text:
    A15A0155.
    GIPSON v. THE STATE.
    (772 SE2d 402)
   BARNES, Presiding Judge.

Ajury found Jay Adam Gipson guilty of aggravated assault with an offensive weapon, aggravated assault with intent to murder, aggravated battery, and battery. The trial court thereafter denied his motion for new trial. On appeal, Gipson argues that there was insufficient evidence to convict him of aggravated assault with intent to murder and that the count of the indictment for that offense was fatally defective. Gipson further argues that the trial court erred in allowing expert testimony regarding the typical characteristics of domestic abuse victims and the cyclical nature of domestic abuse; in allowing the State to cross-examine Gipson about a religious emblem he was wearing; in its charge to the jury on aggravated battery; in its recharge to the jury on the definition of “intent to kill”; and in failing to merge his convictions for aggravated assault with intent to murder and battery into his conviction for aggravated assault with an offensive weapon. Lastly, Gipson argues that his trial counsel rendered ineffective assistance in several respects. For the reasons discussed below, we affirm.

On appeal after a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the verdict. Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that Gipson and the victim were involved in a tumultuous relationship lasting over a year. During that time period, Gipson violently attacked and injured the victim several times when the two argued. On one occasion in September 2012, Gipson grabbed the legs of the chair in which the victim was sitting and pulled the legs toward him, causing the victim to fall backward and fracture one of her vertebrae. The victim went to the hospital several times for treatment for the back injury she sustained.

Subsequently, on the morning of April 9, 2013, Gipson and the victim were walking to the house of some friends when they began to argue. Gipson suggested that they take a short cut to their friends’ house by walking down a path through the woods. Although the victim was apprehensive of walking down the secluded path with Gipson, she agreed to do so. As they proceeded down the path, Gipson suddenly began beating, kicking, and pushing the victim, causing her to fall to the ground. Once the victim was on the ground, Gipson repeatedly kicked her and struck her with several tree limbs lying near the path. Gipson would strike the victim with a tree limb until it broke, and then would pick up another one and begin striking her with it. When Gipson ultimately stopped beating the victim, she was barely able to walk but managed to follow him out of the woods to their friends’ house.

When Gipson and the victim arrived at their friends’ house, one of their friends opened the front door, saw the victim’s condition, and was “shocked.” The friend later testified that the victim was severely swollen and bruised and looked like she had been “beat[en] up.” The friend took the victim to the hospital, where she was treated for the swelling and the severe bruises on her arms, legs, and back. The victim was released from the hospital later that day, but was so sore that she stayed in bed for two weeks to recover. One of the bruises left a permanent scar on her arm.

The emergency room physician who treated the victim later testified that the victim’s bruises on her arms, legs, and back were some of the worst he had ever seen in his 17 years of experience. The physician ordered an ultrasound of the victim’s bruised left arm because it was “so huge and swollen,” and he was concerned that the bruising might be compressing a deep vein and lead to a blood clot, which could become dislodged and result in a fatal pulmonary embolism. The ultrasound was negative for a blood clot, but the physician believed the victim needed follow-up treatment because of the severity of the injury. The physician also testified that in his years of practicing emergency medicine and evaluating assault victims, he had never ordered a CPK test, which measures muscle breakdown to determine if there is a risk of kidney damage, but he chose to do so in this case because of the severity of the victim’s bruising. The results of the testing showed that the victim’s CPK level was elevated, although not to the point where her kidneys were in danger. Lastly, the physician testified that the victim’s injuries were consistent with someone receiving a severe beating with a tree limb or being kicked hard.

Based on Gipson’s attack of the victim on the wooded path on April 9, 2013, Gipson was indicted on charges of aggravated assault with an offensive weapon (Count 1), battery (Count 2), and aggravated assault with intent to murder (Count 3). Gipson also was indicted for aggravated battery (Count 5) based on the September 2012 incident when he caused the victim to fall from a chair and fracture one of her vertebrae.

At the ensuing jury trial, the victim described the attacks that formed the basis for the charges in the indictment. The victim also testified to prior difficulties between her and Gipson, including an incident when Gipson beat the victim with a metal ladder and a silver chain necklace, resulting in multiple abrasions and bruises, and another incident when he bruised the victim’s ribs by kicking her. Among other witnesses, the State also called the victim’s friend who took her to the hospital after the April 9 attack on the wooded path, the emergency room physician who treated her after the attack, and the executive director of a domestic violence shelter who provided expert testimony regarding the typical characteristics of domestic abuse victims and the cycle of domestic abuse. The State also introduced photographs of the extensive bruising suffered by the victim as a result of the April 9 attack. After the State rested, Gipson elected to testify in his own defense and denied having ever physically attacked the victim.

After hearing all the evidence, the jury found Gipson guilty under Counts 1-3 and 5 of the indictment. The trial court declined to merge any of the offenses and sentenced Gipson to a total of 40 years, with the first 15 years served in confinement and the remainder on probation. Gipson filed a motion for new trial, asserting, among other things, that his trial counsel rendered ineffective assistance of counsel. After conducting an evidentiary hearing where Gipson’s trial counsel testified, the trial court denied the motion for new trial, resulting in this appeal.

1. Gipson challenges the sufficiency of the evidence only as to Count 3 of the indictment, which charged him with aggravated assault with intent to murder based on the April 9, 2013 attack of the victim on the wooded path. Gipson does not contest that there was evidence that he assaulted the victim; rather, he maintains that there was insufficient evidence for a jury to find that he acted with the intent to kill her. We are unpersuaded.

In addressing a challenge to the sufficiency of the evidence, we do not weigh the evidence, resolve conflicts in the testimony, or evaluate the credibility of the witnesses. Rollins v. State, 318 Ga. App. 311 (733 SE2d 841) (2012). Instead, we ask only whether the evidence was sufficient to prove each element of the charged crime beyond a reasonable doubt, and “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the jury’s verdict will be upheld.” (Citation omitted.) Id. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

To authorize a conviction for aggravated assault with intent to murder, the State must show that the defendant acted with the deliberate intent to kill at the time of the assault, which the jury may infer from the nature of the instrument used in making the assault, the manner of its use, and the nature of the wounds inflicted.

(Citation and punctuation omitted.) Grant v. State, 326 Ga. App. 121, 122 (1) (756 SE2d 255) (2014). See OCGA § 16-5-21 (a) (l); Tanner v. State, 86 Ga. App. 767 (1) (72 SE2d 549) (1952). Intent may be inferred from all of the circumstances surrounding the assault, Jordan v. State, 322 Ga. App. 252, 254 (2) (744 SE2d 447) (2013), and the question whether the defendant acted with the requisite intent is ordinarily for the jury to determine. Campbell v. State, 314 Ga. App. 299, 302 (724 SE2d 24) (2012).

The evidence in the present case, construed in favor of the State, showed that Gipson lured the victim down a secluded path while arguing with her, where he repeatedly kicked her and struck her with tree limbs. The victim could barely walk after the attack, had to be taken to the emergency room at the hospital, and was treated for bruising to her arms, legs, and back that was so severe that the treating physician was concerned that she was at risk of a pulmonary embolism or kidney damage. In light of these combined circumstances, we conclude that a reasonable jury was entitled to find beyond a reasonable doubt that Gipson acted with the intent to kill the victim and find him guilty of aggravated assault with intent to murder. See, e.g., Tanner, 86 Ga. App. at 767 (1), (3) (throwing “some kind of blunt instrument like a rock” at the victim, resulting in severe injury, supported inference that defendant acted with intent to kill); Thomas v. State, 75 Ga. App. 334 (43 SE2d 352) (1947) (striking victim with brass knuckles, resulting in severe injury, supported inference that defendant acted with intent to kill).

2. Gipson also argues that Count 3 of the indictment was fatally defective because it did not specify the deadly weapon used by Gipson during the attack of the victim on the wooded path. But Gipson did not raise this issue in the trial court by a timely general or special demurrer, or after trial by a timely motion in arrest of judgment. “The failure to file a general or special demurrer, or a timely motion in arrest of judgment, waives any claim that could have been raised in a general or special demurrer. Accordingly, this enumeration presents nothing for review.” (Punctuation and footnote omitted.) Walker v. State, 329 Ga. App. 369, 372-373 (2) (765 SE2d 599) (2014).

In any event, we are unpersuaded by Gipson’s challenge to the indictment. Count 3 of the indictment charged Gipson with aggravated assault with intent to murder under the former version of OCGA § 16-5-21 (a) (l), not with aggravated assault with a deadly weapon under subsection (a) (2). Aggravated assault with intent to murder requires proof that the defendant committed a simple assault in one of the two ways defined in OCGA § 16-5-20 (a) and acted with the intent to kill the victim. See Guyse v. State, 286 Ga. 574, 576 (2) (690 SE2d 406) (2010) (discussing elements of aggravated assault); Grant, 326 Ga. App. at 122 (1) (aggravated assault with intent to murder requires proof of intent to kill at the time of the assault).

Count 3 alleged that on April 9, 2013, Gipson “did unlawfully then and there make an assault upon the person of [the victim] with the intent to kill, contrary to the laws of this State, the good order, peace and dignity thereof.” The State was not required to specify the manner in which Gipson committed the simple assault upon the victim; it was sufficient for the State to allege “the aggravating aspect of the simple assault,” which was that Gipson acted with the intent to kill. Simpson v. State, 277 Ga. 356, 358 (3) (589 SE2d 90) (2003). Count 3 of the indictment was sufficient to put Gipson on notice that he could be convicted of aggravated assault if he committed a simple assault in either manner contained in the simple assault statute, so long as the State proved that he did so with the intent to kill the victim. Gipson’s claim that Count 3 was fatally defective is thus without merit.

3. Gipson argues that the trial court erred in allowing expert testimony from the executive director of the domestic violence shelter regarding the typical characteristics of domestic abuse victims and the cyclical pattern of domestic abuse. According to Gipson, the executive director was not qualified to offer an opinion as an expert on those topics and her testimony was irrelevant and impermissibly placed his character in issue.

Gipson failed to object at trial to the expert qualifications of the executive director or to any of her testimony. “Georgia has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.” (Citation and punctuation omitted.) Fraser v. State, 329 Ga. App. 1 (763 SE2d 359)

(2014) . However, because the trial in this case occurred after January 1, 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, §101. Under the new Code, we “may review the purportedly improper testimony for plain error.” (Citation and punctuation omitted.) Fraser, 329 Ga. App. at 2. See OCGA § 24-1-103 (d); Rembert v. State, 324 Ga. App. 146, 152 (2), n. 8 (749 SE2d 744) (2013). To rise to the high level of plain error, the error must be “one that is so clearly erroneous that it creates a likelihood of a grave miscarriage of justice or seriously affects the fairness, integrity, or public reputation of the judicial proceeding,” and the “appellant must show that the error caused him harm, i.e., that the error likely affected the outcome at trial.” (Footnote omitted.) Perez v. State, 331 Ga. App. 164, 167 (1) (770 SE2d 260) (2015).

There was no error, much less plain error, in this case because the trial court properly admitted the executive director’s expert testimony. As an initial matter, the trial court acted within its discretion in qualifying the executive director as an expert in matters pertaining to domestic violence.

To qualify as an expert, generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge maybe derived from experience as well as study. Formal education in the subject at hand is not a prerequisite for expert status. The trial court’s ruling on this issue is reviewed only for abuse of discretion.

(Citations and punctuation omitted.) Billings v. State, 293 Ga. 99, 104-105 (5) (745 SE2d 583) (2013). See United States v. Roach, 644 F3d 763,764 (8th Cir. 2011) (expertise canbe derivedfrom “on-the-job observations and attendance at conferences and seminars” because the federal rules of evidence do “not rank academic training over demonstrated practical experience”).

The executive director of the domestic violence shelter testified that she has been an advocate in the field of domestic violence for over 13 years. She testified that she obtained her bachelor’s degree in psychology in 1996, has specialized training in domestic violence, and receives a minimum of 15 hours of additional training and education in the field of domestic violence each year. The executive director further testified that she has given presentations across the community and worked at the state level to advocate on behalf of victims, form public policy, and train others to assist victims, and currently serves as the board chairperson for the Georgia Coalition Against Domestic Violence as well as for the Commission on Family Violence. Based on this testimony, the trial court acted well within its discretion in qualifying the executive director as an expert. See Billings, 293 Ga. at 105 (5); Miller v. State, 273 Ga. App. 761, 764 (3) (615 SE2d 843) (2005).

Nor did the trial court err in permitting the executive director to testify about the typical characteristics of domestic abuse victims and the cycle of domestic abuse. “Expert testimony is admissible to explain the behavior of a domestic violence victim who does not report abuse or leave the abuser.” (Footnote omitted.) Moorer v. State, 290 Ga. App. 216, 217 (1) (659 SE2d 422) (2008). When cross-examining the victim in this case, Gipson’s trial counsel attempted to undermine her credibility by emphasizing that despite the allegations of abuse, the victim had not left Gipson, had not tried to stop the abuse, and had lied to others about what had occurred rather than report the abuse. Under these circumstances, the executive director’s testimony did not improperly place Gipson’s character in issue and was relevant “because the reasons that a victim would not immediately leave after a violent event or report the abuse are beyond the ken of the average layperson.” Id. See Works v. State, 301 Ga. App. 108, 112 (4) (686 SE2d 863) (2009) (expert testimony regarding “the cycle of domestic violence and the behavior of domestic violence victims” was admissible to explain the victim’s contradictory statements about what had occurred); Alvarado v. State, 257 Ga. App. 746, 748 (2) (572 SE2d 18) (2002) (expert testimony regarding battered person syndrome and the cycle of violence in an abusive relationship was admissible to explain victim’s failure to report the abuse); Parrish v. State, 237 Ga. App. 274, 277 (2) (i) (514 SE2d 458) (1999) (expert testimony regarding “learned helplessness” of domestic abuse victims was admissible to explain the victim’s behavior). Accordingly, the trial court committed no error, much less plain error in admitting the executive director’s expert testimony.

4. Gipson also contends that the State improperly placed his character in issue by questioning him about a religious emblem he was wearing during cross-examination. As with the prior enumeration of error, Gipson failed to object at trial to his cross-examination by the State, and thus he must show that the trial court committed plain error by allowing the prosecutor’s questions. See OCGA § 24-1-103 (d); Fraser, 329 Ga. App. at 2.

During cross-examination, the prosecutor pointed out that Gipson was wearing a Christian cross and insinuated through a series of questions that Gipson was a hypocrite in light of his abusive conduct toward the victim. While the prosecutor’s questioning of Gipson was argumentative and improper, Gipson has failed to show that the questions, when viewed in the context of the trial as a whole, seriously affected the fairness, integrity, or public reputation of the proceedings or likely affected the outcome. Hence, Gipson has failed to show that the trial court’s error in permitting the prosecutor’s questions rose to the level of plain error. See Perez, 331 Ga. App. at 167 (1).

5. Gipson maintains that the trial court erred in its charge to the jury on aggravated battery. OCGA § 16-5-24 (a) provides: “A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” (Emphasis supplied.) Count 5 of the indictment alleged that Gipson committed aggravated battery in September 2012 “by depriving [the victim] of a member of . . . her body, by rendering a member of said [victim’s] body useless, and by seriously disfiguring... her body and a member thereof” when he caused the victim to fall backward out of the chair and fracture one of her vertebrae. (Emphasis supplied.) The trial court read the indictment to the jury and charged the jury on the full statutory definition of aggravated battery set forth in OCGA § 16-5-24 (a).

Gipson argues for the first time on appeal that the aggravated battery charge was not properly tailored to the indictment or adjusted to the evidence. Because Gipson did not object at trial to the aggravated battery charge, we review the charge only for plain error. See OCGA § 17-8-58 (b); Booker v. State, 322 Ga. App. 257, 260 (2) (744 SE2d 429) (2013).

Reversal based on plain error is authorized [only] if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

(Citation and punctuation omitted.) Booker, 322 Ga. App. at 260 (2). See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

There was no error in the trial court’s charge on aggravated battery, and certainly no plain error. “If a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.” (Citation and punctuation omitted.) Bray v. State, 330 Ga. App. 768, 772 (1) (768 SE2d 285) (2015). Thus, because the indictment alleged that Gipson committed aggravated battery by depriving the victim of a member of her body, rendering a member of her body useless, and seriously disfiguring her body and a member thereof, the State could prove that Gipson committed the offense in any of those three ways. Id. Consequently, it was proper for the trial court to charge the jury on the full statutory definition of aggravated battery as set forth in OCGA § 16-5-24 (a), which delineated the three alternative ways the offense could be committed. See Stander v. State, 226 Ga. App. 495, 496-497 (1) (486 SE2d 712) (1997). Compare Hopkins v. State, 255 Ga. App. 202, 204-206 (2) (564 SE2d 805) (2002) (indictment only alleged that defendant committed aggravated battery by seriously disfiguring the victim’s arm, but the trial court charged the jury on the full statutory definition of aggravated battery). Moreover, the trial court also charged the jury that the burden was on the State “to prove every material allegation of the indictment and every material element of the crime charged beyond a reasonable doubt.” Under these circumstances, the jury instructions were properly tailored to the indictment and the evidence, and Gipson has failed to show that the trial court committed plain error.

6. Gipson also maintains that the trial court erred in its recharge to the jury in response to the jury’s question about the definition of “intent to kill.” After beginning its deliberations, the jury sent a note to the trial court inquiring whether “intent to kill” meant “beating so bad [the victim] could die” or “premeditated intent to kill.” In response, the trial court recharged the jury using the pattern instructions for aggravated assault with intent to commit murder, criminal intent, and “no presumption of criminal intent.” See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §§ 1.41.10; 1.41.11; and 2.20.20.

Gipson contends that the trial court’s recharge to the jury was erroneous because the court did not include the definition of a deadly weapon as part of its recharge. His contention is without merit. Again, Gipson did not object to the recharge, and thus we review his claim only for plain error. Guajardo v. State, 290 Ga. 172, 175-176 (4) (718 SE2d 292) (2011). And there was no error in the trial court’s recharge, plain or otherwise. Intent to kill is an element of aggravated assault with intent to murder (as alleged in Count 3 of the indictment), see Grant, 326 Ga. App. at 122 (1), not aggravated assault with a deadly weapon (as alleged in Count 1 of the indictment). See Chapman v. State, 275 Ga. 314, 317 (3) (565 SE2d 442) (2002). Thus, the jury was asking a question that pertained only to the charge for aggravated assault with intent to murder, and the inclusion of a charge on the definition of a deadly weapon in this context would have been inapposite and potentially confusing. Accordingly, the trial court did not commit plain error by omitting a charge on the definition of a deadly weapon from its recharge to the jury on intent to kill. See generally Boynton v. State, 277 Ga. 130, 131 (2) (587 SE2d 3) (2003) (“When a jury requests additional instructions on a point of law, the trial court in its discretion can recharge in full or limit its recharge to the scope of the jury’s request.”).

7. Gipson next argues that the trial court erred in failing to merge his convictions for battery (Count 2) and aggravated assault with intent to murder (Count 3) into his conviction for aggravated assault with an offensive weapon (Count 1) for purposes of sentencing. We disagree.

“It is axiomatic that Georgia law bars conviction for a crime that arises from the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted.” (Citation and punctuation omitted.) Crowley v. State, 315 Ga. App. 755, 759 (3) (728 SE2d 282) (2012). When the same act or transaction violates two statutes, we apply the “required evidence” test adopted in Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006), to determine whether one crime is included in the other under OCGA § 16-1-6 (1). See Southwell v. State, 320 Ga. App. 763, 764 (1) (740 SE2d 725) (2013).

Under the required evidence test, neither offense is included in the other if each statutory provision requires proof of a fact which the other does not. Consequently, when each of two statutes requires proof of an additional fact which the other does not, an acquittal or conviction under one statute does not exempt the defendant from prosecution and punishment under the other, even though the charges are based on a single act.

(Citation and punctuation omitted.) Petro v. State, 327 Ga. App. 254, 259 (2) (758 SE2d 152) (2014). In applying the required evidence test, “we consider the crimes as indicted and not every possible manner of committing a particular crime.” Franks v. State, 325 Ga. App. 488, 495 (3), n. 8 (758 SE2d 604) (2013).

Here, Count 1 of the indictment alleged that on April 9, 2013, Gipson “did unlawfully then and there make an assault upon the person of [the victim], with an object which was likely to result in serious bodily injury to said [victim], by striking said [victim] with the limb and stick, contrary to the laws of this State, the good order, peace and dignity thereof.” Count 2 alleged that on April 9, 2013, Gipson “did unlawfully then and there intentionally cause visible bodily harm to [the victim], contrary to the laws of this State, the good order, peace and dignity thereof.” As previously noted, Count 3 alleged that on April 9,2013, Gipson “did unlawfully then and there make an assault upon the person of [the victim] with the intent to kill, contrary to the laws of this State, the good order, peace and dignity thereof.”

(a) We conclude that under the required evidence test, Gipson’s conviction for battery did not merge into his conviction for aggravated assault with an offensive weapon. As alleged in the indictment, battery required proof of a fact — visible physical harm to the victim — that aggravated assault with an offensive weapon did not, and aggravated assault with an offensive weapon required proof of a fact — the use of a tree limb or stick, an object that was likely to result in serious bodily injury to the victim — that battery did not. See OCGA §§ 16-5-21 (a) (2) (2011); 16-5-23.1 (a). Hence, under the required evidence test, Gipson’s convictions for battery and aggravated assault with an offensive weapon did not merge. See Kelley v. State, 248 Ga. App. 721, 723 (1) (548 SE2d 357) (2001) (aggravated assault under OCGA § 16-5-21 (a) (2) (2011) and battery under OCGA § 16-5-23.1 (a) have different required elements).

(b) We likewise conclude that under the required evidence test, Gipson’s two aggravated assault convictions did not merge. As alleged in the indictment, aggravated assault with intent to murder required proof of a fact — the intent to kill — that aggravated assault with an offensive weapon did not, and aggravated assault with an offensive weapon required proof of a fact — use of the tree limb or stick, an object that was likely to result in serious bodily injury to the victim — that aggravated assault with intent to murder did not. See OCGA § 16-5-21 (a) (1) and (a) (2) (2011). The trial court therefore did not err in sentencing Gipson on both counts of aggravated assault. See Thomas v. State, 292 Ga. 429, 434 (5) (738 SE2d 571) (2013) (aggravated assault convictions under OCGA § 16-5-21 (a) (1) and (a) (2) (2011) did not merge under the required evidence test). Compare Jeffrey v. State, 296 Ga. 713 (770 SE2d 585) (2015) (multiple convictions for aggravated assault with a deadly weapon merged for purposes of sentencing).

8. Gipson contends that his trial counsel was ineffective in several respects. To prevail on his claim of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984), Gipson “must show both that his counsel performed in a professionally deficient manner and that there is a reasonable probability that, but for such deficiency, the result of his trial would have been different.” Smith v. State, 292 Ga. 620, 621 (2) (740 SE2d 158) (2013). If Gipson fails to carry his burden of proving either prong of the Strickland test, we need not examine the other prong. Watson v. State, 289 Ga. 39, 45 (12) (709 SE2d 2) (2011). “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.” (Citation and punctuation omitted.) Id. With these principles in mind, we turn to Gipson’s specific allegations of ineffective assistance.

(a) Gipson first argues that his trial counsel was ineffective because the public defender’s office where he worked misplaced Gipson’s case file. But the case file was not misplaced until after Gipson was already convicted and sentenced. Hence, Gipson clearly cannot show that the alleged deficiency prejudiced the outcome of his trial.

(b) Gipson next argues that his trial counsel was ineffective for failing to meet with him more often before trial. However, trial counsel testified at the new trial hearing that he met with Gipson several times before trial to discuss his defense and the discovery in the case, including on the morning of trial, and “there is no magic amount of time which counsel must spend in actual conference with his client.” (Citation and punctuation omitted.) Hendricks v. State, 290 Ga. 238, 242 (4) (c) (719 SE2d 466) (2011). Gipson thus has failed to show that his trial counsel was deficient for failing to meet with him more frequently. Furthermore, “[Gipson] does not describe for us how additional pre-trial communications would have changed the outcome of his trial. Therefore, he has failed to establish that this alleged instance of ineffectiveness prejudiced his defense.” (Citation, punctuation and footnote omitted.) Baldivia v. State, 267 Ga. App. 266, 274 (5) (d) (599 SE2d 188) (2004).

(c) Gipson also argues that his trial counsel was ineffective for failing “to prepare, investigate or subpoena witnesses” on his behalf, but he failed to proffer the testimony of any alleged potential witnesses at the new trial hearing. “Because [Gipson] failed to make such a proffer, it is impossible for him to show there is a reasonable probability the results of the proceeding would have been different, and thus impossible for him to succeed on his ineffective assistance claim.” (Citations and punctuation omitted.) Alvarez v. State, 309 Ga. App. 462, 466 (3) (710 SE2d 583) (2011).

(d) Gipson further argues that his trial counsel was ineffective for failing to object to the prosecutor’s questioning of witnesses “during the course of the trial.” Gipson does not point to any specific questions asked by the prosecutor to which his trial counsel should have objected, and he does not support his argument with any citations to the record or legal authority. Consequently, Gipson’s unsupported ineffective assistance claim is deemed abandoned. See Court of Appeals Rule 25 (c) (2); Patterson v. State, 327 Ga. App. 695, 698 (3) (761 SE2d 101) (2014).

(e) Gipson argues that his trial counsel was ineffective for failing to object to the expert testimony of the executive director of the domestic violence shelter. However, as explained supra in Division 3, the trial court acted within its discretion in qualifying the executive director as an expert and admitting her testimony regarding the typical characteristics of domestic abuse victims and the cycle of domestic abuse. Thus, any objection by trial counsel to the expert’s testimony would have been without merit, and “failure to make a meritless objection cannot be evidence of ineffective assistance[.]” (Punctuation and footnote omitted.) Brown v. State, 307 Ga. App. 797, 807 (5) (e) (706 SE2d 170) (2011).

(f) Additionally, Gipson argues that his trial counsel was ineffective for failing to move for a mistrial when the trial court temporarily removed Gipson from the courtroom after an outburst. We disagree.

In the case of disruptive behavior in the courtroom, a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concepts of courts and judicial proceedings.

(Footnote omitted.) Lovelace v. State, 262 Ga. App. 690, 693 (4) (586 SE2d 386) (2003).

During the cross-examination of a State’s witness, Gipson became upset when his trial counsel would not ask certain questions that he had written down for his counsel. The trial court instructed Gipson to wait until the jury left the courtroom before voicing his concern about his trial counsel and warned him, “[D]o not again speak out and interrupt what’s going on before the jury.” After the jury exited from the courtroom, Gipson’s trial counsel agreed to ask the questions written down by Gipson. The jury returned to the courtroom, and trial counsel began cross-examining the witness using the questions written by Gipson, but the trial court sustained the State’s objections to the questions, which were argumentative and improper. Gipson then became upset and interrupted the witness’s cross-examination, leading the trial court to warn him, “I am going to lock you up outside the presence of the courtroom if you continue that way.” Gipson, however, made another outburst, leading the trial court to remove him from the courtroom for a few minutes before allowing him to return. The trial court instructed the jury “not to hold any of that against Mr. Gipson.”

The trial court did not err by briefly removing Gipson from the courtroom as a result of his outburst after he was warned about his behavior. See West v. State, 271 Ga. App. 522, 523 (610 SE2d 159) (2005); Lovelace, 262 Ga. App. at 693 (4). Hence, Gipson has failed to show that he would have been “entitled to a mistrial under the circumstances presented, [and] trial counsel’s failure to pursue a meritless motion does not constitute ineffective assistance of counsel.” Boatright v. State, 308 Ga. App. 266, 269 (1) (a) (707 SE2d 158) (2011).

(g) Gipson argues that his trial counsel was ineffective for failing to object when, during cross-examination, the prosecutor impeached him with his 2004 convictions for felony obstruction of a law enforcement officer. But Gipson failed to raise this claim of ineffective assistance in his motion for new trial and thus has waived the issue on appeal. See Ransom v. State, 298 Ga. App. 360, 364 (2) (b) (680 SE2d 200) (2009).

(h) Gipson also argues that his trial counsel was ineffective for failing to object when the prosecutor questioned him about the religious emblem he was wearing during cross-examination. As explained supra in Division 4, the prosecutor’s questions were improper. Pretermitting whether trial counsel was deficient for failing to object to the prosecutor’s questions, we conclude that Gipson has failed to show a reasonable probability that the outcome of the trial would have been different but for his counsel’s alleged deficiency. See Himmel v. State, 246 Ga. App. 845, 850 (2) (d) (542 SE2d 557) (2000).

(i) Gipson argues that his trial counsel was ineffective for failing to object to the trial court’s recharge to the jury in response to the jury’s question about the meaning of “intent to kill.” As explained supra in Division 6, there was no error in the trial court’s recharge, and thus Gipson cannot show that his trial counsel was deficient for failing to object.

(j) Lastly, Gipson argues that his trial counsel’s alleged errors, if considered cumulatively, demonstrate that the representation was so deficient as to constitute ineffective assistance.

Decided May 6, 2015.

W. Terry Hay good, Jr., for appellant.

Leigh E. Patterson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

We evaluate only the effects of matters determined to be error, not the cumulative effect of non-errors. Here, even if trial counsel... [was] deficient in some respects, there is no reasonable probability that, but for those deficiencies, the outcome of [Gipson’s] trial. . . would have been different.

(Citations and punctuation omitted.) Wofford v. State, 329 Ga. App. 195, 207 (5) (f) (764 SE2d 437) (2014).

Judgment affirmed.

McMillian, J., concurs. Ray, J., concurs fully in Divisions 1-7 (a) and 8 and in judgment only in Division 7 (b).

       Gipson was indicted for theft by taking (Count 4) and another count of battery (Count 6), but the jury acquitted him of theft by taking, and the trial court directed a verdict of acquittal on the battery count.

       OCGA § 16-5-21 was amended effective July 1,2014. See Ga. L. 2014, pp. 432,438, § 2-2; pp. 441, 442, § 1; and pp. 599, 622, § 3-1. Here, we apply the prior version of the statute, Ga. L. 2011, p. 752, § 16, effective May 13, 2011.

       See supra footnote 2.

       A defendant commits simple assault if he “[a]ttempts to commit a violent injury to the person of another” or ‘‘[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a).

       “Given the similarity between Georgia’s new evidence code and the Federal Rules of Evidence it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” (Citation and punctuation omitted.) Williams v. State, 328 Ga. App. 876, 879 (1), n. 14 (763 SE2d 261) (2014).

       Gipson also argues that the executive director’s testimony was improper because the director did not personally interview the victim and was not asked any hypothetical questions by the prosecutor. But the fact that the executive director did not personally interview the victim went only to the weight, not the admissibility, of her testimony. See Parrish, 237 Ga. App. at 277-278 (2) (iii), (iv) (fact that expert did not personally examine domestic abuse victim did not render the expert’s testimony inadmissible). See also United States v. Vallejo, 237 F3d 1008, 1021 (9th Cir. 2001) (district court erred in excluding expert testimony of school psychologist on ground that he did not personally examine the defendant); United States v. Bighead, 128 F3d 1329, 1330 (9th Cir. 1997) (per curiam) (expert testimony regarding common characteristics of abuse victims was admissible even though expert did not personally examine the victim in the case). Furthermore, hypothetical questions are allowed, hut not required, under the new Evidence Code. See Paul S. Milich, Ga. Rules of Evidence, § 15:6, p. 510 (2013-2014 ed.); OCGA § 24-7-705; Taylor v. Burlington Northern R. Co., 787 F2d 1309, 1317 (9th Cir. 1986) (“Federal Rule of Evidence 705 largely eliminates the need for counsel to ask [hypothetical] questions, because the rule permits an expert to testify as to his opinion without counsel’s providing him with a factual basis for it.”).

       When a defendant is convicted for multiple violations of a “single statutory provision,” the required evidence test enunciated in Drinkard does not apply; instead, courts, in determining whether multiple convictions are permissible, must determine the “ ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute.” State v. Marlowe, 277 Ga. 383, 384 (589 SE2d 69) (2003). In the recent case of Thomas v. State, 292 Ga. 429, 434 (5) (738 SE2d 571) (2013), our Supreme Court applied the required evidence test, rather than the unit of prosecution test, in determining whether a defendant could be convicted of aggravated assault under both OCGA § 16-5-21 (a) (1) and (a) (2) (2011) for the same act or transaction. Thus, as made clear by Thomas, we are to apply the required evidence test in evaluating whether Gipson’s convictions under OCGA § 16-5-21 (a) (1) and (a) (2) (2011) should have been merged for purposes of sentencing.

       We note that in Thomas v. State, 310 Ga. App. 404, 410 (5) (714 SE2d 37) (2011), this Court applied the unit of prosecution test in determining whether a defendant’s convictions for aggravated assault with intent to murder and aggravated assault with a deadly weapon should have been merged for sentencing. Notably, one of the judges concurred in the judgment only in Thomas, and thus the case, which was decided before the Supreme Court’s recent (unrelated) Thomas decision, is physical precedent and thus not binding in subsequent cases. See Court of Appeals Rule 33 (a). Additionally, Mitchell v. State, 187 Ga. App. 40, 44 (4) (369 SE2d 487) (1988), was decided before Drinkard and used language consistent with the “actual evidence” test in analyzing whether the defendant’s convictions for aggravated assault with intent to murder and aggravated assault with a deadly weapon should have merged; thus, any reliance on that case would be misplaced. See Petro, 327 Ga. App. at 261 (2) (rejecting appellant’s reliance on pre-Drinkard cases applying “actual evidence” test in addressing merger issue).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A15A0578.
    TOLSON et al. v. SISTRUNK et al.
    (772 SE2d 416)
   BARNES, Presiding Judge.

This case involves a dispute between counsel over the validity of an attorney’s lien filed pursuant to OCGA § 15-19-14 (b) and the apportionment of fees under the lien. Following an evidentiary hearing, the trial court apportioned 30 percent of the attorney fees to Cochran, Cherry, Givens, Smith & Sistrunk, P.C. (the “Cochran Firm”), concluding that it was entitled to 25 percent of the fees for originating the case and 5 percent of the fees for the pre-suit legal work it performed. Audrey Tolson and the Tolson Firm, P.C. (collectively, “Tolson”) appeal the trial court’s fee award, arguing that the attorney’s lien filed by the Cochran Firm was invalid and that the firm should not have been awarded a percentage of the fees for originating the case. Tolson also argues that there was insufficient evidence to support the trial court’s award of 5 percent of the fees to the Cochran Firm for its pre-trial legal work.

For the reasons discussed below, we conclude that the attorney’s lien filed by the Cochran Firm was valid and that there was evidence to support the trial court’s award of 5 percent of the fees to the firm for its pre-trial legal work. However, we also conclude that the trial court erred in awarding the Cochran Firm 25 percent of the fees for originating the case, and we therefore reverse that portion of the trial court’s fee award and remand with the direction that those fees instead be distributed to Tolson.

The validity and enforceability of an attorney’s lien, and the amount of fees to award the attorney enforcing the lien, are matters for the trial court to decide. See Woods v. Jones, 305 Ga. App. 349, 353 (3) (699 SE2d 567) (2010). Where the trial court is the factfinder, we construe the evidence in the light most favorable to support the court’s judgment and will uphold the court’s factual findings on appeal if there is any evidence to support them. See McRae, Stegall, Peek, Harman, Smith & Manning, LLP v. Ga. Farm Bureau Mut. Ins. Co., 316 Ga. App. 526 (729 SE2d 649) (2012) (hereinafter ‘McRae”); Cannon v. Wesley Plantation Apts., 256 Ga. App. 244, 246-247 (2) (568 SE2d 137) (2002). However, “[t]he plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.” (Citation and punctuation omitted.) McRae, 316 Ga. App. at 526. Mindful of these principles, we turn to the record in the present case.

Construed in favor of the trial court’s judgment, the record reflects that Sistrunk, Lamberti, and Williams partnered with the national law firm founded by Johnny Cochran and currently operate the Atlanta branch of the Cochran Firm. In October 2009, when his wife died after undergoing gastric bypass surgery, Quincy Bryant contacted the Cochran Firm to discuss the possibility of a medical malpractice claim. Bryant knew of the national reputation of Johnny Cochran and was encouraged by his mother-in-law to contact the Atlanta branch of the firm Cochran had founded. Following an initial consultation with Tolson, who was an associate at the Cochran Firm, Bryant hired the firm to investigate and pursue a potential medical malpractice claim against his wife’s doctors. Bryant signed a contingency fee agreement in October 2009, agreeing that the Cochran Firm would receive 45 percent of any recovery as its fee and would be reimbursed for its expenses incurred in investigating and preparing the case. The agreement did not specify how the Cochran Firm would be paid if the firm was discharged before any recovery was obtained.

Over the next approximately 19 months, the Cochran Firm investigated and developed Bryant’s case. The Cochran Firm procured the relevant medical records, researched medical issues relating to the care and treatment of Bryant’s wife, consulted with three potential experts, developed a theory of the case, and drafted a complaint. The Cochran Firm spent $8,805.50 on its pre-suit legal work. Tolson was assigned to the Bryant matter and performed “the workup of the case” under the direction and supervision of partner Lamberti, and Tolson served as Bryant’s primary contact at the firm.

Tolson resigned from the Cochran Firm by e-mail on May 9,2011. The previous day, Tolson had contacted a number of the firm’s clients with whom she had closely worked, including Bryant, and advised them that she was leaving the Cochran Firm and that they would need to choose whether to allow her to represent them going forward or to have the Cochran Firm continue to represent them. Tolson could not recall whether she told Bryant and the other clients on that date that, if they chose to discharge the Cochran Firm, they might be liable for the fees and expenses that the firm had already incurred. During his conversation with Tolson, Bryant decided that he wanted her rather than the Cochran Firm to continue to represent him. In her May 9 resignation e-mail, Tolson informed the Cochran Firm of her contact with the clients and of the decision by several of them to be represented by her.

Associates at the Cochran Firm were compensated for their work by receiving a percentage of any recovery obtained once the case was resolved. Tolson did not receive any pay from the Cochran Firm for her work on the Bryant matter before or after her resignation.

After Tolson’s resignation, Bryant contacted the Cochran Firm, terminating the firm’s representation and requesting that his case file be transferred to Tolson. He also entered into a contingency fee agreement with Tolson and her firm under which they would receive a fee representing 40 percent of any future recovery.

In July 2011, Tolson associated the personal injury firm of Cash, Krugler & Fredericks, LLC (the “Fredericks Firm”) to assist her in the Bryant matter, and in October 2011, Tolson and the Fredericks Firm filed suit on behalf of Bryant, as surviving spouse and administrator of his wife’s estate, against several defendants for medical malpractice in the State Court of DeKalb County. The Fredericks Firm assumed the role of lead counsel, with Alwyn Fredericks performing the “vast majority of the work” on the case, including the drafting of the pleadings and discovery and conducting multiple depositions. In prosecuting the case, Tolson incurred $3,002.02 in expenses, while the Fredericks Firm incurred $83,298.30. Because the Fredericks Firm was performing a majority of the work and incurring most of the expenses, Tolson ultimately agreed to split the contingency fee with the Fredericks Firm on a 60/40 basis, with the Fredericks Firm receiving 60 percent of the fee and Tolson receiving 40 percent.

In November 2012, the Cochran Firm filed its notice of attorney’s lien in the Bryant case for payment of the $8,805.50 in expenses it had incurred and for a reasonable portion of the attorney fees under quantum meruit if there was a recovery for Bryant. In addition to filing its attorney’s lien notice in the Bryant case, the Cochran Firm filed a separate action against Tolson in May 2013 in the Superior Court of Fulton County, alleging that Tolson had improperly procured clients, including Bryant, while she was still an associate at the firm (the “Fulton County action”). The Cochran Firm asserted multiple claims against Tolson in the Fulton County action, including breach of the duty of loyalty, tortious interference with contract, and unjust enrichment, and the firm sought compensatory and punitive damages from her. The current status of the Fulton County action is unclear from the record.

In May 2014, several defendants settled the case with Bryant for $2,000,000, and $800,000 of the proceeds were disbursed as attorney fees to Tolson and the Fredericks Firm. After learning of the settlement, the Cochran Firm filed a motion in April 2014 in the Bryant case to enforce its lien and obtain a portion of the $800,000 in attorney fees.

Before the trial court ruled on the Cochran Firm’s motion to enforce the lien, Tolson and the Fredericks Firm dismissed the case with prejudice, leading the Cochran Firm to move to vacate the dismissal in June 2014. In August 2014, the trial court conducted a hearing on the Cochran Firm’s motions to vacate the dismissal and to enforce the lien. The trial court ruled that the lien was valid, that the dismissal would be vacated, and that a separate evidentiary hearing would be conducted to determine the amount of attorney fees and expenses that should be apportioned to the Cochran Firm. At the trial court’s direction, the disputed attorney fees were held in the Fredericks Firm’s client trust account pending resolution of the matter.

Later that month, the trial court conducted an evidentiary hearing to determine how much of the fees should be awarded to the Cochran Firm pursuant to its attorney’s lien. The parties agreed that any fees awarded to the Cochran Firm would be paid out of the fees that would have been distributed to Tolson under her contingency fee agreement with Bryant rather than out of the fees paid to the Fredericks Firm.

After the evidentiary hearing, the trial court apportioned the attorney fees as follows: $480,000 (60 percent) to the Fredericks Firm; $240,000 (30 percent) to the Cochran Firm; and $80,000 (10 percent) to Tolson. In apportioning 30 percent of the attorney fees to the Cochran Firm, the trial court concluded that under the doctrine of quantum meruit, the firm should receive 25 percent of the fees ($200,000) for originating the case. The trial court further concluded that the Cochran Firm should receive an additional 5 percent of the fees ($40,000) for the pre-suit legal work it had performed for Bryant. Additionally, the trial court awarded the Cochran Firm the $8,805.50 in expenses it had incurred as part of its pre-suit work.

1. In her first enumeration of error, Tolson contends that the trial court erred in concluding that the attorney’s lien filed by the Cochran Firm was valid. According to Tolson, the Cochran Firm was not entitled to file an attorney’s lien because the firm performed only pre-suit legal work and was discharged by Bryant before the lawsuit was filed. We are unpersuaded.

OCGA § 15-19-14, which addresses the different types of attorney’s liens enforceable under Georgia law, provides in part:

(b) Upon actions, judgments, and decrees for money, attorneys at law shall have a lien superior to all liens except tax liens; and no person shall be at liberty to satisfy such an action, judgment, or decree until the lien or claim of the attorney for his fees is fully satisfied. Attorneys at law shall have the same right and power over the actions, judgments, and decrees to enforce their liens as their clients had or may have for the amount due thereon to them.
(c) Upon all actions for the recovery of real or personal property and upon all judgments or decrees for the recovery of the same, attorneys at law shall have a lien for their fees on the property recovered superior to all liens except liens for taxes, which may be enforced by mortgage and foreclosure by the attorneys at law or their lawful representatives as liens on personal property and real estate are enforced.
The property recovered shall remain subject to the liens unless transferred to bona fide purchasers without notice.
(d) If an attorney at law files his assertion claiming a lien on property recovered in an action instituted by him, within 30 days after a recovery of the same, his lien shall bind all persons.

“An attorney’s lien on a claim for money, i.e., a charging lien, is the equitable right of the attorney to recover his fees and costs due him for his services, and may be satisfied out of the judgment obtained by his professional services.” (Citation and punctuation omitted.) McRae, 316 Ga. App. at 528. An attorney’s lien, like the one at issue here that was placed on a tort action for monetary damages, is a lien on a claim for money and thus constitutes a charging lien. See id. In Georgia, charging liens are controlled by OCGA § 15-19-14 (b). McRae, 316 Ga. App. at 528.

Contrary to Tolson’s argument, OCGA § 15-19-14 (b) affords protection to former counsel who performed legal work for a client in anticipation of filing a lawsuit, even if successor counsel ultimately filed the suit. By its plain language, OCGA § 15-19-14 (b) applies without limitation to “attorneys at law” and entitles them to liens upon “actions, judgments and decrees for money.” It is true that the lien does not attach until a lawsuit has been filed on the client’s behalf. See Howe & Assoc. v. Daniels, 280 Ga. 803, 804 (631 SE2d 356) (2006); Steele v. Cincinnati Ins. Co., 171 Ga.App. 499, 500-501 (3) (320 SE2d 203) (1984). But nothing in the statutory language restricts its application to a limited class of attorneys who worked on the lawsuit when it was filed. Rather, OCGA § 15-19-14 (b) applies nonrestrictively to “attorneys at law” and thus is broad enough to encompass those attorneys who conducted legal work for a client in anticipation of a lawsuit that ultimately is filed on behalf of the client by a different attorney. Any other result would be inconsistent with the principle that liens exist to ensure that an attorney is compensated for the “fruits of [his] labor and skill . . . whether realized by judgment or decree, or by virtue of an award, or in any other way, so long as they are the result of his exertions.” (Citations and punctuation omitted.) Recoba v. State, 167 Ga. App. 447, 449 (306 SE2d 713) (1983), overruled in part on other grounds as stated in In the Interest of E. N. R., 323 Ga. App. 815, 817, n. 6 (748 SE2d 293) (2013).

Tolson, however, emphasizes that we have repeatedly stated that OCGA § 15-19-14 “is in derogation of the common law, and is to be strictly construed.” (Citation and punctuation omitted.) Steele, 171 Ga. App. at 501 (3). Yet, the rule of strict construction does not mean that a statute should be interpreted so narrowly as to defeat the legislative intent as evidenced by the plain language of the statute. See Amoena Corp. v. Strickland, 248 Ga. 496, 500 (3) (283 SE2d 894) (1981). The nonrestrictive language of OCGA § 15-19-14 (b) does not differentiate between classes of “attorneys at law” who have worked on a matter for a client who can file and enforce a lien on an action for money, and we decline to engraft such a limitation upon the statute. See First Nat. Bank of Ames, Iowa v. Innovative Clinical & Consulting Svcs., 280 Ga. App. 337 (634 SE2d 88) (2006) (courts “may not constrict [a] subsection ... of the statute by engrafting upon it limitations the legislature has not enacted”).

Tolson also relies upon a different subsection of the attorney’s lien statute, OCGA § 15-19-14 (d), in an effort to support her argument that attorneys who perform pre-suit legal work for a client cannot obtain a lien on an action for money that ultimately was filed by another attorney. Tolson’s reliance on OCGA § 15-19-14 (d) is misplaced because subsection (d) only applies to liens “on property recovered,” and “property” in this context does not mean “money’’ recovered in an action for damages, as made clear when subsection (d) is read in conjunction with subsections (b) and (c) of the statute.

A fundamental rule of statutory construction is that the interpretation “of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole.” (Citation and punctuation omitted.) Bennett Elec. Co. v. Spears, 188 Ga. App. 502, 503 (373 SE2d 286) (1988). “Particular words of statutes are not interpreted in isolation; instead, courts must construe a statute to give sensible and intelligent effect to all of its provisions [.]” (Citation and punctuation omitted.) U. S. Bank Nat. Assn. v. Gordon, 289 Ga. 12, 14 (4) (709 SE2d 258) (2011). When words in a statute are repeated in “subsequent parts of the same statute,” we presume that the legislature intended for the words “to be understood in the same sense.” (Citation and punctuation omitted.) Botts v. Southeastern Pipe Line Co., 190 Ga. 689, 702 (10 SE2d 375) (1940). Conversely, “[i]t is generally presumed that [the legislature] acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.” (Citation and punctuation omitted.) BFP v. Resolution Trust Corp., 511 U. S. 531, 537 (114 SCt 1757, 128 LE2d 556) (1994).

When these rules of statutory construction are applied in the present case, it is clear that the word “property” in subsection (d) of OCGA § 15-19-14 means “real or personal property” as referenced in subsection (c) of the statute rather than “money” as referenced in subsection (b). See Hodnett v. Bonner, 107 Ga. 452, 455 (33 SE 416) (1899) (noting that the lien provided for in Civil Code 1895, § 2814 (3) and (4), a predecessor statute to OCGA § 15-19-14 (c) and (d), “does not arise unless there has been a judgment ... in which property, either real or personal, is recovered”) (emphasis supplied). Indeed, a federal court addressing the same question has thoroughly and persuasively explained the interrelation between subsections (b), (c), and (d) of OCGA § 15-19-14:

In this case, the legislature, in subsection (c), dealt with liens arising in actions for “recovery of real or personal property,” and talked about the nature of the attorney’s lien attaching to the “property recovered” arising from such actions. In contrast, subsection (b) deals with liens arising in actions “for money,” and discusses the slightly different nature of those liens. Subsection (d), which is at issue here, like subsection (c), speaks only of “property recovered.” It makes no mention of money. Reading the language of subsection (d) in context — as it must — the Court concludes that it applies only to attorney’s liens arising under subsection (c) of the statute: those arising in actions for the recovery of real or personal property. It does not apply to liens arising under subsection (b), which concerns only “actions, judgments, and decrees for money.” If the legislature had intended subsection (d) to apply to subsection (b) in addition to subsection (c), it could have easily omitted the phrase “on property recovered.”
In addition, subsection (d) qualifies the lien defined in subsection (c), but not that in subsection (b). Subsection (c)’s last sentence states that “[t]he property recovered shall remain subject to the liens unless transferred to bona fide purchasers without notice.” Subsection (d), however, qualifies this provision by saying that, if the attorney files his lien on property recovered, the “lien shall bind all persons.” Subsection (b) contains no analogous provision to which subsection (d)’s qualifier logically could be said to attach.
... Applying settled rules of statutory construction, the Court holds that subsection (d) of OCGA § 15-19-14 . . . applies only to liens arising under subsection (c) of that statute. It does not concern liens arising in actions for money [under subsection (b)].

In re Diamond Mfg. Co., 123 BR 125, 128-129 (S.D. Ga. 1990), aff’d without opinion by Moore v. Diamond Mfg. Co., 959 F2d 972 (11th Cir. Ga. 1992). See also In re Chewning & Frey Security, 328 BR 899, 922 (Bankr. N.D. Ga. 2005). For the same reasons articulated by the federal court in In re Diamond Mfg. Co., we conclude that OCGA § 15-19-14 (d) has no bearing on the instant case involving a lien arising out of an action for money under OCGA § 15-19-14 (b).

In sum, we conclude that under OCGA § 15-19-14 (b), predecessor counsel who performed legal work for a client in developing a lawsuit is authorized to place a lien on the suit when it is filed for the client by successor counsel. The trial court therefore committed no error in concluding that the Cochran Firm was authorized to file an attorney’s lien on the medical malpractice action commenced by Tolson and the Fredericks Firm.

2. In her second enumeration of error, Tolson contends that even if the attorney’s lien was valid, the trial court erred in determining the amount of fees that should be awarded to the Cochran Firm. Tolson maintains that the trial court improperly awarded 25 percent of the fees to the Cochran Firm for originating the case because origination conferred no value upon Bryant, and she further argues that there was insufficient evidence for the trial court to award the Cochran Firm 5 percent of the fees for its pre-suit legal work.

(a) We agree with Tolson that the trial court erred in awarding the Cochran Firm 25 percent of the fees for its origination of the case. Origination or procurement of a case is not a service rendered on behalf of the client and does not confer any value or benefit upon him or her, and, therefore, should not be considered by a trial court in determining the amount of fees that ought to be awarded to an attorney under quantum meruit in a lien enforcement action.

As an initial matter, it bears repeating that the Cochran Firm sought its recovery of fees in the context of the filing and enforcement of an attorney’s lien. An attorney’s lien under OCGA § 15-19-14 (b) is based on “the fruits of the labor and skill of the attorney” exerted on behalf of the client, and the lien only attaches to an action for money upon a showing that “legal work” was performed by the attorney for the client. Recoba, 167 Ga. App. at 449-450. Hence, the determination of fees under OCGA § 15-19-14 (b) is predicated on the labor and services rendered to the client involved in the action for money rather than labor and services rendered to other counsel or a third party.

That the focus should be on the services rendered to the client is further borne out by our case law discussing the application of quantum meruit in the context of attorney fees. As we have explained, if an attorney is discharged before earning his contractual contingency fee, he may obtain a recovery under quantum meruit. Haldi v. Watson, 240 Ga. App. 801, 802 (2) (522 SE2d 696) (1999). And our precedent makes clear that when the discharged attorney seeks recovery from a former client under quantum meruit, the fees awarded to the attorney should be determined based on the reasonable value of the services rendered to the client. Amstead v. McFarland, 287 Ga. App. 135, 138 (1) (650 SE2d 737) (2007). It follows that if the discharged attorney’s services at issue had no value to the client, “the client has no obligation to pay for them” under quantum meruit. Haldi, 240 Ga. App. at 803 (2).

Furthermore, even where, as here, the discharged attorney is entitled to seek recovery of his fees from former co-counsel under a theory of quantum meruit, the measurement of fees still must be tied to the services that were rendered by the discharged attorney to and for the benefit of the client. This is made clear by our decision in Kirschner & Venker, P.C. v. Taylor & Martino, P.C., 277 Ga. App. 512 (627 SE2d 112) (2006), which, like the present case, involved an attorney’s lien dispute between discharged and current counsel over fees that were being held in an escrow account after the settlement of the underlying tort action. In that context, we held that the amount of fees awarded under the lien to discharged counsel should be “based on the reasonable value of the services that it had rendered to the client before being fired.” (Emphasis supplied.) Id. at 513.

In Eichholz Law Firm, 310 Ga. App. at 853 (1), another case where we held that a discharged attorney could seek recovery of fees from former co-counsel under quantum meruit, we used different language than Kirschner & Venker in articulating how to measure fees under quantum meruit, but to the same ultimate effect. Citing to Kirschner & Venker, we held that discharged counsel could recover fees in quantum meruit for the “services it provided to [its former co-counsel] pursuant to their joint venture” representing the client. (Emphasis supplied.) Id. Under this formulation, the discharged counsel can only recover under quantum meruit for those services undertaken as part of a mutual effort with co-counsel to benefit the client whom they were representing, and thus the measurement of fees still must be predicated on services that were rendered to or for the benefit of the client.

Applying this precedent, we conclude that the trial court erred in awarding 25 percent of the fees to the Cochran Firm for its origination of the case. Origination or procurement of a case — in other words, rainmaking — is not a service by an attorney that confers value upon a client or that is rendered to or for the benefit of the client. Consequently, the fact that a discharged attorney originated the case is not a relevant factor in calculating the fees owed to the attorney in quantum meruit in a lien enforcement action. We therefore reverse the portion of the trial court’s order awarding the Cochran Firm 25 percent of the fees for originating the case and remand with the direction that the court instead distribute those fees to Tolson.

As previously noted, the Cochran Firm filed a Fulton County action against Tolson in which it sought monetary damages for Tolson’s alleged breach of the duty of loyalty and unjust enrichment by procuring clients, including Bryant, before her resignation as an associate at the firm. Hence, to the extent the Cochran Firm is seeking recompense for Tolson’s alleged unjust enrichment in procuring clients whose cases were originated by the Cochran Firm, it may have a potential avenue for pursuing such a claim through the Fulton County action. What the Cochran Firm cannot do, however, is recover for its origination of the case under a theory of quantum meruit in a lien enforcement action.

(b) In contrast, we disagree with Tolson’s assertion that there was insufficient evidence for the trial court to award the Cochran Firm 5 percent of the fees in quantum meruit for its pre-suit legal work performed for Bryant. A trial court’s determination of the reasonable value of an attorney’s services to the client will be affirmed on appeal if there is any evidence to support it. See Gerald S. Mullis, P.C. v. Sikes, 244 Ga. App. 368, 369 (2) (535 SE2d 533) (2000). “Questions of value are peculiarly for the determination of the jury where there is any data in evidence upon which they may legitimately exercise their own knowledge and ideas,” Babb v. Potts, 183 Ga. App. 785, 787 (1) (360 SE2d 44) (1987) (citation and punctuation omitted), and “[t]he same rule of course applies to bench trials based on quantum meruit for attorney fees.” Griner v. Foskey, 158 Ga. App. 769, 771-772 (2) (282 SE2d 150) (1981).

Here, while the Cochran Firm did not keep hourly time records because its fee was contingent on recovery, there was evidence that after being retained by Bryant to investigate and pursue a medical malpractice case relating to his wife’s death, the Cochran Firm procured the relevant medical records, researched medical issues relating to the care and treatment of Bryant’s wife, consulted with three potential experts, developed a theory of the case, and drafted a complaint. And because Tolson performed much of the pre-suit work on behalf of the Cochran Firm when she was an associate there, the trial court was entitled to reasonably infer that she used the knowledge obtained from her pre-suit investigation when she litigated the case with the Fredericks Firm to a successful settlement, and thus that the Cochran Firm’s work had lasting value to the client and contributed to the ultimate result that was accomplished. Additionally, the trial court had before it the original contingency fee agreement between the Cochran Firm and Bryant, which reflected that if the firm had prosecuted the case to its completion, it would have received 45 percent of any recovery. Under these combined circumstances, the trial court was authorized to find that the Cochran Firm’s professional services rendered to Bryant were reasonably valued at 5 percent ($40,000) of the total fees award. See generally Babb, 183 Ga. App. at 787 (1); Griner, 158 Ga. App. at 771. (2). We therefore affirm the portion of the trial court’s order awarding the Cochran Firm 5 percent of the fees for its pre-suit legal work.

Decided May 6, 2015.

Turkheimer & Hadden, John D. Hadden; FordHarrison, F. Carlton King, Jr., Katherine T. Parvis, for appellants.

Copian Cobb, Michael A. Copian; Huff, Powell & Bailey, M. Scott Bailey; Weathington Smith, Paul E. Weathington, for appellees.

Judgment affirmed in part and reversed in part, and case remanded with direction.

Ray and McMillian, JJ., concur.

       The trial court in the present case ruled that because the notice of attorney’s lien was filed before the Fulton County action was filed, the present case was filed first for purposes of OCGA §§ 9-2-5 (a) and 9-2-44 and was not subject to abatement. Tolson does not challenge that ruling on appeal.

       Tolson had conceded that the Cochran Firm was entitled to the $8,805.30 in expenses it had incurred.

       “Decisions of federal courts are not binding authority on this court, but their reasoning may be persuasive[.]” Baskin v. Ga. Dept. of Corrections, 272 Ga. App. 355, 359 (3) (612 SE2d 565) (2005).

       To the extent that Ramsey v. Sumner, 211 Ga. App. 202, 204 (3) (438 SE2d 676) (1993), suggests that OCGA § 15-19-14 (d) applies to a monetary settlement in a suit for damages, that language is nonbinding dicta. See North Druid Dev. v. Post, Buckley, Schuh & Jernigan, 330 Ga. App. 432, 437 (1), n. 6 (767 SE2d 29) (2014) (noting that “statements in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are nonbinding dicta”) (citation and punctuation omitted).

       Tolson also argues that the trial court erred by awarding fees to Cochran, Cherry, Givens, Smith & Sistrunk, P.C. because no such entity exists and that, as a result, the court should have made the award “to the individual attorneys on the case.” We do not agree. There was evidence that a general partnership consisting of partners Sistrunk, Lamberti, and Williams comprised the law firm that represented Bryant before the lawsuit was filed and that they do business in Atlanta as Cochran, Cherry, Givens, Smith & Sistrunk, P.C.

       The general rule is that an attorney who enters into a contingency fee agreement with a client, and who is discharged before the contingency occurs, must seek recovery under quantum meruit from the client rather than new counsel subsequently retained by the client. See King v. Lessinger, 276 Ga. App. 145, 147 (622 SE2d 381) (2005). But if the former and current counsel worked as co-counsel for the mutual benefit of the client before the former counsel was discharged, then the former counsel may recover his fees in quantum meruit from the current counsel. See Eichholz Law Firm, P.C. v. Tate Law Group, 310 Ga. App. 848, 852-853 (1) (714 SE2d 413) (2011); Kirschner & Venker, P.C. v. Taylor & Martino, P.C., 277 Ga. App. 512, 514, n. 1 (627 SE2d 112) (2006). Here, before the Cochran Firm was discharged, both the Cochran Firm and Tolson (as an associate at the firm) worked on the legal matter for the mutual benefit of Bryant, and thus the Cochran Firm was entitled to recover its fees in quantum meruit from the fees that otherwise would have been distributed to Tolson. See id.


author: Andrews, Presiding Judge.

text:
    A15A0612.
    SLAY v. CALHOUN.
    (772 SE2d 425)
   Andrews, Presiding Judge.

Justin Calhoun filed a Petition for Legitimation, Custody, Child Support, and Visitation (the “Petition”) against April Slay in the trial court seeking, among other things, to legitimate and obtain joint legal and primary physical custody of K. C., Calhoun and Slay’s daughter, who was born January 15, 2011. The trial court entered a temporary order, in which it concluded that it had personal and subject matter jurisdiction, legitimated Calhoun as K. C.’s father, and awarded Calhoun temporary legal custody of K. C. In its subsequent Final Order on Custody, Visitation and Support, the trial court granted the parties joint legal custody of K. C., granted Calhoun primary physical custody of K. C., granted visitation rights to Slay, and determined the parties’ child support obligations. The trial court also entered a Final Order on Subject Matter Jurisdiction concluding that the issue was moot and had previously been decided. Slay now appeals, arguing that the trial court lacked subject matter jurisdiction over the issue of child custody. For the reasons that follow, we affirm.

We review de novo the trial court’s legal conclusion that it had subject matter jurisdiction in this case. Delgado v. Combs, 314 Ga. App. 419, 425-426 (1) (724 SE2d 436) (2012).

The record reflects that on April 16, 2013, Calhoun filed the Petition together with a Petition for Instanter Custody requesting immediate physical custody of K. C. on the ground that he feared for the child’s health, safety, and welfare should Slay retain custody of her. In an order entered the same day, the trial court awarded immediate temporary custody of K. C. to Calhoun. Slay, pro se, filed an answer to the Petition and also moved to dismiss Calhoun’s action for lack of in personam jurisdiction and improper venue. Following a hearing on April 30, 2013, which was not transcribed, the trial court entered its temporary order addressing the issues of legitimation and temporary custody. The temporary order ordered the Juvenile Court of Muscogee County to investigate the best interest of the child with respect to permanent custody. With respect to jurisdictional issues, the temporary order concluded that the trial court had “jurisdiction over the parties and over the subject matter of this action.”

After receiving the juvenile court’s report, the trial court held a final hearing on March 19, 2014. Slay was represented by counsel, who argued at the beginning of the hearing that the trial court lacked subject matter jurisdiction over the issue of child custody under the terms of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), OCGA § 19-9-40 et seq., because Slay resided in Florida. In support of the motion, Slay’s counsel examined Slay, who testified that she lived in Ponce de Leon, Florida and has always lived in Florida except for a period of time after K. C.’s birth. She stated that she moved to Georgia nine days after K. C.’s birth in Panama City, Florida in January 2011 but returned to Florida in August 2012. Slay’s mother also testified that Slay moved back to Florida in August 2012. The trial court denied the jurisdictional motion.

Calhoun testified at the hearing that he was living in Bonifay, Florida with Slay when K. C. was born. After the child was born, Slay and K. C. moved to Columbus, Georgia to live with Calhoun’s mother, but he could not join them immediately because he was on probation in Florida. Calhoun moved to Georgia once his probation was transferred to this state, and he and Slay lived with his mother and stepfather for several months and then moved to a rental home, Calhoun testified that Slay went to Florida with K. C. for a visit and then called and stated that she was not coming back. He stated that once Slay returned to Florida, he and Slay worked out a visitation arrangement under which they would alternate keeping K. C. for two-week periods and would meet in Dothan, Alabama to pick her up or drop her off. According to Calhoun, Slay often would call a week early saying she could not take care of K. C., and he or his parents would have to meet her or drive down to Florida to pick up K. C. Calhoun testified that Slay often did not have stable housing in Florida and lived at times with her mother, a friend, her brother, and her boyfriend, who would sometimes kick her out.

Calhoun’s mother testified that Slay and K. C. went to Florida for a visit in August 2012 and that after several weeks, Slay decided to stay. She testified that after Slay moved to Florida, each parent was supposed to have K. C. for three weeks at a time but that Slay was always calling after about a week and a half and asking for someone to come get the child. She stated that she drove to Florida over a dozen times to pick up K. C. when Slay was unable to care for her. Calhoun’s mother picked up Slay and K. C. in Dothan on March 19, 2013, and Slay stayed in Columbus for one or two nights for a visit. Calhoun filed his Petition shortly thereafter while K. C. was still in Georgia.

Slay testified that her arrangement with Calhoun was that they each would have the child for alternating three-week periods but admitted there were times when she would call Calhoun to come get the child early. Slay and Calhoun testified that K. C. had received health insurance coverage under Medicaid and PeachCare in Georgia. When asked if she took the child to the doctor in Florida, Slay stated that she took K. C. to the emergency room once when K. C. had an ear infection. K. C. had her two-year checkup while she was in Georgia in February 2013. The trial court entered its Final Order on Custody, Visitation and Support and its Final Order Regarding Subject Matter Jurisdiction on April 8, 2014. The Final Order Regarding Subject Matter Jurisdiction stated that “the issue of jurisdiction is moot and was disposed of by [the temporary order].”

1. As an initial matter, we address Calhoun’s argument on appeal that the UCCJEA does not govern the issue of subject matter jurisdiction in this case. Calhoun maintains that, instead, subject matter jurisdiction should be decided solely by reference to OCGA § 19-7-22 regarding legitimation petitions. We disagree.

The UCCJEA is a uniform act promulgated by the Uniform Law Commission in 1997 that has been adopted in all 50 states and the District of Columbia. Angel B. v. Vanessa J., 234 Ariz. 69, 71-72 (316 P3d 1257) (Ariz. App. Div. 1 2014). One of its central purposes is to “[a]void jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being.” UCCJEA § 101, cmt. Georgia adopted the UCCJEA in 2001 to replace its predecessor, the Uniform Child Custody and Jurisdiction Act (“UCCJA”), “because, in application, imprecision in the prior act’s language often allowed for the existence of concurrent jurisdiction over custody matters in multiple states, thereby fostering competition among jurisdictions and forum shopping by the parties.” (Citation and punctuation omitted.) Bellew v. Larese, 288 Ga. 495, 496 (706 SE2d 78) (2011).

Pertinent here, OCGA § 19-9-61 (a) sets forth the circumstances in which a court of this state has jurisdiction to make an initial child custody determination. As discussed in further detail below, such jurisdiction is heavily dependent on the question of whether Georgia is the child’s “home state.” Bellew, supra, 288 Ga. at 498. OCGA § 19-9-61 (b) specifies that “[s]ubsection (a) of this Code section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.” (Emphasis supplied.) A “child custody determination” under the UCCJEA “means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child,” and “includes a permanent, temporary, initial, and modification order.” OCGA § 19-9-41 (3). The trial court’s Final Order on Custody, Visitation and Support in this case unquestionably constitutes a “child custody determination.” Calhoun nonetheless contends that we should look solely to OCGA § 19-7-22 to determine subject matter jurisdiction. Pursuant to OCGA § 19-7-22 (a):

A father of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court of the county of the residence of the child’s mother or other party having legal custody or guardianship of the child; provided, however, that if the mother or other party having legal custody or guardianship of the child resides outside the state or cannot, after due diligence, be found within the state, the petition may be filed in the county of the father’s residence or the county of the child’s residence. . . .

OCGA § 19-7-22 (f.l) goes on to provide that “[t]he petition for legitimation may also include claims for visitation, parenting time, or custody.” Calhoun argues that the trial court had subject matter jurisdiction because he properly filed the Petition in his county of residence under OCGA § 19-7-22 (a) and the inclusion of child custody claims was authorized by OCGA § 19-7-22 (f.l).

OCGA § 19-7-22 (a) governs venue rather than subject matter jurisdiction in a legitimation proceeding. See Holmes v. Traweek, 276 Ga. 296, 297 (577 SE2d 777) (2003) (holding prior version of OCGA § 19-7-22 (a) was invalid, as it conflicted with venue provisions of state Constitution). Subsection (f.l) was added when OCGA § 19-7-22 was amended in 2005. Ga. L. 2005, pp. 1491-1492, § 1. Subsection (f. 1) represented a departure from cases holding that custody could be adjudicated in a legitimation proceeding only if the mother consented; otherwise, the father was required to commence a separate proceeding after the judgment of legitimation was entered. See Petersen v. Tyson, 253 Ga. App. 431, 433 (559 SE2d 164) (2002).

In interpreting OCGA § 19-7-22 (f. 1), we “shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). Further, “[i]t is a well-settled rule of statutory construction that a statute must be construed in relation to other statutes, and all statutes dealing with the same subject matter are construed together and harmonized wherever possible so as to give effect to the legislative intent.” (Citation and punctuation omitted.) Hastings v. Hastings, 291 Ga. 782, 784 (732 SE2d 272) (2012). Applying these principles, we conclude that OCGA§ 19-7-22 (f.l) effected a change in the prior rule of standing under which a putative father could not assert custody claims in a legitimation proceeding but did not create an exception to jurisdictional rules that apply in interstate custody cases under the UCCJEA. A contrary interpretation would undermine the uniformity of law among the states the UCCJEA seeks to achieve and its goal of eliminating jurisdictional competition. Further, the UCCJEA expressly exempts certain child custody proceedings from its requirements, namely adoption proceedings and proceedings pertaining to the authorization of emergency medical care for a child. OCGA § 19-9-42. If the General Assembly likewise wished to exempt legitimation proceedings involving child custody issues from some or all of the UCCJEA’s provisions, we think it would have done so expressly.

2. Slay argues that the trial court did not have subject matter jurisdiction to address issues of child custody under OCGA § 19-9-61 (a) (1) because Georgia was not the child’s home state. We find no error in the trial court’s exercise of jurisdiction.

The trial court’s Final Order on Subject Matter Jurisdiction determined that the issue was previously addressed in the temporary order issued after an April 30, 2013 evidentiary hearing. Although Slay’s motion to dismiss did not raise the issue of subject matter jurisdiction, the temporary order expressly found that the trial court had subject matter jurisdiction in the case. We do not have a transcript of the April 30, 2013 hearing, and we therefore “must assume that the evidence supported its exercise of jurisdiction.” Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 591 (1) (690 SE2d 397) (2010).

Further, the evidence at the final hearing was consistent with the trial court’s earlier decision on the issue of subject matter jurisdiction. Pursuant to OCGA § 19-9-61 (a) (1), a court in this state has jurisdiction to make an initial child custody determination if

[t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state [.]

The term “home state” is defined in relevant part as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding____A period of temporary absence of any of the mentioned persons is part of the period.” OCGA § 19-9-41 (7). A

“[p]erson acting as a parent” means a person, other than a parent, who: (A) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and (B) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.

OCGA § 19-9-41 (13). “Physical custody,” in turn, is defined as “the physical care and supervision of a child.” OCGA § 19-9-41 (14).

Slay argues that she was K. C.’s only legal custodian until an order of legitimation was entered and that K. C. became a resident of Florida when she did. Slay is correct concerning her status as K. C.’s legal custodian. See OCGA § 19-7-25 (“Only the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child as provided in Code Section 19-7-21.1 or 19-7-22.”). But even assuming Slay became a resident of Florida in or around August 2012 as she contends, “home state” is not synonymous with the “residence or domicile of the parent having legal custody.” Harper v. Landers, 180 Ga. App. 154, 157 (348 SE2d 698) (1986) (construing substantially similar definition of “home state” under UCCJA). Rather, the term “lived” in the definition of “home state” refers to the state where the child is physically present “without regard to legal residence.” Brenner v. Cavin, 163 Ga. App. 694, 696 (295 SE2d 135) (1982); see also Powell v. Stover, 165 SW3d 322, 326 (Tex. 2005) (“The word ‘lived’ [in ‘home state’ definition in UCCJEA] strongly connotes physical presence.”). “If the General Assembly had intended that jurisdiction be based upon legal residence or domicile, it would undoubtedly have used these technical terms.” Brenner, supra, 163 Ga. App. at 696. There was evidence at the final hearing that Slay frequently was unable to care for K. C. and called Calhoun or his mother to come pick up the child. Thus, the trial court was authorized to find that in the six months before Calhoun filed the Petition, K. C. spent more time with Calhoun in Georgia than with Slay in Florida. The evidence showed that K. C. received almost all of her medical care in Georgia. Under the circumstances, the trial court could have concluded that even though Slay moved to or resided in Florida, K. C. continued to live with Calhoun, a person acting as K. C.’s parent; K. C.’s absences to stay with her mother, who was unable to care for K. C. consistently, were temporary; and, accordingly, Georgia was K. C.’s home state for purposes of the UCCJEA.

Decided May 7, 2015.

Pearson Law Group, Romero T. Pearson, for appellant.

Lindsay B. Erwin, Michael D. Reynolds, for appellee.

Based on the foregoing, we conclude that the trial court did not err in finding that it had subject matter jurisdiction with respect to the child custody issues raised in the Petition.

Judgment affirmed.

Miller, J., concurs in judgment only. Branch, J., concurs fully in Division 2 and in judgment only in Division 1.

       Given our disposition in this division, we need not address Calhoun’s argument that subject matter jurisdiction existed pursuant to OCGA § 19-9-64, which provides for temporary emergency jurisdiction.