text:
    A14A1455.
    BDO USA, LLP et al. v. COE et al.
    (763 SE2d 742)
   Ray, Judge.

BDO USA, LLP, f/k/a BDO Seidman, LLP, and Michael Whitacre (collectively, “BDO”) filed a petition in the Superior Court of Fulton County to compel arbitration of their disputes with Douglas Coe, Jacqueline Coe, GFLIRB, LLC, DBICHA, LLC, and ALAKE, LLC (collectively, “Coe”). Following a hearing on Coe’s motion to dismiss, the trial court found that the issues that BDO claimed to be arbitrable were then pending before an Illinois court which had jurisdiction to hear a motion to compel arbitration and, therefore, in light of OCGA § 9-9-6 (a), it lacked subject matter jurisdiction to consider the merits of BDO’s petition. Accordingly, the trial court dismissed BDO’s petition without prejudice. On appeal, BDO contends that the trial court had jurisdiction to consider BDO’s petition to compel arbitration under the Federal Arbitration Act, 9 USC § 1 et seq. (“FAA”), which it claims preempted OCGA § 9-9-6 (a). For the reasons that follow, we affirm.

BDO’s petition, in pertinent part, alleges that BDO provided tax consulting services to Douglas Coe pursuant to (at least) four written consulting agreements. In 2001 and 2002, Coe entered into a “distressed debt” tax shelter and then claimed deductions on 2001-2007 tax returns for artificial losses generated by the tax shelter. The Internal Revenue Service disallowed the deductions and imposed back taxes, interest, and penalties against Coe.

In the consulting agreements, Coe and BDO agreed to arbitrate any dispute, controversy, or claim arising in connection with the performance or breach of the respective agreements in the city “in which the BDO office providing the relevant Services exists, unless the parties agree to a different locale.” BDO alleged that the office providing those relevant services is located in Atlanta, Georgia, but that in contravention of their agreements to arbitrate, Coe sued BDO in the Circuit Court of Cook County, Illinois, asserting various claims arising in connection with the services provided by BDO to Coe under their written agreements. In its petition, BDO asked the trial court to order Coe to arbitrate each of the claims asserted against BDO in the Illinois complaint before an arbitration panel venued in Atlanta and, further, to enjoin Coe from prosecuting the Illinois complaint against BDO and from initiating judicial proceedings against BDO in any other forum. BDO alleged that venue for its action was proper in the Superior Court of Fulton County under both OCGA § 9-9-4 and § 4 of the FAA, 9 USC § 4.

Coe moved to dismiss BDO’s petition, contending that under Georgia law the court presiding over the Illinois action, not the Georgia superior court, was the only court that could decide BDO’s arbitrability defense to Coe’s Illinois claims. Relying on OCGA § 9-9-6 (a), the trial court determined that it lacked jurisdiction over BDO’s petition because the issues which BDO claimed to be arbitrable were before the Illinois court, which had had jurisdiction to consider a motion to compel arbitration. The trial court granted Coe’s motion and dismissed BDO’s petition without prejudice. “The dismissal of an action for lack of subject matter jurisdiction is a question of law that we review de novo.” Babb v. Babb, 293 Ga. App. 140, 140 (1) (666 SE2d 396) (2008). See Goddard v. City of Albany, 285 Ga. 882, 883 (1) (684 SE2d 635) (2009).

1. At issue is whether the trial court erred in dismissing BDO’s petition to compel arbitration under authority of OCGA § 9-9-6 (a). BDO contends that the trial court erred in relying on OCGA § 9-9-6 (a) because Georgia courts have jurisdiction to consider a claim filed under § 4 of the FAA, 9 USC § 4 and that, in any event, OCGA § 9-9-6 (a) is preempted by the federal law.

Section 2 of the FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 USC § 2. Further, “[t]he FAA applies in state and federal courts to all contracts containing an arbitration clause that involves or affects interstate commerce.” American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 638 (1) (732 SE2d 746) (2012) (“Jape”). Coe does not dispute that the consulting contracts containing the arbitration clauses at issue involve or affect interstate commerce. It follows that the FAA applies to the parties’ agreements to arbitrate. See GF/Legacy Dallas v. Juneau Constr. Co., 282 Ga. App. 14, 15-16 (637 SE2d 511) (2006) (as the contract, which included an arbitration clause, undisputably involved interstate commerce, it was governed by the FAA).

OCGA § 9-9-6 (a), which forms part of the Georgia Arbitration Code, OCGA § 9-9-1 et seq. (the “GAC”), provides that “[a] party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration,” and sets forth the procedures therefor. Similarly, § 4 of the FAA provides in pertinent part:

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction ... for an order directing that such arbitration proceed in the manner provided for in such agreement.

Unlike § 4 of the FAA, however, OCGA § 9-9-6 (a) requires that “[i]f an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action.” Id.

Generally, “state courts are presumed to have concurrent jurisdiction with federal courts to hear federal causes of action unless Congress places exclusive jurisdiction in the federal courts by affirmatively divesting state courts of concurrent jurisdiction.” Nissan Motor Acceptance Corp. v. Stovall Nissan, 224 Ga. App. 295, 296, n. 2 (480 SE2d 322) (1997). The FAA has “substantive supremacy,” but requires an independent jurisdictional basis for access to a federal forum, such that “state courts have a prominent role to play as enforcers of agreements to arbitrate.” (Punctuation omitted.) Vaden v. Discover Bank, 556 U. S. 49, 59 (II) (129 SCt 1262, 173 LE2d 206) (2009). BDO argues that notwithstanding that § 4 of the FAA refers to a petition to compel arbitration in “any United States district court,” the trial court, through the exercise of its concurrent jurisdiction over federal causes of action, should have considered BDO’s petition under authority of § 4 of the FAA and not dismissed the petition by applying OCGA § 9-9-6 (a).

It is not clear, however, if a state court has jurisdiction over a motion to compel arbitration under § 4 of the FAA. See Hilton Constr. Co. v. Martin Mechanical Contractors, 251 Ga. 701, 703 (308 SE2d 830) (1983) (finding “the question of the state court jurisdiction of § 4 ... is unsettled”). As our Supreme Court recently noted in Jape, while the United States Supreme Court has recognized “that the FAA creates a body of federal substantive law of arbitrability applicable in both federal and state courts, the Supreme Court has not had the occasion to determine whether the FAA’s procedural provisions are applicable in state courts.” Jape, supra at 640 (2). See Southland Corp. v. Keating, 465 U. S. 1, 16 (III), n. 10 (104 SCt 852, 79 LE2d 1) (1984) (“In holding that the [FAA] preempts a state law that withdraws the power to enforce arbitration agreements, we do not hold that §§ 3 and 4 of the [FAA] apply to proceedings in state courts”). In particular, our Supreme Court pointed out that the United States Supreme Court “has acknowledged... that the procedural provisions found in §§ 3 and 4 of the [FAA] appear to apply by their terms only in federal court.” Jape, supra at 641 (2). See Volt Information Sciences v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 477, n. 6 (109 SCt 1248, 103 LE2d 488) (1989) (noting that § 4 of the FAA refers to “any United States district court”).

In view of the foregoing, our Supreme Court in Jape suggests that the procedural provisions found in §§ 3 and 4 of the FAA do not apply to state court proceedings. Further, the GAC “is a body of procedural law setting forth the public policy of this State with respect to the enforcement of agreements to arbitrate.” Continental Ins. Co. v. Equity Residential Properties Trust, 255 Ga. App. 445, 445 (565 SE2d 603) (2002). Georgia courts generally apply Georgia law to procedural matters. See, e.g., id. (noting that “[t]he rule of lex fori dictates that Georgia courts will apply Georgia law governing procedural or remedial matters”).

Jape also determined that OCGA § 5-6-34 (b), a Georgia procedural law pertaining to interlocutory appeals, governed appellate jurisdiction of the underlying appeal, notwithstanding that OCGA § 5-6-34 (b) was inconsistent with 9 USC § 16 (a) (1) (B) of the FAA, which also addressed the availability of appeal, and notwithstanding that the parties had agreed that the FAA governed their agreement. Our Supreme Court did so, however, only upon concluding that OCGA § 5-6-34 (b) was not preempted by the FAA. Jape, supra at 639-644 (2). Accordingly, we conclude that the pertinent state-law procedural provision, in this case OCGA § 9-9-6 (a), applies to BDO’s petition unless the Georgia law is otherwise preempted by the FAA. See American Gen. Financial Svcs. v. Vereen, 282 Ga. App. 663, 666 (639 SE2d 598) (2006) (holding that “procedural rules established by a state for the arbitration process that do not undermine the purposes and objectives of the FAA are not preempted”) (citation and punctuation omitted); St. Fleur v. WPI Cable Systems/Mutron, 879 NE2d 27, 33 (Mass. 2008) (finding that the “Massachusetts counterpart [to 9 USC § 4] ... applies unless that statute undermines the purposes of the Federal Act”).

The FAA, which lacks an express preemptive provision, “does not reflect a congressional intent to occupy the entire field of arbitration,” and “its provisions will preempt state law only to the extent it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Citation and punctuation omitted.) Jape, supra at 639 (2). The FAA “simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.” Volt, supra at 478. Thus, the FAA will preempt “state laws which require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” (Citation and punctuation omitted.) Id. Here, OCGA § 9-9-6 (a) contemplates that if a party claims that an issue is arbitrable and the issue is otherwise pending in a court having jurisdiction to hear a motion to compel arbitration, the party must pursue its arbitration rights in the pending action, and not a separately filed action. See Odion v. Avesis, Inc., 327 Ga. App. 443, 448 (3) (c) (759 SE2d 538) (2014) (noting that “the plain language of [OCGA § 9-9-6 (a)] makes a motion to compel arbitration optional, but directs that a party opting to file such a motion do so in a pending action, if such an action exists”). As such, OCGA § 9-9-6 (a) is a state procedural rule that “determine[s] only the efficient order of proceedings; it [does] not affect the enforceability of the arbitration agreement itself.” Doctor’s Assocs., Inc. v. Casarotto, 517 U. S. 681, 688 (II) (116 SCt 1652, 134 LE2d 902) (1996).

Unlike the Georgia statute at issue in Jape, OCGA § 9-9-6 (a) cannot be said to be “arbitration neutral” inasmuch as it expressly concerns agreements to arbitrate. The United States Supreme Court has found, however, that the FAA does not “prevent [ ] the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself.” Volt, 489 U. S. at 478. Further, the Georgia law may affect where the parties litigate the merits of BDO’s arbitration defense, but it does not undermine the substantive directive of the FAA that arbitration agreements be enforced. Accordingly, we conclude that OCGA § 9-9-6 (a), to the extent it controls whether a Georgia court is the appropriate forum for pursuing a motion to compel arbitration, is not preempted by the FAA. See Jape, supra at 645 (“It is one thing to find that Congress intended to impose federal substantive or procedural rules on a type of case that a State has opened its courts to hear. It would be quite another thing to find that Congress intended to require a State to open its courts to hear such a case.”) (Nahmias, J., concurring). It follows that the trial court did not err in considering whether under the standards of OCGA § 9-9-6 (a) it could reach the merits of BDO’s petition.

2. BDO argues that if OCGA § 9-9-6 (a) is not preempted by the FAA, it nevertheless does not apply to BDO’s petition. BDO maintains that OCGA § 9-9-6 (a) does not apply to proceedings beyond the territorial limits of the State of Georgia. However, OCGA § 9-9-6 (a) refers to issues which are claimed to be arbitrable that are pending in a “court,” not pending in a “Georgia court.” As the trial court noted, “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.” (Citation and punctuation omitted.) Six Flags Over Ga. II, L.P. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003).

BDO further argues that the Illinois court is not a court having jurisdiction to hear a motion to compel arbitration for purposes of OCGA § 9-9-6 (a). The record shows that the Illinois trial court found that “it has the power to determine whether this should go to arbitration.” Under Illinois law, “[t]he question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.’ ” (Citation and punctuation omitted; emphasis in original.) Hollingshead v. A.G. Edwards & Sons, Inc., 920 NE2d 1254, 1258 (Ill. App. 2009). See also Phoenix Ins. Co. v. Rosen, 949 NE2d 639, 647 (Ill. 2011) (“[P]ublic policy in Illinois favors arbitration”). And “[w]here there is a valid arbitration agreement and the parties’ dispute falls within the scope of that agreement, arbitration is mandatory and the trial court must compel it.” Hollingshead, supra at 1260. BDO argues that it was required by Illinois authority to bring the petition to compel in the jurisdiction where the arbitration is to take place, which location BDO contends will ultimately be Fulton County, Georgia. But, BDO only establishes that an Illinois court could not order arbitration to take place in Illinois where that location was inconsistent with the parties’ agreement to arbitrate, see Peregrine Financials and Securities v. Hakakha, 788 NE2d 263, 268 (Ill. App. 2003), not that the Illinois court would not have jurisdiction to consider a motion to compel when the merits of issues claimed to be arbitrable were before that court. Compare 710 ILCS 5/2 (governing proceedings to compel or stay arbitration).

Decided September 16, 2014.

DLA Piper, Paul N. Monnin, James M. Rusert, for appellants.

Caldwell & Watson, Harmon W. Caldwell, Jr., Harry W. MacDougald, Loewinsohn Flegle Deary, Jeven R. Sloan, for appellees.

Lastly, BDO contends that compliance with OCGA § 9-9-6 (a) is not a jurisdictional defect under the express terms of the statute and the trial court was therefore not required to dismiss its petition. However, in light of the pending Illinois action, the trial court could not reach the merits of BDO’s petition to compel arbitration, and so the trial court’s dismissal of the petition without prejudice was appropriate. See Odion, supra at 448-449 (3) (d) (as the trial court did not, and could not, reach the merits of the claims, dismissal without prejudice was the appropriate remedy); Yates v. CACV of Colorado, 303 Ga. App. 425, 433 (3) (693 SE2d 629) (2010) (as the counterclaim was not permitted, the trial court should have dismissed it without prejudice).

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       BDO asserts that it was unable to bring this action in federal court in Atlanta because there was no diversity jurisdiction under 28 USC § 1332 and that a federal court in Illinois could not order arbitration to take place outside its own district. See 9 USC § 4 (“The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed”).

       However, we do not think that our Supreme Court made a definitive or complete ruling on the issue. For instance, at least with respect to § 3 of the FAA, our Supreme Court has also found, citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 26 (103 SCt 927, 74 LE2d 765) (1983), that “state courts as well as federal courts are obliged to grant stays of arbitration pursuant to § 3 ... .” Hilton Constr. Co., supra at 703.

       In this case, the consulting agreements contemplated that any arbitration would be in accordance with the laws of the State of New York, but neither BDO nor Coe suggests that the law of New York governed whether the trial court had subject matter jurisdiction over the petition. See, e.g., Continental Ins. Co., supra at 445-446 (applying GAC, the procedural law of Georgia, notwithstanding that the contract was governed by Illinois law). We note, however, that as in Georgia, New York law provides: “If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action.” Section 7503 (a) of the New York Civil Practice Law and Rules.

         BDO points out that the underlying motion to compel arbitration in Jape was asserted under § 4 of the FAA, see Jape, supra at 638, but we do not think it follows from the Court’s analysis, which pertained to appellate jurisdiction, that Jape necessarily approved of the superior court’s jurisdiction to apply § 4 of the FAA.

       Coe also asserts, and BDO acknowledges, that BDO moved to stay the Illinois action in favor of arbitration after filing this appeal.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0900.
    WILLIAMS v. McCARTHY.
    (763 SE2d 748)
   Miller, Judge.

We granted Christie Williams’s application for discretionary review of the trial court’s order granting Lauren McCarthy’s petition for a family violence protective order against Williams.

Following our thorough review of the case, including consideration of the complete record on appeal, we have determined that there was no error in the trial court’s decision. The application for discretionary appeal having thus been improvidently granted, the appeal is hereby dismissed. See Collier v. Dept. of Human Resources, 196 Ga. App. 843, 844 (397 SE2d 632) (1990) (dismissing discretionary appeal as improvidently granted where full consideration of record revealed no error in lower court’s ruling).

Decided September 18, 2014.

Nathaniel M. Smith, for appellant.

Lauren McCarthy, pro se.

Appeal dismissed.

Doyle, P. J., and Dillard, J., concur.


text:
    A14A1277.
    GARNER v. US BANK NATIONAL ASSOCIATION et al.
    (763 SE2d 748)
   Miller, Judge.

Nathaniel Garner sued US National Bank Association, Wells Fargo Home Mortgage, Inc., and McCalla Raymer, LLC (collectively “the Defendants”) for wrongful foreclosure, fraud, intentional infliction of emotional distress, trespass to real property, and defamation of title for actions arising out of foreclosure proceedings and an ensuing dispossessory action. The Defendants moved to dismiss Garner’s complaint, arguing, inter alia, that Garner’s claims were barred by collateral estoppel because a prior federal lawsuit dismissed similar claims on the ground that Garner lacked standing. Following a hearing, the trial court granted the Defendants’ motion, and this appeal ensued. On appeal, Garner contends that the trial court erred in granting the Defendants’ motion because it conducted a hearing on the motion without providing prior notice, and the underlying issues were not previously adjudicated on the merits. For the reasons that follow, we reverse.

As an initial matter, we consider the procedural posture of this case and the applicable standard of review. OCGA § 9-11-12 (b) provides in pertinent part that “[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [OCGA §] 9-ll-56[.]” As explained below, the trial court considered matters outside the pleadings in this case. Therefore, we will treat the appealed order as one granting summary-judgment to the Defendants. Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 13 (1) (681 SE2d 717) (2009). We review a trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Id.

So viewed, the record shows that on or about August 31, 2004, nonparty Marsha W. Meade executed a promissory note in the amount of $246,881 and a security deed (the “Security Deed”) in favor of Secursource Mortgage, LLC, for the purchase of a condominium located at 3338 Peachtree Road, N.E., #2804, in Atlanta (the “Property”). In August 2007, Secursource assigned the Security Deed to Wells Fargo Home Mortgage, Inc. (“Wells Fargo”).

In December 2008, Meade sold the Property to Garner and executed a warranty deed. However, the warranty deed stated on its face that the transfer of the Property was still subject to the Security Deed.

On February 5, 2010, after Meade defaulted on the promissory note, McCalla Raymer caused a notice of foreclosure under power of sale to be advertised by publication, and the notice indicated that the foreclosure sale of the Property was to occur on March 2, 2010. McCalla Raymer also mailed a letter to Garner notifying him of the foreclosure sale. Prior to the foreclosure sale, Wells Fargo assigned the Security Deed to US Bank National Association (“US Bank”).

One day before the foreclosure sale, Garner filed suit against Wells Fargo in Fulton County Superior Court, alleging that Wells Fargo could not conduct the foreclosure sale because it did not own the promissory note or Security Deed (the “Wells Fargo suit”). In his complaint, as amended, Garner asserted claims for wrongful foreclosure, breach of a duty to act in good faith, and fraud. On March 2, 2010, US Bank foreclosed on and bought the Property at the foreclosure sale.

The Wells Fargo suit was removed to the federal district court and dismissed on the ground that Garner lacked standing to challenge the foreclosure process. See Garner v. Wells Fargo Home Mtg., 505 Fed. Appx. 837 (11th Cir. 2013). In affirming the dismissal of Garner’s suit against Wells Fargo, the United States Court of Appeals for the Eleventh Circuit held that Garner lacked standing to complain of defects in the foreclosure sale of the Property because Meade was the sole mortgagor of the Property and the only person who might have been injured by any alleged misconduct because Garner did not assume, guarantee, or become obligated to pay the mortgage when he purchased the Property. Id.

In December 2012, Garner filed the instant lawsuit against the Defendants. The Defendants filed their answer and moved to dismiss the complaint, contending that Garner’s claims were barred by the doctrine of collateral estoppel because the Wells Fargo suit decided the same issues adversely to Garner. In March 2013, the trial court issued a notice of hearing stating that it would conduct a status conference on April 15, 2013.

At the April 15, 2013 hearing, the state trial court advised the parties that it would hear arguments on the Defendants’ motion to dismiss. Garner, who appeared pro se, objected because the notice of hearing did not indicate that the Defendants’ motion to dismiss would be argued at the hearing and, as a result, he did not bring the necessary materials. When asked whether he had timely filed a response to the motion, Garner stated that the date of the hearing was the last day to respond, he had the completed response with him, and he had planned to file it following the hearing. As to the merits of the Defendants’ collateral estoppel argument, Garner asserted that the federal district court case was a nullity because the district court lacked personal jurisdiction over Wells Fargo since the company was never served with Garner’s complaint. Garner also argued that collateral estoppel did not apply because there was no identity of parties and the federal court case was not adjudicated on the merits.

At the conclusion of the hearing, the trial court granted the Defendants’ motion to dismiss, concluding that the prior federal adjudication collaterally estopped Garner from raising the claims in this case. This appeal followed.

1. Garner contends that the trial court erred in conducting a hearing on the Defendants’ motion to dismiss and in converting the motion to dismiss into a motion for summary judgment by considering evidence outside the pleadings, without giving him prior notice. We agree.

When the trial court converts a motion to dismiss for failure to state a claim into a motion for summary judgment based on consideration of matters outside the pleadings,

the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment. The party opposing the motion may waive the right to the 30-day notice by acquiescing in the movant’s submission of evidence in support of the motion to dismiss.

(Citations and punctuation omitted.) Davis v. Phoebe Putney Health Systems, 280 Ga. App. 505, 507 (2) (634 SE2d 452) (2006).

In this case, the trial court’s notice of hearing stated that it was conducting a status conference, and the notice made no mention of the Defendants’ motion to dismiss, much less that the trial court would consider matters outside of the pleadings in reviewing that motion. Over Garner’s objection, the trial court considered the Defendants’ motion to dismiss, and in doing so, it considered matters outside of the pleadings by reviewing the federal district court order dismissing Garner’s lawsuit against Wells Fargo and the Eleventh Circuit Court of Appeals’ opinion affirming that dismissal. Consequently, the trial court did not give Garner adequate notice that the motion to dismiss would be treated as a motion for summary judgment.

This does not end the inquiry, however, because deficient notice is not reversible error absent a showing of harm. See Smith v. Chemtura Corp., 297 Ga. App. 287, 289 (1) (676 SE2d 756) (2009). Although Garner had the opportunity to present his response to the Defendants’ motion and was able to challenge the use of the federal court cases during the hearing, consideration of these cases was not harmless error because, on this record, the Defendants were not entitled to dismissal of Garner’s complaint based on collateral estoppel or res judicata. Notably, “[i]n order to prove res judicata or collateral estoppel, a litigant must introduce those portions of the prior proceeding, duly certified, which are necessary to prove the defense.” (Citation and punctuation omitted.) Bradley v. British Fitting Group, PLC, 221 Ga. App. 621, 622 (2) (472 SE2d 146) (1996). The hearing transcript shows that the federal court decisions, while tendered to the trial court, were not actually admitted into evidence, and there was no evidence of certified copies of the same. Moreover, material relied upon in support of a motion for summary judgment must be on file at least 30 days before the hearing in order to be considered for the movant. See Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 631-632 (278 SE2d 377) (1981); Gunter v. Hamilton Bank of Upper East Tennessee, 201 Ga. App. 379, 381 (411 SE2d 115) (1991).

The Defendants argue that the trial court was authorized to take judicial notice of the federal court decisions in the Wells Fargo suit. Contrary to the Defendants’ argument, the federal opinions were not subject to judicial notice because they were unpublished decisions. See OCGA § 24-2-220 (a trial court has a duty to take judicial notice of a judicial opinion from a foreign jurisdiction if “published by authority”) (emphasis supplied); Swafford v. Globe American Cas. Co., 187 Ga. App. 730, 733-734 (1) (371 SE2d 180) (1988) (Tennessee appellate court slip opinions are not published opinions and, therefore, not subject to judicial notice under former OCGA § 24-1-4). Compare Kramer v. Yokely, 291 Ga. App. 375, 378-379 (1) (662 SE2d 208) (2008) (trial court entitled to judicially recognize and rely upon the federal district court’s order that was published in the Federal Supplement Second Series).

Decided September 18, 2014.

C. Samuel Rael, for appellant.

McCalla Raymer, Steven J. Flynn, Jimmy T. Howell, Jr., Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper, for appellees.

Since the trial court was not authorized to take judicial notice of the judgment in the Wells Fargo suit, it erred when it considered material not included in the actual court record. See, e.g., In the Interest of D. W., 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008); Scott v. State, 270 Ga. App. 292, 295 (2) (606 SE2d 312) (2004). The error cannot be considered harmless because, without admitting into evidence the duly certified copies of the prior judgment, the Defendants cannot establish that collateral estoppel barred Garner’s lawsuit. See McMillian v. Rogers, 223 Ga. App. 699, 701-702 (1) (c) (479 SE2d 7) (1996) (collateral estoppel did not bar a subsequent ruling on the same issue where the party asserting the defense failed to submit a duly certified copy of the prior proceeding into evidence). Accordingly, the trial court erred in granting the Defendants’ motion for summary judgment.

2. In light of our holding in Division 1, we need not address Garner’s other enumeration of error.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur in judgment only.

       The warranty deed also references another security deed executed by Meade in favor of Wells Fargo for the amount of $46,290 on August 31, 2004, the same day the Secursource Security Deed was executed.

       US Bank subsequently obtained a writ of possession to evict Garner from the Property. Garner sought discretionary review of the trial court’s order, and this Court denied his application.

       OCGA § 24-2-220 contains language identical to former OCGA § 24-1-4, which was repealed by Ga. L. 2011, p. 99, § 2.


author: ’ Miller, Judge.

text:
    A14A1407.
    STEVENS v. THE STATE.
    (762 SE2d 833)
   ’ Miller, Judge.

Following a jury trial, Valman Onelli Reginald Stevens was convicted of enticing a child for indecent purposes (OCGA § 16-6-5 (a)). Stevens appeals from the denial of his motion for new trial, contending that his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm Stevens’s conviction.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on September 30, 2008, Stevens, who was 24 years old, drove the 15-year-old victim to Jesse Davis Park in Douglas County. Around midnight, Douglasville police officers Holbrook and Gruber responded to a call from park security about a suspicious vehicle parked on a dead-end road with the lights turned down. The officers proceeded to that location with their patrol car lights turned off. Officer Gruber approached the suspicious vehicle — a Ford Taurus ■— from the front, while Officer Holbrook pulled in behind it. The officers then turned on their headlights, exited their patrol cars and approached the Taurus.

The officers saw Stevens and the victim pulling their pants up. Stevens was in the driver’s seat and the victim was in the front passenger seat. Officer Holbrook also saw a couple of half-empty bottles of Heineken beer, a Smirnoff beverage, and an open condom wrapper in the back of the Taurus.

Officer Gruber removed Stevens from the Taurus, asked him what he was doing, and obtained his consent to search the vehicle. During the search, Officer Gruber found a semiautomatic handgun. Officer Gruber asked Stevens where the condom was, and he replied that he was wearing the condom in preparation to have sex with the victim. Stevens then removed the condom from his penis and threw it on the ground.

During trial, Stevens entered into several stipulations with the State which were read to the jury: (1) that the victim’s date of birth was March 29,1993; (2) that the victim was 15 years of age at the time of the offense; (3) that Stevens’s date of birth was November 23,1983; (4) that Stevens was 24 years of age at the time of the offense; and (5) that Stevens drove the victim to Jesse Davis Park in Douglas County.

In his sole enumeration of error, Stevens contends that his trial counsel rendered ineffective assistance. Specifically, Stevens argues that defense counsel was deficient for failing to interview the victim, agreeing to the stipulations at trial and not allowing the trial court to advise Stevens of his constitutional right not to testify. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3) (729 SE2d 442) (2012).

(a) Stevens argues that trial counsel was deficient for failing to interview the victim and agreeing to stipulate that Stevens drove the victim to the park. At the hearing on Stevens’s motion for new trial, trial counsel testified that he made multiple attempts to contact the minor victim who lived outside of Douglas County; however, the victim’s family would not let him meet with her. Trial counsel also testified that the victim was extremely sympathetic, and keeping the victim off the stand strengthened Stevens’s defense that he had no sexual contact with the victim. Trial counsel stated that he discussed his strategy of keeping the victim off the stand and agreeing to stipulate to her age with Stevens, and Stevens agreed.

This evidence, as well as Stevens’s admission at trial that he drove the victim to Jesse Davis Park, supports the presumption that trial counsel’s decisions in this regard were part of Stevens’s overall trial strategy, and such strategic decisions, to which Stevens agreed at the time of trial, provide no basis for a finding of ineffective assistance of counsel. See London v. State, 260 Ga. App. 780, 784 (6) (580 SE2d 686) (2003).

(b) Without citing to any authority, Stevens also argues that trial counsel was ineffective in not allowing the trial court to advise Stevens of his constitutional right not to testify. Stevens bases his argument on the following colloquy which took place at trial before he testified:

THE COURT: . . . All right, [counsel], do I need to have a dialogue with your client at this time?
[TRIAL COUNSEL]: My client does wish to testify.
THE COURT: Then I don’t need to have dialogue with him.
[TRIAL COUNSEL]: No, sir.

(Emphasis supplied.)

“[A] criminal defendant has a constitutional right to testify in his own defense.” (Citation omitted.) Thomas v. State, 282 Ga. 894, 896 (2) (b) (655 SE2d 599) (2008). “In Georgia, whether or not to testify in one’s own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel and there is no general requirement that a trial court interject itself into that decision-making process.” (Citations omitted.) Burton v. State, 263 Ga. 725, 728 (6) (438 SE2d 83) (1994). Rather, “[trial] counsel bears the primary responsibility for advising the defendant of his right to testify and the strategic implications of this choice[.]” Thomas, supra, 282 Ga. at 896 (2) (b).

Here, trial counsel testified at the motion for new trial hearing that Stevens’s strategic defense was that he had no sexual contact with the victim, and Stevens agreed to this defense. Trial counsel further testified that Stevens was adamant about testifying in his own defense at trial, even though trial counsel discouraged Stevens from testifying, and informed Stevens that his testimony would be subject to cross-examination. Since Stevens did not testify at the motion for new trial hearing, he has not shown that trial counsel was deficient in advising him of his constitutional right to testify. See, e.g., Jacobs v. State, 299 Ga. App. 368, 373 (2) (b) (683 SE2d 64) (2009) (defendant who did not testify at motion for new trial hearing failed to show that trial counsel’s actions in advising defendant not to testify constituted deficient performance). Moreover, Stevens cannot show harm because his testimony at trial provided the sole evidence in support of his defense that he had no sexual contact with the victim. As such, there is no probability, much less a reasonable one, that the outcome of Stevens’s trial would have differed but for trial counsel’s alleged error. Consequently, we affirm Stevens’s convictions.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

Decided August 29, 2014

Reconsideration denied September 19, 2014.

Bryan R. Howard, for appellant.

Brian K. Fortner, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

       The trial court directed a verdict on one count of public indecency (OCGA § 16-6-8) and one count of contributing to the delinquency of a minor (OCGA § 16-12-1). The State dismissed an additional charge of public indecency and a sexual battery charge (OCGA § 16-6-22.1).

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


text:
    A14A1285.
    KIPPLE v. THE STATE.
    (763 SE2d 752)
   Miller, Judge.

John Kipple appeals pro se from the trial court’s denial of his motion to correct an illegal sentence which he filed more than one year after the entry of his guilty plea to one count of possession of methamphetamine (OCGA § 16-13-30 (a) (2007)). On appeal, Kipple argues that his sentence is contrary to law, and the trial court erred in sentencing him under OCGA § 17-10-7. Because Kipple was a habitual felon under OCGA § 17-10-7, as established by the evidence, we discern no error and affirm.

The record shows that in 2007, while he was on probation for a prior conviction for possession of methamphetamine, Kipple was riding as a passenger in a vehicle during a traffic stop. A pat-down search of Kipple’s person revealed some scales with methamphetamine residue. Police also found methamphetamine in the center console of the vehicle.

Kipple was charged by accusation with possession of methamphetamine, and the State filed notice that it intended to introduce matters in aggravation of sentencing. At the guilty plea hearing, the State presented evidence of Kipple’s multiple prior felony convictions, including a 1990 conviction for being a habitual violator pursuant to OCGA § 40-5-58, a 1990 conviction for selling marijuana, a 1992 conviction for possession of marijuana with intent to distribute, a 2002 conviction for aggravated assault, and a 2002 conviction for possession of methamphetamine.

Following entry of Kipple’s guilty plea, the trial court sentenced him to thirty years with seven years to serve pursuant to OCGA § 17-10-7 (a) and (c). The trial court’s order provided that Kipple could serve the remaining twenty-three years of his sentence on probation with special conditions, including completion of a minimum of six months of outpatient rehabilitation.

Kipple contends that OCGA § 16-13-30 (e) is the only sentencing provision applicable in this case, and the trial court erred in applying OCGA § 17-10-7. We disagree.

“Motions to vacate a void sentence generally are limited to claims that . . . the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.” (Citations omitted.) von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). A cognizable void sentence claim presumes that the trial court was authorized to sentence the defendant but the sentence imposed was not allowed by law. Williams v. State, 287 Ga. 192, 193 (695 SE2d 244) (2010). Because Kipple raises a cognizable claim that he was sentenced under the wrong recidivist provision, the trial court’s denial of Kipple’s motion is directly appealable. See id. Therefore, we review Kipple’s claim and conclude that his sentence is not void and is in fact legally appropriate.

The recidivist provisions of OCGA § 16-13-30 (e) (2007) provide for imprisonment for not less than five years nor more than thirty years for a second or subsequent conviction for possession of a Schedule II controlled substance, other than a narcotic drug. Methamphetamine is a Schedule II controlled substance. See OCGA § 16-13-26 (3) (B).

The recidivist provisions of OCGA § 17-10-7 provide for punishment and eligibility for parole of persons convicted of four or more felony offenses.

[T]he General Assembly has expressly indicated its intent that OCGA § 17-10-7 and other recidivist sentencing provisions, such as [OCGA § 16-13-30 (e)], be construed harmoniously. Accordingly, they are not conflicting provisions, and each must be interpreted so as to avoid any ambiguity between them.

Goldberg v. State, 282 Ga. 542, 544 (651 SE2d 667) (2007). Moreover, OCGA § 17-10-7 expressly provides that it is supplemental to other provisions relating to recidivist offenders, including OCGA § 16-13-30. See OCGA § 17-10-7 (e). Accordingly, the provisions of OCGA § 17-10-7 must be given effect where that statute is applicable according to its terms. See Goldberg, supra, 282 Ga. at 544-545.

Decided September 19, 2014.

John Kipple, pro se.

George H. Hartwig III, District Attorney, for appellee.

Upon his conviction in this case, Kipple was, for sentencing purposes, more than a mere two-time methamphetamine possession offender under the specific recidivist provisions of OCGA § 16-13-30 (e). Given his five prior felony convictions, Kipple was a habitual felon subject to the supplemental provisions of OCGA § 17-10-7. Therefore, the trial court was authorized to sentence Kipple as a habitual felon under OCGA § 17-10-7.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Prior to filing the instant motion, Kipple filed three pro se motions to modify his sentence, all of which the trial court properly denied. The trial court also denied Kipple’s motion for out-of-time appeal from the denial of his third motion for sentence modification. Although Kipple appealed that order, he failed to file an enumeration of errors and a brief. Consequently, Kipple’s appeal was dismissed.


text:
    A14A1237.
    CONLEY v. THE STATE.
    (763 SE2d 881)
   Miller, Judge.

Following a jury trial, Barry Lamar Conley was convicted of three counts of aggravated sodomy (OCGA § 16-6-2 (a) (2)), two counts of child molestation (OCGA § 16-6-4 (a) (1)), and one count of battery (OCGA § 16-5-23.1 (a)). Conley appeals from the denial of his motion for new trial, contending that (1) the trial court erred in denying his motion for a directed verdict because the State failed to prove force as an element of aggravated sodomy; (2) the trial court failed to exercise its discretion in ruling on his motion for new trial; and (3) he received ineffective assistance from trial counsel. For the reasons that follow, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. Wallace v. State, 294 Ga. App. 159 (1) (669 SE2d 400) (2008). So viewed, the evidence shows that Conley was a longtime friend of the victims’ stepfather, Jose Garcia. Garcia, the victims — Jo. C. and Je. C. — and the victims’ sisters regularly visited Conley at his apartment. The victims referred to Conley as “Uncle Barry.”

Beginning in 2006, the victims started staying overnight with Conley. Sometimes Garcia would spend the night as well. Generally, Je. slept in Conley’s bed alongside Conley, and Jo. slept on the floor on Conley’s side of the bed. During his second overnight stay, Jo. was frequently awakened by “things” touching him. When Jo. looked to see what had touched him, he saw nothing in sight, so he went back to sleep. Jo. described how the touching got worse at subsequent visits, and at one point, he caught Conley rubbing his back. Jo. did not report the incident because he thought Conley was asleep.

In 2008, Conley moved to an apartment near the airport in Clayton County. The victims continued to visit Conley at this apartment and spend the night in Conley’s bedroom. On one occasion when Jo. was 12 years old, Conley went into the bathroom while Jo. was showering. Conley reached into the shower and rubbed Jo.’s back.

At a subsequent visit, Jo. asked if he could sleep in the downstairs living room, causing Conley to get mad. Thereafter, while Jo. was sleeping in Conley’s bed, he felt Conley touching him on his butt. Jo. then moved to another room.

At another overnight visit, while Jo. was sleeping on the couch, Conley lay down next to Jo. and put his hands on Jo.’s penis. Conley told Jo. to be quiet as he rubbed Jo.’s penis. At a later visit, Conley sat next to Jo. on the couch and began rubbing Jo.’s penis. Conley then removed Jo.’s pants and underwear and performed oral sex on Jo. while he masturbated. Conley stopped once he ejaculated. Jo. described that he was on the bottom while Conley was on top, and that he was very scared during the incident.

About a week later, Jo. was asleep in Conley’s bed when he was awakened by Conley, who had placed his hands under Jo.’s clothes and was rubbing Jo.’s penis. Conley then removed Jo.’s clothes and performed oral sex on Jo. While performing oral sex, Conley masturbated and also bit Jo.’s penis, leaving a visible mark. After he ejaculated, Conley grabbed Jo.’s penis, applied a lubricant, and put Jo.’s penis inside his anus. Conley told Jo., who was crying, to be quiet. After that encounter, Jo. did not want to visit Conley anymore.

During the time that Conley molested Jo., he also molested Je. at his Clayton County apartment. Je. described that Conley would touch and rub his penis, and that Conley forced him to touch Conley’s penis. Conley touched J e.’s penis more than once, using his hands and penis. In April 2010, Conley placed his mouth on Je.’s penis and performed oral sex on him. Je., who was 11 years old at the time, stated that this happened more than once and that Conley would remove Je.’s penis from his underwear. Conley begged Je. not to tell anyone about the incidents and gave Je. a cell phone, toys, and money.

Jo. stated that he did not report the abuse at that time because he was afraid of what would happen and how people would react. Jo. eventually told his family that Conley was molesting him, and his family called the police.

At trial, the State presented similar transaction evidence showing that in 1991 Conley pled guilty to aggravated child molestation for placing his mouth on a three-year-old’s penis. Other similar transaction evidence showed that in 1993, Conley pled guilty to child molestation and aggravated child molestation for placing his hand and mouth on the penis of an eight-year-old boy.

1. In related enumerations of error, Conley contends that the trial court erred in denying his motion for a directed verdict on the aggravated sodomy counts because the evidence was insufficient. “The same standard of review applies to the enumeration of error for the denial of the motion for directed verdict and to the enumeration of error for the sufficiency of the evidence, so we will consider these enumerations together.” (Citation and footnote omitted.) Maynor v. State, 257 Ga. App. 151 (570 SE2d 428) (2002). Specifically, Conley argues that the State failed to establish the element of force, which the State was required to do since the victims were older than ten years of age at the time of the offenses. After a thorough review, we disagree.

OCGA § 16-6-2 (a) (2) provides in part that “[a] person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age.” Sodomy is any sexual act involving the sex organs of one person and the mouth or anus of another. See OCGA § 16-6-2 (a) (1).

[T]he term force includes not only physical force, but also mental coercion, such as intimidation. Lack of resistance, induced by fear, is force. Moreover, force may be proved by direct or circumstantial evidence. And . . . only a minimal amount of evidence is necessary to prove that an act of sodomy against a child was forcible.

(Citations and punctuation omitted.) Boileau v. State, 285 Ga. App. 221, 223 (1) (a) (645 SE2d 577) (2007).

(a) Jo. The indictment alleged that between May 10, 2008 and May 10,2010, Conley unlawfully performed a sexual act that involved Jo.’s sexual organ and Conley’s mouth (Count 1) and Jo.’s sexual organ and Conley’s anus (Count 2).

The evidence discussed above was sufficient to establish the element of force with respect to both counts. Notably, at the time of the oral and anal sex offenses, Jo. was approximately 12 or 13 years old. When the molestation first started, Jo. attempted to avoid the abuse by asking to sleep in a different room, and Conley reacted by getting mad. Jo. also tried to stop the abuse by sleeping on the couch, instead of Conley’s bed, only to have Conley follow him to the couch and tell him to be quiet as Conley rubbed his penis. On one occasion when Conley performed oral sex on Jo., he removed Jo.’s clothes, told Jo. to remain quiet, and was “on top” of Jo. On another occasion, Conley bit Jo.’s penis. Jo. was very scared when Conley performed oral sex on him, and he cried when Conley inserted his penis into Conley’s anus. Moreover, Jo. did not report the abuse because he was afraid.

Since the amount of evidence to prove force against a child, such as Jo., is minimal, the jury was authorized to conclude that Conley used force when he performed oral sex on Jo. (Count 1) and when he inserted Jo.’s penis into his anus (Count 2). See Boileau, supra, 285 Ga. App. at 223 (1) (a) (evidence sufficient to convict for aggravated sodomy where victim’s lack of resistance was induced by fear given the victim’s testimony that she was “very scared” and that she wanted defendant to stop).

(b) Je. The indictment alleged that Conley unlawfully performed oral sex on Je. between April 1, 2010 and July 17, 2011 (Count 9). Je. was 11 years old at the time of the April 2010 offense. The evidence shows that Conley removed Je.’s penis from his underwear, touched and rubbed Je.’s penis, and forced Je. to touch his penis. In April 2010, Conley placed his mouth on Je.’s penis. Conley begged Je. not to tell anyone about the sexual molestation and bribed him to keep silent. Je. also testified that, after the first incident involving oral sex, he was not sure if he wanted to continue sleeping in Conley’s room, suggesting that he wanted the abuse to stop.

Given the evidence that Conley was referred to as “Uncle Barry,” he forced Je. to touch his penis, he removed Je.’s underwear before molesting him, and he attempted to keep Je. silent, as well as evidence showing that Je. wanted the abuse to stop, the jury was authorized to conclude that Je. was forced to engage in oral sex in April 2010. See Boileau, supra, 285 Ga. App. at 223 (1) (a) (defendant’s actions in pulling down the victim’s pants and underwear while she was asleep is evidence of physical force); Schneider v. State, 267 Ga. App. 508, 510 (1) (603 SE2d 663) (2004) (force maybe inferred by evidence of intimidation arising from a close, family-like relationship).

Accordingly, the evidence was sufficient to support Conley’s three convictions for aggravated sodomy, and the trial court did not err in denying his motion for a directed verdict as to these offenses.

2. Conley also contends that the trial court erred by failing to exercise its discretion and decide on the merits whether he was entitled to a new trial. We disagree.

Where, as here, a defendant asserts that the verdict was “contrary to evidence and the principles of justice [and equity] and was decidedly and strongly against the weight of the evidence,” the trial court has “broad discretion to sit as a thirteenth juror and weigh the evidence on a motion for new trial alleging these general grounds.” (Punctuation omitted.) Choisnet v. State, 292 Ga. 860, 861 (742 SE2d 476) (2013); see also OCGA §§ 5-5-20, 5-5-21. A trial court reviewing a motion for new trial based on these grounds has a duty to exercise its discretion and weigh the evidence to determine whether a new trial is warranted. See Hartley v. State, 299 Ga. App. 534, 540 (3) (683 SE2d 109) (2009). “If the record reflects that the trial court failed to exercise its discretion and sit as the thirteenth juror, we will vacate and remand for the trial court to fulfill its affirmative statutory duty.” (Citations omitted.) Id. However,

in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the [trial judge] agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.

(Citation and punctuation omitted.) Moore v. Stewart, 315 Ga. App. 388, 391 (3) (727 SE2d 159) (2012).

In this case, Conley has not identified anything in the record suggesting that the trial court failed to apply the proper standard in considering Conley’s new trial motion. The trial court’s order shows that, in addition to addressing the legal sufficiency of the evidence, the trial court specifically addressed Conley’s argument under OCGA § 5-5-20 and concluded that the verdict was not contrary to the evidence. Although the trial court did not make an express ruling as to OCGA § 5-5-21, nothing in the record suggests that the trial court applied the wrong standard or declined to exercise its discretion. For this reason, the verdict must be upheld. “This [C]ourt will not presume the trial court committed error where that fact does not affirmatively appear.” (Citation omitted.) Matthews v. State, 294 Ga. App. 836, 841-842 (4) (670 SE2d 520) (2008). Given that the trial court made a legal sufficiency determination and expressly considered the OCGA § 5-5-20 claim, there is no need for a remand in this case. See Brockman v. State, 292 Ga. 707, 714-715 (4) (b) (739 SE2d 332) (2013) (concluding that there was no need for a remand where, although the trial court did not specifically cite OCGA §§ 5-5-20 and 5-5-21, its order showed that it made a legal sufficiency and a discretionary determination). Compare Walker v. State, 292 Ga. 262, 264-265 (2) (737 SE2d 311) (2013) (vacating denial of motion for new trial and remanding case where trial court’s order showed that it evaluated whether the evidence was legally sufficient). Consequently, Conley’s claim fails.

3. Conley claims that he received ineffective assistance of counsel in several respects.

To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Appellant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

(Citations omitted.) Boatright v. State, 308 Ga. App. 266, 267 (1) (707 SE2d 158) (2011). Applying these standards, we turn to address Conley’s claims.

(a) Conley contends that trial counsel was ineffective for failing to object to the expert forensic interviewer’s testimony that Je.’s testimony was not coached, because the expert’s testimony was improper witness bolstering. We disagree.

“Decisions regarding when and how to raise objections are generally matters of trial strategy, and such strategic decisions do not constitute deficient performance unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Nesbitt v. State, 296 Ga. App. 139, 142 (3) (d) (673 SE2d 652) (2009).

At the motion for new trial hearing, although trial counsel was asked if he remembered the expert witness’s testimony about whether Je. was coached, he was not specifically asked about his decision not to object to such testimony. Conley’s “failure to ask trial counsel about this matter at the new-trial hearing means that we must presume counsel was acting strategically, thereby vitiating any ineffective assistance claim.” (Citations and punctuation omitted.) Jones v. State, 304 Ga. App. 109, 114 (2) (b) (695 SE2d 665) (2010). See also Allen v. State, 299 Ga. App. 201, 204 (1) (b) (683 SE2d 343) (2009) (any decision not to object is presumed to be a strategic one that does not amount to ineffective assistance where defendant failed to question counsel about it at the new trial hearing). Moreover, this Court has repeatedly held that a witness does not improperly bolster a victim’s credibility by testifying that the witness saw no evidence of coaching. See, e.g., McCowan v. State, 302 Ga. App. 555, 557 (1) (691 SE2d 360) (2010); Stillwell v. State, 294 Ga. App. 805, 807 (2) (a) (670 SE2d 452) (2008). Therefore, Conley has not established that trial counsel was ineffective on this basis.

(b) Conley also contends that trial counsel was ineffective for failing to file a special demurrer to challenge the lack of specificity as to the date of the crimes. We disagree.

To succeed on his ineffective assistance claim, [Conley] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.

(Citation and punctuation omitted.) Lewis v. State, 304 Ga. App. 831, 837 (5) (698 SE2d 365) (2010). Further, as this Court has previously noted, “because a defendant can be re-indicted after the grant of a special demurrer, a failure to file such a demurrer generally will not support a finding of ineffective assistance of counsel.” Washington v. State, 298 Ga. App. 105, 106 (679 SE2d 111) (2009).

Here, the indictment gave a range of dates that properly advised Conley of the charges and gave him the opportunity to prepare a defense to those charges. Since Conley did not assert the defense of alibi, the specificity of dates would not have been helpful. See Stanford v. State, 288 Ga. App. 463, 467 (1) (d) (654 SE2d 173) (2007). Accordingly, trial counsel did not err in failing to request a special demurrer under the circumstances. See id. See also Chapman v. State, 318 Ga. App. 514, 517 (1) (a) (733 SE2d 848) (2012) (no prejudice resulting from trial counsel’s failure to file a special demurrer where defendant failed to establish that the alleged lack of specificity in the indictment affected his defense). Since Conley has failed to establish that trial counsel was ineffective, the trial court did not err in denying his motion for new trial.

Decided September 22, 2014.

James E. Bischoff, for appellant.

Tracy Graham-Law son, District Attorney, Elizabeth A. Baker, Kathryn L. Powers, Assistant District Attorneys, for appellee.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Conley was also charged with and found guilty of three counts of aggravated child molestation (OCGA § 16-6-4 (c)), but the trial court merged these counts into his convictions for aggravated sodomy.

       In his enumerations of error, Conley asserts that there was insufficient evidence to convict him of the charged offenses and the trial court erred in denying his motion for a directed verdict, which was made on all counts. However, in his argument, he asserts only that the trial court erred in denying his motion for a directed verdict because the evidence was insufficient to sustain his aggravated sodomy convictions. Accordingly, Conley has abandoned any challenge to his convictions for child molestation and battery on sufficiency grounds because he did not provide legal argument or citation of authority. See Jones v. State, 289 Ga. App. 219, 221 (1), n. 1 (656 SE2d 556) (2008).


author: Branch, Judge.

text:
    A14A1119.
    HOLLAND v. THE STATE.
    (763 SE2d 894)
   Branch, Judge.

After he was involved in an automobile accident, Donnie G. Holland’s blood was tested, which eventually led to his conviction for driving under the influence of a controlled substance. On appeal, Holland contends the trial court erred by denying his motion to suppress the blood test results, overruling his chain-of-custody objection to the blood test results, and denying his motion for a directed verdict. For the reasons that follow, we affirm.

1. Holland contends the trial court erred by denying his motion to suppress his blood test results. He argues that his blood was seized in violation of the Fourth Amendment because the arresting officer had no probable cause to arrest and therefore no basis to seek a blood test. He also argues that the arresting officer’s determination that Holland was under the influence of alcohol or drugs was not credible.

A trial judge’s findings of fact on a motion to suppress should not be disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed in favor of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2) (575 SE2d 713) (2002). “When reviewing a trial court’s ruling on a motion to suppress, we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” Postell v. State, 279 Ga. App. 275, 276 (1) (630 SE2d 867) (2006) (citation and punctuation omitted).

At the hearing on Holland’s motion to suppress and at trial, the State presented evidence to show that on June 28, 2011, State Trooper Michael Garmon was called to investigate an accident. Garmon determined that Holland was driving a pickup truck, that Holland was attempting to turn left, i.e., southbound, onto U. S. Highway 27, that Holland failed to yield to traffic, and that he was struck by a northbound patrol car driven by Carroll County Deputy Thomas Lanning. Garmon attempted to speak with Holland at the scene, but Holland was “a little hysterical at the time,” and he did not provide any information. Garmon admits that he did not gain any information at the scene to suggest that Holland was under the influence of drugs or alcohol. Although Holland testified that he did not see the police car, hear a siren, or see emergency lights, Officer Lanning testified at trial that at the time of the collision his blue lights and siren were activated and that he gave this information to Garmon at the hospital.

At the hospital where Holland was taken following the accident, Garmon questioned Holland again. Garmon observed that Holland was “a little slow in responding,” that his speech was slurred, that he was “a little withdrawn,” and that his eyes were “very bloodshot and watery.” Garmon asked Holland whether he was taking any medications, and Holland responded that he took Lorcet and Soma on a daily basis and that “it makes [me] sleepy . . . just like I am now.” When Garmon asked why Holland pulled out in front of the other vehicle, Holland replied that he “had the cars beat, but the officer didn’t know.” Garmon then conducted the horizontal gaze nystagmus (“HGN”) test on Holland while Holland lay in his hospital bed. Garmon observed four “clues”: “lack of smooth pursuit” and “distinct nystagmus at maximum deviation” in each of Holland’s eyes. Garmon testified that any more than two HGN “ ‘clues’ indicates a certain level of impairment.” Based on these observations, Garmon concluded that Holland was under the influence of drugs, and he therefore arrested Holland for driving under the influence of drugs and read Holland the Georgia Implied Consent Notice. Holland consented, his blood was drawn and tested, and Garmon instructed Holland to turn himself in upon his release from the hospital.

When reviewing a question of probable cause, one must remember that

[t]he facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability — less than a certainty but more than a mere suspicion or possibility. Sufficient probable cause to conduct a DUI arrest only requires that an officer have knowledge that a suspect was actually in physical control of a moving vehicle while under the influence of alcohol [or drugs] to a degree which renders him incapable of driving safely.

Brown v. State, 302 Ga. App. 272, 274 (1) (690 SE2d 907) (2010) (citation and punctuation omitted). Here, Garmon learned that Holland appeared to have caused an accident, that he was taking Lorcet and Soma which made him sleepy, that his eyes were bloodshot and watery and his speech slurred, and that the HGN test indicated Holland was impaired. Construed in favor of the trial court’s decision, there was some evidence to support the conclusion that Garmon had probable cause to arrest Holland for driving under the influence of a drug. We therefore find no error in the trial court’s decision and affirm. State v. Criswell, 327 Ga. App. 377, 384 (3) (759 SE2d 255) (2014) (evidence of Criswell’s bloodshot eyes, alcoholic odor, unsteadiness, confusion, and slurred speech were sufficient to support a finding of probable cause to arrest for driving under the influence); Castaneda v. State, 292 Ga. App. 390, 393-394 (1) (664 SE2d 803) (2008) (defendant’s confusion, slurred speech, stumbling, and flushed complexion, together with the nature of the car accident itself, provided probable cause for DUI arrest); Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (officer’s observations that defendant “had bloodshot, watery eyes and exuded an odor of alcohol” provided sufficient probable cause to arrest) (citations omitted).

2. Holland contends the trial court erred by overruling his objection to the blood-test evidence on the ground that the State failed to show the chain of custody of that evidence.

Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not negate every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence.

Mickens v. State, 318 Ga. App. 601, 602 (1) (734 SE2d 438) (2012) (punctuation and footnote omitted). This Court will not overturn a trial court’s decision on the adequacy of the chain-of-custody evidence absent an abuse of discretion. Clowers v. State, 324 Ga. App. 264, 271 (5) (b) (750 SE2d 169) (2013).

Here, the State introduced evidence to show that on the day of the accident, Garmon, who identified Holland at trial as the same person he arrested and submitted for a blood test, provided hospital lab technician Jessica Nation a blood test kit and witnessed Nation draw Holland’s blood and place the specimen back in the kit, seal it, and return it to Garmon. Nation confirmed in her testimony that Garmon requested a blood test of a man named Donnie Holland and that she performed it. Nation testified that prior to sealing the kit, she put Holland’s name on the collection tubes that she sealed in the kit. Garmon carried the kit back to his post in Villa Rica and placed it in a box in the secretary’s office, from which United Parcel Service picks up the kits and delivers them to the GBI crime lab. An employee of the lab testified that she received the kit on July 1, 2011, checked to ensure that the seals on the collection tubes were intact, and photographed the collection tubes; the photograph was introduced into evidence. The blood was then tested and retested, and the test showed the presence of the cocaine metabolite benzoylecgonine. The above testimony was sufficient to establish with reasonable certainty that the blood test results were those of Holland.

On appeal, Holland argues that several anomalies in the testimony and the evidence suggest that the blood tested may have been that of someone other than Holland. Holland argues that there was a passenger in his car who may have had his blood tested that day. He points out that the blood test request form that Garmon gave to Nation shows that the blood collector’s name was initially written as “Sandra Byrd” but later changed to “Jessica Nation” and that no one initialed the change. Holland points to the fact that there are slight discrepancies in Garmon’s and Nation’s testimony about Holland’s condition at the time of the blood test. And Holland argues that his blood test results should have shown the presence of his prescription medication but did not. But resolution of conflicting or contradictory evidence is for the finder of fact, not this Court. Moreover, “a chain of custody argument goes to the weight and credit a factfinder assigns to the evidence, rather than to its admissibility.” Ross v. State, 313 Ga. App. 695, 698 (1) (c) (722 SE2d 411) (2012) (citation and punctuation omitted). We find no abuse of discretion by the trial court in allowing the issue of chain of custody to go to the jury.

3. Holland also challenges the sufficiency of the evidence.

On criminal appeal, appellant is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. Assessing a witness’s credibility is the responsibility of the factfinder, not this Court.

Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citations and punctuation omitted). Instead, we review the case “to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” Willis v. State, 263 Ga. 597, 598 (1) (436 SE2d 204) (1993), citing Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

In Georgia it is illegal for a person to operate a vehicle while there is any amount of a controlled substance or its metabolites or derivatives in his or her blood or urine. OCGA § 40-6-391 (a) (6). Here, the State presented evidence to show that while driving a truck, Holland was involved in an accident at an intersection, which led to an investigation of whether Holland was driving in violation of Georgia law. A blood test revealed that Holland had benzoylecgonine, a metabolite of the controlled substance cocaine, in his blood. The evidence was therefore sufficient to sustain the conviction. See, e.g., Page v. State, 296 Ga. App. 431, 437 (3) (674 SE2d 654) (2009) (“the state was required to prove that Page was in actual physical control of a moving vehicle when benzoylecgonine, a metabolite of a controlled substance, was present in her blood”). The trial court therefore did not err by denying Holland’s motion for a directed verdict.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Decided September 23, 2014.

Leonard Danley, Sr., for appellant.

Douglas C. Vassy, Solicitor-General, for appellee.

       In Georgia, a person is required to submit to a chemical test of his blood, breath, urine, or other bodily substances (1) “if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-39Í” or (2) “if such person is involved in any traffic accident resulting in serious injuries or fatalities,” OCGA § 40-5-55 (a), “and the investigating law enforcement officer has probable cause to believe that the individual was driving under the influence of alcohol or other drugs.” Hough v. State, 279 Ga. 711, 713 (1) (a) (620 SE2d 380) (2005) (emphasis in original). Thus, as applied to the present case, under either scenario set forth in OCGA § 40-5-55 (a) and Hough, the officer must have had probable cause to believe that Holland was driving under the influence in order to require him to submit to the hlood test.

       Nation was married after the dates in question, and her name at the time of trial was Jessica Wadley.

       This Code section provides in relevant part as follows:
      Aperson shall not drive or be in actual physical control of any moving vehicle while... there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.
      Cocaine and its derivatives are classified as controlled substances. OCGA § 16-13-26 (1) (D).


author: BARNES, Presiding Judge.

text:
    A14A1193.
    STILLWELL v. THE STATE.
    (764 SE2d 419)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Herman A. Stillwell appeals his burglary conviction. On appeal, Stillwell contends that the trial court erred in refusing to instruct the jury on mistake of fact and trespass. Following our review, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict.

(Punctuation and footnotes omitted.) Skaggs-Ferrell v. State, 266 Ga. App. 248 (1) (596 SE2d 743) (2004).

So viewed, the evidence shows that a neighbor observed a truck with a “Herman’s Heating and Air” magnet on the tailgate pull up and stop at an unoccupied home located across the street that was on the market for sale. It is unclear from the record, and there is no testimony about whether there was a for sale sign posted in front of the home. The neighbor observed two men exit the truck, peer through the windows, and then enter the home through the garage. The men subsequently came out of the house, retrieved “stuff” from the truck and re-entered the vacant home. Several minutes later, he observed only one of the men exit the house, retrieve more tools, and again re-enter the house. The neighbor, who was viewing the scene through binoculars, testified that the man had retrieved screwdrivers, pliers and possibly a cordless drill. He called 911 to report his observations, and police were dispatched to the house.

When police arrived, they observed one of the men, later identified as Stillwell, standing near the rear corner of the house. The other man, Stillwell’s brother, ran away when the police arrived. Stillwell told police that he was there because he was interested in buying the house. The police entered the house and discovered that the attic stairs were lowered and found multiple tools, including wire cutters, a cordless drill, a screwdriver, and channel locks, laid out on the floor at the top of the stairs. They further observed that the heating unit in the attic had been disconnected and saw copper tubing and disconnected pipe lying nearby. The homeowner told police that he had not authorized a service call and that he did not know Stillwell or his brother. Stillwell was arrested and charged with burglary.

1. Stillwell contends that the trial court erred in failing to charge the jury sua sponte on the defense of mistake of fact. He maintains that the evidence supported the charge and that it was his sole affirmative defense.

It is undisputed that when Stillwell entered the property at issue it was for sale. Although Stillwell did not testify at trial, the arresting officer testified that Stillwell told him that he entered the property because he was interested in buying the house. Stillwell argues on appeal that this evidence was sufficient to find that he had mistakenly entered the house under the belief that it was open to anyone interested in purchasing the property.

“A person commits the offense of burglary ... when, [1] without authority and [2] with the intent to commit a felony or theft therein, he or she [3] enters or remains within an occupied, unoccupied, or vacant dwelling house of another[.]” OCGA § 16-7-1 (b). Mistake of fact represents an affirmative defense, under which “[a] person shall not be found guilty of a crime if the act... constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” OCGA § 16-3-5. Although Stillwell did not affirmatively request a charge on mistake of fact or object to the omission of the charge, “[t]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” (Citation and punctuation omitted.) Price v. State, 289 Ga. 459, 459 (2) (712 SE2d 828) (2011). Unlike the facts in Price, where there was conflicting testimony about whether the house was for sale, here it is uncontested that the house was for sale. Thus, in this case, Stillwell did not enter the house under a mistaken belief that if true, would have justified entry. Further, in Price, unlike here, the mistake of fact defense had nothing to do with whether or not Price had an intent to steal once he was inside, but only whether he was authorized to enter the house. “Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime.” (Emphasis supplied.) Jones v. State, 263 Ga. 835, 839 (2) (439 SE2d 645) (1994). While the evidence might support Stillwell’s defense that he had mistakenly believed that he could enter the house with impunity because it was for sale, this was a mistake of law rather than a mistake of fact; namely that he could not be convicted of burglary if the house was for sale and potential buyers were authorized to enter. We have consistently held that failure to give a charge on mistake of fact is not error where the evidence shows that a party has made a mistake of law. See Turner v. State, 210 Ga. App. 303, 304(1) (436 SE2d 229) (1993); Taylor v. State, 233 Ga. App. 221, 222 (1) (504 SE2d 57) (1998) (although Taylor believed that the word “Reinstated” on the receipt from the Department of Public Safety reinstated his license, this was not misapprehension of a fact, but mistake of law). “It is axiomatic that everyone is presumed to know the law and ignorance thereof is not an excuse for its violation.” Taylor, 233 Ga. App. at 222 (1). Thus, as Stillwell’s defense was based on mistake of law rather than mistake of fact, the trial court did not err in failing to charge mistake of fact.

Further, a conviction generally should not be reversed in any case . . . where the charge of the court fully and adequately covers the requisite elements of the crime charged, the requirement of criminal intent to commit the crime charged, and other material defenses thereto, and where a reasonable trier of fact could find from the evidence proof of guilt beyond a reasonable doubt. This is so because where the jury has heard the defense and has been properly charged as to the state’s burden of proof, the elements of the crime and the requirement of criminal intent, and as to material defenses, a finding of guilt necessarily finds the requisite criminal intent and therefore negates any possibility that the jury, had it been charged mistake of fact, would have acquitted.

(Citations and punctuation omitted.) Hall v. State, 258 Ga. App. 156, 158 (2) (573 SE2d 415) (2002).

Here, the trial court charged the jury on the elements of the burglary charge, that Stillwell had a presumption of innocence, that the State had the burden to prove his guilt beyond a reasonable doubt, intent, knowledge of the commission of a crime, credibility and impeachment of witnesses, and also mere presence at the scene and mere association with others involved in a criminal act. Given the evidence of record and the charge given, we find that, even if a charge of mistake of fact had been required, any error in failing to give the charge was harmless.

2. Stillwell also contends that the trial court erred in refusing his requested charge on trespass. The trial court reasoned that the trespass charge was not warranted because

there was no evidence that I could glean from my hearing of the case that would authorize a jury to find that the entry into the building was for anything other than an innocent entry to look at it, which I think anyone who’s out looking for a house and the house is unlocked would go into. It’s not a crime, I don’t believe, unless so posted. I didn’t see any evidence of that; and so, therefore, the only entry could be for a legitimate purpose or the purpose as charged in the indictment. There was no other evidence to sustain any wrongful conduct. So I will not give that charge.

OCGA § 16-7-21 (b) (1) provides that a person commits the offense of criminal trespass when he knowingly and without authority enters upon the land or premises of another for an unlawful purpose.

We have held that the trial court must give a requested charge on criminal trespass as a lesser included offense of burglary where the testimony of the accused[,] if believed, would negate an element of the crime of burglary (entry with intent to commit a felony or theft). Specifically, where the accused admits the unauthorized entry but denies the intent to commit a felony or theft, the trial court must give a requested charge on the lesser included offense of criminal trespass.

(Citations and punctuation omitted; emphasis supplied.) Hiley v. State, 245 Ga. App. 900, 900-901 (539 SE2d 530) (2000). But, the trial court is not required to charge the jury on a lesser included offense when the evidence shows either the commission of the offense charged in the indictment, or the commission of no offense at all. Anthony v. State, 317 Ga. App. 807, 812 (3) (732 SE2d 845) (2012). “Furthermore, a charge on the lesser included offense of criminal trespass is not warranted in a burglary case where the defendant claimed to have been on the premises for a lawful purpose.” Id.

Decided September 23, 2014.

Jimmonique R. S. Rodgers, for appellant.

James L. Wright III, District Attorney, Blair D. Mahaffey,AthaH. Pryor, Assistant District Attorneys, for appellee.

Here, Stillwell presented evidence that the house was for sale and that he was at the house for a lawful purpose, while the State countered with evidence that he was there for the purpose of burglarizing the house.

Thus, if the jury believed the State’s evidence, [Stillwell] was guilty of . . . burglary, but if the jury accepted [Stillwell’s] defense to that crime, he was guilty of no offense. Under these circumstances, where [Stillwell] was guilty either of... burglary or of no crime at all, the trial court committed no error... in failing to charge the jury on the lesser included offense of criminal trespass.

Anthony, 317 Ga. App. at 812 (3).

Judgment affirmed.

Boggs and Branch, JJ., concur.


text:
    A14A1366.
    BURDS v. HIPES et al.
    (763 SE2d 887)
   BARNES, Presiding Judge.

Christopher Burds sued his former attorney, Jeanne Bynum Hipes, individually and doing business as Hipes Law LLC, claiming that Hipes fraudulently induced him to enter into a legal services contract with her and that she breached her fiduciary duty to him by misleading him about his case. Burds also sought punitive damages under OCGA § 51-12-5.1. Hipes answered and counterclaimed for $6,427 in unpaid legal fees, plus interest and the costs and expenses incurred in collecting the fees, per their contract. Both parties moved for summary judgment. After a hearing, the trial court denied Burds’ motion and granted Hipes’ motion for summary judgment. Burds appeals, and for the reasons that follow, we affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). To obtain summary judgment, the moving party must demonstrate that he or she is entitled to judgment as a matter of law because no genuine issue of material fact exists for a jury to determine. Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Id. at 624 (1) (a).

Both parties submitted affidavits to support their motions for summary judgment. The affidavits establish that Burds had a dispute with his former employer and consulted several lawyers who declined to take his case on a contingency fee basis before he retained Hipes to represent him. The essence of his claim was that his former employer had “misclassified” him as an independent contractor rather than an employee and was therefore liable to him for wages and other damages. He signed an employment contract engaging Hipes at $300 per hour “to provide legal advice and representation with respect to issues involving [Burds’] independent contractor agreement, and damages recoverable if [he could] under current law be designated an employee rather than an independent contractor.” Burds was required to deposit a retainer of $2,500 and agreed to replenish the retainer as it was applied to fees incurred, with any unused balance to be refunded to him once the engagement was complete. Interest of 1.5 percent per month would be assessed on any past-due fees and Burds would be responsible for attorney fees and costs incurred in collecting any unpaid balance. The contract specified that Hipes was working toward a settlement with Burds’ former employer and that if it became necessary to file suit to pursue the claim, a different engagement agreement would be required with a different retainer. Hipes was to confer with Burds via e-mail after every ten hours of completed work.

1. Burds contends that the trial court erred in granting summary judgment to Hipes on his fraudulent inducement/misrepresentation claim, which he based on two separate incidents. First, he contended that Hipes fraudulently represented to him that his misclassification claim had a potential value of $448,725 despite there being “no law or statute to support any damage estimates [Hipes] gave beyond minimum wage and overtime under Burds’ factual scenario.” By failing to disclose to Burds that no law supported a portion of her estimates of his possible damages, he asserts, “her valuation can be proven false and/or misleading as Hipes did not disclose this crucial fact to Burds and thereby withheld material information needed by him to decide if his case was worth pursuing.”

Burds further argues that Hipes fraudulently induced him to enter into the contract for services by failing to disclose to him early in her representation that she had decided she would not change their fee agreement to a “blended [hourly/] contingency.” Burds initially asked Hipes to take his case on a straight contingency fee basis or on a “hybrid hourly/contingency fee basis” because his funds were limited. The parties dispute the exact tenor of Hipes’ response — Burds stated that Hipes said it would have to be a “really good case” but that she had previously taken contingency cases, and Hipes stated that she told Burds she had never accepted a contingency case and had only once accepted a blended hourly/contingency rate in a case with excellent liability and damages. Hipes also stated that in response to his urging her to “think about it,” she responded she would but “he should not get his hopes up.”

Pretermitting whether Burds’ claim is actually a professional malpractice claim, we find no error in the trial court’s grant of summary judgment to Hipes on Burds’ fraud claim. “The tort of fraud has five elements: (1) false representation by the defendant, (2) scienter, (3) an intention to induce the plaintiff to act or to refrain from acting, (4) justifiable reliance by the plaintiff, and (5) damages.” Markowitz v. Wieland, 243 Ga. App. 151, 153 (1) (532 SE2d 705) (2000). An expression of opinion or expectation cannot form the basis for an action in fraud. Buckner v. Mallett, 245 Ga. 245, 246 (1) (264 SE2d 182) (1980).

Hipes sent the e-mail containing the alleged misrepresentation in response to Burds’ request for “a clear understanding of the value of the case” and “a budget on filing a claim.” Hipes responded that what Burds was asking for “is the essence of what we do and entails legal time and fees” because evaluating his potential damages required legal research. She told him that he “may be able” to recover certain damages, “probably could” require the employer to do other things, alternatively “might be able” to obtain other damages, “arguably” could rely on certain laws, other damages “might be recoverable” assuming certain facts, and if attorney fees were recoverable and if the case went to trial then those estimated fees could be included. Given all the assumptions, “assuming all stars lined up, the jury loved you,” Hipes estimated that Burds “might be looking at a figure of $448,725.” She then estimated that the cost of taking a case to trial could be as much as $200,000, and concluded that “the value of the case is dependent on many things ultimately, including what we are able to find in our evaluation research.” These are simply not assertions of fact that could support a fraud claim, and the trial court did not err in so concluding.

Similarly, the actual contract between Burds and Hipes explicitly states that Hipes would provide legal services at an hourly rate and Burds agreed to pay for all time expended on his claim. Nor is there any evidence that Hipes knew all along that she would not change their fee arrangement to a blended hourly/contingency one.

As the trial court correctly observed in its summary judgment order,

[t]he plain language of the Email and the Retainer Agreement contradict [Burds’] conclusion. The Email is, at [Burds’] urging, Hipes’ very preliminary opinion of the Misclassification Claim under a best case scenario. The Email contains a number of disclaimers and conditional statements. Furthermore, it cannot be proven false, because [Burds] abandoned the Misclassification Claim. [] As such it is not actionable. Furthermore, the Retainer Agreement explicitly states that Hipes is to be paid hourly. [Burds] may have wanted to believe his optimism would be rewarded and that Hipes would assume his risk of an unfavorable outcome. However, there is no reasonable basis for such an assumption, based on the clear language of the Email and the Retainer Agreement.

Accordingly, the trial court did not err in granting summary judgment to Hipes on Burds’ claim of fraud based upon a lack of evidence in the record showing any false representation. See Straus v. Renasant Bank, 326 Ga. App. 271, 278 (2) (b) (756 SE2d 340) (2014).

2. Burds asserts in separate enumerations that the trial court erred in granting summary judgment to Hipes and in denying his motion for summary judgment on his breach of fiduciary duty claim. In addition to the alleged misrepresentations discussed in Division 1, Burds also contends that Hipes breached her fiduciary duty to him by failing to inform him early on that he had little chance of being able to settle his case because there were no legal grounds to support it.

“[A] claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” (Punctuation and footnote omitted.) Bedsole v. Action Outdoor Advertising JV, 325 Ga. App. 194, 201 (4) (750 SE2d 445) (2013).

There is no question that Hipes had a fiduciary duty toward Burds. Burds has presented no evidence, however, to support his contention that she breached that duty by failing to tell him soon after she began researching his case that his employment dispute was unsupported by any reasonable legal theory. His affidavit includes hearsay statements about what his former employer’s CEO told him after Burds ended his contract with Hipes and what other lawyers told him about his case, but he produced no evidence establishing a question of fact in this regard. He argues that Hipes admitted in an e-mail message to him that “many, maybe most lawyers” would have turned down his case because it was a difficult one, but Hipes’ assertion that Burds’ case was difficult is not evidence that it was untenable or that she breached her fiduciary duty by failing to tell him so.

Further, Burds argues that Hipes’ e-mail message to him within two weeks after their contract was signed about the difficulty of his case establishes her fiduciary breach because she knew early on how bad his case was, and her message to him after her representation ended shows that she knew all along that she was not going to change their agreement from an hourly fee for services to a blended hourly/ contingency fee. Burds concludes that this is evidence sufficient to raise a jury question regarding whether Hipes “misled” him into continuing to pay her fees even though she knew he had no case and thus, breached her duty to him.

But Hipes’ early communication to Burds regarding the difficulty of his case also establishes that Burds was kept informed about the results of Hipes’ legal research. Further, Burds already knew his case was difficult, as by his own admission several lawyers had turned him away before he approached Hipes, as did others after his relationship with her ended. Hipes’ message to Burds after their attorney-client relationship ended simply reiterates what she said in her engagement letter, which was that she continued to evaluate whether his case could be taken under a blended arrangement until his former employer’s new counsel, unlike its previous counsel, made it clear that the company would not consider settling the case.

Without evidence that Hipes breached her fiduciary duty to Burds, his claim fails. The trial court thus did not err in denying summary judgment to Burds and in granting summary judgment to Hipes on the breach of fiduciary duty claim.

Decided September 23, 2014.

Matthew G. Gebhardt, for appellant.

Hawkins Parnell Thackston & Young, KimM. Jackson, Bryan M. Grantham, for appellees.

3. Finally, Burds contends that the trial court erred in granting summary judgment to Hipes on her counterclaim for breach of contract. He argues that his claims of fraud and breach of fiduciary duty directly affect the validity of the legal services contract between the parties and of Hipes’ counterclaim for unpaid attorney fees, and therefore, if this Court reverses the grant of summary judgment to Hipes on his fraud and fiduciary duty claims, then the trial court’s ruling on the counterclaim was premature. As we have determined that the trial court did not err in granting summary judgment to Hipes on Burds’ claims, the trial court also did not err in granting summary judgment to Hipes on her counterclaim for fees.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The trial court noted that, although Burds initially alleged that Hipes caused him to lose his opportunity to pursue a misclassification claim against his former employer, he abandoned that argument in briefing and argued instead that his case could not succeed and that Hipes should not have taken it on an hourly basis.

       While Burds argued to the trial court that Hipes breached her fiduciary duty to him by over-billing him for work that was not done or that was outside the scope of their contract, he does not make that argument on appeal. Hipes supported her billing statements with her affidavit, and Burds produced no evidence to counter her assertions.