author: McFadden, Judge.

text:
    A11A1819.
    BUILDING BLOCK ENTERPRISES, LLC et al. v. STATE BANK AND TRUST COMPANY.
    (723 SE2d 467)
   McFadden, Judge.

Building Block Enterprises, LLC and Waheed Malik appeal the declaratory judgment granted to State Bank and Trust Company in this action relating to efforts to collect a defaulted loan. After Building Block defaulted on the loan, which Malik had guaranteed, State Bank, as successor to the original lender, pursued an action in state court to recover the outstanding loan amount. It also foreclosed on the property securing the note. It conducted two nonjudicial foreclosure sales, because the first took place before the assignment of the loan to State Bank had been recorded.

We hold that State Bank never consummated its successful bid at the first nonjudicial foreclosure sale of the property securing the loan because the transfer of the borrower’s right of possession and its equity of redemption to the bank as the foreclosure sale purchaser never occurred. We therefore affirm the trial court’s ruling that this sale was not completed. We also affirm the ruling that the later nonjudicial foreclosure sale was valid. Finally, we reverse the superior court’s ruling that State Bank was not required to confirm the foreclosure sale before pursuing an action for a deficiency judgment against Malik. This ruling amounted to an advisory opinion since State Bank did, in fact, file a confirmation petition, which is pending in superior court.

Building Block borrowed more than $1.4 million from Security Bank of North Metro and executed a deed to secure debt, pledging certain property as security for its obligation under the note. Malik guaranteed the obligation.

Building Block defaulted; and on April 3, 2009, Security Bank filed an action in DeKalb County State Court to recover the outstanding loan amount. On July 24, 2009, Security Bank failed. The Federal Deposit Insurance Corporation acted as receiver for Security Bank and assigned certain of its assets, including the Building Block note and security deed, to State Bank. The assignment was not executed and recorded in superior court until November 25, 2009.

On August 4, 2009 — after the assignment was made but before it was recorded — the state court substituted State Bank as the plaintiff in the state court action against Building Block and Malik. That same day, the state court entered a default judgment in favor of State Bank against Building Block and Malik for the total indebtedness, more than $3.5 million. Twenty-five minutes later, State Bank held a foreclosure sale of the property securing the note and bid in the amount of $2.12 million.

At some point, State Bank discovered that the assignment of the loan had not yet been executed or recorded. It then stopped any efforts to consummate the foreclosure sale. It did not apply the proceeds of the sale to the loan, nor did it execute or record a deed under power of sale conveying title to the property.

After the assignment of the loan and security deed was recorded on November 25, 2009, State Bank re-advertised the property for foreclosure. State Bank foreclosed on the property on January 5, 2010, and it was the only bidder. It bid $800,000, less than half the price it had bid for the property just five months earlier. State Bank applied the funds to the outstanding indebtedness and recorded a deed under power of sale. State Bank filed an action in superior court to confirm the foreclosure sale. That action remains pending.

In the meantime, on May 20, 2010, the state court set aside the default judgment against Malik as to the amount of damages only, finding that Malik had not been properly notified of the damages hearing and that this constituted a nonamendable defect on the face of the record, requiring a set aside under OCGA § 9-11-60 (d). That action remains pending.

Building Block and Malik filed this action seeking declaratory relief and damages. They sought declarations to the effect that the August 2009 foreclosure sale was valid and the January 2010 foreclosure sale was void, so that State Bank was estopped from denying the much higher property value as established in the August 2009 foreclosure sale. They also sought a declaration that State Bank could not seek a deficiency judgment against Malik. Building Block and Malik sought damages for wrongful foreclosure and for breaches of fiduciary duty and the duty of good faith. They also sought bad faith attorney fees and litigation expenses.

State Bank answered and filed a counterclaim, seeking declarations that the August 4, 2009 foreclosure sale was never consummated and the January 5, 2010 foreclosure sale — and the property value it established — was valid. State Bank also sought bad faith attorney fees and litigation expenses under OCGA §§ 13-6-11 and 9-15-14.

The trial court ruled that the August 4, 2009 sale was not valid because the assignment had not been recorded at the time of the sale and because the sale was not consummated. Therefore, the court ruled, once the assignment had been recorded on November 25, 2009, State Bank could properly foreclose again on the property. The trial court also ruled that State Bank was not required to seek confirmation of the January 5, 2010 foreclosure sale because at the time the sale occurred, State Bank had a valid money judgment for the full amount of the indebtedness against Building Block and Malik. Building Block and Malik filed this appeal.

1. We must first address our jurisdiction. Dixie Group v. Shaw Indus. Group, 303 Ga. App. 459, n. 1 (693 SE2d 888) (2010). We have jurisdiction, although the order on appeal is not final, because it entails a declaratory judgment. Building Block and Malik sought a declaratory judgment, damages and attorney fees. State Bank counterclaimed for a declaratory judgment and attorney fees. The trial court’s order entered a declaratory judgment in favor of State Bank; it did not address Building Block and Malik’s claim for damages, nor the parties’ claims for attorney fees. Therefore, it appears that the trial court’s order is not final, and the case is pending below. This is true even if the declaratory judgment in favor of State Bank amounted to an implicit denial of Building Block and Malik’s claims because State Bank’s claim for attorney fees apparently remains pending.

Nonetheless, the trial court’s order is directly appealable because “[declaratory judgments ‘have the force and effect of (final judgments) and (are) reviewable as such.’ OCGA § 9-4-2 (a).” Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 62 (1) (449 SE2d 858) (1994) (denying motion to dismiss appeal on the ground that order was neither a final judgment disposing of all claims nor an express refusal of the appellant’s request for injunctive relief because declaratory judgments are reviewable as final judgments). This is so even if other issues remain pending below. Id.

2. Building Block and Malik assert various arguments in support of their contentions that the August 4, 2009 foreclosure sale was valid and the higher price bid at that sale is binding on the bank, and that the January 2010 sale, with its lower bid price, was void. But our recent decision in Legacy Communities Group v. Branch Banking & Trust Co., 310 Ga. App. 466 (713 SE2d 670) (2011), rev’d in part on other grounds, Tampa Investment Group v. Branch Banking & Trust Co., 290 Ga. 724 (723 SE2d 674) (2012), controls the issue adversely to them. In Legacy, a bank conducted a nonjudicial foreclosure sale, which we found to be not consummated. We explained that

[w]hen a borrower gives a lender a deed to secure debt, the borrower grants and conveys outright legal title in the subject real property to the lender (the grantee) and takes a bond for title back to the grantor upon the payment of the debt. Thus, the borrower retains the right to regain or redeem legal title by payment of the secured indebtedness; the borrower also retains the right of possession.

(Citations and punctuation omitted.) Id. at 469 (1). The lender bank in Legacy, acting in its capacity as the borrower’s attorney in fact, accepted the bid it made at a foreclosure sale but did not, in that capacity, execute a deed under power or any other document conveying the borrower’s interest to itself. Nor did the bank, acting in its capacity as the creditor on the promissory notes, execute any writing showing that it had applied any foreclosure proceeds to eliminate or reduce the borrower’s obligations under the secured promissory notes. We thus held that “the conveyance which defines a nonjudicial foreclosure, that is, the transfer of the borrower’s right of possession and its equity of redemption to the bank as the foreclosure sale purchaser, never occurred.” (Citations omitted.) Id. at 470. Consequently, we held, the foreclosure was not consummated. Id.

Like the bank in Legacy, State Bank did not transfer Building Block’s right of possession to itself as the foreclosure sale purchaser at the August 2009 sale. Nor did it apply sale proceeds to eliminate or reduce Building Block’s obligation under the secured promissory note. We thus conclude that the August 2009 sale was not consummated. See id.

Building Block and Malik argue that Legacy is distinguishable because, unlike the lender-bank in Legacy, State Bank did not notify Building Block and Malik that “it rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated.” 310 Ga. App. at 467. But such notice was not the crucial factor. The crucial factor that led us to hold that the Legacy sale was not consummated was that “the conveyance which defines a nonjudicial foreclosure, that is, the transfer of the borrower’s right of possession and its equity of redemption to the bank as the foreclosure sale purchaser, never occurred.” Id. at 470 (1).

Building Block and Malik argue, and State Bank concedes, that no evidence supports the trial court’s finding that the fair market value of the property was $800,000 or its finding that the reason Malik had not been notified of the damages hearing was “a miscom-munication with the judge’s staff, not the improper conduct of [State Bank’s] counsel.” The trial court erred by including those unsupported findings in its order, but those findings are not relevant to the court’s ruling regarding the validity of the August 2009 and January 2010 foreclosure sales and thus do not provide grounds for reversal.

Accordingly, we affirm that portion of the trial court’s order declaring that the August 2009 foreclosure sale was not valid and not consummated and that the January 2010 foreclosure sale was proper.

3. Building Block and Malik argue that because State Bank did not confirm the foreclosure sale, as required by OCGA § 44-14-161 (a), it cannot pursue a deficiency judgment against Malik. There is an exception to the requirement set out in subsection (a).

When a creditor who holds a promissory note secured by a deed to secure debt containing a power of sale sues on the note and obtains a money judgment and thereafter elects to exercise the power of sale in the deed to secure debt, and the proceeds of such sale are not sufficient to satisfy the judgment, he is not required to comply with [OCGA § 44-14-161 (a)] before attempting to enforce further his judgment.

Taylor v. Thompson, 158 Ga. App. 671, 673 (282 SE2d 157) (1981). Building Block and Malik argue that the exception set out in Taylor does not apply because the judgment against Malik was set aside. Therefore, they contend, State Bank did not have a money judgment against Malik that would exempt it from the confirmation requirement.

The superior court held that State Bank was not required to confirm the January 5, 2010 foreclosure sale under OCGA § 44-14-161, as it had an enforceable default judgment for the full amount of the indebtedness as of that date. But that holding was an erroneous advisory opinion. The superior court also found — and the parties do not dispute — that in fact, State Bank did file a petition to confirm the January 5, 2010 foreclosure sale and that the confirmation action is pending in superior court.

Decided February 16, 2012

Robinson & Blazer, John E. Robinson, Gregory H. Blazer, for appellants.

Quirk & Quirk, Debra E. Baker, for appellee.

OCGA § 9-4-2 (a) authorizes superior courts “[i]n cases of actual controversy... to declare rights and other legal relations of any interested party petitioning for such declaration.” “There can be no justiciable controversy unless there are interested parties asserting adverse claims upon a state of facts which have accrued.” (Citation omitted.) East Beach Properties v. Taylor, 250 Ga. App. 798, 802 (552 SE2d 103) (2001).

“Entry of a declaratory judgment based on a possible or probable future contingency is an erroneous advisory opinion which rules in a party’s favor as to future litigation over the subject matter and must be vacated.” (Citation and punctuation omitted.) Bethel v. Fleming, 310 Ga. App. 717, 724 (3) (713 SE2d 900) (2011). Because State Bank did file a confirmation petition, the parties failed to show that there was any justiciable controversy on the issue of whether it was required to do so, and the trial court’s ruling on this issue was advisory. See City of Atlanta v. City of College Park, 311 Ga. App. 62, 72-73 (3) (715 SE2d 158) (2011). Thus, we vacate the portion of the declaratory judgment holding that State Bank was not required to confirm the January 5, 2010 foreclosure sale under OCGA § 44-14-161.

Judgment affirmed in part and vacated in part.

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


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A1830.
    HENSON v. THE STATE.
    (723 SE2d 456)
   Dillard, Judge.

In this interlocutory appeal, Daniel Henson contends that the trial court erred in denying his motion to suppress pornographic images of minors garnered during a search of his personal computer, arguing that the search exceeded the scope of the warrant. For the reasons set forth infra, we affirm.

Construing the evidence to uphold the trial court’s findings and judgment, the record shows that based on information received from a confidential informant (“Cl”), Athens-Clarke County police officers with the drug task force believed that an individual known as “Gabe” was selling marijuana from his apartment, located at 175 International Drive in Athens. Consequently, officers had the Cl make a “controlled buy” of marijuana from Gabe at his apartment, which the officers monitored by having the Cl wear a wire while also keeping him under close surveillance.

* Following the successful controlled buy of marijuana from Gabe, one of the officers obtained a warrant to search his apartment. The warrant described the premises to be searched as “175 International Drive Apartment 1013 of The Reserve Apartments, Athens-Clarke County, Georgia” and noted that the premises were “occupied by Gabriel Choi and unknown roommates.” With regard to the focus of the search, the warrant provided:

There is now located certain instruments, articles, person(s), or things, namely: marijuana, miscellaneous items associated with drug distribution such as packaging material, digital and hand scales, marijuana smoking devices, cash proceeds and records (both written and electronic) of illegal drug sales which is being possessed in violation of. . . OCGA § 16-13-30.

On November 20, 2010, one day after the search warrant was obtained, drug task force officers knocked on the door of the subject apartment and were allowed entry by Henson, who was one of “Gabe” Choi’s roommates. Upon entering the apartment, the police officers smelled the odor of marijuana and observed digital scales, marijuana residue, and marijuana smoking devices. As they began their search of the apartment, one of the officers walked into the unlocked and open bedroom that was occupied by Henson and noticed a laptop computer, which was open and running. Using the computer’s mouse, the officer opened the Start Menu and then clicked open the folder labeled “My Pictures.” And as the officer began reviewing the “thumbnail” images contained within that folder, he quickly discovered images that appeared to be child pornography.

Immediately, the officer halted his search and contacted officers with the Athens-Clarke County Police Department’s sex crimes unit, who arrived on the scene a short while later and questioned Henson regarding the images. Shortly thereafter, officers obtained additional warrants to search Henson’s computer for child pornography, and in the ensuing investigation, officers discovered hundreds of photographs and dozens of videos depicting such images.

Henson was thereafter indicted on twenty counts of sexual exploitation of children. Subsequently, he filed a motion to suppress the evidence of child pornography found on his computer, arguing that the police officer who searched his computer exceeded the scope of the original warrant when he opened the “My Pictures” folder. The trial court conducted a hearing on the matter, during which the officer who obtained the warrant and the officer who actually searched Henson’s computer testified. At the conclusion of the hearing, the trial court denied Henson’s motion to suppress. Henson then obtained a certificate of immediate review and filed an interlocutory application, which we granted. This appeal follows.

At the outset, we note that “[i]n reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Additionally, because the trial court is the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.”

With specific regard to warrants, in accordance with the Fourth Amendment to the United States Constitution, a search warrant may issue only upon “facts sufficient to show probable cause that a crime is being committed or has been committed. . . .” And in determining whether probable cause exists, the issuing judge is required

simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that . . . evidence of a crime will be found in a particular place.

Furthermore, in reviewing the issuance of a search warrant, we are charged with ensuring — considering the totality of the circumstances and giving substantial deference to the issuing judge’s decision — that the judge had a “substantial basis” for concluding that probable cause existed. With these guiding principles in mind, we will now turn to Henson’s argument in support of his claim of error.

In his sole enumeration of error, Henson contends that the trial court erred in denying his motion to suppress the evidence of child pornography found on his personal computer. Specifically, he argues that the police officer who initially searched his computer exceeded the scope of the warrant seeking evidence of illegal drug transactions when he opened the “My Pictures” folder. We disagree.

In Reaves v. State, our Supreme Court addressed the particularity requirement for warrants and held that “[although a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved.” Specifically, “the particularity requirement only demands that the executing officer be able to identify the property sought with reasonable certainty.”

Here, as previously noted, the warrant sought a search for “marijuana, miscellaneous items associated with drug distribution such as packaging material, digital and hand scales, marijuana smoking devices, cash proceeds and records (both written and electronic) of illegal drug sales.” And given that electronic records of illegal drug transactions are included amongst those items to be searched, the warrant permitted the search of personal computers at the subject address. Indeed, Henson does not argue on appeal that his computer was an improper target of the search. Nevertheless, he contends that the officer’s search exceeded the scope of the warrant because his computer’s “My Pictures” folder, which by its very title obviously contained photographs, is not encompassed by the term “electronic records.” However, the ordinary signification of “record” is “[a]n account of some fact or event preserved in writing or other permanent form ...” or “any thing . . . serving to indicate or give evidence of, or preserve the memory of, a fact or event.” And given that a picture certainly preserves or gives evidence of a fact or event — in many instances as efficiently as a thousand words— Henson’s claim that the term “electronic records” does not encompass pictures or photographs lacks merit. Thus, the trial court did not err in finding that the officer’s search did not exceed the scope of the warrant.

Furthermore, although there is no Georgia authority specifically regarding the level of detail required in a search warrant targeting personal computer files, in United States v. Walser, the United States Court of Appeals for the Tenth Circuit found lawful a search that was nearly identical in scope to the search at issue here.

In Walser, law-enforcement officers obtained a warrant to search the defendant’s hotel room for evidence of illegal drug transactions. Included in the warrant was permission to search for “records, and/or receipts, written or electronically stored.” And during the execution of that warrant, an officer searching the defendant’s computer opened a folder containing video files that depicted child pornography. At that point, the officer halted his search, and thereafter successfully obtained a warrant to search the computer for evidence of the defendant’s possession of child pornography.

As in the case sub judice, Walser argued that the officer’s search exceeded the scope of the warrant because the video files the officer opened could not possibly have contained the type of evidence the officer was authorized to search for, i.e., records of illegal drug transactions. But in upholding the denial of defendant’s motion to suppress, the Tenth Circuit held that the initial search was reasonable, within the parameters of the warrant, and that “no wholesale searching occurred” in light of the fact that the officer who discovered the child pornography videos immediately stopped his search of the defendant’s computer until he was able to secure a new warrant.

Suffice it to say, we find the reasoning in Walser persuasive. Like the officer in Walser, the officer searching Henson’s computer did not engage in a wholesale fishing expedition but was instead seeking files encompassed by the warrant when he stumbled across the images of child pornography. And again similar to the officer in Walser, the officer here immediately halted his search until an additional warrant was obtained. Thus, the officer’s search of Henson’s computer did not exceed the scope of the warrant. Accordingly, the trial court did not err in denying Henson’s motion to suppress.

Finally, although we find that the officer’s search of Henson’s computer was not impermissibly broad, we take this opportunity, as we did in Hawkins v. State with regard to cell phones, to remind law-enforcement officers to exercise caution when searching the contents of personal computers. As rightly emphasized by the Tenth Circuit in Walser, “[blecause computers can hold so much information touching on many different areas of a person’s life, there is a greater potential for the intermingling of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” Indeed, as one prominent legal scholar has noted, “[a] computer is akin to a virtual warehouse of private information”; and just because an officer has the authority to search the data stored on a personal computer (such as Henson’s laptop) does not mean that he has the unbridled authority to sift through all of the data stored on the computer. Instead, officers must be as specific as possible in a search warrant regarding what it is they are seeking on the computer and conduct the accompanying search, as the officer did here, in a way that avoids searching files that are not reasonably likely to contain the kinds of data identified in the warrant.

Decided February 16, 2012

Benjamin R. Makin, for appellant.

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

        Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

        See OCGA § 16-12-100 (b) (8).

        Hammont, 309 Ga. App. at 396 (punctuation omitted).

        Id. (punctuation omitted); see also Lowe v. State, 214 Ga. App. 92, 93 (446 SE2d 532) (1994) (noting that appellate review is guided by three principles: (1) the trial judge sits as the trier of facts in a motion to suppress hearing; (2) the trial judge’s decision as to questions of fact and credibility must be accepted unless clearly erroneous; and (3) the appellate court must construe the evidence most favorably to upholding the findings and judgment made by the trial judge).

       OCGA § 17-5-21 (a).

        State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009) (punctuation omitted).

        Whitten v. State, 174 Ga. App. 867, 868 (1) (331 SE2d 912) (1985).

       284 Ga. 181 (664 SE2d 211) (2008).

        Id. at 184 (2) (d) (punctuation omitted).

        Id. at 187 (2) (d) (punctuation omitted).

       The Compact Oxford English Dictionary 1529 (2d ed. 1991) (emphasis supplied); see also Brown v. City of Fort Wayne, 752 E Supp. 2d 925, 939 (N. D. Ind. 2010) (noting that “the police were authorized to search for ‘items or records’ that would, for instance, link [the defendant] to the premises,” and that “[a] desktop computer is both an item and a repository of records that could do precisely that, as well as a likely device for storing drug records”); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 532 (2005) (“Computers record and store a remarkable amount of information about what users write, see, hear, and do.”).

        See Reaves, 284 Ga. at 188 (2) (holding that “no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision.” (punctuation omitted)).

       275 F3d 981 (10th Cir. 2001).

        Id. at 983 (I).

        Id. at 983-84 (I).

        Id. at 984-85 (I).

        Id. at 985 (I).

        Id. at 987 (II).

        Id.

        See United States v. Wilmes, Crim. Action No. 3:09-CR-00130, 2011 WL 5553692, *4 (W.D. Ky. Nov. 15, 2011) (“Specifically with regard to discovered evidence of child pornography during a computer search, the Sixth Circuit has held that child pornography is admissible if an officer accidentally stumbles across an image during a lawful search and promptly obtains a search warrant.”).

        See Walser, 275 F3d at 981; see also United States v. Burgess, 576 F3d 1078, 1092-95 (10th Cir. 2009) (holding that agent who obtained search warrant for computer records of drug crimes, including photographs, did not exceed the scope of the warrant when he inadvertently discovered child pornography).

       307 Ga. App. 253 (704 SE2d 886) (2010).

        Walser, 275 F3d at 986 (II); see also Carla Rhoden, Challenging Searches and Seizures of Computers at Home or in the Office: From a Reasonable Expectation of Privacy to Fruit of the Poisonous Tree and Beyond, 30 Am. J. Crim. L. 107, 109 (Fall 2002) (“With their unparalleled ability to store and process information, computers are increasingly relied upon by individuals in their work and personal lives. Computer searches present the same problem as document searches — the intermingling of relevant and irrelevant material — but to a heightened degree.”).

       Kerr, supra note 11, at 551-52.

        Hawkins, 307 Ga. App. at 258 (1).

       It is worth noting that the folder searched by the officer, “My Pictures,” is not an electronic file that communicates “any intent to keep private the . . . images stored in it,” and that when the officer opened this folder “he did not open any of its files but instead was immediately presented with thumbnail images of the pictures it contained . . . [that] were of sufficient clarity to suggest that the stored photographs portrayed [child pornography].” State v. Newland, 253 P.3d 71, 78-79 (Utah App. 2010).

        See Walser, 275 F3d at 986 (II); Hawkins, 307 Ga. App. at 259 (1).


author: DOYLE, Presiding Judge.

text:
    A11A1878.
    GRIGGS v. THE STATE.
    (723 SE2d 480)
   DOYLE, Presiding Judge.

Nathaniel Griggs appeals from the trial court’s grant of the State’s motions to correct a void sentence and to clarify a clerical error. For the reasons that follow, we affirm.

After a jury trial, Griggs was convicted of Count 1 — aggravated battery, Count 2 — aggravated battery, Count 4 — burglary, and Count 5 — kidnapping with bodily injury. At sentencing, the trial court merged the first count of aggravated battery with the kidnapping conviction and sentenced Griggs to life imprisonment for kidnapping, and 20 years each on Counts 2 and 4. The written verdict form indicated that both Counts 2 and 4 were to run consecutive to Count 5. This Court affirmed Griggs’s conviction on appeal.

Subsequent to his conviction, the Supreme Court of Georgia decided the case of Garza v. State, and based on the holding in that case, Griggs filed a petition for habeas corpus, which the habeas court granted by voiding his conviction for kidnapping with bodily injury. The State moved for correction of a void sentence in the trial court because the State argued that Count 1 (aggravated battery), which originally was merged with the now voided kidnapping charge, required imposition of a sentence of a specific number of years. Simultaneously, the State moved for the trial court to correct a clerical error in order for the written sentence to conform to the oral pronouncement at the original sentencing hearing. The State maintained that the court’s oral pronouncement of the original sentence was for Griggs to serve life imprisonment on the merged Counts 1 and 5, followed by a consecutive sentence of 20 years for Count 2, followed by a consecutive sentence of 20 years for Count 4, rather than life imprisonment followed by concurrent 20-year sentences.

At the resentencing hearing, the trial court sentenced Griggs to 20 years on each count to be served consecutively to each other. On appeal, Griggs challenges the trial court’s sentence, arguing that the trial court was without authority to clarify its written sentence by pronouncing that Counts 2 and 4 would run consecutive to each other in addition to running consecutive to Count 1, which required a specific sentence after the life sentence for his kidnapping charge was voided. He also argues that the resulting sentence was vindictive. For the reasons that follow, we affirm.

1. “Under OCGA § 17-10-1 (a) (1), the sentencing judge shall prescribe a determinate sentence for a specific number of months or years and in conformity with other statutory sentencing requirements.” In this case, after the kidnapping conviction was voided, the trial court was authorized to sentence Griggs to a term of years on Count 1, which for aggravated battery could consist of up to 20 years. Thus, it was not erroneous for the trial court to impose a sentence of 20 years for Count 1.

2. Moreover, the trial court did not err by correcting its written sentence to conform with its oral pronouncement. “Except as provided by statute, a sentencing court has no power to modify a valid sentence of imprisonment after the term of court in which it was imposed has expired.” Nevertheless, a sentencing court also possesses “inherent power to correct its records at any time to show the true intent of the sentencing court at the time the original sentence was imposed.” Here, the trial court was authorized to correct the clerical error appearing in its written sentence as compared to its original oral pronouncement. The trial court, after reviewing the original transcript, determined that its original pronouncement and intent was for Counts 2 and 4 to be served consecutive to each other as well as to Count 1 (previously the voided Count 5 with which Count 1 was merged). Accordingly, there was no error in the trial court’s correction of that portion of Griggs’s sentence.

Decided February 16, 2012.

William J. Mason, for appellant.

Julia Fessenden Slater, District Attorney, Robert B. Bicker staff 11, Assistant District Attorney, for appellee.

3. Finally, because the final sentence of 60 years to serve is not longer than the original sentence of life followed by additional terms of years, we find no merit in Griggs’s argument that the trial court was vindictive in imposing the new sentence as it did.

Judgment affirmed.

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

       OCGA § 16-5-24 (a).

       OCGA § 16-7-1 (a).

       OCGA § 16-5-40 (a). The jury acquitted Griggs on three other counts, and the trial court directed a verdict of acquittal as to another count.

       See Griggs v. State, 264 Ga. App. 636 (592 SE2d 168) (2003) in which this Court set forth more fully the facts underlying Griggs’s conviction.

       284 Ga. 696 (670 SE2d 73) (2008), superseded by statute as stated in Hammond v. State, 289 Ga. 142 (710 SE2d 124) (2011).

       (Punctuation omitted.) State v. Hart, 263 Ga. App. 8, 10 (587 SE2d 164) (2003).

       See OCGA § 16-5-24 (b).

        Hart, 263 Ga. App. at 9. See also OCGA § 17-10-1 (f); Taylor v. State, 157 Ga. App. 212 (276 SE2d 691) (1981) (“[A] superior court in the exercise of its inherent power to correct its records to reflect the truth, may correct a written sentence which does not conform to the sentence pronounced orally, and that such action does not constitute a modification of the sentence.”).

       (Punctuation omitted.) Hart, 263 Ga. App. at 9.

       See, e.g., Daniel v. State, 262 Ga. App. 474, 475 (2) (585 SE2d 752) (2003).

       Compare with Schlanger v. State, 297 Ga. App. 785, 787 (2) (678 SE2d 190) (2009).


author: ELLINGTON, Chief Judge.

text:
    A11A1883.
    SANDS et al. v. LINDSEY.
    (723 SE2d 471)
   ELLINGTON, Chief Judge.

David Sands appeals from the trial court’s grant of summary judgment to Elizabeth Lindsey on his premises liability claim. He contends that Lindsey is not entitled to summary judgment because jury issues remain on whether he was an invitee or a licensee on her premises and, if the jury determines that he was a licensee, whether Lindsey’s negligence was wilful or wanton. For the following reasons, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Punctuation and footnote omitted.) Jones v. Murphy, 306 Ga. App. 539 (703 SE2d 26) (2010).

So viewed, the record shows the following facts. In the pre-dawn hours of December 30, 2006, Lindsey called 911 and asked for an ambulance because her brother was having difficulty breathing. Sands is a certified emergency medical technician (“EMT”), and he and his partner, Trey Kent, were dispatched to Lindsey’s home pursuant to the emergency call. Sands testified that, due to the seriousness of an emergency call involving respiratory difficulty, he grabbed his equipment bag as soon as they arrived at Lindsey’s house and hurried for the house while his partner retrieved an oxygen tank from the ambulance. The external lights were not turned on to illuminate the house, even though it was still dark outside and Lindsey knew that emergency workers had been dispatched to her home. There was a light on inside the house, however, and the inner wooden front door was open, so Sands could see directly into the house through the doorway, which he described as “crystal clear.” It is undisputed that there were no markings or stickers to warn that there was a closed glass storm door obstructing the doorway. Sands watched his feet as he stepped onto the porch, then looked up and through the doorway into the house, walked a few steps forward, and “slammed” into the glass storm door. The collision was so loud that his partner thought Sands had been shot with a gun. Sands staggered and fell back against a wall. When Lindsey came out of the house, Sands asked her, “Who would have opened a wooden door, and not a glass door?” Lindsey responded, “Well, I’m sorry. I just cleaned [the glass storm door].” Lindsey admitted that she had opened her inner wooden door because she knew that emergency workers were on their way, but she had left her glass storm door closed.

As a result of his collision with the door, Sands suffered pain in his neck and shoulders, a facial laceration, a concussion, an “excruciating headache,” nausea and vomiting. In addition, he was subsequently diagnosed with three herniated cervical disks. He filed a premises liability suit against Lindsey, and Lindsey answered and filed a motion for summary judgment. Following a hearing on the motion, the trial court granted the motion, and Sands appeals.

To recover for damages in a premises liability action,

the [plaintiff] must prove (1) that the owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite the exercise of ordinary care, due to actions or conditions within the control of the owner. With respect to the first element, a defendant moving for summary judgment discharges its burden by pointing out by reference to the record that there is an absence of evidence to support the plaintiffs case. The plaintiffs evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed [him]self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known. Moreover, premises liability cases are not susceptible to summary adjudication except where the evidence is plain, palpable, and undisputed.

(Citations, punctuation and footnotes omitted.) Helton v. Riverwood Intl. Corp., 261 Ga. App. 62, 63 (581 SE2d 687) (2003).

1. Sands contends that a jury issue exists on whether he was an invitee or a licensee at the time he was injured.

Generally, a person is an invitee when “an owner or occupier of land, by express or implied invitation, induces or leads [him or her] to come upon his premises for any lawful purpose.” OCGA § 51-3-1. In contrast, a licensee is a person who “(1) [i]s neither a customer, a servant, nor a trespasser; (2) [d]oes not stand in any contractual relation with the owner of the premises; and (3) [i]s permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.” OCGA § 51-3-2 (a).

Notwithstanding the statutory distinction between an invitee and a licensee, however, it has long been the rule in Georgia that police officers and firefighters who enter private property in their professional capacity occupy the position of licensees, not invitees, even when they are responding to an explicit request for emergency assistance made by the premises’ owner or occupier. See London Iron &c. Co. v. Abney, 245 Ga. 759, 760-761 (1) (267 SE2d 214) (1980) (a police officer who entered a premises in order to respond to a burglar alarm was a licensee as a matter of law); Aldredge v. Symbas, 248 Ga. App. 578, 579 (547 SE2d 295) (2001) (a police officer who was chasing a suspected criminal when he entered the premises was a licensee as a matter of law); Wilbanks v. Echols, 209 Ga. App. 210, 211-212 (433 SE2d 134) (1993) (physical precedent only) (a volunteer firefighter who was crossing the premises in order to fight a fire was a licensee as a matter of law). The Supreme Court of Georgia has adopted the following explanation for the rule:

[Ejxpress permission [to enter a premises] constitutes an invitation only if circumstances imply an assurance that the premises have been prepared and made safe for the particular visit. . . . [Thus, the] one really valid basis for classifying policemen as licensees as opposed to invitees is that policemen are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, where care [by the owner or occupier] in looking after the premises, and in preparation for the visit, cannot reasonably be looked for.

(Citations and punctuation omitted.) London Iron &c. Co. v. Abney, 245 Ga. at 760 (1), citing Prosser, Torts, § 60, p. 378 (4th Ed. 1971). In other words, in unexpected, time-sensitive, emergency situations, when owners or occupiers of property may be distracted by the emergency, it would be unreasonable to expect them to exercise the same level of care in taking whatever precautions are necessary to ensure that their property is safe for those entering the property — even those they have summoned — as they would be required to exercise for invitees in nonemergency situations. See Baxley v. Williams Constr. Co., 98 Ga. App. 662, 669 (1) (106 SE2d 799) (1958) (physical precedent only) (This Court explained that the basic reason for concluding that a fireman who is on a premises to fight a fire holds the status of a licensee “is that it is impossible to forecast the precise place where or time when the fireman’s duties may call him, and to require an owner or occupier of premises to exercise at all times the high degree of care owed to an invitee in order to guard against so remote and unpredictable an injury would be an intolerable burden which it is not in the best interest of society to impose.”) (citations omitted).

Although Georgia’s appellate courts have not directly addressed the status of EMTs, such as Sands, who are injured while responding to an emergency call, we believe it is appropriate to apply the same analysis in this case. Given the emergency circumstances with which Lindsey was faced, it would be unreasonable to expect her to have exercised the same degree of care in preparing her home and property for the arrival of the emergency personnel as she would have been required to exercise before welcoming an invitee in a nonemergency situation.

Accordingly, we conclude that, under the circumstances presented in this case, Sands was a licensee as a matter of law. London Iron &c. Co. v. Abney, 245 Ga. at 760-761 (1).

2. Sands contends that, even if he was a licensee as a matter of law, a jury issue exists on whether Lindsey was wilfully or wantonly negligent. Under OCGA § 51-3-2 (b), a premises owner “is liable to a licensee only for willful or wanton injury.”

The statutory liability for wilful or wanton injury to licensees [under OCGA § 51-3-2 (b)] means that the landowner owes a duty to a licensee only to avoid knowingly letting him run upon a hidden peril or wilfully causing him harm. Thus, where the owner (as here) is aware of the licensee’s impending presence on the premises, it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises.

(Punctuation and footnote omitted; emphasis in original.) Jones v. Murphy, 306 Ga. App. at 540.

In this case, Sands does not claim that Lindsey wilfully injured him or that the glass storm door constituted a mantrap. Instead, he contends that Lindsey acted wantonly, i.e., knowingly letting him run into an inherently dangerous hazard or a hidden peril, and relies on evidence that Lindsey was in the living room near the front door while waiting for the ambulance to arrive, yet she failed to meet him at the door. In addition, he contends that Lindsey should have turned on the house’s exterior lights. Finally, he argues that Lindsey should have exercised greater care because she was an “experienced veteran in handling the arrival of EMTs at her residence,” a claim that was based upon evidence that she had called 911 in the past on several occasions for either her husband or her brother. Sands, however, has failed to cite to any authority to support a conclusion that Lindsey’s oversights evidenced a wanton disregard for his safety, as opposed to mere negligence, that would constitute a breach of her duty to him as a licensee, and we decline to so hold.

Decided February 16, 2012.

Terry R. Barnick, for appellants.

Young, Thagard, Hoffman, Smith & Lawrence, James B. Thagard, Stephen D. Delk, Saveli & Williams, Edward P. Denker, for appellee.

Moreover, Sands has failed to present evidence to support any other basis for finding that Lindsey may have breached her duty to him, such as evidence of a defect in the construction or installation of the door or that the door, as installed, was inherently dangerous. Further, there is no evidence that anyone else visiting Lindsey’s property had ever inadvertently collided with the door.

Accordingly, we conclude that Sands has failed to demonstrate that a jury issue exists as to whether Lindsey breached her duty to him as a licensee. It follows that the trial court did not err in granting summary judgment to Lindsey.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

       Sands’ wife, Rebecca, asserted a claim for loss of consortium and is a party to this appeal.

       The hearing was not transcribed.

       The determination of Sands’ status delineates what duty Lindsey, as the premises owner and occupier, owed to him, as explained in Division 2, infra.

       See also Ingram v. Peachtree South, 182 Ga. App. 367, 368 (355 SE2d 717) (1987) (This Court noted that, “[i]n view of the statutory language defining a licensee, it would perhaps be more appropriate to state .. . that firemen are sui generis!,] but [are] treated on the same footing as licensees.”) (citation and punctuation omitted).

        See Aldredge v. Symbas, 248 Ga. App. at 580 (“The doctrine of mantrap or pitfall rests upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to cause him injury. Examples of mantraps or pitfalls include spring guns, traps deliberately set to do injury, or other perils which have been hidden by an owner intending to inflict injury.”) (punctuation and footnotes omitted).

        See Powell v. Watson, 176 Ga. App. 559, 559-560 (337 SE2d 403) (1985) (The premises’ owner and occupier were entitled to summary judgment on the claim by a licensee for injuries sustained in a fall that resulted from a defect in the premises’ staircase, because it was undisputed that the owner and occupier were unaware of the defect prior to the fall and the defect was not observable upon inspection.).

       Cf. Jones v. Murphy, 306 Ga. App. at 540 (noting that the appellee homeowner was aware that two of her guests had “bumped” into a closed glass sliding door hours before the appellant “crashed” through the same closed door).


text:
    A11A1974.
    ARREOLA-SOTO et al. v. STATE OF GEORGIA.
    (723 SE2d 482)
   DOYLE, Presiding Judge.

In this in rem forfeiture action, David Umberto Arreola-Soto, Maria de Lourdes Garcia, Ramon Mares-Esparza, DVD Concrete, Inc., and A-Z Prestige, LLC (collectively “Appellants”) appeal from a judgment and order of forfeiture entered by the Clayton County Superior Court after the court struck their answer. They contend that (1) the trial court erred by striking their answer, (2) the forfeiture was unconstitutionally excessive, and (3) the forfeiture complaint failed to adequately describe the conduct giving rise to the forfeiture. For the reasons that follow, we affirm in part and reverse in part.

The record shows that the State filed a verified complaint for forfeiture of currency and numerous items of personal property and vehicles seized by the Clayton County Sheriffs Office in connection with the execution of a search warrant while assisting the U. S. Drug Enforcement Administration. The complaint alleged a conspiracy among some of the Appellants to traffic in marijuana and cocaine.

The Appellants filed an answer and counterclaim, followed by an amended answer and counterclaim filed in response to the State’s motion to strike their original answer. The trial court granted the motion to strike, finding that the amended answer failed to comply with the special pleading requirements of OCGA § 16-13-49 (o) (3). The State then petitioned the court for a judgment of forfeiture, the court granted the petition and entered the judgment, and this appeal followed.

1. The Appellants first contend that the trial court erred by striking their answer. We agree in part.

“In a civil in rem forfeiture action, a claimant’s answer must be in strict compliance with the special pleading requirements of OCGA § 16-13-49 (o) (3),” which provides that the claimant’s answer must include, among other details, facts to show “[t]he date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property.” This particularized information is required, in part, “so as to assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.”

Here, the answer as amended by the Appellants includes as an exhibit a copy of the State’s inventory of each item seized. The list contains approximately 47 items, and each item on the exhibit has a handwritten entry addressing each claimant’s ownership interest. For 26 entries there is a blank or no information describing the Appellants’ property interest, and certain additional items are listed with only vague information including “left by a friend” or “given by a friend” with no other description. These entries clearly do not contain sufficient information to satisfy the pleading requirement under OCGA § 16-13-49 (o) (3) (D). Thus, with respect to these items, the trial court did not err by dismissing the Appellants’ claims.

For other items, however, the claimant’s ownership interest is described with the name of the transferor and a year of purchase by the claimant. Although exact dates are not given, we have stated that “if a date certain cannot be given, the time frame” of the acquisition of the ownership interest will suffice. Further, the list states the type of transfer (purchase) made to each claimant and identifies the prior owner. This information assures some degree of legitimacy to the Appellants’ prima facie claim of ownership, and the answer otherwise contains factual information necessary to expedite the proceeding.

While we are mindful of the State’s argument that the pleading requirements in a forfeiture action are strict, they are not meant to be impossible. The legislative intent in enacting the forfeiture statute is not only to provide for the prompt disposition of seized property but also to protect the interests of innocent property owners. The pleading requirement must be construed to implement that intent.

Therefore, under the circumstances of this case, we conclude that this information was sufficient to plead an interest in the property under OCGA § 16-13-49 (o) (3) (D), and the trial court erred by striking the Appellants’ answer as to these items.

2. The Appellants also argue that the forfeiture was unconstitutionally excessive relative to the alleged offense. Nevertheless, this issue was not ruled upon by the trial court, because it struck the Appellants’ answer. “We will not consider errors, even those of constitutional magnitude, unless they were raised and ruled on in the trial court.” “It is not enough that a constitutional question was duly made in the court below, but the trial court must have made a ruling thereon.” Accordingly, this enumeration presents nothing for review at this time, and the defense remains pending for the surviving claims upon remittitur.

3. Finally, the Appellants challenge the State’s complaint itself, arguing that it failed to comply with the requirement in OCGA § 16-13-49 (n) (1), which provides as follows:

If the estimated value of personal property seized is $25,000.00 or less, the district attorney may elect to proceed under the provisions of this subsection in the following manner: (1) Notice of the seizure of such property shall be posted in a prominent location in the courthouse of the county in which the property was seized. Such notice shall include a description of the property, the date and place of seizure, the conduct giving rise to forfeiture, a statement that the owner of such property has 30 days within which a claim must be filed, and the violation of law alleged. . . ,

The Appellants argue that the State’s complaint failed to adequately describe the conduct giving rise to forfeiture. Nevertheless, the Appellants misapprehend the proceeding below, which was an in rem proceeding for property valued at more than $25,000. Thus, the pleading requirement of OCGA § 16-13-49 (o) applied, not subsection (n).

Under the applicable subsection, OCGA § 16-13-49 (o), the State’s complaint must meet, among others, the following requirement:

. . . The complaint shall be verified on oath or affirmation by a duly authorized agent of the state in a manner required by the laws of this state. Such complaint shall describe the property with reasonable particularity; state that it is located within the county or will be located within the county during the pendency of the action; state its present custodian; state the name of the owner or interest holder, if known; allege the essential elements of the violation which is claimed to exist-, state the place of seizure, if the property was seized; and conclude with a prayer of due process to enforce the forfeiture.

Thus, the State’s statutory burden, in relevant part, was to allege the essential elements of the violation, not the essential facts supporting the alleged offense.

The State’s complaint alleged that items were seized in an investigation “involving the conspiracy to traffic[ ] cocaine and marijuana.” The complaint further alleged that “[t]he violations supporting this Complaint for Forfeiture are violations of the Georgia Controlled Substances Act (OCGA § 16-13-30, § 16-13-31, and/or § 16-13-33D].” Finally, the complaint alleged that the seized property “was used and/or was intended for use in a manner to facilitate a violation of the Georgia Controlled Substances Act,” and specifically stated that the seized vehicles “[were] used and/or [were] intended to be used to transport and/or store cocaine and marijuana based on an investigation indicating criminal activity involving the conspiracy to traffic[ ] cocaine and marijuana.” Under these facts, because the forfeiture statute declares as contraband “property which is, directly or indirectly, used or intended for use in any manner to facilitate a [drug] violation,” the complaint here “made out a prima facie case for civil forfeiture of the [property] as contraband.” Accordingly, this enumeration is without merit.

Decided February 16, 2012

Jeffrey R. Sliz, Randall S. Estes, for appellants.

Tracy Graham-Law son, District Attorney, Elizabeth A. Baker, Tiffany C. Boulware, Assistant District Attorneys, for appellee..

Judgment affirmed in part and reversed in part.

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

       Maria de Lourdes Garcia sometimes is referred to as “Made Lourdes Garcia.”

       We note that the State argues that the appeal should be dismissed because the Appellants’ notice of appeal failed to adequately specify the judgment, ruling, or order from which they appeal as required by OCGA § 5-6-37. Nevertheless, “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal is not subject to dismissal and shall be considered.” (Punctuation omitted.) Carter v. Fayette County, 287 Ga. App. 175, n. 1 (651 SE2d 108) (2007). Because it is clear in this case that the appealed judgment is the forfeiture, we address the merits of the appeal.

       According to the State, the currency and property seized was valued at approximately $267,000.

       (Punctuation omitted.) Portee v. State of Ga., 277 Ga. App. 536 (1) (627 SE2d 63) (2006).

       OCGA § 16-13-49 (o) (3) (D).

        State of Ga. v. Cannon, 214 Ga. App. 897 (449 SE2d 519) (1994) (addressing OCGA § 16-13-49 (n) (4), which contains nearly identical language to subsection (o) (3)).

       Some entries contain multiple items or components.

       See Edwards v. State of Ga., 290 Ga. App. 467, 469 (659 SE2d 852) (2008) (answer legally insufficient because descriptions were “vague and impossible to substantiate”); State of Ga. v. Miller, 234 Ga. App. 650, 651 (507 SE2d 521) (1998) (partial information failed to substantiate claim of ownership), disapproved on other grounds, Hearing v. State of Ga., 243 Ga. App. 198, 201 (1) (532 SE2d 751) (2000). Compare Knodel v. State of Ga., 222 Ga. App. 514, 516 (474 SE2d 700) (1996) (answer contained sufficient facts to create triable issue as to ownership).

       See Gravley v. State of Ga., 285 Ga. App. 691, 694 (2) (647 SE2d 372) (2007); Jones v. State of Ga., 241 Ga. App. 768, 769 (2) (527 SE2d 611) (2000).

       The answer described the claimants’ ownership interest with handwritten notes in the margin of an exhibit attached to their answer, leaving much of the information facially incomplete. This is not an advisable practice, and it invites dismissal of such claims. Nevertheless, in this case, some property was described with sufficient particularity to plead an ownership interest.

       (Emphasis supplied.) Howard v. State of Ga., 223 Ga. App. 323, 324 (477 SE2d 605) (1996).

       (Citation and punctuation omitted.) Dennis v. State of Ga., 224 Ga. App. 11, 13 (2) (479 SE2d 380) (1996). See also Harris v. State, 222 Ga. App. 267, 268 (474 SE2d 201) (1996) (“Although compliance with the strict pleading requirements is mandated, these requirements must be interpreted reasonably.”) (citation omitted).

       The property adequately described is as follows:
      E-2 to E-4: Somero Enterprises Copperhead XD 2.0 laser screener, blade, and 2 Trimble Grade Control Receivers (purchased from Somero Enterprises in 2006, current owner DVD Concrete, Inc.);
      G-3 to G-6: Four Whiteman concrete dual blade finisher floats (purchased from Live Oak and White Cap in 2004 or 2005, current owner DVD Concrete, Inc.);
      M-l: 1986 Mack Truck VIN: 1M2T152CXGM002805 (purchased in 2008 from AB General Construction, current owner Made Lourdes Garcia);
      R-l: 1997 Kenworth Aerocab truck VIN: 1XKWDB9X7VR737665 (in process of purchasing from Jose Ramirez, purchaser Made Lourdes Garcia);
      S-6: 3 Honda industrial blowers (purchased from Live Oak or White Cap in 2005, current owner DVD Concrete, Inc.);
      S-7: 2 yellow X4000 concrete wet saws (purchased from Live Oak or White Cap in 2005, current owner DVD Concrete, Inc.);
      S-13: 1986 white Volvo sleeper cab VIN: WUYDCJF6GN10589 (purchased from Russell Hauling in 2009, current owner A-Z Prestige LLC); and U-l: 2000 white Ford F-650 VIN: 3FDWW65A8YMA36343 (purchased from Ford dealer in 2000, current owner David Arreola Soto).

       We emphasize that this opinion is addressed to whether the Appellants met pleading requirements, not the merits of either the State’s forfeiture case or the Appellants’ ultimate claims to the property.

       (Punctuation omitted.) Griffin v. State of Ga., 255 Ga. App. 687, 688 (2) (566 SE2d 414) (2002).

       (Punctuation omitted.) Bain v. State, 258 Ga. App. 440, 446 (3) (574 SE2d 590) (2002).

       (Emphasis supplied.)

       (Emphasis supplied.)

       See Hinton v. State of Ga., 224 Ga. App. 49, 50-51 (2) (479 SE2d 424) (1996) (“If the General Assembly intended to require the State to plead essential facts, it simply could have stated, as it did in OCGA § 16-13-49 (o) (3) (F). . . .”). Compare Baker v. State of Ga., 269 Ga. App. 722, 726-727 (605 SE2d 126) (2004) (addressing OCGA § 16-13-49 (n) (1)).

       OCGA § 16-13-49 (d) (2).

        Howard v. State of Ga., 223 Ga. App. 323 (477 SE2d 605) (1996).


text:
    A11A1991.
    MIMS v. THE STATE.
    (723 SE2d 486)
   Dillard, Judge.

Following a jury trial, Christopher Mims was convicted of one count of aggravated battery and one count of aggravated assault. Mims appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in admitting the victim’s prior consistent statement over his hearsay objection and in admitting a police officer’s allegedly irrelevant testimony regarding the scope of the officer’s investigation. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that late in the evening of May 6, 2008, Mims and his girlfriend, M. C., were in the parking lot of a local package store when they became embroiled in a heated argument over money. As the argument escalated, M. C. turned her back on Mims and began to walk away from him. But as she did, Mims struck her in the back of the head with a stick, which knocked her to the ground. With M. C. now lying face down on the ground, Mims continued striking her on the back of her head. And when M. C. attempted to turn over onto her back so that she could use her hands to defend herself, Mims began striking her in the face with his fists, breaking her jaw and knocking out several of her teeth in the process.

Shortly after Mims began his assault on M. C., a motorist who had driven by the scene flagged down a police officer — who was on patrol several blocks away — and informed him that she had just witnessed a male beating a female in the package store parking lot. When the officer arrived at the scene a few minutes later, Mims had already fled, but the officer found M. C. lying on the ground nearly unconscious and bleeding badly from the multiple blows to her face and head. As the officer rendered aid, a second officer arrived on the scene, and M. C. told both of them that Mims was the person who had assaulted her. Consequently, the second officer went to Mims’s residence, and after finding Mims with what appeared to be blood on his shirt, pants, and shoes, arrested him for the assault on M. C.

Thereafter, Mims was indicted on one count of aggravated battery and one count of aggravated assault. During Mims’s trial, M. C. testified about the assault, and the two responding police officers testified regarding their investigation of the matter. Additionally, the State introduced and played an audio recording of a telephone call that Mims made to M. C. while Mims was incarcerated in the local detention center and M. C. was still in the hospital being treated for her injuries. In that phone call, Mims complained to M. C. about being arrested on aggravated-assault charges, and he angrily suggested that M. C. should have blamed the assault on someone else.

At the conclusion of Mims’s trial, the jury found him guilty on both counts. Subsequently, Mims filed a motion for new trial. And after both Mims and the State agreed that an evidentiary hearing on the matter was unnecessary, the trial court denied Mims’s motion for new trial. This appeal follows.

At the outset, we note that “[a]s a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” With this guiding principle in mind, we will now address Mims’s claims of error.

1. Mims contends that the trial court erred in admitting a police officer’s testimony regarding M. C.’s prior consistent statement identifying Mims as her attacker despite Mims’s hearsay objection. We disagree.

It is well established that a witness’s prior consistent statement is admissible only where: “(1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” And a witness’s veracity is placed in issue, so as to permit the introduction of a prior consistent statement, “if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” But even then, “to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive.”

In the case sub judice, M. C. testified on direct examination that Mims attacked her on the night in question. Nevertheless, during Mims’s cross-examination of M. C., defense counsel was able to elicit testimony from M. C. in which she admitted to consuming a quart of beer and a half-pint of vodka just prior to the assault, that she never saw Mims carrying a stick, and that she did not see the first blow to the back of her head because it came from behind her. And although M. C. maintained that Mims was the person who attacked her, defense counsel attempted to elicit a concession from M. C. that it was possible someone else could have been responsible for her injuries.

Shortly thereafter, during the direct examination of the police officer who first responded to the incident, the State’s prosecutor asked the officer what M. C. told him when he arrived on the scene. But before the officer could respond, Mims’s counsel objected that the officer’s answer would constitute hearsay. In response, the State’s prosecutor asserted that M. C.’s veracity as to the identity of her attacker had been challenged earlier during cross-examination, and argued that, as a result, M. C.’s prior consistent statement was admissible. The trial court agreed, and the officer then confirmed that upon his arrival at the scene, M. C. immediately identified Mims as her attacker.

Mims now argues that the trial court erred in admitting M. C.’s prior consistent statement because his trial counsel’s cross-examination of M. C. did not place her veracity at issue and, alternatively, even if it did, her statement did not predate any recent fabrication or improper motive. We disagree.

Although Mims’s trial counsel did not directly accuse M. C. of lying, her veracity was certainly challenged by questions eliciting the fact that she had been drinking heavily just prior to the assault and that she did not actually see the weapon or the first blow. Thus, at the very least, Mims’s cross-examination of M. C. strongly implied that her direct testimony constituted a recent fabrication. Additionally, it is undisputed that M. C.’s statement to the responding officer predated her allegedly fabricated trial testimony. And under these circumstances, we conclude that the trial court did not abuse its discretion in allowing the State to introduce M. C.’s prior consistent statement.

Moreover, even assuming arguendo that M. C.’s identification of Mims as her assailant to the responding officer was not properly admitted as a prior consistent statement, her statement was made within minutes of the violent assault and while she was still suffering its effects. Her statement, therefore, was also admissible as part of the res gestae of the event. Thus, the trial court would not have abused its discretion in allowing M. C.’s statement into evidence on this alternative ground.

2. Mims also contends that the trial court erred in allowing one of the investigating police officers to testify as to why the alleged blood stains on Mims’s clothing and shoes were not forensically analyzed, arguing that such testimony was irrelevant. This contention is likewise without merit.

First, we note that unless the potential for prejudice substantially outweighs probative value, “Georgia law favors the admission of relevant evidence, no matter how slight its probative value.” And evidence is relevant “if it tends to prove or to disprove a material fact at issue, and every act or circumstance which serves to explain or throw light upon a material issue is relevant.” Indeed, even where the relevancy or competency is doubtful, “the evidence should be admitted, and its weight left to the determination of the jury.”

Decided February 16, 2012.

Kevin C. Armstrong, for appellant.

And here, during the State’s case, one of the investigating officers testified that the clothing and shoes that Mims was wearing on the night he was arrested appeared to have blood stains on them. On cross-examination, Mims’s trial counsel asked the officer if the stains had ever been forensically analyzed. The officer responded that no such analysis was conducted, and therefore, he could not testify with any scientific certainty that the stains were, in fact, blood. Immediately thereafter, the State’s prosecutor asked the officer to explain why forensic testing was not requested. Mims’s trial counsel objected on the ground that the question required expert testimony. And after a brief voir dire, the trial court ruled that the officer could testify as an expert in police investigations but could not testify as to whether the stains on Mims’s clothes were, in fact, blood. Unsatisfied with the court’s ruling, Mims’s trial counsel argued that any explanation by the officer as to why the alleged blood stains were not analyzed was irrelevant. However, the trial court disagreed, and thereafter, the officer testified that blood is usually analyzed in order to “confirm the identity of somebody when you are looking . . . — trying to figure out who committed the crime.”

On appeal, Mims again argues that the police officer’s testimony should have been excluded as irrelevant, but we disagree. During cross-examination, Mims elicited the officer’s admission that the alleged blood stains on Mims’s clothing and shoes had not been forensically tested. Thus, the officer’s explanation as to why such testing was not done — after the failure to test had been called into question by Mims — was certainly relevant to explain the officer’s conduct. Accordingly, the trial court did not abuse its discretion in determining that the officer’s testimony was relevant and admissible.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

Gregory W. Edwards, District Attorney, Matthew Breedon, Assistant District Attorney, for appellee.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA § 16-5-24 (a).

        See OCGA § 16-5-21 (a) (2).

       Prior to the introduction of the audio recording, a sheriffs deputy whose job entailed that of custodian of the local detention center’s records testified that all telephone calls placed by inmates are recorded.

       The trial court merged those convictions for sentencing purposes.

        Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010) (punctuation omitted).

        Hall v. State, 287 Ga. 755, 758 (3) (699 SE2d 321) (2010) (punctuation omitted); see Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998).

        Hall, 287 Ga. at 758 (3) (punctuation omitted).

        Duggan v. State, 285 Ga. 363, 366 (2) (677 SE2d 92) (2009) (punctuation omitted).

        See Hall, 287 Ga. at 758 (3) (holding that defendant’s questions eliciting inconsistencies between child’s direct testimony and statements she previously made to her teacher were an attack on child’s veracity).

        See Brown v. State, 310 Ga. App. 835, 838 (1) (b) (714 SE2d 395) (2011) (noting that victim’s prior consistent statement to nurse undisputedly predated her allegedly fabricated trial testimony).

        See Hall, 287 Ga. at 758 (3); Brown, 310 Ga. App. at 838 (1) (b).

        See Woods v. State, 255 Ga. App. 265, 268 (3) (564 SE2d 853) (2002) (holding that eyewitness’s prior consistent statements were admissible because his veracity was attacked at trial, and, because statements were made within minutes of the violent incident and while the eyewitness was still upset, were also admissible as part of the res gestae). See generally OCGA § 24-3-3 (“Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.”).

        See Wood v. State, 239 Ga. App. 707, 709 (2) (522 SE2d 51) (1999) (holding that although the proper basis for admitting evidence was not the basis expressed by the trial court, a trial court’s evidentiary ruling must be affirmed if it is right for any reason).

        Scales v. State, 310 Ga. App. 48, 51 (2) (a) (i) (712 SE2d 555) (2011) (punctuation omitted).

        Id.

        Ortiz v. State, 295 Ga. App. 546, 549 (2) (672 SE2d 507) (2009) (punctuation omitted).

        See Holmes v. State, 266 Ga. 530, 531 (2) (468 SE2d 357) (1996).


text:
    A11A2095.
    JACKSON v. CAVALRY PORTFOLIO SERVICES, LLC.
    (723 SE2d 475)
   DOYLE, Presiding Judge.

Tonisha Jackson appeals from the grant of summary judgment to Cavalry Portfolio Services, LLC (“Cavalry”) in its action on a credit card contract filed against Jackson. She contends that the trial court erred by entering a judgment in reliance on the affidavit and exhibits supporting Cavalry’s motion. For the reasons that follow, we agree and 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. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Cavalry’s complaint alleged that Jackson had entered into a credit card agreement with MBNA America Bank, N. A., which account was ultimately assigned to Cavalry. According to the complaint, Jackson had defaulted on her $10,029.61 balance, and Cavalry was entitled to recover the principal balance, $1,929.59 in interest, additional interest at the rate of 24.990%, plus $1,190.01 in attorney fees.

Jackson filed a timely answer and denied the allegations. Cavalry moved for summary judgment and attached a supporting affidavit signed by an employee, Kristina Pagni. Based on her personal knowledge and certain attached business records, Pagni averred that Jackson had entered into a credit card agreement with Cavalry’s predecessor, she had defaulted on the payments due, and the balance due of $10,029.61 was “charged off” by the predecessor. The affidavit further stated that the predecessor “indicated to [Cavalry] at the time of the transfer of the account [from the predecessor to Cavalry] that the balance was $10,029.61.” Finally, the affidavit concluded:

Since [Cavalry] turned over this account to its collection attorney, no payments have been received and it is [Cavalry’s] understanding from its attorney that no payments have been made since the account was turned over and the principal sum of $10,029.61 is due, with interest in the amount of $3,330.46, additional interest at the rate of 24.990% per annum from the date of December 10, 2010.

Jackson opposed the motion, and after reviewing the record and relevant case law, the trial court granted Cavalry’s motion, entering a judgment as follows: “principal amount of $10,029.61, $3,447.20 interest through the date of December 27, 2010, continuing interest at the rate of 24.990% per annum and $1,190.01 in attorney’s fees, plus all costs of court.” Jackson now appeals.

Under the summary judgment statute, OCGA § 9-11-56 (c), “[t]he judgment sought shall be rendered forthwith 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.” Thus, Cavalry’s motion, affidavit, and supporting documents must demonstrate that it is entitled to judgment on its breach of contract claim by proving the breach and resultant damages.

With respect to the amount of unpaid principal balance, Pagni’s statement in the affidavit that Cavalry’s predecessor in August 2009 “indicated to” Cavalry “that the balance was $10,029.61” is not sufficient to show the actual balance due Cavalry because the statement is mere hearsay not subject to an exception. Also inadmissible is Pagni’s statement that “it is [Cavalry’s] understanding from its attorney that no payments have been made since the account was turned over and the principal sum of $10,029.61 is due.” Such hearsay has no probative value whatsoever.

It is well settled that affidavits in support of or in opposition to motions for summary judgment must set forth such facts as would be admissible in evidence. . . . Hearsay, opinions, and conclusions in affidavits are inadmissible on summary judgment. And while a statement in an affidavit that it is based upon personal knowledge is generally sufficient to meet the requirement that affidavits be made upon such knowledge, if 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.

DeCided February 16, 2012.

The only evidence of the actual balance due is a single credit card statement from July 2009 showing a balance of $10,029.61, but with only $2,463 due as a minimum payment. This does not support the damages award in the trial court’s order, and viewed in favor of Jackson, the July 2009 account statement conflicts with the affidavit’s averment that the entire balance was due in August 2009. Thus, for purposes of granting summary judgment to Cavalry, the actual amount due Cavalry was not sufficiently proved in the record before us.

Likewise, with respect to the trial court’s award of past interest (in the amount of $3,330.46), the only evidence of this value is Cavalry’s “understanding from its attorney.” The same is true for the 24.990% interest rate imposed by the trial court’s order. Neither the account statement nor the credit card agreement contain this interest rate. A party’s “understanding from its attorney,” as opposed to the witness’s personal knowledge or reliance on admissible business records, is a wholly inadequate factual basis for an award of summary judgment.

In light of the deficiencies of Cavalry’s affidavit and exhibits supporting its motion for summary judgment, the trial court erred by granting Cavalry’s summary judgment motion.

Judgment reversed.

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

William R. Carlisle, for appellant.

Sherwin P. Robin, for appellee.

         Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       A transcript of a hearing, if any, was not included in the appellate record.

       See Norton v. Budget Rent A Car System, 307 Ga. App. 501, 502 (705 SE2d 305) (2010) (“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.”) (punctuation omitted).

       (Emphasis supplied.)

       See OCGA § 24-3-1 (a) (“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons”).

       (Emphasis supplied.)

       See U. S. Lawns, Inc. v. Cutting Edge Landscaping, LLC, 311 Ga. App. 674, 678, n. 2 (716 SE2d 779) (2011).

       (Punctuation omitted.) Goddard v. City of Albany, 285 Ga. 882, 887 (6) (684 SE2d 635) (2009).

       See Matjoulis, 226 Ga. App. at 459 (1).

       The billing statement explains that late payment may result in an increase in interest rate, but it does not state that late payment will accelerate the loan and make the entire balance due immediately.

       See Ponder v. CACV of Colo., LLC, 289 Ga. App. 858, 859 (658 SE2d 469) (2008) (reversing grant of summary judgment because the record was devoid of evidence supporting an essential element of breach of contract claim).


author: Adams, Judge.

text:
    A11A2155, A11A2156, A11A2157.
    FULTON COUNTY BOARD OF TAX ASSESSORS v. FAST EVICTIONS, LLC (three cases).
    (723 SE2d 461)
   Adams, Judge.

These three cases all involve a single identical issue, but the appellant has failed to show error, and we therefore affirm.

The facts are not in dispute. In each of the three cases, the taxpayer raised an appeal with the Fulton County Board of Tax Assessors to its 2010 tax valuation assessment for a parcel of real property in Fulton County. In each case and on the same day, the taxpayer submitted a notice of appeal to the board and elected to use the arbitration provisions of OCGA § 48-5-311 (f). Then, on July 26, 2010 and as required by that Code section, the taxpayer submitted in each case a copy of a certified written appraisal stating the estimated value of the subject property. That action triggered the beginning of the first of two 45-day periods; in the first 45-day period (ending on September 9, 2010) the board of assessors was required to either formally accept or reject the taxpayer’s appraisal:

Within 45 days of receiving the taxpayer’s certified appraisal, the board of assessors shall either accept the taxpayer’s appraisal, in which case that value shall become final or the county board of tax assessors shall reject the taxpayer’s appraisal, in which case the county board of tax assessors shall certify within 45 days the appeal to the clerk of the superior court of the county in which the property is located along with any other papers specified by the person seeking arbitration under this subsection, including, but not limited to, the staff information from the file used by the county board of tax assessors.

OCGA § 48-5-311 (f) (3) (A). The fact that the statute provides for two, 45-day periods has recently been established by this Court. Fulton County Bd. of Tax Assessors v. Greenfield Inv. Group, LLC, 313 Ga. App. 195 (721 SE2d 128) (2011). As explained therein, the above quoted language establishes these two periods:

(1) the period following a board’s receipt of the taxpayer’s appraisal, within which the board must formally decide to accept or reject the appraised value; and (2) the period following a board’s decision to reject the appraised value, if it so decides, within which the board must certify the taxpayer’s appeal to the superior court so that the arbitration process can begin.

(Emphasis supplied.) Id. at 198. The same subsection of the statute goes on to provide that should the board of assessors fail to either accept or reject the taxpayer’s appraisal within the first 45-day period, “then the certified appraisal shall become the final value.” OCGA § 48-5-311 (f) (3) (A).

In each case on appeal herein, the record shows that on September 23, 2010, 53 days after the taxpayer submitted the certified appraisal, the board of assessors notified the taxpayer that it had rejected the taxpayer’s appraisal and adopted a different recommended value for the subject property. But there is no indication in the record of when the board made its decision. Then, on October 5, 2010, 71 days after submission of the appraisal, the board certified the matter to the superior court for binding arbitration.

On November 8, 2010, in each of the three cases, the taxpayer moved the trial court to stay the arbitration and recognize the assessed value as automatically established by the board’s failure to either accept or reject its appraisal within 45 days of when it was submitted. Following a hearing on the matter, the trial court ruled in favor of the taxpayer:

[T]he Court finds that the Board of Tax Assessors did not timely reject the value set forth in the certified appraisal and has determined that the value set forth in that appraisal is the final value pursuant to OCGA § 48-5-311 (f) (3) (A).

On appeal, the board contends the lower court erred by holding that OCGA § 48-5-311 (f) requires the board to notify the taxpayer of its decision within 45 days of receipt of the taxpayer’s appraisal. The lower court, however, did not so hold; it held that the board failed to formally accept or reject the taxpayer’s appraisal within that time period. Compare Greenfield, 313 Ga. App. at 196 (although board failed to give taxpayer notice of its decision within the first 45-day period, the record established that the board made its decision to reject the taxpayer’s appraisal at a regular meeting of the board held 39 days after receipt of the appraisal).

In the present cases, however, the board has completely failed to show when the board made its decision to reject the taxpayer’s appraisals. Furthermore, although there was a hearing on this matter in the court below, there is no transcript of that hearing in the appellate record. In its order, the trial court indicated that at the hearing, it considered “arguments of counsel, the record and matters submitted by the parties without objection at the hearing. ” (Emphasis supplied.) The appellant admits that after discovering that no transcript had been produced for that hearing, it amended its notice of appeal to delete the notice that a transcript would be filed. The appellant has not taken other steps available to perfect the record with any such information. See OCGA § 5-6-41.

Thus, based on the record before us, we cannot conclude that the trial court erred by deciding that the board failed to “timely reject” the taxpayer’s appraisals. And even if the specific point was discussed at the hearing below, where a transcript is essential for resolution of an appeal and the appellant chooses to omit the transcript from the appellate record, the appellant “has failed to meet his burden of showing error, [and] the judgment of the trial court must be affirmed.” Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981). See also Holmes v. Roberson-Holmes, 287 Ga. 358, 360-361 (1) (695 SE2d 586) (2010) (rules regarding transcript).

Although, we have held that time limitations imposed on tax authorities under OCGA § 48-5-311 are directory rather than mandatory and that substantial compliance is sufficient even when the statute uses the word “shall,” see Greenfield, 313 Ga. App. at 196, and cases cited therein, the relevant statutory language here does not pertain to a time for taking action, rather, it expressly specifies the effect of a failure to take timely action:

In the event that the county board of tax assessors neither accepts nor rejects the value set out in the certified appraisal within such 45 day period, then the certified appraisal shall become the final value.

OCGA § 48-5-311 (f) (3) (A). Indeed, it is precisely when there is an express statement describing a penalty for doing a thing at a later time that a provision will be held to be mandatory rather than discretionary:

[Llanguage contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act.

Decided February 16, 2012.

Johnson & Freeman, Raymond C. Humphrey, for appellant.

Evans, Scholz, Williams & Warncke, Robert W. Scholz, for appellee.

Barton v. Atkinson, 228 Ga. 733, 739 (1) (187 SE2d 835) (1972). See also Glass v. City of Atlanta, 293 Ga. App. 11, 15 (2) (a) (666 SE2d 406) (2008) (“[I]n the absence of injury to the defendant, a statute which directs that some act be done within a given time period, but prescribes no penalty for not doing it within that time, is not mandatory but directory; that is, that in such instances ‘shall’ denotes simple futurity rather than a command.”) (punctuation omitted). Here, because the statute specifies the effect of the failure of the board to accept or reject the taxpayer’s appraisal within 45 days, that language must be enforced.

Our decision is not inconsistent with Greenfield, because in that case, the punitive language was not triggered:

[T]he undisputed evidence established that, within 45 days of receiving the taxpayer’s certified appraisal, the Board decided, in the manner in which it was authorized to act, that is, by a vote of the members at a properly convened meeting, to reject the value set out in the appraisal.

Id. at 199. Here, there is no such evidence. And Greenfield did not specifically analyze the effect on the construction of the statute of the punitive language quoted above.

Finally, we find no merit in the board’s argument that the taxpayer was precluded from raising this issue below.

Judgment affirmed.

Barnes, E J., and Blackwell, J., concur.