author: Branch, Judge. BARNES, Presiding Judge,

text:
    A14A1264.
    THOMAS v. THE STATE.
    (766 SE2d 527)
   Branch, Judge.

Montavius Thomas was tried by a Clayton County jury and found guilty on two counts of sexual battery of a child. He now appeals from the denial of his motion for a new trial, arguing that the trial court erred in admitting the results of his police-administered polygraph examination. We find no error and affirm.

The facts relevant to Thomas’s appeal are undisputed. The record shows that in September 2011 the Clayton County Police Department received a report that Thomas had molested D. P, a minor child, on one or more occasions. The case was assigned to Detective James Watson, who interviewed Thomas on November 10, 2011. On that date, Thomas voluntarily went to police headquarters to speak with Watson; during the interview, he denied all of the allegations that had been made against him. At the end of the interview, Watson asked Thomas whether he would be willing to take a polygraph exam if offered the opportunity. According to Watson, Thomas stated “emphatically” that he wanted to take a polygraph “and in fact [expressed that] he wanted to take it right then.” The polygraph exam, however, did not take place until almost two weeks later, on November 22, 2011. On that day, Watson picked Thomas up from his residence and drove him to police headquarters. Watson explained to Thomas that after they arrived at the police station, there would be forms for Thomas to review and sign, including a form explaining Thomas’s Miranda rights; that the entire process would take approximately three to four hours; and that the exam would be conducted by an officer other than Watson.

At the police station, Thomas met with Phong Nguyen, the Clayton County officer who conducted the polygraph exam. Before he began the polygraph, Nguyen reviewed three forms with Thomas, each of which Thomas signed after reading. The first form was a Miranda-rights waiver form, which informed Thomas that any statements he made during the polygraph exam could and would be used against him “in a court of law.” The waiver also advised Thomas as to all of his constitutional rights with respect to the exam, including his right to remain silent and his right to confer with counsel and to have an attorney present at the polygraph. This form further explained that Thomas could exercise his rights “at any time” during the polygraph exam, and elect “not [to] answer any questions or make any statements.”

The second form that Nguyen reviewed with Thomas was titled “Consent To Take Polygraph Examination” (“the Consent”). This form stated that Thomas consented to the testing, including the placing of certain equipment on his body, and further provided that Thomas understood that he could “terminate the Examination at any time.” Additionally, paragraph D of the form stated: “I [Thomas] understand that the results of the Examination will be made known only to myself, CCPD [Clayton County Police Department], and/or others as may be required by law.”

The third and final form reviewed with and signed by Thomas was a stipulation as to the admissibility of the polygraph results (“the Stipulation”). In the upper, left-hand corner of the document is the case caption “State of Georgia vs. Montavius Thomas.” Below the case style, the document is captioned “STIPULATION,” and the form provides, in relevant part:

It is hereby agreed and stipulated . . . that any questions propounded by [the] Examiner, relating to the above [-] styled case and the answers thereto and everything appertaining to said examination, including any statements given and the entire results of said answers, be received in evidence in the above [-] styled case, either on behalf of the State or . . . the Defendant. The said Defendant hereby waives his/her constitutional privileges against self-incrimination to the extent that the same may be involved in the presentation in evidence on the foregoing matters. It is expressly stipulated that the foregoing shall not constitute a waiver of the Defendant’s privileges against self-incrimination except as set forth above.

Approximately four months after he underwent the polygraph exam, Thomas was indicted on two counts of child molestation. Prior to trial, Thomas filed a motion in limine seeking to exclude the results of his polygraph exam. Following a hearing on that motion, the trial court denied the same. The evidence relating to Thomas’s polygraph exam was then heard by the jury, with Nguyen testifying as to his expert opinion on the results of the exam. Nguyen testified that when questioned about the allegations against him, Thomas denied the acts of molestation, and the exam indicated that these responses were “untruthful.”

Thomas’s sole claim of error on appeal is that the trial court erred in denying his motion in limine as to the polygraph results. As a general rule, the results of polygraph tests are not admissible in evidence, as they are not considered reliable. Lockett v. State, 258 Ga. App. 178, 180-181 (2) (573 SE2d 437) (2002). Where the parties enter into an “express stipulation” providing that the results of a particular polygraph exam will be admissible, however, a trial court shall admit such evidence “for the jury to attach to [those results] whatever probative value [it] may find them to have.” State v. Chambers, 240 Ga. 76-77 (239 SE2d 324) (1977). See also Beaudoin v. State, 311 Ga. App. 91, 94 (4) (714 SE2d 624) (2011). Where, as here, a question is raised as to the existence or validity of an alleged stipulation, “the trial judge is the trier of fact and resolves any and all issues of truthfulness, credibility, and conflicts in the evidence.” Fatora v. State, 185 Ga. App. 15, 19 (3) (363 SE2d 566) (1987) (citations omitted). And the trial court’s ruling as to the validity of the stipulation will not be disturbed absent an abuse of discretion. Id. “An abuse of discretion occurs where the trial court significantly misapplies the law or clearly errs in a material factual finding.” In the Interest of R. W., 315 Ga. App. 227, 232 (3) (c) (726 SE2d 708) (2012) (punctuation and footnote omitted).

Thomas’s claim of error focuses on the requirement that any stipulation as to the admissibility of polygraph exam results be “express.” The term “express,” Thomas argues, means that there can be no ambiguity in the alleged stipulation. And he contends that the Stipulation at issue here is ambiguous and therefore invalid. We find no merit in this claim.

Thomas offers two arguments to support his assertion that the Stipulation is ambiguous. First, he asserts that the document itself is ambiguous because it provides that evidence of the polygraph will be admissible “in the above[-] styled case.” Although the case style “State of Georgia vs. Montavius Thomas” is written at the top of the document, Thomas notes that no case number, court name, or other identifying information is given, nor does the document reflect any crime with which Thomas had been charged. Thomas argues that the lack of more specific information identifying the case in which the polygraph results would be admissible means the Stipulation is vague and not “express.”

The specific case information which Thomas contends was necessary for the Stipulation to be valid was unavailable because at the time he executed the Stipulation, Thomas had not yet been arrested or indicted. Under Georgia law, however, a stipulation as to the admissibility of polygraph exams is not rendered void simply by the fact that the stipulation was made before the defendant was arrested or indicted. See Beaudoin, 311 Ga. App. at 93-94 (3); Lockett, 258 Ga. App. at 179. Indeed, because polygraph exams usually are administered during the investigation of a case, it would be illogical to require that they contain specific case information that would be available only after a suspect is arrested or indicted. Thus, our case law shows that the validity of a stipulation as to the admissibility of polygraph results does not depend on whether the defendant was under arrest or indictment at the time he entered the stipulation. Rather, in determining the validity of a stipulation, courts examine whether, at the time the stipulation was made, the defendant was aware he was the subject of a criminal investigation; was aware that criminal charges could be filed against him with respect to the matter that was the subject of the polygraph exam; and understood his constitutional rights, including his right to counsel, his right to remain silent and refuse the exam, and his right to terminate the exam at any time. See Beaudoin, 311 Ga. App. at 94 (4) (where defendant took the polygraph and stipulated as to its admissibility while under investigation for alleged child molestation and “the evidence show[ed] that [defendant] knew and understood his rights before he waived counsel and stipulated to the admissibility of the polygraph results, the trial court’s determination that stipulation was valid... will be affirmed”) (citations omitted); Ivey v. State, 203 Ga. App. 886, 887 (1) (418 SE2d 71) (1992) (where a defendant being investigated for alleged child molestation made “a knowing waiver of his right to counsel and stipulate [d] to the admissibility of the results of a polygraph examination, the results are admissible at trial”); Fatora, 185 Ga. App. at 18-19 (3) (stipulation executed during the investigative phase of the case was valid where evidence showed that the defendant was informed of and understood his rights, including his right to counsel, right to remain silent, right to refuse the polygraph exam, and his right to terminate the exam at any time).

Here, the evidence shows that at the time he signed the Stipulation, Thomas was aware he was under investigation and could be arrested for the alleged acts of child molestation about which he was being questioned, and Thomas does not contend otherwise. Moreover, the evidence shows that Thomas was informed of and understood all of his constitutional rights with respect to the polygraph exam, including his right to remain silent, his right to refuse the exam, and his right to terminate the exam at any time, and he does not dispute this evidence on appeal. Given these circumstances, the fact that the Stipulation was executed before Thomas was arrested or indicted does not render the Stipulation invalid.

Second, Thomas argues that paragraph D of the Consent, which provides “that the results of the [polygraph] Examination will be made known only to [Thomas], CCPD [Clayton County Police Department], and/or others as may be required by law,” means that the results would not be admissible at trial. He further contends that the Consent and the Stipulation must be read and construed together and when so read, paragraph D renders the Stipulation ambiguous and therefore unenforceable. Despite Thomas’s arguments to the contrary, however, paragraph D makes no mention of whether the polygraph results would or would not be admissible. Rather, the paragraph simply provides that the results of the exam (including, presumably, any potentially embarrassing responses unrelated to the incident under investigation) would not be indiscriminately disseminated to third parties. Paragraph D further provides that the results would be made known to the Clayton County Police Department, which was the entity investigating the allegations against Thomas, “and/or others as may be required by law.” And where an investigation ends in the arrest of a suspect, the police are legally obligated to provide the prosecutor’s office with any evidence of the crime, including the results of any polygraph examination conducted as part of the investigation. See, e.g., Hester v. State, 268 Ga. App. 94, 98 (2) (601 SE2d 456) (2004) (“[m]aterial in the possession of an investigating law enforcement agency is deemed to be in the possession of the State, whether or not it is in the prosecutor’s file”) (citation and footnote omitted); Nikitin v. State, 257 Ga. App. 852, 855 (1) (c) (572 SE2d 377) (2002) (for purposes of pretrial discovery, “[a]ny information obtained ... by law enforcement officers in the course of their investigation must be attributed to the prosecutor”) (citation and footnote omitted). Thus, we find no merit in Thomas’s argument that paragraph D conflicts with or is inconsistent with an agreement that the results of the polygraph would be admissible at trial.

Under the circumstances of this case, we find no error by the trial court in denying Thomas’s motion in limine and in admitting evidence concerning the results of Thomas’s polygraph exam. Accordingly, we affirm the order of the trial court denying Thomas’s motion for a new trial.

Judgment affirmed.

Barnes, P. J., concurs specially. Boggs, J., concurs in judgment only.

BARNES, Presiding Judge,

concurring specially.

While I agree with the outcome in this case, I do not agree with all that is said, and therefore I specially concur in the majority opinion. The defendant was not represented when he took the test and did not “expressly stipulate” to the admissibility of this otherwise-inadmissible evidence, and the trial court should not have admitted it. The properly-admitted evidence establishing the defendant’s guilt is overwhelming, however, and therefore I conclude that the error is harmless.

“A stipulation is a ‘voluntary agreement between opposing counsel concerning disposition of some relevant point.’ (Black’s Law Dictionary, 1269 (5th ed. 1979)).”McKinney v. State, 281 Ga. 92, 95 (2) (b) (635 SE2d 153) (2006) (no ineffective assistance claim absent evidence State would have been willing to enter into a stipulation authorizing admission of polygraph results). In 1977, our Supreme Court held for the first time that “upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” (Emphasis supplied.) State v. Chambers, 240 Ga. 76, 76-77 (239 SE2d 324) (1977) (under former law requiring corroboration of victim in rape case, polygraph results admitted per stipulation was sufficient corroboration).

Further, an unrepresented defendant may freely and voluntarily waive his right to remain silent and stipulate that polygraph evidence is admissible at trial. Van Kleeck v. State, 250 Ga. 551, 552-553 (3) (299 SE2d 735) (1983); Lockett v. State, 258 Ga. App. 178, 180-181 (2) (573 SE2d 437) (2002); Fatora v. State, 185 Ga. App. 15, 18-19 (3) (363 SE2d 566) (1987). But none of these cases examined whether the documents signed by the defendants constituted “express stipulations,” because apparently all of the documents specifically stated that the evidence could be introduced at trial. The documents Thomas signed in this case are not “express stipulations”; rather, they are ambiguous and unclear. We construe ambiguous contracts against the drafter. Hill v. John P. King Mfg. Co., 79 Ga. 105, 109 (3 SE 445) (1887) (“The author of the ambiguity has the burden of explaining it when he seeks to take the benefit of a construction favorable to himself; and if he does not clear up the meaning beyond doubt, the doubt must be given against him.”). We construe statutes levying taxes and criminal statutes against the government, and insurance contracts against the insurer who drafted them. Hughes v. State, 269 Ga. 819, 821 (2) (504 SE2d 696) (1998); Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (3) (470 SE2d 659) (1996); Thompson v. Ga. Power Co., 73 Ga. App. 587, 597 (37 SE2d 622) (1946). We should do no less in this case, and construe these documents against the State.

The documents the defendant signed in this case do not expressly stipulate that the results of his polygraph test would be admissible at trial. The document titled “Stipulation” is a masterful example of confusing legalese. A document by which an unrepresented defendant agrees to allow the State to admit incriminating evidence that is otherwise inadmissible should at least make it clear that the defendant is doing so. But this document appears to have been drafted to make that point as obscure as possible. It reads, in its entirety:

State of Georgia DATE: 11/22/11
vs.
Montavius Thomas PLACE: CCPD
STIPULATION
It is hereby agreed and stipulated that Phong Nguyen, of the Clayton County Police Department, is an expert Polygraph (lie detector) Examiner. It is also stipulated that any questions propounded by said Examiner, relating to the above styled case and the answers thereto and everything appertaining to said examination, including any statements given and the entire results of said answers, be received in evidence in the above styled case, either on behalf of the State or on behalf of the Defendant. The said Defendant hereby waives his/her constitutional privileges against self-incrimination to the extent that the same may be involved in the presentation in evidence on the foregoing matters. It is expressly stipulated that the foregoing shall not constitute a waiver of the Defendant’s privileges against self-incrimination except as set forth above.
/s/ Montavius Thomas
Defendant
/s/ [Illegible]
Examiner

Further, if the State wanted to ensure that Thomas was agreeing that the results of his polygraph would be admissible at trial, it could have drafted the “Consent to Take Polygraph Examination” to say that. Instead, the document says, “I understand that the results of the Examination will be made known only to myself, CCPD, and/or others as may be required by law.” The majority finds no ambiguity because the police are legally required to share incriminating evidence with the prosecutor’s office; ergo, the consent form does not conflict with the document titled “Stipulation.” Technically, it is true that the police must share evidence with the prosecutor, but that is the problem with these forms and this process. The documents can be technically parsed by lawyers and judges to mean what the State says they mean, but from the defendant’s point of view, they are not straightforward statements stipulating to the admissibility of otherwise-inadmissible evidence. They should be construed against the State, and the trial court should have sustained the defendant’s objection to their admission at trial.

Decided November 21, 2014.

Kenneth D. Kondritzer, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Daniel J. Nagel, Assistant District Attorneys, for appellee.

       OCGA § 16-6-22.1 (b).

       Watson testified that he drove Thomas to and from the polygraph exam because Thomas requested a ride.

       Testimony at trial showed that Thomas spent approximately 30 to 35 minutes attached to the polygraph equipment while answering questions.

       At trial, Nguyen was qualified as an expert in the field of polygraph testing.

       The words “State of Georgia” are pre-printed on the form and “Montavius Thomas” is handwritten on a line provided immediately following “vs.”

       Although indicted on two counts of child molestation, the jury convicted Thomas on the lesser included offense of sexual battery of a child.

       Because I do not agree with all that is said, this opinion is physical precedent only. Court of Appeals Rule 33 (a).


source: Caselaw Access Project

author: Boggs, Judge. BARNES, Presiding Judge,

license: Public Domain

text:
    A14A1302.
    JOHNSON v. THE STATE.
    (766 SE2d 533)
   Boggs, Judge.

A jury convicted Gregory Bernard Johnson of misdemeanor obstruction of an officer, and he appeals. Johnson argues that the evidence was not sufficient to sustain the conviction, and that the trial court erred in denying several of his requests to charge the jury. For the reasons that follow, we affirm.

Evidentiary challenges in the appeal of criminal convictions are viewed in the light most favorable to the verdict. Chambers v. State, 252 Ga. App. 190, 190 (1) (556 SE2d 444) (2001). On appeal the defendant no longer enjoys the presumption of innocence, and the appellate court determines not the credibility of the witnesses or the weight of the evidence, but rather its sufficiency; that is, it determines whether any rational trier of fact could find the evidence sufficient to establish the defendant’s guilt beyond a reasonable doubt. Id.

So viewed, the record shows that police officers were on their way to execute a search warrant at the house of the mother of Johnson’s son, where officers thought the son lived. The officers saw the son driving nearby, and he agreed to accompany them to his mother’s house, but he did not have his house key. The officers forced the door open and began their search. The son was in the back seat of a patrol car during the search.

The son’s mother came home shortly after the police began searching, accompanied by the son’s cousin, and the mother asked the officers for their search warrant. They told her she could see it when they were done and then ignored her request for them to leave if they did not have a search warrant. The cousin testified that she was protesting loudly on the front porch about the officers’ breaking down the door and conducting a warrantless search. At some point, the officers asked the mother to close the front door because the cousin was protesting so loudly but otherwise ignored the two women and continued their search. The cousin testified that when she said loudly that she was about to call the chief of police about the officers breaking into the house without a warrant, an officer left the scene about an hour into the search and returned with a copy of a search warrant.

Meanwhile, defendant Johnson came into the front yard. The cousin told Johnson that the officers only obtained a warrant after they had broken down the door and searched the premises for an hour, and Johnson responded, “[I]f that’s the case, then you have your witnessed] together when you come [to] court, [and] the judge will dismiss it because ... it was wrong.” One of the officers had just photographed the back of the house and another picture of the front when Johnson began yelling, “This s-t’s not going to fly.” The officer told him to calm down, be quiet, and let him finish documenting the scene, after which he would let Johnson talk to his son.

The officer testified that he explained to Johnson that because he did not live there, he did not have a right to be present and therefore needed to step over to another property, but Johnson refused to leave. According to the officer, Johnson’s continued “hollering and cussing . . . got everybody else yelling and screaming” a couple of houses down. He testified that he was concerned for his and other officers’ safety and could not simply ignore Johnson, because “when I’m trying to take pictures and someone standing behind me hollering and cussing I don’t know what they’re fixing — and I’ve got a gun on my side, I’ve got to deal with him. I can’t take a chance of them grabbing my gun and I don’t know what they’re going to do in that state of mind.” The officer testified that he asked Johnson “a minimum of three times” to calm down and let him do his job before arresting him for obstruction. Finally, the officer stated that Johnson’s conduct prevented him from continuing to photograph the scene and going inside to collect evidence; it also caused another officer to stop his activities inside the house and come outside to assist.

J ohnson was charged by accusation with the misdemeanor offense of obstruction of an officer,

for that [he] . . . did knowingly and willfully obstruct and hinder ... a law enforcement officer with the Polk County Police Department in the lawful discharge of his official duties, by screaming, cursing, and hindering said officer from performing his search and gathering evidence while [executing] a search warrant, in violation of OCGA § 16-10-24 (a).

OCGA § 16-10-24 (a) provides in pertinent part: “[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”

1. Johnson contends that the evidence was insufficient to support his conviction because the State failed to prove that his “speech rose to the level of obstruction as defined by law.” The evidence established that he never physically obstructed the officer, and therefore, he argues, the issue is whether his words themselves could reasonably be considered obstruction. We disagree.

(a) Citing Woodward v. Gray, 241 Ga. App. 847, 849 (a) (527 SE2d 595) (2000), and Ballew v. State, 245 Ga. App. 842, 843 (1) (538 SE2d 902) (2000), Johnson asserts that speech alone cannot constitute obstruction unless its content could reasonably be interpreted to constitute a threat of violence to the officer, because “a mere verbal exchange with an officer” unaccompanied by threats of violence is not obstruction.

But Ballew, Woodward, and numerous other cases holding that the State must present evidence of a threat of violence to sustain a conviction for obstruction of an officer relied on definitions of obstruction that arose out of “an older version of OCGA § 16-10-24, under which force or violence was considered an essential element of the misdemeanor offense of obstruction. [Cits.]” Stryker v. State, 297 Ga. App. 493, 494 (677 SE2d 680) (2009). The statute was revised in 1986 to define and separate felony obstruction, which requires threats of violence or forcible resistance, from misdemeanor obstruction, which does not. Under the current version of OCGA § 16-10-24 (a), a person commits the offense of misdemeanor obstruction when he “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” This court explicitly disapproved of both Woodward and Ballew to the extent that they implied that misdemeanor obstruction requires proof of “forcible resistance” or “threat of violence.” Stryker, 297 Ga. App. at 495, n. 1. See also Duke v. State, 205 Ga. App. 689, 689-690 (423 SE2d 427) (1992); Arsenault v. State, 257 Ga.App. 456, 457 (1) (a) (571 SE2d 456) (2002); Wilcox v. State, 300 Ga. App. 35, 37-38 (2) (684 SE2d 108) (2009).

Speech alone can constitute obstruction. For example, we have affirmed obstruction convictions when the defendant (1) advised a companion to remove a car from the scene of an arrest after the arresting officer told him not to, Stryker, supra, 297 Ga. App. at 493;

(2) remonstrated so loudly that she interfered with an officer’s interview of individuals who had reported a crime, despite the officer’s instruction that she leave the scene, Carter v. State, 222 Ga. App. 397, 397-398 (1) (474 SE2d 228) (1996); (3) deliberately misled the officer about his identity, Wilson v. State, 261 Ga. App. 576, 578 (2) (583 SE2d 243) (2003); [and] Herren v. State, 201 Ga. App. 509, 510 (1) (411 SE2d 552) (1991); (4) wilfully lied about the whereabouts of the subject of a bench warrant an officer was attempting to serve, Hudson [v. State,] 135 Ga. App. [739,] 742-743 (3) [(218 SE2d 905) (1975)]; (5) wilfully lied to an officer, who was trying to execute an arrest warrant, about the present location of the arrestee, Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (1992); and (6) deliberately misled the first responding officer about his role in a car wreck, Wells v. State, 297 Ga. App. 153, 154 (1) (676 SE2d 821) (2009).

Harris v. State, 314 Ga. App. 816, 820-821 (1) (726 SE2d 455) (2012).

(b) A rational trier of fact could have concluded from the evidence presented by the State that Johnson knowingly and willingly hindered the officer in the lawful discharge of his official duties. See Mayhew v. State, 299 Ga. App. 313, 316-317 (1) (b) (682 SE2d 594) (2009) (sufficient evidence of misdemeanor obstruction where defendant repeatedly refused to obey officer’s instructions to calm down and step away while officer was interviewing person at whom defendant was screaming and cursing); Harris v. State, 276 Ga. App. 234, 236 (1) (622 SE2d 905) (2005) (defendant’s conduct in refusing to obey officer’s “lawful commands to wait and back off” sufficient to support misdemeanor obstruction conviction); Cooper v. State, 270 Ga. App. 346, 347 (606 SE2d 869) (2004) (defendant’s conduct during execution of search warrant sufficient to support misdemeanor obstruction where defendant’s yelling and confrontational demeanor in combination with refusal to sit down and remain in one place forced officers to call for back-up out of fear that defendant’s conduct would escalate; evidence sufficient even though pre-1986 obstruction elements erroneously applied), overruled by Stryker, supra, 279 Ga. App. at 495, n. 1; Carter, supra, 222 Ga. App. at 397-398 (1) (defendant’s disruptive statements and conduct in refusing to leave home that was not her residence during police investigation sufficient to support misdemeanor obstruction conviction).

2. In his remaining enumeration of error, Johnson contends that the trial court erred by refusing to give seven jury charges “all of which addressed the issues of free speech and the limited circumstance under which speech alone can be considered obstruction.” This contention has no merit.

“A requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper.” (Citation and punctuation omitted.) Grant v. State, 295 Ga. 126, 131 (5) (b) (757 SE2d 831) (2014). “There is no error in refusing to give a requested charge where the applicable principles are fairly given to the jury in the general charge of the court.” (Citations and punctuation omitted.) Riley v. State, 268 Ga. 640, 643 (5) (491 SE2d 802) (1997).

Johnson relied upon cases that have been overruled or disapproved subsequent to the 1986 amendment to OCGA § 16-10-24 to support five of his requested charges (Charges Two through Six). Johnson’s remaining requests to charge were either adequately covered by the general charge of the court on obstruction or not precisely adjusted to the evidence. As noted above, the State presented evidence of “something more” than mere argument and disagreement with the police officer to support Johnson’s conviction. The trial court therefore did not err by refusing to give these charges.

Judgment affirmed.

Ellington, R J., Doyle, P. J., Dillard and Branch, JJ., concur. Barnes, P. J., and Miller, J., dissent.

BARNES, Presiding Judge,

dissenting.

With this opinion, the majority has given law enforcement officers total discretion to establish the guilt of anyone publicly voicing complaints about their actions. All an officer needs to do is testify that he “had to” stop whatever he was doing and turn his attention to the complainer, thus demonstrating the necessary element of obstructing or hindering a law enforcement officer in the lawful discharge of his official duties. In my view, this interpretation of the obstruction statute is overbroad and unconstitutional, and I respectfully dissent.

“Although we have held that words alone can constitute obstruction, we have found no case upholding an obstruction conviction based solely upon a defendant’s act of speaking to, remonstrating with, or even criticizing an officer during the performance of his duties.” (Citation omitted.) Harris v. State, 314 Ga. App. 816, 820-821 (1) (726 SE2d 455) (2012). The officer in this case chose to stop what he was doing to confront Johnson and tell him to be quiet, and when he would not do so, the officer arrested him. But the officers on the scene created the very circumstances about which Johnson was complaining, and to prosecute him for refusing to be quiet about it is the very essence of a First Amendment violation.

“A search warrant commands the search and gives the executing officer the authority to conduct such. OCGA § 17-5-23. The warrant delineates the scope of the search and directs the execution within such boundaries. OCGA § 17-5-24.” State v. Rocco, 255 Ga. App. 565 (566 SE2d 365) (2002). Absent appropriate exigent circumstances, evidence seized from premises without a proper warrant may be inadmissible at trial. Teal v. State, 282 Ga. 319, 326 (2) (647 SE2d 15) (2007).

So whether the police are executing a search pursuant to a valid warrant or not is important information, because absent exigent circumstances, officers searching a house without a valid warrant are trespassers conducting an illegal search. Teal, 282 Ga. at 326 (2); Shafer v. State, 193 Ga. 748, 755 (2) (20 SE2d 34) (1942). “An officer undertaking to execute a search warrant should have the warrant in his possession or so immediately at hand that it may be exhibited as authority for making the search,” and a warrant is not in the officer’s possession when it is “some distance from the scene of the arrest.” Shafer, 193 Ga. at 755 (2); see also Rocco, 255 Ga. App. at 565.

The officers executing the search about which Johnson was loudly protesting did not have a warrant in their possession when they kicked in the door, and Johnson’s outrage was understandable. The evidence is undisputed that the officers picked up Johnson’s son during a traffic stop, went to the son’s house, broke into the house without a warrant in hand, and began searching the premises. When the son’s mother returned home and asked to see their warrant, they told her they would show it to her when they were done and then ignored her and continued their search for an hour before one of them finally left the scene and returned with a warrant. A cousin stood outside with the mother, loudly objecting to the apparently warrant-less forced entry and search, when Johnson arrived on the scene. As far as he or any other civilian there knew, the officers had arrested Johnson’s son and broken into the house illegally.

Decided November 21, 2014.

Karen S. Wilkes, for appellant.

JackBrowning, Jr., District Attorney, Melisa A. Mason, Assistant District Attorney, for appellee.

The arresting officer testified that he did not shoot his final picture of the house and go inside to continue taking photographs because Johnson was standing there “hollering and cussing” and the officer did not know “what [Johnson] was going to do.” But the officer conceded that Johnson did not physically try to stop him from taking photographs or block his view, and that he could have taken his last picture and walked into the front door to finish documenting the scene. Moreover, while the officer said that Johnson’s “hollering and screaming got everybody else yelling and screaming,” the only other people mentioned besides his son’s mother and cousin were a couple of people in another duplex who were getting “a little anxious and wanted to get a little mouthy as well” but had not come to the scene. Mere argument or expressions of frustration toward a police officer, without “something more,” is not enough to sustain a conviction for misdemeanor obstruction. Harris, 314 Ga. App. at 821. Here, absent “something more,” the evidence is insufficient as a matter of law to constitute obstruction.

The majority concedes that the only acts that could possibly constitute “something more” than just speech were Johnson’s failure to calm down when asked to do so and his refusal to leave the property. In other words, he did not shut up and leave. But it was the officer’s choice to stop what he was doing and remonstrate with Johnson. And when the officer ordered Johnson to be quiet and go away or he would be arrested, Johnson’s response was to turn around, put his hands together, and tell the officer to go ahead and jail him but that would not change the illegality of the search. That is hardly an act of obstruction. It is an act of protest.

For these reasons, I respectfully dissent to the majority opinion.

I am authorized to state that Judge Miller joins in this dissent.

       To the extent that Whaley v. State, 175 Ga. App. 493, 494 (333 SE2d 691) (1985); Dumas v. State, 159 Ga. App. 517, 518-519 (284 SE2d 33) (1981); and Wells v. State, 154 Ga. App. 246, 247-248 (268 SE2d 74) (1980), hold that speech must contain a threat of violence to constitute obstruction, those holdings were superseded by the 1986 amendment.

       Our opinion in Harris, supra, 314 Ga. App. at 819-822 (1), does not require a different result, because in this case, unlike Harris, the State presented evidence of “something more” than mere argument and expressions of frustration toward a police officer. Specifically, Johnson ignored three requests to calm down and refused to leave the property when asked to do so.


author: Phipps, Chief Judge.

text:
    A14A1335.
    A14A1336.
    A14A1337.
    A14A1338.
    A14A1339.
    A14A1340.
    A14A1341.
    A14A1342.
    FIRST CITIZENS BANK & TRUST, INC. v. RUDDELL. FIRST CITIZENS BANK & TRUST, INC. v. TWM ENTERPRISES, LLC et al. FIRST CITIZENS BANK & TRUST, INC. v. PYLOROS, LLC et al. FIRST CITIZENS BANK & TRUST, INC. v. MARY RUDDELL COULTER FAMILY, LP et al. FIRST CITIZENS BANK & TRUST, INC. v. PYLORUS 2, LLC et al. FIRST CITIZENS BANK & TRUST, INC. v. FIRST QUALITY EQUITIES, INC. et al. FIRST CITIZENS BANK & TRUST, INC. v. ESTATE OF MARY COULTER et al. FIRST CITIZENS BANK & TRUST, INC. v. RUDDELL et al.
    (766 SE2d 538)
   Phipps, Chief Judge.

In these eight cases, First Citizens Bank & Trust, Inc. (the bank) appeals summary judgments entered against it and in favor of: E. R. Ruddell, Jr.; TWM Enterprises, LLC; Pyloros, LLC; Mary Ruddell Coulter Family, LP; Pylorus 2, LLC; First Quality Equities, Inc.; and the Estate of Mary R. Coulter (collectively, “defendants”). The summary judgments preclude the bank from recovering monies it claimed the defendants owed under various promissory notes, credit agreements, and/or guaranties. For the reasons explained below, the judgments in Case Nos. A14A1335, A14A1336, A14A1338, and A14A1341 are affirmed in part and reversed in part; the judgments in Case Nos. A14A1337, A14A1339, A14A1340, and A14A1342 are reversed.

In 2011, the bank filed eight separate complaints against these various defendants, pursuing in each complaint claims of breach of contract and unjust enrichment. While the cases were pending in the trial court, in April 2012, the bank conducted nonjudicial foreclosure sales of six properties that served as collateral. The bank did not thereafter seek judicial confirmation of those sales under OCGA § 44-14-161.

The defendants then filed in their respective cases motions for summary judgment, arguing that the bank’s failure to obtain confirmation of the six foreclosure sales barred all claims pursued in the eight complaints. More particularly, the defendants asserted that all debts alleged in the complaints were “inextricably intertwined” with the debts that underlay the six foreclosure sales; the defendants then characterized the bank’s claims pursued in the complaints as attempts to obtain deficiency judgments; the defendants thus argued that the bank’s quest for deficiency “judgment[s] based on loans that are inextricably intertwined to the loans secured by the Foreclosed Properties” must be denied.

The trial court conducted a hearing, then entered orders in June 2013 granting the motions for summary judgment. The summary judgments were expressly premised upon the trial court’s determination that the debts underlying the bank’s claims were inextricably intertwined with the debts that underlay the foreclosure sales. Having thus lost all its claims as impermissible attempts to obtain deficiency judgments, the bank appeals.

Pursuant to OCGA § 9-11-56 (c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” “Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.”

“A deficiency judgment is the imposition of personal liability on mortgagor for unpaid balance of mortgage debt after foreclosure has failed to yield full amount of due debt.” The requirements for obtaining such a judgment are delineated in OCGA § 44-14-161 (a):

When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action maybe taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

The aim of this legislation was “to limit and abate deficiency judgments in suits and foreclosure proceedings on debts.” To that end, “[a] creditor may not seek a deficiency judgment with respect to any real estate sold on foreclosure unless a confirmation of the sale is obtained.”

“This [c]ourt has applied OCGA § 44-14-161 (a) to foreclosure proceedings on separate debts which are inextricably intertwined to prevent creditors from circumventing the statute’s mandates by making successive loans against the security of the same property.” Such an application prevents creditors from “avoiding the very purpose of the confirmation statute [,] that being to protect debtors from deficiency judgments when their property is sold at a foreclosure sale for less than its market value.” “As a general rule, two debts that are incurred for the same purpose, secured by the same property, held by the same creditor, and owed by the same debtor are inextricably intertwined.” “[The two debts] are not independent of each other, and a foreclosure of one affects the other.”

Accordingly, in C. K. C., Inc. v. Free, this court barred suit upon a promissory note as an impermissible claim for a deficiency judgment. There, a buyer of certain real estate executed two separate promissory notes in favor of the sellers. One note, in the amount of $75,195, represented a portion of the down payment under the contract; the second note, in the amount of $500,797.50, represented the balance of the purchase price. Both notes recited that they were secured by the deed to secure debt, which covered the entire property purchased; and the deed to secure debt reciprocally recited that it secured the two notes. Thereafter, the buyers executed a renewal note in the amount of $75,195, which extended and replaced the original $75,195 note; the renewal note recited that it was secured by the same deed referenced in both earlier notes. Upon the buyer’s default under both notes, the sellers, inter alia, advertised foreclosure, referencing only the larger note; sold the property at foreclosure to themselves for $504,000; applied for a confirmation of the sale, stating that the total debt comprised of the two notes had not been realized by the foreclosure; and filed a complaint seeking to recover the amounts due under the smaller note. When the confirmation was denied, the buyer moved for summary judgment on the ground that the sellers’ claim in substance was seeking a deficiency judgment that was barred for failure to obtain a confirmation of the sale. This court agreed, explaining:

[B]oth notes are clearly secured by the same deed and the same property. The two debts represented purchase money loans and the security for both was the property pur-chased____The two debts, secured by the same property, held by the same creditor... are owed by the same debtor and are inextricably intertwined. They are not independent of each other, and a foreclosure of one affects the other. If the whole of the property is exhausted in foreclosing the first there is still a secured debt for which the holder desired to obtain a deficiency judgment. Notwithstanding the fact that the foreclosure advertisement only referenced the larger note, we deem the instant action to be a deficiency judgment which is barred due to the failure to obtain a confirmation. Summary judgment should have been granted to [the buyer] ,

This court reached a similar conclusion in Iwan Renovations v. North Atlanta National Bank. There, Iwan Renovations executed a promissory note in favor of North Atlanta National Bank in the amount of $338,000 in order to purchase certain property and to build a home thereon. Later, the parties to the promissory note executed a “Change in Terms Agreement” that increased the note’s principal to $360,150 and extended the maturity date; a month later, the parties again agreed to extend the note’s maturity date. In both instances, the security deed was modified to reflect the note’s new maturity date. Thereafter, when Iwan Renovations requested additional funds so that it could complete the construction of the home on the property, the parties to the promissory note executed a second promissory note in the amount of $25,000, which note was secured by a second security deed to the same purchased property. In addition, both promissory notes and both security deeds contained a cross-default clause, which stated that a default under one note would be a default under the other. Subsequently, the parties agreed to extend the maturity date for both notes, and the two security deeds were modified to reflect that extension. Upon Iwan Renovations’ default under both notes, North Atlanta National Bank filed suit seeking the amount owed on both notes. While that lawsuit was pending, North Atlanta National Bank initiated a nonjudicial foreclosure on the property pursuant to the power of sale provision in the first security deed and purchased the property itself at the foreclosure sale for $398,322.15; shortly thereafter, North Atlanta National Bank amended its complaint to reflect that it was seeking to recover only the amount owed on the second promissory note. Iwan Renovations moved for summary judgment, arguing that suit on the (amended) claim was barred as a result of North Atlanta National Bank’s failure to confirm the foreclosure sale under the first security deed pursuant to OCGA § 44-14-161. This court agreed, explaining:

[Although there were two promissory notes that were secured by two separate security deeds, the notes were incurred only seven months apart for the same purpose, and both deeds pertained to the exact same property. Additionally, both notes were always held by the same creditor and both contained a cross-default clause. Given such circumstances, the two debts were inextricably intertwined. Thus, [North Atlanta National Bank’s] present action is one to recover a deficiency judgment on the debt secured by the first security deed and not to recover on an independent, separate, unsecured obligation.

However, the confirmation requirement of OCGA § 44-14-161 did not operate to bar suit in other cases, where the alleged debts were not inextricably intertwined with the debts that underlay the cited foreclosure sales. Those cases were governed by “the general principle that where there are separate debts arising from separate contractual obligations, the failure to confirm the foreclosure arising from one of the obligations does not bar an action on the separate obligation, even if the obligations are [somehow] related.” Moreover, in Baby Days, Inc. v. Bank ofAdairsville, this court refused to deviate from that general principle on the mere ground that a dragnet clause set forth in a security agreement for one loan “conceivably could be construed as indirectly subjecting the foreclosed real property ... to constitute additional collateral” on another loan (for which loan the real property did not serve directly as collateral). As this court explained, “[W]e will not allow the separate legal character of [one] loan to be defeated by such indirect means.” To do otherwise, this court reasoned, “would set a dangerous precedent for our current credit system,” as well as disregard “the well-established appellate principle that ‘the law does not entitle one to profit by his own wrong.’ ”

Claiming on motion for summary judgment that the debts alleged in the bank’s complaints were inextricably intertwined with the debts that underlay the six foreclosure sales, the defendants asserted that the suits against them all “share [d] a common thread: [Ruddell] is a direct obligor or guarantor.” Further, the defendants relied upon circumstances set forth in Ruddell’s affidavit. Therein, Ruddell stated that he had been “involved in the real estate business in Cobb County as an investor and as a consultant” for more than 48 years; that one of his “business models” was to “buy properties that had substantial future value based on the Cobb County (and bordering counties’) land plan and other factors such as low cost/high income producing potential”; and that the debts alleged in the eight complaints had been incurred as part of executing that business model. Given those circumstances, the defendants argued to the trial court that the debts underlying the eight complaints and the debts underlying the six foreclosure sales were (i) “incurred for the same purpose: purchasing or refinancing properties that had substantial future value based on the Cobb County land plan and other factors”; (ii) “secured by the same property,” by virtue of a dragnet clause set forth in each of the security deeds that underlay the foreclosure sales; and (iii) “held by the same creditor (i.e., [the bank]) and are owed by the same debtor (E. R. Ruddell, Jr.).”

In granting summary judgment to the defendants, the trial court expressly ruled that the debts underlying the bank’s claims were inextricably intertwined with the debts that underlay the foreclosure sales. The controlling question in each of these cases on appeal, hence, is whether that ruling was demonstrated by the record. We consider each case in turn.

Case No. A14A1335

1. In the complaint underlying Case No. A14A1335, the bank sued Ruddell as borrower of funds on twenty-two promissory notes and two credit agreements.

(a) Two of the twenty-two promissory notes explicitly identified as their collateral a real property which was sold at one of the six foreclosure sales. Each of these two notes stated in its “Prior Note” paragraph: “This is a Renewal of the Note dated 09-13-2005 in the amount of $160,000.00.” Moreover, the bank acknowledged in an amended complaint that it had foreclosed on that exact real property and “did not confirm the foreclosure sale.” Hence, we find no error in the trial court’s determination that the claims relating to those two (renewal) promissory notes impermissibly sought deficiency judgments.

(b) But with respect to the remaining 20 promissory notes, the record does not establish that any debt incurred thereby was inextricably intertwined with any debt underlying a foreclosure sale.

(i) Nineteen of those promissory notes were explicitly secured by real properties distinct from all six properties foreclosed upon. Furthermore, the dates of these nineteen notes spanned February 22, 2008 through June 1, 2009.

Ruddell has cited no authority that the circumstances relied upon on motion for summary judgment demonstrated that the debts were, as a matter of law, “incurred for the same purpose” and “secured by the same property.” And we find none. Generally, even if the obligations are somehow related, where the notes involved are secured by separate deeds to different properties or are not secured at all, suit on one note after foreclosure without confirmation on another note is not prohibited. Here, the bank seeks to recover on separate and distinct notes and for which conveyances of other properties were made as security. Given those circumstances, “the fact that the [bank] did not seek to have the sale[s] of the realty confirmed is irrelevant to [the defendant’s] liability.” Because the record did not demonstrate that the promissory notes underlying the bank’s claims were inextricably intertwined with any debt that underlay one of the six foreclosure sales, the trial court was not authorized to conclude that the bank’s claims relating to those promissory notes were barred as impermissible attempts to obtain deficiency judgments.

(ii) For the remaining promissory note, the parties to this appeal have provided no record citation, and we have found no such note. Apparently, the bank adduced instead a document captioned “Note and Loan Modification Agreement.” The document recited that Ruddell and Georgian Bank were extending the maturity date of a specified note; the document recited further that “[t]he Deed to Secure Debt securing the Note (the ‘Mortgage’), as modified by this Agreement, shall be modified to reflect the New Maturity date.” The “Note and Loan Modification Agreement” did not set forth the real property that served as the security, and the security deed expressly referenced by the “Note and Loan Modification Agreement” is not in the record.

The evidence fell short of establishing that the debt underlying the (modified) promissory note was “incurred for the same purpose” and “secured by the same property” as any debt that underlay one of the six foreclosure sales; Ruddell has cited no authority that the circumstances relied upon on motion for summary judgment nevertheless provided for a determination that the debt represented by the (modified) promissory note was inextricably intertwined with any debt that underlay one of the six foreclosure sales; and we find none. Given the foregoing, the record did not authorize the trial court’s conclusion that the bank’s claims relating to that promissory note (as modified) were barred as impermissible attempts to obtain a deficiency judgment.

(c) Each of the two credit agreements was dated June 25, 2008, provided a revolving line of credit up to a specified amount, and stated that it was “unsecured.” “The confirmation statute does not bar a subsequent action to recover on an independent, separate, unsecured obligation. It is not within the ambit of the statute requiring confirmation.” Even “[a]n unsecured note that is part of the same transaction involving a secured note may be sued upon despite a failure to obtain confirmation of the foreclosure for the secured note.”

Contrary to the position taken by Ruddell on motion for summary judgment, the record did not establish that the bank’s claims against him were barred as impermissible attempts to obtain a deficiency judgment. The argument that the dragnet clause(s) set forth in the security deeds underlying the foreclosure sales “conceivably could be construed as indirectly subjecting [a] foreclosed real property ... to constitute . . . collateral” on either credit agreement, for reasons articulated in Baby Days, Inc., is unavailing.

The judgment in Case No. A14A1335 is affirmed in part and reversed in part.

Case No. A14A1336

2. In the complaint underlying Case No. A14A1336, the bank sued two defendants: (i) TWM Enterprises, as borrower of funds on three promissory notes; and (ii) Ruddell, as personal guarantor of those three loans. Each of the three promissory notes explicitly designated certain real property as its collateral. Each of these promissory notes was dated January 29, 2009.

The real properties so designated in two of the three promissory notes, however, were the same properties that were sold at two of the foreclosure sales. And the bank describes in its brief, “In this appeal there are three separate notes, three separate houses, under three separate deeds. [The bank’s] foreclosure of two of the security deeds, does not operate to extinguish the debt on the remaining separate and distinct deed.” We thus deem as abandoned any attempt by the bank to collect monies relating to two notes, and consider only whether the trial court erred in granting summary judgment as to the third promissory note (described by the bank as the “debt on the remaining separate and distinct deed”).

The record shows that such note expressly identified as its collateral certain real property, which was distinct from each of the six foreclosed properties. Contrary to the position taken by TWM Enterprises and Ruddell on motion for summary judgment, the record did not establish that the bank’s claims against them relating to that note are barred as impermissible attempts to obtain deficiency judgments.

The judgment in Case No. A14A1336 is thus affirmed in part and reversed in part.

Case No. A14A1337

3. In the complaint underlying Case No. A14A1337, the bank sued two defendants: (i) Pyloros, as borrower of funds on four promissory notes; and (ii) Ruddell, as personal guarantor of those notes. Each of the four promissory notes explicitly designated as its collateral certain real property, which was distinct from each of the six foreclosed properties. The dates of these four notes spanned July 18, 2006 through March 25, 2009. Contrary to the position taken by Pyloros and Ruddell on motion for summary judgment, the record did not establish that the bank’s claims against them with respect to these four notes are barred as impermissible attempts to obtain deficiency judgments.

The judgment in Case No. A14A1337 is reversed.

Case No. A14A1338

4. In a fourth complaint, the bank sued two defendants: (i) Mary Ruddell Coulter Family, LP, as borrower of funds on four promissory notes; and (ii) Ruddell, as personal guarantor of those notes. Each of the four promissory notes explicitly identified as collateral certain real property.

One of the four promissory notes, however, was the same note that underlay one of the six foreclosure sales. And the bank recounts in its brief, “While the suit was pending, Appellant foreclosed ... on the collateral that secured one of the Coulter Family LP notes. Appellant is not seeking damages for the foreclosed debts. Instead, Appellant sought damages for the remaining, distinct debt obligations of (i.e., the non-foreclosed notes) . . . Coulter Family LP.” We thus deem as abandoned any attempt by the bank to collect monies under that promissory note, and determine only whether the trial court erred in granting summary judgment as to the other three notes.

Each of these three notes explicitly identified as its collateral certain real property, which was distinct from each of the six foreclosed properties. Two of the notes were dated April 14,2008, and the third note was dated December 26, 2008. Contrary to the position taken by Mary Ruddell Coulter Family, LP and Ruddell on motion for summary judgment, the record does not demonstrate that the bank’s claims against them with respect to those three promissory notes are barred as impermissible attempts to obtain deficiency judgments.

The judgment in Case No. A14A1338 is affirmed in part and reversed in part.

Case No. A14A1389

5. In the complaint underlying Case No. A14A1339, the bank sued two defendants: (i) Pylorus 2, as borrower of funds on three promissory notes; and (ii) Ruddell, as personal guarantor of those notes. Each of the three promissory notes explicitly designated as its collateral certain real property, which was distinct from each of the six foreclosed properties. Two of the notes were dated January 9, 2009, and the third note was dated February 10,2009. Contrary to the position taken by Pylorus 2 and Ruddell on motion for summary judgment, the record does not demonstrate that the bank’s claims against them as to these three promissory notes are barred as impermissible attempts to obtain deficiency judgments.

The judgment in Case No. A14A1339 is reversed.

Case No. A14A1340

6. In the complaint underlying Case No. A14A1340, the bank sued two defendants: (i) First Quality Equities, Inc., as borrower of funds on five promissory notes; and (ii) Ruddell, as personal guarantor of those notes.

Attached to the complaint were three promissory notes, each explicitly designating as its collateral certain real property, which was distinct from each of the six foreclosed properties. One of the three promissory notes was dated October 3, 2008, and the other two notes were dated January 9, 2009. Contrary to the position taken by First Quality Equities and Ruddell on motion for summary judgment, the record does not demonstrate that the bank’s claims against them with respect to those three promissory notes are barred as impermissible attempts to obtain deficiency judgments.

For the remaining two promissory notes, the parties to this appeal have provided no record citations, and we have found no such notes. Apparently, the bank adduced instead two documents captioned “Note and Loan Modification Agreement.” Each of those two documents recited that First Quality Equities and Georgian Bank were extending the maturity date of a specified note; each “Note and Loan Modification Agreement” recited further that “[t]he Deed to Secure Debt securing the Note (the ‘Mortgage’), as modified by this Agreement, shall be modified to reflect the New Maturity date.” Neither “Note and Loan Modification Agreement” set forth the real property that served as its security, and the record does not contain the security deed(s) expressly referenced by the “Note and Loan Modification Agreements].” Contrary to the position taken by First Quality Equities and Ruddell on motion for summary judgment, this record does not establish that the bank’s claims against them with respect to those two promissory notes (as modified) were barred as impermissible attempts to obtain deficiency judgments.

The judgment in Case No. A14A1340 is reversed.

Case No. A14A1341

7. In the complaint underlying Case No. A14A1341, the bank sued two defendants: (i) the Estate of Mary Coulter, as borrower of funds on three promissory notes; and (ii) Ruddell, as personal guarantor of those three loans. Each of the three promissory notes expressly identified as its collateral certain real property, and was dated April 14, 2008.

The real properties so designated in two of the three promissory notes, however, were the same properties that were sold at two of the foreclosure sales. And as the bank recounts in its appellate brief:

While the suit was pending, Appellant foreclosed, pursuant to its contractual right to do so, on the collateral that secured two of the Coulter notes. Appellant is not seeking damages for the foreclosed debts. Instead, Appellant sought damages for the remaining, distinct debt obligations of (i.e. the non-foreclosed note[ ]).

We thus deem as abandoned any attempt by the bank to collect monies relating to those two notes, and consider here only whether the trial court erred in granting summary judgment as to the third promissory note (described by the bank as the “remaining, distinct debt obligations”).

That note explicitly designated as its collateral real property, which was distinct from each of the six foreclosed properties. Contrary to the position taken by the Estate of Mary Coulter and Ruddell on motion for summary judgment, the record did not establish that the bank’s claims against them as related to that note were barred as impermissible attempts to obtain deficiency judgments.

The judgment in Case No. A14A1341 is affirmed in part and reversed in part.

Case No. A14A1342

8. In the complaint underlying Case No. A14A1342, the bank sued Ruddell as borrower of funds on three promissory notes.

The parties to this appeal have provided no record citations for those three notes, and we have found no such notes. Apparently, the bank adduced instead three documents captioned, “Note and Loan Modification Agreement.” Each document recited that Ruddell and Georgian Bank were extending the maturity date of a specified note; each document further recited that “[t]he Deed to Secure Debt securing the Note (the ‘Mortgage’), as modified by this Agreement, shall be modified to reflect the New Maturity Date.” None of the “Note and Loan Modification Agreement^]” set forth the real property that served as its security, and the record does not contain the security deed(s) expressly referenced by the “Note and Loan Modification Agreements].” Contrary to the position taken by Ruddell on motion for summary judgment, this record does not establish that the bank’s claims against him with respect to those three promissory notes (as modified) were barred as impermissible attempts to obtain deficiency judgments.

Decided November 21, 2014.

Busch White Norton, Bryan E. Busch, Tawana B. Johnson, Christopher M. Porterfield, Samantha L. Gunnison, Shane P. Stogner, Laura H. Mirmelli, Vanessa Y. Suh, for appellant.

Martin Bagwell Luke, Jimmy C. Luke II, for appellees.

The judgment in Case No. A14A1342 is reversed.

Judgments affirmed in part and reversed in part in Case Nos. A14A1335, Al 4A1336, Al 4A1338, andAl 4A1341.Judgments reversed in Case Nos. Al 4A1337, Al 4A1339, Al 4A1340, andA14A1342.

McMil-lian, J., concurs. Ellington, P. J., concurs in judgment only.

       For purposes of these appeals, the parties agree that in September 2009, Georgian Bank failed, and the FDIC transferred and assigned assets of Georgian Bank, including the promissory notes and other loan and security documents at issue, to First Citizens Bank & Trust, Inc.

       The defendants adduced evidence that, with respect to six security deeds, Georgian Bank was grantee with grantors: (i) TWM Enterprises, LLC, securing a note executed on January 29, 2009; (ii) TWM Enterprises, LLC, securing a note executed on January 29, 2009; (iii) Ruddell, securing a note executed on September 13, 2005; (iv) Mary Ruddell Coulter Family LP, securing a note executed on April 14, 2008; (v) the Estate of Mary Coulter and First Quality Equities, Inc., securing a note executed on April 14, 2008; and (vi) the Estate of Mary Coulter, securing a note executed on April 14, 2008. The defendants described the properties foreclosed upon as: (1) 481 New Salem Road; (2) 2254 Burnt Hickory Road; (3) 415 Old Canton Road; (4) 7090 Stone Wood Drive; (5) 2725 Mack Dobbs Drive; and (6) 2532 Wildflower Court.

       No transcript of the summary judgment hearing has been included in the appellate records for these cases. Although the initial eight notices of appeal stated that “[a] transcript of proceedings will be filed for inclusion in the record on appeal,” eight amended notices of appeal were filed omitting that statement. We thus proceed with appellate review. See generally Sapp v. Canal Ins. Co., 288 Ga. 681, 686 (3) (706 SE2d 644) (2011) (explaining that it cannot be “assumfed] that a hearing transcript is always necessary to resolve appeals arising from a trial court’s determination on summary judgment,” and that where “all evidence was submitted to the trial court in advance of the hearing as required under OCGA § 9-11-56 (c), and the hearing consisted simply of oral argument based on evidence already submitted, a transcript of proceedings is not required to enable meaningful appellate review”).

       The provisions of Georgia’s new Evidence Code apply “to any motion made or hearing or trial commenced on or after [January 1, 2013].” Ga. L. 2011, p. 99, § 101. The record reveals that the motions were filed in March 2013, and the hearing was conducted in early June 2013.

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

       Id. (citation and punctuation omitted).

        Iwan Renovations v. North Atlanta Nat. Bank, 296 Ga. App. 125, 127 (1) (673 SE2d 632) (2009), quoting C. K. C., Inc. v. Free, 196 Ga. App. 280, 282 (2) (395 SE2d 666) (1990); see Hill v. Moye, 221 Ga. App. 411, 412 (1) (471 SE2d 910) (1996) (defining “a ‘deficiency judgment’ as a judgment for that part of a debt secured by a mortgage not realized from a sale of the mortgaged property’) (citation omitted).

        First Nat. Bank & Trust Co. v. Kunes, 230 Ga. 888, 890 (199 SE2d 776) (1973) (citation, punctuation and emphasis omitted).

        C. K. C., Inc., supra.

        Iwan Renovations, supra at 128 (1) (citation and footnote omitted; emphasis supplied).

       Id. (citation and punctuation omitted).

       Id.; see 3 West Investments, LLC v. Hamilton State Bank, 316 Ga. App. 796, 800 (728 SE2d 843) (2012); Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 38 (1) (728 SE2d 714) (2012).

        3 West Investments, LLC, supra (punctuation and footnote omitted).

       Supra.

       Id. at 283 (2).

       Id. at 280-281.

       Id. at 281.

       Id.

       Id.

       Id.

       Id.

       Id. at 282 (2).

       Id. at 282-283 (3) (citations and punctuation omitted).

       Supra.

       Id. at 126.

       Id.

       Id.

       Id.

       Id.

       Id.

       Id. at 126-127.

       Id.

       Id. at 127 (1).

       Id. at 129 (1) (citation omitted; emphasis supplied).

       See, e.g., 3 West Investments, LLC, supra; Devin Lamplighter Ltd. v. American Gen. Finance, 206 Ga. App. 747, 748 (1) (426 SE2d 645) (1992) (concluding that creditor was not seeking a deficiency as to the debt secured by the deed foreclosed upon, where “there [were] two separate debts, evidenced by two separate notes and secured by two separate security deeds”) (emphasis omitted).

        Ward v. Pembroke State Bank, 212 Ga. App. 322, 324 (441 SE2d 691) (1994) (citations omitted).

       218 Ga. App. 752 (463 SE2d 171) (1995).

       Id. at 754-755 (2).

       Id. at 755 (2).

       Id. (citations and punctuation omitted; emphasis in original).

       The defendants pointed out that each of the six security deeds stated:
      This Deed secures, in addition to the indebtedness evidenced by the Borrower’s Promissory Note, all renewals, extension, substitutions and modifications thereof, all other and further indebtedness of any amount which is now or may be hereafter owed by Borrower to Lender, whether individually or jointly with others not parties hereto, and whether direct or indirect, as maker, endorser, guarantor, surety or otherwise.

       The real property is deseribedin the appellate record as: 415 Old Canton Road, Marietta, Cobb County Ga.

       See OCGA § 24-8-821 (“Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other.”).

       See Ward, supra (“When the instrument sued upon is embraced by the previous foreclosure, it is a deficiency judgment.”) (punctuation omitted).

       See 3 West Investments, LLC, supra at 800-801 (explaining that the loan sued upon was not inextricably intertwined with two loans that underlay two foreclosure sales which had not been confirmed, where, inter alia, the loan sued upon was secured by different real property and was executed on different dates and by different parties than the real estate parcels, dates and parties pertaining to the two loans that underlay the foreclosure sales); Baby Days, Inc., supra at 753-755 (2) (rejecting debtor’s defense that “[he] had a single debt to [the creditor] arising out of several contracts, bound together by ‘dragnet’ clauses, secured by a single security agreement, and collateralized by a single piece of realty which was foreclosed upon without subsequent confirmation of the foreclosure sale”). Cf. Bank of North Ga., supra at 39 (1) (concluding that suits on letters of credit were barred as claims for deficiency judgments relating to notes, where, inter alia, “the letters of credit were secured by the same golf course property that secured [the notes]”) (emphasis supplied); Iwan Renovations, supra at 129 (1) (determining action as one seeking a deficiency judgment, where both notes represented funds for the construction of a single home, and the two debts were secured by “the exact same property” where the home was being constructed); Ward, supra at 323 (analyzing the decision in C. K. C., Inc., supra, as resting “in large part on the fact that [the two promissory notes] were secured by the same deed on the same property”); C. K. C., Inc., supra at 282-283 (3) (deeming action as one seeking a deficiency judgment, where both notes were “secured by the same deed and the same property” and the “two debts represented purchase money loans and the security for both [debts] was the property purchased”) (emphasis supplied).

       See Baby Days, Inc., supra at 754 (2).

       Id. at 754-755 (2) (citation and punctuation omitted) (concluding that suit against individual-debtor was not barred for lack of confirmation of foreclosure sale, where the creditor was not seeking a deficiency as to the secured personal debt but recovery on a separate corporate debt, albeit a corporate debt that was guaranteed by the individual-debtor); see 3 West Investments, LLC, supra (concluding that the confirmation requirement did not apply, where the loan sued upon was not inextricably intertwined with loans that underlay foreclosure sales that had not been confirmed); Vaughn & Co., Ltd. v. Saul, 143 Ga. App. 74, 77 (1) (237 SE2d 622) (1977) (noting that prior foreclosure was had upon security deed that contained a dragnet clause, yet “holding] that the present action is not to recover a deficiency judgment on the debt for which foreclosure was had, but to recover on a separate, subsequent and different note made a year later for a different debt and for which a conveyance of other property was made as security. The note sued upon is a separate transaction from that which was the basis for foreclosure, is not within the prohibition of [OCGA § 44-14-161 (a)], and [appellee bank] was not barred from bringing action thereon.”) (emphasis in original); Clements v. Fleet Finance, 206 Ga. App. 736, 738 (426 SE2d 910) (1992) (concluding that suit upon a note was not barred for lack of confirmation of a foreclosure sale, where there were “two separate debts evidenced by two separate notes and secured by two separate security deeds”) (emphasis in original) (physical precedent only). See generally C. K. C., supra at 282 (2) (reciting principles that “[a]fter an initial foreclosure under a deed with a ‘dragnet clause,’ a subsequent foreclosure under a separate deed securing separate property is not a deficiency judgment, but is a separate contractual remedy of the creditor not subject to the confirmation requirement”; and that “recovery on a separate, subsequent and different note for a different debt and for which separate property was conveyed is not recovery of a deficiency judgment on a previous note that contained a dragnet clause”).

       See 3 West Investments, LLC, supra; Baby Days, Inc., supra at 754-755 (2).

       In each “motion for summary judgment and brief in support” filed in the eight cases, the respective defendant(s) expressly acknowledged that in some instances the bank had “attached a modification of the promissory note instead of the actual promissory note”; the defendants did not, however, argue that the failure to adduce the actual promissory notes played a role in establishing a basis for granting any motion.

       The “Note and Loan Modification Agreement” was effective May 25, 2008, and modified a note dated April 27, 2006.

       Cf., e.g., Iwan Renovations, supra; C. K. C., Inc., supra.

       See generally 3 West Investments, LLC, supra; Baby Days, Inc., supra at 753-755 (2); Vaughn & Co., Ltd., supra; Clements, supra. Cf. Iwan Renovations, supra; C. K. C., Inc., supra.

        Kennedy v. Trust Co. Bank, 160 Ga. App. 733, 734-735 (288 SE2d 87) (1981) (“By its terms, the confirmation statute bars an action to recover a deficiency judgment for debts secured by ‘security deeds, mortgages or other lien contracts.’ ”) (citation omitted).

        C. K. C., Inc., supra at 282 (2) (citation omitted).

       Supra at 755 (2).

       The two common real properties are described in the appellate record as: (i) 2254 Burnt Hickory Road, Kennesaw, Cobb County Ga 30064; and (ii) 481 New Salem Road, Kennesaw, Cobb County Ga 30064.

       See Division 1 (b) (i), supra.

       See Division 1 (b) (i), supra.

       That promissory note was dated April 14, 2008, and it explicitly designated as collateral: 7090 Stone Wood Drive, Marietta, Cobb County, Ga.

       (Emphasis in original.)

       See Division 1 (b) (i), supra.

       See Division 1 (b) (i), supra.

       See Division 1 (b) (i), supra.

       See, however, footnote 50, supra.

       One “Note and Loan Modification Agreement” was effective May 25, 2008, and modified a note dated March 9, 2007. The other “Note and Loan Modification Agreement” was effective May 25, 2008, and modified a note dated June 30, 2006.

       See Division 1 (b) (ii), supra.

       The two common real properties are described in the appellate record as: (i) 2725 Mack Dobbs Road NW, Kennesaw Ga 30152; and (ii) 2532 Wildflower Court, Acworth Ga 30101.

       (Emphasis in original.)

       See Division 1 (b) (i), supra.

       Initially, the bank also sued WTSJ, LLC as a borrower of funds on these three notes. But before the motions for summary judgments were filed in the eight cases, the trial court granted the bank’s motion to dismiss WTSJ, LLC.

       See, however, footnote 50, supra.

       The three “Note and Loan Modification Agreement[s]” were effective May 25, 2008, and modified notes dated July 27, 2005. (Each “Note and Loan Modification Agreement” identified also WTSJ, LLC as a party thereto, as well as a borrower upon the July 27, 2005 note that it modified.)

       See Division 1 (b) (ii), supra.