text:
    A12A1300, A12A1301.
    ROWE et al. v. LAW OFFICES OF BEN C. BRODHEAD, P.C.; and vice versa.
    (735 SE2d 39)
   Branch, Judge.

This dispute over an attorney fee agreement went to trial, and a jury returned a verdict in favor of the law firm in the amount of $160,000. The clients appeal and contend the trial court erred (1) by denying their motion for directed verdict on the ground that an amendment to the fee agreement was not enforceable because it lacked consideration; (2) by failing to instruct the jury that the amendment lacked consideration; and (3) by instructing the jury that consideration couldbe foundbased on the clients’ subsequent actions. The law firm cross-appeals the denial of its motions for directed verdict. For the reasons stated below, we affirm.

The facts relevant to this appeal are fairly straightforward, and following a trial, we construe those facts in favor of the prevailing party in the court below. Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997).

So construed, the evidence shows that on January 9, 2007, Theodore P. Rowe and the company he founded — Medical Edge Technologies, Inc. (“MET”), a medical device seller with over $20 million in annual sales — entered into a “Contingent Fee Contract” with the Law Offices of Ben C. Brodhead, P.C. (“Brodhead”). Rowe had learned that MET’s supplier DePuy Spine Sales Limited Partnership, a Johnson & Johnson company (hereinafter “Johnson & Johnson”), wanted another company to replace MET in its sales territory, and MET hired Brodhead to negotiate a buyout of MET’s lucrative contract with Johnson & Johnson on the best terms possible. The agreement provides that Rowe and MET retained Brodhead to represent them in any dispute “against” Johnson & Johnson:

The client hereby retains and employs the Firm to represent Client in any and all claims, which [it] may have against any individual, or any other entity, firm, person or corporation liable therefor [ ] or in connection therewith, arising out of any dispute related to a business relationship with DePuy Spine, Inc., DePuy Spine Sales Limited Partnership, and/or Johnson & Johnson; and to pursue said claim and recover any and all damages and compensation to which the Client may be entitled as well as to compromise and settle all such claims {hereinafter, the “Case”).

(Emphasis supplied.) In exchange for legal services “in the Case,” Rowe and MET agreed to pay Brodhead

an initial non-refundable payment of $25,000.00 as well as a sum equivalent to the following distribution of the total amount recovered in said case: forty percent (40%) of all money and property recovered, from the proceeds of a settlement reached before suit is filed, and forty percent (40%) of all money and property which are the proceeds of any suit and judgment or from a settlement during litigation, before or after trial, whether or not said recovery occurs before or after any lawsuit is filed.

(Emphasis supplied.) The agreement states that it “shall apply only to work to be performed in this Case by the Firm.” (Emphasis supplied.) And Brodhead had a right to withdraw from the representation at any time.

After the parties entered into the agreement, the nature of the legal work changed dramatically. Instead of attempting to buy out MET’s contract, Johnson & Johnson filed a $3 million federal lawsuit and an arbitration in Massachusetts, as well as several motions for injunctive relief, designed to take MET’s employees and customers and to drive Rowe out of the medical device industry. In Rowe’s own words, “All hell broke loose [in February 2007].” These actions required considerable legal effort from Brodhead from a defense standpoint that was markedly different from the anticipated plaintiff’s suit against Johnson & Johnson as described in the Contingent Fee Contract. This legal work also fell outside the description of “the Case” and the compensation terms thereof. Brodhead told Rowe that, under the Contingent Fee Contract, if MET lost the suit, Brodhead would not be paid and would go out of business. MET and Rowe also asked Brodhead to handle other legal matters, including filing two separate suits in Georgia against parties mentioned in the original fee agreement as well as parties outside of that agreement, including some of MET’s own employees. As a result, Brodhead and Rowe had multiple negotiations during which the parties discussed whether the contingency fee contract was inadequate, and Brodhead stated that it would have to withdraw from the representation or receive different compensation for the new work. Ultimately, MET and Rowe decided to retain Brodhead for the considerable defense effort and to amend the agreement so Brodhead would be compensated for that effort and other work.

Accordingly, on March 20, 2007, the parties executed an Amendment to their original agreement. The Amendment provides that the consideration includes work already performed that was outside the terms of the original agreement:

In consideration of the mutual promises herein contained and other good and valuable consideration, including but not limited to the substantial amount of work already performed by the Firm for the client that was beyond the work contemplated by the Contingent Fee Contract, the parties hereby amend the Contingent Fee Contract as follows. . . .

(Emphasis supplied.) The Amendment then provides that the payment provision of the original agreement is replaced with new language pursuant to which Rowe and MET would pay Brodhead $1,200,000 “for all services which have already been performed by the Firm for the Client as of the date of the signing of this Amendment to Contingent Fee Contract,” as well as 40 percent of any money recovered for Rowe and MET after the date of the Amendment. The reference to Brodhead working on “the Case” was removed from the provision regarding payment; instead, the Amendment provides that Brodhead would receive 40 percent of all money and property recovered for the client “regardless of whether said recovery results from a settlement, a judgment, an arbitration, a mediation, or any other method.” As was the case with the original agreement, Rowe signed the Amendment for himself and MET, and Brodhead signed for his firm.

After significant litigation followed by a two-week arbitration of the dispute between Johnson & Johnson and MET in the fall of 2007, the Massachusetts arbitrators awarded a net recovery of $1.5 million to MET (a $2 million award for MET offset by a $0.5 million award against MET); moreover, as a result of Brodhead’s efforts, MET was able to remain in business throughout the litigation. In early January 2008 MET received a Johnson & Johnson check that Rowe signed over to Brodhead, and the check was deposited into Brodhead’s escrow account. At that time, based on the Amendment, Brodhead was entitled to a total of $1.8 million (the flat fee of $1.2 million, which was not yet paid, plus 40 percent of the $1.5 million recovery). Thus, after receiving the check, Brodhead was still owed $300,000 under the payment terms of the Amendment.

On January 31, 2008, because of financial difficulties, MET and Rowe requested a loan from Brodhead, who loaned MET $150,000 (the “Loan”). The terms of the Loan were printed on the reverse side of the check and were provided in larger print to Rowe, who read them prior to cashing the check. That language states that the check is a loan to Rowe and MET and that, by cashing the check, Rowe and MET ratify their previous obligation to Brodhead for $300,000. Rowe signed the check on behalf of himself and MET and deposited it into a MET account. Finally, MET claimed the $150,000 as a loan and the $1.5 million payment as attorney fees on its federal income tax return.

Ultimately, MET and Rowe refused to repay the Loan or pay Brodhead for the remainder due under the fee agreement as amended. Accordingly, Brodhead brought this suit, and MET and Rowe answered and asserted counterclaims for return of their alleged share of the $1.5 million recovery from Johnson & Johnson. Both sides moved for summary judgment, and the court denied both motions. But in its order, the trial court held that the Amendment was not enforceable because, on its face, it lacked consideration given that it was predicated upon services that had “already been performed” by Brodhead. The court added, however, that “issues of performance and acceptance so as to make an otherwise unenforceable agreement enforceable are typically jury questions,” and that because Brodhead had presented evidence that it continued to provide services based upon entering into the Amendment, the matter needed to be submitted to the jury. MET and Rowe moved for a directed verdict at the close of Brodhead’s evidence and at the conclusion of the trial on the basis that the Amendment lacked consideration, and Brodhead moved for a directed verdict on several issues, including the enforceability of the Amendment and the Loan as a matter of law; the court denied all motions. The case was tried before a jury, and the jury returned a verdict in favor of Brodhead in the amount of $160,000. In Case No. A12A1300, MET and Rowe appeal the final judgment; in Case No. A12A1301, Brodhead cross-appeals the denial of its motions for directed verdict.

Case No. A12A1300

1. MET and Rowe first contend the trial court erred by not granting their motions for directed verdict. They agree with the trial court’s conclusion that the Amendment on its face lacks sufficient consideration to be enforceable, but they argue the trial court erred by concluding that there remained issues regarding performance and acceptance that created a jury issue as to whether the Amendment was enforceable. “A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict.” (Footnote omitted.) H. J. Russell & Co. v. Jones, 250 Ga. App. 28-29 (550 SE2d 450) (2001). For the following reasons, we find that the trial court was not required to grant a directed verdict in favor of MET and Rowe.

“To constitute consideration, a performance or a return promise must be bargained for by the parties to a contract,” which means that “it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.” OCGA § 13-3-42 (a), (b). The bargained-for performance may be an act other than a promise, and it can include a forbearance or the creation, modification, or destruction of a legal relation. OCGA § 13-3-42 (c).

Here, evidence was presented to show that MET and Rowe bargained for a performance or a return promise from Brodhead. To be considered the result of a bargain, “it is enough that one party manifests an intention to induce the other’s response and to be induced by it and that the other responds in accordance with the inducement.” Restatement, Second, of Contracts, § 71, comment b. At trial, evidence was presented to show that prior to the Amendment, Brodhead performed work neither anticipated by nor described in the original agreement. At this point, MET and Rowe were legally obligated to pay, and Brodhead was entitled to receive, the reasonable value of these additional services. Cf. Gerdes v. Russell Rowe Communications, 232 Ga. App. 534, 537 (3) (502 SE2d 352) (1998) (“The reasonable value of ‘extra work performed in addition to what the contract contemplated’ can be recovered in quantum meruit.”); Bollers v. Noir Enterprises, 297 Ga. App. 435, 438 (2) (677 SE2d 338) (2009).

The parties then entered into negotiations, during which Brodhead made clear that he would discontinue work altogether (as was authorized by the terms of the original agreement) unless MET and Rowe agreed to a new compensation arrangement. Both parties agreed and entered into the Amendment, which Rowe signed on behalf of MET and himself. The Amendment specifically stated that the consideration supporting it included a “substantial amount of work already performed by the Firm for the Client that was beyond the work contemplated by the [original agreement].” Thus, the element of a bargain was satisfied because MET and Rowe manifested an intention to induce Brodhead to continue with the representation, and MET and Rowe were induced to change the payment terms by Brodhead’s agreement to do so; Brodhead, in turn, responded by promising to perform. OCGA § 13-3-42 (a), (b). See generally Giant Peanut & Grain Co. v. Long Mfg. Co., 129 Ga. App. 685, 687 (201 SE2d 26) (1973) (describing consideration for a modification to an agreement).

The consideration Brodhead provided in exchange for the amended payment term was a valid type of consideration. See OCGA § 13-3-42 (c). For example, it has been held that one party’s promise to perform under a contract modification, when it is not obligated to do so, is sufficient consideration for a “return promise to retroactively and prospectively reprice” work under the contract. See, e.g., Gardiner, Kamya & Assoc., P.C. v. Jackson, 369 F3d 1318, 1323 (Fed. Cir. 2004) (relying in part on the Restatement, Second, of Contracts, §§ 71, 72, 73). Similarly, “the continuation of work under a contract which is terminable at will supplies the necessary consideration for contract conditions,” such as the addition of a new term. Hans Godo Frabel, Inc. v. Brennan’s of Atlanta, 151 Ga. App. 379, 380 (1) (259 SE2d 649) (1979). See also Atlanta Dairies Cooperative v. Grindle, 182 Ga. App. 409, 411 (2) (356 SE2d 42) (1987) (“[T]here was sufficient evidence of consideration for appellant’s alleged agreement to modify the contract price of its previously sold goods.”) (citations omitted). Here, Brodhead provided consideration sufficient to satisfy the requirements of OCGA § 13-3-42 in the form of uncompensated work performed outside the scope of the original agreement, by agreeing to continue the representation, and by agreeing to the terms of the Amendment.

Finally, the trial court correctly held that the parties’ actions subsequent to the Amendment were also relevant to the issue of consideration. “Part performance, the doing of contemplated acts, can furnish the required consideration and mutuality otherwise lacking.” Franklin v. UAP/GA. AG. CHEM, 237 Ga. App. 71, 73 (514 SE2d 241) (1999) (citation omitted). See also Roberson v. Eichholz, 218 Ga. App. 511, 513 (2) (462 SE2d 382) (1995) (same). Evidence was presented to show that after the parties signed the Amendment, Brodhead continued to perform thereunder.

Construing the evidence in favor of Brodhead, as we must, we conclude the trial court had no basis for granting a directed verdict in favor of MET and Rowe and therefore did not err in refusing to do so.

2. MET and Rowe contend the trial court erred by failing to charge the jury “that the Amendment, as a matter of law, lacked consideration on the face of the document.” MET and Rowe also contend the trial court erred by charging the jury that continuation of work under a contract terminable by the parties may provide consideration for modification or amendment of a contract. These enumerations are controlled adversely to MET and Rowe by Division 1.

Case No. A12A1301

3. On cross-appeal, Brodhead contends the trial court erred by denying its motions for directed verdict on the enforceability of the Amendment and the enforceability of the Loan. OCGA § 9-11-50 (a) provides that “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.”

Brodhead contends that the Contingent Fee Contract as amended was enforceable as a matter of law and that the trial court therefore erred by refusing to grant a directed verdict in its favor on that point. Relevant issues of fact, however, defeat Brodhead’s assertion of error. The jury was presented with issues of fact regarding whether the parties bargained for the Amendment and whether Brodhead performed work outside the scope of the original agreement before entering into the Amendment, both of which were relevant to the question of the enforceability of the Amendment.

Brodhead also argues that the agreement as amended was enforceable as a matter of law because MET and Rowe ratified the Amendment, together with the amount due, as a matter of law when they accepted the $150,000 Loan. We find no mention of this argument in Brodhead’s motions for directed verdict. “A motion for a directed verdict shall state the specific grounds therefor.” OCGA § 9-11-50 (a). A failure to move for a directed verdict on a specific ground precludes review of that decision on appeal, although the appealing party may seek a new trial on this ground. See Aldworth Co. v. England, 281 Ga. 197, 201 (637 SE2d 198) (2006). Brodhead, however, does not seek a new trial on appeal; it seeks remand for the entry of judgment in its favor on this point. Therefore, this ground of appeal is not properly before us.

4. Brodhead also contends the Loan was enforceable as a matter of law and that, therefore, the trial court erred by denying its motion for directed verdict on that point.

In their answer, MET and Rowe raised as a defense that the Loan was not enforceable because the parties were in a fiduciary relationship at the time the parties entered into the Loan. Thereafter, the parties apparently agreed that the trial court should construe this defense as a counterclaim. And MET and Rowe amended their counterclaim to allege that Brodhead breached his fiduciary duties to them, in part, by forcing him to take the Loan subj ect to the additional terms printed on the back of the check. In denying Brodhead’s motion for summary judgment with regard to the Loan, the trial court held that the fact that the parties were in a confidential relationship raised an issue of fact about the enforceability of the Loan. MET and Rowe continued to assert a claim for breach of fiduciary responsibility in the joint pre-trial order. Then at trial, in addition to the existence of a fiduciary relationship, MET and Rowe presented evidence to the jury to show that at the time the Loan was signed, MET and Rowe were in extreme financial distress (of which Brodhead was aware) and that Brodhead was holding the $1.5 million settlement proceeds in escrow, as well as evidence that MET and Rowe disputed the language on the back of the check and that Rowe signed the document as a result of these factors. Finally, the trial court charged the jury regarding the effect of fiduciary relationships.

Decided November 29, 2012

Lamberth, Cifelli, Stokes, Ellis & Nason, Donald L. Cook, for appellants.

Ben C. Brodhead III, James A. Neuberger, for appellee.

In short, a claim of breach of fiduciary duty was presented to the jury, and the verdict does not indicate whether the trial court awarded MET and Rowe any damages on that claim. The relevant part of the verdict read by the jury only stated “We, the jury, find in favor of the plaintiff and against the defendants in the amount of $160,000,” an amount that is significantly less than the total amount requested by Brodhead. It also appears that an issue of fact was presented for the jury regarding the effect of the parties’ fiduciary relationship on the enforceability of the Loan. And Brodhead has not asserted any error with regard to the presentation of these claims to the jury. Thus, without a verdict form that shows whether the jury awarded MET and Rowe damages for breach of fiduciary duty or, even, whether the jury found in favor of Brodhead on the Loan, this Court cannot determine whether error occurred. See City of Baldwin v. Woodard & Curran, Inc., 316 Ga. App. 768, 771 (1) (730 SE2d 486) (2012) (verdict form did not show upon which of two claims it was based). Compare Curran v. Scharpf, 290 Ga. 780 (1) (726 SE2d 407) (2012) (failure to object to the form of the verdict waives errors “that could have been fixed through any means connected with the form of the verdict itself”).

In sum, Brodhead has not shown the trial court erred by denying its motions for directed verdict.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       Evidence was presented to show that DePuy Spine Sales is a wholly owned subsidiary of Johnson & Johnson. The role of DePuy Spine, Inc. is not well explained by the parties, but the parties do not dispute that both companies are part of the Johnson & Johnson family of companies and controlled by Johnson & Johnson. We will refer to these entities collectively as “Johnson & Johnson” herein.

       MET was authorized to discharge Brodhead, as well, subject to certain conditions.

       Some of these figures also include interest, but the precise amounts are not relevant to this appeal.

       OCGA § 13-3-42 was adopted in 1981, and it is based on the Restatement, Second, of Contracts, § 71. Folks, Inc. v. Dobbs, 181 Ga. App. 311, 313 (2) (352 SE2d 212) (1986).

       The trial court ignored this aspect of the stated consideration. It only focused on the fact that the work had already been performed.

       MET and Rowe failed to request the charge in writing, but they did make an oral request for such a charge and objected to the court’s failure to give it.

       Brodhead also seeks review of the trial court’s denial of its pretrial motions for summary judgment on the same grounds. But after a verdict and judgment, review of an order denying summary judgment is moot. Kicklighter v. Woodward, 267 Ga. 157, 162 (4) (476 SE2d 248) (1996); Oakhurst Presbyterian Church v. Hendrix, 298 Ga. App. 226 (1) (679 SE2d 742) (2009). Although Brodhead did not file a motion for judgment notwithstanding the verdict, such a motion “need not he filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict.” OCGA § 5-6-36 (b); see also Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 271 (1) (329 SE2d 900) (1985).


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A1360, A12A1361.
    ISBELL et al. v. CREDIT NATION LENDING SERVICE, LLC et al.; and vice versa.
    (735 SE2d 46)
   MILLER, Presiding Judge.

Jonathan and Mary Katheryne Isbell sued Credit Nation Lending Service, LLC (“CNLS”) and Credit Nation Auto Sales, LLC, d/b/a Synergy Motor Company, d/b/a Kellee Kars, Inc., d/b/a Kellee Kars Isuzu, d/b/a KKL Services (“CNAS”) (collectively, “Credit Nation”), raising claims of fraud, breach of oral contract, and violations of the Georgia Fair Business Practices Act (“FBPA”) (OCGA § 10-1-390 et seq.) and the federal Truth in Lending Act (“TILA”) (15 USC § 1601 et seq.) in relation to the Isbells’ purchase and financing of a used vehicle. Credit Nation filed a motion for summary judgment, and the Isbells responded with a cross-motion for partial summary judgment. Credit Nation moved to strike an affidavit and 21 exhibits attached to the Isbells’ motion for summary judgment, as well as a supplemental affidavit. The trial court granted Credit Nation’s motion for summary judgment and denied the Isbells’ partial summary judgment motion. The trial court also denied Credit Nation’s motions to strike. These cross-appeals then ensued.

In Case No. A12A1360, the Isbells contend that the trial court failed to consider their deposition exhibit and erred in finding that they did not present evidence to support their claims. For the reasons stated below, we affirm in part and reverse in part the trial court’s judgment in Case No. A12A1360.

In Case No. A12A1361, Credit Nation contends that the trial court erred in denying its motions to strike because the subject exhibits and documents were not authenticated or contained hearsay. For the reasons that follow, we affirm the trial court’s rulings in Case No. A12A1361.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga. App. 553, 553-554 (562 SE2d 731) (2002).

So viewed, the record shows that on October 20, 2008, the Isbells called Credit Nation in response to an online advertisement about a 2002 Ford Explorer. Mr. Isbell explained to a Credit Nation salesperson that he was interested in the advertised vehicle, and that he wanted a vehicle that had not been in an accident, did not have any body damage, and did not require any repair. The salesperson assured Mr. Isbell that the Ford Explorer met Mr. Isbell’s requirements. When the Isbells visited Credit Nation later that day, the salesperson had the Ford Explorer parked in front of the dealership ready for the Isbells to test drive. During the ensuing test drive, Mr. Isbell stopped at a gas station to inspect the vehicle for body work. Upon returning to the Credit Nation lot, Mr. Isbell lifted the hood and examined the engine. During his inspections, Mr. Isbell did not find any defects or damage. Mr. Isbell then asked the salesperson about the vehicle’s condition, and the salesperson responded that there was nothing wrong with the vehicle.

The Isbells agreed to buy the vehicle, paying $3,500 in cash as a down payment and using Credit Nation’s financing affiliate, CNLS, to finance the remainder of the vehicle’s cost. The Isbells negotiated a semi-monthly payment plan, which required them to make 24 payments per year and 78 total payments over the total 39-month financing period. The Credit Nation sales manager input these figures into a software program, which generated the TILA disclosures. The TILA disclosures were verified by a finance manager and disclosed to the Isbells.

During the negotiations, Mr. Isbell requested a Carfax report on the Ford Explorer so that he could verify that the vehicle had not been involved in an accident. Mr. Isbell did not receive the requested report before signing the purchase agreement. The Isbells purchased the vehicle “as is,” and authorized Credit Nation to withdraw payments by charging Mr. Isbell’s debit card.

Upon returning home with the Ford Explorer, Mr. Isbell obtained a vehicle history report and discovered that the vehicle had suffered frame damage. The next morning, Mr. Isbell returned to Credit Nation to complain about the vehicle’s damage. Credit Nation’s general manager told Mr. Isbell that his down payment had already been deposited, and that the contract could not be rescinded. Mr. Isbell left with the Ford Explorer that day, but subsequently returned several more times to demand that Credit Nation take the vehicle back. Within two weeks of the Isbells’ purchase, Credit Nation agreed to accept the Ford Explorer and to attempt to find the Isbells a replacement vehicle that was similar to the one they purchased. Credit Nation provided the Isbells with loaner vehicles while searching for a replacement vehicle. During the subsequent search, Credit Nation continued to charge payments against Mr. Isbell’s debit card, although he had previously asked the dealership to cease making such charges.

Credit Nation attempted to find a suitable vehicle for the Isbells and, after failing to do so, demanded that the Isbells return the loaner vehicle and pick up the Ford Explorer. The Isbells refused to reclaim the Ford Explorer they purchased. Credit Nation subsequently repossessed the loaner vehicle.

The Isbells later sued Credit Nation for fraud and violation of the FBPA on the ground that Credit Nation falsely represented the vehicle’s condition as having no frame or transmission damage. The Isbells also sued for breach of contract, alleging that Credit Nation broke its oral promise to find a suitable replacement vehicle for the Isbells. The Isbells also asserted that Credit Nation violated the FBPAby misrepresenting the business entities involved in the transaction, and that the dealership violated TILA by failing to disclose the payment schedule.

Credit Nation moved for summary judgment, claiming that the Isbells’ fraud claim failed as a matter of law because they presented no evidence that the dealership knew the vehicle was damaged or defective, and that the Isbells could not show justifiable reliance on any alleged misrepresentation. Credit Nation also argued that the Isbells’ breach of contract claim failed because any promise to find a replacement vehicle was unenforceable for lack of material terms and for violating the Statute of Frauds. In addition, Credit Nation argued that the Isbells’ FBPA claim based on misrepresentation of the vehicle’s condition failed for the same reasons the fraud claim failed. Credit Nation also asserted that the Isbells’ FBPA claim based on the use of multiple business entities failed since Credit Nation was permitted to use multiple trade names and there was no evidence that the Isbells were actually confused by such use. Credit Nation also contended that its TILA disclosures were accurate, and that to the extent they were not, it was entitled to a bona fide error defense since any errors were unintentional.

The Isbells filed a cross-motion for partial summary judgment, and Credit Nation moved to strike documents attached to the Isbells’ motion and a supplemental affidavit. Following a hearing, the trial court issued an order granting summary judgment to Credit Nation, denying the Isbells’ cross-motion for partial summary judgment, and denying Credit Nation’s motions to strike.

Case No. A12A1360

1. The Isbells contend that the trial court erred in granting Credit Nation’s motion for summary judgment because it ignored Mr. Isbell’s deposition exhibits that were not filed with the clerk of the court. Their claim lacks merit.

Under OCGA § 9-11-56, once a movant supports his motion for summary judgment, the opponent cannot rest upon the mere allegations of his complaint, but must come forth with affidavits or other evidence setting forth specific facts showing that a genuine issue exists for trial. And the burden of timely filing depositions and other discovery material with the trial court lies with the party which intends to rely upon it.

(Citations and punctuation omitted.) Parker v. Silviano, 284 Ga. App. 278, 281 (2) (643 SE2d 819) (2007).

Here, Credit Nation filed Mr. Isbell’s deposition and referred to his deposition testimony in support of their motion for summary judgment. Mr. Isbell’s deposition referred to certain exhibits, which were not attached to the deposition filed by Credit Nation. Since the Isbells were relying on the subject deposition exhibits, it was their burden to ensure that the record was complete. Parker, supra, 284 Ga. App. at 281 (2). Nevertheless, the record shows that the subject deposition exhibits were attached to the Isbells’ statement of undisputed material facts. Since the trial court stated that it considered the entire record upon ruling on the motions for summary judgment, and there is no evidence to the contrary, the Isbells have failed to demonstrate that they were harmed by Credit Nation’s failure to attach the deposition exhibits with the deposition transcript. As such, the Isbells’ claim affords no basis for reversal. See Hooks v. Humphries, 303 Ga. App. 264, 269 (4) (692 SE2d 845) (2010) (“[I]tis axiomatic that harm as well as error must be shown to authorize a reversal by this court.”) (citation and punctuation omitted).

2. The Isbells contend that the trial court erred in granting summary judgment to Credit Nation on their fraud and rescission claim for failure to present admissible evidence that Credit Nation knew that the Ford Explorer had transmission and frame damage. We agree that the Isbells presented evidence from which a jury could infer that Credit Nation knew about the vehicle’s frame damage, but disagree that they presented evidence that Credit Nation knew that the vehicle had transmission issues.

(a) “In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud.” (Citation omitted.) Ekeledo v. Amporful, 281 Ga. 817, 819 (1) (642 SE2d 20) (2007). “The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” (Punctuation and footnote omitted.) Serchion v. Capstone Partners, 298 Ga. App. 73, 76-77 (2) (679 SE2d 40) (2009).

(i) Here, there was record evidence from which a jury could infer that Credit Nation knew about the vehicle’s frame damage. Notably, in response to the Isbells’ interrogatories, Credit Nation admitted that its agent bought the Ford Explorer at an auction performed by Manheim Auction Company (‘Manheim”). Manheim’s controller confirmed that Credit Nation had requested and paid for a post-sale inspection. Manheim’s controller averred and submitted business records showing that the Ford Explorer was announced at auction as having frame and body damage, and that the vehicle’s left rear rail was bent.

The trial court ruled that the documents supplied by Manheim’s controller were inadmissible because there was no testimony from Manheim’s inspector. However, the documents were admissible under the business records exception to the hearsay rule.

OCGA § 24-3-14 prescribes the statutory standard for the admission in evidence of records made in the regular course of business. This Code section is to be liberally interpreted and applied. OCGA § 24-3-14 (d). Before a writing or record is admissible, under OCGA § 24-3-14 (b), a foundation must be laid through the testimony of a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter. A witness identifying business records under OCGA § 24-3-14 does not have to have personal knowledge of the correctness of the records or have made the entry himself.

(Citations and punctuation omitted; emphasis supplied.) Tharp v. Vesta Holdings I, 276 Ga. App. 901, 907 (3) (625 SE2d 46) (2005).

Manheim’s controller averred that he had personal knowledge of the company’s method of maintaining its business records; the company’s records were kept in the ordinary course of business; and record entries were made at or near the time of the auction and post-sale inspection. Manheim’s controller laid a sufficient foundation for admission of the inspection reports, and the trial court erred when it found that the inspection reports identified by Manheim’s controller were inadmissible hearsay on the basis that he did not make the entries himself. See Walter R. Thomas Assoc. v. Media Dynamite, 284 Ga. App. 413, 416 (1) (a) (643 SE2d 883) (2007) (invoices sent to company can be considered the company’s business record if kept in the ordinary course of business, notwithstanding absence of testimony from a representative who prepared the invoice, since the testimony of the company’s president was sufficient to lay a foundation).

Based on the Manheim controller’s affidavit and attached business records, there is record evidence establishing that Credit Nation received a post-sale inspection report that revealed frame damage. Mr. Isbell testified that he informed the Credit Nation salesperson that he did not want a vehicle that had been in any accidents or had any damage. The salesperson confirmed that the Ford Explorer met Mr. Isbell’s requirements, and that nothing was wrong with the subject vehicle. While the record shows that some of the body damage had been fixed, there is no evidence that the vehicle’s left rail had been repaired. In light of these facts, there is a factual dispute as to whether the salesperson’s representation about the history and condition of the vehicle was false, and a jury may infer knowledge of the falsity in light of the fact that Credit Nation received the post-sale inspection report. See Mitchell v. Backus Cadillac-Pontiac, 274 Ga. App. 330, 335 (2) (618 SE2d 87) (2005) (salesman’s representation that vehicle had not been wrecked was false, and knowledge of falsity could be inferred based on fact that vehicle was repaired by dealership where salesman worked).

Sufficient circumstances were shown to create a jury issue as to the salesman’s intentional deception, a deception which would be attributed to his employer as a matter of law. Although fraud may not be presumed, slight circumstances may be sufficient to carry conviction of its existence.

(Punctuation and footnotes omitted.) Id. at 336 (2). Therefore, the trial court erred when it granted summary judgment to Credit Nation since the evidence shows that Credit Nation learned through the auction that the vehicle’s frame was damaged.

(ii) The Isbells, however, failed to present evidence showing that Credit Nation knew of the Ford Explorer’s transmission problems. Mr. Isbell deposed that when driving in reverse, the car sounded “like the transmission fell out.” While the Isbells assumed that the dealership must have known about the problematic transmission, as they “purposefully orchestrated” the test drive so that the Isbells would not need to drive the vehicle in reverse, their testimony was based upon mere speculation. “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” (Citations and punctuation omitted.) La Cosecha, Inc. v. Hall, 246 Ga. App. 441, 444 (540 SE2d 659) (2000). Notably, Credit Nation supplied an affidavit from its sales manager stating he was familiar with the Ford Explorer purchased by the Isbells, and to his knowledge, the vehicle had no transmission problems. Therefore, the Isbells’ claim of fraud premised on alleged transmission misrepresentations failed.

(b) Credit Nation contends that we should nevertheless affirm the trial court’s ruling since the Isbells did not justifiably rely on the false representation regarding the vehicle’s condition. We agree.

Although the trial court’s reason for granting summary judgment may be erroneous, we may still affirm the trial court’s judgment ifit is right for any reason. See Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 45 (4) (586 SE2d 235) (2003) (a judgment of a lower court may be affirmed so long as it is right for any reason); City of Gainesville v. Dodd, 275 Ga. 834, 835, 838-839 (573 SE2d 369) (2002) (appellate courts may exercise discretion as to when to follow the “right for any reason” rule and consider grounds not addressed by the trial court). Since the factual record is set, we are able to apply the facts to the law in the same manner as the trial court in the furtherance of judicial economy. See City of Gainesville, supra, 275 Ga. at 838 (“The de novo review standard advances judicial economy by recognizing that, in summary judgment cases, the factual record is set and the appellate courts can, as well as the trial courts, apply those facts to the law.”).

In order to prove the fourth element of justifiable reliance, a party must show that he exercised his duty of due diligence. Fraud cannot be the basis of an action if it appears that the party alleging the fraud had equal and ample opportunity to prevent it and yet made it possible through the failure to exercise due diligence. While justifiable reliance, more often than not, is a jury issue, summary judgment may be appropriate if the means of ascertaining the relevant facts are equally available to all parties.

(Citations and punctuation omitted; emphasis supplied.) Martin v. Centre Point Investments, 310 Ga. App. 253, 257 (712 SE2d 638) (2011).

Here, although Mr. Isbell was aware that he could obtain a Carfax report to verify that the vehicle did not have any body damage, he decided to proceed with the purchase without first obtaining the report. While Mr. Isbell testified that he was led to believe that Credit Nation would resolve any issues that surfaced based on Mr. Isbell’s receipt of a vehicle history report, he conceded that Credit Nation did not specifically make such a promise. Moreover, the Isbells were specifically warned that the vehicle may have a bent frame, and Credit Nation offered the Isbells the opportunity to inspect the vehicle with their own mechanic. Since the Isbells purchased the vehicle “as is,” without first obtaining a vehicle history report or having the vehicle inspected by a mechanic, their “blind reliance on the salesman’s representations when the means of knowledge were at hand shows an unjustified lack of due diligence.” (Citation and punctuation omitted.) Empire Distributors v. Hub Motors Co., 240 Ga. App. 568, 569 (1) (524 SE2d 264) (1999); see also Lehman v. Keller, 297 Ga. App. 371, 373 (1) (677 SE2d 415) (2009) (buyers failed to exercise due diligence when they declined to exercise right to inspect property which would have revealed damage allegedly concealed by sellers). Moreover, “[i]n light of [the Isbells’] failure to use due diligence as set forth above, rescission of the contract for fraud in the inducement was not authorized.” Simmons v. Pilkenton, 230 Ga. App. 900, 902 (2) (497 SE2d 613) (1998). Consequently, the trial court correctly granted summary judgment on the issue of fraud and rescission.

3. The Isbells contend that the trial court erred in granting summary judgment to Credit Nation on their claim that Credit Nation breached an oral contract claim.

(a) The Isbells assert that the trial court erred when it found that Credit Nation’s oral promise to find a similar vehicle for them after accepting the returned Ford Explorer was not supported by consideration. We agree.

“It is axiomatic that a contract without consideration is invalid.” (Footnote omitted.) Thomas Mote Trucking, Inc. v. PCL Constructors, 246 Ga. App. 306, 310 (3) (540 SE2d 261) (2000). “Slight consideration is sufficient to sustain a contract.” (Citation omitted.) Franklin v. UAP/GA. AG. CHEM, Inc., 237 Ga. App. 71, 74 (514 SE2d 241) (1999). “A valuable consideration is founded on money or something convertible into money or having a value in money.” (Footnote omitted.) Lionheart Legend v. Norwest Bank Minnesota Nat. Assn., 253 Ga. App. 663, 666 (560 SE2d 120) (2002).

Here, Mr. Isbell testified that after Credit Nation initially refused to accept the vehicle, he contacted Credit Nation’s attorney to resolve the matter. Mr. Isbell stated that he was able to negotiate a deal with Credit Nation where they agreed to accept the Ford Explorer, replace it with a similar vehicle, and provide the Isbells with a loaner vehicle while the company searched for a replacement vehicle. This evidence was sufficient to establish an issue of fact regarding consideration.

[Consideration may be found by the trier of fact from numerous circumstances present in or suggested by the record and capable of development at trial. If [the Isbells’] return of the [vehicle] constituted a forbearance to press legal claims against [Credit Nation] for equipment defects, this forbearance could constitute consideration for [Credit Nation’s] promise to [find a replacement vehicle for the Isbells]. A contract compromising doubtful issues between the parties is supported by consideration.

(Citations and punctuation omitted.) Giant Peanut & Grain Co. v. Long Mfg. Co., 129 Ga. App. 685, 687 (201 SE2d 26) (1973). Therefore, the trial court erred when it found that there was no evidence to support consideration. Id. at 686-687 (concluding that summary judgment was not warranted where jury could infer existence of consideration based upon fact that buyer returned items to seller in return for promise to credit buyer’s account).

(b) Credit Nation contends that the oral promise was unenforceable because it lacked a material term, i.e., the identity of the particular vehicle to be sold, and it violated the Statute of Frauds. We disagree.

A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. OCGA § 11-2-204 (1). . . . [E]ven though one or more terms aré left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. OCGA § 11-2-204 (3).

(Citations and punctuation omitted.) Jones v. Baran Co., 290 Ga. App. 578, 579-580 (660 SE2d 420) (2008). Furthermore,

[i]t is true that a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. OCGA § 11-2-201 (1). Notwithstanding the writing and signature requirements of the Statute of Frauds, however, a contract for the sale of goods is still enforceable “if the party against whom enforcement is sought admits in his pleading, testimony, or otherwise in court that a contract for sale was made.” OCGA § 11-2-201 (3) (b).'

(Citations and punctuation omitted.) Id. at 582-583. “The ‘contract for sale,’ as to which the admission of the party may take the place of a writing, does not refer to a contract complete in all its terms, but to a transaction sufficient to stand as proof that the parties did in fact enter into a contractual relationship.” (Citation omitted.) Jackson v. Meadows, 153 Ga. App. 1, 2-3 (3) (264 SE2d 503) (1980).

Here, Mr. Isbell testified that he was expecting a replacement vehicle that was comparable to the Ford Explorer that he had previously purchased, with the same options and without body damage. While Credit Nation argues that Mr. Isbell actually requested an upgraded vehicle, Credit Nation’s general manager admitted that he would try to get Mr. Isbell a replacement vehicle, and if Mr. Isbell found the vehicle suitable, they would swap the vehicles and execute a new contract. Credit Nation admitted that it made numerous attempts to locate similar vehicles and had numerous conversations with Mr. Isbell about these vehicles. While there is a dispute about whether these vehicles were actually similar to the Ford Explorer purchased by the Isbells, any confusion about the “open terms in the agreement [was] not sufficient to negate the clear intent of the parties to enter into an enforceable agreement.” Unique Designs v. Pittard Machinery Co., 200 Ga. App. 647, 653 (3) (409 SE2d 241) (1991) (holding that dispute over the purchase price and the accessory packages to be included in sale of lathe was insufficient to negate the clear intent of the parties to enter into an enforceable agreement). Moreover, Credit Nation’s statements that it attempted to find a replacement vehicle for the Isbells were sufficient to create a jury question on the issue of part performance of the oral contract. See Jackson, supra, 153 Ga. App. at 2-3 (3) (although there was no sufficient written contract on sale of automobile, dealer’s admission that it agreed that customer would purchase a vehicle was sufficient to preclude summary judgment on the issue of part performance).

4. The Isbells also contend that the trial court erred in granting summary judgment to Credit Nation on their FBPA claims.

The FBPA proscribes unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce.... A single instance of an unfair or deceptive act or practice is a sufficient predicate upon which to base a claim for damages under the FBPAif the public consumer interest would be served thereby. To come within the FBPA, therefore, the deceptive activity must take place in the context of the consumer marketplace.

(Punctuation and footnotes omitted.) Catrett v. Landmark Dodge, 253 Ga. App. 639, 642 (2) (560 SE2d 101) (2002). A dealer’s sale of a used car falls within the ambit of the FBPA. See, e.g., id. at 643 (2).

(a) The Isbells contend that the trial court erred in granting summary judgment to Credit Nation on their claim that the company violated the FBPA when it misrepresented the Ford Explorer’s condition. We disagree.

“A private FBPA claim has three elements: a violation of the Act, causation, and injury.” (Citation and punctuation omitted.) Tiismann v. Linda Martin Homes Corp., 281 Ga. 137, 139 (2) (637 SE2d 14) (2006). “When the alleged FBPA violation is a misrepresentation, the consumer must show that he exercised due diligence to ascertain the falsity of the statement. Otherwise, the cause of the injury is the consumer’s lack of proper diligence, rather than the alleged FBPA violation.” Id. at 141.

As we found in Division 2, the Isbells failed to exercise due diligence in ascertaining the falsity of Credit Nation’s representations about the Ford Explorer. As such, their FBPA claim on this ground failed, and the trial court properly granted summary judgment on this claim. Tiismann, supra, 281 Ga. at 141-142.

(b) The Isbells also argue that the trial court erred in granting summary judgment to Credit Nation since its use of various business entities and trade names during the transaction deceived them and, therefore, violated the FBPA. Their claim is without merit.

The Isbells provide no authority, and we have found none, establishing that the involvement of multiple business entities or use of trade names or “d/b/a” is deceptive. Notably, under OCGA § 10-1-490, a company is allowed to use trade names, and the statute imposes no limit on the number of trade names a business can use. While the FBPA proscribes practices that “caus[e] actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of goods or services,” OCGA § 10-1-393 (b) (2), the Isbells’ claim of confusion is belied by the record. Indeed, Mr. Isbell testified that he knew exactly who he was dealing with. More fatal to their FBPA claim is the fact that the Isbells do not show what injury they suffered due to any confusion related to entity names. There is no evidence that the Isbells would not have purchased the vehicle had they better understood the businesses involved in the sale and financing of the Ford Explorer. As a result, the trial court did not err in granting summary judgment on this claim.

5. The Isbells assert that the trial court erred in finding that Credit Nation established a bona fide error defense to a TILA violation for failing to accurately describe the payment schedule. Again, we disagree.

TILA errors are only actionable if they are intentional and not bona fide. See 15 USC § 1640 (c). Under 15 USC § 1640 (c),

[a] creditor or assignee may not be held liable in any action brought under this section . . . for a violation of this [sub-chapter] if the creditor or assignee shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such error.

Section 1640 (c) states that “[e]xamples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programming, and printing errors, except that an error of legal judgment with respect to a person’s obligations under this [subchapter] is not a bona fide error.”

To utilize the bona fide error defense, a creditor must establish procedures reasonably adapted to avoid errors. No statutory guidelines precisely define such procedures. Generally, creditors must show procedures designed to avoid and prevent error which might slip through procedures aimed at good faith compliance, “a safety catch or a rechecking mechanism.” Business procedures that have satisfied this requirement in other circumstances include having the work of one well-trained clerk double-checked by another, and proofreading the agreement.

(Citations and punctuation omitted.) Wells Fargo Credit Corp. v. Smith, 803 P2d 900, 906 (Ariz. 1990).

Here, the TILA disclosures did not accurately reveal the fact that the parties agreed to a semi-monthly payment plan. The evidence, however, does not support the Isbells’ contention that any error was legal in nature and nonclerical. Significantly, Credit Nation’s general manager averred that any error in failing to accurately disclose the payment schedule was inadvertent. The evidence shows that Credit Nation used a specialized computer software program to calculate its TILA disclosures, and that managers were trained to use the computer program. The evidence also shows that after a Credit Nation sales manager computed the TILA figures, the finance manager independently computed the figures and verified the sales manager’s calculations. The general manager stated that if there was any error under this system, it was the result of a clerical error in writing down the terms of the deal prior to entering the terms into the computer program, a data entry error from inputting the terms into the software program, or a software malfunction. Based on this evidence, Credit Nation established that the error was clerical in nature, and that its system of computing and verifying the TILA disclosures was reasonably adapted in efforts to avoid the error made in this case. See In re Gordon, 389 BR 243, 246-247, 249 (N.D. Ala. 2008) (bona fide error defense available to creditors where it presented evidence that its failure to disclose annual percentage rate on installment contract was a clerical error, and that its bookkeeper reviewed the contract completed by a trained employee); In re Groat, 369 BR 413, 418 (8th Cir. 2007) (noting that TILA provides high tolerance level for what is viewed as an honest mistake in carrying out disclosure obligations, and holding that creditor’s failure to include accurate rescission date was a bona fide error given creditor’s procedures designed to catch such omissions). Thus, the trial court properly found that Credit Nation established a bona fide defense to the alleged TILA violation.

Decided November 29, 2012.

Kaiden & Kaiden, Robert A. Kaiden, Cristina I. Kaiden, for appellants.

Graham & Penman, Jason W. Graham, EricL. Jensen, Theodore B. Welch, for appellees.

Case No. A12A1361

6. Credit Nation challenges the trial court’s denial of its motion to strike 21 exhibits attached to the Isbells’ summary judgment brief because the exhibits were not authenticated and contained hearsay. Pretermitting whether the trial court erred in admitting the challenged exhibits, Credit Nation has the responsibility to show harm as well as error. See Layfield v. Southeastern Constr. Coordinators, 229 Ga. App. 71, 73 (2) (492 SE2d 921) (1997). Significantly, since the trial court granted its motion for summary judgment, Credit Nation has not demonstrated any harm by the trial court’s refusal to strike the challenged exhibits. Moreover, we did not rely on the challenged exhibits when considering the Isbells’ claims and reversing the trial court’s grant of summary judgment on the breach of contract claim. Since no harm has been shown, Credit Nation’s claim affords no basis for reversal. See Hooks, supra, 303 Ga. App. at 269 (4) (“[I]t is axiomatic that harm as well as error must be shown to authorize a reversal by this court.”) (citation and punctuation omitted).

7. Credit Nation also challenges the trial court’s denial of its motion to strike the affidavits of Manheim’s controller and the documents attached thereto. Pretermitting whether the trial court erred in admitting Manheim’s controller’s first affidavit, the controller subsequently filed a supplemental affidavit. Based on our discussion in Division 2 above, we found that the supplemental affidavit and documents were admissible as business records. Therefore, we affirm the trial court’s denial of Credit Nation’s motions to strike.

Judgment affirmed in part and reversed in part in Case No. A12A1360. Judgment affirmed in Case No. A12A1361.

Ray and Branch, JJ., concur.

       The Isbells also asserted that Credit Nation violated the Georgia Motor Vehicle Finance Act hut later withdrew this claim.

       Credit Nation came into existence in August 2008 and purchased the assets of Kellee Kars, Inc., which was in bankruptcy proceedings. After the sale, Credit Nation changed its operating name to Synergy Motor Company d/b/a Kellee Kars. Synergy Motor Company later converted its registered name to Credit Nation Auto Sales.

       The Isbells also alleged other TILA violations — failure to accurately disclose the annual percentage rate, the finance charge, and the total payment amount — and alleged other FBPA violations based on these predicate TILA violations. However, the Isbells do not challenge the trial court’s grant of summary judgment on those claims, and therefore have abandoned any challenge to that ruling. Court of Appeals Rule 25 (a) (3) and (c) (2); Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 804, n. 2 (689 SE2d 843) (2009).

         Credit Nation argues that the documents were inadmissible because they were not created contemporaneously with the vehicle inspection. We disagree. The documents show that Manheim received the Ford Explorer on July 30, 2008, and an inspection was performed the next day. The vehicle condition report was dated August 13,2008. Acomputer printout showing that Credit Nation, through Kellee Kars, ordered the post-sale inspection is dated August 27, 2008. Contrary to Credit Nation’s contention, it is not necessary that the reports be completed at the same time as the inspection, and it has failed to show that the documents were not prepared within a reasonable time of the post-sale inspection. SeeOCGA § 24-3-14(b) (business record must be made at the time of the event or within a reasonable time thereafter).

       As discussed in Division 2 (a) (ii), the Isbells presented no evidence that Credit Nation was aware of any transmission damage. Consequently, their FBPA claim based on a misrepresentation of the transmission’s condition fails.


author: Adams, Judge.

text:
    A12A1526.
    OSEI-OWUSU v. THE STATE.
    (735 SE2d 75)
   Adams, Judge.

Nana Osei-Owusu was tried by a jury and convicted of rape. On appeal, he claims that the trial court erred by denying his motion to exclude an in-custody statement, by failing to give a requested jury charge, and by charging the jury on the law of involuntary intoxication. He further claims that his trial counsel was ineffective for failing to obj ect to an officer’s use of the word “rape” in his testimony. Finding no reversible error by the trial court or prejudice resulting from any ineffective assistance of trial counsel, we affirm.

Viewed in the light most favorable to the verdict, the evidence showed that the victim lived in Philadelphia and flew to Atlanta to visit her boyfriend Obie, who was a party promoter. On July 27,2009, the victim went with Obie to a nightclub, The Velvet Room, at around 12:00 a.m. They met a woman named Melissa there and a couple of other friends and hung out in the club’s V.I.P. room for several hours, drinking and dancing. The victim drank vodka and a bottle of champagne. At approximately 3:30 a.m., Melissa walked the victim to the D. J. booth in the club to wait for Obie. Melissa left the club and let Obie know that she was leaving the victim there. At that point, the victim was noticeably intoxicated and had trouble walking. While waiting for Obie, the victim was approached by a bouncer, who told her to leave. She argued with the bouncer, and he carried her outside of the club and left her on a curb. While she was sitting on the curb, a guy later identified as Osei-Owusu took the victim by the hand and pulled her with him.

Shortly thereafter, two DeKalb County police officers working security for the club were directed to an area next to the club. Officer Danny Jordan testified that he observed Osei-Owusu standing in front of a table with his pants below his buttocks, which were visible. The victim had her buttocks on the table, her head under the table and her legs on top of Osei-Owusu’s shoulders, one leg on each shoulder. The victim’s dress was pulled up and she was not wearing underwear. Officer Jordan testified that Osei-Owusu was having sexual intercourse with her.

Officer Jordan grabbed Osei-Owusu’s arm, and Osei-Owusu shoved him away, saying “Hold on, player.” With Officer Courtney Brown’s help, he was able to get Osei-Owusu away from the victim and escort him to the police car. When Officer Jordan went back to check on the victim, she appeared to be almost unconscious, still lying there with her head under the table. He thought she appeared to be under the influence of some type of drugs.

When the handcuffs were placed on Osei-Owusu, he repeatedly asked Officer Jordan why he was being arrested for having sex with his girlfriend. It took almost an hour for the victim to become responsive enough to answer any questions. Officer Jordan spoke to her and she was confused—she said she was not having sex and that she was wearing underwear, which she clearly was not. Osei-Owusu was arrested and initially charged with public indecency.

Officer Brown testified that as he approached the area, he saw Osei-Owusu with his pants down, holding the victim by the waist with her legs on his shoulders, and making “a pumping motion like he was having sex.” The victim was motionless; her body was limp. When the officers took Osei-Owusu off of her, the victim fell toward the ground. Officer Brown caught her and placed her on the ground; she did not move. After Osei-Owusu was placed in handcuffs, the officers had to “jimmy his pants up.” They also had to fix the victim’s clothing because her dress was over her head.

The officers escorted Osei-Owusu and the victim over to the police car. Officer Brown smelled alcohol on Osei-Owusu. The woman was woozy, and both needed assistance walking. According to Officer Brown, Osei-Owusu was initially in custody for public indecency and maybe public drunkenness, until he could investigate further.

The victim told Officer Brown that she did not know Osei-Owusu and did not know what had happened. She smelled like alcohol, and her speech was slurred. When Officer Brown told her that he had seen Osei-Owusu “humping her,” she began to cry and ask for Obie. Officer Brown asked someone to find Obie. When he was located, the victim left the club with him.

Officer Brown asked Osei-Owusu if he knew who the victim was, and he responded that she was his girlfriend. When asked what her name was, Osei-Owusu did not respond. Osei-Owusu then said that he met her on the side of the club and she approached him, took off her panties and made advances toward him.

When the victim returned to Philadelphia the following day, she went to the hospital and told the doctor that she had been sexually assaulted and that her vagina was sore on the outside. She said that she does remember Osei-Owusu having sex with her, putting his penis in her vagina, without her consent. She did not know Osei-Owusu prior to that night, did not go willingly with him, has not seen him since that night and never consented to have sex with him.

1. Osei-Owusu contends that the trial court erred by denying his motion to exclude his refusal to respond when Officer Brown asked him the victim’s name while he was handcuffed in the back of the police car. He argues that the statement was the result of custodial interrogation and that he should have been given the warnings required by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

Osei-Owusu filed a pretrial motion to exclude three statements made at the scene, and the trial court conducted a hearing prior to admitting the statements at trial. Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). The first statement was in response to Officer Jordan pulling Osei-Owusu away from the victim, when he said, “Hold on, player.” The trial court ruled it admissible because Osei-Owusu was not in custody at the time. The second statement was made when Osei-Owusu was handcuffed and said “I can’t believe I’m going to j ail just for having sex with my girlfriend.” The trial court admitted that statement as an excited utterance. The only statement challenged on appeal was made when Osei-Owusu was sitting in the police car and could not give the victim’s name in response to Officer Brown’s question. Officer Brown admitted that he did not read Osei-Owusu his Miranda rights. Over trial counsel’s objection, the trial court ruled that statement admissible as part of the on-scene investigation to determine how to charge Osei-Owusu.

Miranda warnings are required to be administered when an individual is interrogated while in custody. Syfrett v. State, 210 Ga. App. 185, 186 (3) (435 SE2d 470) (1993). Miranda warnings are not a prerequisite to the admission of voluntary statements not made in response to any form of custodial questioning or interrogation. Id. The term “interrogation” refers not only to express questioning, but also to “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Footnotes omitted.) Rhode Island v. Innis, 446 U. S. 291, 301 (100 SC 1682, 64 LE2d 297) (1980).

Officer Brown should have known that asking Osei-Owusu his claimed girlfriend’s name after the victim had just stated that she did not know Osei-Owusu was reasonably likely to elicit an incriminating response. Although we agree that the response was given at a time when Osei-Owusu should have been given a Miranda warning, we find no basis for reversal because the error is harmless beyond a reasonable doubt. The testimony of other witnesses that the victim was not from Atlanta, had another boyfriend whom she was with that night, and did not know Osei-Owusu makes his response indicating that she was not his girlfriend cumulative of other admissible evidence. See Cox v. State, 274 Ga. 204, 205-206 (2) (553 SE2d 152) (2001) (error in admitting statement without giving Miranda warning harmless where statement cumulative of other admissible evidence). “Moreover, any error is also rendered harmless because of the overwhelming evidence of [Osei-Owusu]’s guilt,” including testimony by two police officers who witnessed the act, and Osei-Owusu’s admission to having sex immediately afterward. (Citation omitted.) McLendon v. State, 259 Ga. 778, 780 (4) (387 SE2d 133) (1990); see also Snyder v. State, 238 Ga. App. 564, 567 (2) (519 SE2d 509) (1999) (overwhelming evidence, including admissible statement by defendant, rendered error in admitting other statements by defendant harmless).

2. Osei-Owusu contends that the trial court abused its discretion when it refused his request to charge on the use of his in-custody statements. Specifically, he argues that the trial court should have instructed the jury to consider whether he had been read his Miranda rights before making any post-arrest statements.

Assuming that the trial court erred by failing to give Osei-Owusu’s requested charge, any error in failing to do so was harmless in light of the evidence against him. Kirk v. State, 271 Ga. App. 640, 646 (4) (610 SE2d 604) (2005); see also Woodard v. State, 278 Ga. 827, 830 (4) (607 SE2d 592) (2005) (“an error is harmless if it is highly probable that the error did not contribute to the jury’s verdict”) (citation and punctuation omitted). And although the trial court did not charge the jury on the Miranda issue, it did charge the jury that it must determine that any statement by the defendant was voluntary before it could be considered as evidence.

3. Osei-Owusu contends that the trial court abused its discretion by charging the jury on voluntary intoxication in response to a question from the jury. He argues that the instruction was not responsive to the jury’s question, was not supported by the evidence and constituted harmful error.

During deliberations, the jury asked, “Are we to consider the defendant’s capacity, impairment in determining the charge of rape?” In response, the trial court instructed the jury on voluntary intoxication as follows:

Georgia law provides that voluntary intoxication shall not be an excuse for any criminal act. It further provides that if a person’s mind when not affected by intoxicants is capable of distinguishing between right and wrong as well as of reasoning and acting rationally and the person voluntarily deprives himself of reason by consuming intoxicants and commits a criminal act while under the influence of such intoxicants, the mind is criminally responsible for such acts to the same extent as if the person were sober. Whether or not the defendant in this case was voluntarily intoxicated at or during the time alleged in this bill of indictment is a matter solely for you, the jury, to determine.

The jury responded that the instruction answered their question and asked for it in writing.

Generally, the scope and content of additional jury instructions are left to the sound discretion of the trial court, and the trial court may address only the jury’s request on a particular point or give additional instructions. Moreover, where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue.

(Citations and punctuation omitted.) Cochran v. State, 276 Ga. App. 840 (625 SE2d 92) (2005). There was evidence that Osei-Owusu was intoxicated — Officer Brown testified that he smelled alcohol on him and that he stumbled and needed assistance walking approximately 150 feet to the other side of the club. It was therefore not error to charge on voluntary intoxication. See Griffin v. State, 241 Ga. App. 783, 786 (4) (d) (527 SE2d 577) (1999).

Osei-Owusu argues that the sua sponte instruction was harmful because it was made after closing arguments and his counsel was not given the opportunity to address it. At trial, Osei-Owusu’s counsel objected to the court’s instruction and stated that the issue “may not have been fully vetted out in my closing argument.” The solution in this situation is for the affected party to request the right to argue the matter contained in the instruction to the jury. Cochran, 276 Ga. App. at 841. Because Osei-Owusu “did not ask to reargue the case, and the trial court did not absolutely deny him that right, there was no reversible error.” (Footnote omitted.) Id.

4. Osei-Owusu contends that his trial counsel was ineffective for failing to object to an officer’s testimony that he believed a rape had occurred. He argues that the deficient performance prejudiced the outcome of the case because the evidence against him was not overwhelming, given the victim’s intoxication and inability to remember the incident until after her memory was tainted by the police officer’s version of events.

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

(Citation and punctuation omitted.) Philpot v. State, 311 Ga. App. 486, 488-489 (3) (716 SE2d 551) (2011). On appeal of an ineffective assistance claim, “we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Id.

Osei-Owusu was represented at trial by counsel with 15 years of experience in criminal defense. At the motion for new trial hearing, trial counsel said that it was a mistake not to object to the officer’s testimony that he thought a rape had occurred. The specific testimony complained of came from Officer Brown when he stated that he took photographs at the scene to gather information for “what I thought was a rape at the time”; that he collected the victim’s panties because he “thought that a rape had occurred”; that the victim “didn’t know she was raped” when he talked to her at the scene; and that when the victim told him she did not know Osei-Owusu, that was when “the light came on and I thought that she was being raped.” When Officer Brown testified that “I realized that the victim had been raped,” trial counsel objected, stating that the officer could say that he believed it should be investigated, but that it was a decision for the jury. The objection was sustained.

Referring to an incident as rape states a conclusion that is usually to be determined by the jury. Machuca v. State, 279 Ga. App. 231, 235 (2) (630 SE2d 828) (2006). “For that reason, the unrestricted use of the word ‘rape’ may be objectionable, absent a jury instruction that the question of whether or not any rape occurred was one for its determination.” (Footnote omitted.) Id. Here, the trial court instructed the jury that Osei-Owusu was presumed innocent and that the State bore the burden of proving all elements of the offense of rape beyond a reasonable doubt. The court also instructed that

lack of consent on the part of the alleged victim is an essential element of the crime of rape, and the burden of proof is on the State to show a lack of consent on the part of the alleged female victim beyond a reasonable doubt. If the State fails to prove such beyond a reasonable doubt, then you should acquit the defendant.

Decided November 29, 2012

Brian Steel, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Although trial counsel could have raised repeated objections, where, as here, “the trial court clearly framed the distinction between consensual sexual activity and the crime of rape,” the trial court’s finding that Osei-Owusu’s trial counsel was not ineffective is not clearly erroneous. Machuca, 279 Ga. App. at 236 (2); see also Dew v. State, 292 Ga. App. 631, 634 (2) (665 SE2d 715) (2008) (where jury was instructed that question of whether defendant raped victim was for their determination, trial court did not err in denying motion in limine to prohibit prosecution from using term “rape”). Furthermore, given the overwhelming evidence against him, Osei-Owusu cannot show a reasonable probability that the outcome of the proceedings would have been different if his trial counsel had obj ected to every use of the word “rape.” See Lakes v. State, 314 Ga. App. 10, 16 (5) (e) (722 SE2d 859) (2012).

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       On cross-examination, Officer Jordan admitted that he could not actually see penetration.


text:
    A12A1569.
    TORO v. THE STATE.
    (735 SE2d 80)
   Adams, Judge.

On October 28,2005, an indictment was returned charging, inter alia, Eliezer Toro and Brent Smith with trafficking in methamphetamine, possession of MDMA, misdemeanor possession of marijuana (less than one ounce), and possession of a firearm during the commission of a felony; Toro was also charged with theft by receiving stolen property (Indictment No. 05SC36729). A short time later, on November 4, 2005, an indictment was returned charging, inter alia, Toro and Jennifer Klein with trafficking in methamphetamine (Indictment No. 05SC36979). The trial court granted the State’s motion to join the indictments for trial, and a jury subsequently convicted Toro of all charged offenses. Toro filed motions for new trial and to vacate his sentence, and the trial court denied both motions but modified Toro’s sentence. Toro appeals, challenging the trial court’s denial of both motions.

The evidence adduced at trial, construed to support the verdict as we must on appeal, shows the following: Toro was first arrested on October 14, 2005. Tim Brown, who at that time was working as an undercover officer with the Atlanta Police Department, testified that Officer Willie Robinson and he were conducting surveillance in an unmarked car in the Lenox Mall parking lot after being advised by a police investigator that two “suspects” were coming there to meet with a victim who had reported his car stolen. The victim was also parked in the Lenox lot, and Brown observed two men, subsequently identified as Toro and Brent Smith, arrive in a Honda Accord with a “drive out tag” on the back. Toro exited the car and exchanged words with the victim, and then Toro got back in the Honda and drove out of the parking lot. Brown and Robinson followed the Honda, which was stopped by a marked police car. Toro and Smith were taken into custody.

At the time of his arrest Toro had a gun holster on the right side of his belt, and Brown identified a gun holster introduced into evidence at trial as the same one Toro was wearing that day. Brown testified that a loaded Hi-Point 9mm semiautomatic pistol, which fit “perfectly” into the holster Toro was wearing, was found inside the vehicle. Additionally, an electronic scale and crystal methamphetamine were found inside a black bag located in the car’s middle console, and MDMA, or ecstasy, a small amount of marijuana, a digital scale, small plastic baggies and a radio scanner were found either inside the black bag or scattered throughout the car. Various keys, which appeared to be either vehicle keys or house keys, were also found in the car.

Brent Smith, who was arrested and charged along with Toro, testified next. According to Smith, he had been “hanging out” with Toro and other methamphetamine (“meth”) users “off and on” for about two weeks. Smith testified that Toro had driven him back to his motel the night before the incident here, and at that time Toro was driving a Honda Accord which he assumed was stolen because it did not have an ignition. Toro came back to the motel to pick up Smith the next morning, in what appeared to Smith to be a different Honda because it did have an ignition. Smith also said that Toro brought him methamphetamine and ecstasy, which they used before they left the motel. They then went to see someone about a stolen Mercedes automobile, which he and Toro were planning to give back to the owner for a reward. Smith, who acknowledged that his memory of the day was incomplete because of his drug use, testified that he thought they stopped to let Toro speak to the owners of the Mercedes, and the next thing he knew they were surrounded by police. Smith also identified the gun police recovered from the Honda as being the same one that Toro “always had” with him and testified that the holster that was introduced at trial was the same one Toro was wearing when he was arrested. Smith also said that Toro had the gun in the holster earlier in the day and that Toro usually carried around the black case that was found in the car.

On cross-examination, Smith acknowledged that he had been indicted for the same crimes as Toro, except that he was not charged with theft by receiving; that those charges were still pending against him; and that he was facing considerable jail time because of those charges. However, he denied that his case would be dead docketed because of the testimony he gave against Toro; he said he had no idea what would happen to his case after Toro’s trial.

Officer Willie Robinson testified concerning the surveillance he conducted with Brown that led to Toro and Smith’s arrest. According to Robinson, the Honda that Toro was driving that day was “packed with... stuff,” as if someone had been living in it, and that drugs and a gun were also found in the car. Robinson also testified that a tag search revealed that the car had been stolen.

The owner of the Honda testified that on October 12, 2005, she had driven her 1996 Honda Accord to choir practice and that she had parked her vehicle on the bottom level of the deck of her church parking garage because she was eight months pregnant. When she returned to the garage after practice, she discovered her car was gone. She reported the theft, and two days later, on October 14, she received a call from police that her car had been located. When she went to retrieve her car, she discovered that her key would open the door but would not start the car. However, a key found in the car when Toro was apprehended started the car, but that key would not open the door. She said that the metal tag she had on the car had been replaced with a paper tag, but the officers found her metal tag in the car and returned it to her. She also said that the car was full of someone else’s personal belongings, that her stereo had been removed and replaced with one that did not exactly fit, and that the car had been damaged in various ways. And many of the items she had in the car, including equipment which she had received for the child she was expecting, were missing.

Toro was again arrested on October 28, 2005. Officer Robert Blauvelt testified that a little after 10:10 a.m. on that date, he was dispatched to a Ramada Inn on Piedmont Road in Atlanta in response to a call concerning a suspicious person or persons sleeping in a car. Blauvelt, an officer-in-training, and another officer, Craig Faircloth, responded to the call. When they approached the car, they observed a female, subsequently identified as Jennifer Klein, and a male, subsequently identified as Toro, sleeping in the back seat of the car. Toro was wearing what appeared to be a bulletproof vest and a holster. During a search of the car, officers found a “fanny pack” containing what was subsequently identified as methamphetamine located in between Toro and Klein in the back seat. Both were subsequently charged with trafficking in methamphetamine. Toro also had $470 in cash in his left pants pocket. Toro denied knowing the money was in his pocket, and denied owning the fanny pack where the drugs were found and denied owning the drugs. Klein and the owner of the car, who was staying at the hotel, also denied they owned the drugs.

Klein testified that at the time she was arrested, she was enrolled in college in Alabama and that she had come to the Atlanta area to visit for the weekend, but she never went back to school. Klein had been staying at a fellow meth user’s house, along with a number of other “squatters,” but the owner of the house had gotten tired of the squatters and had given her money to rent a motel room. Klein and several others went to the Ramada on Piedmont Road, and she got a room in her name. She testified she got very high while she was there and thus could not remember all the details of what happened next. She thought Toro, whom Klein said she had met only about four times before that day, came to meet someone at the motel, and most of those in the room, including Toro, left early that morning to give someone a ride to work. Klein said she did not remember much about the ride, except that she and Toro were riding in the back seat and that at some point she fell asleep. She did not remember anything else until police woke her up.

Klein also testified that the trafficking charge was still pending against her, and she denied that she had been offered anything in connection with those charges in exchange for her testimony. She also testified that she had never sold meth and that the meth culture involved users sharing the drug more or less freely, and that someone would normally give her meth almost every day and that she “hardly ever” had to buy the drug. Klein testified again on cross-examination that she did not have an agreement with the State in exchange for her testimony, but she had spoken to her lawyer about trying to go to drug court or to have her charge dismissed.

Other evidence will be set forth below as necessary to address Toro’s specific claims of error.

1. Toro first challenges the sufficiency of the evidence to support his conviction for theft by receiving a stolen automobile, arguing that the evidence was insufficient to show that he knew that the vehicle was stolen. See OCGA § 16-8-7 (a). However, contrary to Toro’s arguments on appeal, the evidence recited above, as well as other evidence presented at trial, was more than sufficient to show that Toro had the requisite knowledge. This enumeration thus provides no basis for reversal. Green v. State, 277 Ga. App. 867, 869 (1) (627 SE2d 914) (2006).

2. Toro next contends that his conviction on the trafficking in methamphetamine charge in Indictment No. 05SC36979 was void and should have been vacated because of irregularities in the composition of the grand jury. However, the record shows that Toro did not file his motion to vacate until April 8,2011, which was almost four years after he was tried and convicted of this charge. Thus, his challenge to the composition of the grand jury was clearly untimely, and we will not consider the merits of his claim. See State v. Dempsey, 290 Ga. 763, 766 (1) (727 SE2d 670) (2012), explaining Langlands v. State, 282 Ga. 103, 107 (3) (646 SE2d 253) (2007). See also Colon v. State, 275 Ga. App. 73, 78-79 (3) (619 SE2d 773) (2005).

3. Lastly, Toro cites several instances of alleged ineffective assistance of trial counsel. To prevail on this claim, Toro must show both that his counsel’s performance was deficient and that this deficient performance prejudiced his defense. Boseman v. State, 283 Ga. 355, 358 (3) (659 SE2d 364) (2008), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). As recently emphasized by our Supreme Court, quoting Harrington v. Richter,_U. S._ (IV) (B) (131 SC 770, 178 LE2d 624) (2011), to show prejudice, “[t]he likelihood of a different result must be substantial, not just conceivable. (Cit.)” Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

(a) (i) Toro first contends that his trial counsel was ineffective when she failed to object or move for a mistrial when Robinson testified that he arrested Toro and Smith on October 14, 2005, for trafficking in methamphetamine, possession of a stolen car, and a “convicted felon with a weapon.” Toro argues that because Smith had testified prior to Robinson’s testimony that he had not had any legal problems before his arrest on these charges, this testimony necessarily implied that Toro was the convicted felon.

At the motion for new trial hearing, Toro’s trial counsel testified that she was surprised she had not objected to this testimony and it was not part of her planned strategy. It is true that “[generally, the character of the parties is irrelevant and no evidence of a criminal defendant’s general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” (Citation, punctuation and footnote omitted.) Carrie v. State, 298 Ga. App. 55, 56(1) (679 SE2d 30) (2009). But this Court also has held that passing, implied or indirect references to incarcerations or prior convictions do not place an accused’s character in evidence, especially if the witness has not been specifically instructed to avoid such references. Id. at 59 (1) (e); see Rayshad, v. State, 295 Ga. App. 29, 35 (2) (a) (670 SE2d 849) (2008), and citations therein, at n. 22. See also Jackson v. State, 302 Ga. App. 412, 415 (1) (691 SE2d 553) (2010). In this case the reference was passing and equivocal — Robinson testified that “I think we put on it trafficking in meth, stolen vehicle, [and] convicted felon with a weapon.” Thus, Toro cannot establish that this testimony impermissibly placed his character in evidence.

Moreover, even if trial counsel performed deficiently by failing to object to this testimony, reversal is not necessarily required. “To satisfy the prejudice prong, [Toro] must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citation and punctuation omitted.) Rayshad, 295 Ga. App. at 34 (2). Toro was not actually charged with possession of a firearm by a convicted felon, and no other direct references to his prior convictions occurred during trial. Further, the other arresting officer testified that when Toro was arrested, he was charged with possession of a firearm, and made no reference to Toro being a convicted felon and being charged accordingly. And, having carefully reviewed the evidence here, it does not appear with any reasonable probability that but for counsel’s alleged deficient performance, the outcome at trial would have been different. Kimble v. State, 301 Ga. App. 237, 250 (7) (e) (687 SE2d 242) (2009).

(ii) Toro also contends that his trial counsel was ineffective for failing to object or move for a mistrial when Smith’s attorney stated, in the presence of the jury, that the State had approached him about diverting Smith’s case to drug court or a similar program because he did not have any priors. Toro argues that this testimony, when coupled with Klein’s testimony that she was attempting to get similar lenient treatment, led to the “clear implication” that Toro was not offered the same treatment because he had prior offenses.

When questioned at the motion hearing, trial counsel once again testified that she was surprised she failed to object and that her failure was not planned trial strategy. However, for the reasons discussed above, we do not believe any implied reference to Toro’s prior criminal history from such testimony amounted to the improper introduction of bad character evidence. In fact, Klein simply testified that she hoped to have her case diverted to drug court; unlike Smith, no evidence was introduced that she had been approached by the State with a specific “deal” because she had no prior criminal history. Thus, Toro has failed to show his counsel performed deficiently by failing to interpose an objection or move for a mistrial on this basis.

(b) Toro also contends that his trial counsel was ineffective because she failed to object or move for a mistrial when Klein testified on redirect examination that a meth user named Karen Lemax told her that Toro had stolen the car another user had loaned her and that he had also stolen methamphetamine from her. The transcript shows that the prosecuting attorney asked two more questions after this testimony — to clarify which car was stolen and to ask the quantity of drugs allegedly stolen, and at that point defense counsel interposed a hearsay objection. The trial court sustained the objection, and the prosecuting attorney pursued another line of questioning. Trial counsel testified that her failure to object immediately was an oversight on her part and not part of her trial strategy. However, inasmuch as the transcript reveals that the two intervening questions only clarified the previous testimony and that trial counsel then, in fact, posed a successful hearsay objection, after which no additional references to this incident occurred, we find that Toro has failed to demonstrate either deficient performance or prejudice from his counsel’s initial failure to object.

Moreover, even assuming that trial counsel performed deficiently in each instance where Toro contends that she should have objected or moved for a mistrial, and even considering the cumulative effect of each passing or indirect reference to Toro’s prior criminal history or other crimes, we do not believe that it is reasonably probable that any resulting prejudice led to a different outcome.

(c) Lastly, Toro contends that his first appointed counsel was ineffective because counsel failed to adequately investigate and discuss the benefits of accepting the State’s initial plea bargain offer of 15 years with no recidivist treatment. Specifically, Toro argues that counsel did not explain “Georgia’s parole system” and that if he had a better understanding of that system he would have taken the original offer. Further, Toro testified that by the time he better understood Georgia’s parole system the State was only willing to offer him a deal that included recidivist sentencing.

Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him. For counsel to do otherwise amounts to less than reasonably professional assistance.

(Citation omitted.) Mann v. State, 240 Ga. App. 809, 810 (1) (b) (524 SE2d 763) (1999). But there is no constitutional requirement that a defendant be informed of his parole eligibility prior to accepting, or rejecting, the State’s plea offer. King v. State, 246 Ga. App. 100, 102 (3) (539 SE2d 614) (2000).

Eligibility or ineligibility for parole is not a consequence of a plea of guilty, but rather is a matter of legislative grace or a consequence of the withholding of legislative grace____There is no constitutional requirement that a defendant be advised of such collateral consequences for his decision to reject or accept a plea bargain to be valid.

(Citation and punctuation omitted.) Id.

However, our Supreme Court has distinguished between counsel’s failure to inform a defendant of the collateral consequences of accepting or rejecting a guilty plea, such as eligibility for parole, and counsel’s affirmatively misrepresenting those consequences. Rollins v. State, 277 Ga. 488, 489 (1) (591 SE2d 796) (2004); see also Stinson v. State, 286 Ga. 499, 500 (1) (b) (689 SE2d 323) (2010); Smith v. Williams, 277 Ga. 778, 778-779 (1) (596 SE2d 112) (2004). “Should... counsel make an affirmative misrepresentation about the collateral consequences of a plea, such as parole eligibility, the misrepresentation may form the basis of an ineffective assistance of counsel claim.” (Citations omitted.) Crowder v. State, 288 Ga. 739 (707 SE2d 78) (2011).

Toro has not contended that his first appointed counsel affirmatively misrepresented his eligibility or ineligibility for parole, but rather he asserts that his counsel did not sufficiently explain Georgia’s parole system. Thus, Toro has failed to show that his counsel rendered deficient performance, and the trial court did not err by refusing to grant Toro a new trial on the basis that his trial counsel was ineffective for this reason. Mann, 240 Ga. App. at 810 (1) (b).

Judgment affirmed.

Barnes, R J., and McFadden, J., concur.

Decided November 29, 2012

Charles H. Frier, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

       Klein testified she could not remember exactly how long she had been without sleep, but she thought it was about seven days.

       There is nothing in the record to suggest that the grand jurors were not properly qualified, sworn or charged; rather, Toro’s challenge pertains to a procedure established by the Fulton County Superior Court to use “reserve” grand jurors when available and needed.