author: BARNES, Presiding Judge.

text:
    A14A1357.
    HARRIS v. THE STATE.
    (765 SE2d 369)
   BARNES, Presiding Judge.

Following a jury trial in 2006, Marvin Harris was convicted of one count each of rape and kidnapping. He filed a motion for new trial, which was denied by the trial court. On appeal, Harris argues that the trial court applied the wrong standard and refused to exercise its discretion when concluding that the defense opened the door to character evidence and, consequently, erred by admitting evidence of Harris’s prior convictions. He further argues that the trial court erred by admitting certain testimony from the State’s expert that he alleges was nonresponsive and improperly bolstered the victim’s testimony. We find no error and affirm.

On appeal from a criminal conviction, we construe the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. See Knight v. State, 251 Ga. App. 145 (553 SE2d 670) (2001). We neither weigh the evidence nor assess witness credibility, both of which lie exclusively within the province of the jury. See Bell v. State, 311 Ga. App. 289 (715 SE2d 684) (2011).

So viewed, the evidence adduced at trial showed that in April 1995, Harris and his cousin had driven from Birmingham to Atlanta in order to attend “Freaknik,” an annual African-American college weekend event. The 19-year-old victim had also attended the event and, after exiting the MARTA train to return home, discovered that the last bus had departed the station. She was preparing to walk home when she encountered Harris, who was the passenger in his cousin’s vehicle.

Harris exited the vehicle and approached the victim in a flirtatious manner before grabbing her arm and pulling her into the car. Once inside, Harris repeatedly told her that there was a gun in the glove compartment. Harris then had sexual intercourse with the victim in the front seat of the vehicle while his cousin drove. The men then switched positions and Harris’s cousin also had sexual intercourse with her. Throughout the ordeal, the victim was crying and pleading to go home.

When the assaults were over and the vehicle was stopped at a traffic light, the victim ran out of the car to the vehicle immediately behind it and begged the driver, “Let me in. Let me in. [I’ve] just been raped.” The driver, who happened to be a former schoolmate of the victim, observed that she was crying hysterically, her clothes were disheveled, and she appeared to be “running for her life.” Expressing shame and fear that the perpetrators would discover where she lived, the victim asked that she not be taken home. The driver therefore drove the victim around for several hours before taking her to his own house and allowing her to rest.

The following morning, the driver took the victim home and she relayed to her mother that she had been raped by two men. Her mother immediately called the police, and the victim was taken to the hospital, where a rape kit was performed and cervical swabs were taken in order to preserve any biological evidence. ADNAprofile was subsequently created from those cervical swabs and was entered into the Georgia Bureau of Investigation’s (“GBI”) DNA database.

In August 2005, the GBI received notification of a possible match between the DNA sample taken from the victim and that of Harris. The GBI alerted the Atlanta Police Department and during the ensuing investigation, the victim gave a second statement consistent with the one she gave shortly after the crime. Harris was also interviewed and admitted that he and his cousin picked up the victim at the MARTA station on the night in question and both had sexual intercourse with her in the front seat of the vehicle while the other drove, although he denied any mention of a weapon and claimed the sex was consensual.

Harris was subsequently arrested and charged with rape and kidnapping. During the trial, the jury heard testimony from the victim, the former schoolmate into whose car she ran, the investigator who interviewed her at the time of the crime, and the investigator who interviewed both her and Harris in 2005 after the DNA match was discovered. Additionally, the victim’s mother testified that after the incident, the victim became isolated and withdrawn, cried continuously, and cut off her hair in an effort to appear unattractive to men. And finally, the State presented an expert in the psychology of rape who had not interviewed the victim, but who testified in general about certain patterns of behavior frequently exhibited by rape victims and stated that it is not uncommon for such victims to be reticent about reporting the crime to family or to law enforcement.

Harris’s cousin was the only defense witness. He admitted he was the other man in the car with Harris. Like Harris, the cousin claimed that the men picked up the victim from the MARTA station and alternated driving and having consensual sexual intercourse with her. The cousin also admitted that he had been diagnosed with schizophrenia subsequent to the incident, and he rambled in his responses to questions during the direct examination. In the course of a rather long-winded and nonresponsive answer to a question from Harris’s counsel asking whether Harris and the victim had been talking, singing, or doing anything, the cousin responded:

I was quiet. Everybody was nice to each other, you know. Everybody was just quiet. To be honest with you, everybody was just quiet, and we [were] having a nice time, you know, enjoying the Freaknik. We [were], you know •— we were really probably the nicest people out there, you know. We [were] kind of quiet. Everything else was kind of loud. We [were] kind of quiet, you know, and, you know, and — that’s really all I kind of remember about that, you know what I am saying.

(Emphasis supplied.) Harris did not object to the statement, move to strike it as nonresponsive, and or ask the judge to direct the witness to limit his answers to the questions asked.

During cross-examination of the cousin, the State moved to admit Harris’s prior convictions to rebut evidence of Harris’s good character and/or to impeach the cousin’s statement that Harris was one of “the nicest people” at Freaknik. The defense strenuously objected to their admission. The trial court overruled the objection and admitted Harris’s criminal history on the ground that the defense opened the door to character evidence through the cousin’s testimony. The State then introduced evidence of Harris’s three prior robbery convictions and prior conviction for possession of marijuana by asking Harris’s cousin whether his opinion of Harris would change had he been aware of them. The cousin responded that it would not.

The jury convicted Harris on both counts, and the trial court ultimately denied his motion for new trial. This appeal follows.

1. Harris argues that the trial court “refused to apply the proper standard of whether the defense intended to introduce evidence of Appellant’s character and abused its discretion by admitting Appellant’s prior convictions.” Specifically, Harris contends that he did not intentionally place his character at issue through the cousin’s “inadvertent statement” and that the trial court mistakenly believed it could not determine whether Harris intended to put his character into evidence and thus “refused to exercise its discretion.” He further argues that the statement itself was not about Harris’s character but only compared how quiet the men were in contrast to others that night. We disagree that the trial court failed to exercise its discretion or abused it.

As a general rule, bad character evidence of a criminal defendant is irrelevant and inadmissible. See OCGA § 24-2-2 (1996) (“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”). But “the defendant may open the door to bad character evidence if he intentionally elects to put his character at issue, and a witness may be impeached by disproving the facts to which [he] testifies.” (Footnotes omitted.) Arnold v. State, 305 Ga. App. 45, 51 (4) (699 SE2d 77) (2010); Redman v. State, 281 Ga. App. 605, 606 (2) (636 SE2d 680) (2006) (holding that the defense witness’s testimony of defendant’s good character “opened the door for the State to introduce all evidence bearing on his character, including convictions of crimes, guilty and nolo contendere pleas, juvenile offenses, and incidents which illustrate the defendant’s character”) (punctuation omitted); Porter v. State, 243 Ga. App. 498, 502 (3) (532 SE2d 407) (2000) (“Once a defendant opens the door for character evidence, specific events may be used in testing the extent and foundation of the witness’s knowledge and the correctness of his testimony on direct examination.”) (punctuation omitted).

An inadvertent or nonresponsive answer by a witness that invokes the defendant’s good character, however, does not automatically “put his character [at] issue” so as to open the door to character evidence. (Punctuation omitted.) Jones v. State, 257 Ga. 753, 758 (1) (363 SE2d 529) (1988). Significantly, “[w]hether a statement making reference to the defendant’s good character is merely inadvertent or manifests a conscious election is a question of fact, determined primarily upon the trial court’s assessment of the intent of the accused and his counsel.” (Punctuation omitted.) Hill v. State, 243 Ga. App. 124, 127 (3) (532 SE2d 491) (2000). We afford great deference to the trial court’s rulings in this regard. See id; Arnold, 305 Ga. App. at 51 (4) (“Whether the defendant has intentionally opened the character door is a matter for the trial court to determine, and the trial court’s evidentiary decisions will not be disturbed on appeal absent an abuse of discretion.”) (punctuation and footnotes omitted).

Here, although counsel’s question to Harris’s cousin may not have been specifically aimed at eliciting character evidence, it was, as admitted by counsel, part of his trial strategy to allow the witness to give lengthy and nonresponsive answers to his questioning. Indeed, throughout the cousin’s testimony, he routinely gave long, nonrespon-sive answers — sometimes a single answer spanning over multiple pages •— and at no time did counsel object or request that the witness confine his answers to the question asked. It is for this reason that the trial court expressly held that

if [the defense] strategy is to let [the witness] talk and talk, and he says something that you don’t like, even though its being nonresponsive and you can object to it being nonre-sponsive, it is what it is. There is nothing I can do. You have to take the good with the bad.

We disagree with Harris that the trial court refused to assess counsel’s intent or abdicated its responsibility to exercise discretion in holding that the defense opened the door to character evidence. Harris called his schizophrenic cousin as a witness and allowed him to place himself at the scene and identify himself as one of the two men accused of rape. Harris did not discourage the cousin’s long, rambling responses throughout his testimony. The trial court exercised its discretion and concluded that counsel’s conscious decision not to object or redirect the nonresponsive witness once he made a reference to Harris’s character created an inference that counsel intended to inject character evidence into the trial and thus triggered the State’s right to explore and impeach that testimony.

Under these circumstances, we cannot say that the trial court erred in finding that the defense opened the door to the admission of character evidence. See Franklin v. State, 251 Ga. 77, 80 (2) (303 SE2d 22) (1983) (holding that in the absence of an objection or motion to strike, a witness’s statement that defendant was “all right” opened the door to character evidence); Merritt v. State, 288 Ga. App. 89, 100 (3) (653 SE2d 368) (2007) (affirming trial court’s holding that defendant opened the door to character evidence by testifying as to his feeling of remorse). Compare Lindsey v. State, 282 Ga. 447, 449-450 (2) (651 SE2d 66) (2007) (defendant’s statement that he was “not violent” when testifying that he had never been convicted of a felony or any crime of violence was an “inadvertent statement of his good character” and did not open the door to evidence of his two dozen misdemeanor arrests); Stinson v. State, 221 Ga. App. 758, 758-759 (1) (472 SE2d 538) (1996) (defendant’s single, nonresponsive answer that he did not “convert... to a criminal life” did not open the door to evidence of his prior arrests).

Harris further asserts that the cousin’s response was not character evidence at all, but simply a comment on the amount of noise they were making relative to the other people at the event. Reviewing the answer in the context of the entire trial, we conclude that the trial court did not abuse its discretion in finding that the comment constituted character evidence.

2. Harris next argues that the trial court erred in admitting testimony from the State’s expert witness that he asserts bolstered the victim’s testimony. Again, we disagree.

During voir dire questioning from Harris’s counsel, the witness confirmed that she had not reviewed the record in this case, had not interviewed the victim, and had “no idea” whether the sexual intercourse between Harris and the victim was consensual; she was being offered to answer questions with respect to generalized patterns of behaviors that rape victims may exhibit. Counsel nonetheless asked the witness several questions related to individuals who make false rape accusations, and the witness explained that she was not charged with investigating the veracity of a person’s report — a task left to the police — and that she had never knowingly received a fabricated allegation of rape. Pushing the issue, counsel asked, “So[,] someone comes in, tells you something, you’re on board; right?” The witness responded, “Correct. Nationally, statistics show that less [than] 1 percent of people falsely report rape.”

Counsel objected to the statement on the ground that it was nonresponsive, irrelevant, and the witness had not yet been tendered as an expert. Before the trial court ruled on that objection, however, counsel immediately launched into a lengthy objection to the qualification of the witness as an expert on the basis that the prejudicial effect of her testimony outweighed its probative value and, further, that her testimony was irrelevant and immaterial in that it would not assist the jury in determining Harris’s guilt or innocence. The trial court overruled the objection and qualified the witness as an expert in the psychology of rape.

Harris argues that the trial court erred in admitting the expert witness’s statement of statistical evidence and, further, that her testimony improperly bolstered the victim’s credibility and invaded the province of the jury. But Harris’s counsel failed to invoke a ruling from the trial court as to his specific objection to the witness’s statement, elicited by him during voir dire, regarding fabricated reports of rape. And to the extent his objection to the testimony could be read to have included improper bolstering or invading the province of the jury, we have held that “an expert witness may testify as to the existence of certain typical patterns of behavior exhibited by victims of rape, as long as the jury was permitted to draw for itself the final conclusion as to whether the victim in the case at hand was raped, as was the case here.” (Punctuation omitted.) Harris v. State, 283 Ga. App. 374, 381 (4) (a) (641 SE2d 619) (2007); see also Edmonson v. State, 212 Ga. App. 449, 450-451 (1) (442 SE2d 300) (1994), overruled in part on other grounds, Curtis v. State, 275 Ga. 576, 578 (1) (571 SE2d 376) (2002). The expert here admitted that she had not met or interviewed the victim and could offer no opinion as to whether the sexual intercourse involved was voluntary. It follows that the trial court’s admission of this testimony was not erroneous and does not afford Harris a new trial.

Judgment affirmed.

Boggs and Branch, JJ., concur.

Decided September 23, 2014

Reconsideration denied December 8, 2014

Michael W. Tarleton, James C. Bonner, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Lori L. Canfield, Assistant District Attorney, for appellee.

       The reason for the exceptional delay between Harris’s trial and the denial of his motion for new trial is unexplained by the record. Although he was appointed new counsel and filed a timely motion for new trial following his conviction, Harris subsequently filed a pro se motion for new trial in December 2008. The trial court issued an order denying Harris’s pro se motion in January 2009. In August 2010, Harris’s counsel filed a motion to vacate Harris’s pro se motion, and in April 2011, the trial court issued an order vacating the prior order denying his motion for new trial. Harris’s counsel thereafter filed an amended motion for new trial, which was denied in January 2013, and that denial order forms the basis of this appeal.

       See OCGA § 16-6-1 (a) (1) (“A person commits the offense of rape when he has carnal knowledge of. . . [a] female forcibly and against her will.”).

       See OCGA § 16-5-40 (a) (“Aperson commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.”).

       OCGA § 24-2-2 was repealed with the adoption of the new Evidence Code, effective January 1, 2013. See Ga. L. 2011, p. 99, § 2. The admission of character evidence is now governed hy OCGA § 24-4-404.

       The cousin was not identified as the second man involved in the rape until he took the stand and testified about the crime.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A14A1403.
    THOMAS et al. v. STATE BANK AND TRUST COMPANY.
    (765 SE2d 443)
   McFADDEN, Judge.

This appeal challenges the grant of summary judgment to a bank on its claims for breach of two promissory notes and a guaranty. Because the movant bank failed to meet its burden of showing that there exists no genuine issue of material fact that it is the current holder of the notes and guaranty, we reverse.

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. We review a trial court’s grant of summary judgment de novo, construing the evidence, and all reasonable conclusions and inferences drawn from it, in favor of the nonmovant.

Clay v. Oxendine, 285 Ga. App. 50 (645 SE2d 553) (2007) (citations and punctuation omitted).

So viewed, the evidence shows that on July 21, 2009, Stanley Thomas obtained a loan from The Buckhead Community Bank and signed a promissory note promising to repay the principal amount of $355,015. On September 15, 2009, Kevin Case also obtained a loan from The Buckhead Community Bank and signed a promissory note promising to repay the principal amount of $35,686.79. Thomas executed a guaranty to repay Case’s note.

The Buckhead Community Bank subsequently failed, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed receiver for the failed bank. On December 4, 2009, the FDIC entered into a Purchase and Assumption Agreement with State Bank and Trust Company, which provided that State Bank desired to purchase certain assets and assume certain liabilities of the failed Buckhead Community Bank, and that the FDIC assigned its interests in the failed bank’s assets to State Bank.

On March 25, 2011, State Bank filed the instant action against Thomas and Case, claiming default and seeking recovery under the Buckhead Community Bank promissory notes and guaranty. On March 12, 2012, State Bank filed a motion for summary judgment, claiming that the notes and guaranty had been transferred to it by the Purchase and Assumption Agreement. Thomas and Case opposed the motion, asserting that the bank had not shown it was in fact the holder of the notes and guaranty because the Purchase and Assumption Agreement did not identify the assets transferred and it provided that the actual conveyance of the assets shall be made by a receiver’s deed or a receiver’s bill of sale, neither of which was present in the record.

On June 26, 2012, a hearing was held on the motion for summary judgment. At the hearing, counsel for State Bank stated that the “receiver’s assignment of note and deed to secure debt is part of the real estate records of the clerk of the superior court of Fulton County [.]” She then cited to a county deed book and page number and further stated, “The receiver assignment of note and deed to secure debt was filed of record back in May of 2010. And subject to that assignment of note, all notes and deed to secure debt, financing statements and other collateral were all transferred to State Bank and Trust.”

Counsel for the bank gave a copy of the referenced page to counsel for the defense. However, the bank did not tender the document to the court, and it was not admitted into evidence. Counsel for Thomas and Case objected to any consideration by the court of the purported assignment record, noting that it had not been certified, and had not been timely filed in support of the motion or served on the defense. Defense counsel further argued that the absence of such an assignment document in the record proved his point that the Purchase and Assumption Agreement itself did not convey the notes and guaranty in question, and thus the bank had not presented proper evidence of the document actually effectuating the transfer of the assets.

The trial court thereafter entered its order granting the motion for summary judgment in favor of State Bank, finding that the notes and guaranty had been transferred to the bank pursuant to the Purchase and Assumption Agreement. Thomas and Case appeal.

1. Conveyance of notes and guaranty.

The appellants assert that the trial court erred in granting summary judgment because there exist genuine issues of material fact as to whether the bank proved the notes and guaranty had been conveyed to it and that it is the current holder of the notes and guaranty. We agree.

State Bank argues that the notes and guaranty were conveyed to it by Section 3.1 of the Purchase and Assumption Agreement. Section 3.1 states that the FDIC “hereby sells, assigns, transfers, conveys, and delivers to [State Bank], all right, title, and interest of the [FDIC] in and to all of the assets ... of the Failed Bank. . . . Schedule 3.1 attached hereto and incorporated herein sets forth certain categories of Assets purchased hereunder.”

Contrary to the bank’s argument, the plain language of this section assigned the FDIC’s right, title and interest in the assets of the failed bank, but did not convey the assets themselves. Moreover, it did not identify the specific assets in which the FDIC had an interest; and the referenced Schedule 3.1 likewise did not identify any specific assets. Thus, while Section 3.1 clearly assigned the FDIC’s interest in the assets of the failed bank to State Bank, it did not identify the subject notes and guaranty as assets in which the FDIC had an interest, and it did not transfer those specific assets to State Bank.

Rather, the actual conveyance of the failed bank’s assets is governed by Section 3.3 of the Purchase and Assumption Agreement. We note that this is the only section of the agreement that is given special emphasis by being written in all capital and bolded letters. It provides: “THE CONVEYANCE OF ALL ASSETS, INCLUDING REAL AND PERSONAL PROPERTY INTERESTS, PURCHASED BY [STATE BANK] UNDER THIS AGREEMENT SHALL BE MADE, AS NECESSARY, BY RECEIVER’S DEED OR RECEIVER’S BILL OF SALE[.]”

It is undisputed that no such receiver’s deed or bill of sale is contained in the record. As recounted above, at the summary judgment hearing, counsel for State Bank referred to a receiver’s assignment of note and deed, claimed that it had been recorded in a county deed book, and asserted that “subject to that assignment of note, all notes and deed to secure debt, financing statements and other collateral were all transferred to State Bank and Trust.” However, the bank’s counsel did not introduce any such document into evidence and did not ask the court to take judicial notice of the purported county record. Thus, there is no evidence in the record of any receiver’s deed, bill of sale or assignment of note and deed showing a transfer of the notes and guaranty that form the basis of State Bank’s claims against Thomas and Case.

State Bank attempts to fill this void in the evidence by pointing to the affidavit of Justin Perry, a State Bank employee appointed as an attorney-in-fact by the FDIC, who stated that on December 4, 2009, the assets of the failed Buckhead Community Bank, including the notes and guaranty of Thomas and Case, were transferred to State Bank by the Purchase and Assumption Agreement. However, as explained above, while the Purchase and Assumption Agreement assigned the FDIC’s interest in the failed bank’s assets to State Bank, it did not actually transfer the assets themselves. Moreover, it does not appear that Perry had any personal involvement in or knowledge of the Purchase and Assumption Agreement since, as he plainly acknowledges in his affidavit, he was not appointed as attorney-in-fact until November 22, 2010, nearly a year after the agreement had been executed.

[I]f it appears that any portion of the affidavit was not made upon the affiant’s personal knowledge, or if it does not affirmatively appear that it was so made, that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.

Greenstein v. Bank of the Ozarks, 326 Ga. App. 648, 651 (2) (757 SE2d 254) (2014) (citations omitted).

Furthermore, the document appointing Perry as an attorney-in-fact, which was attached as an exhibit to his affidavit, actually contradicts the claim that the notes and guaranty at issue were conveyed by the Purchase and Assumption Agreement. Instead, consistent with Section 3.3 of the agreement, the attorney-in-fact appointment shows that the transfer of such assets was required to be done by instruments other than that agreement. The attorney-in-fact appointment provides that Perry was given the authority to execute, on behalf of the FDIC,

all instruments of transfer and conveyance, including but not limited to deeds, assignments, satisfactions, and transfers, appropriately completed, with all ordinary or necessary endorsements, acknowledgments, affidavits and supporting documents as may be necessary or appropriate to evidence the sale and transfer of any assets of The Buckhead Community Bank including all loans formerly held by The Buck-head Community Bank to State Bank[.]

In his affidavit, Perry does not aver that he executed any such instruments of transfer and conveyance or that he has personal knowledge of any assets having been so conveyed. Thus, his affidavit provides no evidence that the notes and guaranty were appropriately transferred to State Bank.

In contrast to the deficient evidence in this case was the evidence presented by the assignee bank in Bobick v. Community & Southern Bank, 321 Ga. App. 855 (743 SE2d 518) (2013). In that case, we affirmed summary judgment in favor of a bank on its claims for breach of an assigned promissory note where the bank “submitted documents reflecting a complete chain of assignment for the promissory note at issue,” including not only the Purchase and Assumption Agreement between the FDIC and the bank, but also “the Assignment Agreement in which the FDIC . . . assigned the promissory notes and security instruments ... to [the bank].” Id. at 860 (2). See also Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 197 (1) (715 SE2d 491) (2011) (summary judgment affirmed where evidence of transfer included written assignment of deed from FDIC to bank and a note allonge attached to the promissory note identifying the bank as assignee).

Decided November 14, 2014

Reconsideration denied December 8, 2014.

Merolla & Gold, A. Todd Merolla, for appellants.

Busch White Norton, Bryan E. Busch, Laura H. Mirmelli, Vanessa Y. Suh, Tawana B. Johnson, for appellee.

In this case, there is not such a complete chain of assignment because State Bank has failed to submit any competent evidence of the actual transfer or conveyance of the promissory notes and guaranty upon which it rests its claims. Because the bank has failed to carry its burden of establishing a complete chain of assignment and transfer of the assets at issue, there exists a genuine issue of material fact as to an “essential element[ ] of [the bank’s] case[, and w]e therefore reverse the trial court’s order granting summary judgment in favor of [the bank].” Wirth v. Cash, LLC, 300 Ga. App. 488, 491 (685 SE2d 433) (2009) (citations and punctuation omitted).

2. Remaining arguments.

In light of our holding above, we do not reach the appellants’ remaining arguments.

Judgment reversed.

Andrews, P. J., concurs. Ray, J., concurs in judgment only.


author: ELLINGTON, Presiding Judge.

text:
    A14A1625.
    DAVIS et al. v. OSINUGA et al.
    (767 SE2d 37)
   ELLINGTON, Presiding Judge.

Diane Eldredge Davis and Jesse Randolph Eldredge (collectively, “the Eldredges”), as the survivors of their father, Jesse Belton Eldredge, brought this medical malpractice wrongful death action in the State Court of DeKalb County against Oladayo Osinuga, M.D., and against his employer, East Point Primary Care Center, P.C. (collectively “Dr. Osinuga”). When the trial court called the case for trial, the Eldredges applied for a continuance on the basis that, as of the preceding business day, they were unable to present the testimony of their only expert witness. After a hearing, the trial court denied the Eldredges’ application for a continuance. Because the Eldredges were unable to move forward with their case without expert testimony, the trial court also dismissed the Eldredges’ action for want of prosecution. The Eldredges appeal, contending, inter alia, that the trial court abused its discretion in denying their application for a continuance.

Amotion for continuance of a trial is properly addressed to the sound legal discretion of a trial judged] who is in control of the management of the case in court. The exercise of that discretion will not be disturbed by the appellate courts unless the discretion is manifestly abused.

(Citations and punctuation omitted.) In re Estate of Jackson, 241 Ga. App. 392, 393-394 (1) (526 SE2d 884) (1999).

The record shows the following material facts. The Eldredges’ action concerned Dr. Osinuga’s treatment of their father in April 2007. They filed their action in April 2009, together with an affidavit executed by Kelly Thrasher, M.D., as required by OCGA § 9-11-9.1. In January 2013, after Dr. Thrasher was arrested on felony and misdemeanor charges, the Georgia Composite Medical Board suspended his license to practice medicine.

In April 2013, Dr. Osinuga, through his counsel, inquired whether the Eldredges still planned to call Dr. Thrasher as an expert witness at trial. He advised them that he intended to oppose any attempt to continue the case because of Dr. Thrasher’s legal problems.

The trial court issued jury trial calendars that included the Eldredges’ case in September 2011, July 2012, and October 2013, but the case was either continued or not reached each time. On January 1, 2014, the trial court issued a notice that the case was on a jury trial calendar for the week of February 10, 2014. On January 14, Dr. Thrasher was arrested for practicing medicine without a license. On February 7, the business daybefore trial was to begin in the Eldredges’ case, the Superior Court of Fulton County modified the conditions of Dr. Thrasher’s bail, specifying that he could not give his medical opinion on any matter, including testifying in any legal proceedings. This condition prevented the Eldredges from calling Dr. Thrasher as an expert witness at trial. On February 10, the day trial was to begin, the Eldredges applied for a continuance.

At the hearing on the Eldredges’ request for a continuance, their counsel conceded that they could not prove their case without expert opinion testimony and that, with Dr. Thrasher’s criminal charges unresolved, they could not state that they expected to be able to procure Dr. Thrasher’s testimony at the next term of court. The trial court observed that the Eldredges had been aware of Dr. Thrasher’s legal issues and “tenuous personal situation” at least since January 2013 and had been aware of Dr. Osinuga’s opposition to continuing the trial at least since April 2013, yet they failed to bring another expert into the case and failed to preserve Dr. Thrasher’s testimony with an evidentiary deposition. The trial court determined that, under the circumstances, a continuance was not appropriate and denied their application.

1. The Eldredges contend that the trial court’s ruling was not based on an “applicable reason” and that the trial court therefore abused its discretion in denying their application. This argument lacks merit.

Under Georgia law, an application for a continuance based upon the absence of a witness shall set forth eight different requirements, including that “the applicant expects he will be able to procure the testimony of the witness at the next term of the court[.]” OCGA § 9-10-160 (6). This statute applies to expert witnesses as well as to fact witnesses. Carter v. Murphey, 241 Ga. App. 340, 342-344 (1) (526 SE2d 149) (1999). “Where any one of [OCGA § 9-10-160’s] requirements is not met, there is no abuse of the trial court’s discretion to deny a continuance.” (Citation omitted.) Tucker v. Signature Flight Support-Savannah, Inc., 219 Ga. App. 834, 835 (466 SE2d 694) (1996). Given that the Eldredges could not represent to the trial court that they could have Dr. Thrasher available to testify at the next term of court, the record shows that the Eldredges failed to meet the requirements of OCGA § 9-10-160.

Even if this were not enough to j ustify denying the application for a continuance, the Civil Practice Code provides that “[a] party making an application for a continuance must show that he has used due diligence.” OCGA § 9-10-166. The evidence authorized the trial court to find that the Eldredges had not been diligent in securing the attendance, or preserving the testimony, of a material witness whose availability was uncertain.

Based on the foregoing, the trial court did not abuse its discretion in denying the Eldredges’ application for a continuance.

2. The Eldredges enumerated two other claims of error but failed to support those claims with citation to the record, citation of authority, or legal argument. Accordingly, these claims present no basis for reversal. See Court of Appeals Rule 25 (c) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”); Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (legal argument requires the application of the appropriate law to the relevant facts).

Decided December 8, 2014.

Joseph H. King, Jr., for appellants.

Huff, Powell & Bailey, Daniel J. Huff, The Jarman Firm, Camille N. Jarman, for appellees.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

       OCGA § 9-10-167 (a) provides: “All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.”

       See also Simmons v. Simmons, 265 Ga. 183, 184 (453 SE2d 696) (1995) (The exercise of a trial court’s discretion in considering an application for a continuance “will not be disturbed by the appellate courts unless the discretion is manifestly abused.”) (citation omitted); Gen. Motors Corp. v. Blake, 237 Ga. App. 426, 427 (1) (515 SE2d 166) (1999) (In reviewing the denial of an application for a continuance, an appellate court, “which is far removed from the unfolding development in the life of a case in court and does not participate in its ongoing journey, is ... hound to respect the exercise of the trial court’s discretion and reverse [the ruling] only if [the trial court’s discretion] is manifestly abused.”) (citation and punctuation omitted).

       In any action for damages alleging professional malpractice against [specified professionals, including physicians and professional corporations alleged to he liable based upon the actions of a physician,]... [t]he plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.
      OCGA §9-11-9.1 (a).

       In full, that Code section provides:
      All applications for continuances upon the ground of the absence of a witness

        shall show to the court:
      (1) That the witness is absent;
      (2) That he has been subpoenaed;
      (3) That he does not reside outside of the state;
      (4) That his testimony is material;
      (5) That the witness is not absent by the permission, directly or indirectly, of the applicant;
      (6) That the applicant expects he will be able to procure the testimony of the witness at the next term of the court;
      (7) That the application is not made for the purpose of delay but to enable the party to procure the testimony of the absent witness; and
      (8) The facts expected to be proved by the absent witness.
      OCGA § 9-10-160.

       See Tucker v. Signature Flight Support-Savannah, 219 Ga. App. at 835 (The trial court did not abuse its discretion in denying a motion for a continuance where, inter alia, the appellants conceded that they could not meet the requirements of OCGA § 9-10-160.).

       See In re Estate of Jackson, 241 Ga. App. at 393-394 (1) (The trial court did not abuse its discretion in denying a party’s motion for a continuance so that he could attend a scheduled hearing after his release from prison, where there was no showing that he would, in fact, be released from prison on the anticipated release date and where the petition to remove the party as the administrator of the subject estate had been pending for over a year.); Tucker v. Signature Flight Support-Savannah, 219 Ga. App. at 835 (The trial court did not abuse its discretion in denying a motion for a continuance where, inter alia, the case had been pending for over two years and had previously been continued several times and where the appellants chose not to preserve a witness’s testimony through an evidentiary deposition before trial even though they knew that the witness’s ability to attend the trial was “questionable.”).


text:
    A14A1697.
    KOULES v. SP5 ATLANTIC RETAIL VENTURES, LLC.
    (767 SE2d 40)
   ELLINGTON, Presiding Judge.

SP5 Atlantic Retail Ventures (“SP5”) filed this action in the Superior Court of Fulton County against its tenant, The Dolce Group Atlanta, LLC (“Dolce”), and three guarantors, including Shereen Arazm Koules, for rent and other charges associated with two commercial leases. After Dolce defaulted, SP5 filed a motion for summary judgment against Koules and the other guarantors. After a hearing, the trial court granted SP5’s motion as to Koules. Koules appeals, contending that the trial court abused its discretion in excluding certain evidence from its consideration and erred in granting the motion for summary judgment. For the reasons explained below, we reverse in part, vacate in part, and remand.

The record shows the following undisputed facts. In two leases executed in 2005, Dolce leased space from SP5’s predecessor-in-interest, Atlantic Town Center, LLC (“ATC”), to operate a total of three restaurants in the Atlantic Station development in Atlanta. ATC assigned all its rights, title, and interest in the two subject leases to SP5 in 2010.

The restaurants, which opened in 2007, did not generate the expected revenue, and Dolce did not make all payments due under the two leases as executed in writing. In April 2011, SP5 and Dolce terminated one of the leases by agreement. In October 2011, SP5 filed this action, seeking over $5 million in rent (plus other charges, interest, and attorney fees) allegedly due according to the terms of the two written leases. In SP5’s motion for summary judgment against Koules, SP5 claimed that over $8 million in rent (plus other charges, interest, and attorney fees) was then due under the two leases.

Koules conceded that she personally guaranteed Dolce’s leases with ATC in 2005. In answering the complaint and in opposing SP5’s motion for summary judgment, however, she asserted that the parties orally agreed to modify the lease terms in August 2007, September 2008, and January 2011, and that Dolce had in fact paid as agreed, at least in part. As evidence of these alleged modifications, she identified a number of documents, including billing and payments records, series of e-mails among agents of ATC or SP5 and Dolce, and series of internal e-mails among agents of ATC and SP5. SP5 had produced these documents in response to Koules’ request for the production of documents.

Two months before the hearing on SP5’s motion for summary judgment, Koules served a request that SP5 admit that the documents were authentic. SP5 denied that the documents were authentic and stated “by way of further clarification” that “the term ‘authentic’ is vague and ambiguous” and that the documents “speak for themselves.” Koules moved the trial court to determine the sufficiency of this response and to deem the requests admitted. Koules attached these documents as exhibits to her brief in opposition to SP5’s motionfor summary judgment, filed June 21,2013. In addition, she filed an affidavit executed by her attorney; the documents were identified as exhibits to his affidavit.

SP5 did not move to strike the exhibits before the hearing on its motion. Two weeks before the hearing on SP5’s motion for summary judgment, the trial court denied Koules’ motion regarding her request for admissions that the documents were authentic, finding that “the term ‘authentic’ could be ambiguous, especially when referencing e-mails and other documents not easily subject to the traditional classification of ‘authentic.’ ” At the summary judgment hearing, when Koules attempted to rely on the documents to support her defenses of waiver and mutual departure, SP5 objected on the grounds that the documents had not been authenticated. The trial court stated that the documents had not been authenticated and made a part of the record before the hearing and, for that reason, they were not properly before the court and that it would not consider them in ruling on SP5’s summary judgment motion. The trial court stated that, unless the documents were self-authenticating, Koules had to depose witnesses or call witnesses at the hearing to authenticate the documents. Koules’ counsel asked the trial court to consider evidence in the record that could be deemed sufficient to authenticate the documents, such as the fact that SP5 had produced the documents in response to Koules’ discovery requests, but the trial court dismissed that possibility, insisting that Koules should have deposed a witness.

In the introductory paragraph in the order granting SP5’s motion for summary judgment, the trial court ruled that the motion was granted “as to liability only as to ... Koules.” The trial court provided detailed analysis for its ruling that “Koules is obligated under her Guaranty to pay the obligation of . . . Dolce.” In the concluding paragraph, the trial court ruled that there is an issue of material fact as to the amount of damages owed to SP5 and reserved that issue until a jury trial. The court repeated that summary judgment was granted “as to . . . Koules as to liability only.”

1. SP5 contends, based on the limiting language that the trial court granted summary judgment as to Koules “as to liability only,” that “it is obvious that any error” in excluding the documents at issue “was harmless, since [Koules] was successful in preventing summary judgment as to damages.” SP5 contends that Koules’ right “to present evidence as to her waiver and mutual departure defenses [is] preserved for trial.” The trial court’s order, read in its entirety, however, expressly sets out several other rulings with the effect that the amount of Koules’ liability for damages will be determined under the terms of the leases as formally executed in writing. The trial court ruled that “[t]he obligation to pay rent is clear under the Leases,” citing to the written terms of the leases, and “Dolce did not pay as required.” In addition, with regard to other amounts SP5 claims are due, the court ruled that

[t]he Leases and Georgia Law are clear as to the accrual of interest on past due rent. . . . The Leases are clear as to the obligation to pay late charges if rent is not paid in a timely manner. . . . [And,] [t]he Leases and Guaranty also provide for payment of [attorney] fees in the event of default. . . .

In explaining each ruling, the trial court cited to the terms of the leases as written. A key component of Koules’ defenses of waiver and mutual departure, however, is that Dolce’s liability, and therefore her derivative liability as a guarantor, should not be determined under the terms of the leases as executed in writing. She contends moreover that Dolce did pay as required by the parties’ oral agreements. The trial court’s express rulings cannot be reconciled with SP5’s contention that Koules retains the right to offer evidence at trial to show that SP5 waived its right to enforce the leases as written and/or that the parties mutually departed from the terms of the formal leases. Accordingly, we cannot accept SP5’s invitation to dismiss any error in the trial court’s evidentiary ruling as harmless.

2. Koules contends that, by declining to consider circumstantial evidence that the documents at issue are authentic, the trial court abused its discretion and applied the wrong legal standard in ruling on the admissibility of the documents. “Admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally” (Punctuation and footnote omitted.) Capital City Developers v. Bank of North Ga., 316 Ga. App. 624, 625-626 (1) (730 SE2d 99) (2012). “A trial court’s decision regarding the admission or exclusion of evidence is reviewed for an abuse of discretion.” (Citation omitted.) Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 807 (1) (b) (689 SE2d 843) (2009).

A proper application of the abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach, and that there will often be occasions in which we will affirm the evidentiary ruling of a trial court even though we would have gone the other way had it been our call. That said, while the abuse-of-discretion standard presupposes a range of possible conclusions that can be reached by a trial court with regard to a particular evidentiary issue, it does not permit a clear error of judgment or the application of the wrong legal standard.

(Punctuation and footnotes omitted.) Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014).

Georgia’s Evidence Code provides: “The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” OCGA § 24-9-901 (a). Under longstanding Georgia law, “[t]he process known as authentication of writings is the means by which a writing is shown to be in fact what it purports to be in order to introduce it in evidence.” (Citation and punctuation omitted.) Consolidated Freightways Corp. v. Syncroflo, Inc., 164 Ga. App. 275, 277 (1) (294 SE2d 643) (1982). “Authentic” does not mean that the document is a legally valid or enforceable instrument; authenticity is merely a matter of “identification, or showing that this writing is the one in question.” (Citation and punctuation omitted.) Id.

The Evidence Code recognizes a wide variety of means by which a party may authenticate a writing; the use of circumstantial evidence is one of these methods. OCGA § 24-9-901 (b) (listing “[b]y way of illustration only, and not by way of limitation,” ten means of authentication or identification conforming with the requirements of the section). Production of a document by a party during discovery, along with other circumstantial evidence, is evidence of authenticity, particularly when the party who produced the document never claims it is not authentic or genuine. Gulfstream Aerospace Svcs. Corp. v. United States Aviation Underwriters, 280 Ga. App. 747, 760 (2) (b) (635 SE2d 38) (2006); Salinas v. Skelton, 249 Ga. App. 217, 220-221 (1) (547 SE2d 289) (2001); Davis v. First Healthcare Corp., 234 Ga. App. 744, 747 (1) (507 SE2d 563) (1998). The appearance and content of a document may also be circumstantial evidence of authenticity. OCGA § 24-9-901 (b) (4) (“[ajppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances”); Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 8 (679 SE2d 57) (2009) (accord); Davis v. First Healthcare Corp., 234 Ga. App. at 747 (1) (accord).

By way of illustration, Exhibit 3 to Koules’ brief in opposition to SP5’s motion for summary judgment purports to be a printout of an e-mail dated April 21, 2011, from Tom Miles, “Vice President/General Manager — Atlantic Station, Town Center at Atlantic Station,” to Stephanie McCaster, regarding “Dolce,” which includes a statement that “we” should invoice Dolce for 10 percent rent from the first of the year, the rate being “the agreement with Lonnie [Moore], one of [Dolce’s] partners.” Under the applicable law discussed above, therefore, the question of whether Exhibit 3 is “authentic” is simply whether it is what it purports to be, that is, a printout of an e-mail dated April 21, 2011, from Tom Miles to Stephanie McCaster, with the content shown. We conclude that the trial court failed to exercise its discretion in ruling on the admissibility of Exhibit 3 because the record shows that the court failed to consider the wide variety of means by which Koules could authenticate the writing. Specifically, the trial court refused to consider circumstantial evidence of its authenticity, as urged by Koules’ counsel, such as the appearance, contents, and substance of the document, which included Tom Miles’ professional contact information and discussions of nonpublic details relating to Dolce’s and other tenants’ leases, and the fact that SP5 produced the document in response to Koules’ discovery requests. This is not to say that a printout of an e-mail is self-authenticating under Georgia law, only that the trial court should have considered the contents, appearance, and substance of each document to determine whether a reasonable juror could find the document was authentic under the applicable standard. Salinas v. Skelton, 249 Ga. App. at 221 (1). The same analysis applies to the other documents at issue. Accordingly, the trial court’s evidentiary ruling is reversed.

Decided December 8, 2014.

Schreeder, Wheeler & Flint, John A Christy, Adam L. Hoip-kemier, for appellant.

Wiles & Wiles, John J. Wiles, N. Jackson Cotney, Jr., for appellee.

3. Koules contends that the trial court erred by overruling her waiver and mutual departure defenses and entering summary judgment on liability against her. Because the trial court failed to exercise its discretion under the applicable standard in ruling on the admissibility of documents, see Division 2, supra, the proceedings in the trial court did not delineate the body of evidence that was properly before the trial court in ruling on SP5’s motion for summary judgment. Because some or all of the documents which the trial court excluded may have been admissible, we cannot determine on de novo review whether Koules carried her burden of coming forward with rebuttal evidence. See Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). Accordingly, the trial court’s order granting SP5’s motion for summary judgment is vacated, and this case is remanded for further proceedings consistent with this opinion.

Judgment reversed in part and vacated in part, and case remanded.

Phipps, C. J., and McMillian, J., concur.

       See Koules v. The Dolce Group Atlanta, 326 Ga. App. 637 (757 SE2d 233) (2014). In the previous appearance of this case before this Court, we determined that the trial court erred in not permitting Koules to participate in the evidentiary hearing on damages before entering default judgment against Dolce in favor of SP5. Id. at 640.

       In a separate order, the trial court granted SP5’s motion for summary judgment as to the other two guarantors, Lonnie Moore and Michael Malin, who failed to respond to the motion. Such ruling is not at issue in this appeal.

       See Hardaway Co. v. Amwest Sun Ins. Co., 263 Ga. 698, 700 (436 SE2d 642) (1993) (“Generally, a surety or guarantor may assert all defenses to a contract which would he available to his principal, with the exception of personal defenses, e.g., infancy, incapacity, bankruptcy, etc”) (citation and punctuation omitted); OCGA § 10-7-2 (“The obligation of the surety is accessory to that of his principal; and, if the latter from any cause becomes extinct, the former shall cease of course, even though it is in judgment. If, however, the original contract of the principal was invalid from a disability to contract and this disability was known to the surety, he shall still be bound.”).

       See OCGA § 13-4-4 (“Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will he suspended by the departure until such notice.”); B-Lee’s Sales Co. v. Shelton, 141 Ga. App. 870, 872 (1) (234 SE2d 702) (1977) (Even where an attempt to modify a written lease agreement does not satisfy the Statute of Frauds, where “a modification of the written contract has been agreed to by all parties, performed by one and accepted by the other, there is a waiver of the provisions of the original contract as to rental amount”) (citations omitted).

       We note that the hearing on SP5’s motion took place in August 2013, after the effective date of Georgia’s new Evidence Code, which applies to any motion, hearing or trial commenced on or after January 1, 2013. Ga. L. 2011, p. 99, §§ 2, 101.

       The law was substantially similar before the effective date of the new Evidence Code. See Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 8 (679 SE2d 57) (2009) (“[0]ur rules of evidence provide a wide variety of means by which a party may authenticate a writing. The use of circumstantial evidence is one of these methods. And the content and appearance of a document are two circumstances considered when our courts analyze whether there is sufficient circumstantial evidence of authentication.”) (punctuation and footnotes omitted); Davis v. First Healthcare Corp., 234 Ga. App. 744, 746 (1) (507 SE2d 563) (1998) (accord).

       As one commentator has explained, there are no special rules under Georgia law governing the authentication of electronic documents or communications. Electronic records and e-mails are to be treated the same as ordinary writings for purposes of authentication and admission. As with all authentication issues, the trial court should admit the evidence if a reasonable jury could find that the evidence is what it is claimed to be----Every form of electronic communication can be “spoofed,” “hacked,” or “forged.” But this does not and can not mean that courts should reject any and all such communications. Indeed, the vast majority of these communications are just as they appear to be — quite authentic. The goal is to supply sufficient, nonhearsay evidence as to the identity of the source such that a reasonable factfinder could conclude that the evidence is what it is claimed to be.
      (Footnotes omitted.) Paul S. Milich, Ga. Rules of Evidence, § 7:6 (database updated September 2014).

       We note that SP5, in its appellate brief, does not contend that the trial court properly exercised its discretion in ruling on the admissibility of the documents at issue, only that any error was harmless. See Division 1, supra.

       See OCGA § 24-9-902 (specifying types of documents for which extrinsic evidence of authenticity shall not be required as a condition precedent to admissibility).

       On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. In order to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. However, if the respondent successfully produces such rebuttal evidence in the form of an affirmative defense, the burden shifts back to the movant to establish the non-existence of a genuine issue of fact as to each affirmative defense. Furthermore, the movant’s papers are carefully scrutinized and all doubts are resolved against [it], while the respondent’s papers are treated with considerable indulgence.
      (Citations and punctuation omitted.) Gentile v. Bower, 222 Ga. App. at 736-737.


author: ANDREWS, Presiding Judge.

text:
    A14A1429.
    WPD CENTER, LLC et al. v. WATERSHED, INC. et al.
    (765 SE2d 531)
   ANDREWS, Presiding Judge.

Watershed, Inc. entered into a commercial lease agreement with WPD Center, LLC, to operate a restaurant on premises owned by WPD. Watershed sued WPD for breach of the lease, and WPD answered and counterclaimed asserting that Watershed breached the lease. WPD appeals from the trial court’s order granting partial summary judgment in favor of Watershed and denying WPD’s motion for summary judgment.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991); OCGA § 9-11-56. The moving party on summary judgment may carry this burden by affirmatively presenting evidence which negates an essential element of the nonmoving party’s claim, or by demonstrating the absence of evidence to support an essential element of the nonmoving party’s claim. Lau’s Corp., 261 Ga. at 491. Applying these principles to WPD’s claims, we affirm in part and reverse in part.

1. WPD claims that the trial court erred by denying its motion for summary judgment on all ten counts of Watershed’s complaint on the basis of defenses asserting that Watershed’s suit for breach of the lease was barred by the doctrine of res judicata, or, in the alternative, by an agreement between the parties.

(a) It is undisputed that, prior to the present suit (filed in Fulton County Superior Court), WPD filed a dispossessory proceeding against Watershed in the Magistrate Court of DeKalb County; that Watershed filed counterclaims against WPD in the dispossessory seeking damages in excess of the $15,000 jurisdictional limit of the magistrate court; and that, when the dispossessory was dismissed, the counterclaims were dismissed with prejudice.

The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Before res judicata applies, three prerequisites must be satisfied — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.

Setlock v. Setlock, 286 Ga. 384, 385 (688 SE2d 346) (2010). For purposes of res judicata, a voluntary dismissal with prejudice operates as an adjudication on the merits. Fowler v. Vineyard, 261 Ga. 454, 456 (405 SE2d 678) (1991). Watershed concedes that, based on the counterclaims it filed in the prior dispossessory action, there is identity of the cause of action and the parties with respect to its present claims against WPD, and that the only issue is whether adjudication on the merits occurred in a court of competent jurisdiction.

Each magistrate court and each magistrate thereof shall have jurisdiction and power over . . . [t]he trial of civil claims ... in which exclusive jurisdiction is not vested in the superior court and the amount demanded or the value of the property claimed does not exceed $15,000.00 . . . [and] [t]he . . . issuance of writs and judgments in dispossessory proceedings.

OCGA § 15-10-2 (5), (6); Setlock, 286 Ga. at 385. “[Although the magistrate court had jurisdiction over [WPD’s] dispossessory action, it did not have jurisdiction to render a binding judgment on [Watershed’s] counterclaims... which sought money damages that exceeded the $15,000 jurisdictional limit of the magistrate court.” Setlock, 286 Ga. at 385. Because the magistrate court was not a court of competent jurisdiction to resolve those claims on the merits, the trial court correctly ruled that the doctrine of res judicata did not bar Watershed from reasserting the same claims in the present suit, and correctly denied WPD’s motion for summary judgment on this ground. Id. at 386; OCGA § 9-11-56.

(b) The trial court also rejected WPD’s claim that there was an agreement between the parties in conjunction with dismissal of the dispossessory action that resolved the dispute and barred Watershed’s present claims. The record shows that the parties signed a letter agreement recognizing that the dispossessory action and the counterclaims in the magistrate court were being dismissed, and further stating that “[t]he parties hereby further agree that all obligations owed and to be owed by any party under the lease are hereby reaffirmed.” The trial court found the plain meaning of the letter (which contained no waiver or release language) was that the parties were reaffirming the enforceability of the lease, and that there was no settlement of the present claims based on the lease. In fact, WPD conceded in the trial court that the letter was an agreement between the parties “to reaffirm their obligations under the Lease.” Although the trial court ultimately based its ruling on other grounds, under the right for any reason rule, we affirm the trial court’s denial of WPD’s motion for summary judgment on this claim. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002); OCGA § 9-11-56.

(c) WPD also contends that it was entitled to summary judgment because the record shows that, when the parties dismissed the dispossessory action and counterclaims, the parties filed a “Joint Stipulation of Dismissal” in the magistrate court. Because this claim was not asserted by WPD in the trial court as a basis for summary judgment, and was not ruled on by the trial court, it presents nothing for appellate review. Calhoun GA NG, LLC v. Century Bank of Ga., 320 Ga. App. 472, 477 (740 SE2d 210) (2013).

2. WPD claims that the trial court erred by granting summary judgment in favor of Watershed on its claim that WPD breached the lease agreement by refusing to consent to a sublease of the premises requested by Watershed.

The lease contains a provision that states: “It is agreed that [Watershed] may have the right to sub-lease the premises in part or in its entirety provided [WPD] is given prior written notice and [Watershed] receives [WPD’s] approval (which will not unreasonably be withheld and shall be subject to the criteria set forth in Paragraph 15.02).” Paragraph 15.02 of the lease sets forth criteria for WPD to consider when evaluating whether or not to approve a proposed sublease, including the type of business the subtenant proposes to operate, its reputation and expertise, and adequate assurance of the subtenant’s financial condition, stability, and ability to pay the rent.

[A] lease clause providing that a lessor cannot unreasonably withhold consent to assign the lease is a covenant upon the landlord. . . . [U]nder such a clause, the term “reasonable” cannot comprehend arbitrary or capricious reasons, or merely personal preferences [ — ] the term refers to considerations of fairness and commercial reasonableness. Although the question of reasonableness and unreasonableness is most often a jury issue, in plain and palpable cases the determination may be made by the court.

Pakwood Indus. v. John Galt Assoc., 219 Ga. App. 527, 529 (466 SE2d 226) (1995) (citations and punctuation omitted); Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586, 592-597 (337 SE2d 29) (1985). Where a lease contains a clause requiring that such consent not be unreasonably withheld, a withholding of consent, which fails the test of fairness and commercial reasonableness, constitutes a breach of the lease. Id. at 596.

We find that the facts in this case present a jury issue as to whether or not WPD unreasonably withheld consent to the proposed sublease. The record shows WPD found that the proposed subtenant was financially capable and otherwise acceptable as a subtenant. But we find the record does not support the trial court’s conclusion that WPD simply rejected the proposed subtenant (despite being acceptable under the criteria set forth in paragraph 15.02 of the lease) and that WPD acted unreasonably as a matter of law. The record contains evidence which could support a finding by a jury that, during negotiations with WPD, the proposed subtenant conditioned its willingness to sublease for Watershed’s remaining term on WPD’s willingness to extend the lease term or agree to a new lease term. Under these circumstances, whether or not WPD acted unreasonably in breach of the lease was a jury issue.

Moreover, there is no evidence in the record that Watershed provided WPD with written notice of the proposed subtenant in accordance with the formal notice provisions of the lease, although there is evidence Watershed provided informal written notice, and that WPD met with the proposed subtenant. The lease contained a provision requiring that Watershed give written notice to WPD of a claimed breach in order to give WPD 30 days to perform before being deemed in default of the lease. There is no evidence that Watershed complied with this notice provision with respect to its claim that WPD breached the lease by unreasonably withholding consent to the proposed sublease. The trial court ruled, as a matter of law, that WPD waived these notice provisions by its actions. But the lease also provided that “no waiver by [WPD] of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by [WPD],” and there is no evidence that WPD made a written waiver. Although a contractual provision against waiver may itself be waived by conduct of the parties, we find the trial court erred by ruling as a matter of law that WPD waived the provisions regarding notice. See Smith v. Gen. Finance Corp. of Ga., 243 Ga. 500, 501 (255 SE2d 14) (1979); Radha Krishna, Inc. v. Desai, 301 Ga. App. 638, 641 (689 SE2d 78) (2009). Whether under the circumstances WPD waived the notice provisions and the provision against waiver is a jury issue. Id. Accordingly, the trial court erred by granting summary judgment in favor of Watershed on its claim that WPD breached the lease agreement by refusing to consent to the sublease. OCGA § 9-11-56.

3. The trial court correctly granted summary judgment in favor of Watershed on WPD’s counterclaim for past due rent under the lease. OCGA § 9-11-56.

The trial court ruled that, because WPD accepted Watershed’s surrender of the premises, rent obligations under the lease terminated in May 2012.

A surrender of a lease by operation of law may arise from any condition of facts voluntarily assumed by the parties and incompatible with the continued existence of the relation of landlord and tenant between them. Where a landlord exercises a control over the premises inconsistent with the tenant’s right of occupation, he thereby discharges the tenant from liability for future rent, and a cancellation or rescission of the contract is thus effected by agreement of the parties, express or implied.

Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104, 111 (676 SE2d 728) (2009) (citations and punctuation omitted). The record shows that in May 2012 WPD sent Watershed a written demand for possession of the premises; that Watershed complied with the demand by surrendering possession of the premises to WPD and returning the key; and that WPD took possession and changed the locks. WPD’s agent, Beak, testified that WPD understood this to be a surrender of the premises. Under these circumstances, the trial court correctly found as a matter of law that WPD accepted surrender of the premises and discharged Watershed from liability for future rent.

4. WPD contends that the trial court erred by granting summary judgment in favor of Watershed on its claims for attorney fees under the lease.

The lease provides:

In the event [WPD] or [Watershed] shall be in default in the performance of any of its obligations under this Lease, and an action shall be brought for the enforcement thereof in which it shall be finally and no further appeal determined that [WPD] or [Watershed] was in default, the party in default shall pay to the other party all attorney’s fees and litigation expenses incurred or paid by it in connection therewith.

The trial court awarded attorney fees pursuant to this provision to Watershed on its claim that WPD defaulted under the lease by unreasonably withholding consent to the proposed sublease. See Division 2, supra. Because we reversed the trial court’s grant of summary judgment in favor of Watershed on this claim, the trial court’s award of attorney fees on this claim is also reversed.

Decided November 21, 2014

Reconsideration denied December 10, 2014.

Steven Rosen, Parker, Hudson, Rainer & Dobbs, Eric J. Taylor, Peter F. Busscher, for appellants.

Bloom Sugarman Everett, Simon H. Bloom, Stephanie A. Everett, for appellees.

The trial court also awarded Watershed attorney fees pursuant to the lease provision on the basis that Watershed was granted summary judgment on WPD’s counterclaim for unpaid rent. The above-cited lease provision awards attorney fees to the party who successfully brings an action establishing that the other party was in default under the lease. The provision does not award attorney fees to a party for successfully defending against the other party’s default claim. The trial court’s award of attorney fees to Watershed for successfully defending against WPD’s counterclaim is reversed.

Judgment affirmed in part and reversed in part.

McFadden and Ray, JJ., concur.

       Additional plaintiffs in the suit were Susan B. Owens and Emily Sailers, who personally guaranteed the lease. The plaintiffs (appellees) are collectively referred to as Watershed. In addition to WPD, the suit named as defendant James B. Beak, WPD’s agent and property manager. The defendants (appellants) are collectively referred to as WPD.


author: MCMILLIAN, Judge.

text:
    A14A1444.
    IN RE ESTATE OF WERTZER.
    (765 SE2d 425)
   MCMILLIAN, Judge.

The parties to this appeal, Grace Wertzer (“mother”) and Saul Wertzer (“father”), are the biological parents of Sierra Leigh Wertzer, an incapacitated adult. The primary issue in this appeal is whether the probate court had the authority to enter an order establishing a visitation schedule with the father, over the objection of the mother, who had been appointed Sierra’s guardian and conservator. We now hold that the probate court does have such authority.

The record and hearing transcripts show that the mother and father were divorced in 2004. Pursuant to the terms of the parties’ settlement agreement, the mother was granted sole legal and physical custody of Sierra. The father was granted limited visitation with Sierra, which was supervised for the first year following the divorce. This plan apparently remained unchanged until the present proceedings were instituted.

In April 2013, the father filed a petition to modify visitation in the superior court. In response, the mother moved to suspend the father’s visitation and for attorney fees. In May 2013, the mother filed a Petition for Appointment of a Guardian and/or Conservator in the Cobb County Probate Court in anticipation of Sierra’s 18th birthday. The father subsequently moved to intervene and for additional relief, seeking to continue and extend the visitation he had been granted in the divorce proceedings to include overnight visits and a week-long visitation period in the summer. Additionally, the father requested that the mother notify him of any changes to Sierra’s medical condition, maintenance medications, physicians, and residential status. Alternatively, the father sought to be appointed co-guardian along with the mother.

On July 29, 2013, the probate court granted the father’s request to intervene in the guardianship proceedings, but reserved ruling on the other relief requested in his motion. Two days later, the probate court granted the mother’s petition for guardianship/conservatorship, but once again reserved ruling on the other relief requested in the father’s motion to intervene. Subsequently, the mother filed a petition in the probate court to dismiss the father’s request for visitation, contending that the probate court lacked authority to “force” Sierra to visit with her father.

The probate court denied the mother’s motion to dismiss the father’s petition on October 30, 2013. Sierra turned 18 on November 20,2013, and on December 3,2013, the probate court issued letters of guardianship and conservatorship to the mother pursuant to its earlier order granting the petition for guardianship.

Following a multi-day hearing which commenced on December 9, 2013, the probate court issued an order granting the father supervised visitation with Sierra during the third weekend of each month. The probate court slightly extended the hours of the Saturday visits, but denied the father’s request for overnight visitation and for an extended visitation period during the summer. The probate court noted that the mother and her counsel did not appear to have any objections to the father being informed of changes to Sierra’s medical condition, medications, or residence, and additionally ordered, consistent with the parties’ prior divorce settlement agreement, that the parents confer with each other on all important matters pertaining to Sierra’s health, welfare, and education, and that each parent notify the other in the event they become aware that Sierra is suffering from any serious illness. Further, the mother was required to allow the father access to Sierra’s medical information and to all information regarding Sierra’s education.

The mother appeals, arguing that: (1) the probate court exceeded its authority by “imposing” a “required” visitation schedule on an adult ward; (2) the probate court’s order improperly impedes her duties as a guardian; (3) the probate court erred by finding that the visitation was in Sierra’s best interest; and (4) the probate court erred by requiring her to communicate on a regular basis with the father and to confer with him regarding all important matters related to Sierra.

1. We first address the probate court’s authority to enter the visitation order, which requires an examination of the jurisdiction of the probate court and the rights and obligations of the guardian and ward. Pursuant to OCGA § 15-9-30 (a), and unless otherwise provided by law, probate courts have the authority to exercise original, exclusive, and general jurisdiction over

(5) The appointment and removal of . . . guardians of incapacitated adults, and conservators of incapacitated adults and persons who are incompetent because of mental illness or mental retardation;
(6) All controversies as to the right of guardianship ...; [and. . .]
(10) All other matters and things as appertain or relate... to persons who are incompetent because of mental illness or mental retardation[.]

OCGA § 15-9-30 (a) (5), (6), (10). Gnann v. Woodall, 270 Ga. 516, 517 (511 SE2d 188) (1999). Additionally, OCGA § 29-4-13 (a) provides that the order granting or denying the guardianship “shall specify,” among other things, “(2) Any powers retained by the ward...; (3) The limitations on the guardianship;... [and] (7) Such other and further provisions of the guardianship as the court shall determine to he in the best interest of the ward, stating the reasons therefor.” (Emphasis supplied.)

OCGA § 29-4-22, in turn, governs the obligations and decision-making authority of the guardian. Under subsection (a), “fefxcept as otherwise provided by law or by the court,” a guardian has the right to make decisions concerning “the ward’s support, care, education, health, and welfare.” In making such decisions, the guardian is required to consider “the expressed desires and personal values of the ward[, and] shall at all times act as a fiduciary in the ward’s best interest and exercise reasonable care, diligence and prudence.” OCGA § 29-4-22 (a). Subsection (b) requires the guardian to arrange for the support, care, education, health, and welfare of the ward, and to make reports to the probate court on a regular basis. OCGA § 29-4-22 (b) (6), (9).

Additional rights and powers are granted to the guardian under OCGA § 29-4-23. Accordingly, “[ufnless inconsistent with the terms of any court order relating to the guardianship, a guardian may” take custody of the ward, give consents or approvals for medical or other professional care, bring or defend legal actions on behalf of the ward, and exercise other powers which are reasonably necessary to provide for the ward. OCGA § 29-4-23 (a). Under subsection (b), the probate court may grant other specific powers to the guardian, such as to establish the ward’s place of dwelling outside the state, bring an action for divorce, or consent to the adoption of the ward.

Adult wards also have certain statutory rights as are set forth in OCGA § 29-4-20. Those rights include the right to a guardian who acts in the ward’s best interest, OCGA § 29-4-20 (a) (1), and the right to “[c]ommunicate freely and privately with persons other than the guardian, except as otherwise ordered by a court of competent jurisdiction[.]” OCGA § 29-4-20 (a) (4).

Moreover, OCGA § 29-4-40 gives the probate court continuing judicial oversight to ensure that the ward’s rights and privileges are protected and gives the court the authority to conduct a judicial inquiry or issue orders either upon the filing of a petition or on its own motion. And OCGA § 29-4-41 allows the court to modify the guardianship “by adjusting the duties or powers of the guardian, as defined in [OCGA §§] 29-4-22 and 29-4-23,” based on a change in capacity of the ward or upon a showing that the modification is in the ward’s best interest. OCGA § 29-4-41 (a), (c).

We glean from these provisions that the legislature intended to grant the guardian broad authority to make decisions and act on the behalf of an incapacitated adult ward. But those powers and rights are not unfettered. Rather, the grant of powers and rights to the guardian is expressly made subject to orders of the probate court. See OCGA §§ 29-4-22 (a) (“[e]xcept as otherwise provided ... by the court...”); 29-4-23 (“unless inconsistent with the terms of any order relating to the guardianship . . .”). Further, the probate court is expressly given the authority to place limitations on the guardianship and to determine “other and further provisions of the guardianship ... in the best interest of the ward____” See OCGA §§ 29-4-13 (a) (3) , (7); 29-4-40; 29-4-41. Accordingly, the grant of authority to the probate court to oversee guardianships is also broad. Heath v. Sims, 242 Ga. App. 691, 693 (1) (531 SE2d 115) (2000) (“with respect to areas in which the probate court has been given exclusive, original subject matter jurisdiction, its authority is broad”).

As recognized in the probate court’s order, the ward also retains certain rights, including the right to “[c]ommunicate freely and privately with persons other than the guardian, except as otherwise ordered by a court of competent jurisdiction[.]” OCGA § 29-4-20 (a) (4) . The mother asserts, however, that “communicate is not synonymous” with “visit” and argues that if the legislature had intended to give the ward the right to “visit” with persons other than the guardian it would have so provided, just as it did when it enacted “entire code sections” on visitation plans between noncustodial parents and their children. But we are not persuaded by this “in pari materia” argument as it is based on a false premise — that child custody and visitation statutes in Title 19 are related in subject matter to the guardianship statutes in Title 29. See U.S. Bank Nat. Assn. v. Gordon, 289 Ga. 12, 15 (4) (709 SE2d 258) (2011) (“[i]n particular, statutes ‘in pari materia,’ i.e., statutes relating to the same subject matter, must be construed together”) (citation and punctuation omitted). Nor are we persuaded that the guardian has the sole right to make decisions about who visits with the ward, or that the probate court has no authority to enter an order to protect the ward’s right to visit with persons other than the guardian if the court deems such visitation to be in the ward’s best interest.

Moreover, this Court has previously considered whether the court could order visitation over the objection of a guardian. In Mitchum v. Manning, 304 Ga. App. 842, 843 (698 SE2d 360) (2010), the mother/guardian opposed the father’s request for visitation with his adult incapacitated daughter on the grounds that the ward’s disabilities were caused by the father, who had allegedly abused the mother while she was pregnant. The father was granted visitation, and the mother appealed to this Court. Expressly considering the interplay between the guardian’s authority to exercise powers related to the ward’s health and welfare and the ward’s right to “communicate” with persons other than the guardian, along with our strong public policy of allowing a divorced parent continuing contact with his child, we concluded that the court had not erred by granting the father’s petition for visitation since no medical evidence or direct testimony was presented that the visitation would have a negative impact on the ward. Id. at 843-844.

The mother, however, attempts to distinguish Mitchum by arguing that the visitation in that case, which allowed the father to visit his daughter at a medical facility at unspecified times, was far more limited in scope than the visitation ordered by the court in this case. We disagree. Here, the probate court granted the father supervised visitation for less than 24 hours a month, whereas it appears the father in Mitchum could have visited his daughter every day if that was what he wanted to do. Moreover, the amount or quality of visitation was not a deciding factor in Mitchum, nor do we find it to be here where the key issue is the authority granted to the probate court in this guardianship matter.

Accordingly, we find that the probate court had the authority to establish a set visitation schedule between Sierra and her father in order to protect Sierra’s rights and best interests. Moreover, inasmuch as the mother has set forth a separate enumeration challenging the probate court’s order on evidentiary grounds, we address that issue in Division 3.

2. The mother also argues that the probate court’s order “directly impedes” her statutory duty under OCGA § 29-4-22 (b) (2) to “remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward’s capacities, limitations, needs, opportunities, and physical and mental health.” We fail to see how, and indeed there is nothing but the mother’s argument to suggest, that it “would completely undermine” her ability to perform her duties as guardian if Sierra is allowed to visit with her father over the course of two days for less than twenty-four hours per month. This argument is patently without merit.

3. The mother also argues that the probate court erred by finding that the visitation was in Sierra’s best interest, arguing that its decision was without evidentiary support. The parties agree that we view this evidentiary challenge under the “any evidence” standard. Cruver v. Mitchell, 289 Ga.App. 145, 147 (1) (b) (656 SE2d 269) (2008).

As to this issue, the mother presented evidence that Sierra acted anxious and agitated before and after visits with her father and that at times she had also engaged in self-injurious and sexual behaviors, which the mother believed were indicative of abuse by the father and/or paternal grandparents, who almost always traveled to Georgia for the weekend of the visitations so they could see their granddaughter. The behaviors were more pronounced in 2009, after which they abated for several years, only to re-appear in May 2013, shortly after the father filed his petition for increased visitation. Although several reports were filed with the Department of Family and Children Services (“DFACS”) about Sierra’s inappropriate behaviors and the concerns they raised, the allegations of abuse were apparently never substantiated, and the father testified that he was generally unaware of the DFACS reports or allegations until the hearing in this case. Moreover, it does not appear that the mother filed anything in the superior court to curtail or suspend the father’s visitations rights until after he filed his request for extended visitation in April 2013, and the visitation terms appear to have remained unchanged until the father consented to the short period of supervised visitation immediately before Sierra turned 18 so that his visitation could continue until the probate court had the opportunity to decide the matter. Evidence was also presented that autistic children are subject to unpredictable behaviors and that certain of Sierra’s concerning behaviors were “typical” of autistic children. Moreover, the record supports that a teacher at Sierra’s school may have shown her pornography or engaged in other improper behavior around the time she started acting out in 2009; Sierra had problems with her cochlear implant, seizure disorder, and medications, which may have contributed to the behaviors in 2013; and her behavior improved after she was hospitalized for her seizures and modifications were made to her environment at school.

Additionally, the father presented the testimony of witnesses who had, in contrast to the mother’s witnesses, actually observed his interactions with Sierra, including the person who supervised the visits in the months just prior to the December 2013 hearing. These witnesses indicated that the father’s interactions with his daughter appeared to be appropriate, their relationship appeared to be good, it did not appear that Sierra was being forced to visit with her father, and Sierra appeared to enjoy being with her father and paternal grandparents.

Moreover, the guardian ad litem and Sierra’s court-appointed attorney were present throughout the hearing and actively participated in questioning the witnesses. And the guardian ad litem visited Sierra on two occasions prior to the hearing. At the conclusion of the presentation of the evidence, both the guardian ad litem and the court-appointed attorney recommended to the probate court that the father’s visitation should continue on the same terms as before, with a slight increase in the length of the Saturday visitation. Neither the guardian ad litem or the court-appointed attorney believed that supervised visitation was necessary, although both believed that overnight visits were inadvisable at that time but might possibly be considered in the future. Further, the guardian ad litem opined that it was in Sierra’s best interest to impose a “regular schedule that’s transparent.”

Based on these recommendations, and relying “heavily’ on the credibility of the witnesses, the probate court rejected the mother’s claim that Sierra’s behavioral issues were caused by the visits with her father and rejected the mother’s request to suspend the father’s visitation. “On appeal, we must defer to the probate court’s credibility determinations.” Cruver, 289 Ga. App. at 147 (1) (b). Having reviewed the extensive evidence and testimony presented in this case, we find the probate court’s order was supported by sufficient, competent evidence. Accordingly, the mother’s challenge to the order based on evi-dentiary grounds is without merit. Mitchum, 304 Ga. App. at 843-844.

4. Lastly, the mother contends that the trial court erred by “requiring the guardian to communicate on a regular basis with [the father] and confer with him regarding all important matters related to Sierra.”

Confer means, among other things, to “consult together,” jointly examine, or contribute. The Compact Oxford English Dictionary 311 (2d ed. 1991). Moreover, we note that it appears that the probate court intended the “confer” requirement to be different than other provisions requiring the mother to keep the father “apprised” of any changes to the ward’s medical condition or residence or the requirement that the parents “notify’ the other of any serious illness suffered by the ward. We agree with the mother that the requirement that she “confer” with the father concerning all important matters relating to Sierra’s health and welfare would in essence elevate the father to the status of a co-guardian, without requiring him to fulfill the other obligations or adhere to the formalities imposed on a court-appointed guardian of an adult ward. Moreover, the father appears to concede that he does not have the right to have direct input on these issues and acknowledges that there is nothing in the probate code that would appear to require the guardian to consult with him on decisions concerning the ward or to follow his recommendations and suggestions. Rather, the father suggests that the probate court’s order should merely require the guardian to inform him of any “new developments” concerning his daughter. As the probate court stated in its order, based on the representations of the mother and her attorney, the mother and her attorney did not appear to oppose the requirement that the father be informed of any changes to Sierra’s medical status or residence, and the mother does not specifically challenge that portion of the order on appeal. Accordingly, we affirm the portion of the probate court’s order requiring the mother to inform the father of new developments or changes to Sierra’s medication, education, health or residence; however, the order must be vacated to the extent that it requires the mother to confer or consult with the father on all important matters, and this case must be remanded to the probate court for the re-entry of an order consistent with this opinion.

Decided November 12, 2014

Reconsideration denied December 10, 2014

O’Dell & O’Neal, Leslie D. O’Neal, for appellant.

Chan Law Firm, Ophelia W. Chan, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

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

       Sierra has been diagnosed with autism, hearing loss, nonverbal/Apraxia, visual impairment, and mental retardation. However, she is physically capable and has participated in activities such as swimming, gymnastics, and horseback riding.

       The father was allowed to visit with Sierra one weekend a month for six hours on Saturday and six hours on Sunday. The visits were to occur away from the mother’s residence where Sierra lived.

       Sierra turned 18 years old on November 20, 2013.

       In the interim, pursuant to the parties’ agreement, the superior court entered a “Consent Final Order,” under which the father agreed to supervised visitation until Sierra turned 18. The consent order also provided that “any remaining matters involving the Child shall be decided [by the probate court judge] in the pending action between the parties in the Probate Court.

       It does not appear that the probate court specifically ruled on the father’s alternative request to be appointed co-guardian.

       We are cognizant that the probate court did not purport to act under either of these provisions.

       Interestingly, it appears that the probate court, not the guardian, has been specifically granted the authority to curtail this right.

       We note that at times the mother frames the issue in this case as if Sierra were being “forced” to visit with her father. But we decline to read the probate court’s order in that fashion. Sierra, whose communication skills are limited, has apparently never directly expressed that she does not wish to visit with her father. Although, as discussed more fully in Division 3, the mother presented testimony that Sierra became noticeably agitated and anxious before and after visits with her father, the probate court, while noting its concern, found that the mother had failed to prove that Sierra’s visitation with her father was the source of the behavior issues. Further, both the guardian ad litem and Sierra’s court appointed attorney recommended that the visitation continue. Thus, our opinion should not be read as establishing any precedent on whether a probate court can “force” an adult ward to visit with someone against her express wishes.

       It does appear that the visitations were suspended for a period prior to the parties’ divorce, but that suspension apparently does not relate to the behavior or allegations at issue here.

       For example, OCGA § 29-4-25 requires the guardian to first “take an oath or affirmation before the court to perform well and truly the duties required of a guardian.”

       Even if the parties did not appear to agree with the requirement, we believe the probate court would have such authority under the provisions cited above and to protect the ward’s rights and best interests.