author: McMillian, Judge.

text:
    A15A1007.
    BENNETT v. THE STATE.
    (779 SE2d 420)
   McMillian, Judge.

Keith Bennett appeals the trial court’s denial of his motion for new trial following his conviction on October 24, 2013 for trafficking methamphetamine in a quantity of 200 or more grams, possession of methamphetamine with the intent to distribute, possession of clonazepam, possession of a firearm during the commission of a crime, and possession of a gun by a convicted felon. We affirm.

Viewed in the light most favorable to the verdict, the evidence showed that on October 17, 2012, Kenny Pogue drove Bennett and Pogue’s friend, Kelsey Lambert, in Pogue’s vehicle to a prearranged methamphetamine transaction with Mark Pham. Pogue subsequently pled guilty to charges arising from this incident, and the State called him as a witness against Bennett at trial. Although Pogue refused to answer most of the prosecutor’s questions on direct examination, Pogue testified on cross-examination that Bennett had a gun and drugs when he got into Pogue’s car. He said that the three individuals in the car combined their drugs into one bag and hid it under the dash because they were concerned that Pham would rob them of their drugs. He also said that Bennett rode with him to the meeting with Pham to make sure that Pogue repaid money he owed to one of Bennett’s friends from a prior drug deal.

The State also introduced evidence of Pogue’s testimony during his guilty plea hearing. During that testimony, Pogue stated that before the meeting, Bennett, Lambert, and he combined their supply of drugs into one bag, and Pogue put the bag under the dash of his car. They then met with one of Bennett’s friends, who put another bag of drugs under the hood of Pogue’s car. Because Bennett’s friend did not trust Pogue, Bennett accompanied Pogue to keep an eye on his friend’s drugs and to make sure that Pogue brought the money back to his friend. Lambert testified that before arriving at the arranged location, Pogue stopped the car and pulled two guns out from underneath his seat, handing one gun to Bennett and keeping the other one himself.

Unbeknownst to the three people in the car, Pham was a confidential informant, who was working with the Hall County MultiAgency Narcotics Squad to set up a controlled buy from Pogue. When the three approached the vacant house where the meeting was to take place and spotted police officers, Pogue and Bennett threw their guns out of the car windows. The officers subsequently retrieved the two guns, along with a small bag of pills and a small baggie of methamphetamine from the area where they had observed items thrown from the car. After Pogue, Bennett, and Lambert were taken into custody, the officers conducted a search of the vehicle. A bag of methamphetamine weighing 175.05 grams was discovered under the dashboard of the car. The officers also found a magnetic box under the car’s hood containing 361.31 grams of methamphetamine, marijuana, oxycodone pills, a set of scales, and a ledger. Police further discovered $7,500 in cash in the car’s glove compartment.

During a taped interview with the police that was played during the trial, Bennett admitted that he suspected Pogue was a drug dealer and that he agreed to ride with him to a vacant house that night to meet a man who owed Pogue money. Bennett decided to ride with Pogue because Pogue owed money to Bennett’s friend, who had asked Bennett to make sure nothing happened to Pogue. Bennett accepted a gun from Pogue in the car, which Pogue described as “insurance.” Bennett suspected that there might be trouble and was scared when Pogue handed him the gun. Bennett denied actual knowledge that there were drugs in the car. However, when an officer recited the events of that night, including that Bennett knew that Pogue was a drug dealer, that Pogue was “probably carrying dope,” and that they were collecting money for a drug debt, he asked Bennett to tell him if that basically was what happened that night. Bennett replied, “That is basically what happened,” and he did not correct any portion of the officer’s recitation.

1. We first address Bennett’s assertions that the trial court impermissibly allowed unsworn testimony from Pogue and improperly admitted Pogue’s prior testimony from his guilty plea hearing to impeach him.

When the State called Pogue to the stand, he refused to take the oath and announced that he would not testify because he did not want to “get stabbed” in prison for his testimony at trial. In response, Bennett’s trial counsel asked that Pogue not testify. After the lawyers conferred with the trial judge, the prosecutor tried again to administer the oath to Pogue. But he again refused, and the prosecutor requested to proceed with unsworn testimony. The trial court granted the request without objection from Bennett’s counsel. And trial counsel later cross-examined Pogue, eliciting further unsworn testimony.

(a) Georgia law provides: “Before testifying, every witness shall be required to declare that he or she will testify truthfully by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.” OCGA § 24-6-603 (a). However, it is well settled that the failure to object to unsworn testimony waives the issue for appeal. See Brown v. State, 290 Ga. 321, 322 (4) (720 SE2d 617) (2012); Chapman v. State, 257 Ga. 19, 20 (3) (354 SE2d 149) (1987); Sweeting v. State, 291 Ga. App. 693, 694 (662 SE2d 785) (2008); Hilson v. State, 204 Ga. App. 200, 203 (1) (418 SE2d 784) (1992). Although Bennett asserts on appeal that his counsel objected to Pogue’s testimony, the cited portions of the record failed to preserve Bennett’s argument for review by this Court. After Pogue initially refused to take the oath, Bennett’s attorney stated, “I ask that he not testify,” without articulating the reason for the request or the grounds for any objection. Further, he raised no objection at the time the State requested that Pogue be allowed to provide unsworn testimony. Although Bennett’s attorney objected on relevance grounds to questioning about Pogue’s being “jumped” while in prison, Bennett has not cited us to any objection raised by his counsel to the fact that Pogue gave unsworn testimony. “[I]n order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.” (Citation and punctuation omitted.) Hites v. State, 296 Ga. 528, 530 (2) (769 SE2d 364) (2015).

Accordingly, we find that Bennett waived any objection to Pogue’s unsworn testimony.

(b) Bennett also argues that the trial court erred in allowing the State to introduce Pogue’s testimony from his guilty plea hearing. During the State’s direct examination, the prosecutor asked Pogue about the individual statements he made in his proffer at the guilty plea hearing, and he responded by stating “I don’t know” or “I don’t remember” to the State’s questions. He gave similar answers when questioned about his prior statements to police. However, when Bennett’s trial counsel cross-examined Pogue about his prior convictions, his prior statements to police, and the drugs and guns present the day of the crime, Pogue answered his questions. The trial court later allowed the State to call a victim advocate who was present at Pogue’s guilty plea hearing to read the transcript of the proffer Pogue made at that time.

Prior to the enactment of the new Evidence Code,

a guilty plea of a joint offender [was] not admissible in evidence at the trial of another joint offender. This rule [did] not apply where the joint offender [was] present at trial and [testified] as a witness subject to cross-examination. Nor [did] it apply where the joint offender’s guilty plea [was] admitted with instructions that it not be used as evidence of the defendant’s guilt.

Pinckney v. State, 236 Ga. App. 74, 74-5 (1) (510 SE2d 923) (1999). However, Bennett was tried in 2013, after the effective date of Georgia’s new Evidence Code. See Ga. L. 2011, p. 99, § 101 (new Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013). The Pinckney case, upon which Bennett relies, was decided under former OCGA § 24-3-52, 236 Ga. App. at 75 (1), which was repealed with no directly corresponding provision under the new Code. See Ga. L. 2011, p. 99, § 2. But see Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 504 (3d ed. 2015) (suggesting that OCGA § 24-3-52 may have been subsumed within OCGA § 24-8-801 (d) (2) (E) regarding the admission of statements by co-conspirators made in furtherance of a conspiracy).

We need not determine whether the holding in Pinckney has current application in this case because Bennett failed to preserve the issue for appeal. When the State offered the transcript of the guilty plea into evidence as a prior inconsistent statement, Bennett’s counsel objected to the admission of the transcript on procedural grounds, and the trial court refused to admit the transcript through Pogue’s testimony. The next day, the State called the victim advocate who had attended the plea hearing, and, after argument, the trial court allowed her to read the transcript to the jury. Bennett’s counsel apparently renewed his objection to the procedure as well as a prior objection on the grounds that reading the transcript would be “redundant and cumulative” to Pogue’s cross-examination the previous day. Because Bennett’s counsel never raised any specific objection on the ground of Pogue’s status as a joint offender as described in Pinckney, he waived the issue for appeal. See Bailey v. State, 273 Ga. 303, 306-07 (4) (540 SE2d 202) (2001).

2. Bennett also argues that the evidence presented at trial was insufficient to support his convictions because he asserts that only Pogue’s testimony tied him to any of the drugs found in the car.

On appeal, we do not weigh evidence or determine the credibility of the witnesses. Rather we consider whether, viewed in the light most favorable to the verdict, the evidence is sufficient for a rational trier of fact to find Bennett guilty of the crimes of which he was convicted beyond a reasonable doubt. Clark v. State, 296 Ga. 543, 545 (1) (b) (769 SE2d 376) (2015).

Under Georgia’s new Evidence Code, the testimony of a single accomplice is generally insufficient to support a felony conviction and must be corroborated with other evidence. OCGA § 24-14-8. This Code section is “virtually identical” to former OCGA § 24-4-8, and the Federal Rules of Evidence contain no comparable provision. Bradshaw v. State, 296 Ga. 650, 653 (2) (769 SE2d 892) (2015). Accordingly, “we give the new accomplice provision the same meaning as the old one.” Id. at 654 (2). And Georgia courts have interpreted the accomplice provision to mean that “sufficient corroborating evidence may be circumstantial, it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged.” (Citation omitted.) Clark, 296 Ga. at 547 (1) (d). See also Odle v. State, 331 Ga. App. 146, 150 (770 SE2d 256) (2015) (only slight evidence is required to corroborate an accomplice’s testimony and the independent corroborating evidence need only justify an inference that the defendant is guilty). “And whether the State presents sufficient corroboration of the accomplice’s testimony is peculiarly a matter for the jury to determine.” (Citation and punctuation omitted.) Hines v. State, 320 Ga. App. 854, 857-58 (1) (740 SE2d 786) (2013).

Moreover,

[e]ven if a person does not directly commit the crime, a person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Whether a person is a party to a crime may be inferred from that person’s presence, companionship, and conduct before, during and after the crime.

(Citations and punctuation omitted.) Green v. State, 298 Ga. App. 17, 20 (1) (679 SE2d 348) (2009). See also Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006).

In the instant case, Pogue’s testimony incriminating Bennett wás corroborated, inter alia, by evidence that Bennett was arrested as a passenger in a vehicle containing over 500 grams of methamphetamine, marijuana, clonazepam pills, a digital scale, and a large amount of cash in a drug sting operation; by Bennett’s own admissions that he suspected Pogue was a drug dealer, that he knew Pogue “probably” had drugs in the car, that he was in the car with Pogue to help him collect a drug debt, and that he was there to protect Pogue; and by Lambert’s testimony that Bennett accepted a gun from Pogue and threw it out the window when he saw police. We find that this and other evidence at trial was sufficient to support Bennett’s convictions beyond a reasonable doubt. See Green, 298 Ga. App. at 21 (accomplice’s statements were sufficiently corroborated by evidence that a weapon was located under the defendant’s feet and a black bag containing drug money was found within arm’s reach of the defendant).

3. Bennett further asserts that a fatal variance exists between the indictment and the verdict reached by the jury with regard to the charge of trafficking in methamphetamine because the trial court charged the jury on trafficking in more than 200 grams of methamphetamine, in addition to charging them on trafficking in more than 400 grams of methamphetamine, as alleged in the indictment.

(a) Under OCGA § 16-13-31 (e),

[a]ny person who sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine.

The statute delineates three levels of punishment for trafficking in methamphetamine depending upon the quantity of methamphetamine involved. “If the quantity of methamphetamine, amphetamine, or a mixture containing either substance involved is 28 grams or more, but less than 200 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of ten years and shall pay a fine of $200,000.00” under subsection (e) (1). If that quantity “is 200 grams or more, but less than 400 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and shall pay a fine of $300,000.00” under subsection (e) (2). And if the quantity “is 400 grams or more, the person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $1 million” under subsection (e) (3).

Bennett was charged with trafficking by knowingly possessing more than 400 grams of methamphetamine under OCGA § 16-13-31 (e) (3), and the evidence at trial showed that methamphetamine was found in Pogue’s vehicle in two places, with 175.05 grams of methamphetamine in a bag under the dash of the car and 361.31 grams of methamphetamine in a black box under the hood of the car. During the charge conference, the State requested that, in addition to charging the jury with the amount specified under subsection (e) (3) of OCGA § 16-13-31, the trial court also charged the jury under subsections (e) (1) and (e) (2). Bennett’s counsel did not object to the charge, but instead replied:

If we do this, ... we would be giving 400 grams as charged, 28 grams trafficking, simple possession if they can’t make up their mind, and while you are at it, to be thorough, I guess over 200, which wouldn’t make a lot of sense, honestly, but I guess you have to be complete, because we would say if we are going trafficking only, give us simple possession. I don’t know if the 200 makes any sense, except for the fact that the co-defendant pled to 200, so in a sense of fairness, the jury may decide that that works. And since one bag was over 175 grams, add a little more, we could be guilty of over 200. A lot of [verdict] form to give [the jury], but if we are going to go 400 and 28 possession, we might as well —

The trial judge then interjected, “Yeah, if I’m going to give them one lesser, I guess I have to give all of the lessers. So then you are okay with that?” Bennett’s counsel responded, “I don’t love it, but if we’re going to give one, we’ll give them all.” The jury ultimately convicted Bennett of “trafficking in methamphetamine (200 or more grams),” in lieu of the other alternative offenses. Bennett argues that this process resulted in a fatal variance between the form of the indictment and his conviction. We disagree.

Georgia courts do not apply an overly technical analysis to a claim of fatal variance, but rather focus on the materiality of any discrepancy.

The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.

(Citation omitted.) Green v. State, 301 Ga. App. 343, 344 (687 SE2d 623) (2009). See also DePalma v. State, 225 Ga. 465, 469-70 (3) (169 SE2d 801) (1969).

We find that trafficking in methamphetamine in a quantity of 200 or more grams is a lesser included offense of trafficking in methamphetamine in a quantity of 400 or more grams, because proof of the former is necessarily included in the latter (i.e., a defendant cannot possess 400 or more grams without possessing 200 or more grams). And it is well settled that

an indictment not only charges the defendant with the specified crime, it also embraces all lesser included offenses of the charged offense. An indictment places an accused on notice that he can be convicted of the crimes expressly charged as well as lesser crimes that are included in the charged offenses as a matter of law or fact. Indeed, if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense.

Decided November 10, 2015.

Cynthia W. Harrison, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

(Citation omitted.) Bryant v. State, 320 Ga. App. 838, 842-43 (3) (740 SE2d 772) (2013). See also OCGA § 16-1-6 (1) (“An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when... [i]t is established by proof of the same or less than all the facts ... than is required to establish the commission of the crime charged”). Bennett was both charged with and convicted of trafficking in methamphetamine in some amount. The fact that the jury found him guilty of trafficking in a smaller amount of methamphetamine than the indictment alleged does not give rise to a fatal variance.

(b) Moreover, to the extent that Bennett is arguing that the trial court’s charge on trafficking methamphetamine constituted plain error, we find that his counsel invited any error by agreeing to the charge and thus affirmatively waived appellate review for plain error. See Hicks v. State, 295 Ga. 268, 275 (2) (759 SE2d 509) (2014); Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012); Cheddersingh v. State, 290 Ga. 680, 682-84 (2) (724 SE2d 366) (2012) (Affirmative waiver requires that a “deviation from a legal rule must have been intentionally relinquished or abandoned.”) (citation and punctuation omitted).

Accordingly, we affirm the trial court’s denial of Bennett’s motion for new trial.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       That statute “provided, in toto, that ‘(t)he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.’ ” Allen v. State, 296 Ga. 785, 788 (5) (770 SE2d 824) (2015).

       The argument on this issue took place in the morning before the trial started for the day and apparently was not taken down by the court reporter.

       In fact, under the federal rules the “ ‘uncorroborated testimony of an accomplice is sufficient to support a conviction in the Federal Courts if it is not on its face incredible or otherwise insubstantial.’ United States v. LeQuire, 943 F2d 1554, 1562 (11th Cir. 1991).” (Punctuation omitted.) Bradshaw, 296 Ga. at 654.

       Stated another way, under the required evidence test set out in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006), because trafficking in 200 or more grams does not require proof of any element that trafficking in 400 or more grams does not also require, the former is a lesser included offense of the latter. See Jernigan v. State, 333 Ga. App. 339, 343 (3) (775 SE2d 791) (2015) (under the Drinkard test, court examines “whether each offense requires proof of a fact which the other does not”) (citation and punctuation omitted; emphasis supplied); Stuart v. State, 318 Ga. App. 839, 842-43 (734 SE2d 814) (2012) (Drinkard test applies to determine whether one offense is a lesser included offense of another).


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A15A1262.
    FOUNDERS KITCHEN & BATH, INC. v. ALEXANDER et al.
    (779 SE2d 668)
   MCFADDEN, Judge.

This is a materialman’s lien case in which the trial court granted a defense motion for summary judgment on the grounds that the parties are in privity of contract and thus the complaint is barred by the 365-day time limit imposed by OCGA § 44-14-361.1 (a) (3). But contrary to the trial court’s finding, there exist genuine issues of material fact as to whether the parties are in privity of contract and whether the time limit provided by OCGA § 44-14-361.1 (a) (3) applies to the complaint in this case. Accordingly, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.

Stennette v. Miller, 316 Ga. App. 425, 426 (729 SE2d 559) (2012) (citation omitted).

So viewed, the evidence shows that Debra and James Alexander (the “Alexanders”) contracted with Cirillo Custom Homes, Inc. (“Cirillo”) for the construction of a house. Cirillo contracted with Founders Kitchen & Bath, Inc. (“Founders”) for the installation of kitchen cabinets. Pursuant to its agreement with Cirillo, Founders installed cabinets in the Alexanders’ home. On September 25, 2007, Founders filed a claim of lien against the property. It provided notice of the claim of lien to the Alexanders on March 5, 2008. On February 28, 2008, Founders filed an action on its claim of lien against Cirillo, claiming that Cirillo had not paid. The record does not reveal what has become of that action against Cirillo. But on May 2, 2014, Founders filed the instant complaint to foreclose its materialman’s lien against the Alexanders.

The Alexanders moved for summary judgment, claiming that Founders’ president admitted in deposition testimony that Founders had a contract with the Alexanders; that as a result of such contractual privity, Founders was required by OCGA § 44-14-361.1 (a) (3) to commence its lien action against them within 365 days of when the claim became due; that Founders failed to meet that deadline, having filed its complaint against them more than six years after its claim of lien was filed; and that Founders’ action is thus time-barred. The trial court granted the motion, stating that it was “treating [Founders’] complaint as having been filed under OCGA § 44-14-361.1 (a) (3), thus construing [Founders’] owner’s conflicting deposition testimony against him, finding that [Founders] was in privity [of contract] with [the Alexanders] concurrently with being in privity with Cirillo.” The trial court went on to conclude that Founders’ action against the Alexanders was time-barred since it was filed “well outside the 365-day term provided by OCGA § 44-14-361.1 (a) (3).”

Founders appeals, asserting that the trial court erred in finding that its complaint against the Alexanders is barred by the 365-day time limit set forth in OCGA § 44-14-361.1 (a) (3). We agree.

Our Supreme Court has summarized the statutory scheme at issue.

The Georgia General Assembly has enacted a detailed statutory scheme for creating special liens on real property, including liens of materialmen who furnish materials for the building, repairing, or improving of the property. OCGA § 44-14-361.1 (a) sets out the provisions for perfecting a lien. These provisions require a materialman who has substantially complied with the contract for materials to (a) file a claim of lien in the county where the property is located within three months of furnishing the materials; (b) send a copy of the lien claim to the property owner; (c) commence an action against the contractor to recover the amount of the claim within [365 days] of when the claim became due; and (d) file a notice of the action with the superior court clerk of the county where the lien was filed so that the clerk can enter information about the lawsuit in county records. [See OCGA § 44-14-361.1 (a) (l)-(3).]
Subparagraph (a) (4) of OCGA § 44-14-361.1 permits the materialman to bring an action directly against the property owner to enforce the lien against the property without filing an action or obtaining judgment against the contractor as a prerequisite to enforcing a lien against the property in limited circumstances. A direct action against the owner is allowed when the contractor dies or leaves the state, is adjudicated a bankrupt, or has a contract with the lien claimant requiring that the contractor be paid before the supplier. OCGA § 44-14-364 permits the property owner to discharge the lien on its real estate by filing a bond in the superior court clerk’s office.
The legislature has mandated strict compliance with these statutory provisions. OCGA § 44-14-361.1 expressly provides that liens shall not be effective or enforceable unless created or declared according to the statute. In addition, this [c]ourt has followed the rule that lien statutes in derogation of the common law must be strictly construed in favor of the property owner and against the materialman. The rationale is that there is usually no contract between the owner and supplier. Instead, a materialman’s lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used in improving real estate to the owner of the improved property.

Few v. Capitol Materials, 274 Ga. 784, 784-785 (1) (559 SE2d 429) (2002).

The instant case involves an action brought by materialman Founders directly against the Alexanders as property owners, not the action brought against contractor Cirillo. As noted above, OCGA § 44-14-361.1 (a) (3) requires that “the lienholder must commence an action for the recovery of the amount of the claim against the contractor within [365 days] of when the claim became due.” Action Concrete v. Portrait HomesLittle Suwanee Point, 285 Ga. App. 650, 652 (2) (647 SE2d 353) (2007) (emphasis supplied). Our Supreme Court has held that 365-day deadline applicable only to claims against the contractor.

[T]he requirement of the statute as to the time within which the action shall be commenced relates to the action in personam against the contractor, and not to the action against the owner of the real estate. If this were not true, the right of the materialman to foreclose his lien against the real estate might be wholly defeated, without fault on his part, by such delay in the trial of the action against the contractor as to make it impossible to commence foreclosure proceedings against the owner within [365 days] from the time when the claim became due.

Southern R. Co. v. Crawford & Slaten Co., 178 Ga. 450, 451 (173 SE 91) (1934) (citation omitted).

Consequently, as the underlying action in this case is not against the contractor, the time limit set forth in OCGA § 44-14-361.1 (a) (3) does not apply unless the Alexanders were effectively acting as their own contractors and had a contract for supplies directly with Founders. See Southern R. Co., supra at 451 (distinguishing “Cherry v. North & South Railroad, 65 Ga. 633, in which the lien was claimed under a contract made directly with the owner”); Roofing Supply of Atlanta v. Forrest Homes, 279 Ga. App. 504, 506 (1) (632 SE2d 161) (2006) (finding that property owner may also be its own contractor within meaning of the statute). But contrary to the trial court’s finding, the record shows that there is, at the very least, a genuine issue of material fact as to whether such contractual privity exists between Founders and the Alexanders.

We first note that Founders’ complaint makes no allegation of any contract with the Alexanders, and instead only alleges its contract with Cirillo. Likewise, the answer of the Alexanders expressly averred that they had no contract with Founders. Moreover, the Alexanders both deposed that there was no contract with Founders. Thus, the trial court’s decision to “treat [Founders’] complaint as having been filed under OCGA § 44-14-361.1 (a) (3)” is directly-contradicted by the pleadings and the summary judgment movants’ own testimony.

As for the trial court construing Founders’ president’s conflicting deposition testimony against him as basis for finding that the parties are in privity of contract, we note that the trial court failed to identify precisely what testimony it was construing. The Alexanders argue that the trial court was referring to the president’s deposition testimony describing a list of the cabinets and other items that were installed by Founders as “[a] contract between us and the Alexanders.” However, whether that document constituted a binding contract between the parties was a legal conclusion that should not have been considered as evidence on a motion for summary judgment. GE Capital Mtg. Svcs. v. Clack, 271 Ga. 82, 84 (1) (b) (515 SE2d 619) (1999).

Furthermore, the trial court mistakenly applied the self-contradicting testimony rule set out in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

The Prophecy rule requires trial courts, when considering summary judgment motions, to (1) eliminate all portions of a party’s self-contradictory testimony that are favorable to, and left unexplained by, that party; and (2) consider the remaining evidence in favor of the party opposing summary judgment.

Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749) (2000) (citation omitted). However, “[contradictory testimony is not to be construed against a party if he offers a reasonable explanation for the contradiction.” Bradley v. Winn-Dixie Stores, 314 Ga. App. 556, 557, n. 8 (724 SE2d 855) (2012) (citation omitted).

In this case, the purported contradiction in the testimony of Founders’ president is not unexplained. At the same deposition where the president identified the list of supplies as being a contract with the Alexanders, the president later testified that the contract to sell materials was actually with Cirillo, and he further acknowledged that there was nothing on the list which provided that it was a contract between Founders and the Alexanders. The president also provided an affidavit in which he stated that his testimony regarding the existence of any contract was mistaken and that no contractual privity had existed between the parties. Indeed, a review of the document reveals that it does not constitute a contract between Founders and the Alexanders. See OCGA § 13-3-1. Thus, the purported contradictory statements of Founders’ president were not left unexplained and should not have been construed against Founders by the trial court.

Decided November 10, 2015.

Busch, Reed & Jones, Jeffrey S. Leeper, Cory C. Close, for appellant.

Weissman, Nowack, Curry & Wilco, Jeffrey H. Schneider, for appellees.

Under these circumstances, there is, at the very least, a genuine issue of material fact as to whether Founders and Alexander are in contractual privity. Because there exists such a genuine issue of material fact, the trial court erred in finding otherwise and in granting summary judgment to the Alexanders on the basis that the complaint is barred by the 365-day time limit of OCGA § 44-14-361.1 (a) (3).

We do not decide what statute of limitation does apply to the complaint in this case. That is an issue better developed upon the return of the case to the trial court.

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.


author: Ray, Judge.

text:
    A15A1289, A15A1908.
    In the Interest of M. D. H., a child (two cases).
    (779 SE2d 433)
   Ray, Judge.

M. D. H., a juvenile, appeals from the juvenile court’s order granting his motion to dismiss a delinquency petition filed against him. In its order, the juvenile court dismissed the petition without prejudice. On appeal, M. D. H. contends that the juvenile court should have dismissed the petition with prejudice because the State failed to comply with the deadline for filing a petition alleging delinquency under OCGA § 15-11-521 (b). Because M. D. H. raises the same issue in both Case Nos. A15A1289 and A15A1908, we consolidate these cases on appeal. For the following reasons, we affirm.

On December 5,2014, a complaint was filed against M. D. H. with the Juvenile Court of Cherokee County. The complaint alleged that M. D. H. “sent threatening text messages telling people he was going to bring guns to school... [and] threatened to kill his friend if he told anyone about his plans.” On that same day, a detention hearing was held, and the child was not detained. On January 6, 2015, a petition alleging delinquency was filed in the juvenile court. On January 12, 2015, M. D. H. filed a motion to dismiss the complaint because the petition was not filed within 30 days of the complaint, as required by OCGA § 15-11-521 (b). No request for an extension of time was filed. After a hearing, in which the State conceded that the petition had been filed a day late, the juvenile court dismissed the complaint without prejudice. In Case No. A15A1289, M. D. H. appeals from the juvenile court’s dismissal of the complaint, arguing that the dismissal should have been with prejudice under the terms of OCGA § 15-11-521.

Prior to the filing of the appeal in Case No. A15A1289, the State filed a second petition on January 29, 2015, again alleging that M. D. H. committed the delinquent act of making terroristic threats. M. D. H. then filed a motion to dismiss this subsequent petition, which the trial court denied. The case then proceeded to trial, and M. D. H. was adjudicated and placed on probation for reckless conduct, a lesser included offense of terroristic threats. In Case No. A15A1908, M. D. H. appeals from his adjudication and the denial of his motion for new trial, raising the same enumeration of error.

1. In Case No. A15A1289, the State, as appellee, contends that M. D. H.’s appeal from the trial court’s initial dismissal of his motion to dismiss the petition against him with prejudice is moot because the State filed a subsequent complaint and petition alleging delinquency and the juvenile court adjudicated M. D. H. delinquent. We disagree.

“An appeal is moot when it seeks to determine an issue which, if resolved, cannot have any practical effect on the underlying controversy, or when such resolution will determine only abstract questions not arising upon existing facts or rights.” (Footnotes omitted.) Pimper v. State of Ga., 274 Ga. 624, 626 (555 SE2d 459) (2001). However, “[i]f an appellant. . . will benefit by reversal of a case, his appeal is not moot.” (Citation omitted.) Johnson & Harber Constr. Co. v. Bing, 220 Ga. App. 179, 180 (1) (469 SE2d 697) (1996). Here, M. D. H.’s appeal from the denial of his first motion to dismiss the delinquency petition against him is not moot despite his adjudication prior to this appeal. If the trial court’s order were to be reversed on appeal, he would benefit from having his adjudication declared a nullity. See OCGA § 5-6-48 (b) (3). Accordingly, we cannot find M. D. H.’s appeal moot.

2. In both Case Nos. A15A1289 and A15A1908, M. D. H. argues that the juvenile court erred in interpreting OCGA § 15-11-521 (b) as requiring it to dismiss the petition without prejudice.

It is well settled that

in all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden____[Further,]... when we are interpreting a statute, we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it. We construe statutes in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection... with reference to other statutes and the decisions of the courts.

(Punctuation and footnotes omitted.) Chase v. State, 285 Ga. 693, 695-696 (2) (681 SE2d 116) (2009).

With these principles in mind, we now turn to the language of the statute. OCGA § 15-11-521 provides:

(a) If a child is in detention prior to adjudication, a petition alleging delinquency shall be filed not later than 72 hours after the detention hearing. If no petition alleging delinquency is filed within the applicable time, such child shall be released from detention and the complaint shall be dismissed without prejudice. Such petition may be refiled as provided in subsection (b) of this Code section within the statute of limitations.
(b) If a child is not in detention prior to adjudication, a petition alleging delinquency shall be filed within 30 days of the filing of the complaint alleging violation of a criminal law or within 30 days of such child’s release pursuant to a determination that detention is not warranted. Upon a showing of good cause and notice to all parties, the court may grant an extension of time for filing a petition alleging delinquency. The court shall issue a written order reciting the facts justifying any extension.

(Emphasis supplied.)

As M. D. H. was not in detention prior to adjudication, subsection (b) of OCGA § 15-11-521 applies in the present case. Under subsection (b), the State had 30 days from the filing of the complaint to file the petition alleging delinquency, but it did not meet the deadline in this case. As “[tjhere must be scrupulous adherence to due process requirements in juvenile court proceedings[,]” In re B. A. P., 180 Ga. App. 433, 434 (1) (349 SE2d 218) (1986) (citation and punctuation omitted), the trial court correctly dismissed the complaint against M. D. H.

M. D. H. argues on appeal that, because subsection (a) specifically provides for a dismissal without prejudice and subsection (b) does not, then the legislature did not intend for any dismissals under subsection (b) to be without prejudice. M. D. H. also argues that a finding that a dismissal under subsection (b) shall be without prejudice would render the language allowing the trial court to grant an extension to file a petition meaningless. We disagree and find that the legislature did not intend for the dismissal of a complaint with prejudice for the failure to comply with the filing deadline in OCGA § 15-11-521 (b).

In construing a related statute in Georgia’s former Juvenile Code, former OCGA § 15-11-26, our Supreme Court held that former OCGA § 15-11-26 (a) did not constitute a speedy trial demand and, thus, violations of its provisions should not result in dismissal of the case with prejudice. In so holding, our Supreme Court reasoning is instructive.

In stark contrast to OCGA §§ 17-7-170and 17-7-171 [Georgia’s speedy trial statutes], there is no explicit language in OCGA § 15-11-26 which mandates that the failure tocomply with the statutory time limits provided therein will result in an adjudication of the juvenile’s non-delinquency by operation of law. If the legislature had intended that a noncompliance with [former] OCGA § 15-11-26 (a) would result in the automatic acquittal of a defendant in a delinquency case, it could have expressly provided for the comparable remedy afforded for a non-compliance with OCGA § 17-7-170. The legislature did not so provide.

(Citations and punctuation omitted.) In the Interest of R. D. F., 266 Ga. 294, 296 (3) (466 SE2d 572) (1996) (supersededby statute in In the Interest of A. H., 332 Ga. App. 590, 593 (2), n. 6 (774 SE2d 163) (2015)). See, e.g., Butler v. State, 207 Ga. App. 824, 824-825 (429 SE2d 280) (1993) (After defendant’s case was not docketed for retrial during two terms of court, he sought acquittal under OCGA § 5-5-49 based on the State’s failure to retry him in a timely manner. This Court declined to acquit because, unlike Georgia’s speedy trial statutes, OCGA § 5-5-49 “mandates no express sanction for a non-compliance with its provisions” and if the legislature had intended for noncompliance of OCGA § 5-5-49 to result in automatic acquittal, it could have specifically stated such).

Similarly, in OCGA § 15-11-521, the statute at issue in the present case, the legislature did not provide explicit language providing that a juvenile would receive a dismissal with prejudice as a result of the State’s failure to file a timely petition for delinquency under OCGA § 15-11-521 (b). We recognize that the Juvenile Code has expressly stated in other sections that a complaint alleging a child is in need of services or alleging dependency should be dismissed without prejudice if the proper petition is not filed within the time limits prescribed by statute, see OCGA §§ 15-11-421,15-11-151. However, we decline to hold that the legislature intended anything in OCGA § 15-11-521 (b) beyond what the plain and usual meaning of the language of the statute provides. If it intended for an untimely petition to be dismissed with prejudice, then it is within its power to amend the statute to so provide. See Butler, supra (this Court shall decline to hold that the legislature intended anything beyond what a statute’s “language, in its fair and usual meaning, will indicate; and, if the terms of their enactment have not embraced the object contended for, the power is with them, by additional Act or Acts, to extend them”) (citations and punctuation omitted).

Further, the Supreme Court’s opinion in In the Interest of R. D. F., supra, put the legislature on notice as it drafted its new Juvenile Code that dismissals with prejudice would only be enforced to the extent expressly provided for by statute, but that otherwise such a drastic remedy would not be engrafted by the appellate courts. See Chase, supra (when interpreting a statute, this Court must presume that the legislature was aware of the existing state of the law at the time it enacted the statute with reference to it).

Decided November 10, 2015

Carver & DeBord, Cory P. DeBord, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

Based upon the above, we affirm the trial court’s dismissal of the complaint against M. D. H. without prejudice.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

       Georgia has adopted a new Juvenile Code, which became effective on January 1, 2014, and applies to juvenile proceedings commenced on or after January 1,2014. Ga. L. 2013, p. 294, §1-1.

       Former OCGA § 15-11-26 (a) provided:
      After the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention, shall not be later than ten days after the filing of the petition. In the event the child is not in detention, the court shall fix a time for hearing thereon which shall be not later than 60 days from the date of the filing of the petition.

       OCGA § 17-7-170 (b) provides: “If the defendant is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter,... the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment[.]” (Emphasis supplied.) See also OCGA § 17-7-171 (b) (same in the context of capital cases).


author: BARNES, Presiding Judge.

text:
    A15A1439.
    HEARD v. THE STATE.
    (779 SE2d 415)
   BARNES, Presiding Judge.

A jury convicted Antonio Heard of armed robbery, burglary, and a weapons charge following a home invasion. The trial court sentenced him to 35 years, with the first 15 to be served in custody, and denied Heard’s motion for new trial. On appeal, Heard contends that the evidence was insufficient, that the trial court should have exercised its discretion and granted him a new trial, that the trial court erred in limiting the testimony of the officer who took Heard’s statement and in admitting evidence of Heard’s prior conviction, that his trial counsel was ineffective, and that he was denied his right to be present at all court proceedings. For the reasons that follow, we affirm.

1. On appeal, we view the trial evidence in the light most favorable to the verdict. Peoples v. State, 295 Ga. 44, 45 (1) (757 SE2d 646) (2014). So viewed, the evidence shows that the two victims were asleep in their living room when they woke up to find two men holding guns to their heads. Neither victim was able to see either gunman’s face and did not recognize their voices, which were disguised. They heard a third person ransacking the rest of the house, and one of the gunmen said the other men “came to kill.” The intruders repeatedly asked where the victims’ money and drugs were located, and one ripped the male victim’s pants off and took $1,500 from the pockets. Another gunman took the female victim’s cell phone, and then the three intruders left through the front door.

After waiting a short time, the two victims went across the street to call 911 from a relative’s house. When the police came and walked through the residence with the victims, they saw that a bedroom window had been opened and there was a footprint on their bed under the window. Nothing else was taken from the house, although the kitchen cabinets and refrigerator were open and groceries littered the floor. The police found a bullet on the living room floor by one of the sofas, which had not been there before the intruders came in. Neither victim could identify any of the intruders.

A friend of the female victim who lived across the street testified that the night after the home invasion, she was playing cards with Heard when the two of them decided to get some fast food. As they waited in the drive-through line, a policeman in a patrol car pulled in line behind them. Heard pulled a wad of $20 bills and a bag of marijuana from his pocket and a gun from the front of his pants, but the police did not approach them. After they got their food, Heard and the witness drove off, but instead of going straight back to the witness’s house, Heard drove to his mother’s house because, he said, he “had to run and get something.”

The witness waited in the car for about ten minutes until Heard returned and he began driving back to the witness’s house. As he drove, Heard told the witness that he and three other men he identified by name had robbed the victims, then asked the witness how close she was to the female victim. When the witness said she was very close to the victim, Heard ran off the road, seemingly deliberately, hit a picket fence, and drove back onto the road. He stopped the car to inspect the damage to the car’s front end, and declined the witness’s request to use his cell phone to call someone to come pick her up, insisting instead on driving the damaged car back to the witness’s house. The following day, Heard came to the witness’s house and said that if anyone asked how the car had been wrecked, she was to tell them that the male robbery victim had run them off the road. Heard said he was going to get his gun because the “word had got out by then on the streets” that he had been one of the robbers. The witness told the police about Heard’s admission, and after a number of people were interviewed, Heard was arrested.

Heard waived his Miranda rights and confessed to the crime in detail, admitting that he and the other intruders had climbed through the victims’ bedroom window, stepped onto the bed, held the victims at gunpoint, searched their house, and robbed them of about $1,500. Heard identified one of the other intruders as Michael Stanley and shortly afterward identified the third intruder, whose name he did not know, through a photo lineup. The police identified the third man as Rolundus Middleton, against whom charges were pending as of trial.

Upon request, Stanley voluntarily came to the police station, where he also waived his Miranda rights and confessed to the crimes. Stanley pled guilty to one count of burglary and two counts each of armed robbery and weapons charges, and his testimony in Heard’s first trial, which ended in a mistrial, was consistent with his statement to the police. When Stanley testified in Heard’s second trial, he denied that Heard and Middleton had been involved in the invasion. While he admitted he told the investigating officer otherwise, he said he did so only because “someone gave [the officer] a statement before I did that we were the three ... involved in the robbery, so I was going along with what the first person had made the statement saying I was involved.” The State impeached Stanley with his testimony from the prior trial.

Heard testified in his defense and also explained that he confessed to the crimes because the investigating officer had threatened to arrest his mother, who had just had a procedure on her back, for terroristic threats. After the threat, Heard said, he just repeated details of what he had heard about the invasion and put himself “on the scene.” He admitted he had a prior conviction for what was “supposed to be attempted burglary,” to which he pled guilty.

The evidence as outlined above was sufficient for the jury to find beyond a reasonable doubt that Heard committed the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Rudison v. State, 322 Ga. App. 248, 249-250 (1) (744 SE2d 444) (2013).

Heard also argues that the evidence was so close that the trial court abused its discretion by failing to grant a new trial, but argues the standard of Jackson v. Virginia, which is whether any rational trier of fact could have found Heard guilty beyond a reasonable doubt.

Under OCGA § 5-5-20, a trial court may grant a new trial if it decides that the jury’s verdict is contrary to the principles of justice and equity, and under OCGA § 5-5-21, a trial court may grant a new trial if the verdict is decidedly and strongly against the weight of the evidence. “When properly raised in a timely motion, these grounds for a new trial — commonly known as the ‘general grounds’ — require the trial judge to exercise a broad discretion to sit as a ‘thirteenth juror.’ ” (Citation and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) (753 SE2d 115) (2013). Here, Heard argued that the trial court should exercise its discretion to grant a new trial, and the trial court did so, finding that the verdict was not contrary to the law or evidence, and was not inconsistent with the evidence as presented at trial. Accordingly, we find no merit to this enumeration.

2. Heard argues that during the Jackson-Denno hearing, the trial court improperly limited his examination of the police officer to whom he confessed, and that if the trial court had allowed him to impeach the officer with questions about whether he had made promises of benefit to another man, the trial court would have excluded Heard’s statement from evidence.

During the hearing, Heard asked the officer if he ever promised interviewees anything, and the officer responded, “As far as what the Judge or jury will be finding, no. I can’t promise anything like that. No. If I say something like I promise I’ll get the other person involved or something[, y]es. I’m sure I make those types of promises.” Heard then asked the officer what he had said to a man whose connection to this case is not clear from the record, and the State objected because it was not going to admit that man’s statement, and the questions were irrelevant to the admissibility of Heard’s statement. While the trial court acknowledged that Heard might be able to challenge the officer’s credibility on cross-examination at trial with questions about promises he had made to other people, it sustained the objection to the questions during the Jackson-Denno hearing because the answers were not relevant to the issue before the court, which was whether Heard’s statement was admissible.

At trial, Heard fully explored this issue during his cross-examination of the officer. While he argues on appeal that the trial court should have considered this “impeachment” evidence during the Jackson-Denno hearing to determine the admissibility of Heard’s inculpatory statement, the officer testified at trial that the other man was not under arrest and he had not been given Miranda warnings. Rather, the officer was “fishing” for information and also wanted the man to tell anyone who might know something that the issue was serious and that the officer would speak to the prosecutor’s office on behalf of the first one to come forward and admit involvement. In that context, the evidence was not relevant to whether Heard’s confession was voluntary or not, which was the issue before the trial court at the hearing. Accordingly, this enumeration is without merit.

3. Heard argues that his trial counsel was ineffective because he “failed to highlight and press the issues relating to [Heard’s] comprehension of the Miranda warning and the threats to [Heard’s] family in the same manner that trial counsel did in the initial trial of the instant case.” The standard for determining whether counsel is ineffective, however, is not whether counsel conducted a defense in the same manner as he did in a previous trial. “Ineffective assistance is a deficient performance by counsel resulting in actual prejudice to the client.” Ponder v. State, 332 Ga. App. 576, 582 (2) (774 SE2d 152) (2015). “Because a defendant must show both deficient performance and actual prejudice stemming from the deficiency, an insufficient showing on either one of these prongs exempts an appellate court from the need to address the other prong.” Sims v. State, 297 Ga. 401, 404 (4) (774 SE2d 620) (2015). Pretermitting whether trial counsel’s performance in this case was in any way deficient, the evidence against Heard, including his confession and that of his co-defendant, was overwhelming. Thus, Heard has not shown a reasonable probability that the outcome of the trial would have been different had counsel pursued the same inquiries in the same manner that he did during the first trial, and this enumeration fails. See Sanders v. State, 290 Ga. 637, 641 (5) (723 SE2d 436) (2012).

4. Heard asserts that the trial court erred in admitting evidence of his prior conviction for attempted burglary, contending that it was far more prejudicial than probative and that its admission was an abuse of discretion because the evidence against him was “close.” While the trial court did rule out of the jury’s presence that it would overrule any objection Heard would make to the State’s tender of evidence of his prior conviction, the court also instructed counsel to generically restate his objection before the jury when the issue arose. But the State did not introduce the evidence; rather, Heard preemptively admitted during his direct examination that he had previously pled guilty to attempted burglary. “[A] defendant who testifies on direct examination about his prior convictions may not on appeal challenge the trial court’s ruling and claim that the admission of such evidence was error.” (Citation and punctuation omitted.) Merritt v. State, 329 Ga. App. 871, 874 (2) (766 SE2d 217) (2014). Accordingly, this issue is waived.

5. Finally, Heard contends that the lawyers and the trial court conducted a conference during the trial outside of his presence, thus violating his right to be present at all proceedings.

While both the United States and Georgia Constitutions secure the right of criminal defendants to be present at all critical stages of the proceedings against them, unlike the federal constitutional right, the violation of the State constitutional right to be present is presumed prejudicial, and absent waiver, “triggers reversal and remand for a new trial whenever the issue is properly raised on direct appeal.” Peterson v. State, 284 Ga. 275, 279 (663 SE2d 164) (2008).

The stage from which the defendant is absent must be a critical one, however, to implicate either the federal or State Constitution. “[T]he right to be present exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant’s absence.” Parks v. State, 275 Ga. 320, 322-323 (3) (565 SE2d 447) (2002). Here, Heard argues that “procedural and scheduling conferences were held outside [his] presence,” but such conferences are not “critical” proceedings at which Heard had a right to be present. Id. at 324-325 (3).

Decided November 10, 2015.

Nancee E. Tomlinson, for appellant.

Layla H. Zon, District Attorney, Christopher D. Sperry, Assistant District Attorney, for appellee.

Heard also argues that the trial court’s statement from the bench before sentencing that someone from the press had called the judge’s office during trial and said that the judge’s house was being raided, and his trial counsel’s testimony at the motion for new trial hearing — that he had become aware of some kind of rumor to that effect — “raised concerns about the fairness of his trial.” However, trial counsel also testified that no conference took place regarding this rumor, and the trial court explained during the hearing that the sheriff told him such calls were not unusual and that no raid was taking place. Heard has not shown that he was denied his right to be present at any critical stage of his trial, and therefore has shown no error.

Judgment affirmed.

Ray and McMillian, JJ., concur.


text:
    A15A1590.
    McKETHAN v. WELLS FARGO BANK, N.A.
    (779 SE2d 671)
   BARNES, Presiding Judge.

Pamela McKethan appeals from the trial court’s grant of default judgment to Wells Fargo Bank, N.A. on the bank’s action seeking reformation of a security deed to correct errors in the legal description of the subject property, and to secure its interest in the property. McKethan contends that the trial court erred in granting the default judgment because Wells Fargo failed to file an affidavit of nonmilitary service pursuant to 50 USCS Appx. § 521, and McKethan filed a timely motion to dismiss which should have been construed as an answer. Because the motion to dismiss was sufficient to construe as an answer, we reverse.

On appeal, we review a trial court’s entry of default judgment for abuse of discretion. Edenfield & Cox, P.C. v. Mack, 282 Ga. App. 816 (640 SE2d 343) (2006). The facts demonstrate that on May 31, 2007, McKethan obtained title to the subject property and on June 1, 2007, she transferred title, by quitclaim deed, to the property to Home Bound Investment Group, LLC (“HBIG”), a limited liability company of which McKethan was the only member. The original warranty deed and quitclaim deed were both recorded in Cobb County on June 11, 2007. On October 26,2007, McKethan obtained a loan from Wachovia Bank for $101,000 which she secured with the subject property. She executed a security deed conveying the property to Wachovia which was also recorded.

On January 13, 2014, Wells Fargo brought an action against HBIG and McKethan in the Superior Court of Cobb County seeking to reform the security deed to correct the legal description and to include HBIG’s interest in the property. On April 30, 2014, by order of the superior court, McKethan was served by publication pursuant to OCGA § 9-11-4 (f) (1), and required to file an answer within 60 days of the date of the order for publication.

McKethan did not file a responsive pleading, but on June 27, 2014, she filed a pro se notice of removal to the United States District Court for the Northern District of Georgia, citing as a basis for removal federal question jurisdiction and diversity of the parties. She also filed a pro se motion to dismiss Wells Fargo’s complaint in the District Court. Thereafter, Wells Fargo filed a motion to remand, which, on November 12, 2014, the District Court granted after finding that all of Wells Fargo’s claims arose under state law rather than federal law, and that removal to federal court was not proper based on the diversity of the parties because McKethan “is a citizen of the state in which Wells Fargo brought suit.” The District Court also denied McKethan’s motion to dismiss for lack of subject matter jurisdiction, and remanded the case to the Superior Court of Cobb County.

On January 9, 2015, Wells Fargo filed a motion for default judgment based on McKethan’s failure to file an answer or any pleadings to its complaint within 60 days of the order allowing service by publication, even taking into account the time period tolled due to the removal to federal court. It further maintained that more than 15 days had passed since the date of default, and thus the default could not be opened as a matter of right within the period permitted by OCGA § 9-11-55 (a). The trial court granted the motion and entered a default judgment for Wells Fargo. It also ordered that legal descriptions in the warranty, security, and quitclaim deeds be reformed to correct them, and that the Security Deed be reformed to include HBIG as a grantor and be declared a first priority lien against the subject property. McKethan appeals from that order.

1. McKethan contends that the trial court erred in granting a default judgment against her because Wells Fargo failed to file an affidavit of nonmilitary service pursuant to 50 USCS Appx. § 521 (b) (“Protection of Servicemembers Against Default Judgments”). However, she does not assert that she is an active service member who should be afforded that protection under the Servicemembers Civil Relief Act, 50 USCS Appx. § 501 et seq. McKethan instead argues that in any civil proceeding in which the defendant does not make an appearance, the trial court must require the plaintiff to provide an affidavit stating whether or not the plaintiff is in military service.

Even assuming without deciding that Wells Fargo was required to file an affidavit showing that McKethan was not an active service member, see In the Matter of Hampson, 429 BR 360, 362 (Bankr. N.D. Ga. 2009), 50 USCS Appx. § 521 (g) (1) further provides:

If a default judgment is entered in an action covered by this section against a servicemember during the servicemember’s period of military service (or within 60 days after termination of or release from such military service), the court entering the judgment shall, upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the servicemember to defend the action if it appears that — (A) the servicemember was materially affected by reason of that military service in making a defense to the action; and (B) the servicemember has a meritorious or legal defense to the action or some part of it.

Thus, even if McKethan was entitled to protection under the Act, her recourse was to file an application in the trial court to open the default on that basis pursuant to 50USCSAppx. § 521 (g) (1), and this she has not done. Accordingly, this enumeration fails.

2. McKethan also contends that the trial court erred in granting Wells Fargo’s default judgment because her timely-filed motion to dismiss in the District Court, should have been construed as an answer. We agree.

Here, McKethan was served by publication on April 30, 2014, and given 60 days to file an answer. The notice of removal to the District Court was filed on June 27, 2014, and on the same day McKethan filed a motion to dismiss. The Superior Court lost jurisdiction until the case was remanded by the District Court on November 12, 2014. 28 USCS § 1446 (d); Cotton v. Fed. Land Bank of Columbia, 246 Ga. 188, 189 (269 SE2d 422) (1980). When the case was removed, the 60-day period for filing an answer in the Superior Court had not expired. Until the Superior Court resumed jurisdiction pursuant to the remand from the District Court, no responsive pleadings could be filed in the Superior Court, and the running of the 60-day period for filing an answer in the Superior Court was suspended. Allen v. Hatchett, 91 Ga. App. 571, 576-577 (1) (86 SE2d 662) (1955). When the District Court remanded the case to the Superior Court, “the case stood as it did at the time of removal,” and the remaining portion of the 60-day period for filing an answer in the Superior Court commenced to run. Id. at 577. Despite the recommencing of the 60-day period, McKethan had not filed an answer in Superior Court at the time the trial court entered the default judgment.

Our courts have held, however that,

[ujnder federal practice, a removed case proceeds according to the Federal Rules of Civil Procedure and is treated as though it had been commenced originally in the federal court. Repleading according to the federal rules is generally not required unless there is a substantial difference between the state and federal practice. Where, as here, a pleading [McKethan’s motion to dismiss in the District Court] has been timely filed, logic, reasoning and comity all support the conclusion that a similar rule should be applied by the Georgia courts upon remand. Since the Georgia Civil Practice Act and the Federal Rules of Civil Procedure are similar in most respects, the instances in which repleading would be required would be few, and such requirement should be upon directive of the trial court. Thus,... a defendant who files in state court with his petition for removal a copy of his answer to be filed in district court is not in default upon remand.

(Citations and punctuation omitted; emphasis supplied.) Teamsters Local 515 v. Roadbuilders, Inc. of Tenn., 249 Ga. 418, 420-421 (2) (291 SE2d 698) (1982), overruled in part on other grounds, Shields v. Gish, 280 Ga. 556, 557 (1) (629 SE2d 244) (2006).

With regard to the sufficiency of McKethan’s motion to dismiss as a purported answer, in Georgia, under our system of notice pleading, the substance, rather than the nomenclature, of legal pleadings determines their nature. Frost v. Frost, 235 Ga. 672, 674 (1) (221 SE2d 567) (1975).

The Civil Practice Act pleading requirements are to be construed liberally and in favor of the pleader, in furtherance of the basic premise behind the Act — to substitute notice pleading for issue pleading. Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end.

Decided November 10, 2015.

Natalie R. Rowland, for appellant.

(Citations and punctuation omitted.) Cotton, 246 Ga. at 191.

The required elements ofan answer are set forth in OCGA § 9-11-8 (b) as follows:

A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state, and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder [and] when he does so intend to controvert all its averments, he may do so by general denial [.]

Wells Fargo sought equitable reformation of its security deed due to mistake or fraud, unjust enrichment, and a declaratory judgment determining property ownership. In her motion to dismiss, McKethan raised affirmative defenses, and contended that the statute had run on Wells Fargo’s claims, that it refused to accept loan payments, and that it was solely responsible for any errors in the deed or loan documents because it deliberately avoided its own underwriting guidelines.

Thus, given that “a timely answer filed in district court following timely removal of the action is sufficient to prevent a default in a state court if the case is subsequently remanded from district court,” Teamsters, 249 Ga. at 421 (2), and McKethan’s motion to dismiss was sufficient to put Wells Fargo on notice that she had contested its claims in federal court, the trial court erred in granting Wells Fargo a default judgment.

Judgment reversed.

Ray, J., concurs. McMillian, J., concurs in judgment only.

Fidelity National Law Group, Lawrence W. Kelly, Andrew N. Byerly, for appellee.

       We note that there is no indication in the record that McKethan presently or formerly served in the military.


author: Dillard, Judge.

text:
    A15A1442.
    BARGHI v. THE STATE.
    (779 SE2d 373)
   Dillard, Judge.

Following a bench trial, Gloria Barghi was convicted of driving under the influence of alcohol to the extent it was less safe for her to do so (DUI less safe), driving under the influence of alcohol with an excessive blood-alcohol concentration (DUI per se), and failure to obey a traffic-control device. On appeal, Barghi contends that the trial court erred in denying her plea in bar, in which she claimed that her prosecution for the DUI charges was barred by the statute of limitation. Barghi also maintains that the court erred in proceeding with trial despite the fact that she was not arraigned after the State amended the accusations, and in finding that the State presented sufficient evidence that its prosecution was not time-barred by considering evidence from the plea in bar during trial. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court’s findings and judgment, the evidence shows that at approximately 2:00 a.m. on November 5, 2011, a City of Roswell police officer observed Barghi’s vehicle traveling northbound in the center lane of a three-lane reversible highway. But at that time of night, the overhead traffic-control device regulating traffic flow clearly indicated with a red “X” that northbound traffic was prohibited from using the center lane. The officer, therefore, followed Barghi’s vehicle and initiated a traffic stop after she continued traveling in the prohibited lane.

Upon stopping Barghi, the officer approached her vehicle and immediately detected an alcoholic-beverage odor. The officer also noticed that Barghi’s eyes were glassy and bloodshot. Consequently, the officer had Barghi perform several field-sobriety tests (all of which indicated impairment), and also administered an alco-sensor breath test, which returned a positive result for alcohol. The officer then arrested Barghi for DUI, read her the implied-consent notice, transported her to the police station, and administered a breath test, which indicated a blood-alcohol content of 0.125.

On October 2, 2013, the State charged Barghi, via accusations, with one count of driving under the influence of alcohol to the extent that it was less safe for her to do so (DUI less safe), alleging that Barghi “did on or about 11/5/2011 drive or have physical control of a moving vehicle while under the influence of alcohol to the extent it was less safe”; one count of driving under the influence of alcohol with an excessive blood-alcohol concentration (DUI per se), alleging that she “did on or about 11/5/2011 drive or have control of a moving vehicle with an alcohol concentration of 0.08 grams or more”; and one count of failure to obey a traffic-control device. Subsequently, on December 27, 2013, Barghi waived arraignment and pleaded not guilty to the charges. On that same day, she also filed general and special demurrers to the accusations.

On January 6, 2014, the State slightly amended the two DUI counts in the accusations. Specifically, in both counts, the language alleging that Barghi did “drive or have control of a moving vehicle” was changed to allege more succinctly that she did “drive a moving vehicle.” Approximately one month later, Barghi filed a plea in bar, arguing that the State’s prosecution on the DUI counts was time-barred because the amended accusations were filed after the applicable two-year statute of limitation had expired. On February 7, 2014, the trial court conducted a hearing on the issue. And nearly ten days later, the court issued an order, finding that the amended charges were not time-barred and, thus, denying Barghi’s plea in bar.

The case then proceeded to a bench trial, during which only the arresting officer testified. In fact, Barghi presented no evidence in her defense, but after the State rested, she reiterated her argument that the amended accusations were filed after the statute of limitation expired and, therefore, the State’s prosecution of those counts was time-barred. Barghi further argued that, regardless of whether her plea in bar was properly denied, the State failed to present any evidence at trial that its prosecution was not barred by the statute of limitation. Unpersuaded, the trial court responded that evidence of the State’s compliance was sufficiently presented during the hearing on Barghi’s plea in bar, over which the same trial judge had also presided, and thereafter, the court found Barghi guilty on all three counts. Subsequently, Barghi filed a motion for new trial, which the trial court denied. This appeal follows.

1. Barghi first contends that the trial court erred in denying her plea in bar, arguing that the prosecution on the DUI counts was time-barred because the State filed the amended accusations after the expiration of the statute of limitation. We disagree.

As previously noted, under former OCGA § 17-3-1 (d), which was applicable at the time of Barghi’s arrest, the “[prosecution for misdemeanors must be commenced within two years after the commission of the crime.” And a prosecution is considered to continue until there has been a final disposition of the case. Importantly, OCGA § 17-7-71 (f) provides:

Prior to trial, the prosecuting attorney may amend the accusation, summons, or any citation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation, summons, or citation.

Furthermore, whether an amendment to an accusation or indictment after expiration of the statute of limitation broadens or substantially amends the original charge is undoubtedly an issue of law.

Here, as mentioned supra, Barghi was arrested for DUI on November 5, 2011, and the State charged her, via accusations, on October 2,2013. Thus, the State commenced prosecution of Barghi on the DUI charges prior to the expiration of the applicable two-year statute of limitation. On January 6,2014, more than a month before the start of Barghi’s trial, the State filed accusations amending the two DUI counts. But the amended accusations gave the same date of the offenses as the original accusation, were based on the same conduct, and, indeed, made only slight changes to the wording of the allegations, altering “drive or have physical control of a moving vehicle” to “drive a moving vehicle.” Thus, the amended accusations did not commence a new prosecution, but, rather, constituted a continuation of the original prosecution. Accordingly, the trial court did not err in denying Barghi’s plea in bar on the ground that the statute of limitation for the two amended DUI counts expired.

2. Barghi also contends that the trial court erred in proceeding with trial despite the fact that she was not arraigned after the State amended the accusations. Again, we disagree.

As previously noted, on December 27, 2013, Barghi waived arraignment to the charges in the original accusations. After the accusations were amended, the State never sought re-arraignment. At trial, Barghi objected to this failure and reiterates this objection on appeal. However, as discussed in Division 1, supra, under OCGA § 17-7-71 (f), the prosecution may amend an accusation at any time prior to trial. Moreover, Barghi cites no authority for the argument that a minor amendment to an accusation, as occurred here, requires the State to arraign a defendant a second time. Thus, the trial court did not err in denying Barghfs objection regarding the lack of a second arraignment and proceeding with trial.

3. Barghi further contends that the trial court erred in finding that the State presented sufficient evidence that its prosecution was not time-barred by considering evidence presented during the hearing on her plea in bar. Once again, we disagree.

This Court has previously held that a pretrial evidentiary hearing on a plea in bar based upon the statute of limitation is a “very effective, fair and expedient method to deal with limitation problems in many cases.” We have further explained that while the application of the statute of limitation can be a jury question, the issue can also be resolved with a pretrial evidentiary hearing and order. And at trial, the burden is unquestionably on the State to “prove that a crime occurred within the statute of limitation, or, if an exception to the statute is alleged, to prove that the case properly falls within the exception.” Nevertheless, in Jenkins v. State, the Supreme Court of Georgia noted that “while it is true that an exception to the statute of limitations must be pled in the indictment if the State is relying on one, the statute of limitations is not an element of the crime per se; it is found in Title 17 (Criminal Procedure) in the chapter entitled ‘Limitations on Prosecution.’ ” Bearing this in mind, the Supreme Court further explained in Jenkins that the proper procedure for litigating a plea in bar based upon the statute of limitation should be analogous to a pretrial Jackson v. Denno hearing. Specifically, the Supreme Court noted that if a defendant prevails on a pretrial plea in har on the statute of limitation, “the charge should be dismissed; if the State prevails on this issue before trial, the defendant may still require the State to prove at trial that the charge is not barred by the statute of limitations.”

In this matter, the trial court held a hearing on Barghi’s plea in bar, in which the State presented evidence and argument that the original accusations were filed prior to the expiration of the statute of limitation and that prosecution on the DUI counts in the amended accusations, which were filed after the statute’s expiration, was not time-barred because the State was permitted to amend the accusations at any time prior to trial. At trial, after the State rested, Barghi presented no evidence but argued, yet again, that the State’s amended accusations were time-barred and that the State presented no evidence to the contrary during trial. In rejecting Barghi’s legal argument, the trial court noted that the statute-of-limitation issue had already been decided against Barghi when it denied her plea in bar, and in its final judgment, the court incorporated its denial of the plea in bar in support of its finding that the State’s prosecution was not time-barred.

On appeal, Barghi reasserts that the State did not actually prove compliance with the statute of limitation at the bench trial and that it was improper for the trial court to consider evidence presented during the hearing on Barghi’s plea in bar in support of its finding that the State’s prosecution was not time-barred. We are not persuaded by this argument.

Contrary to the scenario contemplated in Jenkins, Barghi presented no evidence disputing the trial court’s earlier ruling that the State’s prosecution was not barred by the statute of limitation but, rather, simply reiterated her earlier legal arguments. Furthermore, and also unlike the scenario contemplated in Jenkins, Barghi elected to waive her right to a jury trial and instead proceeded to a bench trial with the same finder of fact who presided over her plea in bar and who had, therefore, already ruled upon the identical arguments less than two weeks earlier. And given that the statute of limitation is not an element of the crime per se, it was perfectly appropriate for the trial court, as the trier of fact, to rely on evidence that was already a part of the case record. Accordingly, the trial court did not err in considering evidence presented during the plea in bar to support its finding at a bench trial that the State’s prosecution was not time-barred.

Decided October 14, 2015

Reconsideration denied November 12, 2015

D. Benjamin Sessions, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

For all of the foregoing reasons, we affirm Barghi’s convictions.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

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

        See OCGA § 40-5-67.1 (b) (2).

        See OCGA § 40-6-391 (a) (1).

        See OCGA § 40-6-391 (a) (5).

        See OCGA § 40-6-20 (a).

        See former OCGA § 17-3-1 (d) (2011) (“Prosecution for misdemeanors must be commenced within two years after the commission of the crime.”).

       Effective July 1, 2012, the statute was amended such that former subsection (d) became subsection (e), which now provides that “[p]rosecution for misdemeanors shall be commenced within two years after the commission of the crime.” Thus, in addition to the subsection, the only other change was the replacement of “must” with “shall.” See Ga. L. 2012, p. 899, § 4-1.

        See OCGA § 16-1-3 (14) (“ ‘Prosecution’ means all legal proceedings by which a person’s liability for a crime is determined, commencing with the return of the indictment or the filing of the accusation, and including the final disposition of the case upon appeal.”).

        See Lee v. State, 289 Ga. 95, 96 (709 SE2d 762) (2011); accord Wooten v. State, 240 Ga. App. 725, 726 (2) (524 SE2d 776) (1999).

        See former OCGA § 17-3-1 (d).

        See Prindle v. State, 240 Ga. App. 461, 461-62 (1) (523 SE2d 44) (1999) (holding that defendant’s prosecution on DUI charges was not time-harred even though amended accusations were filed more than two years after offenses were committed, because original citations pertaining to the same offenses and conduct were filed prior to the statute of limitation’s expiration); Thomas v. State, 233 Ga. App. 224, 225 (1) (504 SE2d 59) (1998) (same).

        See Vanorsdall v. State, 241 Ga. App. 871, 874-75 (2) (a) (528 SE2d 312) (2000) (holding that filing of amended accusation that did not set forth new or different charge did not require State to arraign defendant a second time before proceeding to trial). Cf. Smith v. State, 279 Ga. 396, 399 (3) (614 SE2d 79) (2005) (noting that because amendment of the accusation did not constitute the commencement of a new prosecution, the previous arraignment of defendant was sufficient).

        See Vanorsdall, 241 Ga. App. at 875 (2) (a).

        State v. Tuzman, 145 Ga. App. 481, 483 (2) (243 SE2d 675) (1978), abrogated on other grounds by State v. Outen, 289 Ga. 579, 581 (714 SE2d 581) (2011).

        Tuzman, 145 Ga. App. at 483 (2).

        Lee, 289 Ga. at 97 (punctuation omitted).

       278 Ga. 598 (604 SE2d 789) (2004).

        Id. at 604 (1) (footnote omitted).

       378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

        Jenkins, 278 Ga. at 604 (1).

        Id. (footnote omitted).

        See id. (holding that “if the State prevails on this issue before trial, the defendant may still require the State to prove at trial that the charge is not barred by the statute of limitations” (emphasis supplied)).

        See id.

        Cf. Schaff v. State, 275 Ga. App. 642, 645 (3) (621 SE2d 595) (2005) (holding that “a trial court may take judicial cognizance of records on file in its own court” (punctuation omitted)); Jones v. State, 302 Ga. App. 147, 150-51 (690 SE2d 460) (2010) (noting differences between a jury trial and a bench trial, and that with a jury trial “[12] persons... sit in judgment..., and... the prosecutor . . . bearfs] the burden of convincing each one of the twelve persons of [the defendant’s] guilt beyond a reasonable doubt,” and that by waiving the right to a jury trial, a defendant “forfeit[s] the voir dire process and his right to have the 12 persons chosen through that process decide his guilt or innocence, and that the judge instead . . . mak[es] that determination.”); Hopkins v. State, 209 Ga. App. 337, 338 (3) (433 SE2d 423) (1993) (physical precedent only) (holding that “in a bench trial it is presumed that the judge, as trier of fact, is able to distinguish between competent and incompetent evidence and consider only that evidence which is admissible.”).


author: Boggs, Judge.

text:
    A15A0996.
    CEMEX CONSTRUCTION MATERIALS FLORIDA, LLC v. LRA NAPLES, LLC.
    (779 SE2d 444)
   Boggs, Judge.

Cemex Construction Materials Florida, LLC (“Cemex”) appeals from the trial court’s order denying its motion to dismiss grounded upon a forum selection clause in a contract between Cemex, LRA Naples, LLC f/k/a Ginn-LA Naples Ltd., LLLP (“Ginn”), and two other entities not involved in this case. The parties refer to this contract as the “Four-Party Agreement.” Cemex contends the trial court should have enforced the forum selection clause in the Four-Party Agreement, or alternatively, dismissed the case under the doctrine of forum non conveniens. Because we agree that the forum selection clause in the Four-Party Agreement applies to the action before us, we reverse.

“We review a trial court’s ruling on a motion to dismiss de novo. [Cit.]” The Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795 (692 SE2d 61) (2010). The record shows that the Four-Party Agreement contains the following provision: ‘Venue for any action concerning this Agreement shall be in Lee County, Florida.” Ginn’s complaint against Cemex alleges the existence of the Four-Party Agreement, along with three other pre-existing agreements modified by the Four-Party Agreement, and a copy of all four contracts is attached to the complaint. Ginn also alleges that “[t]he Four-Party Agreement made the Lease Termination Payment come due on December 31, 2015.” Finally, the complaint alleges that Ginn did not receive sufficient credit against the “Lease Termination Payment” due to various breaches of the pre-existing contracts by Cemex and asks the court to declare that it is relieved from its obligation to make the “Lease Termination Payment.” It is undisputed that the three preexisting agreements alleged in the complaint do not contain a forum selection clause.

Based upon the forum selection clause in the Four-Party Agreement, Cemex moved to dismiss Ginn’s complaint. It also asked, in the alternative, that the trial court dismiss the complaint based upon the doctrine of forum non conveniens. The trial court denied the motion to dismiss because

the Four-Party Agreement purports to modify only certain provisions of the prior three contracts. Further it was entered into almost two and a half years after the original agreement, and it adds two other entities. Finally, it contains its own standard, boilerplate provisions governing that contract. Therefore, it should be read as a separate, independent agreement from the prior three agreements, to which the forum selection clause does not apply.

1. Georgia has adopted the United States Supreme Court’s conclusion “that forum selection clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’under the circumstances.” The Park Avenue Bank v. Steamboat City Dev. Co., 317 Ga. App. 289, 293 (1) (b) (728 SE2d 925) (2012), overruled on other grounds, Wang v. Liu, 292 Ga. 568, 571 (1) (740 SE2d 136) (2013). We are not asked to address in this case whether the forum selection clause was unreasonable, but instead whether it applies to the particular complaint before us.

The language in the forum selection clause is broad — it applies to “any action concerning” the Four-Party Agreement. “[U]nless [a] contract indicates otherwise, ‘we generally accept that contractual terms carry their ordinary meanings.’ [Cit.]” Lafarge Bldg. Materials v. Thompson, 295 Ga. 637, 640 (2) (763 SE2d 444) (2014). The word “concerning” is defined as “[i]n reference to; regarding.” American Heritage Dictionary (2d ed. 1982). Here, the complaint alleges the existence of the Four-Party Agreement, a copy of this agreement is attached to the complaint, and Ginn seeks relief from a payment due date contained within the Four-Party Agreement. We therefore conclude that the complaint is “any action concerning” the Four-Party Agreement.

Ginn’s argument that the forum selection clause does not apply because the Four-Party Agreement was intended to be a separate, nonintegrated agreement does not require a different result. The resolution of this case turns on whether the action concerned the Four-Party Agreement, which it clearly does, and not whether the Four-Party Agreement was intended to be integrated with the preexisting contracts. And nothing in our opinion in SR Bus. Svcs. v. Bryant, 267 Ga. App. 591 (600 SE2d 610) (2004), mandates that contracts must be contemporaneous and construed as one contract in order for a forum selection clause in one contract to apply to an action concerning multiple, interrelated contracts. In Bryant, we addressed a different factual scenario (whether a forum selection clause in a merger agreement applied to an employment agreement attached as an exhibit to the merger agreement) and concluded that the trial court erred by denying a motion to dismiss based upon the forum selection clause in the merger agreement.

Decided November 12, 2015.

Greenberg Traurig, Michael J. King, Charles H. Crawford III, for appellant.

Morris, Manning & Martin, John A. Lockett III, Pelham Wilder TV, for appellee.

Based upon our conclusion that the complaint concerns the Four-Party Agreement, we reverse the trial court’s order denying Cemex’s motion to dismiss. See Brinson v. Martin, 220 Ga. App. 638, 640-641 (2) (469 SE2d 537) (1996); Laibe Corp. v. General Pump & Well, 317 Ga. App. 827, 829-831 (1) (733 SE2d 332) (2012) (physical precedent only).

2. Cemex’s remaining enumeration of error regarding forum non conveniens is rendered moot by our holding in Division 1.

Judgment reversed.

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

       It is undisputed that Cemex is the successor-in-interest to Rinker Materials of Florida, LLC, the entity which originally entered into the Four-Party Agreement. For ease of reference, Rinker will he identified as Cemex in this opinion.