author: Boggs, Judge.

text:
    A13A1190.
    CARVER v. THE STATE.
    (750 SE2d 735)
   Boggs, Judge.

After a jury trial, Rebecca Michelle Carver was convicted of pointing a firearm at another and reckless conduct. The trial court denied her amended motion for new trial, and she appeals. Her sole enumeration of error presents a question not previously considered in Georgia: whether the trial court erred in denying her motion in limine seeking to prohibit the victim from wearing his military uniform at trial. Because Carver has not demonstrated that the trial court abused its discretion in denying her motion, we affirm.

As the trial began, Carver’s counsel made an oral motion in limine. Noting that the victim, on active duty with the Navy but on leave for the trial, was wearing his military uniform, counsel stated, “I am somewhat concerned about this individual appearing and testifying while in full uniform. I do think that might perhaps have a prejudicial effect and I wanted to explore that a little bit.” Carver’s counsel asserted that the victim was “in full uniform, dress uniform,” but the victim responded, “This is not my dress uniform. This is my work uniform, United States Navy.” After learning that counsel had found no legal authority for his position, the trial court asked that the victim absent himself during voir dire while counsel and the court researched the issue.

After voir dire concluded, the trial court took up the question of the motion in limine. The trial court noted that the victim was on active duty in the Navy as opposed to a reservist or retired military member. The court also observed that no Georgia law appeared to be directly on point and reviewed a number of decisions from other jurisdictions. Ultimately, the trial court declined to grant Carver’s motion in limine, but offered to give an instruction to the jury “tailored to this specific fact,” and repeated this offer during the charge conference. Carver declined the offered charge: “I would leave that alone.” In its order denying Carver’s motion for new trial, the trial court revisited the issue and cited the same decisions.

“Atrial court’s ruling on a motion in limine is reviewed for abuse of discretion. [Cit.]” Thompson v. State, 277 Ga. App. 323, 324 (2) (626 SE2d 825) (2006). “ [I] n reviewing the denial of a motion in limine, this Court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment, and we cannot reverse a trial court’s ruling absent an abuse of discretion.” (Citation, punctuation and footnote omitted.) Brown v. State, 316 Ga. App. 137, 139 (1) (728 SE2d 778) (2012). In addition,

because the trial court has broad discretion in regulating and controlling the business of the court, the reviewing court should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse, or that the court in some manner takes away the rights the parties have under the law. [Cit.]

Dixon v. State, 300 Ga. App. 183, 186, n. 10 (684 SE2d 679) (2009).

As we have noted, this is a question of first impression in Georgia. Other states, however, have considered the question and concluded that a trial court does not abuse its discretion in allowing a member of the military to testify in uniform. In State v. Munoz, 340 N.J. Super. 204 (774 A2d 515) (2001), the victim, a Marine on active duty, wore his uniform during trial. The Appellate Division affirmed the conviction, stating:

We have declared that if a party is a member of the armed services, a firefighter, or a priest, when appearing in court he or she should be entitled to dress in a manner ordinary to him or her. The rationale equally applies to a victim in a criminal prosecution. We conclude that the judge appropriately exercised his discretion in permitting [the victim] to wear his uniform.

(Citations omitted.) Id. at 220-221 (III). And in State v. Mayse, 2006 Tenn. Crim. App. LEXIS 353 (Tenn. Ct. Crim. App. 2006), the trial court denied the defendant’s motion in limine requesting that the victim, an active duty Marine, not be allowed to testify in uniform. As Carter argues here, Mayse contended that it was “not unreasonable that during a time when our nation is at war, that a jury would accord a witness in military uniform greater trust and credibility than a person on trial.” Id. at *13 (I). Noting decisions from New York and Indiana, the Tennessee Court of Criminal Appeals held:

Likewise, we find no error in allowing the victim in this case to testify dressed in her military uniform. While it may be true that the jury looked favorably upon a witness who was serving her [country], we cannot automatically assume that the jury afforded her testimony more weight or credibility based solely on her appearance in military uniform. We find this little different from a police officer testifying in a police uniform. As argued by the State, whether a witness or a victim is a common laborer, an engineer, or a doctor, is a fact which may be considered by the jury but is clearly not determinative of the credibility of that person. Contrary to the Appellant’s argument, we cannot equate this to a situation where the defendant is forced to appear in prison attire. This issue is without merit.

(Citations omitted.) Id. at *14-15 (I). See also State v. Lemieux, 160 Conn. 519, 522 (280 A2d 874) (1971) (no error in permitting victim to testify in uniform when victim on active duty and on leave for trial); People v. Lane, 398 Ill.App.3d 287, 296-301 (922 NE2d 575) (2010) (finding no prejudice to defendant when witnesses, including victim, allowed to wear military uniform); People v. McCoy, 281 Ill.App.3d 576, 586 (666 NE2d 805) (1996) (same); Galmore v. State, 467 NE2d 1173, 1176 (III) (Ind. 1984) (not abuse of discretion to allow victim to testify in uniform); People v. Lloyd, 141 A.D.2d 671 (529 NYS2d 562) (1988) (allowing robbery victim to testify in uniform did not deprive defendant of fair trial); People v. Aupperlee, 168 A.D.2d 561 (564 NYS2d 239) (1990) (same).

These decisions are not in any sense binding precedent, but we may look to them for persuasive reasoning. Smith v. Stewart, 291 Ga. App. 86, 92 (1), n. 7 (660 SE2d 822) (2008). After a careful review of these decisions, we accept their reasoning and hold that, without more, a trial court does not abuse its discretion in allowing a witness on active duty in the military to testify in uniform, whether that individual is a witness or a victim-witness.

The only decision cited by Carver in support of her position, State v. Marquez, 145 N.M. 31 (193 P3d 578) (N.M. App. 2008), rev’d on other grounds, 147 N.M. 386 (223 P3d 931) (N.M. 2009), is inapposite here. In Marquez, the New Mexico Court of Appeals affirmed the decision of the trial court concluding that a defendant’s wearing of a National Guard uniform at trial “could unfairly prejudice the jury.” Id. at 34-35. We do not consider here the much-litigated question of a defendant’s courtroom attire. And Marquez itself notes that decisions affirming a trial court’s decision to allow the wearing of a uniform, “being in the opposite procedural posture, are not persuasive.” Id. at 35.

Here, Carver simply speculates that the victim’s uniform “could have influenced the jury toward the State,” but provides no specific evidence to support this speculation. As in Galmore, supra, “Defendant has presented only [her] own conclusions as to the effect of the victim’s appearance at trial in his military uniform.” 467 NE2d at 1176 (III). See also Lane, supra, 398 Ill.App.3d at 299-300.

In addition, the evidence that the victim was a member of the military on active duty was known to the jurors through other relevant evidence properly admitted at trial. Carver stated as justification for pointing the pistol at the victim that she and her husband had had a problem with people stealing from their chicken house, and that several individuals had trespassed on her property and entered her husband’s truck the day before the incident. She identified the victim as one of those trespassers. The victim testified, however, that he had been on active duty in Afghanistan for seven months and that the day of the incident was his “first day being home in probably almost a year.” And Carver’s counsel raised the issue of the victim’s military service in closing argument, arguing that the victim was not afraid of Carver or frightened by her behavior, because he “even made a joke about it and said I’ve had bigger guns waved,” and that the victim was serving overseas to protect citizens’ rights to a fair trial. As in Lane, supra, “[t]he impact of the uniforms themselves on jurors’ perceptions of witnesses they already know to be in the military is even more speculative.” 398 Ill.App.3d at 299-300.

Decided October 31, 2013.

Summer & Summer, Daniel A. Summer, for appellant.

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

Carver further notes that one of the jurors was a member of the armed forces on medical leave for wounds sustained in Afghanistan. But even though she raised the issue of the victim’s uniform before voir dire was conducted, Carver did not question any of the potential jurors on this issue, including the juror that she now contends may have been prejudiced in the victim’s favor. She also declined an instruction tailored to this issue, even though the trial court offered on two occasions to give it. Carver has failed to demonstrate any prejudice in favor of the victim on account of his wearing a military uniform, or that she took any of the steps available to her to protect against any alleged prejudice. Compare Munoz, supra, 340 N.J. Super, at 219 (III) (voir dire by trial judge to explore possible influence of uniform); see also Tolbert v. State, 313 Ga. App. 46, 53 (1), n. 29 (720 SE2d 244) (2011) (defendant offered but refused curative instruction and could not thereafter complain).

We conclude that Carver has failed to demonstrate from the record that the trial court abused its discretion in denying her motion in limine, and we therefore affirm.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       Our Supreme Court has ruled that a defendant did not show ineffective assistance of trial counsel in, inter alia, failing to object to the introduction of a photograph of a murder victim in military uniform. But it did not address directly the question presented here. Jackson v. State, 278 Ga. 235, 239 (5) (c) (599 SE2d 129) (2004). And Carver acknowledged at trial that it is “routine” for law enforcement officers to testify in uniform. See Foster v. State, 272 Ga. 69, 72 (9) (525 SE2d 78) (2000) (not error to permit correctional officers to testify in uniform).

        People v. Aupperlee, 168 A.D.2d 561 (564 NYS2d 239) (1990); People v. Lloyd, 141 A.D.2d 671 (529 NYS2d 562) (1988); Galmore v. State, 467 NE2d 1173 (Ind. 1984).

       We agree with the conclusion of the Appellate Court of Illinois in Lane, supra, that whether a witness is a victim or not is a distinction without a difference. 398 Ill. App. 3d at 301.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A13A1289.
    A13A1290.
    A13A1291.
    FREEMAN et al. v. SMITH. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. SMITH. SMITH v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (750 SE2d 739)
   McFadden, Judge.

Cassandra Smith, a former administrative employee at Albany State University, sued Everette Freeman and Abiodun Ojemakinde — respectively, the University’s president and vice president for academic affairs — for violating her constitutional and statutory rights. She argued, among other things, that they fired her without due process of law. She also sued the Board of Regents of the University System of Georgia, alleging, among other things, that her termination was in retaliation for her role as a whistleblower and that the Board of Regents breached her employment contract. The defendants and Smith appeal the denial of their motions for summary judgment. We hold that because Smith has not presented evidence of a causal connection between her disclosures and any materially adverse action, the Board of Regents is entitled to summary judgment on the whistleblower claim. We also hold that Smith was an employee at will, so her termination did not breach the alleged employment contract and the Board of Regents is entitled to summary judgment on that claim. Moreover, as an employee at will, Smith had no property interest in her job so all of the defendants are entitled to summary judgment on her claims for due process violations. Accordingly, we reverse the denial of the defendants’ motion for summary judgment and affirm the denial of Smith’s motion for summary judgment.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” Caldon v. Bd. of Regents of the Univ. System of Ga., 311 Ga. App. 155 (715 SE2d 487) (2011) (citation omitted). “To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim.” Jones v. Bd. of Regents of the Univ. System of Ga., 262 Ga. App. 75, 76 (585 SE2d 138) (2003). “A de novo standard of review applies to an appeal from a [ruling on] summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Caldon, 311 Ga. App. at 155 (citation omitted).

Viewed in this light, the record shows that in April 2009, Freeman hired Smith to be the interim associate vice president for research and sponsored programs. In October 2009, he sent her a letter offering her the job on a noninterim basis, and she accepted. The appointment letter stated that Smith would hold her administrative position “at the pleasure of the President, and it is subject to annual renewals.”

Ojemakinde, who apparently was Smith’s direct supervisor, grew disenchanted with her performance throughout 2010. He sent her to a leadership training center, but was unhappy with the results. In February 2011, Freeman and Ojemakinde gave Smith a performance improvement plan with specific goals developed with her input. In March, Ojemakinde gave her an unfavorable annual performance evaluation.

On May 5, 2011, Smith asked for an emergency meeting with Freeman to discuss alleged violations of the law regarding certain federal grants. At the meeting on May 12, 2011, Freeman believed that Smith said she could no longer work with Ojemakinde. Freeman asked her to resign. When she refused, she was fired.

Smith asked Freeman to reconsider the decision, but he declined. Smith then appealed to the Board of Regents, which likewise affirmed. Smith was never given a hearing.

Smith sued the Board of Regents, Freeman, and Ojemakinde. She claimed that the individual defendants violated her due process rights by firing her without a hearing and without first employing progressive discipline practices. Against the Board of Regents, Smith asserted not only that her due process rights were violated, but also that the Board of Regents breached her employment contract and that she was fired in retaliation for being a whistleblower. The parties moved for summary judgment. The trial court denied the motions, but certified its order denying Freeman and Ojemakinde’s motion for immediate review. After Freeman and Ojemakinde filed their appeal, Smith and the Board of Regents filed cross-appeals from the denial of their motions for summary judgment.

1. The Board of Regents was entitled to summary judgment on Smith’s whistleblower retaliation claim.

OCGA § 45-1-4 (d) (2) prohibits public employers from retaliating

against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity.

The Board of Regents argues that it is entitled to summary judgment on Smith’s whistleblower retaliation claim because, among other things, Smith has not shown a causal connection between her disclosures and any materially adverse employment action. We agree.

The parties assume that in analyzing Smith’s whistleblower claim, we would follow the burden-shifting framework as set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (93 SCt 1817, 36 LE2d 668) (1973), and approved in the physical precedent Forrester v. Ga. Dept. of Human Svcs., 308 Ga. App. 716, 722 (1) (708 SE2d 660) (2011) (physical precedent). Although many courts have followed the McDonnell Douglas framework when analyzing retaliation claims based on circumstantial evidence, not all have done so. See, e.g., Ramirez v. Bausch & Bomb, 2013 U. S. App. LEXIS 21371 at *3 (11th Cir. Oct. 22, 2013) (“[W]here there is no controlling state law, [Florida Whistleblower Act] claims are analyzed under the Title VII retaliation framework. For retaliation claims based on circumstantial evidence, we apply the burden-shifting analysis established in McDonnell Douglas . . . .”) (citation omitted); Hicks v. Baines, 593 F3d 159, 164 (2d Cir. 2010) (“Retaliation claims under Title VII are evaluated under a three-step burden-shifting analysis”) (citation and punctuation omitted); Bishop v. Bell Atlantic Corp., 299 F3d 53, 58 (1st Cir. 2002) (following McDonnell Douglas framework to analyze a claim with no direct evidence of retaliation under Maine’s whistleblower statute). Compare Gordon v. FedEx Freight, 674 F3d 769, 774 (7th Cir. 2012) (“In resolving retaliatory discharge claims, Illinois does not apply the McDonnell Douglas burden-shifting framework commonly applied in federal retaliation cases.”). Courts have observed that “one of the difficulties with applying the McDonnell Douglas framework at the summary judgment stage is that it invites trial judges to weigh evidence and assess the credibility of witnesses.” Eastridge v. Rhode Island College, 996 FSupp. 161, 165-166 (D. R.I. 1998) (discrimination case) (citation and punctuation omitted).

We are not required to decide whether the McDonnell Douglas framework should be adopted in whistleblower retaliation cases because, under any standard, Smith has not pointed to record evidence that any materially adverse employment action was a matter of retaliation for her whistleblowing activity. Jones, 262 Ga. App. at 81 (4) (because the only direct evidence of record was that plaintiff was terminated for a legitimate reason, “[i]n order to avoid summary judgment, [he had to] show that the record provide [d] circumstantial evidence that his termination was a matter of reprisal”). See Caldon, 311 Ga. App. at 158-159 & n. 6 (acknowledging but not expressly adopting Forrester’s analysis under the McDonnell Douglas burden-shifting framework of the grant of summary judgment on a whistle-blower claim).

Smith alleged that she disclosed four violations of federal law or regulations. First, she alleged that at an unspecified time, she relayed to Freeman and Ojemakinde a complaint by Taryn Thomas, who was employed in the federally-funded Health Careers Opportunity Program, that Thomas had been required to perform numerous responsibilities that the grant specified other people were to perform. This violated OMB Circular A-110. (Smith does not describe what OMB Circular A-110 is, but presumably it is some sort of federal regulation.) The problem occurred prior to Smith’s arrival at Albany-State. When Smith did not get a response, she relayed her concern to the Board of Regents, which could not substantiate the allegations.

Second, Smith alleged that on multiple occasions, beginning in February 15, 2010, she reported to Freeman, Ojemakinde and others the misuse of funds in the federally-funded NASA Science Engineering Mathematics Aerospace Academy, in violation of federal budgeting rules. She reported that before she started at Albany State, Granville Wrensford and Elizabeth Lovett had subcontracted the position of “family café coordinator,” a “key” position under federal regulations, to a person named Verda Parker even though the grant application, which was approved by the funding agency, specified that Elizabeth Lovett would hold the position. Smith also informed the Board of Regents, which could not substantiate the allegations.

Third, Smith alleged that in September 2010, she informed Freeman, Ojemakinde, and Connie Leggett that the staff involved in the federally-funded DNA Ancestry Project had conducted human subject research without obtaining prior approval from the Institutional Review Board, of which Smith was the chair. The inside of the cheeks of the students participating in the project were swabbed to obtain DNA. Smith told Leggett and Freeman that the faculty, staff and students were required by the Code of Federal Regulations to complete HIPAA/Human Subjects training. She also informed them that the research violated the University System of Georgia Internal Audit and Compliance Code of Conduct. Once the project did come before the Institutional Review Board, the board members concluded that there had been research misconduct and identified a number of safeguards that should have been implemented.

Fourth, Smith alleged that in September 2010, she complained to Freeman and Ojemakinde about the lack of reporting for the federally-funded Center for Advanced Logistics Management or “CALM” Program. She had not been informed of this program and only learned of its existence when a faculty member expressed interest in becoming involved. Smith raised her concerns about the lack of reporting on the program to university counsel, who told her it was an appropriation, not a grant, and therefore not subject to the federal reporting requirements. Smith also notified Freeman and Ojemakinde, and eventually the Board of Regents.

We hold that, assuming these disclosures fall within the ambit of the whistleblower statute and were protected disclosures, the Board of Regents is nonetheless entitled to summary judgment because Smith has not pointed to evidence of a causal connection between the disclosures and any adverse employment action. Because there are few decisions from Georgia courts interpreting the causal connection element of a whistleblower retaliation claim, we look to federal decisions for guidance. Dee v. Sweet, 268 Ga. 346, 350 (2) (489 SE2d 823) (1997). The “causal link element is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.” Pennington v. City of Huntsville, 261 F3d 1262, 1266 (II) (A) (11th Cir. 2001). (Although Pennington is a Title VII case, the Eleventh Circuit cited it in Yarcheski v. Keiser School, Inc., 508 Fed. Appx. 916 (11th Cir. 2013), a whistleblower case, in relation to the causal connection element, and the Title VII analytical framework is often employed in whistleblower cases. See, e.g., Forrester, 308 Ga. App. at 722 (1).) “A plaintiff satisfies this element if she provides sufficient evidence of knowledge of the protected expression and that there was a close temporal proximity between this awareness and the adverse action.” Higdon v. Jackson, 393 F3d 1211, 1220 (11th Cir. 2004) (citations and punctuation omitted). But “mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case . . . must be very close.” Clark County School Dist. v. Breeden, 532 U. S. 268, 273 (121 SCt 1508, 149 LE2d 509) (2001) (citation and punctuation omitted; emphasis supplied). “Unless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation.” O’Neal v. Ferguson Constr. Co., 237 F3d 1248, 1253 (1) (10th Cir. 2001). “If there is a substantial delay between the protected expression and the adverse action in the absence of other evidence tending to show causation, the complaint of retaliation fails as a matter of law.” Higdon, 393 F3d at 1220. “A three to four month disparity between the statutorily protected expression and the adverse employment action is not enough.” Thomas v. Cooper Lighting, Inc., 506 F3d 1361, 1364 (11th Cir. 2007) (holding that three-month period between plaintiff’s April 2005 complaints of sexual harassment and the termination of her employment in July 2005, “without more, does not rise to the level of Very close.’ ”). See also Higdon, 393 F3d at 1220 (three-month period between the protected expression and the adverse action, with no additional evidence, presents no evidence of causation); Richmond v. ONEOK, Inc., 120 F3d 205, 209 (10th Cir. 1997) (three-month period insufficient). Compare Jones, 262 Ga. App. at 81 (4) (six-week period sufficient); Donnellon v. Fruehauf Corp., 794 F2d 598, 601 (11th Cir. 1986) (one-month period sufficient).

The only evidence Smith has presented of a causal connection is the temporal proximity between her disclosures and the materially adverse employment actions. But, as detailed below, the only actions that occurred less than three months after the disclosures were not materially adverse. And, as for one of them, Smith does not even allege that the person who took the action knew of Smith’s protected disclosures. All other allegedly retaliatory action exceeded the protected disclosures by three months or more. Smith therefore has not presented evidence sufficient to create a question of fact on the issue of causation.

Smith described in her deposition and affidavit several occurrences that she argues constitute retaliatory action. The first allegedly retaliatory action took place on September 21, 2010, in the same month that Smith had complained about the DNA Ancestry Project and the CALM Project. That day, she received a call from someone named Sandra Yates, who informed Smith that, according to Yates’ supervisor, an employee in Smith’s office would be transferred to another office. The employee was never transferred.

Smith does not allege that Yates or her supervisor knew of Smith’s whistleblowing disclosures. She thus has not shown a causal connection between those disclosures and Yates incorrectly informing her that an employee would be transferred. See Forrester, 308 Ga. App. at 729 (1) (a) (iv) (“with no evidence that the actual decision-maker knew about their disclosures... mere guesses and speculation are all that the appellants present in support of a causal connection between these disclosures” and the adverse employment action). Moreover, “[a] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, meaning that it might well have dissuaded a reasonable employee from making [the statutorily-protected disclosure].” Cobb v. City of Roswell, 2013 U. S. App. LEXIS 16608 at *18 (11th Cir. Aug. 12, 2013) (citing Burlington Northern & Santa Fe R. Co. v. White, 548 U. S. 53, 67-68 (126 SCt 2405, 165 LE2d 345) (2006)). The actionable employer conduct must be “significant,” rather than “trivial.” Burlington Northern, 548 U. S. at 67-68. We conclude that a reasonable employee would not have found this conduct — incorrectly warning Smith that an employee would be transferred — to be materially adverse. For these reasons, it is immaterial that this warning occurred in the same month in which Smith relayed her concerns about the DNA Ancestry Project and the CALM Project.

Smith claims that another act of retaliation occurred on October 11, 2010, when the human resources office informed her that her office would no longer be involved in the process of bringing in scientists for interviews for “renewable sustainability positions.” Smith “points to nothing in the record that would lead us to believe the [action] would have the kind of material effect that our case law contemplates would constitute an adverse action.” Jackson v. Hall County, 518 Fed. Appx. 771, 773 (11th Cir. 2013). We conclude that this vague assertion is insufficient to show a materially adverse action. See Hall v. DeKalb County, 503 Fed. Appx. 781, 790 (11th Cir. 2013) (plaintiff who failed to explain how allegedly unjustified, retaliatory action negatively impacted his employment failed to show the action might have dissuaded a reasonable worker from making or supporting a charge of discrimination and therefore did not establish a prima facie case).

The only other allegedly retaliatory actions for which Smith provided dates occurred three months or more after the latest of her disclosures in September 2010, and thus do not demonstrate a “very close” temporal proximity between her disclosures and any adverse action. Specifically, Smith alleged that on December 20, 2010, Larry Wakefield, the vice president for fiscal affairs, denied her request to use office funds to hire a webmaster. (Smith does not allege that Wakefield knew of her whistle-blowing disclosures, so like the allegations about Yates, this cannot constitute retaliatory conduct.) Smith alleged that after she requested leave on February 2, February 14, and March 7, 2011, Freeman e-mailed Ojemakinde, and copied her with the e-mails asking, “Have we discussed Dr. Smith’s performance?” Smith alleged that she was the only middle ranking administrator not invited to certain meetings, but she does not specify the dates. In February 2011, Freeman and Ojemakinde gave Smith a performance improvement plan with specific goals developed with her input. In March, Ojemakinde gave her an unfavorable annual performance evaluation. And on May 19, 2011, she was terminated.

Because each alleged materially adverse employment action occurred three months or more after her disclosures, Smith was required to point to other evidence of a causal connection between her disclosures and that materially adverse action. She has not done so, and the Board of Regents is therefore entitled to summary judgment on her whistleblower retaliation claim. Brown v. Alabama Dept. of Transp., 597 F3d 1160, 1182 (11th Cir. 2010) (three-month interval between protected expression and adverse employment action is a substantial delay, and without more evidence of causal connection, complaint of retaliation fails as a matter of law). See also Edwards v. Gwinnett County School Dist., 2013 U. S. Dist. LEXIS 141171 at *17-22 (N.D. Ga. Sept. 30, 2013) (plaintiff only provided evidence of causation, through temporal proximity, for the two adverse actions that the court concluded were not material and significant, so plaintiff did not establish a prima facie case of retaliation).

2. Assuming that Smith had an employment contract, the contract provided for at-will employment.

The Board of Regents, Freeman and Ojemakinde argue that Smith did not have an employment contract and that even if she did, her employment was terminable at will. We hold that, assuming Smith had an employment contract, her employment was terminable at will.

To establish the existence of a contract, Smith relies on the letter appointing her to the position. That letter, signed by Freeman, provides in pertinent part:

It is my pleasure to inform you that we are appointing you as Associate Vice President for Research & Sponsored Programs, effective October 1, 2009. Your salary will be at a fiscal rate of $110,000 payable as follows: $80,000 from state funds and $30,000 from ORSP Indirect & Sponsored Funds. In your capacity as Associate Vice President for Research & Sponsored Programs, you are to report directly to the President and the Vice President for Academic Affairs.
Please be informed that you hold your administrative position at the pleasure of the President, and it is subject to annual renewals. Should your administrative position be vacated and, if you are reassigned, your salary may be changed. You are required to attend various University events including but not limited to the annual Faculty Staff Conference held in August and both the Fall and Spring Commencement Exercises.
Please acknowledge your acceptance of the above appointment and its conditions by signing below and returning this letter to me within seven days.

The Board of Regents, Freeman and Ojemakinde argue that assuming the appointment letter was a contract, it did not establish any reasonable expectation of continued employment because it specifically stated that Smith served “at the pleasure of the President.” Smith apparently argues that the “subject to annual renewals” language established one-year, renewable terms of employment and that she was terminated during the second one-year period.

The construction of a contract “is a question of law that we review de novo and is independent of those rules allocating burdens of proof on motions for summary judgment.” Deep Six, Inc. v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000) (citation omitted). “[C]on-tracts must be construed in their entirety and in a manner that permits all of the terms contained therein to be consistent with one another.” Schwartz v. Schwartz, 275 Ga. 107, 108 (1) (561 SE2d 96) (2002) (citation omitted). See also OCGA § 13-2-2 (4) (“The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part”). “The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.” Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (West 2012).

In construing contracts,

court [s] should ascertain the parties’ intent after considering the whole agreement and interpret each of the provisions so as to harmonize with the others. That is, in construing contracts, it is important to look to the substantial purpose which must be supposed to have influenced the minds of the parties, rather than at the details of making such purpose effectual.

Friedman v. Friedman, 259 Ga. 530, 532-533 (3) (384 SE2d 641) (1989) (citations and punctuation omitted), overruled on other grounds in Duckworth v. State, 268 Ga. 566 (492 SE2d 201) (1997). “[T]he law requires that in interpreting a contract, we give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect.” Whitmire v. Colwell, 159 Ga. App. 682, 683 (285 SE2d 28) (1981) (citations and punctuation omitted). With these principles in mind, we conclude that Smith’s employment was terminable at will.

The phrase “at the pleasure of the President” clearly means at-will employment. See Soloski v. Adams, 600 FSupp.2d 1276, 1319-1320 (N.D. Ga. 2009) (university’s administrative employee who served “at the pleasure of the President” was an at-will employee, so university could discharge him with or without cause). See also Wright v. Gamble, 136 Ga. 376, 379 (71 SE 795) (1911) (clerk who “held the office at the pleasure of the board . . . was removable at its discretion, without the preferring of charges, notice, or the benefit of a hearing”). Conversely, no provision of the appointment letter establishes a definite, specific term of employment. The letter states that Smith’s appointment is effective October 1, 2009, but it does not provide an end date so as to create a specific term of employment. It may be that, in practice, the employment of parties to contracts with such language usually is not ended before one year has passed. Nonetheless, the “at the pleasure” language makes it clear that Freeman retained the right to terminate Smith at any time. To adopt Smith’s interpretation of the phrase “subject to annual renewals” as creating a protected term of employment from which she could not be terminated would conflict with the unambiguous language specifying that her employment was at will and would render that provision meaningless, which we willnot do. See Harvey v. J.H. Harvey Co., 256 Ga. App. 333, 342 (3) (568 SE2d 553) (2002). The interpretation that gives meaning to both parts of the sentence is that Smith’s employment would always be at Freeman’s discretion and that he would review her appointment annually.

Decided October 31, 2013

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Annette M. Cowart, Senior Assistant Attorney General, Christopher A. McGrew, Assistant Attorney General, for appellants.

The case Smith cites, Spalding v. Southeastern Personnel of Atlanta, 222 Ga. 339 (149 SE2d 794) (1966), is inapposite. In Spalding, the issue was whether a contract was mutual or unilateral. The Supreme Court rejected the argument that the contract was unilateral because it gave “the company, in its sole judgment” the right to terminate, observing that the contract had a term of one year. The opinion did not concern whether the employee’s employment was at will.

Smith was an employee at will. Consequently, her termination was not a breach of contract, and the Board of Regents is entitled to summary judgment on her breach of contract claim.

3. Because Smith’s employment was terminable at will, she was not entitled to due process.

Because Smith served at the pleasure of Freeman, “she was an at-will employee [who] . . . ha[d] no property interest in her job and, therefore, no viable constitutional due process claim.” Bd. of Regents of the Univ. System of Ga. v. Hogan, 298 Ga. App. 454, 457 (680 SE2d 518) (2009) (citations omitted). See also Atkinson v. City of Roswell, 203 Ga. App. 192, 196 (4) (416 SE2d 550) (1992) (“A party is not entitled to procedural due process where the interest which would be impaired by governmental action does not involve that party’s protectible interest in life, liberty, or property.”). Consequently, the defendants, not Smith, were entitled to summary judgment on the due process claims.

Judgment affirmed in Case No. A13A1291. Judgments reversed in Case Nos. A13A1289 and A13A1290.

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

Copeland & Walker.; Roy W. Copeland, for appellee.


author: Boggs, Judge. McFADDEN, Judge,

text:
    A13A1409.
    REECE v. GEORGIA INSURERS INSOLVENCY POOL.
    (750 SE2d 746)
   Boggs, Judge.

Hugh Reece appeals from a judgment declaring that he was not an “emergency claimant” entitled to workers’ compensation benefits from the Georgia Insurers Insolvency Pool (“Insolvency Pool”) under OCGA § 33-36-20 (b) (3). He contends: (1) that the trial court improperly resolved questions of fact in allegedly ruling on a motion for summary judgment; and (2) that the undisputed evidence showed that his former employer was “insolvent pursuant to OCGA § 33-36-20 (b) (3).” For the reasons explained below, we affirm.

In 2010, the General Assembly amended the “Georgia Insurers Insolvency Pool Act,” OCGA § 33-36-1 et seq., with the following stated intent:

It is the policy of this state to protect insureds and their claimants from liability as a result of the insolvency of insurers. In furtherance of this policy, it is the intent of the legislature, notwithstanding any provision of law to the contrary, that the Georgia Insurers Insolvency Pool shall be liable to claimants and electing insureds in emergency circumstances.

OCGA § 33-36-20 (a). The amendment includes the following relevant definitions:

“Emergency circumstance” means a circumstance in which an association or industrial insured captive insurance company, including such a captive company that subsequently was authorized to transact business pursuant to Chapter 3 of this title, that is issuing, or which has issued, workers’ compensation insurance contracts and has been declared insolvent.
“Emergency claimant” means any third-party claimant, under a workers’ compensation insurance policy, who is impacted by an emergency circumstance and whose employer has, by a court of competent jurisdiction, been declared bankrupt or insolvent.

OCGA § 33-36-20 (b) (2) and (3).

Reece, the claimant here, was employed by Tri-County Ambulance LLC (“Tri-County) when he was injured on March 20, 2006. Southeastern U. S. Insurance Company (“Southeastern) provided workers compensation benefits to Reece for his injury, but Southeastern was liquidated on October 27, 2009.

Following the 2010 amendment of the Act, Reece sought benefits from the Insolvency Pool as an “emergency claimant under OCGA § 33-36-20 (b) (3). The Insolvency Pool subsequently filed a declaratory judgment action in the Superior Court of DeKalb County against Reece and Tri-County based upon its

uncertainty as to the circumstances under which a Georgia Court can declare an entity bankrupt or insolvent within the meaning of OCGA § 33-36-20 (b) (3) and uncertainty as to what showing must be made by a claimant to qualify as an “emergency claimant under this provision.

It is undisputed that, at the time the Insolvency Pool filed its action, no court had declared Tri-County bankrupt or insolvent. Tri-County did not file an answer to the complaint.

In his answer, Reece admitted all of the allegations in the Insolvency Pool’s complaint, asserted a cross-claim against TriCounty, and prayed for the “[c]ourt to determine the insolvency of Respondent Tri-County Ambulance. Reece alleged that “Tri-County Ambulance is subject to the jurisdiction of this Court by virtue of the allegations contained in the Complaint for Declaratory Judgment filed by the Georgia Insurers Insolvency Pool. Pursuant to OCGA § 9-11-12 (a), the allegations against Tri-County in the cross-claim “automatically stand denied.

Reece subsequently moved for summary judgment in his favor and asked the superior court to declare Tri-County insolvent within the meaning of OCGA § 33-36-20 (b) (3). The Insolvency Pool filed a cross-motion for summary judgment requesting the court to find “that until a court of competent jurisdiction declares Tri-County insolvent or bankrupt, Respondent Reece may not be considered an emergency claimant, and therefore, the Pool would have no obligation with respect to his outstanding workers’ compensation claim.” The record includes an affidavit from the owner of Tri-County, Jackie Ellington, in which he averred that he sold Tri-County to South-land Health Services of Georgia on March 23, 2007, that Tri-County was administratively dissolved, and that Southland Health Services “defaulted on its loans because it did not have the means or property sufficient to pay its debts.”

Following a hearing that has not been transcribed for our review, the trial court denied both pending motions for summary judgment. It concluded “that an evidentiary hearing regarding whether TriCounty Ambulance is insolvent is required. Therefore there are genuine issues of material fact that exist for a jury to determine in this case.” Two months later, it issued an order scheduling “an evidentiary hearing.”

At the beginning of the evidentiary hearing, Reece’s counsel stated, “We’re here today to ask the court, based on Mr. Ellington’s testimony, to find that Tri-County Ambulance is insolvent and to declare Tri-County Ambulance insolvent for the purpose of Code Section 33 . . . and name Mr. Reece an emergency claimant.” Reece made no objection at any time during the hearing to the trial court, as opposed to a jury, making an evidentiary finding on the issue of insolvency.

During the hearing, Ellington testified that he was the sole member of Tri-County, LLC, that Tri-County was located in Ellijay, Georgia, that Reece was injured in an automobile accident while traveling between Chattanooga, Tennessee and Dalton, Georgia, that Tri-County’s workers’ compensation carrier paid benefits to Reece after the accident, that he sold Tri-County to Southland Health Services of Georgia in 2007 for $540,000, that the sale included the transfer of 12-14 vehicles owned by Tri-County, that he received only $140,000 from the sale because the purchaser was “closed down by the Internal Revenue Service” eight months later, that he never instituted legal proceedings to collect the debt owed by the buyer, that he entered into a noncompete agreement with the buyer, that the $140,000 from the sale was used to pay existing debt of Tri-County, that Tri-County was administratively dissolved in 2010, that TriCounty had no assets with which to pay workers’ compensation benefits to Reece, and that he started an automotive service center business after he sold Tri-County. No documents, such as the contract of sale, bank statements, bills, cancelled checks, or accounting records were admitted into evidence during or after the evidentiary hearing.

At the conclusion of the evidentiary hearing, the trial court noted that the asset purchase agreement was not provided for its review, that there was no testimony that the vehicles were paid off, that the seller should have attempted to get the ambulance vehicles back if the buyer defaulted on the loan, that it could not “imagine” that the seller would “just leave your money on the table,” and “something isn’t fitting with the story.” It concluded that Reece “needfed] to do a lot more to show that this company was insolvent.” It also stated, “I’m going to deny the motion. Grant Georgia Insolvency their motion.” In a written order titled “Order and Final Judgment,” the trial court referenced its previous denial of the motions for summary judgment and the need for an evidentiary hearing. It concluded:

In order to avail himself of “emergency claimant” status under OCGA § 33-36-20 (b) (3), Reece would have to show that Tri-County, his employer had been declared “bankrupt or insolvent by a court of competent jurisdiction.” The only evidence presented by Reece at the evidentiary hearing on this point was the testimony of Jackie Ellington, the owner of Tri-County. The Court did not find Mr. Ellington’s testimony credible on the issue of Tri-County’s insolvency, and therefore, the Court does not find that Tri-County is, or was insolvent within the meaning of OCGA § 33-36-20 (b) (3). It is undisputed that Tri-County has not filed for, or been declared bankrupt.
IT IS HEREBY ORDERED, AND THE JUDGMENT OF THIS COURT, that Respondent Reece is not an “emergency claimant” pursuant to OCGA § 33-36-20 (b) (3).

1. In his first enumeration of error, Reece claims that the trial court was not authorized to make a finding of fact on the insolvency issue and improperly invaded the province of the jury. We find no merit in this claim, because Reece waived any right to a jury trial on this issue. See Affatato v. Considine, 305 Ga. App. 755, 757-758 (1) (700 SE2d 717) (2010). In both his cross-claim and at the beginning of the evidentiary hearing, Reece asked the trial court to make a finding on insolvency.

Decided October 31, 2013.

Strain & Rutledge, John M. Strain, Virginia K. Rutledge, for appellant.

Gorby & Peters, Michael J. Gorby, Tony C. Jones, for appellee.

2. In his remaining enumeration of error, Reece claims that the trial court should have concluded as a matter of law, based on the evidence presented at the evidentiary hearing, that Tri-County was insolvent. In support of this claim, he argues that “the uncontradicted evidence shows that Tri-County is no longer in business, it has been administratively dissolved, and it has no assets with which to satisfy its outstanding liabilities.” We disagree.

“Waiver of a jury trial places the trial court in the same position as the jury.” Fred R. Surface & Assoc., Inc. v. Worozbyt, 151 Ga. App. 638, 640 (3) (260 SE2d 762) (1979). “Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact.” (Citations, punctuation and footnote omitted.) Taylor v. Taylor, 288 Ga. App. 334, 338 (2) (654 SE2d 146) (2007). “The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.” Fuller v. Flash Foods, 298 Ga. App. 217, 219 (1) (679 SE2d 775) (2009). In this case, the trial court expressly found that Ellington’s testimony was not credible, and we must therefore affirm.

Judgment affirmed.

Doyle, P. J., concurs. McFadden, J., concurs fully specially.

McFADDEN, Judge,

concurring fully and specially.

I fully concur in the majority opinion. I write separately only to note that this opinion is limited to the facts currently before the court. It does not address the issue of whether Reece could later be deemed an emergency claimant under OCGA § 33-36-20 should his former employer be declared bankrupt.

       As the Supreme Court of Georgia recently summarized:
      Southeastern... became a member of [the Insolvency Pool] on June 23, 2006, when it was converted from a captive insurer to a standard insurer. Claims against [Southeastern] made on or after June 23, 2006, were covered by [the Insolvency Pool]. However, [Southeastern] insureds whose claims predated June 23, 2006, were not covered by [the Insolvency Pool], and those insureds faced exposure when [Southeastern] was liquidated. . . . The effect of the 2010 amendment was to retroactively cover the previously excluded claims of [Southeastern] insureds.

        Ga. Insurers Insolvency Pool v. Hulsey Environmental Svcs., 293 Ga. 504, 505 (748 SE2d 380) (2013).

       OCGA § 33-36-6 (g) provides: “Exclusive venue in any action by or against the pool is in the Superior Court of DeKalb County. The pool may, at the option of the pool, waive such venue as to specific actions.”

       Reece mailed a copy of the cross-claim to the principal of Tri-County, and the principal of Tri-County was served with a copy of the Insolvency Pool’s complaint and summons.

       “Generally, a purchasing corporation does not assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation.” (Citation, punctuation and footnote omitted.) Colonial Bank v. Boulder Bankcard Processing, 254 Ga. App. 686, 690 (6) (563 SE2d 492) (2002).

       We express no opinion as to whether the trial court was a “court of competent jurisdiction” within the meaning of OCGA § 33-36-20 (b) (3) as this issue has not been raised by the parties and is not one which we must address to resolve the case before us.


text:
    A13A1523.
    TARGET NATIONAL BANK v. LUFFMAN et al.
    (750 SE2d 750)
   Boggs, Judge.

This appeal illustrates an earlier observation by this court: “The magistrate courts of Georgia are not courts of record, and this can raise procedural issues that parties may wish to avoid. [Cit.]” America Net v. U. S. Cover, 243 Ga. App. 204, 207 (1), n. 3 (532 SE2d 756) (2000). Here, the superior court granted appellees’ motion to dismiss on the ground of res judicata on the basis that appellant voluntarily dismissed prior claims in magistrate court without leave of court. But nothing in the record or the law supports such a dismissal, and we therefore reverse.

The scant record before us indicates that appellant Target National Bank (“Target”) filed a complaint on account in superior court against appellees Brian K. Luffman and Jessica A. Luffman (“the Luff-mans”). The Luffmans answered pro se, asserting 23 affirmative defenses and counterclaiming against Target and 10 “Doe” defendants for malicious and negligent abuse of process, invasion of privacy, violation of the federal and state Fair Debt Collection Practices Acts, and intentional and negligent infliction of emotional distress and mental anguish.

The Luffmans also moved to dismiss the complaint, alleging that it was barred by res judicata because Target had previously sued on the same claims, and then filed voluntary dismissals in the magistrate court “without order or permission from the Court.” The Luff-mans asserted that because they had given sworn testimony in the magistrate court, a voluntary dismissal therefore was barred by OCGA § 9-11-41 (a). They argued that the improper voluntary dismissal constituted an involuntary dismissal and an adjudication on the merits, and that Target’s complaint was therefore barred by res judicata. The trial court apparently agreed and granted the motion to dismiss.

The only documents in the record that appear to have originated from magistrate court are copies stamped “filed” and attached as exhibits to a “declaration” by Mrs. Luffman: an order to produce documents and two voluntary dismissals. Nothing appears to have been transmitted to superior court from the magistrate court. The notice of appeal directs: “There is no transcript of the proceedings. The clerk shall omit nothing from the record.” While the Luffmans contend that they gave testimony in magistrate court, resulting in an order to produce documents, Target contends that the magistrate court continued both cases after a hearing.

The record, however, contains no transcript, judgment, or any ruling from the magistrate court, other than the order to produce attached to Mrs. Luffman’s affidavit in the superior court. We therefore are unable to determine the exact procedural posture of the magistrate court action at the time of the dismissals, but it does not appear from the record that any trial took place.

The parties dispute here the application of the voluntary dismissal statute under the Civil Practice Act, OCGA § 9-11-41 (a) (1). That Code section currently provides that a plaintiff may voluntarily dismiss an action, “without order or permission of court: (A) By filing a written notice of dismissal at any time before the first witness is sworn.” The subsection at issue has been amended many times, having previously provided that a voluntary dismissal without permission of the court was possible “at any time before the plaintiff rests his case,” see Avnet, Inc. v. Wyle Laboratories, 265 Ga. 716, 717 (1) (461 SE2d 865) (1995), “at any time before the submission of the case to the jury,” and originally, “at any time before verdict.” See Muhanna v. O’Kelley, 185 Ga. App. 220-221 (363 SE2d 626) (1987).

The Luffmans appear to contend that any time a witness is sworn, even in an unreported hearing which apparently culminated in an order to produce, this terminates a plaintiff’s right to voluntarily dismiss the action without order or permission of court. But we have held under previous versions of the statute that it “obviously has reference, as did the prior versions of the Code section, to the actual trial of a case rather than to proceedings on pre-trial motions.” Muhanna, supra, 185 Ga. App. at 221. Even when a jury is unable to reach a verdict and a second trial is required, a voluntary dismissal before the second trial is available as a matter of right, Delta Air Lines v. Van Diviere, 192 Ga. App. 207, 208 (384 SE2d 272) (1989) (“the practical effect of the mistrial was to return the parties to a pre-trial status”), as it is if the case returns to the trial court on remand after appeal. Bunch v. Vincent, 234 Ga. App. 637, 637-638 (2) (507 SE2d 239) (1998) (grant of partial summary judgment).

In light of the presumption that the General Assembly was aware of the existing law, including decisions of the Georgia courts, Hart v. Owens-Illinois, Inc., 250 Ga. 397, 400 (297 SE2d 462) (1982), we conclude that the swearing of a witness contemplated in OCGA § 9-11-41 (a) refers to a trial of the merits of the case resulting in a judgment, not testimony in pretrial proceedings or in a trial which begins but is later terminated by mistrial or continuance.

[I]t has been repeatedly held that the intent of the legislature in enacting OCGA § 9-11-41 (a) was to give plaintiffs the opportunity to escape untenable positions and relitigate the case. There is no bad faith exception to the right to dismiss and later relitigate, despite whatever inconvenience and irritation this may cause the defendants. If we interpret these Code sections as limiting the plaintiffs’ dismissal right because the trial court had already issued certain rulings, which would be undone when a plaintiff dismissed and refiled, that argument logically would extend to any other statute under which the court issued rulings. In enacting the dismissal and renewal statute, the legislature was well aware of the resultant costs to defendants in time, money, and aggravation, and if the legislature intended to foreclose a plaintiff’s ability to dismiss and refile, it could have said so.

(Citation and punctuation omitted.) McKesson Corp. v. Green, 286 Ga. App. 110, 114 (2) (648 SE2d 457) (2007) (statute providing for court order on expert witnesses does not prohibit voluntary dismissal without prejudice).

Moreover, in the absence of any testimony or record from the magistrate court showing precisely what occurred there, the superior court is not authorized to retroactively apply the provisions of the Civil Practice Act to the supposed actions of the magistrate court, when no evidence appears in the record to show that the Act was relied on by the magistrate in any respect. See OCGA § 15-10-42 (“Civil Practice Act inapplicable to magistrate courts. Proceedings in the magistrate court shall not be subject to Chapter 11 of Title 9, the ‘Georgia Civil Practice Act.’”). In contrast, the Code governing civil proceedings in magistrate courts provides: “Any voluntary dismissal by the plaintiff or by order of the court for want of prosecution shall be without prejudice except that the filing of a second such dismissal shall operate as an adjudication upon the merits.” (Emphasis supplied.) OCGA § 15-10-41 (b) (2).

Decided October 31, 2013.

Craig R. Goodman, Ruthanne W. Goodman, for appellant.

Brian K. Luffman, pro se.

Jessica A. Luffman, pro se.

The superior court therefore erred in applying res judicata to the voluntary dismissal of the magistrate court actions.

Judgment reversed.

Doyle, P. J., and McFadden, J., concur.

       We note that the certificates of service filed below and in this court by the Luffmans are signed by an otherwise unidentified and self-described nonparty, one Marni Mason. Mason does not appear to be an attorney. While this is improper, it has no effect on this appeal. See OCGA § 9-11-5 (b) (“Proof of service may be made by certificate of an attorney or of his or her employee, by written admission, by affidavit, or by other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service.”) (emphasis supplied).

       The Luffmans compiled a group of additional documents which they sought to add to the record in this court. But a party may not supplement the record with documents which were not part of the record below. Howard v. GMAC Mtg., 321 Ga. App. 285, 287 (1) (b), n. 4 (739 SE2d 453) (2013).

       None of these documents form part of a duly transmitted magistrate court record. Ordinarily, the record would he transmitted to the superior court as part of an appeal under OCGA § 15-10-41. See OCGA § 5-3-29 (appeal to superior court “brings up the whole record from the court below”). But here, no appeal took place because Target filed voluntary dismissals.

       It is true that the magistrate courts may follow the provisions of the Civil Practice Act “where to do so would ‘administer justice’ under OCGA § 15-10-44.” Howe v. Roberts, 259 Ga. 617, 619 (1) (385 SE2d 276) (1989). But OCGA § 15-10-44 by its express terms applies to the trial of a case, not pretrial proceedings.


author: Miller, Judge.

text:
    A13A1566.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. T & G ENTERPRISES, INC.
    (751 SE2d 99)
   Miller, Judge.

T & G Enterprises, Inc. (“T & G”) sought insurance coverage on certain real property located in Dalton, Georgia. Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm”) issued an insurance binder on the property through its local agent. Prior to issuance of the actual insurance policy, a theft occurred on T & G’s property. When T & G filed a claim for the theft, Georgia Farm denied coverage for the loss. T & G filed suit for breach of contract, and the parties subsequently filed cross-motions for summary judgment. The trial court denied Georgia Farm’s motion for summary judgment and granted T & G’s motion for partial summary judgment, finding that the theft exclusion, upon which Georgia Farm relied in denying coverage, was inapplicable because it was part of an endorsement that was not included in the insurance binder issued to T & G. Georgia Farm filed the instant appeal to challenge the trial court’s rulings. Because we find that a question of fact remains regarding whether the insurance binder issued to T & G provided coverage for losses due to theft, we reverse in part.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). We apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. Id.

So viewed, the evidence shows that T & G was in the rental property business. T & G had an existing Georgia Farm commercial package policy. When T & G purchased a rental property, it always obtained a Georgia Farm insurance binder adding the property to its policy prior to closing. The insurance binders stated the type of coverage, the amount and the deductible, and were effective to bind coverage for 30 days.

On October 19, 2006, T & G purchased real property, including three 4-unit apartment buildings, located in-Dalton, Georgia. Prior to closing, T & G contacted Georgia Farm’s agent and requested an insurance binder on the Dalton property. The agent issued a Georgia Farm insurance binder for $250,000 in property coverage on the Dalton property. Under the type of property insurance, the binder specifically stated “Commercial Package Policy.”

On October 26, 2006, T & G discovered that unknown persons had entered the Dalton property, removed all wiring and copper from the apartments and stolen several appliances, including refrigerators and air conditioners. T & G faxed the incident report to Georgia Farm’s agent, who gave it to the claims person at Georgia Farm’s Dalton office. The agent informed T & G that theft was not a covered peril under T & G’s policy and, based on a field inspection, Georgia Farm could not insure the property in its present condition.

On appeal, Georgia Farm contends that the trial court erred in denying its motion for summary judgment and in granting partial summary judgment to T & G because the applicable policy did not provide coverage for T & G’s theft loss.

“In general, contracts for insurance must be in writing and may not be partially parol. A binder or other contract for temporary insurance is an exception to this general rule and may be either oral or written.” (Citations and punctuation omitted.) Thomas v. Union Fidelity Life Ins. Co., 168 Ga. App. 267, 268 (1) (308 SE2d 609) (1983), aff’d, 252 Ga. 259 (312 SE2d 333) (1984). OCGA § 33-24-33 is the controlling statutory authority with regard to insurance binders. That statute pertinently provides:

(a) Binders or other contracts for temporary insurance may be made orally or in writing and shall be deemed to include all the usual terms of the policy as to which the binder was given together with any applicable endorsements that are designated in the binder, except as superseded by the clear and express terms of the binder.
(b) No binder shall be valid beyond the issuance of the policy with respect to which it was given or beyond 90 days from its effective date, whichever period is . . . shorter[.]

(Emphasis supplied.) OCGA § 33-24-33. Insurance binders

are intended to provide temporary protection pending an investigation of the insured or pending issuance of the formal written policy providing the coverage requested by the insured. The insurance binder is a contract created for the convenience of the insured to provide immediate insurance coverage without subjecting the insured to risk of loss occasioned by a delay in effecting coverage. The only language or conduct necessary to create an insurance binder contract is that which shows a meeting of the minds.

(Citations omitted; emphasis supplied.) McDuffie v. Criterion Cas. Co., 214 Ga. App. 818, 819-820 (449 SE2d 133) (1994). Insurance binders are governed by the ordinary rules of contract construction and should be construed to ascertain the intent of the parties. See id.

Here, the binder indicates on its face that the permanent property insurance policy that would have been issued would have been a Commercial Package Policy. The policy in the record provides:

We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.

(Emphasis supplied.) There is no Declarations page in the record. The binder, however, listed three policy form options for covered “Causes of Loss” — “Basic,” “Broad” and “Special,” and both the Basic and Broad form options for covered Causes of Loss in the record provide:

. . . Covered Causes of Loss means the following:
... We will not pay for loss or damage caused by or resulting from theft, except for building damage caused by the breaking in or exiting of burglars.

The binder does not indicate which of the three Causes of Loss form options — Basic, Broad or Special — was included in the bound insurance coverage. Nevertheless, Georgia Farm contends that the policy applicable to the binder would have included either the Basic or Broad Causes of Loss form, both of which exclude coverage for theft. As the trial court properly found, however, the instant case concerns a binder, not a formal policy of insurance. Under OCGA § 33-24-33 (a), for either the Basic or Broad Causes of Loss policy form options to be considered as having been included in the binder, the applicable form needed to be designated in the binder that Georgia Farm gave to T & G. Since neither of these policy form options was designated in the binder, Georgia Farm cannot rely upon them as a basis for asserting that the theft of T & G’s property was excluded from coverage under the usual terms of the policy as to which the binder was given. See OCGA § 33-24-33.

Our analysis does not end there, however, because the usual terms of the policy as to which the binder was given may be inferred from the parties’ oral communications and their past dealings. See Parks v. State Farm Gen. Ins. Co., 238 Ga. App. 814, 816 (2) (520 SE2d 494) (1999); Greene v. Commercial Union Ins. Co., 136 Ga. App. 346, 347 (221 SE2d 479) (1975).

Here, the evidence shows that T & G had existing Georgia Farm coverage on its other rental properties, when Georgia Farm issued the binder on T & G’s Dalton property. Georgia Farm’s agent testified in his deposition that T & G’s existing coverage included a commercial package policy that provided liability only coverage for its rental properties, as well as basic fire coverage. The agent further testified that T & G requested the same coverage for the Dalton property that it had on its other properties. Georgia Farm also presented affidavit testimony stating that, with regard to the Commercial Package Policy it relies on, neither the Basic nor the Broad Causes of Loss form options provide coverage for theft, and the Special Causes of Loss form option would not have applied in this case because of the age of the property and the use of the property as apartments.

T & G presented the testimony of its bookkeeper, who confirmed that T & G had two policies with Georgia Farm, and each time T & G bought a piece of property it procured a binder providing the same coverage it had on its other properties. The bookkeeper further testified that T & G had both liability and property coverage.

Decided November 1, 2013.

James, Bates, Brannan & Groover, Duke R. Groover, Marty K. Senn, for appellant.

Sponcler & Tharpe, Henry C. Tharpe, Jr., for appellee.

When viewed in the light most favorable to each party as the nonmovant in the parties’ cross-motions for summary judgment, a question of fact remains regarding whether T & G’s insurance on its other properties provided coverage for property losses due to theft. If T & G’s existing insurance covered losses due to theft, then the usual terms of the policy as to which the binder was given also covered theft based on the parties’ past dealings. See OCGA § 33-24-33; see also Parks, supra, 238 Ga. App. at 816 (2); Greene, supra, 136 Ga. App. at 347. Accordingly, we reverse the trial court’s grant of partial summary judgment to T & G on the issue of whether the binder excluded coverage for theft. We affirm the denial of summary judgment to Georgia Farm for the same reason.

Judgment affirmed in part and reversed in part.

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

       Georgia Farm presented affidavit testimony stating that this policy would have been the policy issued pursuant to the binder, and it relies on this policy in support of its motion for summary judgment.

       In so holding, the trial court relied on this Court’s decision in Intl. Indem. Co. v. McKeever, 174 Ga. App. 871 (331 SE2d 909) (1985), which is physical precedent only.


author: Phipps, Chief Judge.

text:
    A13A1192.
    MOSELEY v. THE STATE.
    (751 SE2d 108)
   Phipps, Chief Judge.

Following a jury trial, Willie Moseley appeals his conviction for aggravated assault. His sole enumerated error is that the trial court erred in allowing the state, pursuant to former OCGA § 24-9-84.1, to introduce his more than ten-year-old prior conviction for aggravated assault to impeach him in the event that he testified at trial. Specifically, he asserts that the court erred in the manner in which it analyzed the probative value and prejudicial effect component of former OCGA § 24-9-84.1 (b). Because Moseley waived any objection to the admission of the evidence when he preemptively introduced evidence of the prior conviction on direct examination, we affirm.

This court will not disturb a trial court’s determination regarding impeachment of a criminal defendant pursuant to former OCGA § 24-9-84.1 unless the trial court has abused its discretion.

On June 7, 2010, Moseley approached an acquaintance in his (Moseley’s) home and demanded money the acquaintance owed him. When the acquaintance did not give Moseley any money, Moseley stabbed him in the neck. The acquaintance was then transported to a trauma center for medical treatment.

Moseley was indicted for aggravated assault. Prior to trial, over defense counsel’s objection, the court ruled that in the event Moseley testified, the state would be permitted to introduce, pursuant to former OCGA § 24-9-84.1, the fact that he had prior convictions for the following offenses: violation of the Georgia Controlled Substances Act in 2004; violation of the Georgia Controlled Substances Act in 2008; and aggravated assault in 1995. On appeal, Moseley challenges the court’s ruling on the admission of the 1995 aggravated assault conviction.

Moseley testified at trial, claiming self-defense. Moseley’s lawyer asked him on direct examination about his prior convictions for the aggravated assault and two drug charges, and Moseley acknowledged that he had pled guilty to those charges.

Q: Mr. Moseley, . . . [i]n 1995, did you plead guilty to an aggravated assault?
A: Yes, sir, I did. . . .
Q: And in the year 2004, did you plead guilty to a drug charge . . . ?
A: Yes, sir.
Q: Okay. And in 2008, did you plead guilty to another drug charge...?
A: Yes, sir, I did.

Decided November 4, 2013.

William C. Puckett, Jr., for appellant.

James L. Wright III, District Attorney, Atha H. Pryor, Assistant District Attorney, for appellee.

Q: Were you guilty of those offenses?
A: Yes, sir.
Q: Is that why you pled guilty?
A: Yes, sir.

Later, on cross-examination the state elicited from Moseley testimony about the same prior convictions, and defense counsel objected when the state moved to introduce into evidence certified copies of the prior convictions. Over defense counsel’s objections, the trial court admitted into evidence the certified copies of the prior convictions. Because Moseley had testified on direct examination about his prior convictions, and particularly the aggravated assault conviction, he may not on appeal challenge the trial court’s ruling and claim that the admission of such evidence was error.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       Former OCGA § 24-9-84.1, in effect at the time of the 2011 trial, provided in relevant part:
      (a) General rule. For the purpose of attacking the credibility ... of the defendant, if the defendant testifies:... (2) Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant;.. .
      (b) Time limit. Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old, as calculated in this subsection, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

       See Quiroz v. State, 291 Ga. App. 423, 429 (4) (662 SE2d 235) (2008).

       See Ohler v. United States, 529 U. S. 753, 760 (120 SCt 1851, 146 LE2d 826) (2000) (“[A] defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error.”); Contreras v. State, 314 Ga. App. 825, 828(3), n. 4 (726 SE2d 107) (2012) (defendant who testified on direct examination about his prior convictions waived any objection to the admission of those convictions).


author: ELLINGTON, Presiding Judge.

text:
    A13A1467.
    COOPER v. THE STATE.
    (751 SE2d 102)
   ELLINGTON, Presiding Judge.

Following a bench trial, a Bulloch County judge found DeMarco Montez Cooper guilty off our counts of selling cocaine, OCGA § 16-13-30 (b) (Counts 1, 4, 7, and 9); five counts of distributing cocaine within 1,000 feet of a public housing project, OCGA § 16-13-32.5 (b) (Counts 2, 5, 8, 10, and 14); three counts of using a communication facility in committing or facilitating the commission of a felony (sale of cocaine), OCGA § 16-13-32.3 (a) (Counts 3, 6, and 11); possession of cocaine with intent to distribute, OCGA § 16-13-30 (b) (Count 12); and possession of a counterfeit controlled substance, OCGA § 16-13-30 (i) (1) (Count 13). Cooper appeals from the order denying his motion for a new trial, challenging the sufficiency of the evidence and contending that the trial court erred in conducting a bench trial without first determining whether he had waived his right to a jury trial. Cooper also moved this Court to remand his case so that he could pursue a claim of ineffective assistance of trial counsel. For the following reasons, we vacate the judgments of conviction and remand to the trial court for proceedings consistent with this opinion.

1. Cooper contends that the trial court erred in conducting a bench trial without first determining that he voluntarily, knowingly, and intelligently waived his right to a jury trial.

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation and punctuation omitted.) Whitaker v. State, 256 Ga. App. 436, 439 (2) (568 SE2d 594) (2002). “The question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.” (Citations and punctuation omitted.) Id. In this case, Cooper questions the validity of the waiver for the first time on appeal. “Generally, claims of error not objected to in the trial court may not be raised for the first time on appeal, except for certain constitutional issues, among which is whether the defendant waived his constitutional right to a jury trial.” (Footnote omitted.) Whitaker v. State, 244 Ga. App. 241, 243 (4) (535 SE2d 283) (2002).

Because the State has not yet had the opportunity to rebut Cooper’s claim with extrinsic evidence showing that he intelligently and knowingly waived his right to a jury trial, such as the testimony of or an affidavit from Cooper’s attorney, the record before us is incomplete. See Jackson v. State, 253 Ga. App. 559, 560 (560 SE2d 62) (2002). Cooper’s convictions are hereby vacated, and the case is remanded to the trial court for an evidentiary hearing on this issue. See Rosser v. State, 312 Ga. App. 240, 241 (2) (718 SE2d 310) (2011); Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d 864) (1991). In the event the trial court determines from the evidence adduced at this hearing that Cooper did make such a waiver and that he personally participated in the decision, then the convictions and sentences may be reinstated, to the extent not otherwise barred, and Cooper will be entitled to file a new appeal directed to this issue alone. Whitaker v. State, 244 Ga. App. at 244 (4); Lawal v. State, 201 Ga. App. at 798 (2).

2. In his remaining claims of error, Cooper challenges the sufficiency of the evidence supporting his convictions. Although we have vacated his convictions for the reasons explained in Division 1, supra, we address Cooper’s sufficiency argument because the trial court would not be authorized to reinstate any conviction the State failed to prove.

When an appellate court reviews the sufficiency of the evidence,

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

(Citation, footnote and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the record reveals the following.

An officer with the Statesboro Police Department used a confidential informant to make four controlled buys of cocaine from “Tez,” who resided in apartment H4 of the Fox Ridge Apartment complex, a low-income housing project in Bulloch County. The police recorded the conversations between the informant and the seller, including the calls to arrange the sales of cocaine and the conversations that occurred during the hand-to-hand transactions, and the State introduced the recordings into evidence. After obtaining the suspected cocaine, the police determined that Cooper resided in apartment H4 from a list maintained by the apartment complex. Thereafter, the police obtained a search warrant, searched the apartment, and found additional suspected cocaine, a single pill of suspected MDMA, and the currency used in the controlled buys. The informant told the police, and he later testified at trial, that Cooper sold the cocaine to him. Cooper admitted that he used cocaine and that he had possessed the cocaine recovered from the informant and his apartment, but he denied that he had sold it to the informant. He testified that he and the informant, who is his cousin, possessed the cocaine jointly and would “get high together.” Finally, a forensic scientist with the Georgia Bureau of Investigation testified that the drugs Cooper sold to the informant tested positive for cocaine and that the drugs recovered from Cooper’s apartment tested positive for cocaine, except for the pill, which tested positive for piperazine.

(a) Cooper contends that the evidence adduced was insufficient to support his convictions because the State relied on the hearsay testimony of a forensic scientist who did not personally conduct the chemical tests that identified the drugs Cooper sold or possessed. Cooper argues that admitting the “surrogate testimony” of the forensic scientist in this case violated his right to confront the witnesses against him. However, even assuming that the forensic chemist’s testimony was inadmissible, the State nevertheless submitted sufficient evidence establishing that the drugs recovered, with the exception of the pill, constituted cocaine.

Both the informant and Cooper made admissions to the police and during their testimony at trial that the white powdery substance sold by Cooper or recovered from Cooper’s apartment was cocaine, and Cooper interposed no objection to this testimony. The testimony of the police, the informant, and Cooper was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that the substance sold or possessed by Cooper, as alleged in Counts 1, 3, 4, 6, 7, 9, 11, and 12, was cocaine. See, e.g., Willingham v. State, 296 Ga. App. 89, 90-91 (673 SE2d 606) (2009) (expert testimony as to the chemical composition of the contraband is not always required; so long as the State presents, without objection, the testimony by one with personal knowledge establishing that the substance is what the State claims, then the evidence is sufficient); Burroughs v. State, 190 Ga. App. 467, 470 (1) (b) (379 SE2d 175) (1989) (accord). See also Gooch v. State, 249 Ga. App. 643, 645 (1) (549 SE2d 724) (2001) (witnesses who were involved in the drug transaction and who had used methamphetamine on multiple prior occasions testified that the substance at issue was methamphetamine).

(b) However, the evidence is insufficient to establish that Cooper possessed a counterfeit drug, as alleged in Count 13 of the indictment.

OCGA § 16-13-30 (i) (1) provides that “it is unlawful for any person to possess ... a counterfeit substance.” The definition of a “counterfeit substance” applicable here is “[a] controlled substance or [a] noncontrolled substance, which is held out to be a controlled substance or marijuana, whether in a container or not which does not bear a label which accurately or truthfully identifies the substance contained therein,” or “[a]ny substance, whether in a container or not, which bears a label falsely' identifying the contents as a controlled substance.” OCGA § 16-13-21 (6) (B), (C).

The State presented the testimony of an officer who opined that the pill found in Cooper’s apartment appeared to be suspected MDMA. The State’s forensic chemist testified that the pill contained piperazine. The State, however, failed to adduce any evidence establishing that the pill bore markings that misidentified or misrepresented it as being MDMA. Because the record contains no evidence from which the factfinder could conclude that the pill was a counterfeit controlled substance as defined in the statute, this conviction is not supported by sufficient evidence.

(c) Cooper contends the evidence adduced was insufficient to establish that he sold drugs within 1,000 feet of a public housing project. We agree. The State failed to offer any evidence establishing that the Fox Ridge Apartment complex was owned or operated by a public housing authority, an essential element of the offense. Quarterman v. State, 305 Ga. App. 686, 688-690 (1) (a) (700 SE2d 674) (2010) (the State failed to establish the required public housing project element of the offense). Consequently, Cooper’s convictions on Counts 2, 5, 8, 10, and 14 are not supported by sufficient evidence.

3. Cooper’s current appellate counsel filed with this Court a “Motion for Remand Without Prejudice” to “allow development of the record regarding” a claim of ineffective assistance of trial counsel. Because we are remanding this case for the reasons explained in Division 1, supra, the motion is hereby denied as moot.

It is well settled that “a defendant must raise all allegations of ineffective assistance of counsel at the earliest practicable moment, and any allegation not raised [at that time] is deemed waived.” Billings v. State, 293 Ga. 99, 102 (2) (745 SE2d 583) (2013). See also Simmons v. State, 281 Ga. 437, 438 (2) (637 SE2d 709) (2006) (accord); Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986) (accord).

The record shows that Cooper’s trial counsel filed a motion for new trial. After the trial court appointed new attorneys to represent Cooper in post-conviction proceedings, his new appellate counsel did not raise a claim of ineffective assistance of trial counsel either in an amendment to Cooper’s motion for new trial or at the hearing on that motion. See Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994) (New counsel could have amended an existing motion for a new trial to raise a claim of ineffective assistance of counsel, but because he elected not to do so, the claim was waived.); Alford v. State, 293 Ga. App. 512, 515-516 (4) (667 SE2d 680) (2008) (accord).

We note that, although Cooper’s trial counsel and his appellate counsel were each public defenders, they were employed by the Office of the Public Defender for two separate judicial circuits, the Ogeechee Judicial Circuit and the Augusta Judicial Circuit, respectively. Accordingly, this is not a case in which Cooper’s waiver may be excused by the failure of a succession of attorneys from the same public defender’s office to raise the issue of the ineffective assistance of trial counsel. Cf. Ryan v. Thomas, 261 Ga. 661, 662 (409 SE2d 507) (1991) (“[Attorneys in a public defender’s office are to be treated as members of a law firm for the purposes of raising claims of ineffective assistance of counsel. As such[,] different attorneys from the same public defender’s office are not to be considered ‘new’ counsel for the purpose of raising ineffective assistance claims .... Therefore, a defendant’s right to raise such a claim may not be barred by the failure of a succession of attorneys from the same public defender’s office to raise it.”). Consequently, although this case is remanded for other reasons, the trial court is not required to give Cooper an opportunity to develop evidence regarding any belatedly-asserted claim of ineffective assistance of trial counsel. Billings v. State, 293 Ga. at 102-103 (2); Bailey v. State, 264 Ga. at 300.

Decided November 4, 2013.

Katherine M. Mason, for appellant.

Richard A. Mallard, District Attorney, Joseph B. Black, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Phipps, C. J., and Branch, J., concur.

       See Division 2, infra.

       See Whitaker v. State, 244 Ga. App. at 242 (1). See generally Williams v. State, 258 Ga. 305, 311 (1) (369 SE2d 232) (1988) (“[T]he primary purpose underlying the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced insufficient evidence to sustain a conviction.”) (citations omitted).

       See footnote 6, infra.

       See Disharoon v. State, 291 Ga. 45, 46 (727 SE2d 465) (2012) (“ ‘[Surrogate testimony’ of the ‘scientist who did not sign the certification or perform or observe the test reported in the certification’ violates the Confrontation Clause.”) (citation omitted); Leger v. State, 291 Ga. 584, 592-593 (5) (732 SE2d 53) (2012) (accord); Estrada v. State, 319 Ga. App. 762, 765-766 (3) (738 SE2d 344) (2013) (accord).

       Cooper was indicted in Count 13 for possessing “MDMA,” which was not defined in the indictment with reference to any specific chemical formula. Before trial, the court allowed the State to amend the indictment (without obj ection) to reflect that it was pursuing, with reference to Count 13, the “lesser-included” offense of felony possession of a counterfeit drug. We do not address whether the State’s amendment to the indictment was valid because Cooper has not alleged such as error.

       MDMA is a Schedule I controlled substance denominated “3, 4-Methylenedioxymeth-amphetamine.” OCGA § 16-13-25 (3) (Z). MDMA is often referred to as “ecstasy.” See Jackson v. State, 314 Ga. App. 272 (724 SE2d 9) (2012). Piperazine is a Schedule I controlled substance, see OCGA § 16-13-25 (8), similar to ecstasy, sometimes referred to as “synthetic ecstasy,” and which has been confused with or treated as ecstasy by law enforcement. See State v. Rogers, 319 Ga. App. 834, 835, n. 3 (738 SE2d 667) (2013) (“[The officer] visually identified the pills as ecstasy, the crime lab determined that the pills were actually l-(3-trifluoromethylphenyl) piperazine, which is a controlled substance similar to ecstasy.”); Farley v. State, 317 Ga. App. 628 (732 SE2d 131) (2012) (Undercover agents purchased purported “ecstasy” pills which subsequently tested positive for the presence of piperazine.).

       OCGA § 16-13-32.5 (b) provides that
      [i]t shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project, unless the manufacture, distribution, or dispensing is otherwise allowed by law. For the purposes of this Code section, the term “housing project” means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.

       We note that Cooper has not asserted a claim of ineffective assistance of trial counsel in his appellate brief nor has he explained how his trial counsel was allegedly deficient in his motion to remand. In order to address a motion to remand on the ground of ineffective assistance of counsel, it is imperative that we know the basis for the claim so that we may assess whether the claim is one that involves matters outside of the record and, thus, is a claim that should be remanded for further proceedings. See Wilson v. State, 277 Ga. 195, 199-200 (586 SE2d 669) (2003).

       “[C]ircuit public defenders working in the circuit public defender office of the same judicial circuit are akin to lawyers working in the same unit of a legal services organization and each judicial circuit’s public defender’s office is a ‘firm’ as the term is used [in Rule 1.10 (a), concerning conflicts of interest].” (Footnote omitted.) In re Formal Advisory Opinion 10-1, 293 Ga. 397, 398 (1) (744 SE2d 798) (2013). See also Hung v. State, 282 Ga. 684, 685 (2) (653 SE2d 48) (2007) (attorney who filed motion for new trial was not considered to be “new” counsel for the purpose of an ineffective assistance of counsel claim where he and trial counsel were from the same public defender’s office); Kennebrew v. State, 267 Ga. 400, 402 (2) (480 SE2d 1) (1996) (appellate counsel who was from the same public defender office as appellant’s trial lawyer could not represent appellant on appeal where appellant had an ineffective assistance of counsel claim).