author: McFadden, Judge.

text:
    A12A1429.
    JONES v. THE STATE.
    (734 SE2d 450)
   McFadden, Judge.

After a bench trial, Brandon Jones was convicted of trafficking in methamphetamine. He appeals, challenging the sufficiency of the evidence, the denial of a motion to suppress evidence seized from his home, certain evidentiary rulings, and the effectiveness of his trial counsel. Because the conviction is supported by sufficient evidence, the police searched the home pursuant to a valid warrant, no evidentiary rulings constituted harmful error, and there is no showing that trial counsel’s performance was deficient or prejudiced the defense, we affirm.

1. Sufficiency of the evidence.

Jones argues that the evidence supporting his conviction was insufficient because another person had equal access to the methamphetamine. The argument is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of the witnesses, but only determine whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offense beyond a reasonable doubt.

(Citations and punctuation omitted.) Dickerson v. State, 312 Ga. App. 320 (718 SE2d 564) (2011).

So viewed, the evidence shows that on November 26,2007, police officers were called to Jones’ home to investigate a shooting. Jones told the officers that he had committed the shooting, but claimed he had acted in self-defense as two men attempted an invasion of his home. During the investigation, the officers learned that there was an outstanding arrest warrant for Jones, and they eventually took him into custody based on that warrant. While they were in the living room interviewing Shasta Maners, Jones’ girlfriend who also lived in the house, about the shooting, officers observed a marijuana cigarette lying on a pool table. Maners told the officers that there was probably more marijuana in the house. After Maners refused to consent to a search of the residence, the officers secured the premises and obtained a search warrant. They then conducted a search of the residence, discovering 325 grams of methamphetamine, digital scales, guns, and approximately $90,000 in Jones’ bedroom closet. Jones subsequently gave a statement to police admitting that everything found at the house was his.

Jones argues that since Maners was living in the house with him, she had equal access to the methamphetamine. However, Jones’ reliance on the equal access rule to rebut the presumption that he possessed the drugs found in his residence is misplaced because “the equal access doctrine applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant’s ownership or possession of the premises.” (Citation omitted.) Bailey v. State, 294 Ga. App. 437, 440 (1) (669 SE2d 453) (2008). In this case, the fact that the methamphetamine was found in Jones’ residence was not the sole evidence of his possession; Jones’ statement that everything found in the house belonged to him was additional evidence that he possessed the methamphetamine. See Wheeler v. State, 307 Ga. App. 585, 587 (1) (705 SE2d 686) (2011) (defendant’s possession of contraband not based solely on his possession of residence where there was also evidence that he admitted contraband belonged to him). Accordingly, we conclude that there was sufficient evidence from which a rational trier of fact was authorized to find Jones guilty beyond a reasonable doubt of trafficking in methamphetamine.

2. Motion to suppress.

Jones argues that the trial court erred in failing to suppress the evidence seized during an illegal warrantless search of his home. The argument is without merit since, as noted above in Division 1, officers did not conduct a warrantless search of the home, and instead searched the residence pursuant to a search warrant. Jones supports his claim of a warrantless search by citing conflicting evidence purporting to show that the officers entered the home without permission and conducted the search before they obtained the search warrant. However, it was within the trial court’s province as fact-finder to resolve any conflicts in the evidence.

Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. ... Further, 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.

(Citations and punctuation omitted.) Hesrick v. State, 308 Ga. App. 363 (707 SE2d 574) (2011). Here, at both the motion to suppress hearing and the bench trial, testimony from the officers established that they were allowed to enter the home by Jones and others to investigate the shooting, and that they conducted the search only after seeing marijuana in plain view and obtaining the search warrant. Because there is evidence supporting the finding that the search and seizure of items in the home were made pursuant to a search warrant, that finding must be upheld.

Jones’ further argument that there was not probable cause to support the search pursuant to the warrant is likewise without merit. The officers’ observation of a marijuana cigarette lying in plain view while they were lawfully in the house to investigate the shooting, along with Maners’ statement that there were probably other drugs in the house, provided probable cause for the search. See Barnett v. State, 204 Ga.App. 491, 493-494 (1) (b) (420 SE2d 43) (1992) (plain view observations and statement concerning location of drugs provided probable cause for search).

3. Jackson-Denno hearing.

Jones claims the trial court erred in admitting his statement to police because it was not freely and voluntarily obtained. However, the trial transcript shows that the trial court held a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), at which the officer who took the statement testified that Jones was rational and coherent, that he was not coerced or promised anything, that he was fully advised of his rights, that he signed a waiver of those rights, and that he then gave the written statement voluntarily. Based on the evidence presented at the Jackson-Denno hearing, the trial court’s finding that the statement was freely and voluntarily given was authorized and must be upheld. See Hester v. State, 287 Ga. App. 434, 437-438 (2) (651 SE2d 538) (2007) (trial court authorized to find that defendant freely and voluntarily gave statement after having knowingly waived rights, where no evidence of alleged threats to defendant was offered at Jackson-Denno hearing).

4. Correcting omission from record.

Jones complains that the trial court erred in admitting his statement to police into evidence at the motion for new trial hearing because the record was unclear as to whether the statement had been admitted into evidence at the bench trial. Contrary to this complaint, not only has Jones acknowledged in his brief that the statement was indeed admitted at trial, but the record clearly shows that the statement was so admitted.

At the pre-trial motion to suppress hearing, Jones testified that he gave a written statement to police admitting that he had methamphetamine in the house. As noted above in Division 3, a JacksonDenno hearing was held regarding that written statement, the state then tendered the document for admission into evidence, and the trial court admitted the statement. Prior to the close of the state’s case, the prosecutor confirmed with the court that it had the statement, along with other exhibits, which had been admitted.

Nevertheless, when the case came on for the motion for new trial hearing, the written statement was not included in the record. The state presented the written statement at the new trial hearing, and the trial judge stated that even though it had somehow gotten lost, he was able to sufficiently identify it as the statement which he had admitted after the Jackson-Denno hearing at trial. The court then admitted the statement and made it part of the record at the motion for new trial hearing.

If anything material to either party is omitted from the record on appeal or is misstated therein, . . . the trial court,... on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court.

OCGA § 5-6-41 (f). Indeed, “[w]here the correctness of the record is called into question the matter is to be resolved by the trial court.” (Citations and punctuation omitted.) State v. Nejad, 286 Ga. 695, 697 (1) (690 SE2d 846) (2010). Under the circumstances of this case, the trial court was authorized to correct the record by supplementing it with the inadvertently omitted statement of the defendant.

5. Harmless error in admitting defendant’s suppression hearing testimony.

The trial court found that the erroneous admission of Jones’ suppression hearing testimony at the bench trial was harmless. Jones enumerates that finding as error. We disagree.

At the motion for new trial hearing, the trial court correctly ruled that during the bench trial the state had improperly introduced Jones’ suppression hearing testimony that he told police he had drugs in the house. See Simmons v. United States, 390 U. S. 377, 394 (III) (88 SC 967, 19 LE2d 1247) (1968) (suppression hearing testimony of a defendant inadmissible at trial on the issue of guilt). But the court also correctly found that such error was harmless in light of Jones’ properly admitted written statement admitting ownership of everything found in the house. See Jackson v. State, 291 Ga. 22, 24 (2) (727 SE2d 106) (2012) (improper admission of evidence harmless where cumulative of other properly admitted evidence). Moreover, even though admission of the suppression hearing testimony was objectionable, the trial judge was already familiar with that evidence since he had also presided over the suppression hearing, and

since the judge was acting as both judge and jury [at the bench trial], it must be presumed that he has sifted the wheat from the chaff and selected the legal testimony from that which is illegal and incompetent, unless from the judgment itself it appears that consideration was given to testimony that should have been excluded.

(Citations and punctuation omitted.) Schenck v. State, 128 Ga.App. 270, 271-272 (2) (196 SE2d 362) (1973). Because the judgment itself does not reveal otherwise, we must presume that it is based on the competent evidence in the record.

6. Ineffective assistance of counsel.

Jones claims his trial counsel was ineffective.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.

Fitzpatrick v. State, 317 Ga. App. 873, 874 (2) (733 SE2d 46) (2012).

(a) Failure to introduce evidence bag at suppression hearing.

Jones claims trial counsel was ineffective in failing to introduce, during the suppression hearing, the evidence bag containing the methamphetamine because the time shown on the bag would have established that the contraband was seized prior to the police obtaining the search warrant, and all evidence in the bag would have been deemed inadmissible. However, at the bench trial, Jones elicited testimony establishing the time shown on the evidence bag, and an officer then explained the discrepancy between that time and the time of the subsequent search. Thereafter, Jones renewed his motion to suppress, which the trial court denied. Thus, even if trial counsel was deficient by not introducing the evidence bag at the suppression hearing, Jones has not shown prejudice. There is no reasonable probability that, but for the alleged deficiency, the trial court would have granted the motion to suppress since the trial court in fact denied the renewed motion to suppress even after hearing testimony concerning the time shown on the evidence bag. See Harris v. State, 265 Ga. App. 876, 877 (1) (a) (595 SE2d 683) (2004) (no ineffective assistance where defendant failed to show that motion to suppress would have been granted).

(b) Failure to advise of right to jury trial.

Jones’ contention that trial counsel was ineffective in failing to advise him of his right to a jury trial is belied by the record. Trial counsel testified that he advised Jones of the differences between a jury and bench trial and discussed with him his decision to proceed with a bench trial. And prior to the start of the trial, the court informed Jones of his right to a jury trial, and Jones expressly indicated that he did not want a jury trial. Under these circumstances, Jones has failed to show that counsel’s performance was deficient. See Mantooth v. State, 303 Ga. App. 330, 334-335 (1) (a) (693 SE2d 587) (2010).

(c) Constructive denial of counsel.

Nevertheless, Jones contends that prejudice should be presumed because his trial counsel’s actions at various points during the trial amounted to a constructive denial of counsel. See Hardeman v. State, 281 Ga. 220, 222 (635 SE2d 698) (2006) (constructive denial of counsel is one of a narrow range of circumstances in which the prejudice component of a claim of ineffective assistance of counsel can be presumed). “A constructive denial is not present unless counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing. The attorney’s failure must be complete and must occur throughout the proceeding and not merely at specific points.” (Citations and punctuation omitted.) Wade v. State, 315 Ga.App. 668, 671 (727 SE2d 275) (2012).

Decided November 16, 2012

Rudjard M. Hayes, for appellant.

Julia Fessenden Slater, District Attorney, Jennifer E. Dunlap, Assistant District Attorney, for appellee.

The record in this case does not show that trial counsel entirely failed to subject the state’s case to meaningful adversarial testing throughout the proceeding. On the contrary, the record shows that counsel had ample time to prepare and consult with his client. Counsel filed a production request for the state’s evidence, and filed motions for disclosure of exculpatory information, to suppress evidence seized from Jones’ home, and to exclude Jones’ statement to police. At the motion to suppress hearing, counsel made a lengthy opening statement, thoroughly cross-examined the state’s witnesses, presented six witnesses on behalf of the defense, introduced various exhibits and made extensive arguments in support of the motion. At the bench trial, counsel again subjected the state’s witnesses to thorough cross-examinations, raised objections, and renewed the motion to suppress. Accordingly, this is not a case of constructive denial of counsel since Jones “has not demonstrated a breakdown in the adversarial process that would justify a presumption that his conviction was insufficiently reliable to satisfy the Constitution.” (Citation and punctuation omitted.) Wade, supra at 673.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A1550.
    GEORGIA CASUALTY & SURETY COMPANY et al. v. SALTER’S INDUSTRIAL SERVICE, INC. et al.
    (734 SE2d 415)
   DOYLE, Presiding Judge.

Georgia Casualty & Surety Company and Plantation Sweets, Inc. (collectively “Plantation”) appeal from the trial court’s grant of summary judgment to Salter’s Industrial Service, Inc., and Excell Refrigeration of South Carolina, Inc., in Plantation’s action for negligence, failure to warn, and negligent misrepresentation claims against the defendants. For the reasons that follow, we affirm the trial court’s grant of summary judgment.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [a] plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of [a] plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Viewed in this light, the evidence establishes that Ronnie Collins ran a farming operation, which included multiple temperature- and humidity-controlled warehouse rooms used to refrigerate Vidalia onions after harvest. In 2001, Collins wanted to retrofit the system in order to cure sweet potatoes during parts of the year when onions were not in season. In order to cure the potatoes, the warehouses had to be equipped to heat the potatoes to approximately 90 degrees for approximately six days. It is undisputed that the original company that designed and installed the custom refrigeration system is not a party to this litigation. Moreover, the system was not designed to have high temperature safety devices inside the heating element of the condenser (aside from the breakers), which were inside the circuit between the control system and the re-heater. Neither Salter’s nor Excell serviced the computer system.

Collins called Lonnie Salter, a licensed electrician with Salter’s, and asked him to install a device that would allow Collins to run the condenser’s heating element independent of the cooling element in order to heat the warehouses to cure sweet potatoes during that harvest. Collins did not inquire with the manufacturer of the system whether the computer controls could be reprogrammed to accommodate higher temperatures associated with sweet potato curing. In order to achieve Collins’s goal, Salter installed a manual switch (similar to a light switch) inside of an enclosed electrical box outside the actual warehouse rooms that would allow Collins to run the condenser’s re-heater without using the computer-controlled cooling apparatus (because the computer would not allow Collins to heat the room at a temperature high enough to cure the sweet potatoes); Collins deposed that he was unaware of a method by which he could achieve this result using the computer controls that generally ran the system.

It is undisputed that Salter told Collins he needed to run the system’s fans with the re-heaters in order to prevent overheating and component failure when he used the manual switch. Collins deposed that neither Salter’s nor Excell warned him of a fire risk due to the manual switches. Salter deposed that he suggested using stand-alone heaters to achieve the same results as the manual switch, but Collins declined to use such a method due to the cost. Salter also deposed that he did not believe the manual switch constituted a fire hazard because the design of the system would cause the wires energizing the re-heaters to melt at a temperature lower than the ignition point of the room and, when the wires melted, cause the fuses to the re-heaters to blow and shut down the system. Salter also deposed that he did not bypass any safety device while installing the manual switches, which simply allowed for a manual closure of the wire contacts, allowing electricity to go to the re-heaters without the normal method (the computer control to close the contacts). Collins operated the rooms in this manner for a number of years without incident.

In March 2004, Excell was called out to Plantation’s facility in order to do a multi-day inspection of the refrigeration units in the warehouses in preparation for onion season. Floyd Sparks, a refrigeration technician with Excell, serviced the warehouses in preparation for onion season. It is undisputed that Sparks saw frayed or charred wiring in the system of the particular warehouse at issue, reporting the issue to Collins, and that Salter’s was called to replace the wiring as a result of Sparks’s inspection. Such wiring damage previously had occurred in the system prior to Salter’s installation of the manual switch and at other onion storage facilities that did not have the manual switches. Midway through Sparks’s multi-day inspection, a fire occurred in the warehouse in question. There is no evidence in the record that Sparks operated the manual switches at any time during his inspection. It is undisputed that on the day of the fire, the manual switch was in the off position and the contacts in the power supply were in the open position — they should not have been conducting electricity absent a defect. Experts testified that the origin of the fire was the re-heaters and that the manual switch may have allowed electricity to divert to the re-heaters even though the switch was set to the off position assuming that someone did not intentionally turn on the manual switch.

A cause of action for negligence requires (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

If a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence, and the determination of the duty a defendant owed a plaintiff is a question of law. In addition to the general standard of reasonable care to avoid harm, a duty may be defined by statute — “negligence per se.” “Breach of duty alone does not make a defendant liable in negligence. The rule remains that the true ground of liability is the superior knowledge of the [defendant] of the existence of a condition that may subject the [plaintiff] to an unreasonable risk of harm.” Moreover, “[i]t is well established that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence,” and “[allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment.”

1. As an initial matter, Plantation does not argue in its brief on appeal that Salter’s or Excell’s actions constituted violations of any specific code provisions, and therefore, they have abandoned their claims that the trial court erred by finding that Plantation failed to establish a duty via negligence per se.

2. Plantation contends that the trial court erred by granting summary judgment to the defendants because their actions constituted a breach of the general duty of reasonable care that professionals owe to their customers. We disagree.

(a) Excell

As the trial court correctly determined, there simply is no legal duty owed to Plantation by Excell, refrigeration specialists, to refuse to work on the system, provide warnings regarding the retrofitted manual switch, or anything else regarding the matter. Moreover, there is a complete lack of evidence that Excell provided anything other than reasonable service to Plantation during the course of the yearly inspection of the refrigeration system. It is undisputed that Sparks, Excell’s technician, reported to Plantation any damaged equipment, and there is no evidence that Sparks should have known that the switch itself was defective. Although it appears that the trial court erred by finding that Sparks told Plantation to remove the manual switch prior to the fire, and there actually is a dispute of fact as to whether Sparks discussed this before or after the fire with Plantation officials, it does not affect the outcome of this appeal because the trial court correctly determined that Plantation has failed to present any evidence that Excell violated a general duty of reasonable care to Plantation by servicing the unit with the manual switch installed.

(b) Salter’s

Based on the expert testimony provided in the record, the fire started at the evaporator (which contained the re-heater) in the warehouse room in which Salter’s had installed one of the manual switches. Moreover, the expert testimony indicates that the re-heater could not have operated without being energized by either (1) the computer controller activating the circuit, (2) a person turning the manual switch “on,” or (3) a defect in the manual switch or computer system that would cause the circuit to conduct electricity without a user intentionally utilizing the switch or the computer. Finally, there is testimony that more likely than not, the manual switch caused the circuit to energize, rather than the computer control. This evidence, however, is insufficient to establish that Salter’s act of installing the manual switch was a breach of any code section or a standard of reasonable care. Despite the conclusory statements in the expert affidavit provided by Plantation, it is undisputed that Salter’s did not “by-pass” any “inherent safety device” in the system by installing the switch; rather, Salter’s bypassed the computer controller so that Collins could utilize the system to heat rather than refrigerate. The computer controller was not a safety device; it was simply a controller for the temperature and humidity of the room, the presets of which would not allow for a temperature setting above 46 degrees because the room was designed to house onions and not sweet potatoes.

Plantation has failed to establish with specific evidence how installation of the switch, which acted as it was supposed to do (assuming that the switch was not defective), constituted unreasonable action on the part of Salter’s. Similar to this Court’s determination in Dupree, there isa complete lack of record evidence beyond the conclusory statements of Plantation’s expert that Collins did not understand that altering the re-heaters by adding the manual switch to the temperature control devices in the warehouse (as Collins himself requested of Salter’s) might result in some harm to the system (especially if the re-heater was used without the fan as Salter’s had instructed) or that Lonnie Salter had greater knowledge of this risk. The component failure at issue was a custom-designed refrigeration system, which Collins wanted to convert into a heating apparatus, and Salter was under no duty to suggest a more appropriate method to convert the system, even though the record establishes that he did suggest alternatives that were less likely to damage the refrigeration system. Although Collins may not have had the specialized knowledge of wiring that Salter’s possessed, like any other lay person, he understood that heat can eventually cause a fire and that he was converting his refrigeration system to heat the warehouse room for a number of days.

Under these circumstances, the trial court correctly granted summary judgment to Salter’s and Excell on Plantation’s negligence claims.

3. Plantation argues that the trial court erred by granting summary judgment to Salter’s on its claim that Salter’s negligently misrepresented to Plantation that the manual switch could be used to safely heat the warehouse room. We disagree.

The undisputed testimony established that Salter’s explained to Plantation that the fans had to run any time the manual switch was used to energize the re-heater to cure the sweet potatoes, and Collins has not alleged that Salter’s made any representation as to the efficacy of the switch. There has been no testimony that the fans were running at the time the fire occurred, and therefore, Plantation has failed to establish that any misrepresentation occurred.

4. Finally, Plantation argues that the trial court erred by granting summary judgment on its claims that Excell and Salter’s failed to warn Plantation that the manual switch should have been removed.

Abreach of a duty to warn, however, must also be the cause of the injury about which the plaintiff complains, and the plaintiff must present evidence supporting a reasonable inference that the warning provided by the defendant would prevent the injury.

An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough. . . .

Again, although Plantation’s expert testified that a warning to remove the manual switch from Excell or Salter’s could have prevented the fire (assuming that Plantation had heeded such warning and removed the bypass switches), Plantation has not provided any citation to law or statute that the defendants had a duty to provide any specific warnings apart from those already provided to Collins that he should run the fans at the same time he ran the re-heater during potato season.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

Decided November 16, 2012

Hall, Booth, Smith & Slover, Steven P. Bristol, for appellants.

Brennan, Harris & Rominger, Edward R. Stabell HI, Sandra Vinueza Foster, Mozley, Finlayson & hoggins, William J. Rawls II, John T Wooten, for appellees.

       (Citation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       The condenser was normally used to control the humidity of the room.

       (Punctuation omitted.) Dupree v. Keller Indus., 199 Ga.App. 138, 141 (1) (404 SE2d 291) (1991).

       See id.

       See R & R Insulation Svcs. v. Royal Indem. Co., 307 Ga. App. 419, 424-425 (1) (705 SE2d 223) (2010).

       (Citations, punctuation and emphasis omitted.) Brazier v. Phoenix Group Mgmt., 280 Ga. App. 67, 70-71 (1) (a) (633 SE2d 354) (2006).

       (Punctuation omitted.) Johnson v. MARTA, 230 Ga.App. 105, 106 (495 SE2d 583) (1998).

       (Punctuation omitted.) Id. at 107 (1).

       See, e.g., Dixie Group, Inc. v. Shaw Indus. Group, 303 Ga.App. 459, 467-468 (4) (693 SE2d 888) (2010) (collecting cases).

       We note that there also is a failure of evidence that Salter’s knew or should have known that the switch was defective.

        See Hudgins v. Bacon, 171 Ga.App. 856, 861(3) (321 SE2d 359) (1984) (“The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession.”) (punctuation omitted).

       Cf. Dupree, 199 Ga. App. at 143 (2) (holding that “[e]ven if the industry and federal regulations evidenced an inherent danger and [the defendant] knew or should have realized that the [device] was or was likely to be dangerous for the use for which it was supplied, there was a complete absence of evidence that [the defendant] had reason to believe that [the plaintiff] or its employees would not realize the” danger).

       See R & R Insulation Svcs., 307 Ga.App. at 431 (3) (c).

       See, e.g., White v. Ga. Power Co., 265 Ga.App. 664, 666 (1) (595 SE2d 353) (2004) (“The danger from fire or water is one that even young children may be said to apprehend.”) (punctuation omitted).

       See Niles v. Bd. of Regents &c. of Ga., 222 Ga.App. 59, 61 (2) (473 SE2d 173) (1996).

       (Citation and punctuation omitted.) Id.

       See R & R Insulation Svcs., 307 Ga.App. at 427 (3).


author: Ray, Judge.

text:
    A12A1011.
    HUTCHINSON v. THE STATE.
    (733 SE2d 517)
   Ray, Judge.

Following a jury trial, Joseph Hutchinson was convicted of one count of armed robbery and two counts of aggravated assault. Hutchinson appeals his conviction and the denial of his motion for new trial, contending (1) that the trial court erred when it allowed the victim to testify about an alleged burglary that occurred the morning after he was attacked, and (2) that the trial court erred when it allowed the State to urge the jury during closing argument to draw a reasonable inference between the incident in question at trial and the subsequent burglary of the victim’s office. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the victim, Chike Chime, became involved in a romantic relationship with Navara Price. Price was having a lot of financial difficulties at the time, so Chime provided various forms of financial assistance to her, including hiring her as an employee at his insurance business and allowing her to move in with him. Their relationship, however, became strained when she began staying away from home and not reporting to work. When Chime discovered that Price was “hanging out” with Hutchinson, Chime terminated her employment on March 2, 2008, and asked her to move out of his residence on March 3, 2008. During the next few days Price called Chime numerous times asking for money. Eventually, at Price’s request, Chime agreed to meet Price at a hotel.

On March 7, 2008, Chime and Price were together at the hotel when Hutchinson burst into their hotel room and attacked Chime by stabbing him with a screwdriver. Hutchinson told Price to grab Chime’s wallet and keys, which she did, and Hutchinson and Price left the room together.

The next morning, after he was treated for his injuries and released from the hospital, Chime went to his office and discovered that it had been burglarized. As there were no signs of forced entry, it appears that the office had been burglarized by someone who used the key to gain entry. The only items taken from the office were two safe deposit boxes containing business credit cards, checks, passports, and various personal items. The boxes had been stored in a location that would not have been known to the general public. As a former employee, Price was familiar with the financial transactions of the business and with the location where the business credit cards and checks were kept.

At trial, the State sought to introduce Chime’s testimony regarding the subsequent burglary of his business. The defense objected to the testimony on the basis of relevance. The State argued that Chime’s business keys had been stolen during the armed robbery and that the subsequent burglary of his business was relevant to show Hutchinson’s motive for the armed robbery and aggravated assault. Without further inquiry into the matter, the trial court overruled the objection.

1. Although Hutchinson does not challenge the sufficiency of the evidence, we conclude that the evidence was sufficient to enable a rational trier of fact to find him guilty beyond a reasonable doubt of the crimes for which he was convicted.

2. Hutchinson argues that the trial court erred when it allowed Chime to testify at trial about the burglary that occurred at his office the day after he was attacked. Specifically, Hutchinson argues that such testimony was more prejudicial than probative because he was never charged with that crime and because the burglary was unrelated to crimes at issue in the present case.

Here, the State sought to introduce evidence of the burglary to show Hutchinson’s motive for the armed robbery and aggravated assault.

[T]he issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. A logical connection between separate crimes is established where proof of the independent crime tends to establish identity, bent of mind, or intent in the commission of the crime for which the defendant is on trial.

However, pretermitting whether the evidence had a logical connection with and was relevant to the crimes charged, we conclude that any error in its admission was harmless. As detailed above, Chime knew Hutchinson and was able to identify him as his attacker. Chime testified that Hutchinson burst into his hotel room and attacked him with a screwdriver, stabbing him three times. Chime further testified that Hutchinson and Price stole his wallet and keys. Price generally corroborated Chime’s account of the incident, testifying that Hutchinson came into the hotel room and fought with Chime, and that Chime was bleeding from injuries he sustained in the attack. The police officer who responded to the incident, Officer M. J. Fuldali, testified that Chime was bleeding from multiple lacerations and cuts on his head. The officer further testified that there was blood and blood spatter all over the hotel room consistent with signs of a struggle. Given this overwhelming evidence, it is highly unlikely that the admission of the testimony concerning the subsequent burglary contributed to the verdict in this case, even if it was erroneous to allow such evidence.

3. Hutchinson argues that the prosecutor made improper remarks during closing argument suggesting Hutchinson’s possible involvement in the subsequent burglary of the victim’s business office. Hutchinson contends that the remarks were inherently prejudicial and that the trial court erred in not declaring a mistrial.

Decided October 26, 2012

Reconsideration dismissed November 19, 2012.

Gerald P. Privin, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Hutchinson argues that OCGA § 17-8-75 requires the trial court to interpose and prevent counsel from making statements to the jury regarding prejudicial matters not in evidence. However, Hutchinson did not object to these remarks at trial, and OCGA § 17-8-75 does not require a judge sua sponte to prevent counsel from making improper arguments. Rather, the judge is only required to act where counsel makes a timely objection. By failing to object to the State’s closing argument, Hutchinson waived his right to rely on the alleged improprieties as a basis for reversible error.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-8-41 (a).

       OCGA §16-5-21 (a).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       Id.

       There is nothing in the record to indicate that the State had provided Hutchinson with written notice of its intent to present evidence of the independent offense or act, that the trial court conducted a hearing regarding the admissibility of this evidence outside the presence of the jury, or that the trial court made the required findings before allowing the evidence pursuant to Uniform Superior Court Rule 31.3 (B). However, we are precluded from considering these issues because of Hutchinson’s total failure to object at trial and his total failure to enumerate this as error on appeal. See Ross v. State, 210 Ga.App. 455, 457-458 (2) (436 SE2d 496) (1993) (the failure to object at trial that the State did not give the defendant notice of intent to introduce similar transaction evidence, or that a hearing under USCR 31.3 (B) was not held, or that the trial court did not make the required findings before admitting the evidence, coupled with the failure to raise these issues on appeal, precludes appellate review of these issues).

       (Citations and punctuation omitted.) Lewis v. State, 234 Ga.App. 873, 876 (3) (508 SE2d 218) (1998).

        Jones v. State, 226 Ga. App. 721, 723 (1) (487 SE2d 618) (1997) (“Similar transaction evidence can be introduced to prove (motive) when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense”) (citation and punctuation omitted).

       See, e.g., Vaughan v. State, 251 Ga. App. 221, 223 (2) (553 SE2d 335) (2001) (“[T]he erroneous admission of similar transaction evidence may be harmless if there is such overwhelming evidence of the defendant’s guilt that it is highly prohable that the error did not contribute to the guilty verdict”).

        Tidwell v. State, 306 Ga.App. 307, 308 (1) (701 SE2d 920) (2010); Henderson v. State, 285 Ga. 240, 245 (6) (675 SE2d 28) (2009).

        Tidwell, supra; Santibanez v. State, 301 Ga. App. 121, 129 (4) (686 SE2d 884) (2009).


author: Branch, Judge.

text:
    A12A1581.
    SANDIFER v. THE STATE.
    (734 SE2d 464)
   Branch, Judge.

Following a jury trial, Darryl Lamar Sandifer was convicted on five counts of aggravated child molestation, four counts of child molestation, and two counts of enticing a child for indecent purposes. He now appeals the denial of his motion for a new trial, asserting that the court below erred in: (1) refusing to allow his sister to remain in the courtroom for the testimony of Sandifer’s two victims; and (2) allowing the State to introduce similar transaction evidence, even though its notice regarding those similar transactions failed to specify the exact purpose for which that evidence would be introduced. We find no error and affirm.

1. Viewed in the light most favorable to the verdict, the record shows that Sandifer repeatedly molested two young boys over an approximately two-year period. The boys were between the ages of six and ten when the abuse occurred, and they were aged nine and eleven at the time of Sandifer’s trial. At the request of the State and pursuant to OCGA § 17-8-54, the trial court cleared the courtroom of spectators, other than the immediate family members of each of the victims, during the victims’ testimony. Among the spectators required to leave was Sandifer’s sister, with whom he resided. When the judge asked defense counsel if he had any objection to clearing the courtroom, Sandifer’s lawyer responded: “No, your honor. My client brings a good point up. The other people that are being excluded [from the courtroom] are his family.” The judge responded: “Yeah. I know that, but that doesn’t change the fact [that they need to leave].” Sandifer now contends that the trial court’s refusal to allow his sister to remain in the courtroom during the victims’ testimony violated both his constitutional right to a public trial and OCGA § 17-8-54. We find no reversible error.

As an initial matter, it appears that Sandifer has waived this claim of error. Specifically, when asked by the court if Sandifer objected to removing all spectators other than the victims’ families from the courtroom defense counsel responded, “No.” Although the lawyer went on to point out that Sandifer’s family members were among those being excluded, he did not state any objection based on either Sandifer’s constitutional right to a public trial or the relevant statute. Sandifer therefore waived his right to argue these grounds as reversible error. Craven v. State, 292 Ga. App. 592, 593-594 (1) (b) (664 SE2d 921) (2008) (in child molestation case, defendant waived his claim that court below violated his right to a public trial by excluding his family from court during the testimony of the victim, where he failed to raise that claim until after the victim had testified); Hunt v. State, 268 Ga. App. 568, 571 (1) (602 SE2d 312) (2004) (defendant in child molestation case waived his claim that trial court erred in removing his family from courtroom during victim’s testimony, where he failed to object at trial).

Moreover, even assuming that Sandifer did preserve this objection, the trial court’s decision to remove Sandifer’s sister from the courtroom does not constitute reversible error. While the exclusion of Sandifer’s sister violated OCGA § 17-8-54, Sandifer has failed to show how this error harmed him. Although Sandifer argues that such prejudice resulted from the creation of “an environment more favorable to the child witnesses,” he does not argue that this allegedly more favorable environment somehow bolstered the victims’ credibility. Furthermore, his assertion of prejudice ignores the fact that the victims’ trial testimony was not. the only evidence supporting his conviction. Other evidence presented against Sandifer included video tapes of the forensic interviews of the victims, and the testimony of the forensic interviewers, the investigating officer, and the nurse practitioner who conducted the forensic exams of the victims. The jury also heard the testimony of the victims’ mothers, to whom each boy made his initial outcry, as well as testimony concerning similar transactions. In light of this evidence, we cannot say that Sandifer was prejudiced by the fact that the trial court may have made it easier for the young victims to testify by removing all spectators, other than their immediate family members, from the courtroom. See Driggers v. State, 295 Ga.App. 711, 716-717 (3) (673 SE2d 95) (2009); Craven, 292 Ga. App. at 595 (1) (b).

2. Prior to trial, the State filed a notice pursuant to Uniform Superior Court Rule 31.3 announcing its intent to introduce evidence of similar transactions. The notice listed the similar transactions as “child molestation” that occurred during the years 1991-1993 at the address where Sandifer had lived with a former girlfriend. The witnesses listed with respect to these similar transactions included three daughters of the former girlfriend who, between 1991 and 1993, were all under the age of twelve. The trial court held a hearing at which it received testimony concerning Sandifer’s molestation of these three girls. Following that testimony, the State argued that the prior incidents of child molestation should be admitted to show Sandifer’s bent of mind and course of conduct. The trial court agreed and admitted the similar transaction testimony for those limited purposes.

On appeal, Sandifer argues that the trial court erred in admitting the similar transaction testimony, because the State’s Rule 31.3 notice failed to specify the purpose for which the State sought to use that evidence. Despite Sandifer’s arguments to the contrary, however, the State is not required, in its notice of intent, to inform the defendant of the purpose for which it seeks to introduce similar transaction evidence. Although our cases have noted that the better practice is for the State to include such information (see Rodriguez v. State, 211 Ga.App. 256, 258 (4) (a) (439 SE2d 510) (1993)), neither the plain language of USCR 31.3 (B) nor the decisions of this Court requires the inclusion of that information. See Roberts v. State, 241 Ga.App. 259, 260 (1) (526 SE2d 597) (1999); Hightower v. State, 210 Ga. App. 386, 387 (2) (436 SE2d 28) (1993).

Decided November 19, 2012.

William M. Ermine, for appellant.

Gregory W. Winters, District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a).

       OCGA § 16-6-5 (a).

        Drammeh v. State, 285 Ga.App. 545, 546 (1) (646 SE2d 742) (2007).

       That statute provides:
      In the trial of any criminal case, when any person under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters.

       That rule provides, in relevant part, that the State’s notice of its intent to present evidence of similar transactions “shall he in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice.” USCR 31.3 (B).


author: Dillard, Judge.

text:
    A12A0824.
    DeKALB COUNTY SCHOOL DISTRICT et al. v. GOLD et al.
    (734 SE2d 466)
   Dillard, Judge.

Elaine Ann Gold and Amy Jacobson Shaye are teachers for the DeKalb County School District. In 2009, the School District suspended its contributions to a tax-sheltered annuity plan, which Gold and Shaye allege was an employee-benefit plan established by the School District as an alternative to the federal Social Security system. Gold and Shaye, on behalf of themselves individually and a class of similarly situated teachers (collectively, “Gold”), sued the School District, the DeKalb County Board of Education, and the members of the Board and the School District superintendent in their official capacities (collectively, the “District”), asserting claims for declaratory judgment, money had and received, unjust enrichment, promissory estoppel, conversion, breach of contract, and breach of the implied covenant of good faith and fair dealing. The District moved to dismiss Gold’s complaint for failure to state a claim, arguing that the doctrine of sovereign immunity barred each of Gold’s claims. The trial court denied the motion, and the District appeals. We agree with the District that sovereign immunity bars Gold’s claims for declaratory judgment, money had and received, unjust enrichment, promissory estoppel, and conversion, and we conclude that the trial court erred in failing to dismiss these claims. We find that the trial court did not, however, err in denying the District’s motion to dismiss Gold’s claims for breach of contract and the associated implied covenant of good faith and fair dealing. Accordingly, we affirm in part and reverse in part.

Accepting Gold’s well-pleaded material allegations as true, the complaint shows that on June 27,1979, the Board voted to leave the federal Social Security system to pursue an alternative employee-benefits plan. Before voting to leave Social Security, the Board passed a resolution (the “1979 Resolution”) which stated, in relevant part, that “in the event of withdrawal from Social Security, funds currently budgeted for Social Security shall be used for the support of the alternative plan,” and that “before the budget is adopted each year, a determination shall be made as to the amount that would have been required for continued participation in Social Security during the current year.” The Board further resolved that the amount required “to continue funding Social Security shall be the amount budgeted to fund the alternative to Social Security, and that [the Board] will give a two year notice to the employees before reducing or terminating these funding provisions.”

In 1983, the Board established a “Tax Sheltered Annuity Plan (Alternative to Social Security)” (the “TSAPlan”), which according to the complaint, demonstrated the Board’s intent to provide contributions approximating “that which the Board would be paying pursuant to the Social Security Act of 1934.” The TSA Plan provided that it “may be amended or terminated by the Employer at any time,” although “[n]o amendment or termination of the [TSA Plan] shall reduce or impair the rights of any Participant or his Beneficiary which have already accrued.” Following the establishment of the TSA Plan, it remained the Board’s stated policy that it “shall give a two-year notice to employees before reducing the funding provisions of the Alternative Plan to Social Security.”

At an emergency meeting on July 27, 2009, the Board suspended the School District’s payment of contrihutions to the accounts of employee-participants in the TSA Plan, effective for payroll periods commencing after July 31,2009. On May 10,2010, after it came to the Board’s attention that it did not provide two year’s notice before reducing the funding of the TSA Plan, the Board voted to waive the policy requiring the notice. On June 14, 2010, the Board voted to “eliminate provisions [of the Board’s bylaws and policies] that are not part of the TSA Plan itself.” As of the filing of the amended complaint in June 2011, the contributions to the TSA Plan had not been restored.

The District filed a motion to dismiss Gold’s amended complaint on the primary ground that Gold’s claims were barred by sovereign immunity. The trial court denied that motion, and the District appeals.

1. Gold’s complaint includes claims for declaratory relief, promissory estoppel, conversion, unjust enrichment, and money had and received. The District contends that the trial court erred in failing to dismiss these claims as barred by the doctrine of sovereign immunity. We agree.

In reviewing these arguments, we recognize that a motion to dismiss for failure to state a claim pursuant to OCGA § 9-11-12 (b) (6), as invoked by the District, should not be sustained unless “the allegations of the complaint reveal, with certainty, that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the complaint.” However, the District also argued in its motion that Gold’s claims were barred by sovereign immunity and the motion, to that extent, was ‘based upon the trial court’s lack of subject matter jurisdiction, rather than the merits of the plaintiff’s claim.” Accordingly, Gold—the party seeking to benefit from the waiver of sovereign immunity—had the burden of proof to establish waiver. Our review of the trial court’s denial of the District’s motion to dismiss on sovereign-immunity grounds is de novo.

The Board, the School District, the Board’s members, and the superintendent enjoy sovereign immunity. Indeed, it is well established that the sovereign cannot be sued in its own courts, or in any other court, without its consent and permission; but it may, if it thinks proper, “waive this privilege, and permit itself to be made a defendant in a suit by individuals ... .” The permission of the State is voluntary, and it follows, then, that the sovereign is at liberty to “prescribe the terms and conditions on which it consents to be sued... .” In this respect, our Constitution provides that, except as specifically provided therein, “[t]he sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” With these guiding principles in mind, we now turn to the District’s enumerations of error.

(a) We first consider whether sovereign immunity bars Gold’s declaratory-judgment claim. Gold seeks a determination of the District’s obligation to fund “the Alternative Plan to Social Security, known as the TSAPlan, for the years 2009, 2010, 2011, and 2012.” She also seeks a declaration that the “freeze” on the District’s contribution to the TSAPlan unconstitutionally deprived employees of benefits to which they had a vested right, and that the repeal of the two-year notice requirement unconstitutionally impaired an enforceable contract right owed by the District to Gold and other members of the class.

Our Constitution and statutes do not provide for a blanket waiver of sovereign immunity in declaratory-judgment actions; and this Court has found that “sovereign immunity is applicable to protect state agencies in declaratory judgment actions ... .” On the other hand, as our Supreme Court recently noted in Southern LNG, Inc. v. MacGinnitie, declaratory actions against the State have nevertheless been recognized in certain contexts. Accordingly, we must decide whether, in the context of the case sub judice, the State has waived its sovereign immunity to Gold’s declaratory-judgment claim.

The State’s sovereign immunity has been specifically waived by the General Assembly pursuant to OCGA § 50-13-10, which is part of the Administrative Procedure Act. Therein, the State has specifically consented “to be sued and has explicitly waived its sovereign immunity as to declaratory judgment actions in which the rules of its agencies are challenged.” Gold does not contend, however, that the State’s consent to be sued under OCGA§ 50-13-10 applies to the declaratory-judgment action at issue here, which Gold brought under the Declaratory Judgments Act.

Gold contends, rather, that her declaratory-judgment claim is sustainable because she sought declaratory relief “correlative to an action arising from a breach of a written contract.” In support of her position, Gold relies upon this Court’s decision in Upper Oconee Basin Water Authority v. Jackson County. In that case, Jackson County sued the Upper Oconee Water Basin Authority, a State subdivision, for declaratory judgment, breach of contract, specific performance, and injunctive relief. The Authority moved to dismiss the action on sovereign-immunity grounds and then appealed the trial court’s denial of its motion. At issue in Upper Oconee was whether the Authority breached an intergovernmental water-supply contract, and our Constitution has specifically waived the State’s sovereign immunity for “any action ex contractu for the breach of any written contract.”

Indeed, we noted in Upper Oconee that “[i]t is clear that, nomenclature aside, the essence of the County’s claim is for breach of the Agreement,” and “the fact that the County has expressly asked for the Authority’s obligations under the Agreement to be determined and enforced does not change the essential nature of the claim here.” Accordingly, we concluded that the trial court did not err in refusing to dismiss the county’s lawsuit on the basis of sovereign immunity.

In this case, the differences between Gold’s claim for breach of contract and her claim for declaratory judgment are more than a matter of mere nomenclature. Unlike in Upper Oconee, Gold seeks to recover damages for the breach of contract. Her declaratory-judgment action also seeks, inter alia, a declaration of the District’s budgetary obligations. As Gold explained below, she “seeks clarity to the budgeting situation moving forward.... In other words, there is more at stake than mere liability for a past debt.” It is apparent on the face of the complaint that Gold’s declaratory-judgment claim seeks relief that goes far beyond an “action ex contractu for the breach of any written contract.” Accordingly, Gold cannot rely on Upper Oconee to show that the State has waived its sovereign immunity to her declaratory-judgment claim.

In an alternative argument, Gold maintains that sovereign immunity does not bar declaratory relief in suits challenging the constitutionality of legislative acts. Gold refers to numerous cases in which declaratory judgment was sought in conjunction with a request for injunctive relief. In IBM Corp. v. Evans, our Supreme Court recognized, in light of a long line of authority, that a suit for injunctive relief to restrain an illegal act is an exception to sovereign immunity. Here, in contrast, Gold is not seeking a declaratory judgment in conjunction with injunctive relief. And while Gold invokes constitutional principles, she does not present a facial challenge to the constitutionality of the Board’s legislative acts. Rather, she claims that the District “operated” unconstitutionally in freezing the contributions to the TSAPlan and that the repeal of the two-year-notice provision unconstitutionally impaired the class members’ contractual rights. An allegation that the State has violated a plaintiff’s constitutional rights is not, in itself, sufficient to avoid the State’s sovereign immunity.

Finally, we note that a “primary purpose of the doctrine of sovereign immunity is the protection of the public purse.” Gold and the class members seek damages in the underlying action as well as a declaration as to the District’s budgetary obligations, thus claiming monetary compensation for past actions and attempting to bind the District’s fiscal discretion going forward. In light of the nature of the relief sought, and given that Gold cannot point to a specific waiver of the State’s sovereign immunity as to her declaratory-judgment action, we conclude that, in this specific context, Gold has not shown that she can maintain an action for declaratory relief against the District. It follows, then, that the trial court erred in failing to dismiss Gold’s declaratory-judgment claim.

(b) The District further argues that because Gold does not identify a specific waiver of sovereign immunity for her claims of money had and received, unjust enrichment, promissory estoppel, and conversion, these claims must also be dismissed. We agree.

The State, as this Court has previously ruled, has not waived its sovereign immunity in actions for money had and received and unjust enrichment. More generally, we have also held that “[t]he General Assembly has enacted no statute waiving sovereign immunity for equity claims against the state.” Promissory estoppel is an equitable doctrine, and Gold does not point to any act of the General Assembly waiving the State’s liability for her promissory-estoppel claim, which in this case seeks “damages that have resulted from ... broken promises . . . .”

Gold contends that she has nevertheless set forth a viable claim of equitable relief because our Supreme Court held in Quillian v. Employees’ Retirement System of Georgia that the Employees’ Retirement System was estopped from denying benefits as they were established prior to Judge Quillian’s retirement. The result in Quillian is qualified as “[u]nder the unique circumstances of this case,” and the decision makes no mention of sovereign immunity. As a rule, the decisions of our Supreme Court do not “stand for points that were neither raised by the parties nor actually decided in the resulting opinion . . . .” Further, in Quillian the Employment Retirement System was estopped from denying benefits, but the Court does not characterize the underlying action as one for estoppel. Thus, we conclude that Gold cannot rely on Quillian to establish that the State has waived its sovereign immunity for actions based on money had and received, unjust enrichment, and promissory estoppel.

As to Gold’s conversion claim, she alleges in her complaint that this is an action in tort. Pursuant to the Georgia Tort Claims Act (“GTCA”), the General Assembly has provided for a limited waiver of the State’s immunity for tort claims. Gold does not contend on appeal, however, that she has any basis for showing that sovereign immunity for her conversion claim has been waived by the GTCA. And if the conversion claim can be characterized as equitable, it fails because Gold cannot point to a specific waiver of the State’s sovereign immunity in this respect.

In light of the foregoing, we find that the trial court erred in failing to grant the District’s motion to dismiss Gold’s claims for money had and received, unjust enrichment, promissory estoppel, and conversion.

2. Gold’s complaint also includes an action for breach of contract and for the associated implied covenant of good faith and fair dealing. As we have previously noted, our Constitution waives the State’s sovereign immunity for “any action ex contractu for the breach of any written contract.” Gold alleges that the School District and the Board breached their contractual obligations to the class “by deleting the two-year notice requirement that protected the Class’s expectation of enjoyment of uninterrupted contributions to their retirement benefits in the TSAPlan.” In addition, the complaint alleges that the School District and the Board breached the implied covenant of good faith and fair dealing inherent to the alleged contract.

The District contends that the trial court erred in failing to dismiss Gold’s contract claim because Gold fails to point to any written contract on which the claim rests; the Board’s policies and resolutions do not have the full force and effect of law; and the retirement plan in this case was established by the TSAPlan which, under the terms alleged by the complaint, may be amended or terminated by the Board at any time. Gold responds that the 1979 Resolution and the Board’s published policies became part of the class member’s contract of employment when class members performed services while the 1979 Resolution and policies were in effect.

It is well established that

a statute or ordinance establishing a retirement plan for government employees becomes a part of an employee’s contract of employment if the employee contributes at any time any amount toward the benefits he is to receive, and if the employee performs services while the law is in effect —

Thus, “[t]he payment of retirement benefits in compliance with our statutes is not a gratuity, but is an incidence of employment.” Further,

the ordinance or statute becomes part of the contract of employment and is a part of the compensation for the services rendered so that an attempt to amend the statute or ordinance and reduce, or eliminate, the retirement benefits the employee is to receive violates the impairment clause of the state constitution.

Nevertheless, when the statute establishing the benefits plan provides that it is subject to change, “there [is] no contract that the plan of... benefits should never be changed.”

We applied these principles to a retirement plan established by a school board in Murray County School District v. Adams. As in this case, the Murray County School System did not participate in the Social Security system. Given employee concerns, the Murray County Board of Education sought to establish a package of fringe benefits for its employees and, in furtherance of this purpose, approved a benefits plan presented by a program administrator. Thereafter, employees of the Murray County School System brought a class action against the Murray County School District and the Murray County Board of Education, challenging their decision to terminate the employer matching portion of the benefit plan. We concluded that the benefit plan became part of the employees’ employment contract but that, because the document setting forth the plan terms provided that the employer had the full authority to administer the plan and to amend or terminate the plan at any time, the Murray County School Board had the right to modify the plan by terminating the employer’s matching contributions.

In characterizing the Murray County School Board’s action in approving the employee-benefit package, we assumed, but did not decide, that it was a legislative action. The District contends that, therefore, no court has decided to treat the rules or policies of a school board as equivalent to a statute or ordinance establishing a retirement plan. However, a board of education is “a governing authority for the political subdivision which makes up the school district,” and as such, “it has the capacity to act as a legislative body, an executive body, and a judicial body.” The General Assembly has also provided that “[t]he county school superintendent and county board of education shall make rules to govern the county schools of their county.” And while the Board’s legislative capacity is necessarily limited, the District does not point to any State statute or any State Board of Education rule, regulation, or policy which would expressly or implicitly restrict the Board’s capacity to establish a retirement-benefits plan for School District employees. Accordingly, we conclude that, consistent with statutes and ordinances establishing retirement benefits for other government employees, the legislative acts of the Board establishing a retirement plan for the School District employees may become part of the employees’ contract of employment.

The District also argues that if the Board’s retirement-benefits plan could be part of the Class members’ contract of employment, the complaint shows that the TSAPlan provides that it may be amended or terminated at any time, and it follows that, as in Adams, the challenged change to the benefit plan was not a breach of the employment contract.

But here, the complaint shows that the Board resolved in 1979 to give its employees two-years’ notice before reducing or terminating the funding provision to the alternate plan for Social Security, and the TSA Plan is alleged to be designated the alternative to Social Security. If there are apparent inconsistencies between the specific-notice requirement of the 1979 Resolution, stated Board policies, and the amendment provision of the TSAPlan, a court is required under the rules of contract interpretation to attempt to give meaning to all provisions of the contract and look to “the whole contract ... in arriving at the construction of any part.” And in the case sub judice, we cannot say, for purposes of the motion to dismiss, that the specific-notice provisions of the 1979 Resolution would, upon consideration of the entire contract of employment, yield to the amendment provisions of the TSA Plan. Accordingly, we find that Gold and the members of the class could possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of relief for breach of a written contract. It follows, then, that the trial court did not err in failing to dismiss Gold’s claims for breach of contract and for breach of the covenant of good faith and fair dealing implied therein.

Decided November 20, 2012

Sutherland, Asbill & Brennan, Allegra J. Lawrence, Laurance J. Warco, Lee A. Peifer, for appellants.

Roy E. Barnes, John F. Salter, Jr., Charles C. Bailey, for appellees.

In sum, we find that the trial court erred in denying the District’s motion to dismiss Gold’s claims for declaratory judgment, money had and received, unjust enrichment, promissory estoppel, and conversion. However, we conclude that the trial court did not err in denying the District’s motion to dismiss Gold’s claims for breach of contract and the implied covenant of good faith and fair dealing.

Judgment affirmed in part and reversed in part.

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

        See Love v. Morehouse College, Inc., 287 Ga.App. 743, 743-44 (652 SE2d 624) (2007) (In reviewing a trial court’s order dismissing a plaintiff’s complaint, “we view all of the plaintiff’s well-pleaded material allegations as true, and view all denials by the defendant as false, noting that we are under no obligation to adopt a party’s legal conclusions based on these facts.”).

       After voting to leave Social Security, the Board initially contracted with Variable Annuity Life Insurance Company to make payments to be applied such that the School District’s employees would “at all times have a 100% vested and non forfeitable interest in accumulated amounts attributable to Employer contributions.”

       The District has stated that, in light of federal regulations governing alternate retirement systems for state and local employees, contrihutions to the TSAPlan were not suspended for certain School District employees. That not all contributions were suspended is consistent with Gold’s amended Class designation, which includes only those employees for whom the School District suspended TSAPlan contributions. We note, however, that for purposes of this appeal neither party relies on federal law or regulations. In particular, Gold has not suggested that federal law or regulations precluded the Board from suspending School District contributions to the TSAPlan for the account of the class members.

       Although not final, the trial court’s order denying the District’s motion to dismiss is directly appealable under the collateral-order doctrine. See Bd. of Regents of the University Sys. of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).

        LaSonde v. Chase Mortgage Co., 259 Ga. App. 772, 774 (1) (577 SE2d 822) (2003).

        Bonner v. Peterson, 301 Ga. App. 443, 443 (687 SE2d 676) (2009); see also DeFloria v. Walker, 317 Ga.App. 578 (732 SE2d 121) (2012).

        See Bonner, 301 Ga.App. at 443. If a trial court rules on factual issues necessary to decide its jurisdiction, we review those factual determinations on appeal under the any-evidence test. Id. Here, the trial court did not make any factual findings regarding its jurisdiction over this matter.

        See Bd. of Pub. Safety v. Jordan, 252 Ga. App. 577, 583 (1) (556 SE2d 837) (2001).

       The Board’s members and the superintendent were sued in their official capacities.

        See Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (noting that suits against public employees in their official capacities are suits against the State and involve sovereign immunity); Teston v. Collins, 217 Ga.App. 829, 831 (2) (459 SE2d 452) (1995) (holding that extension of sovereign immunity to the State and all of its departments and agencies includes county-wide school districts); Thigpen v. McDuffie County Bd. of Educ., 255 Ga. 59 (335 SE2d 112) (1985) (holding that a board of education is entitled to sovereign immunity); Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878) (1980) (finding that a suit against school officials in their official capacities is a suit against the State).

        See DeFloria, 317 Ga. App. at 580, n. 7.

        State Bd. of Educ. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993) (punctuation omitted).

        Id. (punctuation omitted).

       Ga. Const., Art. I, Sec. II, Par. IX (e).

       The amended complaint was filed on June 16, 2011.

        Live Oak Consulting, Inc. v. Dep’t of Cmty. Health, 281 Ga.App. 791, 796 (1) (637 SE2d 455) (2006).

       290 Ga. 204 (719 SE2d 473) (2011).

        See id. at 205, n. 1. See also OCGA § 50-13-10; IBM Corp. v. Evans, 265 Ga. 215, 216 (1) (453 SE2d 706) (1995) (finding that sovereign immunity did not protect Department of Administrative Services from injunctive relief); Drury, 263 Ga. at 432 (1) (finding that declaratory judgment is authorized as to validity of agency rules); Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 (152 SE2d 768) (1966) (involving declaratory-judgment action by property owner against Revenue Commissioner as to ad valorem tax return requirements). In Southern LNG, the Supreme Court “declinefd] to address the question whether a declaratory action against the State to determine one’s rights with respect to the applicability of a statute is barred by sovereign immunity.” 290 Ga. at 206.

       OCGA § 50-13-1 et seq.

        Live Oak Consulting, 281 Ga. App. at 796 (1).

       OCGA § 9-4-1 et seq.; see Lansford v. Cook, 252 Ga. 414, 415-416 (314 SE2d 103) (1984) (local board of education is not included within any of the definitions of “agency” contained in the Administrative Procedure Act and is outside its scope); Drury, 263 Ga. at 432-433 (1) (finding that, pursuant to OCGA §50-13-10, the State has consented to be sued as to declaratory-judgment actions when the rules and regulations of its departments and agencies are challenged, but that “[t]he [Sjtate has not consented to be sued for damages based upon the alleged invalidity or unconstitutionality of the rules and regulations promulgated and implemented by its departments and agencies” (punctuation omitted)).

       305 Ga.App. 409 (699 SE2d 605) (2010).

       Id.

       Id.

       Id. at 410-411.

       Ga. Const., Art. I, Seo. II, Par. IX (c). We consider the trial court’s ruling on the District’s motion to dismiss Gold’s claim for breach of contract in Division 2, infra.

        Upper Oconee, 305 Ga. App. at 412 (1). The County’s breach-of-contract claim alleged that “the Authority breached the Agreement by failing to recalculate the Established Yield,” id,., and the county’s declaratory-judgment claim sought “[a] declaration that the current Established Yield does not conform to the definition set forth in the Agreement and a determination requiring the Authority to recalculate the Established Yield.” Id. at 411.

       Id. at 413 (1).

       Id.

        Compare id. at 413 (1).

       Ga. Const., Art. I, Sec. II, Par. IX (c).

        See Cobb County v. Ga. Transmission Corp., 276 Ga. 367, 367 (1) (578 SE2d 852) (2003) (considering whether petition for declaratory judgment and injunctive relief asserting county ordinance was unconstitutional); DeKalb County v. Townsend Assoc., 243 Ga. 80, 82 (4) (b) (252 SE2d 498) (1979) (action against county for declaratory judgment, injunction, and mandamus); Chilivis v. Nat. Distrib. Co., 239 Ga. 651, 654 (1) (238 SE2d 431) (1977) (finding action for declaratory judgment and injunction not barred by the doctrine of sovereign immunity).

       265 Ga. 215 (453 SE2d 706) (1995).

        Id. at 216 (1). Mandamus actions also do not fall within the rule that the State may not be sued without its consent. See Southern LNG, Inc., 290 Ga. at 205.

        See Higdon v. City of Senoia, 273 Ga. 83, 85 (1) (538 SE2d 39) (2000) (finding that “[a]n action for declaratory judgment is an available remedy to test the constitutionality of a statute in a case where an actual controversy exists with respect thereto” (punctuation omitted)); McDaniel v. Thomas, 248 Ga. 632, 633 (I) (285 SE2d 156) (1981) (reviewing declaratory-judgment claim that the State’s system of financing public education violated equal-protection provisions of the State constitution, noting that “[¡judicial review of legislative enactments is central to our system of constitutional government and deeply rooted in our history”).

        See Miller v. Dep’t of Public Safety, 221 Ga.App. 280, 281 (470 SE2d 773) (1996) (claims for violation of state constitutional rights were based on allegations that the State Patrol officer committed an assault and battery, and there was no waiver of sovereign immunity under the Tort Claims Act).

        IBM Corp., 265 Ga. at 218 (Hunt, C. J., concurring).

        See Drury, 263 Ga. at 432-33 (1). In light of our conclusion, we need not address the District’s argument that Gold’s claim for declaratory relief also fails for the independent reason that an action for declaratory judgment does not lie where a simple action for breach of contract provides full and complete relief.

        Watts v. City of Dillard, 294 Ga. App. 861, 864 (1) (670 SE2d 442) (2008) (holding that action against city for money had and received barred by sovereign immunity); see also Dollar v. Olmstead, 232 Ga.App. 520, 522 (2) (502 SE2d 472) (1998).

        Ga. Dep’t of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683, 687 (2) (722 SE2d 403) (2012) (finding that the General Assembly has not enacted a statute waiving equitable claims against the State, and claim of unjust enrichment was barred by sovereign immunity); Dollar, 232 Ga. App. at 522 (2) (holding that claim against commissioner of Georgia Department of Human Resources for unjust enrichment barred by sovereign immunity). Further, an implied contract “will not support a waiver of sovereign immunity under the provisions of the Georgia Constitution.” Merk v. DeKalb County, 226 Ga. App. 191, 193 (1) (486 SE2d 66) (1997).

        Dollar, 232 Ga. App. at 522 (2); accord Kyle v. Ga. Lottery Corp., 304 Ga.App. 635, 636 (698 SE2d 12) (2010) (physical precedent only).

        See Tackett v. Ga. Dep’t of Corr., 304 Ga.App. 310, 314 (3) (696 SE2d 359) (2010); D. N. Garner Co. v. Ga. Palm Beach Aluminum Window Corp., 233 Ga.App. 252, 256 (2) (504 SE2d 70) (1998) (referencing “Georgia’s equity doctrine of promissory estoppel”).

        Compare Dukes v. Bd. of Trustees for the Police Officers Pension Fund, 280 Ga. 550 (629 SE2d 240) (2006) (in petition for mandamus to compel the hoard to reinstate its initial decision as to plaintiff’s pension, Court considered whether board was estopped by its previous decision).

       259 Ga. 253 (379 SE2d 515) (1989).

        Id. at 255 (5).

       Id.

        Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007).

       According to our Supreme Court, the widow of Judge Quillian “protests the recalculation of Judge Quillian’s pension hy the Employees’ Retirement System after his retirement.” Quillian, 259 Ga. at 253. The Court also noted that “[i]n reducing the pension, the Employees’ Retirement System pleads a prior miscalculation; Mrs. Quillian, however, insists that the System must be estopped.” Id. at 254 (3). Generally, "estoppel is not a cause of action.” Marshall v. King & Morgenstern, 272 Ga.App. 515, 520 (2) (613 SE2d 7) (2005) (punctuation omitted).

        See OCGA§ 51-10-1.

        See Romano v. Ga. Dep’t of Corr., 303 Ga.App. 347, 349 (1) (a) (693 SE2d 521) (2010) (finding that prisoner could pursue conversion claim against the Department of Corrections in light of the Georgia Tort Claims Act).

       For purposes of the GTCA, “State” is defined as “the State of Georgia and any of its offices, agencies, authorities, departments, commissions, hoards, divisions, instrumentalities, and institutions, but does not include counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities.” OCGA § 50-21-22 (5) (emphasis supplied). See also Chisolm v. Tippens, 289 Ga.App. 757, 759 (2) (a) (658 SE2d 147) (2008) (holding that trial court properly dismissed tort claims against the school district).

        See Dollar, 232 Ga. App. at 522 (2).

       Ga. Const., Art. I, Sec. II, Par. IX (c).

        Withers v. Register, 246 Ga. 158, 159 (1) (269 SE2d 431) (1980); see Plymel v. Teachers Retirement Sys., 281 Ga. 409, 412 (4) (637 SE2d 379) (2006). See also Malcom v. Newton County, 244 Ga.App. 464, 467-468 (535 SE2d 824) (2000) (finding that the fact that appellant made no contribution to the county-funded plan did not render the pension a gratuity which the county could terminate at will; the performance of services by appellant was consideration giving him a vested right in receiving benefits).

        Arneson v. Bd. of Trustees of Employees’Retirement Sys. of Ga., 257 Ga. 579, 582 (4) (d) (361 SE2d 805) (1987).

        Murray County Sch. Dist. v. Adams, 218 Ga.App. 220, 222 (1) (461 SE2d 228) (1995) (punctuation omitted).

        Pritchard v. Bd. of Comm’r of Peace Officers Annuity & Benefit Fund of Ga., 211 Ga. 57, 59 (84 SE2d 26) (1954); accord Pulliam v. Ga. Firemen’s Pension Fund, 262 Ga. 411, 412 (1) (419 SE2d 918) (1992).

       218 Ga.App. 220 (461 SE2d 228) (1995).

        Id. at 221.

        Id.

        Id. at 220.

        Id. at 223 (1).

        Id. at 222 (1).

        Glynn County Bd. of Educ. v. Lane, 261 Ga. 544, 545 (1) (407 SE2d 754) (1991).

       OCGA § 20-2-59.

        See generally Davis v. Griffin-Spalding Cty., Ga.,Bd. of Educ., 445 FSupp. 1048, 1053-54 (N.D. Ga. 1976) (local school board must yield to state supervision).

        See, e.g., OCGA § 20-2-242 (“The members and executive officers of local governing boards shall comply with, execute, and enforce all laws and all policies, rules, standards, and regulations adopted by the State Board of Education pursuant to this article in order to be eligible to receive state funds under this article.”).

        See, e.g., Tackett, 304 Ga. App. at 310, 312 (1) (noting that “under Georgia law, employment policies relating to additional compensation plans, such as retirement benefits or insurance plans, may amount to a binding contract”); Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga.App. 595, 596-97 (2) (417 SE2d 163) (1992) (policies as to employmentbenefits may form part of contract of employment).

       OCGA § 13-2-2 (4); see Horwitz v. Weil, 275 Ga. 467, 468 (569 SE2d 515) (2002).

       The complaint does not contain the entire employment contract. The movant in a motion to dismiss for failure to state a claim upon which relief can be granted must show “that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.” Scouten v. Amerisave Mortgage Corp., 283 Ga. 72, 73 (1) (656 SE2d 820) (2008) (punctuation omitted). The appeal in Adams, in contrast, was from a ruling on a motion for summary judgment. 218 Ga.App. at 220.

        See generally Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga.App. 441, 444 (2) (b) (483 SE2d 888) (1997) (contract must be construed in its entirety, and not merely by examining isolated clauses and provisions thereof).

        See Dept. of Transp. v. APAC-Georgia, 217 Ga. App. 103, 105-06 (2) (456 SE2d 668) (1995) (rejecting contention that claims against the State based on implied contractual duties are ex delicto, and, thus, barred by the doctrine of sovereign immunity).