant.

Tracy Graham-Law son, District Attorney, Michael D. Thurston, Assistant District Attorney, for appellee.

Here, Wright approached both victims when they were walking alone, isolated or attempted to isolate them in a deserted area, and attacked them. The fact that the present victim was successful in thwarting Wright before he could sexually assault her does not negate the similarity of the crimes. See Smith v. State, 206 Ga. App. 557, 558 (1) (426 SE2d 23) (1992) (prior transaction evidence found sufficiently similar despite difference in victims’ ages and despite fact that prior transaction did not involve similar sexual act).

Based on the similarities, we cannot say that the trial court’s decision to admit this evidence was clearly erroneous.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Wright was accused of “an assault upon the person of [the victim] with the intent to rape by pushing the victim to the ground, grabbing her, and attempting to drag the victim into a wooded area.”

       Per the indictment, the substantial step toward the commission of the attempted rape was that he “grab[bed] and dragged [the victim] toward a secluded area.”


author: Dillard, Judge.

text:
    A11A1698.
    VRATSINAS CONSTRUCTION COMPANY v. CHITWOOD.
    (723 SE2d 740)
   Dillard, Judge.

After suffering an injury while working for a subcontractor on a construction project, Vincent Chitwood filed a civil tort action against Vratsinas Construction Company (“VCC”), the general contractor for the project. Following the denial of its motion for summary judgment, VCC appeals, arguing that the trial court erred in ruling that Chitwood’s tort claims against VCC were not barred by the exclusivity provisions of the Workers’ Compensation Act. For the reasons set forth infra, we reverse the trial court’s denial of VCC’s motion for summary judgment.

At the outset, we note that “[sjummary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” In addition, “[a] de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

So viewed, the evidence shows that in April 2008, VCC was acting as the principal and general contractor on a construction project that entailed building an expansion on to the Augusta Mall. VCC contracted with Poe’s Heating and Air Conditioning to install the heating and air conditioning systems on the project, and Poe’s, in turn, hired Chitwood to help with installing the systems. At around noon on April 11, 2008, Chitwood was working at the mall construction site and attempting to charge some of his power tools when he suffered an electric shock, which resulted in severe burns to his arm, chest and face. Chitwood immediately drove himself to the hospital and remained there for several days to receive treatment. After he was released, Chitwood informed Poe’s that he had been injured on the job.

Nevertheless, Chitwood did not submit a claim for workers’ compensation benefits to either Poe’s or VCC. Instead, he filed a civil action against VCC, alleging, inter alia, that the general contractor’s negligent failure to maintain a safe construction site caused him to suffer serious injuries. VCC filed a motion for summary judgment, arguing that Chitwood’s tort claims against VCC were barred by the exclusivity provisions of the Workers’ Compensation Act. Following a hearing on the matter, the trial court issued an order denying VCC’s motion.

Thereafter, VCC successfully sought a certificate of immediate review, and it filed an application for interlocutory appeal, which this Court granted. This appeal follows.

In its sole enumeration of error, VCC contends that the trial court erred in denying its motion for summary judgment, arguing that Chitwood’s tort claims against VCC are barred by the exclusive-remedy provisions of the Workers’ Compensation Act. We agree, and therefore reverse the trial court’s denial of summary judgment.

OCGA § 34-9-8 (a) provides that “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” Thus, “[u]nder § 34-9-8, the principal or intermediate contractor becomes the ‘statutory employer’ of the subcontractor’s employee.” Additionally, OCGA § 34-9-11 (a), provides in relevant part that “[t]he rights and remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death.”

Moreover, in Wright Associates, Inc. v. Rieder, our Supreme Court held that an injured employee of a subcontractor could not maintain a tort action against the principal contractor, even when the principal contractor did not pay workers’ compensation benefits. In doing so, the Court reasoned that the principal contractor should receive the benefit of tort immunity under OCGA § 34-9-11 because it was liable to pay workers’ compensation benefits under OCGA § 34-9-8. As a result, “[w]here the workers’ compensation law is applicable, it provides the employee’s exclusive remedy against the employer.”

And here, it is undisputed that Chitwood was employed by Poe’s Heating and Air Conditioning and was working on the construction project site at the time that he suffered his injury. It is also undisputed that Poe’s Heating and Air Conditioning was hired by VCC to perform work as a subcontractor on the mall expansion construction project. Thus, VCC was Chitwood’s statutory employer at the time of the accident. Given these circumstances, VCC was potentially liable to Chitwood for workers’ compensation benefits and, consequently, is immune from tort liability.

Chitwood nevertheless argues (and the trial court apparently agreed) that VCC is not immune from tort liability in this instance because Chitwood never submitted a claim for workers’ compensation benefits and VCC never paid such benefits on its own initiative. Essentially, Chitwood asserts that a statutory employer’s tort immunity is not triggered until workers’ compensation benefits are paid by either the statutory or direct employer. This argument is wholly without merit. Indeed, “[i]t is a statutory employer’s potential liability for workers’ compensation benefits rather than actual liability that triggers the tort immunity.” And here, as noted supra, it is undisputed that VCC was Chitwood’s statutory employer. The trial court therefore erred in ruling that Chitwood’s tort claim was not barred by the exclusive-remedy provision of the Workers’ Compensation Act. Accordingly, we reverse the trial court’s denial of VCC’s motion for summary judgment.

Decided February 27, 2012.

Hicks, Casey & Foster, Andrea A. Guariglia, for appellant.

Misner, Scott & Martin, Bobby B. Terry, James A. Rice, Jr., for appellee.

Judgment reversed.

Mikell, P. J., and Boggs, J., concur.

        Ellis v. Ingle, 306 Ga. App. 674, 675 (703 SE2d 104) (2010); see OCGA § 9-11-56 (c).

        Ellis, 306 Ga. App. at 675.

        See OCGA § 34-9-8 (a).

        Warden v. Hoar Constr. Co., 269 Ga. 715, 716 (1) (507 SE2d 428) (1998); see Haygood v. Home Transp. Co., Inc., 244 Ga. 165, 166 (259 SE2d 429) (1979) (holding that a principal contractor is the statutory employer of the employee of a subcontractor who is an independent contractor).

        See OCGA § 34-9-11 (a).

       247 Ga. 496 (277 SE2d 41) (1981).

        See id. at 499-500 (1).

        See id.

        Dutton v. Ga. Associated Gen. Contractor &c. Trust Fund, 215 Ga. App. 607, 608 (451 SE2d 504) (1994); see Warden, 269 Ga. at 716 (1) (holding that “the exclusive remedy provision, provides that the employee’s rights and remedies under the Workers’ Compensation Act exclude all other rights of the employee due to injury, loss of service, or death except the right to bring an action against a third-party tort-feasor.” (punctuation omitted)).

        See Warden, 269 Ga. at 716 (1) (holding that general contractor was statutory employer of subcontractor’s employee who was killed in a work-related accident, and therefore, general contractor was immune from tort claim brought by employee’s spouse); Rieder, 247 Ga. at 499-500 (2) (holding that general contractor, as injured employee’s statutory employer, was immune from any tort claim arising from employee’s work-related injury).

        Maguire v. Dominion Dev. Corp., 241 Ga. App. 715, 717 (527 SE2d 575) (2000); see Redd v. Stanfield, 217 Ga. App. 573, 574 (2) (458 SE2d 394) (1995) (holding that statutory employer was immune from injured worker’s tort claim even though there was no record that worker ever filed a workers’ compensation claim because “statutory immunity from suit includes the statutory employer regardless [of] whether that statutory employer actually paid the workers’ compensation benefits.” (punctuation omitted)); see also Rieder, 247 Ga. at 500 (1) (“The quid pro quo for the statutory employer’s potential liability is immunity from tort liability.” (emphasis supplied)).