author: Peterson, Judge. PETERSON, Judge, MILLER, Presiding Judge,

text:
    A16A0240.
    WRIGHT v. THE STATE.
    (789 SE2d 424)
   Peterson, Judge.

Following his arrest for DUI, Wright filed a motion in limine to exclude the results of the state-administered breath test on the basis that he requested, but was not given, an independent chemical test of his blood. The trial court denied Wright’s motion, concluding that Wright did not request an independent test. Wright was subsequently found guilty of DUI per se, DUI less safe, and two counts of speeding. The trial court merged the two speeding counts and also merged the DUI less safe count with the DUI per se count for sentencing purposes.

On appeal, Wright argues that the trial court erred in admitting the results of the state-administered test because he was not given an independent test after requesting one. We agree that, under our existing precedent, Wright’s statements to the arresting officer could reasonably be construed as a request for an independent test and, therefore, the state-administered test results should have been suppressed. Accordingly, we reverse Wright’s DUI per se conviction and vacate the guilty verdict on the DUI less safe count. Because Wright does not challenge his conviction for speeding, we affirm that conviction.

1. In his sole enumeration of error, Wright argues that the trial court erred in failing to suppress the results of the state-administered breath test because he was unjustifiably denied his statutory right to obtain an independent test. We agree.

(a) Pertinent facts

A trial court’s factual findings when ruling on a motion in limine to exclude the results of a state-administered chemical test should not be disturbed by a reviewing court if there is any evidence to support them. England v. State, 302 Ga. App. 12, 14 (1) (689 SE2d 833) (2009). However, we “owe[ ] no deference to a trial court’s factual findings gleaned from a review of a videotape that are not the subject of testimony requiring the trial court’s weighing of credibility or resolving of conflicts in the evidence.” Clay v. State, 290 Ga. 822, 825 (1) (A) (2) n. 1 (725 SE2d 260) (2012). The trial court’s application of the law to undisputed facts when ruling on such a motion is reviewed de novo. Id.; see also Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012) (where “the evidence at a suppression hearing is uncon-troverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts”).

The evidence in this case, which is largely undisputed or can be gleaned from a videotape, shows that in May 2014, Officer Streeter of the DeKalb County Police Department clocked Wright’s vehicle traveling at 79 miles per hour in a 55-mile-per-hour zone. Officer Streeter conducted a traffic stop and noticed an odor of alcohol while speaking to Wright. During his conversation with the officer, Wright admitted that he had consumed “a couple of beers.” Wright agreed to participate in field sobriety testing, in which he exhibited all six indicators on the horizontal gaze nystagmus test, two out of eight indicators on the walk and turn test, and one out of four indicators on the one leg stand test. After observing Wright’s performance on the field sobriety tests, Officer Streeter then asked Wright to submit to an alco-sensor test of his breath, and Wright agreed. The results of the alco-sensor were positive, and Officer Streeter placed Wright under arrest for DUI. Wright pleaded with Officer Streeter to give him a warning, stating that he was very close to becoming a police officer himself.

Officer Streeter then read the implied consent notice to Wright, and asked Wright if he would submit to a breath test. After Officer Streeter finished, the following discussion ensued:

WRIGHT: Sorry, was that a question?
OFFICER STREETER: Yes, sir.
WRIGHT: So you said what: Will I, will I submit to a chemical blood test?
OFFICER STREETER: No, of your breath. Will you submit to a state-administered chemical test of your breath under the Georgia implied consent law?
WRIGHT: Right now?
OFFICER STREETER: I mean, you will be taken to the Intoxilyzer room to submit to state-administered test of your choosing.
WRIGHT: Why do I have to do it right now? I don’t understand.
OFFICER STREETER: Okay, when else am I supposed to do it?
WRIGHT: I mean what — I don’t understand what is going on right now. Can you please explain what’s going on?
OFFICER STREETER: As much as I can explain is, you have been arrested for DUI.
WRIGHT: All right.
OFFICER STREETER: What I read to you is the Georgia implied consent law in reference to your license.
WRIGHT: All right.
OFFICER STREETER: That’s the full [unintelligible]. At the end is a question that states, “Will you submit to a state-administered chemical test of your breath under Georgia implied consent law?”
WRIGHT: What if I say no?
OFFICER STREETER: I can reread this card to answer your question.

As Officer Streeter was re-reading the implied consent notice and explaining that Wright’s license would be suspended if he refused the state-administered test, Wright interrupted and said, “Oh no, no, no, no, no, no. Yes, I will do it. Yes.” When Officer Streeter finished reading the notice, the following conversation transpired:

WRIGHT: You said after a period of time I get to do what?
OFFICER STREETER: I don’t understand your question.
WRIGHT: You said after a period of time I get to submit to another chemical blood test or something like that?
OFFICER STREETER: After first submitting to the required
state test, you are entitled to an additional independent test. WRIGHT: How soon?
OFFICER STREETER: Of your blood, breath, urine, or other bodily substances at your own expense by an operator of your choosing.
WRIGHT: How much does it cost? Do you know?
OFFICER STREETER: I’m not sure how much an independent test costs.

Wright then asked if he would lose his license if he failed the test, and Officer Streeter replied that he could not answer Wright’s question. Wright subsequently agreed to take the state-administered chemical test.

Wright was then placed in the patrol car. While in the patrol car, Wright again asked to be let off with a warning, stating that he was not that impaired and that a lot of people leave bars more impaired than he was. Wright subsequently asked, “Where I gotta do my blood test at?” Officer Streeter responded that it would be “in the intox room.” Wright asked whether that room was in the jail, and Officer Streeter answered that it was “a part of the jail. It’s in a different, section.” When Wright arrived at the detention center, he submitted to the Intoxilyzer breath test, the results of which revealed he had a blood alcohol concentration of 0.096 grams. Wright did not make any further statements about an independent test.

(b) Requirement to give implied consent notice and provide a suspect with an independent chemical test if requested

Under OCGA § 40-6-392(a)(3), a person who is accused of DUI and is subjected by the State to a chemical analysis of the person’s blood, urine, breath, or other bodily substance may have a “qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.” Upon arresting an individual for DUI, a police officer must read one of the three implied consent notices to the suspect. OCGA § 40-5-67.1(b); State v. Gaggini, 321 Ga. App. 31, 34-35 (1) (b) (740 SE2d 845) (2013). The applicable notice for suspects aged 21 or over informs suspects that, upon submitting to a state-administered test, they have a right to an independent test. Specifically, the applicable informed consent notice provides:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

OCGA § 40-5-67.1(b)(2) (emphasis added). OCGA § 40-6-392(a)(3) provides that “[t]he justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer[.]” OCGA § 40-6-392(a)(3).

Under this statutory framework, this Court has concluded that when a suspect “requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against [him] unless the failure to obtain the test is justified.” Ladow v. State, 256 Ga. App. 726, 728 (569 SE2d 572) (2002) (citation and punctuation omitted). In setting a standard for what amounts to a request, the Ladow Court concluded that “[a]n accused’s right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could, be construed, in light of the circumstances, to be an expression of a desire for such test.” Id. (emphasis added).

Although we have quoted this standard consistently since Ladow, simply articulating a standard — without more — does not necessarily render the quoted language part of the holding of the case that is binding on subsequent panels of this Court. Judicial decisions are not statutes; we are not obligated to mine every word in a previous opinion for meaning.

It is, of course, axiomatic that a decision’s holding is limited to the factual context of the case being decided and the issues that context necessarily raises. Language that sounds like a holding—but actually exceeds the scope of the case’s factual context — is not a holding no matter how much it sounds like one.

Ga. Interlocal Risk Mgmt. Agency v. City of Sandy Springs, 337 Ga. App. 340 n.1 (788 SE2d 74) (2016) (citation and punctuation omitted). It is only the holdings of previous cases that bind us here.

When considered in the context of Ladow, it is unclear whether this “reasonably could” standard was part of the holding. There, we set out the standard, and then considered facts that, in retrospect, might reasonably appear to some as ambiguous. The trial court denied the motion to suppress on the basis that the officer reasonably construed the defendant’s statements not to be a request for an independent test. We reversed, and used language indicating that we did not believe the officer’s interpretation to have been reasonable. See Ladow, 256 Ga. App. at 729 (“we cannot accept the State’s position that the officer reasonably construed Ladow’s statement as referring to a certain type of State-administered test”). And in concluding our analysis, we said “that Ladow’s statement, T want a blood test,’ sufficiently articulated her desire to have an additional, independent test such that a law enforcement officer reasonably would have understood her statement to be a request for one.” Id. (footnote omitted; emphasis added).

But our subsequent decision in Johnson dispels any doubt as to whether the “reasonably could” standard is binding on us. There, after the officer read the defendant the implied consent notice and requested a breath test, the defendant responded by saying “I’ll take a urine test.” Johnson, 261 Ga. App. at 634. The officer responded by clarifying that she was requesting that he take a breath test, and that if the defendant wanted a different test, he could take one after taking the state-administered breath test. Id. Later, while still on the scene, the defendant asked “when can I take my chemical test?” Id. The officer replied that the defendant would be taken to the jail for his test, where he later submitted to a breath test. Id. The defendant did not subsequently request a urine test. Id.

We characterized the defendant’s statement “I’ll take a urine test” in response to the officer’s reading of the implied consent notice as “expressing] his preference to take a urine test rather than the state-administered breath test.” Id. at 637 (2). We then concluded that, in conjunction with the subsequent question about when he could take his “chemical test,” the defendant’s statements “reasonably could be construed” as a request for an independent test and, thus, that the trial court erred in admitting the results of the state-administered test. Id. Under those circumstances — as ambiguous as those here — we reversed the trial court because the defendant’s statements “reasonably could be construed” as a request for an independent test. In context, that standard was necessarily part of the holding of the case. It has not subsequently been overruled or disapproved; to the contrary, we have quoted that language repeatedly Accordingly, it is binding on us here.

Although Ladow sets forth the “reasonably could” standard, our implied consent warning itself does not “specif[y] to the accused any requirements for requesting [an independent] test — linguistically, temporally, or otherwise.” Ladow, 256 Ga. App. at 728. Therefore, in evaluating whether a particular statement or question is a request for an independent test, context matters:

• In Ladow, we held that a defendant requested an independent test when she interrupted an officer’s reading of the implied consent notice to say, “I want a blood test.” Id. at 729. We noted that the officer was on notice that the defendant likely knew of her right to an additional test because she told the officer as he began to read the notice that she had “already heard all that.” Id.
• Another defendant who similarly interrupted the reading of the implied consent notice by asking “could I get a blood test?” was deemed not to have requested an independent test, however. See Mathis, 298 Ga. App. at 818-19 (1). Noting that the defendant said nothing more about any test, we found that, “[i]n the context in which they were given,” the defendant’s words could not be reasonably construed as a request for an independent test, but appeared to be an inquiry regarding the type of test the State would administer. Id. at 818.
• In a different context, we found that a defendant made a “plain” and “unambiguous” request for an independent test where the defendant stated he knew he had a right to do a blood test and wanted to have one, agreed to a breath test after being read the implied consent warning, and then asked about obtaining a separate blood test while the police officer was inputting information into the intoxilyzer machine. See McGinn v. State, 268 Ga. App. 450, 452 (602 SE2d 209) (2004).

(c) Application of the “reasonably could” standard

Here, considered in context, Wright’s statements and questions reasonably could be construed as a request for an independent test. In particular, after he was placed in the patrol car, he inquired, “Where I gotta do my blood test at?” On the one hand, hypothetically, if this question had been posed immediately after the officer sought his consent to a chemical test, this question could reasonably have been viewed only as an inquiry as to the location of that test, not a request for an independent test. On the other hand, if the question had been posed after the administration of the breath test at the jail, it clearly would have reflected a desire for an independent test of an alternative means.

Wright’s question, in context, falls somewhere in between these hypotheticals. He previously made some comments indicating that he understood the usual test requested of detainees was a blood test, suggesting he may have misunderstood what the officer was requesting of him or thought the state test should be a blood test. But he also expressed some interest in an independent test, asking when such a test would take place and how much it would cost. In that context, Wright’s question — “Where I gotta do my blood test at?” — is ambiguous.

At the hearing on Wright’s motion in limine, the trial court concluded that, upon reviewing the video recording of the arrest, he did not hear Wright say, “I want” an independent test. The trial court subsequently denied Wright’s motion, crediting Officer Streeter’s testimony that Wright never asked for an independent test. In the absence of an unambiguous request, the trial court essentially deferred to the arresting officer’s assessment of whether Wright had requested an independent test. But that is not the approach our case law mandates. We repeatedly have said that a right to an independent test is invoked by “some statement that reasonably could be construed” as a request for such a test. See, e.g., Ladow, 256 Ga. App. at 728. By its terms, “reasonably could” means we must treat a defendant’s statements as a request if reasonable people could disagree about whether those statements expressed a desire for an independent test. The fact that Wright’s ambiguous statements reasonably could support two different interpretations — either as a request for an independent test or not — requires us to resolve the ambiguity in his favor, because his statements “reasonably could” be construed as a request for an independent test.

This case is like Johnson, in which we reversed the trial court’s admission of the state test results because we concluded that the defendant’s question, “When can I take my chemical test?”, could be construed as a request for an independent test. 261 Ga. App. at 637 (2). As explained above, we held that the defendant’s question, coupled with the defendant’s expression of a preference to take a urine test rather than the state-administered breath test, “could be construed to be an expression of a desire for an independent urine test.” Id. at 637 (2). The facts of this case are not appreciably different,: The defendant inquired about taking a test different from the sort being sought by an officer (asking, “You said after a period of time I get to submit to another chemical blood test or something like that?”), agreed to the officer’s choice of test, then, before the state administered its test, further asked about taking his desired sort of test. As in Johnson, we conclude that Wright’s statements reasonably could be construed as requesting an independent blood test and that the trial court erred by failing to suppress the results of the state-administered breath test. Consequently, Wright’s conviction for DUI per se must be reversed. Moreover, because the evidence of state-administered results had to be excluded, there is insufficient evidence to support the DUI per se offense, and Wright may not be retried on that count. See State v. Caffee, 291 Ga. 31, 34 (3) (728 SE2d 171) (2012).

2. Because we reverse Wright’s conviction for DUI per se, the merged DUI less safe offense becomes “unmerged,” and a conviction and sentence could be entered on that verdict on remand. See Allaben v. State, 294 Ga. 315, 320-21 (2) (b) (751 SE2d 802) (2013), overruled in part on other grounds by State v. Springer, 297 Ga. 376, 383 (2) n.4 (774 SE2d 106) (2015). However, if a defendant raises an issue on appeal that, on remand, would bar entry of a conviction on a verdict that was merged or vacated, it is appropriate to address that issue. Allaben, 294 at 321 (2) (b). Here, Wright challenged his DUI “convictions” based on the erroneous admission of the test results, and we interpret this argument as including a challenge to the guilty verdict on the DUI less safe offense. Consequently, we must determine whether the error related to Wright’s DUI per se offense was harmful to the finding of guilt on the DUI less safe offense.

“The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.” Lindsey v. State, 282 Ga. 447, 450 (2) (651 SE2d 66) (2007) (citation omitted). “If the error is relevant to the issues in dispute, not cumulative of other evidence, not beneficial to the defendant and uncorrected by the trial court, then there is perhaps no reason for saying it is harmless, but it may nevertheless be harmless in the context of the entire case.” Id.

Here, the results of the state-administered test were relevant to the key issue of the case — whether Wright was driving under the influence — and this evidence was not cumulative of other evidence and was detrimental to Wright. Although the remaining evidence in the case is sufficient under Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 LE2d 560) (1979), that is a lower standard than we apply for harmless error. To support a conviction for DUI less safe, there must be evidence that the defendant was operating a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to drive. State v. Young, 334 Ga. App. 161, 165 (778 SE2d 402) (2015). Although Wright admitted to drinking alcohol, which was confirmed by the positive reading from the aleo-sensor, and he failed several parts of the field sobriety tests, he also passed other parts of the field sobriety testing, and there was no evidence that Wright had other indicators of being under the influence, like slurred speech. Additionally, although Wright was speeding along 1-285, the parties do not suggest this is an unusual occurrence along that interstate, and there is no evidence that he was otherwise driving unsafely Because there was not considerable evidence that Wright was under the influence of alcohol to the extent that it was less safe for him to drive, and because the results of the state-administered test were relevant to this issue, it seems likely that the erroneous admission of the state-administered test results contributed to the guilty verdict for DUI less safe.

The dissent argues that the admission of the test results was not harmful to the finding of guilt on the DUI less safe offense because a judge, not a jury, rendered the verdict in the case, and we can safely presume the judge did not consider the inadmissible test results. The dissent is right that we usually presume that judges, unlike juries, consider only admissible evidence. See Dissent at 230. But this rule must necessarily be inapplicable when the judge improperly admitted the evidence. Here, the judge admitted the test results, and thus obviously believed the test results were admissible. And test results are relevant in considering DUI less safe charges. See Jaffray v. State, 306 Ga. App. 469, 471 (1) (702 SE2d 742) (2010); Webb v. State, 277 Ga. App. 355, 357 (1) (626 SE2d 545) (2006). Thus, by the very rule invoked by the dissent, we can safely presume that the judge did consider all evidence he believed to be both relevant and admissible and thus considered the test results in finding Wright guilty on DUI less safe, rendering the admission of the test results harmful error.

Accordingly, the finding of guilt for DUI less safe is vacated. However, because we have determined that the evidence was sufficient to support a finding of guilt on that count, double jeopardy does not bar the State from retrying Wright for that offense.

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded.

Phipps, P. J., McFadden, Branch and McMillian, JJ., concur. Dillard, Mercier, and Peterson, JJ., concur fully and specially. Ellington, P. J., concurs in judgment only. Miller, P. J., concurs in judgment only in Division 1 and dissents in Division 2.

PETERSON, Judge,

concurring fully and specially.

I concur fully in the majority opinion that I have authored. I write separately to express doubt as to the soundness of the binding precedent that the majority opinion follows.

The Ladow “reasonably could be” standard — binding precedent that commands our obedience — determines the outcome of this case. I question, however, the soundness of that standard. It strikes me as requiring too little of a defendant, because it is not enough to put all reasonable arresting officers on notice that immediate action is required. Taken to its logical conclusion, the Ladow standard means that a defendant could make ambiguous statements, the arresting officer could reasonably conclude that the statements did not express a desire for an additional test (and thus not provide for one), and then a reviewing court could nevertheless conclude that a hypothetical reasonable officer might have arrived at a different, conclusion (and thus exclude from evidence the otherwise admissible state-mandated test results). And indeed, that’s precisely what happened here.

Whether statements “reasonably could be” construed as expressing a desire for an additional test is not, then, an exacting test. In stark contrast, we require unambiguous requests — the higher standard of “reasonably would” — when determining whether a defendant has invoked his or her Sixth Amendment right to counsel by requesting an attorney:

[T]he suspect must unambiguously request counsel. As we have observed, a statement either is such an assertion of the right to counsel or it is not. Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney

Davis v. United States, 512 U.S. 452, 459 (II) (114 S. Ct. 2350, 129 LE2d 362) (1994) (citations and punctuation omitted).

Given that the statutory right to an independent test “is not one of constitutional dimension but a matter of grace bestowed by the Georgia legislature,” Padidham v. State, 291 Ga. 99, 101 (2) (728 SE2d 175) (2012) (citation and punctuation omitted), I question the necessity of protecting it so much more vigorously than the Sixth Amendment right to counsel that sits at the core of our adversarial system of justice. I see nothing in our law that requires this to be the standard.

Ladow cited as authority for the standard our decision in Church v. State, 210 Ga. App. 670, 671 (1) (436 SE2d 809) (1993). See Ladow v. State, 256 Ga. App. 726, 728 n.6 (569 SE2d 572) (2002) (citing Church). But Church contains no language that resembles the Ladow standard; rather, there we affirmed the trial court’s conclusion that the “defendant did not effectively communicate to the officers any desire for an additional test.” Church, 210 Ga. App. at 671 (1). And OCGA § 40-6-392 does not contain any language supporting the Ladow standard. Indeed, the key language of that statute provides that evidence should not be excluded when the failure to obtain a test is “justifiable.” See OCGA § 40-6-392(a)(3). It seems far from clear that an officer’s reasonable, on-the-spot conclusion that a defendant’s statements did not constitute a request is unjustifiable simply because those statements are also open to an alternative interpretation when viewed at much greater length by a reviewing court.

The “reasonably could” standard requires law enforcement to make difficult, judgment calls on the spot, not only about their interpretation of a defendant’s statements, but also about how someone else might interpret those statements differently. The Supreme Court of the United States identified similar concerns in determining that defendants must make clear, unequivocal requests for counsel to invoke their Sixth Amendment right to counsel. See Davis, 512 U.S. at 460-62; see also Green v. State, 291 Ga. 287, 292 (4) (728 SE2d 668) (2012) (discussing Davis and the benefits of clear and easily applicable rules for law enforcement to follow). Requiring an unequivocal request for an independent test would serve the same purpose.

But although I question the soundness of the Ladow standard, my doubts “are not reason enough to revisit it in this case.” Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563) (2011) (Blackwell, J., concurring dubitante). As then-Judge Blackwell observed in Bene-field, “the application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence,” and “it is the duty of appellate judges to make concessions to stare decisis.” Id. (citation and punctuation omitted). And neither party has asked us to reconsider the Ladow standard (much less briefed the issue), “a consideration of great significance.” Id.

Moreover, reconsidering the Ladow standard would require the participation of all fifteen judges of our Court. See Stephen Louis A. Dillard, Open Chambers: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals, 65 Mercer L. Rev. 831, 853 (2014) (explaining that, by internal court rules, overruling of precedent requires the participation of all 12 (now 15) judges). And, under the circumstances of this case, this convening of our whole court would have had to begin in the last week of the final term in which to dispose of this case under our Constitution’s two-term rule. See Ga. Const, art. VI, § 9, para. 2 (“the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term”). Convening an en banc court at any time is “costly to an appellate court in terms of consumption of its always limited resources of judicial time and energy” Benefield, 308 Ga. App. at 613 (Blackwell, J., concurring dubitante) (citations and punctuation omitted). Convening an en banc court in the last week of a term — in the absence of any emergency and without the benefit of briefing from either party — would be doubly costly, and would not afford the judges of this Court sufficient opportunity to reflect at length on the potential consequences of departing from relatively well-established precedent. This case does not warrant such a step.

I am authorized to state that Judge Dillard and Judge Mercier join in this special concurrence.

MILLER, Presiding Judge,

concurring in part and dissenting in part.

I concur in judgment only in Division 1 of the majority’s opinion. I understand the majority’s concerns about the law in this area, however, as judges we must respond to the law as it stands at the time the case is before us and not as we think it should be.

I must dissent in Division 2 because I do not agree that this Court should vacate Wright’s DUI less safe conviction. This case involved a stipulated bench trial in which the state and the defense agreed on the evidence presented, which showed that Wright committed a traffic violation, he admitted that he had a few drinks, and he failed the field sobriety tests, and the alco-sensor confirmed the presence of alcohol. Clearly the trial court was more than capable of discerning between admissible and inadmissible evidence when considering the DUI less safe charge. For this reason, I would affirm Wright’s conviction for DUI less safe.

1. As a threshold matter, the majority addresses an argument Wright did not preserve for appellate review — that his DUI less safe conviction was tainted. In a single line, the last line of his brief, Wright merely asserts: “Appellant respectfully requests this Court find the trial court allowed the results of the State-administered test in error, vacate Appellant’s convictions for DUI, and remand this matter for a new trial.” (Emphasis supplied.) From this statement, this one word “convictions” in plural form, the majority concludes that Wright preserved the argument it now addresses. I disagree. This is a departure from the Court of Appeals Rules and defies common sense.

The majority’s conclusion is clearly flawed. Wright did not make any argument or cite any law in support of this claim, and thus he has abandoned this issue. Felix v. State, 271 Ga. 534, 539 n. 6 (523 SE2d 1) (1999); Court of Appeals Rule 25 (c) (2). Consequently, despite the very forgiving mandates of the Appellate Practice Act, we cannot and should not reach this issue. The Appellate Practice Act must “be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in [the Act].” (Emphasis supplied.) OCGA § 5-6-30. The entire argument and citation to authority in Wright’s brief focuses solely on the failure to provide an independent test upon request. Wright does not “raise therein” any argument that the inadmissible results of the state-administered test tainted the DUI less safe conviction. Even viewing the notice of appeal, the record, and the enumeration of error combined, Wright did not make the argument that the majority addresses. OCGA § 5-6-48 (f); Jackson v. State, 309 Ga. App. 796, 800 (2) (714 SE2d 584) (2011) (concluding that, under this Court’s rules, “[t]o the extent Jackson intended to question the sufficiency of the evidence on another basis, his claim of error has been abandoned”). Therefore, this Court should not reach this argument.

2. Even if the issue of the validity of the DUI less safe conviction were properly before this Court, I would affirm Wright’s conviction. After all, this was a bench trial. There were no witnesses, no jury, and no disputes about what the evidence showed.

Since this was a bench trial, there was no jury that could have been influenced by the judge’s comments. In a bench trial it is presumed that the judge, as the trier of fact, is able to distinguish between competent and incompetent evidence and consider only that evidence which is admissible.

(Citation and punctuation omitted.) Corsini v. State, 238 Ga. App. 383, 385 (2) (519 SE2d 39) (1999). Accordingly, contrary to the majority, I would presume that the trial court is well-versed in the law such that its evaluation of the facts of this case was not influenced by the results of the state-administered test in this stipulated bench trial. Jones v. State, 318 Ga. App. 614, 618 (5) (734 SE2d 450) (2012) (absent evidence to the contrary, this Court must presume in a bench trial that the trial court “has sifted the wheat from the chaff and selected the legal testimony from that which is illegal and incompetent”) (citation omitted).

At the very least, our citizens must be able to trust our trial courts to evaluate the evidence and make the distinction between what is admissible and what is not for each charged offense. If we do not trust the trial courts, our system of justice will completely erode. Moreover, as the majority concedes, the remaining evidence was sufficient to support a conviction for DUI less safe. Because there was sufficient evidence, and there was no jury that could have been prejudiced by the inadmissible breathalyzer result, I cannot conclude, as the majority does, that there is harmful error. Accordingly, I would affirm Wright’s conviction for DUI less safe.

Decided July 15, 2016

Tyler Law Firm, Lance W. Tyler, for appellant.

Sherry Boston, Solicitor-General, WystanB. Getz, Assistant Solicitor-General, for appellee.

       Officer Streeter testified that Wright, in a different segment of the video, also made statements that he thought states generally requested blood samples. After reviewing the different parts of the video recording, we were unable to locate these statements by Wright, and it may be that the statements were not recorded. In any case, Officer Streeter’s testimony as to Wright’s statements is undisputed and was credited by the trial court.

       Since establishing the “reasonably could” standard in Ladow, we have invoked this standard in at least 11 other decisions. See Farmer v. State, 335 Ga. App. 679, 681 (782 SE2d 786) (2016); Avery v. State, 311 Ga. App. 595, 598 (716 SE2d 729) (2011); England, 302 Ga. App. at 14 (1); Mathis v. State, 298 Ga. App. 817, 818 (1) (681 SE2d 179) (2009); Waterman v. State, 299 Ga. App. 630, 631 (683 SE2d 164) (2009); Collins v. State, 290 Ga. App. 418, 420 (2) (659 SE2d 818) (2008); Fowler v. State, 294 Ga. App. 864, 866 (1) (a) n.2 (670 SE2d 448) (2008); Anderton v. State, 283 Ga. App. 493, 494 (1) (642 SE2d 137) (2007); Brooks v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007); State v. Gillaspy, 270 Ga. App. 111, 112 (605 SE2d 835) (2004); Johnson v. State, 261 Ga. App. 633, 636 (2) (583 SE2d 489) (2003).

       Wright was not convicted of DUI less safe because the trial court merged the DUI less safe offense into the DUI per se count. See Slack v. State, 288 Ga. 659, 661 (2) (706 SE2d 447) (2011) (explaining that guilty verdicts are not the equivalent of convictions; where trial court merged two counts for which double jeopardy prohibited multiple convictions, count that was merged into the other “stood vacated by operation of law”); Durrance v. State, 319 Ga. App. 866, 866 n.1 (738 SE2d 692) (2013) (“[Defendant] was not convicted of the DUI less safe offense, however, because the trial court merged the offense into the DUI per se charge.”).

       I express these doubts in a separate opinion because they are not necessary to the disposition of the case and thus, I think, not appropriate for inclusion in the majority opinion. See, e.g., United States v. Farmer, 627 F.3d 416, 422 (9th Cir. 2010) (Bybee, J., specially concurring) (author of majority opinion also authored concurring opinion expressing concerns about binding case law applied by majority).

       At least, for this Court at this time. But see Supreme Court Rules 38-45 (governing petitions for certiorari).


source: Caselaw Access Project

author: MILLER, Presiding Judge. McFADDEN, Judge,

license: Public Domain

text:
    A16A0322.
    PHILLIPS v. THE STATE.
    (789 SE2d 421)
   MILLER, Presiding Judge.

Following a stipulated bench trial, Arthur Phillips was convicted of DUI per se (OCGA § 40-6-391 (a) (5)). Phillips appeals, contending that the trial court erred in denying his motion to suppress evidence obtained during a traffic stop that resulted in Phillips’s arrest. Specifically, Phillips argues that the arresting officer lacked a reasonable articulable suspicion to make the traffic stop. We disagree, and therefore we affirm.

[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

(Citations and punctuation omitted; emphasis supplied.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013); see also Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015).

The trial court’s application of the law to undisputed facts is subject to de novo review. See State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009). Here, however, the controlling facts are disputed and the trial court has made express findings regarding those disputed facts. Accordingly, this Court is limited to those facts, and our standard of review requires us to accept the trial court’s findings on those disputed facts, as well as the credibility of witnesses, unless they are clearly erroneous. Hughes, supra, 296 Ga. at 746 (1); Fennell v. State, 292 Ga. 834, 836 (2) (741 SE2d 877) (2013).

So viewed, the evidence presented at the motion to suppress hearing shows that on the night of August 2, 2012, the arresting officer, a Georgia State Trooper, was patrolling Forest Hill Road in Bibb County The trooper came up behind Phillips’s vehicle and followed Phillips through a series of curves before they approached a stop sign at the intersection of Wesleyan Drive. As Phillips approached the stop sign, he applied the brakes on his vehicle and crossed over the right fog line.

In its order denying Phillips’s motion to suppress, the trial court made the following factual findings:

Mr. Phillips approached the stop sign at the intersection with Wesleyan Drive, [the trooper] observed Mr. Phillips cross the fog line. In his “DPS Incident Report” [the trooper] stated that he “observed a car that traveled into the edge of the grass.” In his testimony at the hearing, he clarified that Mr. Phillips did not reach the grass but in his observation it appeared that the right side of Mr. Phillips’ right tire crossed beyond the right side of the fog line. He then initiated a traffic stop . . . based upon the failure of Mr. Phillips to maintain his lane[.]

Moreover, with regard to the videotape of the stop from the trooper’s dashboard camera, the trial court specifically found:

In this case, the video clearly shows Mr. Phillips’s vehicle going to the right before the stop sign. The tires, at a minimum, reach the fog line, but the clarity of the video does not enable the [c]ourt to make an independent determination as to how far the tires crossed onto and/or over the fog line. The video does not prove or disprove [the trooper’s] description of what he perceived while observing Mr. Phillips on the night of August 2, 2012, and the [c]ourt finds the testimony of [the trooper] to be credible as to what he perceived.

In his sole enumeration of error, Phillips argues that the trooper had no particularized and objective basis for suspecting that Phillips had committed a crime and, therefore, the stop was not justified. We disagree.

There is no violation of the Fourth Amendment protection against unreasonable searches and seizures where a police officer stops a person to investigate the officer’s reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U. S. 411, 417 (II) (a) (101 SCt 690, 66 LE2d 621) (1981); Terry v. Ohio, 392 U. S. 1, 9 (I) (88 SCt 1868, 20 LE2d 889) (1968). See also Whren v. United States, 517 U. S. 806, 810 (II) (116 SCt 1769, 135 LE2d 89) (1996) (“An automobile stop is thus subject to the constitutional imperative that it not be unreasonable under the circumstances.”) (citation omitted). To establish reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had “specific and articu-lable facts which, taken together with rational inferences from those facts ... [provided] a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (punctuation omitted). An officer’s observation of a traffic violation justifies a brief investigatory stop. Camacho v. State, 292 Ga. App. 120, 122 (1) (663 SE2d 364) (2008); Parker v. State, 307 Ga. App. 61, 62 (1) (704 SE2d 438) (2010).

In this case, the issue of whether Phillips crossed the fog line is clearly disputed. The trooper testified that Phillips crossed the fog line as he approached a stop sign, and Phillips claims that he did not. Moreover, our own review of the video shows that it is dark and confirms that the video does not conclusively prove or disprove either the officer’s or Phillips’s testimony Because the video is inconclusive, we must review this evidence in the light most favorable to the trial court’s findings and judgment. Hughes, supra, 296 Ga. at 746 (1); Fennell, supra, 292 Ga. at 836 (2).

Here, some evidence supports the trial court’s findings that the officer’s testimony was credible and that Phillips crossed the fog line — a violation of OCGA §§ 40-6-1 and 40-6-48. Accordingly, the trial court did not clearly err in finding that the officer had reasonable suspicion to initiate the traffic stop based on that traffic violation. See OCGA § 40-6-48 (1); Camacho, supra, 292 Ga. App. at 122 (1) (“[numerous cases have held that weaving out of one’s lane justifies a stop”). We thus conclude that there was evidence to support the trial court’s denial of Phillips’s motion to suppress. Consequently, we affirm Phillips’s conviction for DUI per se.

Judgment affirmed.

Ellington, P. J., Phipps, P J., Dillard, Bran ch, McMillian, Mercier and Peterson, JJ., concur. McFadden, J., dissents.

McFADDEN, Judge,

dissenting.

The video recording is not inconclusive. It clearly contradicts the officer’s hearing testimony. I therefore respectfully dissent.

At the hearing, the officer testified that he initiated the stop “when [Phillips] crossed over [the] fog line and up to the edge of the grass[.]” He further testified that he would not stop a car for merely “drifting within a curve.” The video recording, however, shows that Phillips was stopped immediately after his tire touched — but did not cross — the fog line. It most certainly does not show that Phillips drove “up to the edge of the grass.”

It is true that the stop occurred at night. But the fog line is vividly illuminated by reflected light from the patrol car’s headlights. And the contrasting black image of Phillips’s tire is likewise clearly visible.

The majority correctly notes that our standard of review requires us to accept the trial court’s findings on disputed facts and the credibility of witnesses, unless they are clearly erroneous. But we review de novo the trial court’s application of the law to undisputed facts. “And significantly, to the extent that the controlling facts are disputed because they are plainly discernable from the patrol car-mounted video recording, as they are in this case, we review those facts de novo.” State v. Mosley, 321 Ga. App. 236(739 SE2d 106) (2013) (citations, punctuation and footnote omitted). That de novo review conclusively shows that the officer’s description of the events was inaccurate.

To initiate a stop, “an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” State v. Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006) (punctuation omitted). The burden of showing reasonable suspicion rests on the state. State v. Martin, 291 Ga. App. 548, 549 (662 SE2d 316) (2008). Given the video evidence to the contrary, the officer’s testimony that he saw Phillips cross the fog line and drive up to the edge of the grass shows, at best, that the officer made a mistake of fact.

It is not necessary to reach the question whether the stop could have been justified on the basis that Phillips merely drifted in his lane or that his tire merely touched the fog line. Phillips contends that this would not violate the relevant statute, OCGA § 40-6-48; and the state does not dispute that contention. But, the officer did not testify that he initiated the stop because Phillips touched the fog line. Instead, he testified that he initiated the stop because Phillips crossed the fog line and touched the grass. So this case does not present the question whether an officer made a reasonable mistake of law. See State v. Hammang, 249 Ga. App. 811 (549 SE2d 440) (2001) (“The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing.”) (citation and punctuation omitted).

Decided July 15, 2016.

Phillips & Phillips, Arthur L. Phillips, for appellant.

Rebecca L. Grist, Solicitor-General, Sharell F. Lewis, Assistant Solicitor-General, for appellee.

Given the conflict between the officer’s testimony and the video recording, the state’s burden should be to show that it was reasonable for the officer to believe that Phillips had crossed the fog line even though Phillips had not done so. The state should be required to show that despite the undisputed evidence that Phillips did not cross the fog line, the officer nevertheless initiated the stop in good faith. See Valentine v. State, 323 Ga. App. 761, 763 (1) (748 SE2d 122) (2013).

The issues of whether the arresting officer acted reasonably and initiated the stop in good faith “[give] rise to factual questions and issues of credibility that would be more properly decided by the trial court in this case.” Williams v. State, 314 Ga. App. 840, 845 (4) (c) (726 SE2d 66) (2012) (citations omitted). Accordingly, I would vacate the trial court’s judgment and remand the case to the trial court for further proceedings.

       Phillips was acquitted of DUI less safe (OCGA § 40-6-391 (a) (1)), and the trial court dismissed a third charge of failure to maintain lane (OCGA § 40-6-48).


author: Boggs, Judge. McFADDEN, Judge,

text:
    A16A0400.
    THOR GALLERY AT SOUTH DeKALB, LLC v. MONGER et al.
    (789 SE2d 806)
   Boggs, Judge.

Thor Gallery at South DeKalb, LLC (“Thor Gallery”), appeals from an order of the State Court of Gwinnett County that rescinded a commercial lease between Thor Gallery and Monger Investment Group, LLC, and Monger Entertainment Group, Inc. (collectively “Monger”), and required Thor Gallery to return Monger’s security deposit. One of Thor Gallery’s arguments on appeal is that the State Court of Gwinnett County lacked jurisdiction to provide Monger with the remedy of equitable rescission. For the reasons explained below, we agree and therefore vacate the state court’s order and remand this case with direction that it be transferred to the Superior Court of Gwinnett County.

The record shows that the lease between the parties required Monger to obtain specified insurance before the lease commencement date, that the lease would not commence until Thor Gallery delivered possession to Monger, and that Monger’s failure to obtain insurance would be considered a default entitling Thor Gallery to terminate Monger’s right of possession without terminating the lease. When Monger discovered shortly after the lease was signed that the specified insurance was unavailable, it requested that Thor Gallery cancel the lease and return its security deposit. In the alternative, it requested that Thor Gallery revise the insurance requirements in the lease.

Thor Gallery refused to alter the insurance requirements and filed suit against Monger seeking money damages for lost rent even though it had never delivered possession of the premises to Monger. Monger asserted a counterclaim alleging impossibility of performance and damages in the amount of the security deposit paid to Thor Gallery. Both parties filed motions for summary judgment in their favor, and Monger’s motion asserted that the lease should be rescinded. Following oral argument, the state court granted Monger’s summary judgment motion and “rescind[ed] the lease agreement between these parties and [found] that [Monger] was entitled to the return of the initial payment/security deposit in the amount of $12,197.00.” See OCGA § 13-3-5 (“[impossible, immoral, and illegal conditions are void and binding upon no one”); Woody’s Steaks v. Pastoria, 261 Ga. App. 815, 819 (2) (584 SE2d 41) (2003) (insurance requirement in lease is condition precedent).

1. Thor Gallery contends the state court lacked jurisdiction to order rescission and a return of the security deposit. We agree.

Georgia’s state courts, created pursuant to OCGA § 15-7-2, exercise comprehensive jurisdiction over a wide range of claims, including, inter alia, landlord/tenant disputes, misdemeanor offenses (including driving under the influence), contract and tort cases, and cases involving real property and small claims, but excluding only felony criminal cases, certain domestic cases, equity matters, and land title cases. See OCGA §§ 15-7-4, 15-6-8.

(Emphasis supplied.) In the Matter of: Inquiry Concerning a Judge, 265 Ga. 843, 846-847 (4) (462 SE2d 728) (1995). State courts, as well as this court, can exercise jurisdiction over certain cases involving rescission where no affirmative equitable relief is asserted. See Walsh v. Campbell, 130 Ga. App. 194, 196 (202 SE2d 657) (1973). But that is not the case here because Monger sought affirmative equitable relief in his motion for rescission. Cf. Goodman v. Little, 96 Ga. App. 110 (99 SE2d 517) (1957) (court without equity jurisdiction cannot address petition praying “for relief which only a court of equity, or a court of law exercising full equity powers, could administer, such as the rescission of contracts, the cancellation of promissory notes, injunction, etc.”).

The dissent cites Brown v. Techdata Corp., 238 Ga. 622 (234 SE2d 787) (1977), in support of the conclusion that this case involves a rescission at law. But Brown in fact supports the conclusion that the rescission claim here is equitable in nature. As Brown explains, “[i]n the rescission ‘at law’the tender itself effectuates the rescission” and the purchaser is entitled to the return of the purchase price “without taking any independent proceeding in equity to rescind the contract.” Id. at 626. “In these instances, the plaintiff rescinds the contract himself by restoring, or making a bona fide offer to restore, to the defendant the fruits of the contract.” Id.

In equitable rescission, in contrast, the plaintiff “seeks to invoke the affirmative powers of a court of equity to rescind, or undo, the contractual transaction.” (Emphasis supplied.) Brown, supra at 627. As explained in the same treatise on remedies relied upon by the dissent:

Rescission in equity is a very different, matter. Plaintiffs are frequently permitted to resort to equity courts for a rescission without much serious concern for the usual rule that equity jurisdiction is based upon the inadequacy of a legal remedy In equity the suit is not on rescission, but for rescission; it is not a suit based upon the rescission already accomplished by the plaintiff, but a suit to have the court decree a rescission. . . . Since rescission is not accomplished “in equity” until the court so decrees, the plaintiff has no obligation before suit to make restitution of goods or money he received from the defendant. . . . [T]he judge must act to assure that each party is restored to his pre-contract position, at least as far as possible to do.

(Citations and footnotes omitted; emphasis in original.) Dan B. Dobbs, Handbook on the Law of Remedies, § 4.8, p. 294 (1973).

In this case, that is precisely what occurred. Monger asked the court for the affirmative relief of rescission, the trial court decreed a rescission in its order, and required Thor Gallery to restore Monger by returning the security deposit. Monger did not sue on rescission based upon a tender already made. In the lease agreement at issue, the landlord Thor Gallery agreed to allow the use of its property for 15 years, and the tenant Monger agreed to pay a certain amount of rent each month, with the amount to increase each year after the third year. But Thor Gallery never delivered possession of the property, and Monger never paid any rent. Accordingly, there was nothing for Monger to tender or offer to tender to effectuate a rescission at law. Rather, Monger sought “the affirmative powers of a court of equity to rescind, or undo, the contractual transaction.” (Emphasis supplied.) Brown, supra, 238 Ga. at 627. Cf. Regents of the Univ. System of Ga. v. Carroll, 203 Ga. 292, 293 (1) (b) (46 SE2d 496) (1948) (no equitable rescission where defendants do not seek affirmative equitable relief, but ask for dismissal with costs, a “purely defensive matter”). We must therefore vacate the state court’s order and remand this case with direction that it be transferred to superior court. See Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369, 371 (667 SE2d 348) (2008).

The cases cited by the dissent do not require a different, result. Four of the five cases relied upon do not address the issue of jurisdiction and whether the case involved legal or equitable rescission. See Medical Staffing Network v. Connors, 313 Ga. App. 645 (722 SE2d 370) (2012); Crowell v. Williams, 273 Ga. App. 676 (615 SE2d 797) (2005); Intl. Software Solutions v. Atlanta Pressure Treated Lumber Co., 194 Ga. App. 441 (390 SE2d 659) (1990); Cutcliffe v. Chesnut, 122 Ga. App. 195 (176 SE2d 607) (1970). Instead, they are simply cases in which a magistrate court or state court addressed a rescission claim below, or rescission is discussed generally. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided so as to constitute precedent. [Cit.]” Tolbert v. Whatley, 223 Ga. App. 508, 513 (2) (478 SE2d 587) (1996). And we cannot determine from our opinion in Hann v. Harpers Boutiques Intl., 284 Ga. App. 531 (644 SE2d 337) (2007), whether any tender was made or offered in connection with the rescission claim over which the state court had jurisdiction. Additionally, we stated there that the rescission claim at issue was based upon fraudulent inducement that is “legal in nature and not equitable.” Id. at 533 (2). This case does not involve a rescission based upon fraudulent inducement.

Additionally, the fact that Monger cited a statute, OCGA § 13-4-62, in support of its rescission claim does not automatically render it a claim “at law.” Indeed, the Supreme Court of Georgia has recognized that the restoration contemplated by the predecessor of this statute is equitable in nature. Jones v. Gaskins, 248 Ga. 510, 512 (1) (284 SE2d 398) (1981). See also Lanier Home Center v. Underwood, 252 Ga. App. 745, 746 (1) (557 SE2d 76) (2001) (“Georgia law allows equitable rescission for nonperformance of a contract: A party may rescind a contract without the consent of the opposite party on the ground of nonperformance by that party but only when both parties can be restored to the condition in which they were before the contract was made.’OCGA § 13-4-62. [Cit.]”).

2. Thor Gallery’s remaining enumerations of error are rendered moot by our holding in Division 1.

Judgment vacated and case remanded with direction.

Phipps, P. J., Dillard, Branch, McMillian, Mercier and Peterson, JJ., concur. Ellington, P. J., concurs in judgment only. McFadden, J., dissents.

McFADDEN, Judge,

dissenting.

I respectfully dissent. The trial court had jurisdiction to rule in this action. So I would decide the merits.

As detailed below, I would affirm the trial court’s denial of summary judgment to Thor Gallery on both Thor Gallery’s claims and Monger’s counterclaim. I also would affirm the trial court’s grant of summary judgment to Monger on Thor Gallery’s claims. Because a factual issue exists as to whether Monger was entitled to rescind the contract and recover its security deposit, however, I would reverse the trial court’s grant of summary judgment to Monger on its counterclaim.

1. Trial court’s jurisdiction.

The majority correctly states that state courts do not have jurisdiction over cases in equity But not every case involving rescission of a contract is a case in equity. “[A]n instrument may be voided by an action at law.” Walsh v. Campbell, 130 Ga. App. 194, 196 (202 SE2d 657) (1973). As our Supreme Court described in Brown v. Techdata Corp., 238 Ga. 622, 626-627 (234 SE2d 787) (1977), two types of rescission are available to parties to a contract: rescission in equity and rescission at law. And if a contract is rescinded at law, a party may seek in an action at law to recover the property which has been retained by the other party under the rescinded contract, Brown, 238 Ga. at 626-627, even though, as the majority states, the right to restoration of one’s property under a rescinded contract is an equitable right. See Jones v. Gaskins, 248 Ga. 510, 512 (1) (284 SE2d 398) (1981). See generally Dobbs, Handbook on the Law of Remedies, § 4.3, p. 255 (1973) (Where rescission at law is accomplished by the unilateral act of the plaintiff, that party must then bring suit to obtain restitution of his money, but “[i]n such a case there is no need for equity intervention!)] ”) • State courts have jurisdiction to entertain rescission claims that are legal in nature. Hann v. Harpers Boutiques Intl., 284 Ga. App. 531, 533 (2) (644 SE2d 337) (2007). See generally Medical Staffing Network v. Connors, 313 Ga. App. 645, 650-651 (3) (722 SE2d 370) (2012) (affirming state court decision that included finding that party had rescinded contract due to other parties’ nonperformance); Crowell v. Williams, 273 Ga. App. 676, 677-678 (3) (615 SE2d 797) (2005) (reversing state court decision that denied plaintiff’s attempt to recover money paid under contract that defendant had effectively rescinded due to plaintiff’s nonperformance); Intl. Software Solutions v. Atlanta Pressure Treated Lumber Co., 194 Ga. App. 441, 443 (390 SE2d 659) (1990) (affirming state court’s conclusion that plaintiff was entitled to rescission, for nonperformance, of contract and refund of money paid to defendant for computer system, conditioned upon plaintiff’s return of computer system to defendant).

Accordingly, the question of the state court’s jurisdiction in this case turns on whether the contract was rescinded at law or in equity A rescission at law occurs by the action of a party to the contract, typically by the tender of contractual benefits. See Brown, 238 Ga. at 626 (“[i]n the rescission ‘at law’ the tender itself effectuates the rescission”); see also Jesinoski v. Countrywide Home Loans, _ U. S. _, _ (135 SCt 790, 190 LE2d 650) (2015) (in rescission at law, party to contract effects rescission by returning what he received under contract); Sherzer v. Homestar Mtg. Svcs., 707 F3d 255, 261, n. 4 (3d Cir. 2013) (rescission at law “occurs automatically when parties have taken [a] requisite action”) (citation omitted). See generally Dobbs, Handbook on the Law of Remedies, § 4.3, p. 255 (1973) (in a rescission at law, “the plaintiff may unilaterally rescind against the will of the defendant, assuming the plaintiff has good substantive grounds for doing so”). In contrast, a rescission in equity requires the action of a court to undo the contractual transaction. Brown, 238 Ga. at 627; see also Jesinoski, _ U. S. at _; Sherzer, 707 F3d at 261. See generally Dobbs, Handbook on the Law of Remedies § 4.8, pp. 292-294 (1973) (discussing role of court in rescission at law versus rescission in equity).

In its counterclaim and motion for summary judgment, Monger sought to rescind the lease for Thor Gallery’s nonperformance under OCGA § 13-4-62, which permits a party to take action to rescind a contract. That Code section provides that “[a] party may rescind a contract without the consent of the opposite party on the ground of nonperformance by that party but only when both parties can be restored to the condition in which they were before the contract was made.” OCGA § 13-4-62 (emphasis supplied). The record shows that both parties could be restored to the condition in which they were before the contract was made. And a party may invoke its right to rescind under this Code section in a court proceeding. See Intl. Software Solutions, 194 Ga. App. at 442.

Nevertheless, as the majority points out, Monger made no tender to Thor Gallery of benefits that it had received under the contract. It was impossible for Monger to make a tender of benefits such as money or possession of the premises to Thor Gallery, because Thor Gallery had not given any such benefits to Monger under the lease. By opting to rescind rather than seek to recover under the lease, however, Monger did relinquish its ability to hold Thor Gallery to its obligations thereunder. Moreover, we have held:

Where money is paid on a contract which is executory on the part of him who receives the money, and the party so receiving fails to fulfill his part of the contract, the injured party may elect either to bring action on the contract and recover damages for nonperformance, or to consider the contract as rescinded and recover the money paid.

Cutcliffe v. Chesnut, 122 Ga. App. 195, 202 (2) (176 SE2d 607) (1970) (citation and punctuation omitted; emphasis supplied). And our courts have recognized exceptions to the requirement that a party offer restoration in order to rescind a contract under OCGA § 13-4-62 “where nothing of any value is received by the party seeking to rescind” or “where the amount received under the contract sought to be rescinded may be less than the amount actually due the party seeking to rescind.” 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 905 (3) (a) (775 SE2d 243) (2015) (citation omitted). A rescission may be at law even though tender is not possible for one of these reasons. See Dobbs, Handbook on the Law of Remedies, § 4.8, p. 295 (1973).

The majority cites Walsh v. Campbell, supra, 130 Ga. App. 194, for the proposition that state courts “can exercise jurisdiction over certain cases involving rescission where no affirmative equitable relief is asserted.” Maj. op. at 237. The Walsh decision does not hold, however, that a case is one in equity rather than at law simply because the plaintiff seeks to recover property retained by the other party under a rescinded contract. Such a holding would conflict with our Supreme Court’s holding in Brown. See Brown, 238 Ga. at 626.

For these reasons, Monger’s rescission of the lease for nonperformance under OCGA § 13-4-62 was a rescission at law. Consequently, the trial court had jurisdiction over this case, and we must address the merits of Thor Gallery’s appeal from the state court’s ruling.

2. Summary judgment.

In her order, the trial court denied Thor Gallery’s motion for summary judgment (which had addressed both Thor Gallery’s claims and Monger’s counterclaim), granted Monger’s motion for summary judgment (which had also addressed both parties’ claims), held that the lease was rescinded, and ordered Thor Gallery to return Monger’s security deposit. Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]”OCGA § 9-ll-56(c). “On a motion for summary judgment the plaintiff [or counterclaim plaintiff], as movant, has the burden of establishing the absence or non-existence of any defense raised by the defendant [or counterclaim defendant]." Greenstein v. Bank of the Ozarks, 326 Ga. App. 648, 649 (1) (757 SE2d 254) (2014) (citation and punctuation omitted). This court “review[s] a grant or denial of summary judgment de novo and construe [s] the evidence in the light most favorable to the nonmovant. Because this [dissent] addresses cross-motions for summary judgment, [I] will construe the facts in favor of the nonmoving party as appropriate.” Krieger v. Bonds, 333 Ga. App. 19, 20 (775 SE2d 264) (2015) (citation and punctuation omitted).

(a) Thor Gallery’s claims.

In its action against Monger, Thor Gallery alleged that Monger breached the lease by failing to take possession of the premises and failing to pay rent as it became due, and it alleged that individual defendant Sampson Monger breached a personal guaranty to pay Monger’s rent. The trial court denied Thor Gallery’s motion for summary judgment and granted Monger’s motion for summary judgment on these claims. I find no error, because the evidence shows that Thor Gallery did not comply with the lease requirement that it provide Monger with notice of and an opportunity to cure any defaults.

The lease pertinently provides that Monger’s failure to make a rent payment or to observe or perform any other term or condition of the lease constitutes a default and permits Thor Gallery to seek remedies under the lease, unless such failure is cured within a specified period “after [Thor Gallery] has sent notice of such failure to [Monger].” The lease requires that

every notice or demand given by either party to the other ... shall be in writing and .. . shall be served personally or by a courier service that provides a signed delivery receipt, or United States registered or certified mail, return receipt requested, postage prepaid, addressed, if to [t]enant, at the address first set forth in this [l]ease[.]

To the extent the requirements of these provisions are ambiguous, they must be construed against the drafter, Thor Gallery. Zions First Nat. Bank v. Macke, 316 Ga. App. 744, 753 (4) (a) (730 SE2d 462) (2012).

The record contains two letters that Thor Gallery sent by certified mail to Monger. First, a March 19, 2014 letter instructed Monger to “take notice” of three things: (1) that possession of the premises was ready to be delivered to Monger but that such delivery had been delayed because Thor Gallery had not received from Monger certain insurance policies required under the lease; (2) that Thor Gallery could not continue to delay the commencement of the lease while waiting to receive the insurance policies, and therefore deemed the “Lease Commencement Date,” as defined in the lease, to be March 19, 2014; and (3) that if Monger “continue[s] to fail to comply with the [l]ease as described above, [Monger] will be in default of the [l]ease and [Thor Gallery] will seek all applicable remedies under the [l]ease.” (Emphasis supplied.) Notably, this letter identified Monger’s noncompliance as a failure to provide insurance policies, not as a failure to take possession of the premises or a failure to pay rent. Moreover, the letter expressly stated that Monger “will be” in default if it continued to fail to comply with the insurance policy requirement, implying that at the time Monger was not in default. The March 19, 2014 letter was not sufficiently specific to constitute notice under the lease of Thor Gallery’s claim that Monger defaulted by failing to take possession of the premises and failing to make rent payments.

Second, a July 11, 2014 letter purported to notify Monger that it was in default for failing to provide Thor Gallery with insurance policies and failing to pay rent as it became due and payable. This letter also failed to provide notice of the specific breaches upon which Thor Gallery bases this action. As with the earlier letter, this letter identified Monger’s noncompliance as a failure to provide insurance policies, not as a failure to take possession of the premises, and the ambiguity arising from this lack of precision must be construed against Thor Gallery See Zions First Nat. Bank, 316 Ga. App. at 753 (4) (a). While the letter did identify Monger’s failure to pay rent as a ground for default, in fact at that time Monger was not in breach of any provisions regarding rent payment, as Thor Gallery subsequently conceded, because Monger’s obligation to pay rent under the lease had not yet begun.

Because there is no evidence that Thor Gallery provided Monger with notice of and an opportunity to cure the breaches it alleges in its complaint, as required by the lease, the trial court did not err in denying summary judgment to Thor Gallery and granting summary judgment to Monger on Thor Gallery’s breach of contract and breach of guaranty claims. See Zions First Nat. Bank, 316 Ga. App. at 753 (4) (a) (holding that party must comply with notice and cure provisions before seeking remedy for default under contract).

(b) Monger’s counterclaim.

In its counterclaim, among other things, Monger alleged that Thor Gallery had not performed obligations under the lease and asked to recover its security deposit. In its summary judgment motion, Monger argued that it was entitled to this remedy under OCGA § 13-4-62, which permits a party to a contract to “rescind [the] contract without the consent of the opposite party on the ground of nonperformance by that party but only when both parties can be restored to the condition in which they were before the contract was made.” However, “Georgia courts have refused to allow rescission when a [party seeking rescission] has materially breached the contract or when [that party’s] nonperformance justified [the other party’s] subsequent nonperformance[.]” Martin v. Rollins, Inc., 238 Ga. 119, 120 (1) (231 SE2d 751) (1977) (citations omitted). As detailed below, there exist genuine issues of material fact about whether both Thor Gallery and Monger failed to perform under the lease. These facts preclude summary judgment to either party on Monger’s counterclaim. Accordingly, the trial court correctly denied summary judgment to Thor Gallery on the counterclaim but erred in granting summary judgment to Monger.

(i) Thor Gallery’s alleged nonperformance. Monger argues that Thor Gallery failed to perform under the lease because it did not give Monger notice of and opportunity to cure defaults and because it charged Monger rent but did not deliver possession of the premises.

As to notice (as discussed above in Division 2 (a) of this dissent), the evidence shows that Thor Gallery did not provide Monger with the required notice of and opportunity to cure the alleged defaults. While this nonperformance precluded Thor Gallery’s claims against Monger, it did not authorize Monger to rescind the lease under OCGA § 13-4-62 because the nonperformance was not “so substantial and fundamental as to defeat the object of the contract.” Yi v. Li, 313 Ga. App. 273, 277 (721 SE2d 144) (2011) (citation and punctuation omitted).

As to delivery of possession of the premises, Thor Gallery argues that it was excused from this obligation because Monger did not obtain the insurance coverage required under the lease. The lease provisions relevant to these arguments provided: (1) that Thor Gallery could begin charging rent the earlier of the date Monger opened for business to the public or 150 days after the “Lease Commencement Date”; (2) that the “Lease Commencement Date” occurred when possession of the premises was delivered to Monger; (3) that Monger “shall deliver” to Thor Gallery certain documents pertaining to insurance “prior to the [‘] Lease Commencement Date[’]”; and (4) that Thor Gallery could invoke the “Lease Commencement Date” while delaying delivery of possession of the premises if the delay arose “from the acts or omissions of [Monger] or of any person or entity acting on behalf of, or at the direction of, [Monger].”

I am not convinced by Thor Gallery’s argument that these provisions established Monger’s delivery of the insurance documents as a condition precedent to Thor Gallery’s delivery of the premises. Compare Yi, 313 Ga. App. at 277 (provision expressly conditioning closing in purchase of ice cream store franchise upon obtaining franchisor’s consent was a condition precedent to the transaction). To the extent delivery of the insurance documents was a condition precedent to anything, it was a condition precedent to the “Lease Commencement Date,” which under the lease was usually but not always the same date as the date of delivery of possession of the premises. And Thor Gallery waived that condition precedent when it deemed the “Lease Commencement Date” to be March 19, 2014, even though it had not received the insurance documents. (See discussion of March 19, 2014 letter in Division 2 (a) of this dissent.) See Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 618 (2) (501 SE2d 497) (1998) (party can waive condition precedent).

Nevertheless, the above referenced lease provisions, taken together, permitted Thor Gallery to invoke the “Lease Commencement Date” and charge Monger rent despite failing to deliver possession of the premises to Monger if the failure to deliver possession of the premises arose from Monger’s acts or omissions. And a fact question exists as to whether Thor Gallery’s failure to deliver possession of the premises arose from Monger’s acts or omissions. Thor Gallery has presented evidence that it did not deliver possession of the premises to Monger because Monger had not obtained the insurance required by the lease. Monger has presented evidence that such insurance was unavailable, but it offers no explanation as to why the insurance was unavailable. The evidence does not reveal whether or not the insurance was unavailable due to some act or omission of Monger. Consequently, Monger has not met its burden, as counterclaim plaintiff, of showing that there is evidence demanding a judgment that Thor Gallery failed to perform an obligation to deliver possession of the premises.

Decided July 15, 2016.

Wiles & Wiles, John J. Wiles, Victor W. Newmark, for appellant.

Wagner, Johnston & Rosenthal, Kenneth I. Sokolov, for appellees.

(ii) Monger’s alleged nonperformance. Even if Thor Gallery did not perform its obligation to deliver possession of the premises under the lease, Monger cannot recover under OCGA § 13-4-62 if Monger also materially breached the lease or acted in a way that justified Thor Gallery’s nonperformance. See Martin, 238 Ga. at 120 (1). Thor Gallery argues that Monger did not perform its obligations under the lease to obtain insurance and to provide Thor Gallery with certain construction permits, plans, and specifications. Monger has presented evidence that it could not satisfy these obligations because the required insurance was unavailable (the fact of which Monger informed Thor Gallery before Thor Gallery signed the lease) and because, without possession of the premises, it could not procure the required construction documents. Fact questions remain as to whether this unavailability rendered performance of the condition impossible such that the condition was void under OCGA § 13-3-5. Additionally, whether Monger’s failure to obtain insurance and construction documents under the circumstances “was such a material breach of the [lease] so as to bar rescission depends on the resolution ... of issues of fact concerning the causes and nature of the [failure], and its contribution, if any, to the alleged breach of [Thor Gallery].” Martin, 238 Ga. at 121 (1). Accordingly, neither party is entitled to summary judgment on the counterclaim.

       If Monger had received possession of the property, he would have had something to tender or offer to tender to Thor Gallery to rescind the lease at law. The fact that Monger had not been given possession of the property distinguishes this case from a typical landlord/tenant dispute over which a state court generally has jurisdiction.

       This Code section provides: “A party may rescind a contract without the consent of the opposite party on the ground of nonperformance by that party but only when both parties can be restored to the condition in which they were before the contract was made.”

       For convenience, in this dissent I treat the appellees as a single party and adopt the majority’s collective use of the term “Monger” to describe them. I note that Thor Gallery brought this action against three defendants: the two entities that entered into the lease and an individual, Sampson Monger, who signed a personal guaranty of the lease.


author: Rickman, Judge. BARNES, Presiding Judge,

text:
    A16A0526.
    GEORGIA DEPARTMENT OF JUVENILE JUSTICE v. ELLER.
    (789 SE2d 412)
   Rickman, Judge.

The Department of Juvenile Justice (“DJJ”), though a nonparty to the proceedings below, appeals from a superior court order directing DJJ to hold in its custody Daniel Lee Eller, a criminal defendant prosecuted as an adult for a crime he committed as a juvenile, until he turns 21 years old. DJJ contends that, contrary to the superior court’s directive, the plain language of OCGA § 17-10-14 (a) mandates that Eller be transferred to the Department of Corrections upon his seventeenth birthday. We agree and reverse.

The record shows that in 2013, Eller entered a negotiated guilty plea to child molestation and burglary in the Superior Court of Hall County Eller was 15 years old at the time of the crime and was prosecuted as an adult in the superior court. He received a 40-year sentence, with 15 years to be served in confinement,.

During the sentencing hearing, defense counsel requested the judge to direct that Eller remain in the custody of DJJ until he turned 21 years old, and the State indicated it had no objection to the request. Although the judge expressly questioned her authority to impose that specific condition on Eller’s sentence, she ultimately agreed to it after both parties took the position that she was authorized to do so.

In January 2014, when Eller turned 17 years old, the Department of Corrections attempted to take Eller into its custody pursuant to OCGA § 17-10-14 (a). The superior court conducted a sentence review hearing, after which it ordered that Eller was to remain in the custody of DJJ until his twenty-first birthday. DJJ appeals, arguing that the superior court’s order violates Georgia law.

As asserted by the DJJ, OCGA § 17-10-14 (a) mandated a transfer of Eller to the Department of Corrections upon Eller’s seventeenth birthday:

[When] a person under the age of 17 years is convicted of a felony and sentenced as an adult... to a certain term of imprisonment, such person shall be committed to the Department of Juvenile Justice to serve such sentence in a detention center of such department until such person is 17 years of age at which time such person shall be transferred to the Department of Corrections to serve the remainder of the sentence. . . .

(Emphasis supplied.)

Notwithstanding the foregoing statutory mandate, Eller asserts that his retention in DJJ custody is authorized by OCGA § 49-4A-9 (e). That statute provides that when a child under the age of 17 years who was convicted of a felony and sentenced in the superior court as an adult approaches the age of 17, the DJJ

shall notify the court that a further disposition of the child is necessary ... The court shall review the case and determine if the child, upon becoming 17 years of age, should be placed on probation, have his or her sentence reduced, be transferred to the Department of Corrections for the remainder of the original sentence, or be subject to any other determination authorized by law.

(Emphasis supplied.) Eller maintains that by directing DJJ to retain custody of him until he turns 21 years old, the superior court lawfully exercised its authority to subject him to “any other determination.”

When read together, we reject Eller’s contention that OCGA § 49-4A-9 (e) authorized the superior court to disregard the mandates of OCGA § 17-10-14 (a) under the circumstances presented in this case. It is axiomatic that “[when] the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.” (Citation and punctuation omitted.) Hough v. State, 279 Ga. 711, 716 (2) (a) (620 SE2d 380) (2005); see Mullins v. First General Ins. Co., 253 Ga. 486, 487 (322 SE2d 265) (1984). In fact, judicial construction of the language of an unambiguous statute “is not only unnecessary but forbidden.” (Citation and punctuation omitted.) Hough, 279 Ga. at 716 (2) (a); see Fleming v. State, 271 Ga. 587, 589 (523 SE2d 315) (1999). “The doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature. We can not add a line to the law.” (Citation and punctuation omitted.) State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006).

OCGA § 17-10-14 (a) explicitly and unequivocally provides that, upon turning 17 years old, a juvenile in DJJ custody who was sentenced in superior court as an adult “shall be transferred to the Department of Corrections to serve the remainder of the sentence.” In passing OCGA § 49-4A-9 (e), the Georgia legislature authorized the sentencing court to review and reassess a juvenile’s case as his or her transfer date approaches in order to consider whether to impose an alternative disposition. Pursuant to the express language of that statute, to the extent that the superior court reviewed Eller’s case and determined that an alternative disposition was warranted, the judge was authorized to: place him on probation, reduce his sentence, allow his transfer to the Department of Corrections, or fashion “any other determination authorized by law.” Ordering that Eller remain in DJJ custody until he reaches 21 years of age, however, was neither authorized by OCGA § 49-4A-9 (e) or any other provision of Georgia law.

Were we to construe OCGA § 49-4A-9 (e) in the manner proposed by Eller, it would render meaningless the express statutory requirement that any alternative determination imposed by the sentencing court otherwise be “authorized by law.” This we cannot do. See Chatman v. Findley, 274 Ga. 54, 55 (548 SE2d 5) (2001); Ramos-Silva v. State Farm Mut. Ins. Co., 300 Ga. App. 699, 701 (686 SE2d 345) (2009). Our conclusion is further buttressed by the fact that when passing the Juvenile Code, the legislature expressly provided that a child adjudicated in juvenile court to having committed a similar felonious act could be detained in DJJ custody until the age of 21. See OCGA § 15-11-602 (g). “We must assume, in the absence of evidence to the contrary, that these distinctions are intended by the General Assembly, and construe them as written.” (Footnote omitted.) State Ethics Commr. v. Moore, 214 Ga. App. 236, 239 (447 SE2d 687) (1994). And while we agree with the dissent that OCGA § 49-4A-9 (b) provides the superior court broad discretion to modify its orders for the welfare of “any child” subject to its jurisdiction, the plain language of subsection (e) limits that discretion once that child becomes 17 years of age.

Judgment reversed.

Miller, P. J., Ellington, P. J., Boggs, Branch, McMillian and Mercier, JJ., concur. Barnes, P. J., and McFadden, J., dissent.

BARNES, Presiding Judge,

dissenting.

I respectfully dissent to the majority’s opinion because construing OCGA § 17-10-14 to remove the sentencing court’s discretion to exercise jurisdiction over Eller until he reaches age 21 would render OCGA § 49-4A-9 meaningless. A cardinal rule of statutory construction is that “the courts shall look diligently for the intention of the General Assembly[.]” OCGA § 1-3-1 (a). This court will not construe a statute so as to render any portion of it meaningless. Sikes v. State, 268 Ga. 19, 21 (2) (485 SE2d 206) (1997). “All parts of a statute should be harmonized and given sensible and intelligent effect, because it is not presumed that the legislature intended to enact meaningless language.” (Citations omitted.) J. Kinson Cook, Inc. v. Weaver, 252 Ga. App. 868, 870 (556 SE2d 831) (2001).

OCGA § 17-10-14 (a) provides:

[I]n any case where a person under the age of 17 years is convicted of a felony and sentenced as an adult to life imprisonment or to a certain term of imprisonment, such person shall be committed to the Department of Juvenile Justice to serve such sentence in a detention center of such department until such person is 17 years of age at which time such person shall be transferred to the Department of Corrections to serve the remainder of the sentence. . . .

(Emphasis supplied.) Yet OCGA § 49-4A-9 (e) authorizes the sentencing court to review the case once the child is 17 years of age and determine if the child “should be placed on probation, have his or her sentence reduced, be transferred to the Department of Corrections for the remainder of the original sentence, or be subject to any other determination authorized by law.” Likewise OCGA § 49-4A-9 (b) provides:

Any final order of judgment by the court in the case of any such child shall be subject to such modification from time to time as the court may consider to be for the welfare of such child. No commitment of any child to any institution or other custodial agency shall deprive the court of jurisdiction to change the form of the commitment or transfer the custody of the child to some other institution or agency on such conditions as the court may see fit to impose, the duty being constant upon the court to give to all children subject to its jurisdiction such oversight and control in the premises as will be conducive to the welfare of the child and the best interests of the state[.\

(Emphasis supplied.) Moreover, OCGA § 49-4A-9 (c) provides that the final judgment is subject to modification and that the sentencing court “shall review the case and make such order with respect to the continued confinement or release of the child back to the committing court for further disposition as the court deems proper.” (Emphasis supplied.)

Decided July 15, 2016.

Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorn ey General, Joseph J. Drolet, Senior Assistant Attorney Gen eral, Amy M. Radley, Hye Min Park, Assistant Attorneys General, for appellant.

Weaver Law Firm, Michael L. Weaver, Sr., Jason M. Burruss, for appellee.

The majority proposes that OCGA § 49-4A-9 (e) authorizes the sentencing court to only make determinations “authorized by law” and that remaining in DJJ custody is not authorized by law per the express language in OCGA § 17-10-14 (a) mandating the automatic transfer from DJJ custody upon turning 17 years old. The majority, however, fails to reconcile why any review by the sentencing court would be permitted per OCGA § 49-4A-9 court once a juvenile turned 17 if transfer to the Department of Corrections was an unequivocal operation of law. “We must presume that the Legislature’s failure to include . . . limiting language was a matter of considered choice.” Transp. Ins. Co. v. El Chico Restaurants, 271 Ga. 774, 776 (524 SE2d 486) (1999). This legislation clearly contemplates that a sentencing court might retain jurisdiction over a juvenile until the age of 21. See OCGA § 49-4A-8 (k).

I would affirm the trial court’s order directing that Eller remain in DJJ custody until the age of 21. Accordingly, I dissent from the majority’s opinion.

I am authorized to state that Judge McFadden joins in this dissent.

       DJJ has standing to appeal the superior court’s order pursuant to OCGA § 5-7-1 (a) (6) (“An appeal may be taken by and on behalf of the State of Georgia .. . [f]rom an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state.”). See also OCGA § 5-6-34 (a) (1); Darden v. Ravan, 232 Ga. 756, 758 (1) (208 SE2d 846) (1974) (“A judgment rendered sua sponte by the superior court which mandates actions and which, if valid, would authorize the court to hold the persons named in such judgment in contempt of court is an appealable judgment.”).

       The hearing was conducted pursuant to OCGA § 49-4A-9 (e), as discussed below.

       After being invited by this Court to file an appellate brief, the State filed a brief in which it generally agreed with Eller’s interpretation of the statutory law.