text:
    A11A1031.
    CALDWELL v. MEADOWS.
    (717 SE2d 668)
   Adams, Judge.

On March 4, 2010, William Robert Meadows filed a petition to legitimate his biological son, who was born out of wedlock to Jonell Caldwell on December 30, 2007. Following a hearing, the trial court granted Meadows’s petition; awarded joint legal custody of the child to both parents, with physical custody in the mother; granted visitation to Meadows; and ordered Meadows to pay child support. Caldwell appeals.

1. Caldwell first asserts that the trial court applied an erroneous legal theory that excluded the issue of abandonment during pregnancy in considering the issue of legitimation and instead found that the only pertinent issues were whether the father supported his son and whether he had a meaningful relationship with the child. Caldwell argued below and argues on appeal that Meadows waived his opportunity interest in the child by offering her no emotional or financial support during her pregnancy.

Before granting a petition to legitimate, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.

(Footnote omitted.) Morris v. Morris, 309 Ga. App. 387, 388-389 (2) (710 SE2d 601) (2011). “In making this determination, the court must examine the benefits that might flow to the child if [ ]he were legitimated and to consider the legal consequences of the grant of the petition.” (Citations and punctuation omitted.) Adamavage v. Holloway, 206 Ga. App. 156, 157-158 (1) (424 SE2d 837) (1992). Moreover, the trial court must consider that

[a] biological father’s opportunity interest begins at conception and may endure through the minority of the child, but it may be abandoned by the unwed father if not timely pursued. On the other hand it is an interest which an unwed father has a right to pursue through his commitment to becoming a father in a true relational sense as well as in a biological sense. Factors which may support a finding of abandonment include, without limitation, a biological father’s inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child.

(Punctuation and footnotes omitted.) Morris, 309 Ga. App. at 389 (2). This Court reviews a trial court’s ruling on a legitimation petition for an abuse of discretion. Id.

Caldwell met Meadows in Florida when she became a student in his college psychology class in January 2007. They began a sexual relationship in March 2007, and Caldwell discovered that she was pregnant in early May 2007. The relationship ended in mid-2007, and Caldwell and Meadows had no contact from August 4, 2007 to November 30, 2007, when she e-mailed him to let him know she would be seeking child support. Caldwell testified that she had refrained from contacting Meadows during this almost four-month period at his request. Shortly thereafter, on December 4, 2007, Meadows went shopping with Caldwell and purchased a breast pump and some additional baby-related items. The parties met two additional times before their son was born on December 30, 2007. Meadows visited her at the hospital the night the child was born, although he did not attend the birth. Caldwell and the baby went to Meadows’s apartment upon the child’s release from the hospital and spent several days there before they moved to Georgia to live with her parents.

Meadows began making voluntary child support payments of $600 in January 2008 and continued those payments through December 2009, when he increased the payments to $800 per month in January 2010 at Caldwell’s request. Meadows also made additional payments to assist with the child’s medical expenses before he added him to his insurance policy in 2010, for which Meadows pays an additional $168 per month. The evidence at trial showed that even though Meadows lives in Florida and the child lives with his mother in Georgia, Meadows visited his son at least 22 times between his birth in December 2007 and February 18, 2010, when Caldwell’s lawyer sent him a fax directing that he no longer contact or attempt to contact Caldwell. During this period, he attended his son’s two birthday parties and provided him gifts on these occasions, as well as at Christmas and other holidays. Meadows filed his petition on March 4, 2010 after receiving the fax from Caldwell’s attorney.

Based upon the evidence at trial, we cannot say that the trial court abused its discretion in determining that Meadows had not abandoned his opportunity interest to legitimate his son and that legitimation was in the child’s best interest. In making this determination, the trial court did not exclude all evidence of Meadows’s lack of involvement during Caldwell’s pregnancy. Rather, the trial court acknowledged at trial that Meadows had provided her no financial support during her pregnancy beyond the purchase of a breast pump, and, significantly, the trial court’s order expressly made its findings on the issue of abandonment based upon Meadows’s actions “from conception through the date of the hearing.”

Caldwell notes in the factual portion of her brief, however, that the trial court excluded evidence regarding Meadows’s divorce, when Caldwell proffered it to show why Meadows denied her support during her pregnancy. Although the trial court excluded this evidence on the ground that it was not relevant to the issue of abandonment, the court stated that it might be relevant to the issue of legitimation and indicated that Caldwell would have the opportunity “to make all kinds of arguments about what’s in the best interest of the child” on that issue. The trial court then allowed Caldwell’s counsel to question Meadows about whether he provided her emotional support during her pregnancy and the importance of such support. And indeed Caldwell later testified about the role Meadows’s pending divorce played in their lack of communication during her pregnancy and his desire to keep the pregnancy secret.

While a father’s lack of involvement prior to a child’s birth “is as significant as such a disregard after the child is born,” Turner v. Wright, 217 Ga. App. 368, 369 (1) (457 SE2d 575) (1995), we are aware of no authority limiting a trial court’s inquiry into whether a father has abandoned his opportunity interest to the period before the child’s birth especially where, as here, the father evinced such a clear intent to be involved in his child’s life following his birth. Although Meadows was out of contact with Caldwell for a period of approximately four months during her pregnancy and did not provide her any financial or emotional support until shortly before the child was born, he developed and maintained a relationship with his son from his birth until Caldwell blocked his access to the child in February 2010. Meadows also supported the child financially from his birth and even after he was no longer allowed contact with him.

In considering whether Meadows abandoned his opportunity interest in forming a relationship with the child, the appropriate inquiry is not whether “the father could have done more,” but rather whether the father “has done so little as to constitute abandonment.” Binns v. Fairnot, 292 Ga. App. 336, 338 (665 SE2d 36) (2008). See also Morris, 309 Ga. App. at 390 (2). Compare In the Interest of D. S. E, 233 Ga. App. 346, 349 (2) (504 SE2d 211) (1998) (affirming trial court’s holding of abandonment where father made no attempt to contact or support child until two months after child’s birth and mother had found adoptive home in the meantime). We find no merit to Caldwell’s argument that the trial court applied an erroneous legal theory in making its decision on the issue of legitimation.

2. Caldwell next asserts that the trial court erred “by conducting the custody phase of the bench trial using an erroneous legal theory that limited evidence of the father’s personal background to matters that only related to children, eliminating [her] right to inquire into ‘any relevant factor,’ ” including the factors provided under OCGA § 19-9-3 (a) (3). She asserts that the fact that Meadows misrepresented his marital status as her college professor and “disingenuously teased” her with statements that they would soon be a family and kept her quiet by the payment of voluntary child support were factors for the trial court to consider in determining the best interests of the child. But Caldwell provides no record citations in the argument portion of her brief to support her contention that the trial court did not consider such evidence or otherwise limited such evidence. And in the factual portion of her brief, she provides record citations showing that the trial court, in fact, overruled Meadows’s counsel’s objections to her testimony that Meadows paid her child support because he did not want her “messing anything up with his divorce” and that he told her that they could be a family.

Caldwell’s factual statement, however, does reference two instances in which the trial court sustained Meadows’s counsel’s objections to her attempts to introduce evidence of Meadows’s personal background and past relationships. In the first instance, Meadows’s counsel objected on the ground of relevance to a question implying that Meadows dated another woman during his marriage. Caldwell’s counsel indicated that the question was in response to evidence “of this guy hanging around children.” The trial court then stated:

[I]f you’ve got evidence that relates to him as it relates to children, I will be more than happy to entertain it, but I’m not interested in who he has dated at different times in his life, that is immaterial. The objection is sustained. Now, if you can show how that has got some bearing on children or something he’s done in the presence of children or to children, then I want to hear that. But what his consensual relationships were with other adults, I don’t find material to this issue.

In the second instance, the trial court sustained Meadows’s objection to a question by Caldwell’s counsel asking what he told her psychology class about his marital status. Caldwell’s counsel argued that the evidence went to the issue of character. We will, therefore, confine our review to these two instances.

The duty of the judge in making a custody decision “shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.” OCGA § 19-9-3 (a) (2). Accordingly, “[w]here the trial judge exercises a sound legal discretion looking to the best interests of the child, this court will not interfere with his judgment unless it is shown that his discretion was abused.” (Citations omitted.) Sullivan v. Sullivan, 241 Ga. 7, 8 (243 SE2d 35) (1978). And “where there is any evidence to support the trial court’s finding, this court will not find there was an abuse of discretion.” (Citation omitted.) Autrey v. Autrey, 288 Ga. 283, 285 (4) (702 SE2d 878) (2010). Similarly, “[t]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Punctuation and footnote omitted.) Mitcham v. Spry, 300 Ga. App. 386, 388 (1) (685 SE2d 374) (2009).

Because the trial court was charged with determining what custody arrangement was in the child’s best interest, we find no abuse of discretion in the court’s decision to restrict the evidence to matters related to that issue. The trial court explained that it would consider evidence of Meadows’s relationships if Caldwell demonstrated how such evidence related to his treatment of children. Caldwell failed to make that connection at trial and similarly fails on appeal to show how such evidence related to the issue of custody. We find no error, therefore, in the trial court’s exclusion of such evidence. See Wilbanks v. Wilbanks, 238 Ga. 660, 662 (3) (234 SE2d 915) (1977) (no abuse of discretion in failing to admit evidence of wife’s adultery in divorce/child custody action).

The same analysis applies to the evidence of what Meadows may have told his psychology class in January 2007 about his marital status. Moreover, after the trial court sustained the objection to the testimony of what Meadows told his class, Caldwell testified that she “eventually” learned about his marriage, then “eventually” learned about his son, and “later on, much later on” she learned about his daughter. This evidence was sufficient to make Caldwell’s point that Meadows may have been less than forthcoming with her about his marital status and personal life.

From our review of the record, the trial court’s order and the parenting plan incorporated into that order, we find no abuse of discretion through the application of an erroneous legal standard; rather, the trial court properly exercised its discretion in concluding that the custody arrangement outlined in the parenting plan was in the child’s best interest.

3. Caldwell next asserts that the trial court abused its discretion in using her former income in calculating child support as there was no evidence presented and no finding made by the trial court of wilful or voluntary unemployment authorizing the imputing of such income under OCGA § 19-6-15 (f) (4) (D).

In calculating the amount of child support Meadows was required to pay Caldwell, the trial court made the following finding:

The Court finds that [Caldwell] was employed at a Barnes & Noble book store in Florida prior to the birth of her child and her income at the time she quit her employment there was $32,000 per year. [Caldwell] did not testify that she was terminated or otherwise involuntarily lost this employment and source of income. Therefore, the Court will impute income to [Caldwell] in the amount of $2666.67 per month.

The order later stated that the trial court was imputing that income “based on her ability to earn $32,000 per year.” Based upon its calculations as to the party’s relative financial situation, the trial court awarded Caldwell $850 per month in child support. Caldwell contends the trial court erred in imputing her former income because she testified that she had to move from Florida as the result of the birth of her child in order to depend upon family assistance, and there was no evidence that she could obtain an income of $32,000 per year in Ben Hill County, Georgia, where she now resided.

The evidence showed that Caldwell was making $32,000 at Barnes & Noble and had health insurance available to her when she apparently made the decision to quit her Florida job and move to Georgia to live with her parents. The trial court was entitled under OCGA § 19-6-15 (f) (4) (D) to consider her past employment and her reasons for voluntarily terminating her employment and to assess the reasonableness of her decisions in deciding whether to impute income, without making specific findings on these matters:

OCGA § 19-6-15 (f) (4) (D) does not require a trial court to make written findings as to why it decided to impute income to a spouse. It merely directs “the court or the jury (to) ascertain the reasons for the parent’s occupational choices and assess the reasonableness of these choices in light of the parent’s responsibility to support his or her child and whether such choices benefit the child.”

Bankston v. Lachman, 286 Ga. 459, 461 (2) (689 SE2d 301) (2010). See also Banciu v. Banciu, 282 Ga. 616, 617-618 (1) (652 SE2d 552) (2007) (earning capacity may be considered in determining child support, including past income); Larizza v. Larizza, 286 Ga. 461, 462 (2) (689 SE2d 306) (2010). We find no error.

4. Caldwell also asserts that the trial court violated OCGA § 19-7-25 by lifting the supersedeas imposed by her filing a motion for new trial and by ordering that she not deny Meadows custody and visitation in the interim. OCGA § 19-7-25 provides that “[o]nly 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. Otherwise, the mother may exercise all parental power over the child.” She asserts that until Meadows’s petition for legitimation is concluded, he had no rights to custody or visitation.

The trial court issued its final order on the petition for legitimation on November 24, 2010. Meadows’s first visitation with his son under that order was scheduled for December 4 and 5, 2010. Caldwell apparently denied Meadows access to his son on those dates and filed a motion for new trial the next day on December 6, 2010. On December 9, 2010, upon Meadows’s motion, the trial court lifted the supersedeas arising from the filing of Caldwell’s motion for new trial as it pertained to “parenting time, custody rights and visitation” awarded in its final order. Caldwell filed her application for discretionary appeal the same day. Under OCGA § 5-6-35 (h) and Court of Appeals Rule 40 (a), the filing of a discretionary appeal acts as a supersedeas to the extent that the filing of a notice of appeal acts as a supersedeas. On December 29, 2010, this Court granted Caldwell’s application for discretionary appeal upon finding that she had a right to a direct appeal from the trial court’s order as it involved the establishment of legal custody over her child. See Daniels v. Barnes, 289 Ga. App. 897, 899, n. 1 (658 SE2d 472) (2008); OCGA § 5-6-34 (a) (11). Caldwell filed her notice of direct appeal on January 4, 2011. Accordingly, assuming that Caldwell has paid all costs in the trial court, a supersedeas has been in place at least since that date. OCGA § 5-6-46 (a); Court of Appeals Rule 40 (a).

Decided October 14, 2011.

Rainwater & Gibbs, David N. Rainwater, for appellant.

Jay, Sherrell, Smith & Braddy, John E. Smith II, for appellee.

Given this procedural posture, we agree with Meadows that any issue surrounding the supersedeas imposed by the motion for new trial is moot.

5. The “Appellee’s Motion to Impose a Penalty for Filing Frivolous Appeal” filed by Meadows is hereby denied.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       Moreover, Caldwell points us to no evidence demonstrating that she could not earn a similar income in her current location. Compare Duncan v. Duncan, 262 Ga. 872 (426 SE2d 857) (1993) (error to impute $32,000 income to husband where evidence showed that he was laid off from former employment and had been unsuccessful in his efforts to find similar employment).


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A11A1044.
    BRASILE v. BECK et al.
    (717 SE2d 677)
   Smith, Presiding Judge.

Julie Brasile appeals from the trial court’s dismissal of her renewal action against Jennifer Beck and Viona Fox. We affirm because Brasile’s original action was void based upon her failure to personally serve Beck and Fox.

The record shows that Brasile was injured in an automobile accident on October 22, 2006. On September 28, 2008, Brasile filed a complaint against Beck and Fox in Peach County Superior Court. After the sheriffs department was unable to personally serve the defendants at the address provided, Brasile obtained an order for service by publication on October 29, 2008. After realizing that the defendants might be residents of Crawford County, plaintiffs counsel dismissed the Peach County case in May 2009, after the expiration of the statute of limitation.

On August 5, 2009, Brasile filed a renewal action in Chatham County State Court, and she personally served Beck and Fox with the summons and complaint. The State court subsequently granted Beck and Fox’s motion to transfer the case to Crawford County Superior Court.

Beck and Fox then moved to dismiss the renewal complaint in Crawford County based upon Brasile’s failure to personally serve them with the original action. The trial judge held a hearing on the motion more than three months after Brasile filed an initial response to the motion to dismiss. During the hearing, the judge did not hear the merits, but instead gave Brasile an opportunity to submit evidence in writing after the hearing. Two weeks later, Brasile’s counsel filed an affidavit summarizing his initial efforts to personally serve Beck and Fox in the original Peach County action. His affidavit does not include any details about any continuing efforts to personally serve them with the original Peach County action after he obtained the order for service by publication.

Six weeks after plaintiff’s counsel’s affidavit was submitted, the trial court issued a written order granting summary judgment to Beck and Fox due to Brasile’s failure to personally serve them in her original action before voluntarily dismissing it.

1. Brasile asserts the trial court erred by converting the motion to dismiss into one for summary judgment, resulting in unspecified “extreme prejudice” to Brasile. While Brasile correctly asserts that the trial court erred by converting the motion to dismiss based upon insufficient service into a motion for summary judgment, Poteate v. Rally Mfg., 260 Ga. App. 34, 35 (1) (579 SE2d 44) (2003), we find no error because Brasile cannot demonstrate how she has been prejudiced. “Regardless of the nomenclature, the issue before the trial court was the same. . . .” (Citation omitted.) Id. And, Brasile had adequate notice and opportunity to respond to the converted summary judgment motion. See Jones v. Ward, 201 Ga. App. 757, 758-759 (1) (412 SE2d 576) (1991).

2. Brasile asserts the trial court erred by dismissing her renewal action because her failure to personally serve the defendants in the original action did not render it void. We disagree.

“The renewal statute applies only to actions that are valid prior to dismissal. To constitute a ‘valid action,’ the complaint must be served personally on the defendant.” (Citations omitted.) Hudson v. Mehaffey, 239 Ga. App. 705, 706 (521 SE2d 838) (1999). Service by publication is insufficient to obtain a personal judgment against any defendant and renders an original action void for purposes of the renewal statute. Williams v. Hunter, 291 Ga. App. 731, 732 (662 SE2d 810) (2008); Costello v. Bothers, 278 Ga. App. 750, 752 (2) (629 SE2d 599) (2006); Hawkins v. Wilbanks, 248 Ga. App. 264, 265 (546 SE2d 33) (2001).

Decided October 14, 2011.

Scheer & Montgomery, Craig A. Call, for appellant.

Wallace Miller III, for appellees.

Contrary to Brasile’s assertions, the Supreme Court’s decision in Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322) (1994), does not require a different result. In Hobbs, the defendants in the original actions were personally served, and the original suits were therefore not void. In this case, neither of the two defendants was personally served in the original action.

Judgment affirmed.

Mikell and Dillard, JJ., concur.


text:
    A11A1066.
    DELAVEGA v. THE STATE.
    (717 SE2d 681)
   Smith, Presiding Judge.

Daniel Delavega appeals from his convictions for trafficking in cocaine and operating a vehicle with a false compartment. In his sole enumeration of error, Delavega contends that insufficient evidence supports his conviction. We disagree and affirm.

Viewed in the light most favorable to the verdict, the record shows generally that Delavega was driving a car in which the gas tank had been modified to include a hidden compartment containing $130,000 in cash bundles and nearly a kilogram of cocaine. Delavega and his passenger, Feliciano, worked together at an automobile repair shop and were driving from North Carolina to Atlanta at the time of their arrest. The arresting officer testified that he smelled automobile body filler (“Bondo”) when he opened the car door, that Delavega and Feliciano gave conflicting stories about their travel plans, and that there was no extra clothing or luggage in the car for an overnight trip.

Delavega testified at trial and denied any knowledge of the hidden compartment. He claimed that he did not smell Bondo while driving the car and explained that he did not take any clothes with him on the overnight trip because “they probably — they’re going to provide us or buy some at, like, WalMart. Just — it’s going to be one night.”

Decided October 14, 2011.

Mary Erickson, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Delavega asserts that the equal access rule and his testimony that he was unaware of the hidden compartment provide a reasonable hypothesis of innocence. We rejected this claim in Feliciano, supra, for the following reason:

Both Delavega and Feliciano were charged in the same indictment with jointly trafficking in cocaine, and equal access provides no defense where, as here, the evidence shows that the person who had equal access was in joint constructive possession of the contraband. [] Thus, evidence existed for the jury to find that Feliciano was guilty of trafficking in cocaine beyond a reasonable doubt.

(Citations, punctuation and footnotes omitted.) Id. at 331. Based upon this reasoning, the presumption that the driver of an automobile is in constructive possession of an automobile, the conflicting stories provided by Delavega and Feliciano about their travel plans and the ownership of the car, Delavega’s lack of luggage for an overnight trip, and his denial of the smell of Bondo, we find sufficient evidence supports the jury’s verdict beyond a reasonable doubt. Id. As we noted in Feliciano, “[a] jury could infer that one or both were lying and that these lies evidenced guilty knowledge.” (Citations, punctuation and footnote omitted.) Id.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       This court has already considered and rejected an identical claim by Delavega’s co-defendant, Armando Feliciano, based upon the same facts set forth in detail in our opinion in Feliciano v. State, 302 Ga. App. 328 (690 SE2d 680) (2010).

       Our opinion in Whipple v. State, 207 Ga. App. 131 (427 SE2d 101) (1993), does not control. In that case, the equal access defense applied based upon uncontroverted evidence that noncharged parties had access to the car in which drugs were hidden. Id. at 132 (1). See Ramirez v. State, 290 Ga. App. 3, 5 (1) (658 SE2d 790) (2008).


text:
    A11A1391.
    FORD v. THE STATE.
    (717 SE2d 676)
   Smith, Presiding Judge.

Joe Nathan Ford pled guilty to aggravated assault and possession of a knife during the commission of a crime and was sentenced to serve ten years of a twenty-five-year sentence. Ford appeals, pro se, from the trial court’s denial of his motion to withdraw his guilty plea. For the following reasons, we reverse and remand this case to the trial court.

1. Ford complains that the trial court failed to appoint him counsel for purposes of his motion to withdraw his guilty plea. Ford was represented by private counsel when he entered his guilty plea. The record reveals that several days later, Ford sent a letter, dated March 8, 2011, to the “indigent case manager” requesting assistance to withdraw the plea. At the bottom of the letter is a handwritten response from an unknown party that states: “We did not represent you. You had a private attorney.” Ford apparently interprets this statement as a denial of his request for counsel. Ford filed a pro se motion to withdraw his guilty plea on the ground that the plea was not knowingly and voluntarily entered because he received ineffective assistance of counsel. He then represented himself at the hearing on the motion to withdraw the plea. Following that hearing, the trial court denied Ford’s motion to withdraw his plea.

In Fortson v. State, 272 Ga. 457 (532 SE2d 102) (2000), the Georgia Supreme Court held that a proceeding to withdraw a guilty plea is a critical stage of a criminal prosecution, id. at 459 (1), and that “the right to counsel attaches when a defendant seeks to withdraw a guilty plea, thus entitling that defendant to assistance of counsel.” Id. at 460 (1). The court held further that the trial court has an obligation to provide counsel or to obtain a constitutionally valid waiver of counsel from the defendant who sought to withdraw his guilty plea. Where the trial court has failed to do either, the absence of counsel is prejudicial and “the harmless error doctrine would be inappropriate” where as here the defendant has asserted that his guilty plea was not knowingly and voluntarily entered. Id. at 460-461 (2).

Because Ford was not appointed counsel for his motion to withdraw his plea, the record does not reveal that the court informed him of his right to counsel, and no waiver of counsel appears in the record, “we reverse and remand this case to the trial court for a re-hearing on [Ford’s] motion to withdraw his guilty plea to be conducted in conformity with this opinion.” Fortson, supra, 272 Ga. at 461 (2); Kennedy v. State, 267 Ga. App. 314, 314-315 (599 SE2d 290) (2004).

2. Ford’s remaining enumerations are rendered moot by our holding in Division 1.

Decided October 14, 2011.

Joe N. Ford, pro se.

Leigh E. Patterson, District Attorney, Finnis K. Salmon, Assistant District Attorney, for appellee.

Judgment reversed and case remanded.

Mikell and Dillard, JJ., concur.

       This right extends through the direct appeal of an order denying the defendant’s motion to withdraw his plea. Murray v. State, 265 Ga. App. 119, 120 (592 SE2d 898) (2004).


text:
    A11A1460.
    HONG INVESTMENTS, LLC v. SARSFIELD.
    (717 SE2d 679)
   Smith, Presiding Judge.

Following a bench trial, Hong Investments, LLC (“Hong”) appeals from the trial court’s judgment finding unenforceable a personal guaranty signed by Michael Sarsfield. Because the trial court erred in its conclusion, we reverse.

“The trial court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.” (Citations and punctuation omitted.) Slaick v. Arnold, 307 Ga. App. 410 (705 SE2d 206) (2010). Applying this standard here, the record reveals that Hong entered into a lease agreement with TDC-Berkeley Lake, LLC d/b/a Three Dollar Café (“Three Dollar Café”) dated November 27, 2007, in which Hong was listed as the landlord and Three Dollar Café as the tenant. Sarsfield signed the lease as manager of the tenant under the printed name “TDC-Berkeley Lake, LLC d/b/a Three Dollar Café, a Georgia limited liability company.” Although there is no date shown for Sarsfield’s execution of the lease, Hong signed it on November 27, 2007. On November 28, 2007, Sarsfield signed a personal guaranty agreeing to pay the “Landlord” rent in the event that the “Tenant” defaulted on the “Lease.” The guaranty did not identify the “Landlord,” “Tenant,” or “Lease.”

When Three Dollar Café defaulted on the lease, Hong attempted to recover unpaid rent pursuant to the personal guaranty signed by Sarsfield. During a bench trial on the matter, Sarsfield admitted signing both the lease and the guaranty, and stated that the only issue he disputed was the amount owed to Hong. The trial court, in entering judgment in favor of Sarsfield, found that “the personal guaranty is unenforceable as it fails to identify the principal debtor or sufficiently identify the party whose debt is being guaranteed.” It is from this order that Hong appeals.

The statute of frauds requires that a promise to answer for the debt of another, in order to be binding on the promisor, must be in writing and signed by the party to be charged therewith. This requirement has been interpreted to mandate further that a guaranty identify the debt, the principal debtor, the promisor, and the promisee. Even where the intent of the parties is manifestly obvious, where any of these names is omitted from the document, the agreement is not enforceable because it fails to satisfy the statute of frauds.

(Citations and punctuation omitted.) LaFarge Bldg. Materials v. Pratt, 307 Ga. App. 767, 768-769 (706 SE2d 131) (2011); see Dabbs v. Key Equip. Finance, 303 Ga. App. 570, 572 (694 SE2d 161) (2010); see also OCGA § 13-5-30 (2). But OCGA § 24-6-3 (a) provides: “All contemporaneous writings shall be admissible to explain each other.” And “as long as all the necessary terms are contained in signed contemporaneous writings, the statutory requirements and purpose of the Statute of Frauds have been met, whether or not the writings are cross-referenced.” (Citations, punctuation and footnotes omitted.) Dabbs, supra, 303 Ga. App. at 573.

Here, although neither the lease nor the guaranty makes reference to the other, the guaranty and lease were both signed by Sarsfield, both were notarized by the same party, and the guaranty was executed one day after the lease was dated and executed by Hong. This evidence was sufficient to show that the documents are sufficiently contemporaneous. See Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (1) (314 SE2d 874) (1984) (three documents executed on same day contemporaneous although they do not refer to each other); see also Dabbs, supra, 303 Ga. App. at 574-575 (ten-day interval between lease and guaranty sufficiently contemporaneous). And the record reveals that the documents were also executed in the course of the same transaction, which Sarsfield acknowledges. Compare Dabbs, supra, 303 Ga. App. at 575. Attached to Hong’s complaint is “Exhibit A” which contains a copy of the lease and exhibits to the lease all sequentially numbered on the first page of each exhibit, and at the bench trial these documents were submitted as “Plaintiffs Exhibit 3.” The guaranty is labeled as an exhibit and sequentially numbered on page 17 of the lease. See C.L.D.F., Inc. v. The Aramore, LLC, 290 Ga. App. 271, 273 (1) (659 SE2d 695) (2008) (guaranty attached as exhibit to lease).

Decided October 14, 2011.

Emory A. Schwall, for appellant.

Michael E Sarsfield, pro se.

Because the lease and guaranty were contemporaneous writings made within the course of the same transaction, the statute of frauds is satisfied. The trial court therefore erred in concluding that the guaranty was unenforceable.

Judgment reversed.

Phipps, P. J., and Andrews, J., concur.

       The date Sarsfield signed the lease is unknown.


author: Dillard, Judge.

text:
    A11A1248.
    FIRST MEDIA GROUP, INC. v. DOE.
    (717 SE2d 277)
   Dillard, Judge.

First Media Group, Inc. (“FMG”) appeals an order in which the trial court declined to set aside Jane Doe’s voluntary dismissal of her lawsuit, which occurred after Doe became aware that the court requested FMG to draft a proposed order granting its motion for summary judgment. The trial court permitted the voluntary dismissal over FMG’s objection upon concluding that Doe did not have actual notice of the trial court’s intended disposition of FMG’s summary-judgment motion prior to dismissing the complaint. For the reasons noted infra, we affirm.

The underlying facts are largely undisputed. Jane Doe sued FMG on behalf of her minor daughter, Julie Doe, who was allegedly raped by a customer of FMG’s “Quest Personals” telephone system, which Julie had joined. FMG moved for summary judgment on Doe’s claims, and the trial court conducted a hearing on the motion.

At some point following the hearing, the trial judge’s law clerk telephoned FMG’s counsel to request that FMG draft a proposed order granting summary judgment in its favor. No similar request was made of Doe or her counsel.

On Friday evening, April 3, 2009, FMG’s counsel sent an e-mail, with the draft order attached, to the trial judge’s law clerk and copied the e-mail to Doe’s counsel, which noted: “Per your request, attached as an editable Word document is a proposed opinion in the Jane Doe matter.” This was the first, and only, communication to Doe or her counsel regarding a potential resolution of FMG’s summary-judgment motion. Doe’s counsel called the trial court’s chambers the same night and the following Monday morning to inquire as to whether the court also wanted Doe to draft a proposed order, but he was unable to reach anyone.

Later that morning, Doe filed a voluntary dismissal without prejudice under OCGA § 9-11-41 (a) (1) (A), to which FMG objected. The trial court issued an order expressly holding that it had neither communicated any intended disposition to Doe or her counsel, nor had FMG’s e-mail imputed to Doe actual knowledge of a decided ruling by the trial court on FMG’s summary-judgment motion. Consequently, the trial court held that Doe’s voluntary dismissal was proper.

On appeal, FMG contends that the trial court erred in concluding that Doe did not have actual knowledge of the trial court’s impending decision in favor of FMG. To the extent our analysis of the trial court’s order involves mixed questions of law and fact, we review the court’s factual findings for clear error and the accompanying legal issues de novo.

At the outset, we note that under Georgia law a plaintiff may voluntarily dismiss her complaint without prejudice “[b]y filing a written notice of dismissal at any time before the first witness is sworn.” However,

the announcement by a trial judge of a decision that will terminate a civil case, though that decision has not been formally reduced to writing and entered, will preclude the filing of a voluntary dismissal after the announcement but before the judgment is actually entered by the trial judge.

Further, “[i]t is knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.”

And here, FMG asserts that Doe’s awareness of FMG’s e-mail communication to the trial court — in which FMG acknowledged the trial court’s request for a proposed order — amounted to “actual knowledge” by Doe that the trial court would “likely . . . grant[ ]” summary judgment against her. FMG argues, therefore, that Doe was prohibited from voluntarily dismissing her complaint.

FMG’s argument, however, fails for two reasons. First, preter-mitting the issue of whether the law precludes a plaintiff from dismissing a lawsuit based upon information gleaned from a third-party regarding a court’s intended disposition of a case, the trial court’s request for a proposed order in the case sub judice did not demand a finding that the court intended to rule in FMG’s favor. Second, as held by the trial court, FMG’s e-mail did not impute to Doe or her counsel actual knowledge of the court’s impending ruling, which it never announced or rendered. Thus, while Doe may have (understandably) inferred from the trial court’s request a possible or likely ruling, or more colloquially, that the “handwriting was on the wall,” in the absence of “an announcement from the trial court of the actual outcome of the case, the ‘handwriting on the wall’ is merely in pencil, subject to being erased.” And “[tjhe right of a plaintiff to have his case decided on its merits cannot be cut off by what is only formulated, or formulating, in the judge’s mind.” It follows, then, that a request by the trial court’s clerk that FMG draft a proposed order in its own favor did not enable FMG to effect an end to Doe’s case by informing Doe of that request.

Accordingly, the trial court did not err in finding that FMG’s e-mail did not impute to Doe actual knowledge of an unfavorable ruling by the court, or in concluding that Doe was authorized to voluntarily dismiss her lawsuit.

Decided September 21, 2011

Reconsideration denied October 17, 2011

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, Alston & Bird, Jay D. Bennett, for appellant.

Lance A. Cooper, Robert K. Finnell, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       OCGA § 9-11-41 (a) (1) (A) (‘TA]n action may be dismissed by the plaintiff, without order or permission of court. . . [b]y filing a written notice of dismissal at any time before the first witness is sworn.”). Such a dismissal is without prejudice. Id. at (a) (3).

        McGhee v. Jones, 287 Ga. App. 345, 347 (2) (652 SE2d 163) (2007).

       OCGA § 9-11-41 (a) (1) (A).

        Johnson v. Wade, 184 Ga. App. 675, 676 (1) (362 SE2d 469) (1987) (quoting Jones v. Burton, 238 Ga. 394, 396 (1) (233 SE2d 367) (1977)).

        Id. (citing Groves v. Groves, 250 Ga. 459 (1) (298 SE2d 506) (1983)).

        See Groves, 250 Ga. at 459 (“It has been held that the plaintiffs right to dismiss can not be exercised after a verdict or a finding by the judge which is equivalent thereto has been reached, if he has acquired actual knowledge of the verdict or finding, whether the same has been published or not.” (citation and punctuation omitted)); Leary v. Julian, 225 Ga. App. 472, 473-74 (1) (484 SE2d 75) (1997) (“Georgia courts have found preclusive ... a statement by the trial court that summary judgment ‘likely would be granted’ ” (citation and punctuation omitted)).

         Groves, 250 Ga. at 459 (1).

        See Lakes v. Marriott Corp., 264 Ga. 475, 477 (448 SE2d 203) (1994) (“[UJntil the entry of that judgment or an announcement by the trial court of an intent to rule for the defendant, the defendant has only an expectation of being awarded a judgment.” (citation and punctuation omitted)); Groves, 250 Ga. at 459 (“It is the knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.” (citation and punctuation omitted)); McKesson Corp. v. Green, 286 Ga. App. 110, 116 (2) (648 SE2d 457) (2007) (“[A] plaintiff retains the right to dismiss without prejudice even if he anticipates a negative ruling but the trial court has not actually ruled.”); Johnson, 184 Ga. App. at 676 (allowing plaintiffs to voluntarily dismiss lawsuit even after trial court signed order dismissing it with prejudice because there was “no evidence that the trial court announced or communicated its decision to plaintiffs”).

        Lakes, 264 Ga. at 477.

        Mikkilineni v. Lawver, 267 Ga. App. 558, 560 (601 SE2d 128) (2004) (quoting Bytell v. Paul, 173 Ga. App. 83, 84 (325 SE2d 451) (1984)).

        See, e.g., Lakes, 264 Ga. 475 (plaintiff dismissed complaint after defendant obtained arbitration award and moved for entry of judgment); McKesson Corp., 286 Ga. App. at 116 (2) (plaintiff dismissed lawsuit after trial court disallowed the opinion of plaintiffs expert witness as to damages); Mariner Health Care v. PricewaterhouseCoopers, 282 Ga. App. 217 (638 SE2d 340) (2006) (plaintiff dismissed lawsuit day before sanctions hearing); Mikkilineni, 267 Ga. App. 558 (plaintiff dismissed case after trial court indicated it would grant the defendant’s motion for directed verdict).


author: Miller, Presiding Judge.

text:
    A11A1466.
    A11A1467.
    GRIFFIN et al. v. STATE BANK OF COCHRAN. STATE BANK OF COCHRAN v. MAL RENTALS, LLC et al.
    (718 SE2d 35)
   Miller, Presiding Judge.

State Bank of Cochran d/b/a First Laurens Bank (“FLB”) filed suit against MAL Rentals, LLC and Loretta M. Griffin to collect on a promissory note. In their answers to the complaint, MAL Rentals and Griffin raised several defenses, including estoppel. Griffin also asserted a counterclaim, alleging fraudulent inducement and securities fraud in violation of the former Georgia Securities Act of 1973. FLB filed a motion for summary judgment as to its collection claims and the counterclaim. The trial court denied FLB’s motion as to its collection claims, but granted the motion as to the counterclaim. These cross-appeals then ensued.

In Case No. A11A1466, Griffin contends that the trial court erred in granting FLB’s motion for summary judgment as to her counterclaim. In Case No. A11A1467, FLB contends that the trial court erred in denying its motion for summary judgment as to its collection claims alleging breach of the promissory note and guaranty and entitlement to attorney fees. For the reasons that follow, we affirm the grant of summary judgment in FLB’s favor as to the counterclaim in Case No. A11A1466; we reverse the denial of summary judgment in FLB’s favor as to its collection claims in Case No. A11A1467.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Footnote omitted.) Baxter v. Fairfield Financial Svcs., 307 Ga. App. 286, 287 (704 SE2d 423) (2010).

So viewed, the record evidence shows that in 2002, Griffin began serving as a member of the board of directors of Community Bank of West Georgia (“CBWG” or “the bank”) and its holding company, Community Bancshares of West Georgia, Inc. (“Community Banc-shares”) (collectively, “the boards”). Griffin regularly attended the board meetings, served as the chairperson of several of the board’s committees, and made it a practice to know about the financial positions of CBWG and Community Bancshares. While serving on the boards in 2003, Griffin made an investment by purchasing common stock in Community Bancshares.

In 2006, the boards decided to hire a consultant, Charles Stevens, to advise them regarding CBWG and Community Banc-shares operations and to assist in their efforts to sell the CBWG bank. Stevens provided consultancy services to the boards through his company, Stevens & Company. In addition to operating his consulting company, Stevens also served as a member of the advisory board of FLB.

At some point while Stevens was serving as the boards’ consultant, Stevens informed the boards’ members that a sale of CBWG was imminent and that interested purchasers had been performing due diligence in anticipation of buying CBWG. Pending a potential sale, however, additional capital was necessary to fund CBWG’s continuing operations. According to Griffin, Stevens advised the boards’ members to purchase additional shares of stock in order to generate the necessary capital. Griffin followed Stevens’s recommendation and purchased additional Community Bancshares stock in 2007 and 2008.

Griffin gave deposition testimony that she obtained a loan from FLB in order to make her 2007 and 2008 stock purchases. Thereafter, Griffin transferred the stock into the name of MAL Rentals, a company that she owned and operated.

In May 2009, FLB agreed to refinance Griffin’s original loan. The refinanced loan was placed in the name of MAL Rentals as the debtor. On behalf of MAL Rentals, Griffin executed a promissory note (“the Note”) that set forth the terms of the refinanced loan. Griffin also executed a security agreement that pledged the stock as collateral securing the refinanced loan. In addition, Griffin signed a personal guaranty (“the Guaranty”) accepting unconditional liability for repayment of the loan, including “all principal, accrued interest, attorneys’ fees and collection costs[.]”

Pursuant to the terms of the Note, FLB made MAL Rentals a loan in the amount of $249,542.50. The loan was to be repaid on May 11, 2010, with interest accruing at a rate of 6.000 percent per annum. “After maturity or acceleration [of the Note], interest . . . accrue[d] on the unpaid [principal balance ... at 18.000 percent until paid in full.” The Note further defined several conditions of default, including in pertinent part, MAL Rentals’s “fail[ure] to make a payment in full when due” and FLB’s “determin[ation] in good faith that the value of the [collateral] has declined or is impaired.” In the event of a default, the Note authorized FLB to accelerate the Note, making all or any part of the amount owed immediately due. Upon default, FLB was also authorized to recover all expenses related to collection of the debt, including “attorneys’ fees, court costs, and other legal expenses.” The Note specified that the amount of attorney fees owed would be “15 percent of the [p]rincipal and interest owing!.]” The Note further contained an “Integration” clause, stating that “th[e] Note and the other Loan Documents [were] the complete and final expression of the agreement” between the parties. The Guaranty contained a similar “Integration” clause.

In June 2009, CBWG was closed by the Georgia Department of Banking and Finance, and the Federal Deposit Insurance Corporation was named as receiver. In light of CBWG’s closure, FLB determined that the stock collateral securing the debt was rendered worthless, and thus, a condition of default had occurred pursuant to the terms of the Note. On July 28, 2009, FLB sent Griffin a letter notifying her that a default had occurred since “the collateral decline[d] in value.” The letter required Griffin to provide substitute collateral within ten days and advised her that FLB would honor the repayment terms of the Note, conditioned upon her substitution of collateral meeting the margin requirements of the security agreement. Griffin and MAL Rentals failed to provide substitute collateral, as requested. On September 1, 2009, FLB sent Griffin a second letter, again requesting that MAL Rentals cure the default within ten days by substituting adequate collateral. The second letter further advised that the debt had been accelerated so as to render the debt immediately due and payable and that upon failure to cure the default or to pay the accelerated balance, FLB would pursue its legal remedies, including collection of the unpaid balance, late fees, attorney fees, collection costs, and interest.

When MAL Rentals and Griffin still failed to provide substitute collateral or repay the indebtedness, FLB filed the instant collection lawsuit to enforce the terms of the Note and the Guaranty. FLB’s complaint alleged claims for breach of the Note, breach of the Guaranty, and entitlement to attorney fees. MAL Rentals and Griffin raised several defenses, including estoppel. Griffin also asserted a counterclaim, alleging fraudulent inducement and securities fraud in violation of the former Georgia Securities Act of 1973. FLB filed a motion for summary judgment. The trial court denied FLB’s motion as to its collection claims, but granted the motion as to Griffin’s counterclaim.

Case No. A11A1466

1. Griffin contends that the trial court erred in granting summary judgment in FLB’s favor as to her counterclaim for fraudulent inducement and securities fraud. We discern no error.

(a) “The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” (Citations and punctuation omitted.) Fuller v. Perry, 223 Ga. App. 129, 131 (1) (476 SE2d 793) (1996). To survive a motion for summary judgment, Griffin was required to present some evidence of each element of the fraud tort. See id. The grant of summary judgment was proper if one essential element of the claim was eliminated. See id.

Here, Griffin’s fraud claim was based, in part, upon Stevens’s alleged misrepresentation that CBWG was going to sell, which purportedly induced Griffin to obtain the loan for her purchase of additional stock used to fund CBWG’s continued operations pending a potential sale. Griffin’s claim in this regard, however, was legally inactionable.

Regardless of whether Stevens’s alleged misrepresentation could be attributed to FLB,

[i]t is axiomatic that a false representation made by a defendant, to be actionable, must relate to an existing fact or a past event. Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events. Representations concerning expectations and hopes are not actionable.

(Citations and punctuation omitted.) Fuller, supra, 223 Ga. App. at 131 (1). Griffin’s deposition testimony acknowledged that she was aware that no final sale of CBWG had occurred at the time of the alleged misrepresentation and when she obtained the loan. The evidence reflected that Stevens’s alleged prediction that CBWG was going to sell amounted to mere prospect, expectation or erroneous conjecture. As such, the representation was not actionable. See id.

“It is true that claims of fraud arising from a representation of a future event made with knowledge that it is false or intention not to perform may be actionable.” (Citation omitted.) Fuller, supra, 223 Ga. App. at 131-132 (1). Griffin, however, has pointed to no evidence showing that Stevens made the alleged representation with knowledge that a sale would not occur or intention that a sale would not be finalized. “Bare conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment.” (Footnote omitted.) Johnson v. First Union Nat. Bank, 255 Ga. App. 819, 824 (6) (567 SE2d 44) (2002).

Griffin also characterizes Stevens’s recommendation to invest more capital in CBWG as a misrepresentation. Griffin, however, has not presented any evidence that Stevens’s recommendation amounted to a false representation. Indeed, Griffin has neither asserted nor pointed to any evidence indicating that Stevens misrepresented or falsely informed Griffin about CBWG’s financial condition. Rather, consistent with Stevens’s alleged representation, Griffin’s deposition testimony acknowledged that additional capital was necessary in order to continue CBWG’s operations and that it was up to the boards’ members to generate the funds needed.

Moreover, Griffin has not shown that she justifiably relied upon the representation. “Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence.” GCA Strategic Investment Fund v. Joseph Charles & Assocs., 245 Ga. App. 460, 464 (3) (537 SE2d 677) (2000). We have held that

as a matter of economic and social policy, third parties should be encouraged to rely on their own prudence, diligence, and contracting power, as well as other informational tools. This kind of self-reliance promotes sound investment and credit practices and discourages the careless use of monetary resources.

(Citation and punctuation omitted.) White v. BDO Seidman, LLP, 249 Ga. App. 668, 672-673 (1) (549 SE2d 490) (2001). The evidence shows that as a member of the boards, Griffin had knowledge and access to information about CBWG’s and Community Bancshares’s financial positions. Griffin conceded that she was privy to all information necessary to make the stock investment decision. “Therefore, [Griffin was] in at least as good a position as the [FLB] to analyze [CBWG’s and Community Bancshares’s] financial condition, and [her] failure to investigate the matter showed a lack of due diligence.” (Punctuation and footnote omitted.) Baxter, supra, 307 Ga. App. at 294 (4). See also Bogle v. Bragg, 248 Ga. App. 632, 636 (1) (548 SE2d 396) (2001) (in light of the investor’s knowledge about the operational history of the company, he did not show that he justifiably relied upon alleged misrepresentations in connection with his purchase of the company’s stock).

Griffin’s attempt to implicate FLB in her investment decision also fails since “no confidential relationship exists between a bank and its customers or others with whom the bank deals.” (Citations omitted.) Lilliston v. Regions Bank, 288 Ga. App. 241, 244 (1) (653 SE2d 306) (2007). “[W]e have held that a bank has no duty to advise a party who is contemplating serving as the guarantor for a bank loan about problems with the viability of the business venture financed by the loan.” (Citations omitted.) Id.

For each of these reasons, Griffin’s fraud claim was unsubstantiated, and FLB was entitled to the grant of summary judgment on the claim.

(b) Likewise, we conclude that summary judgment was properly granted in favor of FLB as to Griffin’s securities fraud claim. Griffin’s counterclaim alleged that FLB’s actions in the loan transaction violated the provisions of the former Georgia Securities Act of 1973. She cited to OCGA § 10-5-12 (a) (2) of the former Act, which provided as follows:

It shall be unlawful for any person . . . (i)n connection with an offer to sell, sale, offer to purchase, or purchase of any security, directly or indirectly: (A) To employ a device, scheme, or artifice to defraud; (B) To make an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or (C) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon a person.

Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 17 (5) (681 SE2d 717) (2009) (quoting provisions of former statute).

Regardless of the propriety of Griffin’s argument that the events surrounding her loan transaction fell within the purview of the Act, her claims lacked merit for the same reasons that her common law fraud claim failed. Significantly, “common law and securities fraud [under former OCGA § 10-5-12 (a)] require the same elements[.]” (Footnote omitted.) Keogler v. Krasnoff, 268 Ga. App. 250, 254 (1) (601 SE2d 788) (2004). As explained in Division 1 (a) above, Griffin failed to produce any evidence of either actionable misrepresentations or justifiable reliance, which were elements required to support her claim. The trial court’s decision granting FLB’s motion for summary judgment as to Griffin’s counterclaim for securities fraud was proper.

Case No. A11A1467

2. In its cross-appeal, FLB contends that the trial court erred in denying its motion for summary judgment as to the claims in its complaint. We agree.

FLB’s complaint alleged that MAL Rentals breached the Note and that Griffin breached the Guaranty. FLB claimed entitlement to be repaid in accordance with the terms of the loan, including the payment of attorney fees.

A creditor in possession of a valid and signed promissory note has a prima facie right to repayment, unless the debtor can establish a valid defense. A debtor cannot defeat this prima facie right of repayment by denying the debt for general reasons; it must assert a valid affirmative defense, such as estoppel or illegality.

(Footnotes omitted.) City of Bremen v. Regions Bank, 274 Ga. 733, 740 (5) (559 SE2d 440) (2002). Under OCGA § 13-1-11 (a) (1), the provisions of a promissory note authorizing the collection of attorney fees “shall be valid and enforceable up to but not in excess of 15 percent of the principal and interest owing on said note or other evidence of indebtedness^]”

MAL Rentals and Griffin admitted that they entered the Note and the Guaranty at issue and that they failed to pay their respective financial obligations. Based upon these admissions, FLB established a prima facie right to repayment. See City of Bremen, supra, 274 Ga. at 740 (5).

MAL Rentals and Griffin nonetheless raised the defenses of estoppel and breach of an implied duty of good faith and fair dealing in opposition to FLB’s motion for summary judgment. The evidence, however, failed to support either of the alleged defenses.

(a) MAL Rentals and Griffin based their estoppel defense on Stevens’s alleged misrepresentation that CBWG would sell. They further alleged that FLB had previously represented that it would continue to honor the terms of the Note, but failed to do so when it accelerated the Note and declared the Note to be in default.

“In order for an equitable estoppel to arise, there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury.” OCGA § 24-4-27. Similarly, promissory estoppel, codified at OCGA § 13-3-44 requires proof that

(1) the defendant made a promise or promises; (2) the defendant should have reasonably expected the plaintiff to rely on such promise; (3) the plaintiff relied on such promise to [her] detriment; and (4) an injustice can only be avoided by the enforcement of the promise, because as a result of the reliance, plaintiff changed [her] position to [her] detriment by surrendering, forgoing, or rendering a valuable right.

(Punctuation and footnotes omitted.) Hendon Properties v. Cinema Dev., 275 Ga. App. 434, 438-439 (2) (620 SE2d 644) (2005). Notably, “[e]stoppels are not favored by our law.” (Citation and punctuation omitted.) Cobb County Rural Elec. Membership Corp. v. Bd. of Lights &c., 211 Ga. 535, 539 (2) (87 SE2d 80) (1955).

To survive FLB’s motion for summary judgment as to the promissory estoppel defense, MAL Rentals and Griffin were required to show that they reasonably relied upon Stevens’s alleged representations regarding the prospects of CBWG’s sale. See generally Tampa Bay Financial v. Nordeen, 272 Ga. App. 529, 535 (2) (612 SE2d 856) (2005) (recognizing that a claimant cannot establish a case for promissory estoppel without proving that he justifiably relied upon the promises). Significantly, the Note and the Guaranty contained “Integration,” or entire agreement clauses, providing that the respective Note, loan documents, and the Guaranty “[were] the complete and final expression of the agreement” between the parties.

The entire agreement clause operates as a disclaimer, establishing that the written agreement completely and comprehensively represents all the parties’ agreement. The [debtor] is, therefore, barred from claiming that he or she relied on an alleged misrepresentation not contained within the agreement.

(Punctuation and footnotes omitted.) Herman Homes v. Smith, 249 Ga. App. 131, 132-133 (1) (547 SE2d 591) (2001). See also Tampa Bay Financial, supra, 272 Ga. App. at 533-535 (2) (concluding that the merger clause in the parties’ contract prevented the claimant from justifiably relying upon any promises made prior to execution of the contract, and thus, the claimant could not prevail on his promissory estoppel claim). The Note, loan documents, and the Guaranty did not contain the alleged representations or promises that CBWG would sell or condition repayment of the loan upon a prospective sale. In light of the entire agreement clauses, MAL Rentals and Griffin could not show that they reasonably relied upon the alleged representations in support of their promissory estoppel defense to avoid repayment of the loan. See id.

Moreover, as previously explained in Division 1 (a) above, FLB had no duty to advise MAL Rentals and Griffin regarding the viability of the business venture financed by the loan. See Lilliston, supra, 288 Ga. App. at 244 (1). Consequently, Stevens’s alleged misrepresentations could not serve as a basis to preclude repayment of the loan under the terms of the Note and the Guaranty. In addition, MAL Rentals and Griffin failed to show that FLB intended to deceive them in making the loan. Significantly, Griffin’s deposition testimony expressed a belief that FLB also likely thought that CBWG was going to sell, which is the reason that it agreed to provide the loan.

Contrary to MAL Rentals’s and Griffin’s claims otherwise, FLB did honor the terms of the Note. Griffin acknowledged that the plain terms of the Note provided that a decline in stock value was a condition that gave FLB the right to accelerate the Note. MAL Rentals and Griffin have failed to point to any evidence showing that FLB’s actions to enforce the provisions of the loan were deceptive.or fraudulent.

Griffin, however, claims that FLB told her that it would continue to renew the Note, although its purported promise was not reflected in the loan. “Promissory estoppel does not, however, apply to vague or indefinite promises, or promises of uncertain duration.” (Citation omitted.) Ga. Investments Intl. v. Branch Banking &c. Co., 305 Ga. App. 673, 675 (1) (700 SE2d 662) (2010). While Griffin claimed that FLB promised to renew the loan, she failed to present any evidence that FLB promised to renew the loan based on all pre-existing material terms or any other specific terms and conditions of any purported loan renewal. Since the alleged promise supporting the promissory estoppel claim was vague and indefinite, it was inaction-able. See id. at 675-676 (1). FLB satisfied its burden of showing the lack of a genuine issue of fact as to MAL Rentals’s and Griffin’s estoppel defense. See id. at 676 (1).

(b) The evidence also fails to support MAL Rentals’s and Griffin’s defense of breach of an implied duty of good faith and fair dealing. “Every contract implies a covenant of good faith and fair dealing in the contract’s performance and enforcement. . . . [B]ut the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability. (Citations and punctuation omitted.) Myung Sung Presbyterian Church v. North American Assn. of Slavic Churches &c., 291 Ga. App. 808, 810 (2) (662 SE2d 745) (2008). “There can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do.” (Citation and footnote omitted.) Cox v. Athens Regional Med. Center, 279 Ga. App. 586, 591 (1) (b) (631 SE2d 792) (2006). MAL Rentals and Griffin have failed to point to any provision of the Note or the Guaranty that FLB failed to perform in good faith. As previously stated, the express terms of the Note authorized FLB to accelerate the Note upon the occurrence of a default, which included the devaluation of the collateral. Accordingly, FLB did not breach the implied covenant by enforcing the express terms of the Note and the Guaranty. See id.

Decided October 17, 2011.

Smith Conerly, Charles S. Conerly, Randall C. Parian, for appellant.

Kilpatrick, Townsend & Stockton, Burleigh L. Singleton, John R. Gibson, for appellee.

There being no disputed material facts regarding the issues presented, FLB was entitled to recover on the Note and the Guaranty as a matter of law. See City of Bremen, supra, 274 Ga. at 740 (5). We therefore reverse the trial court’s denial of FLB’s motion for summary judgment.

Judgment affirmed in Case No. A11A1466. Judgment reversed in Case No. A11A1467.

Ellington, C. J., and Doyle, J., concur.

       The record contains contradictory evidence as to which banking entity financed Griffin’s 2007 and 2008 stock purchases. Contrary to Griffin’s deposition testimony, FLB submitted an affidavit from its assistant vice president indicating that Griffin’s original loan for the stock purchases was made by another entity, Bankers Bank (Silverton). In light of the summary judgment standard, however, we view the evidence in the light most favorable to Griffin, the nonmovant. See Baxter, supra, 307 Ga. App. at 287.

       The undisputed direct evidence established that Stevens was not acting on behalf of, or as an agent of, FLB when he provided consultancy services to the boards. Stevens attested that during his provision of services to the boards, he was working solely in his capacity as a representative of his company, Stevens & Company. Griffin similarly testified that when Stevens was serving as a consultant, he was acting alone in his own company. Griffin nevertheless argues that FLB is liable for Stevens’s misrepresentations to the extent that it subsequently ratified Stevens’s actions in making the loan. See OCGA § 10-6-1 (“The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.”); Multi-Media Holdings v. Piedmont Center, 15 LLC, 262 Ga. App. 283, 284 (1) (583 SE2d 262) (2003) (“Whether a ratification occurred is generally a question of fact for the jury. Ratification may occur if a business entity accepts the benefits of an act done by another on its behalf, although that person had no actual or apparent authority to act for the business.”) (citation and punctuation omitted). A determination of this issue, however, is unnecessary to resolve this appeal.

       Effective July 1, 2009, this chapter was amended and became known as the “Georgia Uniform Securities Act of 2008.” See OCGA § 10-5-1; Ga. L. 2008, p. 381, § 1. Since the transactions forming the basis of the counterclaim occurred prior to July 1, 2009, Griffin relies upon the provisions of the former Georgia Securities Act of 1973.

         Griffin’s counterclaim appears to assert that FLB is liable for securities fraud to the extent that it acted jointly and in concert with Stevens, who represented that CBWG would sell and recommended that she make the 1997 and 1998 stock purchases. FLB, however, claims that the stock purchase transactions were between Griffin and Community Bancshares. FLB disclaims any involvement in the stock purchases, except for the fact that it loaned Griffin the funds to pay for the 1997 and 1998 stock purchases. See Plunkett v. Francisco, 430 FSupp. 235, 240 (N.D. Ga. 1977) (concluding that the evidence failed to show that defendant violated the former Georgia Securities Act since he clearly was not the person making the sale or contract for sale in the securities transaction).

       MAL Rentals and Griffin also raised the defenses of failure of consideration and illegality. However, they did not present any argument as to those claims in the trial court below or in this appeal. As such, these defenses have been abandoned. We do not address grounds that were neither argued on appeal nor ruled upon by the trial court below. See Mandato & Assocs. v. Sepulveda Masonry, 303 Ga. App. 438, 439, n. 5 (693 SE2d 620) (2010).

       OCGA § 13-3-44 (a) provides that “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.”

       We note that although a merger clause in a contract being attacked and rescinded for fraud does not preclude proof that the contract was fraudulently induced, see City Dodge v. Gardner, 232 Ga. 766, 770 (208 SE2d 794) (1974); Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589, 591 (2) (411 SE2d 518) (1991), a merger clause may preclude a claimant from showing that he or she reasonably relied upon prior representations outside of the contract in support of a promissory estoppel claim to enforce the promise as binding, see Tampa Bay Financial, supra, 272 Ga. App. at 533-534 (2).


author: Barnes, Presiding Judge.

text:
    A11A0947.
    SLEDGE v. THE STATE.
    (717 SE2d 682)
   Barnes, Presiding Judge.

Michael L. Sledge appeals his convictions for driving under the influence and driving on a suspended license. He contends the trial court erred by denying his motion for new trial based upon the court’s earlier denial of his motion for a directed verdict on the driving on a suspended license charge. Sledge also contends his defense counsel was ineffective because he introduced a video of Sledge’s earlier traffic stop and because he did not object to leading questions by the prosecutor. Finding no error, we affirm Sledge’s convictions.

1. Sledge contends the trial court erred by denying his motion for new trial based upon the trial court’s denial of his motion for a directed verdict of acquittal. Because Sledge’s real complaint is that the trial court denied his motion for a directed verdict of acquittal, we will consider his motion under the standards appropriate for such motions rather than the denial of his motion for new trial. Courts should examine the substance of a motion, rather than its nomenclature, to determine what sort of relief is sought. Thompson v. State, 274 Ga. 818 (559 SE2d 730) (2002) (treating a motion to void judgments as a motion to withdraw guilty plea); Marshall v. State, 229 Ga. 841 (1) (195 SE2d 12) (1972) (there is no magic in nomenclature; substance controls our consideration of pleadings).

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1. In reviewing the denial of a motion for a directed verdict made at the close of the State’s case, an appellate court considers not only the evidence produced in the State’s case-in-chief, but also any evidence introduced subsequent to the motion by the defense.

(Citations and punctuation omitted.) Wilson v. State, 233 Ga. App. 327, 328 (1) (503 SE2d 924) (1998). Sledge contends the evidence was insufficient to prove that he was notified that his license was suspended because the officer who was to have served the notice of suspension on him testified that she did not serve him personally as required.

Notice is an essential element of proving a violation of OCGA § 40-5-121 (a).

OCGA § 40-5-121 (a) provides in pertinent part that “any person who drives a motor vehicle on any public highway of this state at a time when his privilege to do so is suspended, disqualified, or revoked shall be guilty of a misdemeanor.” This is a strict liability statute, and the state need not prove criminal intent. However, notice is required by OCGA § 40-5-60, which provides that “(a) 11 revocations and suspensions provided for in this chapter shall be effective on the day the driver receives actual knowledge or legal notice thereof, whichever occurs first. Notice of suspension by operation of law shall be considered legal notice.”

(Footnote omitted.) State v. Fuller, 289 Ga. App. 283, 283-284 (656 SE2d 902) (2008). In this regard,

[t]he term “legal notice” has been referred to as the same as “constructive notice.” Constructive notice is information or knowledge of a fact imputed by law because the fact could have been discovered by proper diligence and the situation was such as to cast upon a person the duty to inquire into it. Implied notice is that notice which is inferred or imputed to a party by reason of his knowledge of facts or circumstances collateral to the main fact, of such a character as to put him upon inquiry, and which, if inquiry were followed up with due diligence, would lead him directly to the knowledge of the main fact.

(Citation and punctuation omitted.) Hale v. State, 188 Ga. App. 524, 525-526 (1) (373 SE2d 250) (1988). Consequently, to prove

the offense of driving with a suspended license, the State must show that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension. [Sledge contends] the State failed to prove he received actual or legal notice that his license was suspended, which is an essential element of the offense.

(Citation and punctuation omitted.) Farmer v. State, 222 Ga. App. 591 (474 SE2d 760) (1996). “[AJbsent proof by the State of actual or legal notice to the defendant a conviction for [driving with a suspended license] cannot be sustained.” Sumner v. State, 184 Ga. App. 374, 375 (361 SE2d 536) (1987).

The law applicable to service of a notice of revocation of one’s driver’s license for refusing a blood alcohol test is contained in OCGA § 40-5-67.1 (f) (1) and (2):

(f) (1) The law enforcement officer, acting on behalf of the department, shall personally serve the notice of intention to suspend or disqualify the license of the arrested person or other person refusing such test on such person at the time of the person’s refusal to submit to a test or at the time at which such a test indicates that suspension or disqualification is required under this Code section. The law enforcement officer shall take possession of any driver’s license or permit held by any person whose license is subject to suspension pursuant to subsection (c) or (d) of this Code section, if any, and shall issue a 30 day temporary permit.
The officer shall forward the person’s driver’s license to the department along with the notice of intent to suspend or disqualify and the report required by subsection (c) or (d) of this Code section within ten calendar days after the date of the arrest of such person. This paragraph shall not apply to any person issued a 180 day temporary permit pursuant to subsection (b) of Code Section 40-5-67. The failure of the officer to transmit the report required by this Code section within ten calendar days shall not prevent the department from accepting such report and utilizing it in the suspension of a driver’s license as provided in this Code section.
(2) If notice has not been given by the arresting officer, the department, upon receipt of the report of such officer, shall suspend the person’s driver’s license, permit, or nonresident operating privilege or disqualify such person from operating a motor vehicle and, by regular mail, at the last known address, notify such person of such suspension or disqualification. The notice shall inform the person of the grounds of suspension or disqualification, the effective date of the suspension or disqualification, and the right to review. The notice shall be deemed received three days after mailing.

Revocations or suspensions of driver’s licenses are effective the day the driver receives actual knowledge or legal notice of the revocation or suspension.

All revocations and suspensions provided for in this chapter shall be effective on the day the driver receives actual knowledge or legal notice thereof, whichever occurs first. Notice of suspension by operation of law shall be considered legal notice. Any license suspension or revocation mandated in this chapter following a person’s conviction for any offense, including suspensions due to the accumulation of points pursuant to Code Section 40-5-57, shall be by operation of law.

OCGA § 40-5-60 (a).

The form used to notify Sledge that his license was suspended contains the statement “NOTE: PERSONALLY GIVE THE YELLOW COPY TO THE LICENSEE.” The form, which was prepared on June 1, 2008, further contains the statement that “[t]he arresting officer’s signature constitutes certification that the arresting officer delivered a copy of the form to the driver.” Although the date on the form shows a report date of June 5, 2008, the numeral 5 is plainly written over a “1,” and the officer’s signature on the form was notarized on June 5, 2008.

The State introduced Sledge’s Driver’s License History Report showing that he had been served with the notice of his license suspension by a police officer on June 5, 2008. The officer who was to have served the notice on Sledge testified, “You know what? I think I forgot to give it to him that particular day when he was arrested.” She later acknowledged that she did not serve him on June 1, and could not be sure how she served Sledge on June 5. She testified that she was not sure how she came to serve him on June 5 when the arrest was on June 1. She testified that she did not “know if [she] sent a copy to him or what.” She could not remember what happened on June 5, or how she got the notice to Sledge. Nevertheless, she ultimately testified that she served Sledge with the notice, but that she could not recall when and how service was made. Because some evidence exists, even though contradictory, that Sledge was served with the notice of suspension, it cannot be said that the evidence demanded a verdict of acquittal. Thus, the jury was required to decide whether he received notice of his suspension.

The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.

(Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 88-89 (1) (469 SE2d 214) (1996). Therefore, the trial court did not err by denying Sledge’s motion for a directed verdict of acquittal, and this enumeration of error is without merit.

2. Sledge contends his defense counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), because he showed the jury a videotape of Sledge’s earlier arrest for driving under the influence and because his counsel did not object to several leading questions by the prosecutor during the direct examination of the State’s witnesses.

Under our law,

[t]o prevail on a claim of ineffective assistance, a defendant must show that counsel rendered deficient performance and that actual prejudice resulted. Counsel are strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and counsel’s performance is evaluated without reference to hindsight. A petitioner has suffered actual prejudice only where there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Ineffective assistance claims are mixed questions of law and fact. We accept the [trial] court’s findings of fact unless clearly erroneous and independently apply the law to those facts.

(Citation and punctuation omitted.) Head v. Hill, 277 Ga. 255, 266 (VI) (587 SE2d 613) (2003). Further, when considering a claim of ineffectiveness, a critical distinction exists between inadequate preparation and unwise trial strategy. Hudson v. State, 250 Ga. 479, 486 (8) (299 SE2d 531) (1983). Especially in matters of trial tactics, a Sixth Amendment claim cannot be judged by hindsight or result. Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

(a) Sledge asserts that by introducing the video of the earlier stop, his counsel allowed information prejudicial to Sledge to be played and replayed before the jury. Even though the strategy employed ultimately proved unsuccessful, this does not mean necessarily that Sledge’s counsel was ineffective. Counsel pursued a strategy that resulted in Sledge being acquitted of four of the six charges against him.

Further, we must measure the trial defense counsel’s performance under the circumstances existing at trial and not with the benefit of hindsight. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). Measured in that manner, we find that the showing of the video was part of the trial strategy Sledge’s counsel pursued. The defense counsel testified at the hearing on Sledge’s motion for new trial that his theory of the case was to show through the video that the same two officers stopped Sledge both times and that they were targeting him. Counsel also testified that he felt he needed the video of the first case because no video existed of the second stop and the video of the first showed the poor investigation by the arresting officer, who was also the arresting officer in the second case. Although another trial defense counsel may have pursued a different strategy or tactic, this does not constitute a denial of the effective assistance of counsel. Heard v. State, 177 Ga. App. 802, 804 (5) (341 SE2d 459) (1986).

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

(Citations and punctuation omitted.) Strickland v. Washington, supra, 466 U. S. at 689.

Considering the totality of the trial and not just Sledge’s allegation of isolated errors, we are satisfied that Sledge has not met his burden under Strickland v. Washington of showing that his counsel’s performance was deficient for pursuing the trial strategy that he chose. Further, the constitutional right to assistance of counsel means “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” (Citation and punctuation omitted.) Alderman v. State, 241 Ga. 496, 511 (8) (246 SE2d 642) (1978).

(b) Sledge further contends his counsel was ineffective because he did not object to leading questions posed by the prosecutor during the direct examination of State’s witnesses. When a defendant’s complaint relates

to tactical judgments made by such [trial] counsel... in the absence of a showing, and there is none in the present case, that the trial counsel’s loyalty, integrity or best use of his ability is questioned, a new trial will not be granted on the ground that the defendant was not afforded competent representation.

Decided October 18, 2011.

Michele B. Lord, for appellant.

Taska M. Mosley, Solicitor-General, Jamila L. Wideman, Assistant Solicitor-General, for appellee.

Walker v. State, 226 Ga. 292, 295 (12) (174 SE2d 440) (1970). Also,

trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them. Trial counsel’s strategy was not patently unreasonable, and it was not error to deny his motion for new trial on the basis of ineffective assistance of counsel.

(Citation and punctuation omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008). Further “[i]n the absence of testimony to the contrary, counsel’s actions are presumed strategic. Stanley v. Zant, [697] F2d 955 (11th Cir. 1983), cert. denied, 467 U. S. 1219 [(104 SC 2667, 81 LE2d 372)] (1984).” Earnest v. State, 262 Ga. 494, 496-497 (5) (422 SE2d 188) (1992).

Sledge’s trial defense counsel testified at the new trial hearing that he only objected to leading questions that he thought were “important,” and the transcript shows that he did object to some leading questions posed by the prosecutor. Under this evidence, the trial court’s finding that Sledge’s defense counsel was not ineffective for failing to object to the leading questions was not clearly erroneous. This enumeration of error is also without merit.

(c) Sledge also contends that his counsel was ineffective because he failed to preserve these objections for appellate review by renewing “all objections at the end of the trial and therefore deprived [Sledge] of the right to have his objections and the trial court rulings reviewed as a basis for reversal.” Although we cannot consider this argument because it asserts an issue not enumerated as error, Rider v. State, 226 Ga. 14, 15 (2) (172 SE2d 318) (1970), we must note that Sledge’s contention asserts an issue that is not the law in this State. Having made a timely and proper objection, counsel is not required to renew his objections at the close of the case to preserve them for appellate review.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Sledge was also charged with driving without a license, driving with an expired tag, using an improper turn signal, and a seat belt violation, but he was acquitted of those offenses.