source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A10A1306.
    PARKER v. STONE et al.
    (702 SE2d 636)
   Johnson, Judge.

This case involves Richard Stone and Anita Stone’s petition to adopt two-year-old A. S., and Jerimi Parker’s objection to the adoption petition. The record shows that A. S. was born on July 23, 2006. A. S. was placed with the Stones on July 28, 2006, where he has resided without interruption. On May 22, 2008, nunc pro tunc to September 17, 2007, A. S.’s legal mother’s parental rights were terminated by court order. Also on May 22, 2008, A. S.’s purported biological father signed a “Surrender of Parental Rights/Final Release for Adoption” and an “Acknowledgment of Surrender of Rights” in favor of Parker, his purported half-brother. Subsequently, the Stones filed a Petition for Adoption on May 27, 2008. Parker responded, objecting to the petition. He later filed a motion to dismiss the adoption petition, and the Stones filed a motion to quash all pleadings filed by Parker.

The parties agreed that the first issue to be addressed by the trial court should be whether Parker had standing to object to the adoption, since a lack of standing would be dispositive of the other issues in the case. The Stones argued that because A. S.’s biological father never legitimated A. S. and became A. S.’s legal father, the biological father had no rights to transfer to Parker, and, therefore, Parker lacked standing to object to the adoption petition. Parker argued that even if he did not receive any legal rights to A. S. through the biological father’s purported surrender of parental rights, he still had standing to object to the adoption petition under OCGA § 19-8-15 because he is a blood relative of the child. Following the hearing, the trial court entered an order granting the Stones’ motion to quash and dismissing Parker from the action on the basis that he lacked standing to object to the petition to adopt because (1) he had obtained no legal rights to A. S. through the biological father’s surrender of parental rights, and (2) OCGA § 19-8-15 did not apply because A. S.’s mother was still alive. The trial court also issued a final judgment granting the Stones’ petition for adoption.

Parker contends the trial court erred in quashing his pleadings, dismissing him from the adoption proceeding, and granting the Stones’ adoption petition. For the reasons discussed below, we reverse the trial court’s order quashing Parker’s pleadings and dismissing him from the adoption action. We also vacate the trial court’s final judgment and decree of adoption and remand the case for the trial court to consider Parker’s objections and the best interest of A. S.

1. Parker first contends the trial court erred in dismissing him from the adoption proceeding because it misinterpreted OCGA § 19-8-15. We agree.

OCGA § 19-8-15 provides: “If the child sought to be adopted has no legal father or legal mother living, it shall be the privilege of any person related by blood to the child to file objections to the petition for adoption.” Here, it is undisputed that A. S. does not have a legal father living. A “legal father” is defined as a male who (a) has legally adopted a child, (b) was married to the biological mother of the child at the time the child was conceived or was born, unless such paternity was disapproved by a final order, (c) married the legal mother of the child after the child was born and recognized the child as his own, unless such paternity was disapproved by a final order, (d) has legitimated the child by a final order pursuant to OCGA § 19-7-22, or (e) has legitimated the child pursuant to OCGA § 19-7-21.1 and who has not surrendered or had terminated his parental rights. The purported biological father in the present case does not meet any of these definitions of a legal father. That, however, does not end the inquiry in this case.

Parker is claiming that he is a blood relative of A. S. with standing to object to the petition for adoption regardless of the validity or effectiveness of the biological father’s surrender of rights document. The trial court, however, never reached the issue of whether Parker was a blood relative and entitled to apply OCGA § 19-8-15 in this case because it erroneously found that A. S. has a legal mother living.

In its order, the trial court noted that Parker “may not object to the adoption action by reason of his familial relationship with [the biological father] because the mother of the child is living.” This finding is incorrect. OCGA § 19-8-1 (7) defines a “legal mother” as “the female who is the biological or adoptive mother of the child and who has not surrendered or had terminated her rights to the child.” The record is undisputed that A. S.’s mother’s rights to A. S. were terminated by court order. Therefore, A. S. does not have a “legal mother,” even though his biological mother is living. “It follows that under OCGA § 19-8-15, [Parker may have] had standing to file objections to the adoption petition,” and the trial court erred in quashing Parker’s pleadings without determining whether he is a blood relative of A. S.

Decided September 14, 2010

Reconsideration denied October 28, 2010

Andrew B. Koplan, for appellant.

Sherrod & Bernard, Kenneth R. Bernard, Jr., James B. Outman, for appellees.

2. Parker also contends the trial court erred in granting the adoption petition because it failed to set forth any findings of fact that demonstrate by clear and convincing evidence that the adoption by the Stones is in the best interest of A. S. However, this enumeration of error is rendered moot based on our finding that this case must be remanded so that Parker, assuming he can establish that he is a blood relative of A. S., is afforded an opportunity to present his objections to the petition for adoption. We hereby vacate the trial court’s decree of adoption and remand the case for the trial court to consider the petition for adoption in light of Parker’s objections.

Grant of motion to quash reversed, decree of adoption vacated, and case remanded.

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

       While Parker’s objection is couched in terms of a “response” to the petition for adoption in which he “prays that Petitioner’s petition be dismiss[ed] and that said minor child be placfed] in the physical and legad custody of Respondent,” to hold that the response is not technically an objection to the petition would be to place form over substance, which this Court declines to do. See Southern Electronics Distributors v. Marsh, 229 Ga. App. 821, 821-822 (1) (495 SE2d 43) (1997).

       See OCGA § 19-8-1 (6).

        Echols v. Cochran, 214 Ga. App. 348 (447 SE2d 700) (1994).


text:
    A10A1973.
    THE STATE v. SMITH.
    (702 SE2d 663)
   Johnson, Judge.

After a jury trial, Carl Smith was convicted of kidnapping, cruelty to children and two counts of aggravated assault. Smith filed a timely motion for new trial, challenging the sufficiency of the evidence supporting the kidnapping conviction. The trial court granted the motion, finding that the kidnapping conviction must be set aside because there was insufficient evidence to prove the asportation element of kidnapping or that Smith acted without lawful authority. The state appeals, and we reverse.

On appeal, we construe the evidence most favorably to support the verdict, and Smith no longer enjoys a presumption of innocence. We do not weigh the evidence or determine the credibility of witnesses, but determine only if there is sufficient evidence from which a rational trier of fact could have found Smith guilty of kidnapping beyond a reasonable doubt.

So construed, the evidence shows that Smith and Danielle Wooley had three children. Wooley and the children live with Wooley’s mother, Georgia Seeley. On June 15, 2007, Smith forced his way into Seeley’s home and said that everyone there was going to die. He stabbed Wooley with a knife and slashed Seeley’s throat. The women were able to escape from the house with one of the children. The police were called, arrived at the scene and removed another one of the children from the house, leaving only three-year-old D. W in the house with Smith. Subsequently, when two officers entered the house, Smith grabbed D. W, held a knife to her throat and shouted profanities at the police, urging them to shoot him. Using the screaming and crying child as a shield and still holding the knife to her throat, Smith backed down a hallway and into a bedroom, barricading himself and the girl in the room. He held D. W. hostage for six hours, threatening to kill her. Officers were eventually able to force their way into the bedroom, rescue the child, and arrest Smith.

“A person commits the offense of kidnapping when such person abducts or steals away any person without lawful authority or warrant and holds such other person against his will.” [Cit.] For the State to prove the essential element that the defendant has “stolen away” or “abducted” his alleged victim, it must show that an unlawful movement, or asportation, of the person has taken place against his will. [Cit.]

In Garza v. State the Supreme Court of Georgia adopted a four-factor test for determining the sufficiency of the evidence of asportation: (1) the duration of the movement; (2) whether the movement occurred during commission of a separate offense; (3) whether the movement was an inherent part of the separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense. “Because [Smith’s motion for a new trial] was pending and was thus in the ‘pipeline’ when the Garza decision was issued, the Garza test shall be applied to determine whether the asportation element was met in this case. [Cit.]”

Decided October 5, 2010

Reconsideration denied October 28, 2010.

Gregory W. Edwards, District Attorney, Kathryn O. Fallin, Assistant District Attorney, for appellant.

Here, although the movement of the victim from one room to another within the house was of minimal duration, such movement was not an inherent part of the other crimes for which Smith was charged. Moreover, the movement created an additional danger to the child by enhancing Smith’s control over her. Indeed, the “kidnapping statute [is] intended to address ‘movement serving to substantially isolate the victim from protection or rescue[.]’ ” Accordingly, the trial court erred in concluding that there is insufficient evidence of asportation.

Likewise, the trial court erred in finding that Smith had lawful authority to move the child and hold her against her will. Smith’s reliance on Adams v. State, to argue to the contrary is misplaced. That case involved a child custody dispute between parents and was controlled by a former Code section that was similar to OCGA § 16-5-45, which governs the offense of interference with child custody. The instant kidnapping case does not involve that statute, and “the facts and circumstances of the bloody and violent incident, parts of which took place in the . . . bedroom, support the inference that [the child] was taken [without lawful authority and held] against [her] will.” Because there was sufficient evidence to support the guilty verdict as to the crime of kidnapping, the trial court erred in vacating that conviction.

Judgment reversed.

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

Kevin Armstrong, for appellee.

        Crawford, v. State, 297 Ga. App. 187, 188 (1) (676 SE2d 843) (2009).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford, supra.

        Brashier v. State, 299 Ga. App. 107, 109 (2) (681 SE2d 750) (2009).

       284 Ga. 696, 702 (1) (670 SE2d 73) (2008).

        Henderson v. State, 285 Ga. 240, 244-245 (5) (675 SE2d 28) (2009).

        Hill v. State, 298 Ga. App. 677, 679 (1) (680 SE2d 702) (2009). Note also that the legislature subsequently amended the kidnapping statute to provide that slight movement is sufficient to prove kidnapping as long as the movement was not incidental to another offense; however, that amended statute was not in effect at the time of this offense, “and therefore the standard set forth in Garza applies.” Home v. State, 298 Ga. App. 601, 603 (1), n. 1 (680 SE2d 616) (2009).

       See Hill, supra; Horne, supra at 604 (1).

       (Citations omitted.) Henderson, supra at 245 (5).

       218 Ga. 130 (126 SE2d 624) (1962).

        Allen v. State, 284 Ga. 310, 313 (1) (b) (667 SE2d 54) (2008).


author: POPE, Senior Appellate Judge.

text:
    A10A1138.
    LN WEST PACES FERRY ASSOCIATES, LLC et al. v. McDONALD.
    (703 SE2d 85)
   POPE, Senior Appellate Judge.

This case is the culmination of a rather contentious property dispute between two adjacent property owners. John R. McDonald sued his neighbor Lee Najjar and Najjar’s company, LN West Paces Ferry Associates, LLC (collectively, “Najjar”), after Najjar trespassed on McDonald’s property and tied into his sewer line without permission. A jury trial resulted in a verdict of $475,000 in favor of McDonald, which consisted of compensatory and punitive damages as well as attorney fees. The trial court entered judgment on the jury’s verdict. Najjar contends that the trial court erred by denying his motion for directed verdict and/or motion for judgment notwithstanding the verdict; by denying his motion to exclude certain evidence offered by McDonald as a sanction for an alleged discovery violation; and by denying his motion for a mistrial and/or continuance based upon several alleged errors. We affirm.

If a jury has returned a verdict, which has been approved by the trial judge, then the same must be affirmed on appeal if there is any evidence to support it[,] as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the verdict will be upheld on appeal.

(Citations and punctuation omitted.) City of Atlanta v. WH Smith Airport Svcs., 290 Ga. App. 206 (659 SE2d 426) (2008).

Bearing in mind these principles, we turn to the record in this case. McDonald and Najjar own adjacent property lots in an affluent Atlanta neighborhood. After purchasing the property in 2004, Najjar embarked upon a major renovation project that ultimately resulted in the development of a 30,000 square foot residence. Toward the end of the construction, Najjar’s plumbing contractor discovered that the residence was not connected to a sewer line. Nor was Najjar’s architect able to find any evidence of a septic system on his property. Najjar’s plumbing contractor suggested the installation of a pump station in the back of Najjar’s property, but Najjar rejected that option as too costly and disruptive to his existing landscaping.

At some point it was discovered that McDonald’s adjacent property lot contained private access to the sewer via a manhole that had been funded by the previous owner of McDonald’s property in conjunction with two other neighbors. The manhole was located approximately 220 feet from the boundary of Najjar’s property. Najjar called the previous owner and expressed an interest in running a sewer lateral onto the property in order to tie into the manhole, but was informed that she had sold the property to McDonald. Najjar then left a voicemail message for McDonald regarding a potential easement. McDonald, who was fighting cancer at the time, instructed his real estate attorney to return Najjar’s telephone call. The attorney spoke to Najjar and requested that Najjar submit to him plans showing the location of the desired easement; Najjar did not do so.

Instead, without first obtaining permission by McDonald, Najjar instructed his architect to direct the plumbing contractor to tie into the manhole on McDonald’s property. The plumbing contractor refused. He informed both Najjar and Najjar’s architect that he would not subject his company to the potential liability associated with trespassing onto the neighboring property without first securing a sewer easement. He was told to “[d]o it anyway.”

The plumbing contractor instead ran the underground sewer line to the property boundary and then stopped. When he returned to Najjar’s property two or three days later, he noticed evidence that a trench had.been bulldozed from Najjar’s property line to the manhole located on McDonald’s property, and that the trench line had then been covered in tree limbs and other foliage. Najjar admitted that he told one of his laborers to lay the sewer lateral across McDonald’s property.

When McDonald discovered the sewer line, he filed the instant action in which he asserted claims for trespass and ejectment and sought compensatory and punitive damages as well as attorney fees. He later learned that a retaining wall built by Najjar also encroached onto his property, and amended the complaint to include a claim for trespass and ejectment as to the encroaching retaining wall. Najjar in turn filed a verified answer and counterclaim in which he asserted the existence of and his entitlement to a sewer easement extending from his property to McDonald’s manhole that “ha[d] been located there for decades”; sought a declaratory judgment for breach of quiet title to the easement; asserted a claim for damages associated with McDonald’s tortious interference with the easement; sought a preliminary and permanent injunction prohibiting McDonald from extinguishing the easement; and claimed an entitlement to attorney fees. A jury ruled in favor of McDonald and this appeal followed.

1. Najjar first argues that the trial court erred in denying his motion for directed verdict and/or motion for judgment notwithstanding the verdict because he contends that the evidence did not support a finding of intentional trespass sufficient to support an award of compensatory and punitive damages, or a finding of bad faith sufficient to support an award of attorney fees and expenses. “The standard of review on appeal requires [Najjar] to show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.” (Citations and punctuation omitted.) Harrouk v. Fierman, 291 Ga. App. 818, 820 (1) (662 SE2d 892) (2008).

(a) Trespass. An owner of real property “has the right to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from [its] use.” (Punctuation omitted.) Navajo Constr. v. Brigham, 271 Ga. App. 128, 129 (608 SE2d 732) (2004). In an action for trespass, the landowner may recover compensatory damages upon a showing of “any wrongful, continuing interference with a right to the exclusive use and benefit of a property right.” (Punctuation and footnote omitted.) Tingle v. Jones, 249 Ga. App. 654, 656 (549 SE2d 477) (2001). See OCGA § 51-9-1 (“The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.”); Dowdell v. Cherry, 209 Ga. 849 (76 SE2d 499) (1953); Wright v. Wilcox, 262 Ga. App. 659, 662 (1) (586 SE2d 364) (2003). Moreover, punitive damages may be awarded for a trespass that reflects “an intentional disregard of the rights of another.” Tyler v. Lincoln, 272 Ga. 118, 120 (1) (527 SE2d 180) (2000). See OCGA § 51-12-5.1 (b).

Here, Najjar’s interference with McDonald’s property right has been well established. He nonetheless argues that he was entitled to judgment as a matter of law because he was an innocent, as opposed to wilful, trespasser. In support of this argument, Najjar asserts, just as he did at trial, that a sewer plat allegedly provided to him by the City of Atlanta had been mislabeled, leading him to believe that the manhole located on McDonald’s property was actually on his own.

The innocent trespasser doctrine “protects individuals who enter the land of another under the mistaken belief that it is permissible to do so,” and provides under those circumstances that the “unintentional and nonnegligent entry . . . does not automatically subject an individual to liability even though the entry causes harm to the possessor.” (Citations, punctuation and footnotes omitted.) Bullard v. Bouler, 272 Ga. App. 397, 399 (2) (612 SE2d 513) (2005) (affirming jury verdict in which the jury held liable a property owner who instructed a contractor to prune trees located on his neighbor’s property, but declined to extend liability to the contractor himself). See also Brand v. Montega Corp., 233 Ga. 32, 33-34 (2) (209 SE2d 581) (1974) (affirming jury verdict declining to award damages to plaintiff for surface-water invasion unintentionally caused by defendant). See also C. W. Matthews Contracting Co. v. Wells, 147 Ga. App. 457, 458-459 (2) (249 SE2d 281) (1978). The burden rested with Najjar to establish that he was an innocent trespasser, and the question as to whether he met that burden was for the jury to determine. Norton v. Holcomb, 285 Ga. App. 78, 84-85 (3) (646 SE2d 94) (2007).

Here, the jury was charged on the innocent trespasser doctrine and chose to reject it. There is plenty of record evidence supporting the jury’s decision to do so. First, Najjar’s architect admitted that it was him — not a representative from the City of Atlanta — who altered the sewer plat upon which Najjar allegedly relied so as to mislabel McDonald’s property as that of Najjar’s. Regardless, the record is devoid of any evidence that either Najjar or anyone working for him was operating under the misconception that McDonald’s manhole was located on Najjar’s property when the sewer lateral was being laid. Najjar’s architect further admitted that he was informed by a representative from the City of Atlanta that there was no public sewer easement serving Najjar’s property and that, if an easement did exist, it was a private easement over which the City had no authority. The evidence shows that both Najjar and his architect were aware that no such private easement existed. And the plumbing contractor’s testimony established definitively that both Najjar and his architect were told that entry onto McDonald’s property would constitute an unlawful trespass, and yet they instructed the contractor to “[d]o it anyway.” After the plumbing contractor refused to do so, Najjar admitted that he nonetheless had one of the general laborers in his employ complete the work on McDonald’s property.

Under these circumstances, the evidence was more than sufficient to support a finding that Najjar directed the construction of the sewer lateral across McDonald’s property knowing that he had neither a written easement nor permission from McDonald to do so. See Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 687 (6) (689 SE2d 62) (2009); Norton, 285 Ga. App. at 84-85 (3); Young v. Faulkner, 228 Ga. App. 587, 588-589 (492 SE2d 331) (1997). Upon establishing the wilful trespass, the jury was entitled to award McDonald both compensatory and punitive damages, the amount of which Najjar does not challenge. See generally OCGA §§ 51-9-3 (“The bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner”); 51-12-5.1 (b) (punitive damages are authorized upon a finding of wilful misconduct). See also Wildcat Cliffs Builders v. Hagwood, 292 Ga. App. 244, 246 (1) (663 SE2d 818) (2008); Wright, 262 Ga. App. at 662 (1).

(b) Attorney fees and expenses. Najjar also argues that the jury’s award of attorney fees and expenses was unauthorized under OCGA § 13-6-11. Under that statute, a plaintiff is entitled to the award upon a showing that “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense[.]”

Contrary to Najjar’s contention,

the intentional tort of trespass will support a claim for expenses of litigation and attorney fees under OCGA § 13-6-11. The legal theory is that the intentional nature of the trespass gives rise to the bad faith necessary for such recovery.

Paine v. Nations, 283 Ga. App. 167, 171 (2) (d) (641 SE2d 180) (2006). See Tyler, 272 Ga. at 122 (2) (“[E]very intentional tort invokes a species of bad faith that entitles a person wronged to recover the expenses of litigation including attorney fees.”) (citations and punctuation omitted). As set forth in Division 1 (a), the evidence supported the jury’s finding that Najjar’s trespass onto McDonald’s property was both knowing and wilful. It follows that the award of attorney fees and expenses of litigation was authorized based upon Najjar’s bad faith. See id. And although the costs of attorney fees in this case were substantial relative to the compensatory damages at issue, McDonald presented evidence that the fees were reasonable in light of the considerable amount of time and expense required to disprove the broad allegations in Najjar’s counterclaim regarding the existence of and his entitlement to an easement. See Baker v. Miller, 265 Ga. 486 (2) (458 SE2d 621) (1995) (“An award of attorney fees supported by any evidence must be affirmed.”) (footnote omitted).

2. Najjar next argues that the trial court erred by denying his motion to exclude certain evidence offered by McDonald after the close of discovery. Specifically, Najjar sought to prohibit the introduction of testimony from four expert witnesses, as well as the testimony of the plumbing contractor by way of deposition. We will address each in turn.

(a) The expert witnesses about whom Najjar complains consisted of an expert who estimated the amount of damages suffered by McDonald; a surveyor who conducted a survey of McDonald’s property; a title examiner who searched the title history of McDonald’s property; and an attorney who spoke to the reasonableness of McDonald’s attorney fees. Contending that he had been “sandbagged,” Najjar moved to exclude the witnesses’ testimony as a sanction for what he argued was a “blatant violation of the discovery rules and the [p] retrial [o]rder.” The trial court denied Najjar’s motion, but instructed McDonald to ensure that the experts were made available to Najjar for interviewing, and Najjar indicated that he would be able to accomplish the interviews on the evening of the first day of trial.

A trial court is granted broad authority both to control the course of a trial and to manage discovery disputes, including the imposition of discovery sanctions. See Smith v. Morris, Manning & Martin, 293 Ga. App. 153, 168 (7) (666 SE2d 683) (2008); Gen. Motors Corp. v. Blake, 237 Ga. App. 426, 427 (1) (515 SE2d 166) (1999). We will not interfere with the trial court’s exercise of that discretion absent a showing of clear abuse. Id. See also de Castro v. Durrell, 295 Ga. App. 194, 204 (3) (671 SE2d 244) (2008).

As an initial matter, we note that it is undisputed that the witnesses at issue were identified shortly after the case commenced in McDonald’s initial response to Najjar’s discovery requests, although they were listed as fact, as opposed to expert, witnesses. Nonetheless, the discovery requests directed McDonald to “promptly” supplement responses as additional knowledge or information became available, “but in no event later than the earlier of thirty (30) days after the receipt by . . . McDonald of any such additional knowledge or information, or twenty-one (21) days before trial.” See also OCGA § 9-11-26 (e) (1) (B) (“A party is under a duty seasonably to supplement his response with respect to any question directly addressed to . . . [t]he identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.”). Likewise, although the consolidated pretrial order submitted to the court included the names of the subject witnesses as persons (not experts) who may be called during the trial and indicated that discovery in the case was closed, it too authorized either party to amend its list of evidence to be tendered at trial by giving opposing counsel at least five days notice prior to trial.

"It is undisputed that McDonald served supplemental discovery responses upon Najjar in which he identified the subject witnesses as experts and provided the substance of their testimony, and that the supplemental responses were served on Najjar more than 21 days prior to the trial date. Further, Najjar does not allege nor is there any evidence to suggest that McDonald’s notification did not come promptly after the decision to use the expert witnesses had been made. It follows that McDonald’s supplemental responses were in compliance with the express terms of the discovery requests, the codified discovery rules, and the pretrial order. Moreover, since the witnesses had been previously identified to Najjar, he cannot legitimately claim to have been surprised by the admission of their testimony. See Gill v. Spivey, 264 Ga. App. 723, 725 (2) (592 SE2d 132) (2003) (“[T]he purpose of excluding testimony as a discovery sanction is to eliminate surprise.”) (footnote omitted). Thus, Najjar has failed to show either the existence of a discovery violation or an abuse of discretion by the trial court. See generally Stewart v. Odunukwe, 273 Ga. App. 380, 381-382 (615 SE2d 223) (2005); Gill, 264 Ga. App. at 724-725 (2).

(b) Najjar further argues that the trial court abused its discretion by allowing McDonald to introduce the testimony of the plumbing contractor by way of deposition. Sometime between the deposition and the trial, the plumbing contractor became imprisoned. McDonald applied for and was granted a writ of habeas corpus ad testificandum, authorizing the sheriff to transport the witness from the detention center where he was being housed to the courthouse to testify during the trial. Prior to the commencement of the trial, however, the witness was unknowingly moved to a different state facility, rendering the writ ineffective. McDonald thereafter moved to admit portions of the witness’s deposition at trial, which had been given under oath and during which the witness was subject to cross-examination by Najjar’s attorney. The trial court allowed the testimony over Najjar’s objection.

Georgia law authorizes the admission of deposition testimony during the course of a trial if the witness is unavailable to attend due to imprisonment. OCGA § 9-11-32 (a) (3) (C) (“At the trial. . . , any part or all of a deposition . . . may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, ... if the court finds . . . [t]hat the witness is unable to attend or testify because of . . . imprisonment.”). The decision as to whether to allow the use of deposition testimony lies squarely within the sound discretion of the trial court. See Gill, 264 Ga. App. at 725 (3). See also OCGA § 9-11-32 (a) (4) (“The deposition of a witness, whether or not a party, taken upon oral examination, may be used in the discretion of the trial judge, even though the witness is available to testify in person at the trial.”).

The evidence establishes that the plumbing contractor was imprisoned when the trial commenced. Despite his best efforts to do so, McDonald was unable to procure the attendance of the witness due to his imprisonment. Because the Code expressly authorizes the use of deposition testimony if imprisonment renders a witness unavailable, OCGA § 9-11-32 (a) (3) (C), the trial court did not abuse its discretion by allowing the use of the plumbing contractor’s deposition testimony. See generally Spencer v. Dupree, 150 Ga. App. 474, 479 (6) (258 SE2d 229) (1979); Kamman v. Seabolt, 149 Ga. App. 167, 169 (6) (253 SE2d 842) (1979).

3. Najjar contends that the trial court erred in denying him a mistrial and/or continuance in order to allow him to (a) conduct discovery related to the expert witnesses discussed in Division 2 (a); (b) secure the attendance of the plumbing contractor; and (3) explore what he contends was a waiver of McDonald’s attorney-client privilege during opening argument. Najjar’s assertions lack merit.

(a) The record shows definitively that Najjar rejected at least two separate offers of a continuance in order to conduct discovery of the expert witnesses prior to the commencement of the trial. McDonald first offered Najjar a continuance to allow him to conduct discovery at the time he supplemented his interrogatory responses to identify the witnesses as experts, which Najjar rejected. And then when Najjar sought to exclude the witness testimony as a discovery sanction, the trial court inquired into a possible continuance and, again, Najjar rejected the possibility. Najjar admitted that he did so in anticipation that the trial court would instead exclude the testimony. It was not until the morning of the second day of trial that Najjar, for the first time, moved for a continuance. “A party cannot complain of error created by his own legal strategy, trial procedure or conduct.” (Footnote omitted.) In re Vincent, 240 Ga. App. 876, 878 (2) (a) (525 SE2d 409) (1999). See Flowers v. Union Carbide Corp., 271 Ga. App. 438, 441-442 (1) (b) (610 SE2d 109) (2005). Regardless, to the extent that Najjar’s claim was not waived by his conduct, the trial court did not abuse its discretion by denying his motion, since the court instructed McDonald to ensure that the experts were made available to Najjar for interviewing, and Najjar indicated that he would be able to accomplish the interviews on the evening of the first day of trial. See OCGA § 9-10-167 (a); Haygood v. Tilley, 295 Ga. App. 90, 93-94 (2) (670 SE2d 800) (2008); Wilson v. Southern R. Co., 208 Ga. App. 598, 603-604 (3) (431 SE2d 383) (1993); Turner v. City of Nashville, 177 Ga. App. 649, 650-651 (2) (340 SE2d 619) (1986).

Decided October 28, 2010

(b) Najjar further asserts that the trial court’s failure to grant him a mistrial and/or continuance in order to secure the attendance of the plumbing contractor denied him the opportunity to effectively cross-examine that witness about his criminal history. As an initial matter, we note that Najjar neither moved for a mistrial nor a continuance upon learning that the witness was unavailable; rather, it was not until the following day that Najjar first made his motion. Regardless, Najjar impeached the plumbing contractor’s testimony to the fullest extent allowed by law by introducing and reading into the record a certified copy of the witness’s felony conviction. See OCGA § 24-9-84.1 (a) (1); Vincent v. State, 264 Ga. 234, 234-235 (442 SE2d 748) (1994) (impeachment by proof of conviction of a crime is accomplished by tendering certified copies of the conviction; the facts surrounding a conviction are irrelevant and inadmissible); Henderson v. State, 247 Ga. App. 31, 31-32 (1) (543 SE2d 95) (2000) (same). Najjar thus presents no grounds for reversal.

(c) Finally, Najjar argues that the trial court erred in denying his motion for mistrial and/or continuance based upon McDonald’s alleged waiver of the attorney-client privilege during opening argument. In the challenged statement, McDonald’s attorney stated that he counseled McDonald that “the law frowns on self help” and therefore discouraged him from removing the sewer lateral himself. Again, Najjar waited until the morning after the opening statement was given to make his motion for mistrial and/or continuance. By failing to object to the statement at the time it was made, Najjar waived this argument on appeal. See generally Butler v. State, 273 Ga. 380, 383-384 (8) (541 SE2d 653) (2001); Brooks v. State, 284 Ga. App. 762, 764 (644 SE2d 891) (2007).

Judgment affirmed.

Barnes, P. J., and Senior Appellate Judge G. Alan Blackburn concur.

Jeremy U. Littlefield, Richard L. Robbins, for appellants.

Davis, Matthews & Quigley, Ron L. Quigley, Matthew R. Thiry, Mina A. Elmankabady, for appellee.

       At the time of the events in question, Lee Najjar’s residence was titled in the name of his company, LN West Paces Perry Associates, LLC.

       Najjar ultimately negotiated a sewer easement with a different adjacent property owner which eliminated the need for him to use McDonald’s manhole.

       As discussed in Division 2 (b), the plumbing contractor was unavailable during the trial and his testimony was introduced by way of deposition.

       In addition to failing to acquire permission from McDonald, Najjar admitted that he did not obtain a permit to tap into the public sewer system as required by the City of Atlanta, nor did he render any payment for the sewer usage.

       The trial court was entitled to rely upon the representations of McDonald’s attorney, which were not challenged by Najjar, to establish this fact. See Sheffield v. Lockhart, 151 Ga. App. 551, 553 (2) (260 SE2d 416) (1979) (“[A]ttorneys are officers of the court, and a statement to the court in his place is prima facie true and needs no further verification unless the same is required by the court or the opposite party.”) (citation and punctuation omitted).


author: PHIPPS, Presiding Judge.

text:
    A10A1466.
    ALEMAN v. UHS-PRUITT HOLDINGS, INC. et al.
    (703 SE2d 96)
   PHIPPS, Presiding Judge.

Marcos Aleman, whose deceased wife had been a patient at a hospice affiliated with UHS-Pruitt Holdings, Inc., brought a putative class action against the hospice and UHS-Pruitt on behalf of

[a]ll surviving spouses from February 14, 1999 through the present, who have requested medical records from Defendant Hospice and/or Defendant UHS-Pruitt, and who[se] request was denied because he or she was not an administrator or executor of the respective decedent’s estate.

The trial court denied Aleman’s motion to certify a class, finding that he had “failed to show there [were] numerous other potential persons in his similar situation or that there [was] substantial commonality amongst those potential claims.”

Aleman appeals the denial of class certification. He contends, inter alia, that the trial court’s order denying class certification failed to comply with the requirements set forth in OCGA § 9-11-23 (f) (3), which provides in pertinent part that a court, when deciding whether a requested class is to be certified,

. . . shall enter a written order addressing whether the factors required by [OCGA § 9-11-23] for certification of a class have been met and specifying the findings of fact and conclusions of law on which the court has based its decision with regard to whether each such factor has been established. . . .

The trial court’s order denying Aleman’s motion for class certification stated that Aleman had not made the showings of numerosity or commonality required for class certification, but it failed to specify any findings of fact on which the court based this decision. Consequently, the order did not satisfy the requirements of OCGA § 9-11-23 (f) (3). Moreover, it is unclear from the record on appeal what evidence, if any, was presented to the trial court in support of the class certification motion, because the notice of appeal asked that all but certain items be omitted from the record. Thus, without the trial court’s specific findings of fact, we have no basis to evaluate whether the trial court properly exercised its discretion in denying class certification.

Decided October 28, 2010.

Jimmy Hwang, for appellant.

Arnall, Golden & Gregory, Jason E. Bring, for appellees.

Accordingly, we vacate the trial court’s order and remand the casé for the entry of a more detailed order that, in accordance with OCGA § 9-11-23 (f) (3), specifies the findings of fact and conclusions of law supporting the court’s decision as to whether the class certification factors have been met.

Judgment vacated and case remanded with direction.

Miller, C. J., and Johnson, J., concur.

       See OCGA § 9-11-23 (a).

       See Griffin Indus. v. Green, 280 Ga. App. 858, 859 (1) (635 SE2d 231) (2006).

       See id. at 860. Compare Diallo v. American Intercontinental Univ., 301 Ga. App. 299, 306 (3) (687 SE2d 278) (2009) (order provided basis for evaluating the trial court’s exercise of discretion in denying class certification, even though it did not address all the class certification factors, where trial court made findings and conclusions regarding factor that it found not to have been shown, and appellants did not assert that, in denying their motion, the order failed to specifically address that factor); Roland v. Ford Motor Co., 288 Ga. App. 625, 628-629 (1) (655 SE2d 259) (2007) (order provided basis for evaluating the trial court’s exercise of discretion, even though it did not address all the class certification factors, where the order referenced the factors the court relied upon in denying class certification and gave a brief discussion of the facts and law the court relied upon in arriving at its conclusions).

        Griffin Indus., supra.


text:
    A10A1514.
    SNELL v. THE STATE.
    (703 SE2d 93)
   POPE, Senior Appellate Judge.

A Baker County jury found Joe N. Snell guilty of felony involuntary manslaughter as a lesser included offense to the indicted charge of felony murder. The trial court thereafter denied his motion for a new trial. Snell appeals, contending that there was insufficient evidence to convict him and that the trial court erred in failing to charge the jury on reckless conduct and misdemeanor involuntary manslaughter as separate lesser included offenses. For the reasons discussed below, we affirm.

1. Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Noble v. State, 282 Ga. App. 311 (638 SE2d 444) (2006). We neither weigh the evidence nor assess witness credibility, which are tasks that fall within the exclusive province of the factfinder. Id. at 311-312. So long as some competent evidence exists, although contradicted, to support each element of the State’s case beyond a reasonable doubt, we will uphold the verdict. Dorsey v. State, 297 Ga. App. 268 (676 SE2d 890) (2009).

Viewed in this manner, the undisputed evidence showed that Snell shot and killed his brother-in-law following a heated argument at a family gathering; what was in dispute at trial was whether the fatal shooting was intentional, the result of reckless conduct, or an accident. On the night in question, the victim and several other family members were playing cards and visiting with one another at a relative’s house. The card playing took place at a card table in the living room, a small space crowded with adults and children. Snell, who had left earlier that evening after arguing with the victim, returned to the residence and approached the card table where the victim was playing cards. Snell had been drinking whiskey, and he had a cocked and loaded handgun stashed underneath his jacket. After approaching the card table, Snell again engaged in a heated argument with the victim. Snell’s handgun discharged, and the victim was struck by a bullet in the shoulder, resulting in his death.

There was conflicting testimony at trial concerning how the shooting transpired. Several eyewitnesses testified that Snell drew the handgun from his jacket, pointed it directly at the victim, and deliberately shot the victim at point blank range. The sheriff who responded to the scene likewise testified that Snell said that he shot the victim after the victim had been “running his mouth.” In contrast, Snell testified that while responding to something that the victim had said, he had stumbled into a sofa chair, causing the handgun to fall out of his jacket. According to Snell, he managed to grab the handgun before it struck the floor, but the gun accidentally discharged.

On appeal, Snell contends that there was insufficient evidence to convict him of felony involuntary manslaughter. “The essential elements of that offense are: (1) committing an unlawful act other than a felony (2) when causing the death of another person, (3) without intending to do so by the commission of the unlawful act.” (Punctuation and footnote omitted.) Noble, 282 Ga. App. at 312. See OCGA § 16-5-3 (a). The jury was charged on the misdemeanor offense of reckless conduct as the underlying unlawful act. Reckless conduct

occurs when a person causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

(Footnote omitted.) Noble, 282 Ga. App. at 312. See OCGA § 16-5-60 (b).

Based upon the evidence presented at trial, the jury was entitled to resolve the conflicts in the testimony, reject Snell’s defense of accident, and find that Snell unintentionally killed the victim while handling his loaded gun in such a way as to constitute the misdemeanor offense of reckless conduct. See Jackson v. State, 276 Ga. 408, 409 (1) (577 SE2d 570) (2003); Noble, 282 Ga. App. at 312-313; Cross v. State, 199 Ga. App. 266, 267-268 (1) (404 SE2d 633) (1991); Grimes v. State, 199 Ga. App. 152, 152-153 (1) (404 SE2d 324) (1991), overruled in part on other grounds sub nom., Anderson v. State, 262 Ga. 26, 27-28 (3) (a), (b) (413 SE2d 732) (1992). Accordingly, a rational jury was authorized to find Snell guilty beyond a reasonable doubt of felony involuntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-5-3 (a).

2. Snell contends that the trial court erred in failing to charge the jury on reckless conduct as a separate lesser included offense to the indicted charge of felony murder. But “there was no evidence of [Snell’s] allegedly reckless conduct other than that directly related to the death of the victim. Thus, a charge on reckless conduct had to be in the context of involuntary manslaughter.” Simmons v. State, 266 Ga. 223, 229 (7) (b) (466 SE2d 205) (1996), overruled in part on other grounds, Wall v. State, 269 Ga. 506, 509-510 (2) (500 SE2d 904) (1998). It follows that the trial court committed no error in declining to charge the jury on reckless conduct as a separate lesser included offense. See id.; Reed v. State, 238 Ga. App. 297, 298 (517 SE2d 824) (1999). Compare Reinhardt v. State, 263 Ga. 113, 113-114 (2) (428 SE2d 333) (1993), overruled in part on other grounds, Vergara v. State, 283 Ga. 175, 177-178 (1) (657 SE2d 863) (2008) (in felony murder case, the trial court should have charged the jury on reckless conduct as a separate lesser included offense of arson).

3. Snell also contends that the trial court erred in failing to charge the jury on misdemeanor involuntary manslaughter as a separate lesser included offense to the indicted charge of felony murder.

Decided October 28, 2010.

Robert R. McLendon IV, for appellant.

Joseph K. Mulholland, District Attorney, for appellee.

A person commits the offense of misdemeanor involuntary manslaughter when the person causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.

(Citation and punctuation omitted.) Reed v. State, 279 Ga. 81, 85-86 (7) (610 SE2d 35) (2005). See OCGA § 16-5-3 (b). Snell claims that his carrying of the handgun was a lawful act, but that he was carrying the gun in an unlawful manner (concealed in his jacket). He further claims that the unlawful manner in which he carried the handgun arguably caused the victim’s death, since the gun discharged after falling out of his jacket, according to his trial testimony. As such, Snell argues that he had a right to a charge on misdemeanor involuntary manslaughter.

We are unpersuaded. Even if Snell’s carrying of the concealed handgun could be construed as the cause of the victim’s death, Snell’s admitted conduct was not a lawful act, despite his attempt to split hairs between his carrying and concealing of the handgun on his person. As Snell concedes, his carrying of a concealed weapon into another’s residence was unlawful. See OCGA § 16-11-126. Consequently, even under his own version of events, Snell was not engaged in the commission of a lawful act and thus was not entitled to a charge on misdemeanor involuntary manslaughter. See generally Hall v. State, 287 Ga. 755, 759 (4) (699 SE2d 321) (2010) (“A charge of involuntary manslaughter is not warranted if no evidence supports the charge.”).

Judgment affirmed.

Barnes, P. J., and Senior Appellate Judge G. Alan Blackburn concur.

       Snell also was indicted and tried on charges of murder and aggravated assault. The jury acquitted him of those charged offenses.

       But see Paulhill v. State, 229 Ga. 415, 417-418 (2) (a) (191 SE2d 842) (1972) (defendant’s concealment of firearm did not cause the victim’s death, but rather “[t]he firing of the gun did so”); Carlton v. State, 224 Ga. App. 315, 318 (3) (480 SE2d 336) (1997) (same).


author: BARNES, Presiding Judge.

text:
    A10A0886.
    NATIONAL CITY MORTGAGE, INC. et al. v. POINT CENTER FINANCIAL, INC. et al.
    (703 SE2d 113)
   BARNES, Presiding Judge.

National City Mortgage, Inc., Audie Flowers, and Kim Betts appeal the trial court’s orders entering judgment by default against Betts, denying Betts’s motion to extend the time to file a responsive pleading and to open the default and denying Flowers’s motions to set aside the default judgment, to open the default, and to file a responsive pleading. This appeal arises from proceedings initiated when National City Mortgage filed a complaint for declaratory judgment against Point Center Financial, Inc., and 36 other named defendants. Point Center Financial answered and counterclaimed against National City Mortgage, and later moved to add Flowers and Betts as defendants in counterclaim alleging that they were necessary parties. The trial court granted the order, but did not order Flowers and Betts to answer the counterclaim. Point Center Financial obtained a summons from the clerk of court and had them served with the Amended Counterclaims for Declaratory Relief that it filed.

When Flowers and Betts did not answer the counterclaim, Point Center Financial moved to hold them in default, and the trial court granted the motion. The trial court denied Flowers and Betts’s motions to open the defaults, and later entered default judgments against them. Later, the trial court refused to set aside the default judgments.

Now, Flowers and Betts argue that the trial court erred by granting a default judgment against them because they were not required to answer an amended complaint. See OCGA § 9-11-12 (a). Flowers and Betts concede, however, that their motions in the trial court failed to present this argument to the trial court until after the default judgment was entered against them and they filed their notice of appeal. Then, in a joint motion Flowers filed an amended motion to set aside the default judgment and Betts filed a motion to set aside the default judgment raising this argument. Because the notice of appeal deprived it of jurisdiction to consider these motions, the trial court properly deferred ruling on the motion pending this appeal.

Although ordinarily we would not grant relief to appellants on grounds not presented to the trial court, see CPD Plastering v. Miller, 284 Ga. App. 172, 174 (1) (643 SE2d 392) (2007); Seeley v. Seeley, 282 Ga. App. 394, 396-397 (2) (638 SE2d 837) (2006), given the nature of the error asserted and the fact that a motion to set aside the default judgment on this ground is pending in the trial court, in the interest of judicial economy we will consider the error based on this argument.

Decided October 29, 2010.

Beloin, Brown, Blum & Baer, Elizabeth T. Baer, for appellants.

Diment & Carroll, Price H. Carroll, for appellees.

In this State it is well settled that an amended complaint adding a new party defendant “does not require a responsive pleading, unless the trial court orders a reply thereto.” Random Access v. Atlanta Datacom, 232 Ga. App. 269, 270 (501 SE2d 610) (1998); OCGA § 9-11-15 (a): “A party may plead or move in response to an amended pleading and, when required by an order of the court, shall plead within 15 days after service of the amended pleading, unless the court otherwise orders.” Indeed, a “cross-claim or counterclaim shall not require an answer, unless one is required by order of the court, and shall automatically stand denied.” (Emphasis supplied.) OCGA § 9-11-12 (a). This is consistent with the statement in OCGA § 9-11-8 (d) that “[ajverments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” The fact that Flowers and Betts were served with a summons and the amended complaint does not alter that rule. The trial court must affirmatively order the new defendants to answer before one is required. Shields v. Gish, 280 Ga. 556, 558 (2) (629 SE2d 244) (2006). Accordingly, as Flowers and Betts were never required to file answers to the amended complaint, they were never in default and the trial court erred by entering default judgments against them. Chan v. W-East Trading Corp., 199 Ga. App. 76, 79 (5) (403 SE2d 840) (1991).

Judgment reversed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T. Pope, Jr., concur.


text:
    A10A1131.
    HOLMES v. THE STATE.
    (703 SE2d 115)
   BARNES, Presiding Judge.

Willie Earl Holmes appeals from the denial of his motion to correct an illegal sentence. For reasons that follow, we affirm.

Holmes pled guilty in May 2009 to making terroristic threats and received a sentence of five years imprisonment. Approximately four months later, Holmes moved to “correct” the sentence, arguing that it was void. He noted that he was initially arrested for making terroristic threats against a woman named Sharon Crawford, but indicted for making threats against a man named Edwin Brown. Asserting that he actually pled guilty to threatening Crawford, Holmes argued that he was illegally sentenced for a crime other than the indicted offense. The trial court denied the motion, and this pro se appeal followed.

Decided October 29, 2010.

Willie E. Holmes, pro se.

Thomas C. Earnest, District Attorney, for appellee.

We find no error. As an initial matter, the grand jury that indicted Holmes was not bound by the arrest warrant allegations. See Johnson v. State, 242 Ga. 822, 823 (4) (251 SE2d 563) (1979); OCGA § 15-12-74 (grand jury may indict for any crime of which it becomes aware). It was authorized to indict Holmes for making terroristic threats against Brown, despite the original focus on Crawford. Johnson, supra. Moreover, Holmes has offered no proof that he pled guilty to a terroristic threats offense other than that alleged in the indictment. Although the record does not contain a transcript from the guilty plea hearing, the sentencing sheet indicates that Holmes entered his plea to terroristic threats in Case Number 09-121, the case number associated with his indictment. And the face of the indictment shows that he pled guilty to the indicted count involving Brown.

Holmes has not demonstrated that the sentence he received following his terroristic threats conviction was void, illegal, or in need of correction. The trial court, therefore, properly denied his motion.

Judgment affirmed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T. Pope, Jr., concur.

       Holmes also moved to correct his conviction as “void.” As recently held by our Supreme Court, however, a motion to modify or correct a “void” conviction is not an appropriate remedy in a criminal case. See Harper v. State, 286 Ga. 216, 218(1) (686 SE2d 786) (2009). In contrast, a trial court has jurisdiction to correct or modify a sentence within one year of the date upon which the sentence was imposed. OCGA § 17-10-1 (f).

       Although Holmes asked the trial court to appoint counsel for him, he is not entitled to appointed counsel at this point. See Rooney v. State, 287 Ga. 1, 7 (4) (690 SE2d 804) (2010) (indigent defendant who files a motion to correct void sentence is not entitled to appointed counsel to pursue the motion or an appeal regarding the motion).

       Crawford is not completely absent from the indictment. In addition to the terroristic threats count involving Brown, the grand jury indicted Holmes for simple battery against Crawford. That charge, however, was nolle prossed as part of Holmes’s negotiated guilty plea to terroristic threats.


text:
    A10A1176.
    WALKER v. AMERIREACH.COM et al.
    (703 SE2d 100)
   BARNES, Presiding Judge.

Carol Walker sued Amerireach.com LLC (“AmeriSciences”), a health and nutrition multilevel distribution company based in Houston, Texas, which conducts substantial business activities in Georgia, alleging violations of the Georgia Fair Business Practices Act (FBPA) and the Georgia Sale of Business Opportunities Act (SBOA). She also sued three of the company’s corporate officers individually. The trial court granted AmeriSciences’s motion for summary judgment on res judicata grounds based on a Texas court’s default judgment, and granted the officers’ motion to dismiss for lack of personal jurisdiction. Because Walker’s complaint is based on a statutory violation and not on breach of contract, however, AmeriSciences’s contractual defenses are inapplicable. Further, the trial court has personal jurisdiction over the individual defendants, who may be held liable under the SBOA. Accordingly, we reverse.

For almost three years, physician Carol Walker participated in a “marketing program” buying and selling nutritional supplements she bought from AmeriSciences. When she ended the relationship she was holding $150,000 worth of inventory. On February 5, 2009, Walker sent notice to the company that, absent a settlement, she intended to sue the company in 30 days based on its failure to disclose her right to require the company to repurchase her inventory under certain conditions, as required by OCGA § 10-1-415 (d) (1) of the SBOA.

Before the expiration of Walker’s 30-day statutory waiting period required by OCGA § 10-1-399 (b) of the FBPA, during which she was barred from filing suit in Georgia under the FBPA, Ameri-Sciences filed suit in Harris County, Texas, on February 13, 2009. The company sought a declaratory judgment that Walker’s FBPA action was subject to the Harris County, Texas, forum selection clause contained in the parties’ contract, that the forum selection clause was enforceable, and that an action for damages filed anywhere but Harris County constituted a breach of contract. On April 7, 2009, Walker sued AmeriSciences and the individual defendants in the Superior Court of Gwinnett County under the Georgia FBPA and SBOA. She contended that the company failed to disclose her right to require the company to repurchase her unsold, unopened inventory at any time as required by Georgia law, but instead represented in her contract and elsewhere that AmeriSciences would only repurchase her inventory within 30 days after she bought it.

AmeriSciences answered and denied liability, asserting among other things that Walker’s claims were compulsory counterclaims that should have been raised in the Texas action and could not be asserted in a separate Georgia case. In a motion to dismiss, Ameri-Sciences also argued that the parties’ contract contained an enforceable forum selection clause establishing venue in Harris County, Texas, and raised arguments regarding reliance, statute of limitation, and personal jurisdiction regarding the individual defendants.

On July 20, 2009, AmeriSciences amended its motion to dismiss and moved in the alternative for summary judgment, arguing that Walker’s claims were now res judicata because on June 3, 2009, the Texas court had granted it a default judgment in its declaratory action. AmeriSciences argued in its amended motion that the Texas default judgment was entitled to full faith and credit, and thus its conclusions “must be given preclusive effect.” Those conclusions were that any suit Walker brought against AmeriSciences was subject to the forum selection clause, and that filing an action in any forum other than Harris County, Texas, constituted a breach of contract. After a hearing, the Georgia trial court granted summary judgment to AmeriSciences on several grounds and dismissed the claim against the officers for lack of personal jurisdiction. In a very detailed 22-page order drafted by counsel for AmeriSciences, the trial court concluded that Walker’s claims were subject to the contract’s forum selection clause and thus barred by res judicata; that Walker failed to show reliance and damages from any SBOA violation; and that the court lacked personal jurisdiction over the personal defendants, who were not in any event subject to personal liability under the SBOA. Walker appeals, arguing the trial court erred in each of these findings.

1. Walker contends the trial court erred in holding that her claims were subject to the contract’s forum selection clause and thus barred by res judicata because of the Texas default judgment. AmeriSciences argues that the parties would have no relationship absent their written contract, and that the forum selection clause applies to all claims “arising from” or “relating to” the parties’ agreement. In this regard, AmeriSciences argues that well-established principles of Georgia law mandate that the forum selection clause at issue be enforced. Moreover, it also correctly points out that the FBPA does not expressly provide that Georgia courts have exclusive, original jurisdiction over claims for alleged violations of the SBOA.

While all of AmeriSciences’s claims are correct as far as they go, FBPA claims are not contract claims. In an amicus brief, the administrator of the Georgia FBPA notes our holding that “the [FBPA] itself is in no way tied to contractual rights and is wholly self-sustaining. ...” Attaway v. Tom’s Auto Sales, 144 Ga. App. 813 (242 SE2d 740) (1978). In reaffirming and expanding this holding, we noted that in Attaway

we held that when an action is brought for violation of the FBPA, contractual defenses are irrelevant and inapplicable. The same principle applies here, and we hold that contractual defenses are inapplicable when an action is based not on the contract but solely on an alleged violation of the Sale of Business Opportunities Act.

Hornsby v. Phillips, 190 Ga. App. 335, 340 (4) (378 SE2d 870) (1989). The purpose of the SBOA is, among others, “(t)o prevent and prohibit fraudulent and deceptive practices in the sale of business opportunities.” (Punctuation omitted.) Id. at 338 (2). The FBPA “creates a separate and distinct cause of action, independent of other theories of recovery an injured party might have.” Hill v. Jay Pontiac, 191 Ga. App. 258, 259 (2) (381 SE2d 417) (1989).

We have also reversed a trial court’s dismissal of a complaint alleging that a company violated Georgia’s debt adjustment statutes, OCGA § 18-5-1 et seq. Moon v. CSA-Credit Solutions of America, 304 Ga. App. 555 (696 SE2d 486) (2010) (physical precedent only). In Moon, the trial court dismissed the complaint based on a forum selection clause in the parties’ contract. Although not all of the judges on the panel agreed on the reasoning and thus the case is physical precedent only, the special concurrence in Moon reasoned that, because the complaint asserted a cause of action based upon a violation of the debt adjustment statutes, not a breach of contract claim, the contract’s choice of forum provision did not apply.

The four corners of Walker’s complaint reveal that her claims are not based on breach of contract but instead are based on violation of the SBOA. Thus, the contractual defense of a forum selection clause does not apply, and Walker’s claims are not res judicata based on the default judgment from Harris County, Texas.

2. Walker argues the trial court erred in holding that she failed to allege she sustained damages due to AmeriSciences’s failure to inform her of her buy-back rights under the SBOA. AmeriSciences’s contract with Walker stated that upon termination of their business relationship, she had the right to return for repurchase marketable inventory within one month from her date of purchase. The SBOA provides, however, that a participant in a multilevel marketing plan has a right to cancel at any time, regardless of reason, and that this fact along with the participant’s cancellation rights must appear in the. contract or an addendum “in ten-point boldface type.” OCGA § 10-1-415 (c) (3). According to the statute, the description of those rights

. . . must, at a minimum, provide the following: . . . [T]he seller shall repurchase all unencumbered products ... in a reasonably resalable or reusable condition and which were acquired by the participant from the seller; such repurchase shall be at a price not less than 90 percent of the original net cost to the participant of the goods being returned. . . .

OCGA § 10-1-415 (d) (1). At the end of Walker’s contract, 14 additional “Terms and Conditions” include a provision stating that Walker could receive a 90 percent refund of all its “sales aids and literature in resale condition” within 30 days or longer if state law required a longer refund period, specifying that Georgia had no time limit. Walker agreed to be bound by the company’s Policies and Procedures, posted on its website, changes to which would also be binding upon notice. Finally, Section 4.08 of the contract provides that “where state laws on termination are inconsistent with these Policies and Procedures, the applicable state law shall apply.”

AmeriSciences argues that it properly amended its Policies and Procedures on its website to comply with the notice requirements of OCGA § 10-1-415 (c) and (d), that Walker should not have relied on her written contract terms but should have investigated her repurchase rights under Georgia law, and that she failed to allege that she suffered damages because she relied on the contract’s 30-day return limitation.

Pretermitting whether reliance is a required element in a claim asserting an SBOA violation, Walker has presented sufficient evidence of reliance and damages to withstand a motion for summary judgment. In her complaint, Walker alleged that she relied on AmeriSciences to disclose her rights under Georgia law, and that the company refused to comply with the product repurchase requirements of OCGA § 10-1-415 (d) (1). The direct deposit authorization she gave AmeriSciences, allowing the company to debit or credit her bank account, stated in boldfaced capital letters that the company would grant “NO REFUNDS OR EXCHANGES.” In an affidavit, Walker stated that when she asked about returning her products for a refund, AmeriSciences’s director of distributor services told her the company did not give product refunds. That representation, along with a similar public statement from AmeriSciences’s CEO during a company conference, led her to believe she could not return the products until her lawyer advised her otherwise. Walker did not remember receiving any kind of notice that AmeriSciences had revised its Policies and Procedures, and AmeriSciences has not pointed to anything in the record regarding such a notice. Walker avers that she did not know until her lawyer told her that she had a statutory right to seek a refund from AmeriSciences, which she could assert at any time. By the time she asserted her repurchase rights under the SBOA, AmeriSciences refused to buy them back, contending that many of her products were not “commercially resaleable” because they were too old.

The statute itself requires that AmeriSciences inform its marketers about their cancellation rights in the contract or an addendum in ten-point boldface type. AmeriSciences’s contract clause providing that state laws on termination apply if they are inconsistent with the contract is insufficient to constitute compliance with the statute and does not shift the burden to Walker to research whether her rights under Georgia law were greater than the rights AmeriSciences bestowed by contract, particularly if company representatives told her she had no repurchase rights. Whether Ameri-Sciences gave proper “notice” to Walker that it amended its online Policies and Procedures to comply with Georgia law and whether Walker should have asserted her legal rights earlier are genuine issues of material fact for a jury to decide.

3. Walker contends the trial court erred in dismissing her complaint against the individual defendants. In its order, the trial court held that it had no personal jurisdiction over these defendants because no evidence existed that they were present in Georgia in their personal capacity, only as AmeriSciences officers. The court also held that, even if it had personal jurisdiction, liability under OCGA § 10-1-410 (10) is limited to “any person who offers to sell to individuals any business opportunity, either directly or through any agent,” and Walker had not alleged that AmeriSciences offered to sell a business opportunity.

“OCGA § 9-10-91 (1) grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State[,] ... to the maximum extent permitted by procedural due process.” (Punctuation omitted,) Innovative Clinical &c. v. First Nat. Bank &c., 279 Ga. 672, 675 (620 SE2d 352) (2005). In response to requests for admissions, Ameri-Sciences admitted it is a “multilevel distribution company” as defined in the SBOA, and that the provisions of OCGA § 10-1-415 (c) (4) apply to any agreement made in Georgia. It admitted that Cocheu, Gallardo, and Redman were founding members of the company and were respectively the company’s CEO, operating chairman, and general counsel when Walker became an Ameri-Sciences marketer. The individual defendants also admitted that Walker’s cancellation rights under Georgia law were “generally known” to them. Based on these admissions, the trial court erred in dismissing the claims against the individual defendants for lack of personal jurisdiction.

Decided October 29, 2010

Henry A. Turner, for appellant.

Webb, Tanner, Powell, Mertz & Wilson, Robert J. Wilson, for appellees.

Thurbert E. Baker, Attorney General, Isaac Byrd, Deputy Attorney General, Sidney R. Barrett, Jr., Senior Assistant Attorney General, Amy C. M. Burns, Assistant Attorney General, amici curiae.

Further, Walker’s complaint is sufficient to state a claim against the individual defendants. We have held that a company’s primary officers and shareholders are “sellers” under the SBOA. Hornsby v. Phillips, supra, 190 Ga. App. at 337-338 (2). The statute defines “seller” as “any multilevel distribution company or . . . any person who offers to sell to individuals any business opportunity, either directly or through any agent,” and defines “person” to include anyone who “has a substantive interest in or effectively controls” the seller, as well as its “individual officers, directors, general partners, trustees, or other individuals in control.” Id.; OCGA § 10-1-410 (8), (10). Accordingly, the trial court erred in dismissing Walker’s claims against the individual defendants.

Judgment reversed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T Pope, Jr., concur.

       Barry Cocheu, Lou Gallardo, and Steven Redman.

       Curiously, the final default judgment was filed with the Harris County, Texas, clerk of court on May 12, 2009, although it was signed by the trial court judge on June 3, 2009.

       AmeriSciences submitted pleadings from numerous trial courts involving similar suits, but orders in these cases are neither binding nor particularly persuasive. For example, this court denied the company’s applications for interlocutory appeals of another trial court’s denial of its motion to dismiss. Further, while the record contains an order granting summary judgment to the company, which is essentially a duplicate of the order before us drafted by AmeriSciences, the company settled that case while it was on appeal before this court issued an opinion, according to representations made by Walker’s counsel during the summary judgment hearing on this case.


text:
    A10A1178.
    HILL v. THE STATE.
    (703 SE2d 98)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Calvin Lorenzo Hill appeals his conviction for armed robbery. He contends that the trial court erred in admitting into evidence a taped conversation between his co-defendant and a third party, and also in its instruction to the jury regarding prior consistent statements. Following our review and discerning no reversible error, we affirm.

Construed in favor of the jury’s verdict, evidence was presented that Consolidated Credit, a storefront loan company, was robbed by two men, one wearing an orange mask and the other wearing a dark colored mask. The man in the orange mask approached the owner and ordered him at gunpoint to give him “the money,” while the second robber remained near the entrance brandishing an iron object. After robbing the store, the men left from the building and were spotted by the publisher of the local newspaper, which was located nearby, running away from the store. The publisher testified that five minutes before he saw the two men running, he spotted the pair walking toward Consolidated Credit and one of the men had a bright orange cap on his head. Although one of the employees described the robbers as black males, slim and about 5T0", none of the customers or employees present during the robbery were able to identify the masked men in a photographic lineup.

Soon after the robbery, William Burton was arrested on outstanding warrants and while incarcerated told police that he had information about the Consolidated Credit robbery “in exchange for getting help with the charges” against him. Burton told police that Hill was one of the men who robbed the business. Burton also testified during the trial that Hill told him he had robbed Consolidated Credit.

Darrell Lawrence also contacted police with information about the robbery. Lawrence agreed to call Hill’s suspected accomplice, Dantavious Fortson, and have their conversation recorded. Police used Internet “spoofware” that concealed the actual telephone number from which the call originated. Lawrence called Fortson from a telephone at the police station, but it appeared on Fortson’s caller ID as another number. During the conversation, Fortson implicated himself and Hill in the robbery of Consolidated Credit, indicating that he had worn the black mask, Hill had worn the orange mask, and that they had taken $850. Lawrence did not testify at trial. Fortson was arrested, and in a statement to police said that Hill was his accomplice in the robbery. An arrest warrant was issued for Hill, and he turned himself in to police. He later pled guilty to the robbery, and testified during the trial that he and Fortson committed the robbery.

1. Hill contends that the trial court erred in admitting into evidence the taped conversation between Fortson and Lawrence. Hill argues that the recording of the conversation was illegal eavesdropping, and that even if Lawrence consented to the taping of the conversation, police were prohibited from intercepting the conversation between the two because Fortson was under 18 at the time of the conversation.

Decided October 29, 2010.

Jana M. Whaley, for appellant.

Robert W Lavender, District Attorney, Leon Jourolmon, Assistant District Attorney, for appellee.

While OCGA § 16-11-62 (1) prohibits any person from clandestinely recording the private conversation of another, OCGA § 16-11-66 (a) excludes from this prohibition situations in which one party to the conversation has consented to the recording of it. See Fetty v. State, 268 Ga. 365, 366 (3) (489 SE2d 813) (1997); Sheppard v. Reid, 198 Ga. App. 703 (402 SE2d 793) (1991). However, OCGA § 16-11-66 (b) reqüires that “[cjonsent for the recording or divulging of the conversations of a child under the age of 18 years conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application.”

Here, even assuming without deciding that Hill had standing to object to the conversation between Fortson and Lawrence, see Ellis v. State, 256 Ga. 751, 755 (2) (353 SE2d 19) (1987) (“When the voice of an individual is not heard and the tap is not on his premises, he has no standing”), we find no reversible error in the admission of the taped conversation between Fortson and Lawrence.

Even if the tape was inadmissible, the evidence was merely cumulative as Fortson testified extensively at trial about Hill’s involvement in the robbery, including what the men wore and their actions during the robbery. “Evidence which is cumulative of other legally admissible evidence of the same fact, renders harmless admission of incompetent evidence.” (Citation and punctuation omitted.) Taylor v. State, 263 Ga. App. 420, 423 (3) (587 SE2d 791) (2003).

2. Hill also contends that the trial court erred in instructing the jury on prior consistent statements. He argues that the instruction was given based on the recorded telephone conversation purportedly containing prior consistent statements from Fortson, and because the recording was not admissible for any purpose, the trial court erred in giving the jury instruction.

Based on our holding in Division 1, however, this enumeration is meritless.

Judgment affirmed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T. Pope, Jr., concur.


text:
    A10A1224.
    KAY v. THE STATE.
    (703 SE2d 108)
   BARNES, Presiding Judge.

Richard Kay appeals his conviction of child molestation. He contends the evidence presented was not sufficient to sustain his conviction, the trial court erred by granting the State’s motion in limine, and the trial court erred by denying his motion for new trial because his defense counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Finding no error, we affirm his conviction.

1. 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. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Dean v. State, 273 Ga. 806, 806-807 (1) (546 SE2d 499) (2001). 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. Id. at 807 (1). It is the jury’s function to assess witness credibility, to resolve any conflicting evidence, and to determine the facts, not an appellate court. Butler v. State, 273 Ga. 380, 382 (1) (541 SE2d 653) (2001). 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. Childress v. State, 251 Ga. App. 873, 876 (2) (554 SE2d 818) (2001).

Viewed in the light most favorable to the verdict, the evidence shows that the eight-year-old victim told Department of Family and Children Services (“DFCS”) caseworkers that Kay had touched her “between the legs.” The interview, which was recorded and played for the jury, shows the victim saying that Kay touched her where he was not supposed to and that he touched her with his hand between her legs on top of her clothes more than once. At the trial, the victim was sometimes hesitant to testify, but did ultimately testify that Kay touched her between her legs with his hand.

Kay contends the evidence is insufficient because the victim initially recanted her allegations of molestation and then, upon being asked leading questions, testified that Kay touched her between her legs. The victim’s video and her testimony in court, however, were sufficient to permit a rational trier of fact to find Kay guilty beyond a reasonable doubt.

2. Kay further contends the trial court erred by granting the State’s motion in limine to exclude evidence regarding the victim’s placement with DFCS. The motion sought an order by the trial court prohibiting the defense from “making any reference, either by way of opening statements, closing arguments, cross-examinations, direct examinations or other arguments including innuendo or suggestion in the presence of the jury concerning [the victim’s mother’s] past conduct and current location of the children. . . .” In its motion, the State contended that it expected the defense to cross-examine the mother about her “alleged use of controlled substances” and her agreement with DFCS about the placement of her children. The State argued that absent evidence of the mother having been convicted of using drugs, such cross-examination would be improper impeachment and that the placement of the children was not relevant to any issue in the case. Kay does not make any claims on appeal concerning the impeachment issue.

On the first day of the trial, after the defense counsel disavowed any intention to use improper impeachment upon cross-examination, the trial court ruled that it would

be very alert tomorrow during [the defense’s] opening and the conduct of the trial and stay on the edge of my chair so that I can nip it in the bud and I’m sure [the prosecutor] will be quick to object on anything that does come out. I’ll issue a ruling and, certainly, you should not inject anything that’s not relevant to this case and I think you know what they are. If it’s there just to make anybody just look bad, not a felony conviction, just some bad stuff you want to get in — if it’s a prior inconsistent statement about the statements she made here or she makes, then obviously, that will come in. If she says, “I’ve never had my children taken away, I’m a good mama, I’ve never had them put with DFACS” and that fact is true, if she opens that door, then perhaps, that becomes ripe for evidence. But otherwise, I don’t see how that stuff is relevant. I’ll put a ruling on the record tomorrow morning. I’ve got about four or five hours of material to go through tonight all because it kind of got in to me late in the day.

The next day the trial court ordered the parties not to present evidence or question witnesses about the placement of the children or the use of controlled substances, unless proper evidence was proffered prior to the inquiry.

A motion in limine is a pretrial motion which may be used two ways: (1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury. (2) The movant seeks a ruling on the admissibility of evidence prior to the trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court’s determination of admissibility is similar to a preliminary ruling on evidence at a pretrial conference and it controls the subsequent course of action, unless modified at trial to prevent manifest injustice.

(Citation and punctuation omitted.) Harper v. Patterson, 270 Ga. App. 437, 441 (3) (606 SE2d 887) (2004). Kay relies upon Hibbs v. State, 299 Ga. App. 723, 724-725 (2) (683 SE2d 329) (2009), for the proposition that the trial court violated his right of cross-examination. In Hibbs we held that

[t]he confrontation clause of the Sixth Amendment grants criminal defendants the right to impeach the prosecution’s witnesses by cross-examining them with regard to whether they are currently on probation for a juvenile offense or have an open or pending case in juvenile court, or whether they are currently committed to the custody of the Department of Juvenile Justice. The right of a defendant to cross-examine a state witness to show that the witness slanted his testimony in favor of the state in order to obtain more favorable treatment overcomes the state’s interest in maintaining the confidentiality of juvenile court proceedings. This right to cross-examination is “(s)ubject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation.”

Kay argues that the trial court’s ruling restricted his defense counsel from cross-examining the victim and the victim’s mother about the victim’s desire to fabricate the allegation and testify favorably for DFCS and the State so she could remain with her mother instead of in the custody of DFCS. Hibbs thus has no application here.

The children’s placement with DFCS was not relevant to any issue in the case, and nothing about the placement could show that either the victim or her mother had any reason to slant their testimony in favor of the State. Further, the trial court did not exclude any evidence completely. If Kay had relevant evidence to present or subjects about which to cross-examine any witness, he was only required to proffer the evidence before presenting it or asking questions about it. As Kay has not shown that he attempted to do so and that the matter was excluded from evidence, he has nothing to complain about. Moreover, as the victim’s mother did not testify in the case, the trial court’s ruling could not have restricted her cross-examination, and would not have prevented Kay from cross-examining the victim about any motive she had to fabricate her testimony. Nevertheless, he elected not to cross-examine her.

3. Kay contends a fatal variance exists between the indictment and the proof at trial. The indictment alleged that Kay “touched the vagina of [M. L.,] a child under 16 years of age, with intent to satisfy” his sexual desires. The evidence at trial was that Kay touched M. L. between her legs on top of her clothing.

The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.

(Citation omitted.) De Palma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969). Our courts do not “employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Punctuation omitted.) Delacruz v. State, 280 Ga. 392, 396 (3) (627 SE2d 579) (2006). Here the variance complained of did not subject the defendant to either of these dangers. Seabolt v. State, 234 Ga. 356 (216 SE2d 110) (1975); De Palma v. State, supra.

Although the evidence differed somewhat from the allegation in the indictment, we find no material difference. A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. OCGA § 16-6-4 (a) (1). Further, our law does not require that “the State present testimony that precisely tracks the language found in the indictment.” Cherry v. State, 283 Ga. App. 700, 703 (2) (a) (642 SE2d 369) (2007). Nor does our law require a showing that the victim was touched beneath her clothing. See Watson v. State, 222 Ga. App. 814 (476 SE2d 96) (1996); Bragg v. State, 217 Ga. App. 342, 343 (2) (457 SE2d 262) (1995). Moreover, the issue of whether the touching was sexual in nature is for the jury to decide. See Watson v. State, 222 Ga. App. at 816 (3).

4. Kay alleges the trial court erred by limiting his cross-examination of a DFCS employee about whether the department at some point thought the evidence was not sufficient to warrant referring the case to the district attorney and whether the victim’s mother laughed when she was told of the victim’s allegations. The right to a thorough and sifting cross-examination of witnesses is without question in this State. OCGA § 24-9-64. The scope of cross-examination, however, is not unlimited, but rests largely within the discretion of the trial court, and the exercise of this discretion will not be disturbed on appeal unless it is abused. Moore v. State, 251 Ga. 499, 501 (2) (a) (307 SE2d 476) (1983). Even if DFCS had initially concluded that a referral was not warranted or that the mother had laughed, such evidence could have no relevance to any issue in the case. Accordingly, the trial court did not abuse its discretion by curtailing Kay’s cross-examination on these subjects.

5. Finally, Kay contends his defense counsel was ineffective within the meaning of Strickland v. Washington, supra, because he did not request a charge (a) on the lesser included offense of sexual battery, (b) on the defense of accident, and (c) on mistake of fact, and failed to object to leading questions posed to the eight-year-old victim by the prosecutor. Under our law,

[t]o prevail on a claim of ineffective assistance, a defendant must show that counsel rendered deficient performance and that actual prejudice resulted. Counsel are strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and counsel’s performance is evaluated without reference to hindsight. A petitioner has suffered actual prejudice only where there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Ineffective assistance claims are mixed questions of law and fact. We accept the [trial] court’s findings of fact unless clearly erroneous and independently apply the law to those facts.

(Citation and punctuation omitted.) Head v. Hill, 277 Ga. 255, 266 (VI) (587 SE2d 613) (2003). Further, when considering a claim of ineffectiveness, a critical distinction exists between inadequate preparation and unwise trial strategy. Hudson v. State, 250 Ga. 479, 486 (8) (299 SE2d 531) (1983). Especially in matters of trial tactics, a Sixth Amendment claim cannot be judged by hindsight or result. Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

(a) Kay contends his defense counsel was ineffective because he did not call the victim’s grandmother as a defense witness to testify that she did not believe that molestation occurred and that she never left Kay alone with the victim, and also failed to call her as a character witness. The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client. Austin v. Carter, 248 Ga. 775, 779 (2) (c) (285 SE2d 542) (1982). Whether an attorney’s trial tactics are reasonable is a question of law, not fact. Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993).

Kay’s defense counsel testified at the motion for new trial hearing that he did not call the grandmother because he could not control her and thus she would not have been a good witness. He testified that he did not call her as a character witness because he was concerned about opening the door to evidence of bad character. The defense counsel’s conclusion is supported by events at trial in which the court admonished the grandmother for attempting to influence witnesses and jurors and ordered her to stay away from the witnesses. Accordingly, we do not find the defense counsel’s performance deficient in this regard.

(b) Kay further contends his counsel was ineffective because he did not request charges on sexual battery and the defense of accident or on mistake of fact. Decisions on requests to charge, however, involve trial tactics to which we must afford substantial latitude, and “[t]hey provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.” (Citations and punctuation omitted.) Henderson v. State, 252 Ga. App. 295, 299 (2) (b) (556 SE2d 204) (2001). Counsel testified that he did not seek a charge on sexual battery because Kay denied touching the victim; the theory of the defense was there was no touching at all. As all of the charges Kay now contends should have been requested would require that Kay admit that he touched the victim as alleged, the charges would have been inconsistent with the defense’s theory of the case and are inconsistent with Kay’s adamant denial that he touched the victim as she contended. Under this evidence, charges on these subjects were not authorized, and thus defense counsel was not ineffective for not requesting them.

(c) Kay also contends his counsel was ineffective because he did not object to the prosecutor asking the victim leading questions. The failure to object to seemingly objectionable testimony may be trial strategy, by “avoiding an objection that would draw the jury’s attention to the statement. ‘Substantial latitude’ is given during judicial review of trial counsel’s decisions regarding trial strategy.” (Citations omitted.) Rivers v. State, 271 Ga. 115, 118 (2) (b) (516 SE2d 525) (1999). Here, counsel testified that he did not object because he believed an objection could have made the jury pay more attention to the testimony and he did not believe “the jury would decide credibility of the victim” if he had objected.

While another lawyer might have exercised different judgment with respect to these matters, the facts that Kay’s defense counsel chose to try the case as he did, and made certain decisions with which Kay’s present attorney disagree, do not demand a finding that trial counsel’s representation of Kay was so inadequate as to amount to a denial of the effective assistance of counsel. Estes v. Perkins, 225 Ga. 268, 269-270 (1) (167 SE2d 588) (1969).

Decided October 29, 2010.

John G. Edwards, for appellant.

Thomas C. Earnest, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T. Pope, Jr., concur.