author: McFadden, Judge.

text:
    A11A0650.
    DAVIS v. THE STATE.
    (711 SE2d 324)
   McFadden, Judge.

A jury found Victor Davis guilty of voluntary manslaughter as a lesser included offense of felony murder, aggravated assault, possession of a firearm during the commission of a felony and false imprisonment. The trial court entered judgments of conviction, merged the aggravated assault into the voluntary manslaughter for purposes of sentencing, and denied Davis’s motion for new trial. Davis appeals, arguing that the evidence does not support the verdicts, given his claim of self-defense, that trial counsel was ineffective for failing to object to the presence of SWAT team members in the courtroom, and that the trial court should have charged the jury on involuntary manslaughter. We find the evidence sufficient to support the verdicts, that there is no reasonable probability that the presence of the SWAT team members affected the outcome, and that the evidence did not support a charge on involuntary manslaughter. Therefore, we affirm.

1. “On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain [whether] the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009).

Viewed in favor of the verdicts, the evidence shows that the victim was Marshall Cameron. Cameron’s uncle, who lived next door, went to Cameron’s house and discovered his body dead on the floor. The uncle heard Cameron’s house-mate, Darrell Monford, calling his name and found Monford in a bedroom closet. Monford’s hands were restrained behind his back with flex cuffs, and he had been gagged.

Cameron’s body was in the doorway of Monford’s bedroom. Cameron’s bedroom had been ransacked. Based on the trail of blood from that room, the police determined that Cameron had been shot there. Two pillows in Cameron’s room were saturated with blood, and one had been shot; a bullet was found in that pillow. Blood was dripping down the bedroom wall, and the wall was marked with bloody hand prints. The bedroom door had a bullet hole in it. Some of the wood residue from the door was found on Cameron’s face. Cameron suffered five gunshot wounds. Three of the wounds independently could have caused Cameron’s death.

Davis had been tried before, resulting in not guilty verdicts on charges of malice murder and kidnapping. The jury could not reach verdicts on the remaining charges. Davis testified at his first trial, and his testimony was read to the jury at the retrial. Davis admitted shooting Cameron, but claimed that the first shot was accidental and the subsequent shots were self-defense. He knew Cameron and Monford from high school and had been staying with them. The three men were continuously smoking crack cocaine, supplied by Cameron.

According to Davis’s testimony, Davis was alone in Cameron’s room, sitting on the bed and smoking crack, when Cameron entered the room with a gun. Cameron was angry, saying that Davis was smoking his dope, eating his food, living in his house and talking about Cameron behind his back. Davis believed Cameron was angry because Davis would not sleep with him. Davis moved the crack to tempt Cameron, and as Cameron put the gun down to reach for the drugs, Davis lunged for it. Cameron grabbed Davis’s wrist. The men fell, and the gun went off, shooting Cameron in the head. Cameron fell to the floor. Cameron got up, threatening to kill Davis, and Davis retreated, firing more shots. Cameron fell dead in the threshold of the doorway to the other bedroom. Davis was afraid Monford would not allow him to leave, so he pointed the gun at him, restrained him, gagged him and put him in the closet.

Davis contends the evidence was insufficient to support the verdicts of voluntary manslaughter and aggravated assault because it did not disprove his claim of self-defense.

[A] person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

OCGA § 16-3-21 (a). “When a defendant contends that the evidence shows he was justified in using such deadly force, the [s]tate has the burden of disproving this defense beyond a reasonable doubt.” Brown v. State, 242 Ga. App. 106, 107 (1) (528 SE2d 868) (2000). However, “[wjhether or not the evidence shows that a person had a reasonable belief that it was necessary to use deadly force to prevent death or great bodily injury to himself is a question for the jury.” Id.

Davis testified that the initial shot to Cameron’s head was an accident and that he kept shooting because Cameron threatened to kill him. This evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that Davis did not justifiably use deadly force to protect himself — after Cameron already had been shot in the head — from Cameron’s assault. See Linzy v. State, 277 Ga. App. 673, 674 (627 SE2d 411) (2006); Brown, supra at 242 Ga. App. 106-107 (1). Or the jury simply could have disbelieved Davis’s claim of self-defense, given the number of gunshots fired. See Stanley v. State, 254 Ga. 376 (329 SE2d 500) (1985) (evidence of multiple gunshots authorized jury to reject defendant’s claim of self-defense). The evidence was also sufficient to show beyond a reasonable doubt that Davis was guilty of voluntary manslaughter in that he shot and killed Cameron out of “a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Thomas v. State, 174 Ga. App. 560 (330 SE2d 777) (1985) (upholding conviction for voluntary manslaughter when appellant hit the victim on the back of the head with a vodka bottle after the victim made a homosexual advance to him, causing appellant to fear a sexual assault).

Davis’s challenge to the sufficiency of the evidence to support the aggravated assault conviction is moot because the trial court merged that count with the voluntary manslaughter count for purposes of sentencing. Respres v. State, 244 Ga. App. 689, 690 (1) (536 SE2d 586) (2000).

2. Davis asserts that trial counsel was ineffective in failing to request a mistrial or curative instructions because of the presence of SWAT team members in the courtroom. In order to prevail on an ineffectiveness claim, a defendant must establish that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003). “[W]here, as here, the issue is the ineffective assistance of trial counsel in failing to object to [security measures], [Davis] is entitled to relief only if he . . . can show that there is a reasonable probability that the [security measures] affected the outcome of the trial.” Whatley v. Terry, 284 Ga. 555, 571-572 (V) (D) (668 SE2d 651) (2008). Davis has not shown with reasonable probability that the presence of the SWAT team members in the courtroom affected the outcome of the trial.

Decided May 11, 2011

Reconsideration denied June 8, 2011.

Dell Jackson, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

3. Davis argues that the trial court erred by refusing to charge the jury on involuntary manslaughter. The trial court charged the jury on both self-defense and accident. A charge on involuntary manslaughter is not generally allowed where the defendant alleges self-defense, as Davis did regarding the shots he fired after the first shot. Crawford v. State, 245 Ga. 89 (263 SE2d 131) (1980). Nor, under these facts, did the defense of accident as to the first shot require such a charge. “It is well established that if the victim’s death was truly accidéntal, a charge on involuntary manslaughter in the commission of a lawful act is not warranted as no crime would have occurred.” (Citation and punctuation omitted.) Brown v. State, 277 Ga. 53, 54 (2) (586 SE2d 323) (2003); see OCGA § 16-5-3 (b). A charge on involuntary manslaughter in the commission of an unlawful act other than a felony was not required, given that the evidence relied upon by Davis established either that the pistol discharged accidentally when Cameron wrestled for its control or that Davis intentionally fired the weapon. Brown, supra at 277 Ga. 54-55; see OCGA § 16-5-3 (a).

Davis cites Vick v. State, 166 Ga. App. 572 (305 SE2d 17) (1983), for the proposition that the evidence supported a charge on involuntary manslaughter. Vick has been overruled. In 1991 this court held that when the trial court charges the jury on self-defense and accident, its refusal to charge on involuntary manslaughter is not error. Bangs v. State, 198 Ga. App. 404, 405-406 (2) (401 SE2d 599) (1991). Bangs overruled all decisions to the contrary.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A11A0317.
    BATTISE v. THE STATE.
    (711 SE2d 390)
   PHIPPS, Presiding Judge.

Marvin Battise, Jr., was convicted of armed robbery. He argues that the evidence was insufficient to authorize his conviction and that he received ineffective assistance of counsel. Finding no merit in Battise’s claims, we affirm.

1. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed the following. Between approximately 5:15 and 5:30 a.m. on August 14, 2007, a restaurant worker was using a pressure washer in the restaurant’s lit parking lot. Two men walked into the parking lot; they approached the worker from behind and one said “drop it.” The worker turned and saw the men pointing guns at him. One of the men walked toward the worker and ordered the worker to give him his money. He was “up right on [the worker] . . . with the gun . . . pretty much in [the worker’s] chest.” The two men forced the worker to walk to his truck, from which the worker retrieved some money and gave it to the men. The men then left, and the worker sought help. Later that day, the worker was shown a photographic array from which he identified Battise as the man who had put the gun to his chest. He subsequently made an in-person identification of Battise.

At trial, the worker again identified Battise as the man who had put the gun to his chest. He testified that he looked Battise in the face the “whole time” Battise held the gun to his chest. He also testified that he was able to see both men as he retrieved the money from his truck.

Battise argues that the worker’s identification of him as one of the robbers was insufficient to support his conviction, on the ground that the identification was not reliable and was not corroborated by other evidence. But the reliability of that identification was a question for the jury. Moreover, “the testimony of a single witness is generally sufficient to establish a fact, and this includes a victim’s uncorroborated identification of an assailant.” The worker’s testimony that Battise was the robber authorized the jury to find Battise guilty of the armed robbery.

2. Battise argues that he received ineffective assistance of counsel. To prevail, he

must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

We need not address both components of the Strickland test if the showing on one is insufficient, and we need not address the components in any particular order.

(a) Battise argues that his trial counsel committed professional error by failing to call'Battise’s mother as a witness. “The determination of which witnesses to call is a strategic and tactical decision within the exclusive province of the attorney after consultation with the client.” “Decisions based on counsel’s reasonable trial strategy do not constitute deficient performance, and this [c]ourt does not evaluate trial counsel’s tactics and strategic decisions in hindsight.” There is a “strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment.”

Battise testified at the hearing on his motion for new trial that he wanted trial counsel to call his mother to testify that he was at home asleep several hours before the robbery occurred. Battise’s mother testified at that hearing that, at 11:45 on the night before the robbery, she saw Battise in bed, apparently asleep; however, she could not testify to his whereabouts at the time the robbery occurred. Battise’s trial counsel testified that one reason she did not call his mother as a witness was that his mother could not provide an alibi for Battise for the time of the robbery. The trial court was authorized to find that Battise did not meet his burden under the first prong of Strickland,

Decided June 8, 2011.

Richard M. Darden, for appellant.

Larry Chisolm, District Attorney, Julayaun M. Waters, Assistant District Attorney, for appellee.

(b) Battise argues that he received ineffective assistance of counsel because his trial counsel did not seek funds for expert witness testimony on the reliability of eyewitness identification, and did not introduce any such expert testimony at trial. But Battise has made “neither a proffer of what the testimony of the expert would have been nor a showing that the trial court would have abused its discretion in denying... a motion [for funds to hire such an expert].” Consequently, Battise has not shown that he was prejudiced by any trial counsel error in this regard.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       The trial court denied Battise’s motion to suppress the pre-trial identifications, and Battise has not challenged that decision on appeal.

       See Scott v. State, 297 Ga. App. 577, 580 (677 SE2d 755) (2009); Wallace v. State, 289 Ga. App. 497, 499 (657 SE2d 874) (2008).

        Wallace, supra at 498-499 (citation and punctuation omitted).

       See OCGA § 16-8-41 (a) (a person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon); Scott, supra; Wallace, supra at 498.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007) (footnotes omitted).

       See id.

        Reid v. State, 286 Ga. 484, 486 (3) (a) (690 SE2d 177) (2010) (citation and punctuation omitted).

        Upton v. Parks, 284 Ga. 254, 257 (2) (664 SE2d 196) (2008) (citation and punctuation omitted).

        Kendrick v. State, 287 Ga. 676, 680 (4) (699 SE2d 302) (2010) (citation and punctuation omitted).

       See Ventura v. State, 284 Ga. 215, 218-219 (4) (663 SE2d 149) (2008) (appellant did not satisfy either prong of Strickland test regarding trial counsel’s decision not to call witness, where trial counsel testified at hearing on motion for new trial that he believed witness’s testimony would not have been helpful to appellant).

        Holmes v. State, 295 Ga. App. 192, 193-194 (671 SE2d 236) (2008).

       See id. at 194.


author: Andrews, Judge.

text:
    A11A0323.
    KITCHINGS v. AMERIS BANK et al.
    (711 SE2d 392)
   Andrews, Judge.

Phyllis Anne Kitchings appeals from the trial court’s order granting summary judgment to Ameris Bank and Patch Nursery and Landscaping Company on Kitchings’s claim to cancel deeds executed by her mother before her death to the bank and the nursery. Because the trial court correctly held that the bank and the nursery were entitled to claim the defense of bona fide purchasers for value, we affirm.

The undisputed facts in this case are as follows. Kitchings is the daughter of Thomas Cannon, Sr., whose will was probated on April 25, 1998. Cannon, Sr.’s will created two trusts for the support of his wife Christine Cannon during her lifetime. Upon her death, any property remaining reverted to a remainder trust to be distributed among their children: Thomas R. Cannon, Jr., Ralph James Cannon, and Kitchings. Christine Cannon and Thomas Cannon, Jr., were appointed co-trustees under the will.

On January 9, 2002, Christine Cannon and Cannon, Jr., transferred all of the real property in the trust to Christine Cannon. In May 2005, Christine Cannon began selling or mortgaging the real property. Christine Cannon died on August 19, 2008. Under Christine Cannon’s will, the bulk of her estate went to son Thomas Cannon, Jr. According to Kitchings, she and her brother Ralph received no interest in the property that was originally part of the remainder trust.

Kitchings first sued Thomas Cannon, Jr., and the estate of Christine Riley Cannon, seeking an accounting and alleging breach of fiduciary duty, breach of trust agreement, fraud, and cancellation of deed. Kitchings later amended her complaint to include claims against the buyers of the different tracts of property and also against the banks who lent money on certain properties, seeking to cancel the deeds to property sold or mortgaged by Christine Cannon.

Although Kitchings sued six different entities seeking to cancel their deeds, the only two before us at this time are Ameris Bank, the holder of a security interest in one tract of land, and Patch Nursery, the buyer of one of the properties. Ameris Bank and Patch Nursery filed motions for summary judgment which the trial court granted. The trial court granted summary judgment to defendants on three separate grounds: first, it held that Patch Nursery was a bona fide purchaser for value and Ameris Bank, as grantee of a security deed in good faith, was entitled to the same protection; second, that Kitchings’s complaint was barred by laches; and third, that Ameris Bank and Patch Nursery had acquired prescriptive title to the properties.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). Under OCGA § 9-11-56 (e), when a party moves for summary judgment and supports his or her motion by submitting affidavits, depositions, or answers to interrogatories, the nonmoving party may not rest upon the mere allegations or denials of his [or her] pleading, but his [or her] response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he [or she] does not so respond, summary judgment, if appropriate, shall be entered against him [or her],

(Punctuation omitted.) Gallagher v. Buckhead Community Bank, 299 Ga. App. 622 (683 SE2d 50) (2009).

1. Kitchings first argues that the trial court erred in holding that Patch Nursery and Ameris Bank were bona fide purchasers for value. Kitchings contends that the co-trustees’ distribution of all the property in a single transfer to Christine Cannon was sufficient to put a reasonably prudent title examiner on notice that the transfer was a mismanagement of the assets of the trusts, a breach of the trust agreement and a breach of the co-trustees’ fiduciary duty to the remainder beneficiaries.

As a general rule, a bona fide purchaser for value is protected against outstanding interests in land of which the purchaser has no notice. Farris v. Nationsbanc Mtg. Corp., 268 Ga. 769, [771] (2) (493 SE2d 143) (1997); OCGA §§ 23-1-19, 23-1-20. We have long held that a grantee in a security deed who acts in good faith stands in the attitude of a bona fide purchaser, and is entitled to the same protection.

(Punctuation omitted.) Brock v. Yale Mtg. Corp., 287 Ga. 849, 852 (1) (700 SE2d 583) (2010).

To qualify as a bona fide purchaser for value without notice, a party must have neither actual nor constructive notice of the matter at issue. Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Whiten v. Murray, 267 Ga. App. 417, 421 (2) (599 SE2d 346) (2004). A purchaser of land is charged with constructive notice of the contents of a recorded instrument within its chain of title. VATACS Group v. HomeSide Lending, 276 Ga. App. 386, 391 (2) (623 SE2d 534) (2005). Furthermore, the grantee of a security interest in land and subsequent purchasers are entitled to rely upon a warranty deed that is regular on its face and duly recorded in ascertaining the chain of title.

Deutsche Bank Nat. Trust Co. v. JP Morgan Chase Bank, 307 Ga. App. 307, 309 (704 SE2d 823) (2010).

Here, Thomas Cannon, Sr.’s will granted to the trustees the power “[t]o sell, exchange, partition or otherwise dispose of any property at any time held or acquired under this will. . . for such purposes as my personal representatives may deem best. ...” The will further provided:

My primary desire is that my spouse be supported in a reasonably comfortable manner throughout life rather than the preservation of principal until the termination of this trust, and I wish my Co-Trustees to be guided by this consideration in determining the amount to be used for the support of my spouse. . . .

(Emphasis supplied.)

The title search shows that the property was transferred to Christine Cannon through a Trustees Deed of Distribution, from the remainder trust to the primary beneficiary of the trust. The wording of the trusts at issue, as set out previously, allows the trustees to sell or dispose of any property, at any time, for reasons they may deem best, for the benefit of Christine Cannon.

“A purchaser of land is charged with constructive notice of the contents of a recorded instrument within its chain of title. Conversely, a purchaser is not charged with constructive notice of interests or encumbrances which have been recorded outside the chain of title.” Gallagher, supra at 625 (1). Here, there is nothing in the chain of title or the trust instruments that would put either the bank or Patch Nursery on notice that there were any issues affecting title to the properties. The provisions of Cannon, Sr.’s will gave broad discretion to the trustees. Thus, there was nothing in the documents themselves sufficient “to excite attention and put a party on inquiry.” See Whiten, supra at 421. See also Beecher v. Carter, 189 Ga. 234 (5 SE2d 648) (1939) (“Where a purchaser of land from one in possession, who holds a deed thereto [that] is absolute on its face, has paid the purchase-price and taken possession, parties claiming an equity therein of which the purchaser had no notice are not entitled to have purchaser’s deed canceled.”).

Accordingly, there was no error in the trial court’s grant of summary judgment to Ameris Bank and Patch Nursery on the grounds that they were entitled to the protection of bona fide purchaser for value on Kitchings’s claim to cancel their deeds.

2. In light of our holding in Division 1, we need not address Kitchings’s remaining enumerations of error.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Decided June 8, 2011.

Howell & Parrott, Robert D. Howell, Kathryn C. Dove, for appellant.

Mills & Larkey, Ben B. Mills, Jr., Fallin & McIntosh, William G. Fallin, Kirbo & Kirbo, Clifford M. Kirbo, Helen V. Kirbo, Powell & Erwin, William A. Erwin, Moore, Clarke, DuVall & Rodgers, David B. Folsom, W. Edward Meeks, Jr., Robert B. Langstaff, Jr., James C. Jones III, Kenneth E. Futch, Jr., for appellees.

       Those are the only claims before us in this appeal.


text:
    A11A0621, A11A0622.
    HENDRIX v. EAGLE NECK HOMEOWNERS’ ASSOCIATION, INC.; and vice versa.
    (711 SE2d 395)
   Andrews, Judge.

Thomas Hendrix, a property owner in Eagle Neck subdivision, filed a petition for injunctive relief seeking to “restrain and enjoin” the Eagle Neck Homeowners’ Association from violating certain restrictive covenants in its Declaration of Covenants, Conditions and Restrictions. Hendrix claimed the Association was violating Section 3.1 by allowing commercial use of the subdivision’s private airstrip and was also violating Section 2.15 by allowing homeowners to drill private wells on their lots. The trial court granted summary judgment to the Association on Hendrix’s claim to enjoin commercial use of the airstrip but denied summary judgment on his claim for violations allowing the drilling of wells.

In Case No. A11A0621, Hendrix appeals the trial court’s sua sponte grant of summary judgment to the Association on his claim for violations under section 3.1. In Case No. A11A0622, the Association appeals, claiming the trial court should have granted it summary judgment sua sponte on Hendrix’s claim for violations of Section 2.15. For reasons that follow, we affirm in both cases.

Case No. Al 1A0621

Hendrix appeals from the trial court’s grant of summary judgment to the Association on his claim that the Association violated Section 3.1 of the covenants by allowing the subdivision’s runway to be used for commercial purposes.

Summary judgment is proper when the evidence, construed in the nonmovant’s favor, shows that no issue of material fact remains and the movant is entitled to judgment as a matter of law. A defendant may prevail on summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case.” Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We review the trial court’s grant or denial of summary judgment de novo. See Carter v. Parish, 274 Ga. App. 97 (616 SE2d 877) (2005).

Section 3.1 of the “Declaration of Covenants, Conditions and Restrictions of Eagle Neck Subdivision,” provides:

The Developer, for itself, its successors and assigns, hereby covenants to convey to the Association as common properties legal title to all areas which are so indicated upon the aforedescribed plat of survey. The Developer will retain title and all rights on the adjacent airstrip and airstrip areas; however, ingress and egress between the airstrip and lots designated as having airstrip access will be guaranteed. The Developer further guarantees all lot owners the right to use the airstrip for private, non commercial purposes and to provide each lot owner without airstrip access one aircraft tiedown space at no cost. The Developer may at some time in the future decide to convey the airstrip and the airstrip areas to the Association.

Hendrix alleged in his petition that the Association was allowing one of the lot owners who also owned Fins and Feathers, a hunting and fishing club adjacent to the property, to fly in customers of the club for “profit and commercial purposes.”

The trial court held that Hendrix was not entitled to injunctive relief because there was no evidence showing any actual use of the airstrip for commercial purposes; accordingly, there was nothing to enjoin.

Both below and on appeal, Hendrix’s evidence in support of this claim was an advertisement from Fins and Feathers describing its amenities as including an airstrip adjacent to its property which provided guests with “the ability to fly in and fly out,” and a letter sent by the Association to outside users of the airstrip trying to raise money by leasing the rights to land at the airstrip.

The Association submitted undisputed evidence that, although the Association did send out letters to nonresidents attempting to collect fees in return for use of the runway, the Association abandoned this attempt in January 2007. With regard to the advertisement by Fins and Feathers, Mark Lewis, president of the Association, testified at his deposition that as soon as the Association learned of the advertising on Fins and Feathers’ website, they sent a letter informing Fins and Feathers that they could not use the airstrip.

Hendrix admitted at his deposition that he had no information that the Association was still trying to collect fees for use of the airstrip. He also admitted that he did not know if the airstrip was currently being used by customers of Fins and Feathers.

Courts cannot restrain that which has already been done; and it appearing from all of the allegations of the petition that the acts complained of were fully consummated, there were no grounds for an injunction. Whipkey v. Turner, 206 Ga. 410, 415 (1) (57 SE2d 481) (1950); see also Sandt v. Mason, 208 Ga. 541, 546 (1) (67 SE2d 767) (1951). Moreover, courts of equity jurisdiction will not intervene to allay mere apprehensions of injury, but only where the injury is imminent and irreparable and there is no adequate remedy at law. (Citation and punctuation omitted.) Morton v. Gardner, 242 Ga. 852, 856 (252 SE2d 413) (1979).

(Punctuation omitted.) Strange v. Housing Auth. of City of Summerville, 268 Ga. App. 403, 407 (602 SE2d 185) (2004).

In this case, the undisputed evidence was that the Association informed Fins and Feathers that they could not use the airstrip and Hendrix could not state that, as of the date of his deposition, he knew of any customers of Fins and Feathers currently using the runway. Also, although the Association attempted at one time to charge fees to nonresidents for use of the runway, the Association had abandoned the attempt several years ago.

It follows that the trial court did not err in concluding that Hendrix had submitted no evidence showing that he was entitled to injunctive relief. Accordingly, the trial court properly granted summary judgment to the Association on this claim.

Decided June 8, 2011.

Earle J. Duncan III, for appellant.

Ellis, Painter, Ratterree & Adams, Tracy A. O’Connell, Quentin L. Marlin, for appellee.

Case No. A11A0622

In this case, Eagle Neck Homeowners’ Association appeals from the trial court’s denial of Hendrix’s motion for summary judgment on the issue of the drilling of private wells. Hendrix did not appeal the denial of his motion. Instead, the. Association is arguing on cross-appeal that the trial court erred in not granting summary judgment to it sua sponte on the issue of private wells.

First, there was no motion for summary judgment filed by the Association. “It is well established that this Court is limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.” Capital Land USA v. Mitsubishi Motors Credit &c., 308 Ga. App. 71, 73 (1) (706 SE2d 590) (2011).

Second, “although a trial court can grant summary judgment to a non-moving party when the issues are the same, thus providing sufficient notice to opposing parties (Cruce v. Randall, 245 Ga. 669, 671 (266 SE2d 486) (1980)), there is no authority for appellate courts to do so.” Coweta County v. Simmons, 269 Ga. 694 (507 SE2d 440) (1998).

Judgments affirmed.

Phipps, P. J., and McFadden, J., concur.

       Although
      in most cases it is better practice to await a motion for summary judgment before entering it for a party, it was not erroneous under the circumstances of this case, where the issues were the same as those involved in the movant’s motion, hence the opposing parties had notice thereof, and where the nonmovant consented to the entry of summary judgment in his favor.

        Cruce v. Randall, 245 Ga. 669, 671 (266 SE2d 486) (1980).

       Apparently, at some point, the Developer did convey the airstrip to the Association.

       Hendrix cites to documents attached to his brief in support of this enumeration. “[E]xhibits attached to appellate briefs are not evidence, nor are they considered part of the record. This court has no duty to cull the record in search of evidence to support the contentions of parties.” Cox v. Southern Guaranty Ins. Co., 254 Ga. App. 776, 778 (2) (563 SE2d 882) (2002). See also Court of Appeals Rule 25 (c) (2) (i).


author: Mikell, Judge.

text:
    A11A0147.
    In the Interest of A. R. et al., children.
    (711 SE2d 402)
   Mikell, Judge.

In this guardianship case, A. R. and C. R., minor children of Falanda Glover, appeal from the juvenile court’s order terminating the temporary guardianship of their paternal grandmother, Margaret Pulliam, and returning their custody to Glover, contending that the trial court erred in failing to make findings of fact.

Decided June 9, 2011.

Nathan A. Hayes, for appellant.

Sidney A. Robbins, Reginald W Williams, for appellee.

Following a finding that A. R. and C. R. were deprived based on the incarceration of Glover, Margaret Pulliam filed a petition for letters of temporary guardianship. Glover filed no objection to the petition, and the trial court granted guardianship of A. R. and C. R. to Pulliam on January 31, 2008. Following Glover’s filing of motions to terminate the guardianship, a final hearing was held on March 11, 2010, and the trial court entered its order granting the motion to terminate on March 15, 2010.

Pursuant to OCGA § 9-11-52 (a), “in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” Written findings of fact and conclusions of law are required to be made by the trial court in contested child custody cases. Guardianship has been equated with custody, thereby making this requirement applicable to termination of guardianship proceedings.

Therefore, the juvenile court is hereby directed to enter findings of fact and conclusions of law upon which its decision was based.

Judgment reversed with direction.

Smith, P. J., and Dillard, J., concur.

       Neither Glover nor Pulliam has appealed. Nonetheless, this appeal is properly before us.
        In the Interest of M. B. B., 241 Ga. App. 249, 250 (1) (a) (526 SE2d 76) (1999).

       E.g., Coleman v. Coleman, 238 Ga. 183, 184 (232 SE2d 57) (1977); Motes v. Stanton, 237 Ga. 440, 441 (228 SE2d 831) (1976); Couch v. Couch, 177 Ga. App. 773, 774 (341 SE2d 303) (1986).

        Boddie v. Daniels, 288 Ga. 143, 144-145 (702 SE2d 172) (2010); Zinkhan v. Bruce, 305 Ga. App. 510, 513 (1) (699 SE2d 833) (2010).


text:
    A11A0998.
    PARSON v. THE STATE.
    (711 SE2d 398)
   McFadden, Judge.

A jury found David Parson guilty of false imprisonment and two counts of family violence battery. Parson appeals, challenging the sufficiency of the evidence. He also argues that because the evidence was insufficient, a fatal variance between the allegations in the indictment and the proof presented at trial demanded a directed verdict of acquittal. We find the evidence sufficient and no fatal variance. Accordingly, we affirm.

1. On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and we must view the evidence in the light most favorable to the jury’s verdict. See Gilbert v. State, 278 Ga. App. 765 (629 SE2d 587) (2006). We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty of the crimes charged beyond a reasonable doubt. See id.

So viewed, the evidence shows that Parson and Mary Brendle had a volatile, eight-year relationship that produced two children. On November 25, 2006, after the couple had broken up, Brendle saw Parson at a convenience store. Parson got into Brendle’s car without permission and told her to drive him to an apartment complex. Brendle asked Parson to get out, but he refused, and Brendle drove him to the complex. When they arrived, Parson took Brendle’s car keys, entered an apartment, retrieved clothes, then returned to the car.

Brendle again asked Parson to leave her car, but he refused and began threatening her. When Brendle stated that she planned to drive to her mother’s house, Parson became angry and punched her in the eye. At that point, Brendle stopped the car in the parking lot of a nearby hospital. She attempted to get out of the car, but Pen-son pulled her back, ripping her shirt. She managed to get away and ran inside the hospital. While inside, she called her mother and described Parson’s actions. Brendle then walked back toward her car, where she once again encountered Parson, who pushed her into the driver’s seat, held her by the throat, hit her in the chest, and told her that she would be “really sorry” if she contacted her mother again. He also told her that she needed to take him to work the next day.

The following afternoon, Brendle was with Parson in the car when they were pulled over by the police. Brendle, who had a black eye, told the officers that Parson had hit her, and she filed a police report regarding the incident. Based on her report, the State charged Parson with aggravated assault, false imprisonment, and two counts of family violence battery.

At trial, Brendle testified in detail about her encounter with Parson. A hospital receptionist and security guard also testified, corroborating various portions of Brendle’s account. Both saw Brendle enter the hospital and use the telephone, and they noted that she appeared nervous or upset and had a ripped shirt. The security guard also testified that Brendle “looked like she had been in a scuffle.” The receptionist overheard Brendle on the telephone telling someone that she had been hit and that “he” was “outside somewhere.” The security guard further testified that he saw Brendle’s car drive up to the hospital and noticed that she appeared to be “having trouble getting out of the car.” As Brendle left the hospital, the guard also saw an angry man approach her.

The jury found Parson guilty of two counts of family violence battery and one count of false imprisonment, but not guilty of the aggravated assault charge. Parson now claims that the evidence was insufficient to support his convictions.

(a) Parson argues that the evidence did not authorize the conclusion that he struck Brendle in the head and chest, as alleged in the family violence battery counts. Brendle, however, testified about these blows, and the State presented photographic evidence of the resulting bruises. Challenging this evidence, Parson contends that the bruises actually related to injuries sustained by Brendle in an automobile accident that occurred several weeks before the November 25, 2006 incident. The jury, however, was entitled to believe Brendle’s testimony that Parson hit her, leaving bruises on her face and chest. The evidence, therefore, supported the family violence battery convictions. See OCGA § 16-5-23.1 (f) (family violence battery includes battery “committed between . . . persons who are parents of the same child”); Gilbert, supra at 766 (evidence that defendant hit sister on face, leaving mark seen by person other than victim, supported family violence battery conviction); Bryant v. State, 226 Ga. App. 135, 136 (1) (486 SE2d 374) (1997) (jury authorized to believe victim’s testimony that defendant hit her).

(b) Parson also claims that the State failed to prove false imprisonment. “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). According to Parson, the State offered no evidence that he detained Brendle. We disagree.

Brendle testified that Parson pulled her back into her car as she tried to get out at the hospital, and a security guard noticed that she had difficulty getting out. Although Brendle managed to free herself from Parson and exit the car, “[a] brief detention is sufficient” to establish false imprisonment. Rehberger v. State, 235 Ga. App. 827, 828 (1) (510 SE2d 594) (1998). Brendle further testified that when she later encountered Parson outside the hospital, he pushed her into the car’s driver seat, held her by her throat, and hit her chest.

The jury is tasked with determining whether a brief detention amounts to false imprisonment. See Rehberger, supra at 828 (1). Given the evidence presented, the jury was authorized to conclude that Parson detained Brendle without legal authority, in violation of OCGA § 16-5-41 (a). See id. (defendant committed false imprisonment by briefly holding the victim against her will); Reynolds v. State, 231 Ga. App. 33, 34 (1) (497 SE2d 580) (1998) (jury authorized to find defendant guilty of false imprisonment based on evidence that defendant grabbed victim, who fought defendant off and escaped).

Decided June 9, 2011.

James A. Rogers, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

2. In a related claim of error, Parson argues that a fatal variance exists between the indictment’s false imprisonment allegations and the proof at trial because the State failed to prove a detention. Again, however, the State offered sufficient proof that Parson detained Brendle in her car, as alleged in the indictment. Accordingly, this claim of error lacks merit.

Judgment affirmed.

Andrews, J., concurs. Phipps, P. J., concurs in Division 1 (a) and concurs in judgment only as to Divisions 1 (h) and 2.


text:
    A11A1063.
    PALACIOUS v. THE STATE.
    (711 SE2d 401)
   McFadden, Judge.

After a jury trial, Maynor Palacious was convicted of aggravated assault and two counts of battery. He appeals, challenging the sufficiency of the evidence. Because there is enough evidence from which a rational trier of fact could have found Palacious guilty beyond a reasonable doubt of the crimes charged, we affirm.

When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine the credibility of witnesses, but determine only if the evidence is sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that on November 21, 2009, Palacious arrived uninvited at the home of his former girlfriend, Terri Ridley. When she went outside to tell him to leave, Palacious grabbed her hair, hit her, threw her to the ground, began kicking her and tried to stab her with a screwdriver. Teresa Ridley, the sister of Terri Ridley, ran outside and attempted to intervene. Palacious stabbed Teresa Ridley through her left hand and in her neck with the screwdriver, and he kicked her in the face. Terri Ridley called the police. Palacious fled and was later apprehended by police.

Decided June 9, 2011.

Kearston M. Gill, for appellant.

T. Joseph Campbell, District Attorney, Shelly D. Faulk, Assistant District Attorney, for appellee.

Palacious argues that his convictions must be overturned because the police did not obtain fingerprint or DNA evidence, and did not interview a witness at the scene. As we have previously noted in rejecting such arguments, they

amount to nothing more than a request that this Court reweigh the evidence already considered by the jury in this matter. We will not entertain such a request. Indeed, as long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict.

(Punctuation omitted.) Morton v. State, 276 Ga. App. 421, 422 (1) (623 SE2d 239) (2005) (rejecting insufficiency argument based on lack of DNA and fingerprint evidence and conflict in witness testimony). Here, the testimony of the victims describing the attacks, as well as the medical evidence of the injuries suffered, is sufficient to sustain Palacious’ aggravated assault and battery convictions. See Wilcox v. State, 309 Ga. App. 538 (1) (711 SE2d 67) (2011) (testimony of victim alone sufficient to support guilty verdict, and state also introduced corroborating medical evidence of victim’s injuries).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A0095.
    PENN et al. v. MUKTAR.
    (711 SE2d 337)
   Andrews, Judge.

As a result of a motor vehicle collision, Cedric and Tina Penn sued to collect bodily injury and property damages against Zubeida Muktar, who was insured for the claims under a liability policy written by State Farm Mutual Automobile Insurance Company. The Penns appeal from the trial court’s grant of Muktar’s motion to enforce an alleged negotiated settlement, and from the denial of their motion for partial summary judgment asserting there was no settlement. Because we find that the parties did not reach a meeting of the minds regarding the scope of settlement, we reverse.

The Penns’ attorney wrote State Farm a letter offering to settle only the bodily injury claims against State Farm’s insureds (Muktar and her husband) in return for payment of the policy limits on the bodily injury claims. In addition to requesting verification of the policy limits for the bodily injury claims, the settlement offer also informed State Farm that the Penns had uninsured motorist coverage with another insurer, “[therefore we need a release of my clients’ bodily injury claims against only your insureds that preserves their rights to recover uninsured motorist benefits.” This plainly offered to settle the bodily injury claims covered by the insureds’ State Farm policy on condition that the Penns’ written release was limited to the bodily injury claims and preserved the Penns’ rights to pursue a claim for uninsured motorist benefits under any other insurance policy. The settlement offer further stated that, “If you get me all of the requested insurance information with that release and a draft for the available bodily injury liability insurance within twenty days of this letter, then my clients will sign the release.”

Within 20 days of the settlement offer, State Farm responded with a letter purporting to accept the settlement offer, and enclosing verification of the bodily injury coverage limit of $50,000, along with a draft from State Farm to the Penns in the amount of $50,000 and a “proposed” release. The letter stated that the $50,000 draft should be held in trust pending execution and return of the release. The release stated that it released State Farm’s insureds (Muktar and her husband) and State Farm from “any and all claims ... of any kind or nature . . .” including “all claims, known and unknown, both to person and property” resulting from the motor vehicle collision. The Penns refused to sign the release and returned the $50,000 draft to State Farm.

On this record, the parties failed to reach a meeting of the minds regarding settlement because, in response to the Penns’ offer to settle their bodily injury claims for the bodily injury policy limits, State Farm tendered the $50,000 bodily injury policy limits along with the letter and the proposed release that, in effect, asserted a counteroffer of the $50,000 bodily injury limit to settle and release the bodily injury claims, the property damage claims, and any other claims resulting from the collision. Johnson v. Martin, 142 Ga. App. 311 (235 SE2d 728) (1977). Because the Penns rejected the counteroffer, there was no settlement.

Decided May 18, 2011

Reconsideration denied June 10, 2011

Swope & Rodante, Darrell W. Hinson, for appellants.

Harper, Waldon & Craig, Jonathan M. Adelman, Charis L. Johnson, for appellee.

J. Holder Smith, William D. Strickland, amici curiae.

Judgment reversed.

Phipps, P. J., and Doyle, J., concur.

       Muktar’s husband was the named insured on the State Farm policy.

       Because the Penns’ offer to settle bodily injury claims for the State Farm policy limits specifically included an offer to release the insureds from those claims, it necessarily implied an offer to release State Farm from its contractual responsibility under the policy to provide coverage for those claims. See Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199) (1994).


author: Doyle, Judge.

text:
    A10A2187.
    GEORGIA PRIMARY BANK v. ATLANTA PAVING, INC.
    (711 SE2d 409)
   Doyle, Judge.

Georgia Primary Bank appeals the trial court’s order granting summary judgment in favor of Atlanta Paving, Inc. (“Atlanta Paving”), on its complaint to foreclose upon a materialman’s lien. We affirm, for reasons that follow.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” “Our review is de novo, 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 undisputed facts show that on or about August 22, 2007, Atlanta Paving entered into an agreement with Genuine Property Solutions, LLC (“GPS”), to provide construction labor, materials, and equipment to property owned by BodyPlex Dawson-ville Real Estate, LLC (“BodyPlex”), as a subcontractor to GPS. On May 30, 2008, BodyPlex entered into an agreement to borrow $1,191,500 from Georgia Primary Bank to repay an existing loan and to fund remaining construction costs on the project. In the agreement, BodyPlex agreed to grant Georgia Primary Bank an interest in the property to secure the loan; Georgia Primary Bank recorded the security deed with the clerk of court on June 10, 2008. Before closing on the loan, Georgia Primary ran a title search and found no liens filed against the BodyPlex property. On May 30, 2008, in connection with the loan agreement, the managing member of GPS executed a “Contractor Lien Waiver and Release,” which provides in relevant part:

2. CONTRACTOR has submitted its Final Application for Payment to Owner for labor and services performed and materials supplied to the PROJECT pursuant to the CONTRACT, including without limitation all “extras.” CONTRACTOR has accepted $45,603.21 in full and final payment of all sums due for all work performed on the PROJECT. . . .
4. CONTRACTOR represents and certifies that no liens have been filed against the PROPERTY by CONTRACTOR or any of CONTRACTOR’S laborers, subcontractors, or materialmen who have directly or indirectly furnished labor, services, equipment, rentals, or materials to or for the PROJECT under or by virtue of the CONTRACT, or if any such lien has been filed by any laborer, subcontractor, or materialman with whom CONTRACTOR has a dispute, such liens have been satisfied by CONTRACTOR and/or removed of record.
5. CONTRACTOR represents and certifies that it has been (or will be, upon receipt of the amount described in paragraph 2) paid in full all amounts and bills due for all labor, materials, fixtures and supplies used in making the improvements, and that all contractors, subcontractors, suppliers and laborers have been (or will be, upon receipt of the amount described in paragraph 2) paid in full for all labor furnished, materials furnished, equipment, used, rental tools, appliances, equipment, machinery or services and all other services rendered. CONTRACTOR further states that there are no contracts or subcontracts pending or not completed, that no disputes exist regarding contracts or subcontracts made for the improvements, and that all contract and subcontract prices have been paid in full.

On June 5, 2008, Atlanta Paving filed a claim of lien on the BodyPlex property, alleging that GPS failed to pay Atlanta Paving $29,025.84 for construction work Atlanta Paving provided on the property; the lien was recorded in the Superior Court of Dawson County on June 5, 2008, and Atlanta Paving mailed a copy of the lien claim to Georgia Primary Bank the same day. On June 30, 2008, Atlanta Paving filed suit against GPS, and a consent judgment in the amount of $33,113.30 was entered in favor of Atlanta Paving on November 10, 2008.

On May 5, 2009, Atlanta Paving filed the instant action to foreclose on the lien against BodyPlex’s property. Georgia Primary Bank intervened in the action as an interested party on September 11, 2009. Atlanta Paving and Georgia Primary filed cross-motions for summary judgment, and the trial court granted summary judgment to Atlanta Paving. The trial court concluded in its order that the contractor’s affidavit executed by general contractor GPS was insufficient to extinguish Atlanta Paving’s lien pursuant to OCGA § 44-14-361.2 and that Atlanta Paving’s lien was filed prior to Georgia Primary’s lien.

Georgia Primary argues that the trial court erred by granting summary judgment to Atlanta Paving on the grounds that (a) Atlanta Paving’s lien was superior to the bank’s security deed; and (b) the contractor’s affidavit executed by GPS failed to extinguish Atlanta Paving’s lien pursuant to OCGA § 44-14-361.2. We disagree.

1. Atlanta Paving’s lien constituted a special lien under OCGA § 44-14-361 (a), which provides in relevant part that “all subcontractors and all materialmen furnishing material to subcontractors,. . . and persons furnishing material for the improvement of real estate” “shall each have a special lien on the real estate ... or other property for which they furnish labor, services, or materials.” The Code section further provides:

Each special lien specified in subsection (a) of this Code section may attach to the real estate of the owner for which the labor, services, or materials are furnished if they are furnished at the instance of the owner, contractor, or some other person acting for the owner or contractor and shall include the value of work done and materials furnished in any easement or public right of way adjoining said real estate if the work done or materials furnished in the easement or public right of way is for the benefit of said real estate and is within the scope of the owner’s contract for improvements to said real estate.

OCGA § 44-14-361.1 (c) provides:

The liens specified in Code Section 44-14-361 shall be inferior to liens for taxes, to the general and special liens of laborers, to the general lien of landlords of rent when a distress warrant is issued out and levied, to claims for purchase money due persons who have only given bonds for titles, and to other general liens when actual notice of the general lien of landlords and others has been communicated before the work was done or materials or services furnished; but the liens provided for in Code Section 44-14-361 shall be superior to all other liens not excepted by this subsection.
In Georgia,
[t]he holder of a security deed takes subject to any claim for materials supplied, of which he has notice, before his security deed is recorded. Where the holder of the security deed takes the security deed with notice of the claim of the lien, it is assumed that he takes the security deed with the knowledge that the materialman has the right to levy on the property in order to obtain payment for the materials supplied.

“OCGA § 44-2-1 requires that a deed conveying land be recorded in the office of the clerk of the superior court in which the land is located.” It is well settled that “the filing and recordation of an instrument provides constructive notice to subsequent purchasers of the existence of a prior interest in the property.”

Here, Atlanta Paving recorded its lien on June 5, 2008. Georgia Primary did not record its security deed until June 10, 2008. Thus, Atlanta Paving’s lien is superior to Georgia Primary’s security deed.

2. Georgia Primary argues that the Contractor Lien Waiver and Release signed by GPS dissolved Atlanta Paving’s lien.

Decided June 10, 2011.

Bodker, Ramsey, Andrews, Winograd & Wildstein, Alison Dan-aceau, Christopher B. Freeman, for appellant.

Dyer & Rusbridge, Samuel J. Rusbridge, Alicia M. Argo, for appellee.

OCGA § 44-14-361.2 (a) allows for the dissolution of a material-man’s lien only when the lien has been waived by the claimant or the contractor gives a sworn statement that “the agreed price or reasonable value of the labor, services, or materials has been paid or waived in writing by the lien claimant.” Here, GPS swore that “all contractors, subcontractors, suppliers[,] and laborers have been (or will be, upon receipt of the amount described in paragraph 2) paid in full. . . .” Thus, on its face, the release signed by GPS was insufficient to satisfy the plain language of the statute, and the affidavit failed to extinguish Atlanta Paving’s lien. Accordingly, the trial court did not err by granting summary judgment to Atlanta Paving.

Judgment affirmed.

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

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Little Tallapoosa Dev. v. Baldwin Paving Co., 251 Ga. App. 238 (553 SE2d 860) (2001).

       OCGA § 44-14-361 (a) (2).

       OCGA § 44-14-361 (b).

       (Emphasis supplied.)

       (Citation omitted.) Gamble v. Pilcher, 242 Ga. 556, 557-558 (250 SE2d 416) (1978).

        Leeds Bldg. Products v. Sears Mtg. Corp., 267 Ga. 300, 301 (1) (477 SE2d 565) (1996).

       Id. See also OCGA §§ 44-2-1; 44-2-2 (b) (“Deeds, mortgages, and liens of all kinds which are required by law to be recorded in the office of the clerk of the superior court and which are against the interests of third parties who have acquired a transfer or lien binding the same property and who are acting in good faith and without notice shall take effect only from the time they are filed for record in the clerk’s office.”).

       Georgia Primary does not challenge the sufficiency of Atlanta Paving’s lien, nor does it contend that the hen was not properly recorded.

       See, e.g., Palmer v. Forrest, Mackey & Assoc., Inc., 251 Ga. 304, 307-308 (2) (304 SE2d 704) (1983).

       (Emphasis supplied.)

       (Emphasis supplied.)

       See OCGA § 44-14-361.2 (a) (2) (A).


author: SMITH, Presiding Judge.

text:
    A11A0698, A11A0699.
    THE STATE v. MEEKS; and vice versa.
    (711 SE2d 403)
   SMITH, Presiding Judge.

Casey Jacob Meeks was charged by accusation with electronically furnishing obscene material to a minor, contributing to the delinquency of a minor, three counts of possession of drugs not in the original container, four counts of possession of a dangerous drug, six counts of theft by taking, and six counts of theft by deception. Meeks specially demurred to all twenty-one counts, and the trial court sustained the demurrer as to furnishing obscene material, contributing to delinquency, the three counts of possession of drugs not in the original container, five counts of theft by taking, and five counts of theft by deception. The trial court overruled the demurrer as to the four counts of possession of a dangerous drug and one count each of theft by taking and theft by deception.

In Case No. A11A0698, the State appeals from that portion of the order sustaining the special demurrer as to 15 counts. In Case No. A11A0699, Meeks appeals from the overruling of the special demurrer as to the remaining six counts. In Case No. A11A0698, we affirm in part because the trial court correctly sustained the demurrers as to Counts 1, 2, 14, and 17 through 20, but reverse in part because the trial court erred in sustaining the demurrer as to Counts 11 through 13, theft by taking. In Case No. A11A0699, we affirm in part because the trial court correctly denied the special demurrer to Counts 6 through 10, but reverse in part because the trial court should have sustained the demurrer as to Count 16, the single remaining count of theft by deception.

Case No. A11A0698

The State appeals from the trial court’s order sustaining the special demurrer in part, on two grounds. With respect to Counts 1 and 2, the charges of electronically furnishing obscene material and contributing to the delinquency of a minor, the State contends that the trial court erred in ruling that the accusation failed to allege the date of the alleged crimes with sufficient specificity because it failed adequately to narrow the range of dates within which they allegedly occurred. With respect to Counts 11 through 14, the charges of theft by taking, and Counts 17 through 20, the charges of theft by deception, the State contends the trial court erred in ruling that these charges were “not distinguishable in any meaningful way” from Count 10 (theft by taking) or Count 16 (theft by deception) or from the other charges in each series. We address these contentions in turn.

“A general demurrer challenges the sufficiency of the substance of the indictment or accusation, whereas a special demurrer challenges the sufficiency of the form of the indictment or accusation.” (Citations and footnote omitted; emphasis in original.) Newsome v. State, 296 Ga. App. 490, 491 (675 SE2d 229) (2009). “[T]he true test of the sufficiency of an indictment to withstand a general demurrer, or a motion to quash, is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.” (Citations and punctuation omitted.) McDaniel v. State, 298 Ga. App. 558, 559 (680 SE2d 593) (2009).

In contrast [to a general demurrer], when determining whether an indictment [or accusation] is sufficient to withstand a special demurrer, the applicable standard is not whether the indictment [or accusation] could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. When presented with a special demurrer, the court should examine the indictment [or accusation] from the perspective that the accused is innocent, for this is what the law presumes. Nevertheless, the language of an indictment [or accusation] is to be interpreted liberally in favor of the State, while the accused’s objections to the indictment [or accusation], as presented in a special demurrer, are strictly construed against the accused. In reviewing a ruling on a special demurrer, we apply a de novo standard of review, because it is a question of law whether the allegations in the indictment [or accusation] are legally sufficient. Further, because we are reviewing an indictment [or accusation] before any trial, we do not conduct a harmless error analysis to determine if the defendant has actually been prejudiced by the alleged deficiencies in the indictment [or accusation]; rather, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment [or accusation] perfect in form and substance.

(Citations and punctuation omitted.) State v. Corhen, 306 Ga. App. 495, 497-498 (700 SE2d 912) (2010).

1. We first consider Counts 1 and 2 of the accusation. “Generally, an indictment [or accusation] which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer.” (Citations, punctuation and footnote omitted.) State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005); see OCGA § 17-7-54 (a) (indictment should state with sufficient certainty time and place of offense).

Although this Court has recognized an exception to this rule where the evidence does not permit the State to identify a single date on which the offense occurred, the exception does not apply unless the State first presents evidence to the trial court showing that it cannot more specifically identify the dates of the offenses.

(Citation and footnote omitted.) Howard v. State, 281 Ga. App. 797, 798 (1) (637 SE2d 448) (2006).

[I]f an indictment [or accusation] alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment [or accusation] is subject to a special demurrer.

Layman, supra, 279 Ga. at 341.

Counts 1 and 2 of the accusation allege that Meeks “did. . . between June 01, 2007 and August 16, 2007,” electronically furnish obscene material to a minor child and contribute to her delinquency. The investigating officer testified that the victim gave him “an approximate timeframe” during which she received nude photographs from Meeks. According to the officer, the photographs were transmitted via e-mail and “some text messages through MySpace as well.” But the officer acknowledged that he did not “look at time stamps or any of the electronic signature aspect to see when those emails came in,” did not recall why he failed to do so, and acknowledged that “we don’t know when they came in.”

Ordinarily, the date on which a document is created or saved on a computer can be established, see, e.g., Hunt v. State, 303 Ga. App. 855, 856 (695 SE2d 53) (2010), as well as the date on which an e-mail was sent or received. See, e.g., Kuritzky v. Emory Univ., 294 Ga. App. 370, 374 (3) (669 SE2d 179) (2008). The State gave no explanation as to why the investigating officer was unable simply to ascertain those dates from his examination of the victim’s computer, and the officer was unable to recall why he failed to do so. We agree with the trial court that the State failed to demonstrate an inability to narrow the range of dates within the two-and-a-half months alleged in the accusation. We therefore affirm the trial court’s grant of the special demurrer as to Counts 1 and 2 of the accusation.

2. The State next contends that the trial court erred in sustaining the demurrer as to Counts 11 through 14, theft by taking, and Counts 17 through 20, theft by deception. Counts 11 through 14 allege that Meeks took “drugs the property of Dr. Bob Lanier having a value of less than $500.00 with the intention of depriving said owner of said property.” Counts 11 through 13 allege a different range of dates within a period varying from nine to twenty-four days, but Count 14 alleges the same nine-day period as Count 13. Each count includes the allegation that it differs from the other counts of theft by taking.

“Where an averment in one count of an accusation or indictment distinguishes it from all other counts, either by alleging a different set of facts or a different date which is made an essential averment of the transaction, the State may on conviction punish the defendant for the various crimes.” (Citations and punctuation omitted.) Conley v. State, 281 Ga. App. 841, 843 (2) (637 SE2d 438) (2006). Applying the standard enunciated in Corhen, supra, we find that Counts 11 through 13 contain the elements of the offense of theft by taking, inform Meeks of what he must be prepared to meet, and adequately show him to what extent he may plead an earlier acquittal and conviction. Corhen, supra, 306 Ga. App. at 497.

Given that the indictment tracks the language of the relevant Code section for theft by taking and identifies the offense as theft by taking, [defendant] cannot reasonably claim that this language was confusing or misleading such that he did not understand what conduct was unlawful, or that he risked future prosecution for the same offense. [Cit.]

Falagian v. State, 300 Ga. App. 187, 193 (3) (684 SE2d 340) (2009). The trial court therefore erred in sustaining the special demurrer as to these three counts.

Count 14, however, alleges a range of dates identical with that alleged in Count 13, and provides no additional facts by which it can be distinguished from that count. Since it alleges neither “a different set of facts [n]or a different date which is made an essential averment of the transaction,” Conley, supra, 281 Ga. App. at 843 (2), it is entirely duplicative of Count 13. Merely alleging that “[t]his count differs from counts ten through thirteen,” without specifying any facts showing in what manner it differs, is insufficient. We therefore affirm the trial court’s grant of the special demurrer as to Count 14.

3. The trial court granted the special demurrer as to Counts 17 through 20 of the accusation, concluding that they were, like Counts 11 through 14, duplicative. Applying a de novo standard of review, we affirm the trial court’s grant of the demurrer with respect to Counts 17 through 20 of the accusation, but for a different reason. While these counts purport to charge the offense of theft by deception, each count is identical in every respect other than the title of the offense to a corresponding count in Counts 11 through 14. Each alleges the same date range as one of the latter counts and alleges the taking of the same property. Moreover, each count fails to allege any unique element of theft by deception, but simply repeats verbatim the elements of theft by taking; indeed, each count alleges a violation of OCGA § 16-8-2 (theft by taking) instead of OCGA § 16-8-3 (theft by deception).

It is true that

Georgia’s theft by taking statute contains the catch-all phrase “regardless of the manner in which the property is taken or appropriated,” which renders the statute broad enough to encompass theft by conversion, theft by deception or any other of the myriad, and even yet-to-be-concocted, schemes for depriving people of their property. Thus, the state may indict someone for theft by taking, but prove theft by deception, which is committed when a person obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property. An accused deceives if he intentionally creates or confirms another’s impression of a fact or event which is false, and which the accused knows to be false.

(Citations, punctuation and footnotes omitted.) Bradford v. State, 266 Ga. App. 198, 201-202 (2) (596 SE2d 715) (2004). But this elasticity in the theft by taking statute addresses the sufficiency of the evidence, not the sufficiency of the indictment. Here, Counts 17 through 20 fail to allege the elements of the offense purportedly charged and are identical in every respect to the corresponding Counts 11 through 14. They neither “contain[ ] the elements of the offense intended to be charged” nor “sufficiently apprise[ ] the defendant of what he must be prepared to meet.” Id. at 199 (1); Corhen, supra, 306 Ga. App. at 497. We therefore affirm the trial court’s grant of the special demurrer as to these counts.

Case No. A11A0699

4. In a single enumeration of error, Meeks appeals from the trial court’s overruling of his special demurrer as to Counts 6 through 9, possession of a dangerous drug, Count 10, theft by taking, and Count 16, theft by deception. As to all these counts, he contends that the accusation was insufficient in that it failed to name with precision the place where the alleged offenses occurred. But, as the trial court observed: “Unless the character of the place is an essential element of the offense, an indictment which charges the crime to have been committed in a particular county is sufficiently certain as to place.” (Citations and punctuation omitted.) Gentry v. State, 235 Ga. App. 328, 330 (3) (508 SE2d 671) (1998). The trial court did not err in overruling the demurrer on this ground.

5. The trial court correctly overruled the demurrer as to Count 10, theft by taking, for the reasons stated in Division 2, above. But, for the reasons stated in Division 3, we must reverse the trial court’s denial of the demurrer as to Count 16, the remaining charge of theft by deception, because the accusation is insufficient.

Decided June 10, 2011.

Stephanie D. Woodard, Solicitor-General, Amber R. Sowers, Assistant Solicitor-General, for appellant.

Banks & Stubbs, Rafe Banks III, for appellee.

Judgments affirmed in part and reversed in part.

Mikell and Dillard, JJ., concur.

       The State has withdrawn its appeal as to the trial court’s ruling that Counts 1 and 2 were deficient in failing to identify the victim. The State has also withdrawn its appeal as to the trial court’s grant of the special demurrer as to Counts 3 through 5 of the accusation, and as to Counts 15 and 21 as they included dates outside the statute of limitation.

       Meeks also complains that the “drugs” are not identified. But this is a theft by taking accusation, not one alleging possession of a controlled substance.


author: MILLER, Presiding Judge.

text:
    A11A0025.
    JEFFERSON v. THE STATE.
    (711 SE2d 412)
   MILLER, Presiding Judge.

Following a jury trial, defendant Gavin Earl Jefferson was convicted of possession of marijuana with intent to distribute (OCGA § 16-13-30 (j)) and reckless conduct (OCGA § 16-5-60 (b)). On appeal following denial of his motion for new trial, Jefferson maintains that (i) the evidence at trial was insufficient to prove his possession of marijuana, and that (ii) he was improperly sentenced as a recidivist. Since these contentions lack merit, the judgment of the trial court must be affirmed.

Viewed in the light most favorable to the jury’s guilty verdict, in accordance with Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), the trial evidence shows that on the morning of February 25, 2008, Jefferson drove to pick up Charlene Sims at her place of work in Atlanta. Jefferson resided with Sims and her three young children in an apartment located in Norcross. Sims relied upon Jefferson to care for the children while she worked an overnight shift. But after Jefferson picked her up, Sims became concerned when she learned that the children had been left alone at home. Additionally, as they drove home, Jefferson’s behavior was hostile and erratic. Remembering previous incidents of domestic violence, Sims became scared and exited the vehicle at a convenience store.

Police were summoned to the convenience store and eventually transported Sims home. Other officers were dispatched to the Norcross apartment to check on the status of the children. At the apartment, officers found the children safe but also noticed an odor of marijuana. There was also some concern regarding the location of a gun kept in the apartment. Following her arrival at the apartment, Sims consented to a search of the premises. Jefferson was not present at the apartment when the search was conducted. Officers found a shoe box containing marijuana in the bedroom closet and an insulated lunch bag in a kitchen cabinet. The lunch bag, which Sims identified as belonging to Jefferson, contained a digital scale, razor blades and plastic bags. Sims testified that she knew Jefferson kept marijuana in the apartment and used the digital scale to weigh it, although she did not know exactly where he kept it. She also identified the shoe box containing marijuana as having originally contained a pair of Jefferson’s shoes.

1. In two similar enumerations of error, Jefferson contends that the evidence is insufficient to establish his possession of the marijuana. He argues that no more than his presence at the apartment was proven and that there is nothing connecting him to the marijuana beyond mere spatial proximity. Furthermore, Jefferson relies upon the legal principle that because Sims had equal access to the location where the marijuana was found and was not charged with any offense, the State must show that he had sole constructive possession of the marijuana. See Wheeler v. State, 307 Ga. App. 585, 586-587 (1) (705 SE2d 686) (2011); Rogers v. State, 302 Ga. App. 65, 67-68 (690 SE2d 437) (2010).

If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband. Although this presumption may be rebutted by showing that others had access to the premises, the equal access doctrine applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant’s ownership or possession of the premises.

(Citations and punctuation omitted.) Wheeler v. State, supra, 307 Ga. App. at 587 (1).

In view of the testimony from Sims, Jefferson’s possession of the contraband was not based solely on his residence at their apartment. The flaw in Jefferson’s argument is his supposition that Sims’s testimony was impeached and therefore provides no credible evidence of his guilt. “[W]hether a witness has successfully been impeached is for the jury to decide.” (Citations omitted.) Warner v. State, 281 Ga. 763, 766 (3) (642 SE2d 821) (2007).

When reviewing the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. We review the evidence in the light most favorable to the verdict, giving deference to the jury’s determination as to the proper weight and credibility to be given. It is the jury’s function to assess witness credibility, to resolve any conflicting evidence, and to determine the facts, not an appellate court. If competent evidence exists, though contradicted, to support the facts necessary to prove the State’s case, we will not reverse the jury’s verdict.

(Citations and punctuation omitted.) Kay v. State, 306 Ga. App. 666 (1) (703 SE2d 108) (2010). Viewed under this standard, the evidence, including Sims’s testimony, shows that Jefferson had sole constructive possession of the marijuana. “When affirmative evidence of equal access is shown but there is evidence connecting the defendant to the contraband other than his own equal access, the jury must resolve the question of guilt or innocence.” (Citations and punctuation omitted.) Rogers v. State, supra, 302 Ga. App. at 68. Therefore, a rational trier of fact could have found from the evidence presented that Jefferson committed the crimes, of which he was convicted, beyond a reasonable doubt. See McCombs v. State, 306 Ga. App. 64, 66 (2) (701 SE2d 496) (2010).

2. Jefferson also maintains that he was improperly sentenced as a recidivist. Specifically, he contends that the trial court failed to exercise discretion by imposing the maximum sentence under law for this fourth felony conviction. We disagree. Based upon his three prior felony convictions, Jefferson’s sentencing was governed by both OCGA § 17-10-7 (a) and (c):

(a) . . . any person convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.
(c) . . . any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

We have recently held that subsections (a) and (c) of OCGA § 17-10-7 must be read together:

If both apply(, as here,) the trial court must apply both. Thompson v. State, 265 Ga. App. 696, 698 (2) (595 SE2d 377) (2004). Thus, to the extent that this Court’s decisions in Colbert v. State, 303 Ga. App. 802, 804 (694 SE2d 694) (2010), Johnson v. State, 285 Ga. App. 590, 591 (3) (646 SE2d 760) (2007), and Blevins v. State, 270 Ga. App. 388, 394 (5) (606 SE2d 624) (2004), or any other cases may be understood for the proposition that under OCGA § 17-10-7 (a) and (c), a trial court retains jurisdiction to sentence a recidivist defendant to anything less than the maximum penalty, they are disapproved.

(Punctuation omitted.) Lester v. State, 309 Ga. App. 1, 5 (2), n. 3 (710 SE2d 161) (2011). Like Jefferson in this case, the defendant in Lester had been convicted of at least three prior felonies; in that case, we held that the defendant was required to be sentenced to the longest period of time prescribed for the punishment of his fourth offense, and he was required to serve the maximum time provided in the sentence of the judge based upon his conviction of the fourth offense and was not eligible for parole until the maximum sentence had been served. Id.; see also West v. State, 255 Ga. App. 334, 335 (565 SE2d 538) (2002) (finding that the language of OCGA § 17-10-7 (c) “did not grant the trial judge any discretion to give [the defendant] less than the maximum sentence under the circumstances of this case”); Buckner v. State, 253 Ga. App. 294, 297 (3) (558 SE2d 823) (2002) (“In light of [the defendant’s] four prior felony convictions . . . , the [trial] court here correctly understood that under OCGA § 17-10-7 it was required to impose the maximum sentence for each current felony conviction but had the discretion to probate or suspend part of that sentence (which it chose not to do).”).

Decided June 13, 2011.

Clark & Towne, Jessica R. Towne, for appellant.

Daniel J. Porter, District Attorney, Carole Cox, Assistant District Attorney, for appellee.

Finally, we recognize that although OCGA § 17-10-7 (c) “prohibits parole, it does not dispense with the trial court’s discretion to probate or suspend part of a sentence under OCGA § 17-10-7 (a).” (Citations and punctuation omitted.) Hill v. State, 272 Ga. App. 280, 282 (612 SE2d 92) (2005). Nevertheless, to the extent Jefferson argues that the trial court erred by failing to exercise its discretion by not probating or suspending part of his sentence, we disagree. Notably, the trial court did in fact properly exercise its discretion when it probated a portion of Jefferson’s sentence.

Judgment affirmed.

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


text:
    A11A0039.
    MILTON v. GOINS.
    (711 SE2d 415)
   MILLER, Presiding Judge.

This is an action for damages arising from a motor vehicle collision. Plaintiff Milton appeals from the order granting defendant Goins’s motion to dismiss due to lack of service. Finding no error, we affirm.

1. Milton contends that the trial court erred in concluding that Goins was not validly served. She argues that the evidence below does not support the factual findings of the trial court.

On appeal, absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed. When the evidence is conflicting with respect to the proper receipt of service, as here, it becomes a question of fact to be resolved by the trial judge. Those findings will not be disturbed on appellate review when supported by any evidence.

(Citations and punctuation omitted.) Ballenger v. Floyd, 282 Ga. App. 574, 575 (639 SE2d 554) (2006).

The complaint was filed on or about August 7, 2009. Ten days later the two-year period of the statute of limitation ended. In August 2009, process servers received information concerning an address at which Goins’s “family” lived. A process server attempted service upon Goins at the address after a woman who answered the door stated that Goins lived “off and on” at the house. After learning the purpose of the process server’s visit, the woman stated Goins did not live there and she did not know where he lived. The process server left, but returned shortly and served a man who answered the door.

Goins filed a special appearance answer and later a motion to dismiss due to lack of service. In support of his motion, Goins filed an affidavit in which he stated that the residence where the documents were served was the home of his aunt and that he had not lived there for over five years. The aunt also filed an affidavit stating that she lived at the address where service had been attempted but that Goins did not reside there. An additional affidavit of Goins’s mother stated that he did not reside with the aunt. The trial court concluded that there was insufficient evidence that Goins resided at the aunt’s home and that the August 2009 service at the home of the aunt was invalid.

Here, there is no direct evidence that Goins resided at the aunt’s home. The statement of the woman at the home that Goins resided there off and on does not show that he resided there at any specific time including the day of the attempted service. In contrast, Goins, his aunt, and his mother state unequivocally that he did not reside at the aunt’s home at the time of the attempted service. Furthermore, process servers employed by Milton subsequently determined that Goins did not reside there.

Under these circumstances, the trial court did not err in determining that Goins was not properly served in August 2009. Bohorquez v. Strother, 287 Ga. App. 98, 99-100 (650 SE2d 765) (2007); Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995). While there is further argument concerning a second attempted service at the mother’s home in January 2010, that attempt was invalid because it followed a fatal lapse of diligence in Milton’s efforts to accomplish service. Therefore, the trial court did not err in concluding that Goins was not validly served.

2. Milton maintains that the trial court abused its discretion in dismissing her case based on a conclusion that she failed to exercise a reasonable degree of diligence in obtaining service.

The mere filing of a complaint does not commence suit unless timely service is perfected as required by law. And when such service is not timely made, the plaintiff bears the burden of showing lack of fault. If an action is commenced within the applicable statute of limitation, but is not served upon the defendant either within five days or within the limitation period, the plaintiff must show that she acted in a reasonable and diligent manner in attempting to ensure that proper service was effected as quickly as possible. If he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. Additionally, once a defendant raises the issue of insufficient service as a defense, a plaintiff is, from that point forward, obligated to exercise not due diligence, but the greatest possible diligence to ensure proper and timely service. Whether a plaintiff has exercised the required diligence is a question of fact for the trial court’s determination that will not be overturned absent an abuse of discretion.

Decided June 13, 2011.

Kaplan & Lukowski, Jay D. Lukowski, for appellant.

(Citations and punctuation omitted.) Montague v. Godfrey, 289 Ga. App. 552, 554-555 (1) (657 SE2d 630) (2008).

The trial court found Milton’s actions in attempting to locate and serve Goins were diligent until October, that is, until Goins raised a service defense via a motion filed October 2, 2009. From that point in time, Milton was required to exercise the greatest possible diligence to ensure proper and timely service.

The affidavits of the process servers were insufficient to show the required diligence in this case. Each of the affidavits provides general information and describes no more than a single attempt to effect service. This fails to provide the specific dates and level of detail required to allow a trial court to determine whether a plaintiff acted diligently. “[T]he plaintiff must provide specific dates or details to show diligence and cannot rely on conclusory statements.” (Footnote omitted.) Jones v. Brown, 299 Ga. App. 418, 419 (683 SE2d 76) (2009); see also Scanlan v. Tate Supply Co., 303 Ga. App. 9, 11 (692 SE2d 684) (2010).

The trial court found an absence of evidence showing any effort to locate Goins during the subsequent interval of time from October 2, 2009, until January 2010. Therefore, the trial court was authorized to determine that such an unexplained lapse of time from the period of the attempt to effect service upon Goins amounted to a failure to show the required diligence and that plaintiff is guilty of laches. Duffy v. Lyles, 281 Ga. App. 377, 378 (636 SE2d 91) (2006). This enumeration of error is without merit, and the trial court did not err in granting Goins’s motion to dismiss.

Judgment affirmed.

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

Alycia Foggs-Anderson, for appellee.


text:
    A11A0102.
    THE STATE v. COHEN.
    (711 SE2d 418)
   MILLER, Presiding Judge.

In a five-count accusation, defendant Marvin Cohen (“Cohen”), a former elementary school teacher, was accused of committing simple battery against three elementary school children. The State appeals the dismissal of the accusation predicated on the grant of Cohen’s motion for immunity from criminal liability under OCGA § 20-2-1001. Finding no merit in the State’s contentions that the trial court erred in dismissing the accusation, and impermissibly interfered with its duty and right to prosecute the crimes, we affirm.

OCGA § 20-2-10Q1 provides:

(a) As used in this Code section, the term “educator” means any principal, school administrator, teacher, guidance counselor, paraprofessional, school bus driver, volunteer assisting teachers in the classroom, tribunal members, or certificated professional personnel.
(b) An educator shall be immune from criminal liability for any act or omission concerning, relating to, or resulting from the discipline of any student or the reporting of any student for misconduct, provided that the educator acted in good faith.

Cohen was the teacher of the elementary school class which included the alleged victims. The State acknowledges that pursuant to OCGA § 20-2-1001, Cohen, as an educator, cannot be held criminally liable for any act resulting from the discipline of the students, provided Cohen acted in good faith. Additionally, the State apparently accepts the trial court’s conclusion that Cohen’s actions were the result of the need to discipline the students and to maintain order. The State’s contentions on appeal question only whether Cohen acted in good faith.

Here, the trial court decided the question of immunity pursuant to OCGA § 20-2-1001 following a pre-trial evidentiary hearing. Cohen bears the burden of showing that he is entitled to immunity by a preponderance of the evidence. See Bunn v. State, 284 Ga. 410, 412-413 (667 SE2d 605) (2008) (concluding that defendant bears the burden of showing that he is entitled to immunity by a preponderance of the evidence based on a similar immunity provision under OCGA § 16-3-24.2). And, the appropriate standard of review on appeal of the trial court’s findings of fact is the “any evidence” standard. See State v. Yapo, 296 Ga. App. 158, 160 (2) (674 SE2d 44) (2009).

The State’s theory that Cohen was not acting in good faith is largely predicated on evidence that Cohen had not complied with a school no-touch policy and had ignored instructions regarding that policy which he had received in his in-service training. Cohen was a new teacher at the school, and it appears that the school administration soon had concerns regarding his methods of disciplining the children.

However, the exact nature of the school policy at issue is not clear from the record. The school’s principal first testified that she met with, and “shared with Mr. Cohen that under no circumstances was he ever to put his hands on a child.” But, the principal also describes the proscribed conduct as “negatively touching a student,” and also states that “[tjeachers are not to touch students. Now, teachers can hug a student. ...” And, on cross-examination, the principal agreed that there are some situations in which a teacher may touch a student as part of maintaining order, although there might be disagreement as to the amount of touching that is needed.

In this case, there is undoubtedly such a disagreement as to the need for the amount of physical contact utilized by Cohen with respect to the students. Each of the allegations against Cohen charges that he grabbed or pushed one of the students. And, there is ample evidence that Cohen did in fact repeatedly grab or push a student.

Nonetheless, Cohen’s testimony shows that the instances of physical contact with a student were for the purpose of maintaining discipline and order. Cohen testified that he grabbed a student and pushed him to the other side of the hall to separate two boys who were acting as though they were about to start a fight. He pushed down on the shoulder of an unruly student in order to encourage him to be seated. Cohen further stated that he sometimes placed a hand on the shoulder of a student to get his or her attention.

One of the alleged victims apparently did not remember a hand placed on his shoulder and testified that he had never been touched by Cohen. The other two alleged victims had not been hurt by Cohen. The principal who testified as to observing inappropriate touching never intervened or checked a child for injuries.

Cohen testified that, as a school teacher, he had a duty to maintain order and discipline. Specifically, Cohen stated that when he saw the beginning of a fight, he felt an obligation to step in and do something. Yet, the task of maintaining order in Cohen’s class was difficult, because other teachers had transferred their students who were discipline problems to his new class, so that he had the worst behaved students.

Decided June 13, 2011.

Nicole D. Marchand, Solicitor-General, Angel W. Riley, Assistant Solicitor-General, for appellant.

Hall & Hirsh, Andrew C. Hall, for appellee.

In view of the evidence of record, the trial court was authorized to conclude that Cohen acted in good faith in his role as a teacher to maintain discipline and order. State v. Yapo, supra, 296 Ga. App. at 160. Therefore, the grant of Cohen’s motion for immunity and motion to dismiss is affirmed.

Judgment affirmed.

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