author: Boggs, Judge. BARNES, Presiding Judge,

text:
    A16A0558.
    CLARK v. RAU.
    (789 SE2d 399)
   Boggs, Judge.

Kathrine Clark appeals pro se from an order of the Chatham County Superior Court granting Ricky G. Rau’s petition for modification of custody and child support. No transcript is included in the record, and while the hearing at issue was reported, it does not appear that it was transcribed. Moreover, Clark’s appellate brief is inadequate either to enumerate the errors she contends were made below or to support them with argument and citation of authority as required by this court’s rules. In these circumstances, we must presume the regularity of the judicial proceedings below and affirm the judgment of the trial court.

Clark and Rau are the parents of three minor children: sixteen-year-old B. C., fifteen-year-old V. C., and twelve-year-old K. C. On October 16, 2013, the Superior Court of Chatham County entered an order of legitimation, custody, and child support in which Clark and Rau were granted joint legal custody of the children, with Clark having primary physical custody of B. C., Rau having primary physical custody of K. C., and the couple sharing joint physical custody of V. C. On March 7, 2014, Rau filed a petition for modification of custody and child support in which he alleged circumstances materially affecting the welfare of the children, including that Clark was not exercising the joint physical custody arrangement and allowing him physical custody of V. C., that she was not exercising the custodial arrangements with the other children, and that she had failed to provide a suitable furnished residence for the children. Following a bench trial on the petition, the trial court awarded Rau sole legal and physical custody of his three minor children. This appeal followed.

1. Clark has failed to comply with the provisions of Court of Appeals Rules 22 and 2 5 in the preparation of her appellate brief. The brief does not contain a statement of facts, citations to the record, or numbered and distinct enumerations of error with supporting arguments.

Proceeding pro se does not relieve [Clark] of [her] obligation to comply with the rules of this Court. Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.

(Citation and punctuation omitted.) Goodman v. State, 313 Ga. App. 290, 291 (717 SE2d 496) (2011). In particular, Court of Appeals Rule 25 (c) (1) requires that “[t]he sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.”

As we have held, Rule 25 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [Clark] has hindered the Court’s review of [her] assertions and has risked the possibility that certain enumerations will not be addressed.

(Citation and punctuation omitted.) Barnett v. Fullard, 306 Ga. App. 148, 149-150 (1) (701 SE2d 608) (2010).

Nor is this a mere “minor departure from prescribed procedures,” as asserted by the dissent. While we may address enumerations of error “to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument,” Barnett, supra, 306 Ga. App. at 149-150 (1), our customary practice cannot extend so far as to “discern” both enumerations of error and argument when neither is provided, particularly in the absence of a transcript of the proceedings. In so doing, we would step outside our constitutionally assigned role.

To the extent that Clark has set forward any comprehensible arguments, she appears to argue that the trial court failed to allow her to present evidence on her own behalf, and that, had she been permitted to do so, she “would sur[e]ly prove that [the trial court’s] decisions were not supported by the GA Code.” It is in this context, not that of the form of the order, that she discusses the provisions of the statute enumerated by the dissent. In the remainder of her brief, Clark further seems to assert that the trial court disregarded matters presented to it, that the children improperly elected their residence, that Rau, his employer, and employees of DFACS should have been held in contempt, that the court disregarded alleged family violence by Rau, and that the trial court and a magistrate judge were guilty of misconduct in various respects. Nothing provides a basis for the dissent’s creation of enumeration of error, argument, and record on behalf of Clark.

As our Supreme Court has observed, in the context of a conviction for murder and other offenses and a sentence of life imprisonment:

The attempts to provide sua sponte appellate review of criminal appeals notwithstanding incomplete appellate filings, while laudable, do a disservice to the courts, the criminal defendant, and appellate counsel. The practice requires the appellate court to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.

(Footnote omitted.) Rowland v. State, 264 Ga. 872, 874 (452 SE2d 756) (1995). And this court has noted the danger of creating enumerations of error and a brief on behalf of a litigant:

“[C]reating” an appeal for the appellant who has failed to file enumerations of error or a brief casts this court into the role of advocate. The awkwardness and inappropriateness of this role has been suggested by Judge Beasley in her dissent in Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), and again in Sarver [v. State, 206 Ga. App. 459 (426 SE2d 48) (1992) (physical precedent only)].

(Footnote omitted.) Whittle v. State, 210 Ga. App. 841, 842 (437 SE2d 842) (1993), (overruling Sarver and Conyers). To take on the role of appellate advocate in the context of a civil appeal is even more inappropriate and awkward. And in “discerning” that which appears nowhere in an appellant’s pleadings or the record, we are not only assuming the role of advocate; we are conflating that role with our judicial responsibilities so as to be both advocate and arbiter.

2. Moreover, even to the extent we are able to discern any assertion of error below from Clark’s disjointed and incomplete brief, we are unable to address any of the arguments which Clark has arguably made in the absence of a transcript.

. . . Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by Code Section 5-6-41. . .. The party having the responsibility of filing the transcript shall cause it to be filed within 30 days after filing of the notice of appeal[.]

OCGA § 5-6-42. Clark, “as the appellant here, bears the burden of showing error below. In accordance with the presumption of the regularity of court proceedings, we must assume in the absence of a transcript that there was sufficient competent evidence to support the trial court’s findings.” (Citations, punctuation and footnote omitted.) Reed v. Reed, 295 Ga. 574, 577-578 (2) (761 SE2d 326) (2014); see also Siratu v. Diane Investment Group, 298 Ga. App. 127, 128-129 (679 SE2d 359) (2009) (in the absence of transcript or statutory substitute, assumed that evidence supported trial court’s decision).

3. The dissent asserts that the trial court’s order is “facially deficient” because it fails to recite the “best interest of the child” standard verbatim. This is incorrect, for several reasons. First, neither party requested specific findings of fact, which under OCGA § 19-9-3 (a) (8) need only be provided “[i]f requested by any party on or before the close of evidence^]” See Weickert v. Weickert, 268 Ga. App. 624, 628-629 (2) (602 SE2d 337) (2004). Here, as in Weickert, the trial court did not specifically recite the ‘Test interest of the children” formula, but “essentially” did so when it found that Rau had “shown a material substantial change in circumstances which substantially affected the welfare of the parties’ minor children.” See id. at 628-629 (2). “We do not find it necessary to remand this case in order for the court to use the exact language provided.” Id. at 629 (2). We therefore must affirm the judgment of the trial court.

Judgment affirmed.

Branch, McMillian and Mercier, JJ., concur. Rickman, J., concurs in judgment only. Barnes, P. J., Miller, P. J., Ellington, P. J., and McFadden, J., dissent.

BARNES, Presiding Judge,

dissenting.

Despite the deficiencies in Kathrine Clark’s pro se brief, there is no question that the trial court’s order modifying child custody is properly before us for review and that the order is facially deficient because it fails to reflect a finding that the change in custody is in the best interest of the children. Particularly in matters as sensitive and important as the custody of children, we should ensure that the trial court has applied the proper legal framework. See Troxel v. Granville, 530 U. S. 57, 65 (II) (120 SCt 2054, 147 LE2d 49) (2000) (“The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.”). Because the majority affirms the trial court’s child custody order despite its obvious failure to apply the proper legal framework, I respectfully dissent.

In its order modifying child custody, the trial court found:

[Rau] has shown a material change in circumstances which substantially affected the welfare of the parties’ minor children and that a modification in custody is warranted, therefore it is hereby ORDERED that the Order on Legitimation, Custody, and Child Support entered in this Court on October 16, 2013 is hereby MODIFIED[.]

(Emphasis in original.)

The trial court’s order is deficient on its face. It is well established that in modifying a previous custody arrangement, a trial court must find a material change in conditions or circumstances and that the change in custody is in the best interest of the children. New v. Goss, 327 Ga. App. 413, 414 (2) (759 SE2d 266) (2014). But the trial court failed to include in its order any determination regarding the children’s best interest. Therefore,

[although the evidence presented in the trial court may have been sufficient to support a change of custody (of which we cannot make a determination in the absence of a transcript), it appears that the trial court failed to apply the complete correct legal standard in this case.

Johnson v. Hubert, 175 Ga. App. 169, 170 (1) (333 SE2d 21) (1985). Under these circumstances, we should vacate the judgment and remand to the trial court for application of the proper legal standard. See id.

In affirming the trial court’s order despite its facial omission of any reference to or application of the best interest standard, the majority focuses on the inadequacies of Clark’s pro se appellate brief. But despite those inadequacies, the trial court’s custody order is properly before us for review when Clark’s notice of appeal and brief are viewed under the appropriate statutory standard and the directives of our Supreme Court. OCGA § 5-6-48 (f) directs that

[wjhere it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.

Moreover, our Supreme Court has emphasized that

[i]n addition to the statutory mandate that the [Appellate Practice Act] be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid... refusal to consider any points raised therein” (OCGA § 5-6-30), the legislature, in enacting OCGA § 5-6-48 (f), has imposed on the appellate courts a statutory duty to discern what errors an appellant is attempting to articulate.

(Emphasis supplied.) Felix v. State, 271 Ga. 534, 538 (523 SE2d 1) (1999). According to our Supreme Court, “[a] principal objective of the Act was to get away from the harsh practice of treating every minor departure from prescribed procedures as a jurisdictional defect on the same level as a violation of the Bill of Rights.” (Citation and punctuation omitted.) Id. at 535.

Here, Clark’s notice of appeal identified the order being appealed as the “Final Order on Rau’s Petition for Modification of Custody and Child Support.” Moreover, although she did not specifically cite to OCGA § 19-9-3 in her appellate brief, Clark repeatedly complained that the trial court did not properly consider the relevant statutory provisions before making the custody change. Among other things, she argued that the trial court did not follow the “[Georgia Code] points that are the criteria in determining what is in the children’s best interest.” Clark then named each of the factors in OCGA § 19-9-3 (a) (3) that the trial court may consider in determining the best interest of the child, including the nurturance and safety of the child in the home environment, the recommendation of a court appointed custody evaluator or guardian ad litem, history of family violence, parents’ criminal history, and the well being of the child. See OCGA § 19-9-3 (a) (3) (A)-(Q). She asserted that the trial court’s decision to change custody was not supported by any of these factors. The brief of appellant therefore repeatedly and quite clearly makes the argument that the trial court “never considered” the statutory provisions that are to guide a trial court’s consideration of the best interest of the child. Thus, Clark’s notice of appeal and appellate brief reflect what judgment is being appealed from and what errors Clark is attempting to articulate, thereby authorizing our review of the trial court’s custody order for application of the proper legal standard.

Contrary to the majority’s contention that we are taking on the role of advocate, our failure to review the trial court’s custody order in this case is an abdication of this Court’s statutory duty “to bring about a decision on the merits of every case appealed[.]” OCGA § 5-6-30. As noted above, it is perfectly clear from Clark’s brief, the notice of appeal, and the record that she is appealing the custody order of the trial court. See OCGA § 5-6-48 (f). And “where the enumeration of errors filed in the appellate court identifies the trial court ruling asserted to be error, the error relied upon is sufficiently ‘set out separately’ to require the appellate court to shoulder its constitutional responsibility to be a court of review.” (Citation omitted; emphasis supplied.) Felix, 271 Ga. at 539. Moreover, although the majority complains about the potential dangers of creating enumerations of error on behalf of a litigant where none exist, it is important to keep in mind that

[t]he individual facets of [Clark’s] attack on the legal ruling with which [she] took issue are arguments in support of a legal position and are not, in and of themselves, errors of law. Because the arguments supporting a position concerning a legal ruling are not themselves legal rulings, they do not have to be enunciated in the enumeration of errors in order to merit appellate consideration . Such arguments, however, must be addressed by the appellate court if necessary to its decision on the issue of the propriety of the trial court’s ruling.

(Emphasis supplied.) Id. at 539-540.

Furthermore, the majority’s contention that, even in circumstances of a facially erroneous order, there is a “presumption of the regularity of court proceedings” is not in keeping with our duty as “courts for the correction of errors of law committed in the trial court.” Alston & Bird, LLP v. Mellon Ventures II, LP, 307 Ga. App. 640, 648 (6) (b) (706 SE2d 652) (2010).

In appellate practice, an error of law is a false or mistaken conception or application of the law. Such a mistaken or false conception or application of the law to the facts of a cause as will furnish ground for a review of the proceedings. An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling.

Decided July 15, 2016.

Kathrine Clark, pro se.

Duffy & Feemster, John R. Strother III, for appellee.

(Citation and punctuation omitted; emphasis supplied.) Felix, 271 Ga. at 539. In the present case, Clark sufficiently “set forth” her complaint about the trial court’s custody order, authorizing a review of that ruling for legal error.

For these reasons, the trial court’s order modifying the children’s custody is properly before us and should be reviewed on appeal. This is particularly true because making a custody decision is a “Solomonic task,” Smith v. Curtis, 316 Ga. App. 890, 892 (730 SE2d 604) (2012), and we should take care to ensure that trial courts apply the proper legal standard in this context where the stakes are so high. Given that the trial court’s order on its face fails to determine whether a change in custody would be in the best interest of the children, the judgment should be vacated and the case remanded to the trial court for application of the proper legal standard. Accordingly, I dissent from the majority’s opinion.

I am authorized to state that Presiding Judge Miller, Presiding Judge Ellington, and Judge McFadden join in this dissent.

       The record indicates that on September 15, 2015, the trial court granted Clark’s request to proceed in forma pauperis. In an October 15, 2015 communication to this Court, the trial court’s court reporting manager stated that Clark was provided with an estimate for the cost of “transcript production,” but “we have not heard from [Clark] regarding this matter, nor have we received a request to proceed with transcript production or a deposit.”

       While Clark’s brief contains a section headed “II. Enumeration of Errors,” it appears to be a disjointed conflation of a statement of facts with argument, but with no comprehensible citations to the record or to authorities as required by Rule 25 (a) (1) and (3). The brief contains no further argument, other than a truncated “Part III” which amounts to a prayer for relief.

       In asserting that the trial court’s order was not facially defective, the majority relies upon Weickert v. Weickert, 268 Ga. App. 624, 628-629 (2) (602 SE2d 337) (2004), but that case is clearly distinguishable. In Weickert, the trial court entered a “thoughtful and detailed, 15-page order” in which the court included an express finding that modification of child custody “would have the effect of promoting [the children’s] welfare.” (Emphasis supplied.) Id. at 627 (1), 628 (2). The trial court’s order in the present case contains no similar language about the “promotion” of the children’s welfare. Furthermore, the trial court entered its order in Weickert without the benefit of Bodne v. Bodne, 277 Ga. 445, 446 (588 SE2d 728) (2003), where our Supreme Court overruled prior precedent and held that “[w]hen exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test. This means that an initial custodial award will not always control after any ‘new and material change in circumstances that affects the child’ is considered.”


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A16A0640.
    SUMMEROUR v. CITY OF MARIETTA.
    (788 SE2d 921)
   Dillard, Judge.

The City of Marietta filed a condemnation petition to acquire property owned by Ray Summerour. Following a hearing, the court-appointed special master condemned the property and awarded Summerour $225,000, and, upon review, the trial court affirmed the special master’s award. On appeal, Summerour contends that the trial court erred in failing to dismiss the petition, arguing that the City neglected to provide a summary of the basis for its just-compensation offer in violation of OCGA § 22-1-9 (3), and that the City violated OCGA § 22-1-9 (7) by negotiating with him in bad faith. Additionally, Summerour contends that the trial court erred in failing, at the very least, to recommit the case to the special master to complete the record. For the reasons set forth infra, we vacate the trial court’s order and remand the case for further proceedings consistent with this opinion.

The record shows that in late 2009, the voters of the City of Marietta approved a referendum for a $25,000,000 parks bond, which included $3,750,000 for the expansion of the Elizabeth Porter Recreation Center. At the time of the referendum, Summerour owned property, which included a small grocery store, adjacent to the eastern border of the recreation center, and the City identified his property as one of nine properties that it needed to acquire for the expansion. Toward that end, on June 10, 2010, the City contacted Summerour, via letter, and informed him of its interest in purchasing his property, that it had hired an appraiser to determine the value of his property, and that it would make an offer to purchase the property based on that value.

Shortly thereafter, on June 23, 2010, the City again contacted Summerour, via letter, informing him that the appraiser had valued his property at $85,000, and offering to purchase the property at that price. Summerour did not respond, and on October 6, 2010, the City sent him another letter proposing the same offer. Yet again, Sum-merour did not respond.

For reasons not entirely clear from the record, the City did not correspond further with Summerour until May 23,2013, when it once again sent him a letter expressing its interest in purchasing his property This correspondence was followed by yet another letter sent on July 26, 2013, in which the City informed Summerour that his property had a current appraised value of $95,000 and that the small grocery store on the property had an appraised value of $46,700. Consequently, the City offered to purchase the property for $141,700.

In response to this latest offer, on August 13, 2013, Summerour sent the City a letter indicating that its offer was lower than he expected and requesting a summary of the appraisal. Summerour added that he would be hiring his own appraiser and that he had learned during his attendance of City Council meetings that the City was considering acquiring his property by way of eminent domain. The City initially did not formally respond to Summerour’s correspondence, and thus, on December 4, 2013, Summerour sent the City another letter, in which he offered to sell his property for $375,000. The City responded, via letter, on December 10, 2013, and increased its offer to $152,000 but further indicated that unless Summerour provided his own certified appraisal, the current offer would likely be its highest. Two days later, the City repeated the $152,000 offer, also via letter, and added a request that Summerour respond by December 18, 2013.

On December 17,2013, Summerour hand delivered a letter to the City, in which he rejected the City’s offer but requested that the parties meet in order to discuss the differences in their respective appraisals. Over the course of the next several months, Summerour hired legal counsel and an appraiser and requested that the City postpone any formal action with respect to the property until his appraiser determined its value. The City complied, and informal discussions, mostly via e-mails, between the parties continued. However, during these discussions, the City stressed that it did not believe that formal settlement meetings would be productive unless Sum-merour first provided the appraisal value of the property from his licensed appraiser.

Expressing his client’s frustration with the state of the negotiations, on May 8, 2014, Summerour’s counsel complained, via letter, that the City had never provided copies of its appraisals or a summary of same as required by OCGA § 22-1-9 (3). And in that same letter, Summerour’s counsel requested such information while also noting that Summerour hiring his own appraiser was not a prerequisite for negotiations under the statute. Then, shortly after this correspondence, the City delivered a summary of its appraiser’s report to Summerour, and the parties met for additional negotiations. Following this meeting, on May 16, 2014, the City sent a letter to Summer-our, in which it provided a full appraisal report dated July 17, 2013, and offered to purchase his property for $139,400. Over the course of the next few months, the parties continued negotiations but failed to reach an agreement. Consequently, on June 13, 2014, the City informed Summerour, via letter, that it was moving forward to acquire his property through condemnation.

On October 2, 2014, the City filed a condemnation petition to acquire Summerour’s property in the Superior Court of Cobb County Thereafter, Summerour filed an answer, and the trial court appointed a special master to conduct an evidentiary hearing on the matter. During that three-day hearing, both parties presented evidence regarding their respective valuations of the subject property, and Summerour also argued that the petition should be dismissed in light of the City’s alleged failure to comply with OCGA §22-1-9. On January 20, 2015, less than one week after the conclusion of the hearing, the special master issued a return finding that the City had complied with its statutory obligations and setting the fair market value of Summerour’s property at $225,000.

Both parties filed appeals and special exceptions to the special master’s return with the trial court. Subsequently, the trial court held its own hearing on the matter and ultimately entered an order adopting the special master’s return in its entirety and denying both parties’ special exceptions. Summerour then obtained a certificate of immediate review from the trial court and filed an application for interlocutory appeal with this Court, which we granted. This appeal follows.

Our analysis necessarily begins with the Takings Clause of the Fifth Amendment to the United States Constitution, which provides that private property shall not “be taken for public use, without just compensation.” Suffice it to say, private property rights are among “the most basic of human rights,” and it is the “charge of the courts to defend them vigilantly.” A classic taking is, of course, one in which “the government directly appropriates private property for its own use.” In this respect, the Supreme Court of the United States has explained that the Takings Clause is designed “not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Thus, governmental action that works a taking of property “necessarily implicates the ‘constitutional obligation to pay just compensation.’ ” And in reviewing a judgment from a condemnation proceeding, Georgia’s appellate courts have “applied an ‘any evidence’ standard of review to affirm the factual findings of the trial court.” But the standard of review for “a question of law on appeal is de novo.” Thus, when such a question is at issue, “we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” With these guiding principles in mind, we turn now to Summerour’s specific claims of error.

1. Summerour contends that the trial court erred in declining to dismiss the City’s petition on the ground that the City failed to provide a summary of the basis for its just-compensation offer in violation of OCGA § 22-1-9(3). We agree that, initially, the City failed to comply with the statute, and given this initial failure, we vacate the trial court’s ruling and remand the case for further proceedings consistent with this opinion.

Tasked with interpreting statutory language, we necessarily begin our analysis with “familiar and binding canons of construction.” Indeed, in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” In summary, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”

Here, OCGA § 22-1-9, entitled “Policies and practices guiding exercise of eminent domain,” provides:

In order to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assure consistent treatment for property owners, and to promote public confidence in land acquisition practices, all condemnations and potential condemnations shall, to the greatest extent practicable, be guided by the following policies and practices ... .

And in providing the details for one such policy and practice, OCGA § 22-1-9 (3) directs that

[bjefore the initiation of negotiations for fee simple interest for real property, the condemning authority shall establish an amount which it believes to be just compensation and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the condemning authority’s independent appraisal of the fair market value of such property. The condemning authority shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated. The condemning authority shall consider alternative sites suggested by the owner of the property as of the compensation offered[.]

Summerour argues that ‘Tefore the initiation of negotiations” the City failed to provide him with a summary of the basis for the amount it established as just compensation for his property Turning to the plain text of the statute, “summary” is not defined; but the term is most commonly understood as “of a statement or account . . . containing or comprising the chief points or the sum and substance of a matter” and “characterized by or involving conciseness or brevity.” Here, as previously noted, in June 2010, after earlier informing Summerour of its interest in purchasing his property and that it had hired an appraiser to determine its value, the City wrote Summerour, informed him that its appraiser valued the property at $85,000, and offered to purchase the property for that amount. When Summerour did not respond, the City sent him an identical letter in October 2010. Then, almost three years later (in 2013), the City informed Summer-our, via another letter, that his property had a current appraised value of $95,000 and that the small store on the property had a current appraised value of $46,700, and thus, the City would purchase the property for $141,700. And finally, in 2014, in response to Summerour’s specific request, the City finally provided him with a summary of its appraiser’s report, which it then followed with a letter providing a full appraisal report dated July 17, 2013, and an offer to purchase his property for $139,400.

The City contends that each of these offers complied with OCGA § 22-1-9 (3), but contrary to the City’s argument, the 2010 and 2013 offers do not contain a sufficient summary of the basis for the amount the City established as just compensation, and the sufficient summary that was provided in 2014 came far too late (i.e., long after “the initiation of negotiations”).

Specifically, the City’s June 23, 2010 “written statement of, and summary of the basis for, the amount it established as just compensation” for Summerour’s property was as follows:

The City of Marietta has employed a Certified Appraiser to appraise your property The Certified Appraiser has valued your property at $85,000. The purpose of this letter is to offer you the appraised value of your property Please review this offer and let me know if you are willing to sell your property to the City of Marietta for the certified appraised value.

The City’s October 6, 2010 offer was identical.

Before addressing the “substance” of the City’s three offers from 2013, it is worth noting that these offers are arguably of no consequence for purposes of our analysis because OCGA § 22-1-9 (3) explicitly requires a “condemning authority” to “establish an amount which it believes to be just compensation and [to] make a prompt offer to acquire the property for the full amount so established” prior to “the initiation of negotiations” with the property owner. And by the City’s own admission, it engaged in “constant and continuous negotiations” to acquire Summerour’s property since “early summer 2010.”

Nevertheless, even if we were to consider the City’s offers to Summerour on July 26, 2013, December 10, 2013, and December 12, 2013, they do no more than note (1) that “[t]he city has engaged a professional certified real estate appraiser to conduct a current appraisal on your property,” (2) the “current appraised value” of the property, (3) the value on “the business located on the property,” (4) “the total value of the property,” (5) the City’s desire to purchase the property for the total value of the property identified in the offers, and (6) aspects of the parties’ negotiations (including an increased offer to purchase the property).

Suffice it to say, none of the foregoing offers satisfies the dictates of OCGA § 22-1-9 (3). Indeed, the City, as the “condemning authority,” was required to provide Summerour, as “the owner of real property to be acquired,” with a “written statement of, and summary of the basis for, the amount it established as just compensation.” And while the dictionary definition of “summary” does not demand great detail, we find that the summary envisioned by the statute requires, at a minimum, information sufficient—as part of the “prompt offer” required prior to the initiation of the negotiations—to provide the property owner with the ability to meaningfully evaluate the offer. This is evident not only from the text and structure ofOCGA § 22-1-9 (3), but is also consistent with one of the explicitly stated purposes of OCGA § 22-1-9, which is “to encourage and expedite the acquisition of real property by agreements with owners.” Simply informing the property owner that the property has been appraised and that the amount offered is the appraised amount, while certainly concise, fails to convey the sum and substance of the basis of the offer.

However, as even Summerour seems to concede, the City’s 2014 offer, which contained a summary of the City’s appraiser’s report, did fully comply with OCGA § 22-1-9 (3). And although the City shortly thereafter provided Summerour with a full appraisal report, we do not find that the statute requires a condemning authority to provide this level of detail, which goes far beyond any reasonable definition of summary. Nevertheless, that Summerour ultimately received a full summary for the basis of the City’s offer does nothing to alter the fact that it took the City several years to comply with OCGA § 22-1-9 (3). Moreover, the fact that such a summary was not provided until nearly four years into the parties’ negotiations demonstrates that the City also ran afoul of the statute’s directive that such negotiations occur expeditiously and further bears on the issue of whether the City acted in bad faith, as we shall discuss infra. In sum, given the particular circumstances noted supra, we conclude that the trial court erred in finding that the City complied with the dictates of OCGA § 22-1-9.

2. Summerour also contends that the trial court erred in failing to dismiss the petition on the ground that the City negotiated in bad faith in violation of OCGA § 22-1-9 (7). Given our holding in Division 1, supra, we must vacate the trial court’s ruling and remand the case for further proceedings to resolve this issue.

OCGA § 22-1-9 (7) provides that “[i]n no event shall the condem-nor act in bad faith in order to compel an agreement on the price to be paid for the property[.]” And in the context of condemnation cases, the Supreme Court of Georgia has held that the term “bad faith” has been “sharply distinguished from negligence or bad judgment and has been equated with conscious wrongdoing motivated by improper interest or by ill will.” Even more specifically, our Supreme Court has explained that the term “bad faith” has been “used side by side with the word ‘fraud’ in describing those exercises of official discretion to condemn lands with which the courts will interfere.”

Decided July 8, 2016

Reconsideration denied July 21, 2016

Evans & Rhodes, Donald C. Evans, Jr., for appellant.

Here, in its findings and return, the special master cursorily concludes that the City met its obligations under OCGA § 22-1-9 and participated in good-faith negotiations. But given our holding in Division 1, supra, that the City’s 2010 and 2013 offers failed to comply with OCGA § 22-1-9 (3), the special master erred in finding that the City complied with, at the very least, this subsection of the statute. And because it is unclear from a review of the return whether the special master predicated its finding that the City engaged in good faith upon its finding that the City had at all times complied with OCGA § 22-1-9 (3), or whether it treated those separate issues dis-junctively, we must vacate the trial court’s order adopting the return and remand the case for further proceedings, in which the issue of bad faith is more fully explored.

3. Finally, Summerour contends that the trial court erred in failing, at the very least, to recommit the case to the special master so that he can seek discovery from the City “and test whether the City’s initial offer to purchase his property was for the full appraised value[.]” As previously noted, OCGA § 22-1-9 (3) requires that, prior to the “initiation of negotiations,” the condemning authority “shall establish an amount which it believes to be just compensation and shall make a prompt offer to acquire the property for the full amount so established,” which, “[i]n no event shall ... be less than the condemning authority’s independent appraisal of the fair market value of such property.” Given our holding in Division 1, supra, we also must remand the case for further proceedings to allow the trial court to reconsider Summerour’s request for any evidence related to the foregoing statutory directives.

For all of the foregoing reasons, we vacate the trial court’s order adopting the special master’s return, and we remand this case for further proceedings consistent with this opinion. In doing so, it is important to note that while Summerour has argued for the dismissal of the City’s condemnation petition, we do not address in this opinion the issue of the proper remedy for the City’s failure to comply with OCGA § 22-1-9. Indeed, given our remand of this case and directive to the trial court in that regard, any discussion of ultimate remedies would be premature.

Judgment vacated and case remanded.

Phipps, P. J., and Peterson, J., concur.

Haynie, Litchfield, Crane & White, Douglas R. Haynie, Dan iel W. White, for appellee.

       U. S. Const. amend. V; see also Ga. Const. Art. 1, Sec. 3, Para. I (a) (“Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”); OCGA § 22-1-5 (“Except incases of extreme necessity and great urgency, the right of eminent domain cannot be exercised without first providing for just compensation to the owner for the interference with his exclusive rights.”); OCGA § 22-1-6 (“If a person who is authorized to exercise the power of eminent domain cannot by contract procure the property ... or other interest sought to be condemned, the person may take or damage the property or interest upon paying or tendering to the owner thereof just and adequate compensation.”); Horne v. Dep’t of Agric., _ U. S. _, _ (II) (A) (1) (135 SCt 2419, 192 LE2d 388) (2015) (“The principle reflected in the [Takings] Clause goes back at least 800 years to [the] Magna Carta . . ..”); Letter from William Pierce to St. George Tucker (Sept. 28, 1787), Gazette of the State of Ga., Mar. 20, 1788, excerpted in Thurston Greene, The Language of the Constitution 614 (1991) (“I conceive civil liberty is sufficiently guarded when personal security, personal liberty, and private property, are made the peculiar care of government.”).

       William K. Lane III, “Your Raisins or Your Life”: The Harrowing of the Takings Clause in Horne v. U.S. Department of Agriculture, 750 F3d 1128 (9th Cir. 2014), 38 Harv. J. Law & Pub. Pol’y 761, 761 (2015) (quoting Milton Friedman & Rose D. Friedman, Two Lucky People: Memoirs 605 (1998)).

       Lane, supra note 5, at 761; see also John Locke, The Second Teatise, Two Treatises of Government § 124 (Peter Lasletted., Cambridge Univ. Press 1960) (1698) (“The.great and chief end, therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.”); OCGA § 22-1-3 (“It is the province of the General Assembly to determine when the right of eminent domain may be exercised. If, however, under pretext of such necessity the General Assembly should pass a law authorizing the taking of property for private use rather than for public use, the courts should declare the law inoperative.”).

        Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U. S. 302, 324 (IV) (122 SCt 1465, 152 LE2d 517) (2002) (quoting E. Enters. v. Apfel, 524 U. S. 498, 522 (IV) (A) (118 SCt 2131, 141 LE2d 451) (1998)).

        First English Evangelical Lutheran Church of Glendale v. Cty. of Los Angeles, 482 U. S. 304, 315 (II) (107 SCt 2378, 96 LE2d 250) (1987); see also Armstrong v. United States, 364 U. S. 40, 49 (III) (80 SCt 1563, 4 LE2d 1554) (1960) (“The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”); Mayor and City Council of Baltimore City v. Valsamaki, 916 A2d 324, 335 (II) (Md. 2007) (“The right to private property, and the protection of that right, is a bedrock principle of our constitutional republic.”).

        First English Evangelical Lutheran Church of Glendale, 482 U. S. at 315 (II); see also Pa. Coal Co. v. Mahon, 260 U. S. 393, 415 (43 SCt 158, 67 LE 322) (1922) (“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”).

        Concept Capital Corp. v. DeKalb Cty., 255 Ga. 452, 452 (1) (339 SE2d 583) (1986); accord City of Atlanta v. Heirs of Champion, 244 Ga. 620, 622 (261 SE2d 343) (1979).

        Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011) (punctuation omitted).

        Id. (punctuation omitted).

        Holcomb v. Long, 329 Ga. App. 515, 517 (1) (765 SE2d 687) (2014); accord In the Interest of L. T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (punctuation omitted); accord Holcomb, 329 Ga. App. at 517 (1); Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).

        See Holcomb, 329 Ga. App. at 517 (1); accord Deal, 294 Ga. at 172 (1) (a); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“A statute draws its meaning, of course, from its text.”) (citation and punctuation omitted); Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015) (same); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies)....”); Singletary v. State, 310 Ga. App. 570, 572 (713 SE2d 698) (2011) (“In construing these statutes, we apply the fundamental rules of statutory construction that require us to construe the statutes according to their terms, [and] to give words their plain and ordinary meaning . . . .” (punctuation omitted)).

        See Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _ (II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (Scalia, J.) (“Words that can have more than one meaning are given content, however, by their surroundings.” (citation and punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); accord Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46) (2012); Holcomb, 329 Ga. App. at 517 (1); see also Tibbles, 297 Ga. at 558 (1) (“The common and customary usages of the words are important, but so is their context.”) (citation and punctuation omitted); Chan, 296 Ga. at 839 (1) (same).

        Deal, 294 Ga. at 172-73 (1) (a); accord Holcomb, 329 Ga. App. at 518 (1).

        In the Interest of L. T., 325 Ga. App. at 592 (punctuation omitted); accord Deal, 294 Ga. at 172-73 (1) (a); Holcomb, 329 Ga. App. at 518 (1).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013); see also Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

        See Holcomb, 329 Ga. App. at 518 (1) n. 15 (explaining that “[a]s a part of an act passed by the General Assembly and approved by the governor, the [codified] preamble of a statute may properly be considered by our courts to the extent that it sheds light on the meaning of the substantive terms contained in the statute”).

       OCGA § 22-1-9 (3).

       The Compact Oxford English Dictionary 1959 (2d ed. 1991).

        Id.

        See OCGA § 22-1-9 (“In order to encourage and expedite the acquisition of real property by agreements with owners . . . .”).

        City of Atlanta v. First Nat. Bank of Atlanta, 246 Ga. 424, 424-25 (271 SE2d 821) (1980); accord Concept Capital Corp., 255 Ga. at 453 (3); Brannen v. Bulloch Cty., 193 Ga. App. 151, 154 (387 SE2d 395) (1989).

        City of Atlanta, 246 Ga. at 425.


author: Rickman, Judge.

text:
    A16A1074.
    TORRES v. THE STATE.
    (789 SE2d 634)
   Rickman, Judge.

Ofelia Torres was charged with trafficking in methamphetamine and other crimes. She filed a motion to suppress the evidence seized during the execution of a search warrant for a residence, arguing that the materials submitted in support of the warrant contained insufficient facts to support a finding of probable cause for the warrant. The trial court denied the motion, and Torres filed this appeal. For the reasons that follow, we reverse.

On appellate review of a trial court’s decision on a motion to suppress evidence, we accept the trial court’s ruling on disputed facts unless it is clearly erroneous, but the trial court’s application of the law to undisputed facts is subject to de novo review. See Petty v. State, 283 Ga. 268, 269 (2) (658 SE2d 599) (2008).

“A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed.” State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009) (citing OCGA § 17-5-21 (a)).

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Citations and punctuation omitted.) Id. On appeal, we apply a totality of the circumstances analysis “to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant,” and we are mindful that “a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.” (Citations and punctuation omitted.) Id. at 78.

The record shows that, as part of an undercover narcotics investigation, Cherokee County law enforcement officers followed a target from his home to the Cowan Road area of Acworth, where they lost sight of him. Later, the officers spotted the target in Woodstock, this time with a male passenger. They conducted a traffic stop and arrested the target for possession of methamphetamine. During the ensuing investigation, the target offered to show the officers where he had purchased the methamphetamine. From the location the target described, the officers believed the residence was located in Acworth. Accordingly, the officers contacted the City of Acworth Police Department and briefed them on the issue. The target, now informant, led the City’s officers to the residence and told them that he had purchased the methamphetamine there earlier that day and had seen an additional two to three ounces of methamphetamine in the apartment. He also stated that a Hispanic female and Hispanic male lived in the apartment. While one officer returned to the police station to apply for a search warrant, other officers watched the residence. The officers saw no drug-related activity, but did observe a Hispanic male entering and exiting the residence.

The record further reveals that the officers did not have prior knowledge of any drug activity at that residence. They had, however, previously responded to calls about suspicious “oddball” activity at that address, and had made contact with a Hispanic female and male there. Those calls did not result in any arrests or ongoing investigations and, at the time he applied for the search warrant, the City officer was not certain that he had been in contact with the same individuals as those referenced by the informant.

Relying on this information, the officer applied for and obtained a search warrant for the residence. The search resulted in the arrest of Torres and her co-defendant, Olvin Padilla.

On appeal, Torres argues that the trial court erred in denying her motion to suppress because the affidavit and application for the warrant were based on information that came from a confidential informant whose reliability was not sufficiently demonstrated and that was not sufficiently corroborated by police investigations. Torres maintains that, considering the totality of the circumstances, there was no probable cause to support the warrant. We agree.

Where the State seeks to establish probable cause through information provided by an unidentified informant, the informant’s veracity and basis of knowledge are major considerations in the probable cause analysis. An affidavit [and/or the sworn testimony] submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.

(Punctuation, footnotes and emphasis omitted.) Lyons v. State, 258 Ga. App. 9, 11 (1) (572 SE2d 632) (2002).

It is undisputed that, prior to the search warrant at issue in this case, the informant had not established a history of reliability with the City’s law enforcement department, and the officers did not investigate the informant’s criminal history before relying on the informant’s statements to apply for the search warrant. In cases where, as here, a confidential informant has not been shown to be credible or reliable, the information he provides may be proven trustworthy if portions of the information are sufficiently corroborated by law enforcement. Lyons, 258 Ga. App. at 11 (1). For the corroboration to be meaningful, however,

the information corroborated must include a range of details relating to future actions of third parties not easily predicted. That is, the tip must include inside information not available to the general public; otherwise, the corroboration is not sufficiently meaningful to show reliability

(Punctuation and footnote omitted.) Id. at 11-12 (1). In Lyons, the affidavit in support of the warrant stated that the informant had told officers that “Claude Lyons” was wanted in Florida on narcotics charges, that Lyons was using a certain apartment as a drug stash house, and that the informant had seen several ounces of cocaine in the residence. A police investigation corroborated the informant’s identification of Lyons as a fugitive from Florida, as well as his address and vehicle information. Id. at 10 (1). Despite that corroboration, we found error in the trial court’s denial of the defendant’s motion to suppress. In our opinion, we emphasized that “[a]n unvarnished statement that the informant has seen drugs in someone’s house cannot establish probable cause to search,” and that, although officers corroborated the informant’s identification of the defendant’s residence and vehicle, the confirmation of such “publicly available details” was not sufficient corroboration of illegal activity (Footnote omitted.) Id. at 12 (1).

In the instant case, the informant gave some details as to where and when he saw the drugs in the residence — according to the application for the search warrant, the informant stated that he saw two to three ounces of methamphetamine “sitting on a shelf in the residence” earlier that day when he bought drugs there — but he did not provide the officers with the names or any identifying details of the individuals living in the residence, except that they were a Hispanic male and female. Even if we accept the officers’ observation of a Hispanic male entering and exiting the residence as corroboration of the informant’s assertion that a Hispanic male lived there, this detail was not sufficient to establish that the informant was a credible source of information as to the alleged criminal activity at the residence because it is not a detail that would be unavailable to the general public. See Lyons, 258 Ga. App. at 10-11 (1).

Decided July 22, 2016.

Thomas E. Griner, for appellant.

The State contends that, despite the informant’s lack of established credibility and the very limited amount of corroborating surveillance by the police, the warrant was nonetheless justified under the totality of the circumstances. In support of its argument, the State emphasizes that the informant provided information that was against his own penal interest and that his statements were consistent with the officers’ observations, including their tracking him to the area near the residence.

The State is correct that “[w]hen a named informant makes a declaration against his interest and based on personal observation, that in itself provides a substantial basis for the magistrate to credit his statement.” (Citation and emphasis omitted.) State v. Wesson, 237 Ga. App. 789, 791 (516 SE2d 826) (1999). We have explicitly held, however, that this “principle of law applies to named informants, i.e., those informants whose identities have been disclosed to the magistrate.” (Citations and emphasis omitted.) Id. In this case, the informant was not identified to the magistrate, so the statement against interest rule does not control. See id.; see also Bragg v. State, 249 Ga. App. 430, 431-432 (2) (548 SE2d 121) (2001).

As to the State’s reliance on the fact that Cherokee County officers had tracked the informant to the area near the residence before they found him with methamphetamine, we note that nothing in the record indicates how long the informant was out of the officers’ view or clearly indicates how close he was to the residence at issue. Consequently, these additional considerations do not overcome the weaknesses in the information upon which the warrant was based.

Because the application and affidavit for the search warrant in this case contained insufficient information to allow a finding of probable cause to search the residence, the trial court erred in denying Torres’s motion to suppress.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

       We granted Torres’s application for interlocutory review. See Case No. A16I0026.