author: Blackwell, Judge.

text:
    A11A0361.
    LUCKIE v. THE STATE.
    (714 SE2d 358)
   Blackwell, Judge.

Patrick Luckie was tried by a Fulton County jury and convicted of unlawfully possessing heroin with intent to distribute and unlawfully abandoning heroin in a public place. He appeals from the judgment of conviction, contending in his sole enumeration of error that the trial court erred when it permitted the prosecuting attorney to elicit testimony from a defense witness about criminal charges then pending against the witness. The prosecuting attorney offered this testimony ostensibly to prove that the witness had a motive to shade his testimony in favor of Luckie, but Luckie argues on appeal that the testimony is not probative of any such motive. Although Luckie might well be right that the specific testimony elicited at trial was not probative of any motive to testify favorably for Luckie, he did not raise this argument below, and, for this reason, he has failed to properly preserve the issue for our review. Consequently, we are constrained to affirm his convictions.

At trial, two police officers testified that, while patrolling a parking lot near the Georgia Dome late at night on June 1, 2004, they saw Luckie throw down a bag, which, the officers discovered, contained heroin, and they then arrested Luckie and charged him with the crimes that form the basis for the convictions in this case. To rebut this testimony, Luckie called two witnesses, each of whom testified that he was with Luckie in the parking lot on that night and that Luckie threw a cigarette, not a bag, to the ground. The cross-examination of one of these witnesses, Gerald Hurst, is the subject of this appeal. Both Hurst and Luckie, it turns out, had been arrested for possession of heroin on another occasion. The charges arising from this separate incident still were pending against both men when Hurst appeared in this case as a witness for Luckie.

Before Hurst testified, the prosecuting attorney informed the defense lawyer and the trial judge that he intended to ask Hurst about the pending heroin charge, and he inquired whether the defense would have any objection to this line of cross-examination. The defense lawyer said that, yes, she would object, although she needed some time to identify the precise grounds for her objection. The defense lawyer said then that she was “leaning towards [objecting on the ground that the pending charge is] not a conviction.” At that point, the trial judge said that he would entertain an oral motion in limine on this line of cross-examination at a later time, but in any event, before Hurst testified.

Later that day, the trial judge invited the defense lawyer to make a motion in limine, and the defense lawyer responded: “Your Honor, I would ask that the State not be allowed to ask my witness any question that brings my client’s [that is, Luckie’s] character into evidence.” The prosecuting attorney replied that the testimony he expected to elicit by this line of cross-examination would show a relationship between Luckie and Hurst and would, therefore, be probative of a motive for Hurst to shade his testimony to help Luckie. Oddly enough, the prosecuting attorney then added that “[wje do not plan to ask about Mr. Luckie, just the fact that he has a — the witness has an open pending case for possession of heroin here in Fulton County.” The defense lawyer made no further argument, and no one pointed out to the trial judge the rather obvious impossibility of proving a relationship between Hurst and Luckie by asking questions about Hurst having been arrested on another occasion without making any mention of the fact that Luckie too was present and arrested at the same time. Citing OCGA § 24-9-68, the trial court ruled that the State could pursue this line of cross-examination and denied the motion in limine.

When Hurst later testified, the prosecutor pursued this line of cross-examination and, as promised, did not ask anything about the fact that Luckie also was present and arrested at the time Hurst was arrested:

State: Mr. Hurst, Isn’t it true that you have a pending possession of heroin with intent to distribute indictment against you here in Fulton County Superior Court?
Witness: I’m accused of that.
State: And it’s currently pending in Fulton County Superior Court?
Witness: Yeah.
State: And you’re here testifying today for Mr. Luckie; is that correct?
Witness: Yeah.

The defense lawyer offered no additional objections at the time of the cross-examination. Now, on appeal, Luckie asserts that this cross-examination was not probative of any relationship or motive of Hurst to shade his testimony. Without reaching the merits of this argument, we conclude that Luckie has failed to preserve this objection for our review.

As our Supreme Court recently explained,

[sjtandard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal, and standard practice also allows parties to raise on appeal only the same objections that were properly preserved below.

Whitehead v. State, 287 Ga. 242, 246 (2) (695 SE2d 255) (2010). Our Supreme Court has said that, even when the State improperly impeaches a defense witness, the issue is waived unless the accused properly objects in the trial court. See Martin v. State, 281 Ga. 778, 779-780 (2) (642 SE2d 837) (2007) (improper use of plea of nolo contendere to impeach a witness); Kyler v. State, 270 Ga. 81, 84 (7) (508 SE2d 152) (1998) (improper mention of outstanding warrants for arrest of witness). And although a motion in limine generally will preserve the grounds on which the motion is based for appellate review, without the need for the accused to object again at trial, “this rule cannot be invoked to preserve a different, if perhaps related, error.’’ See Arnold v. State, 249 Ga. App. 156, 161 (3), n. 15 (545 SE2d 312) (2001) (motion in limine to exclude references to specific charges underlying probation and existence of a probationary warrant did not preserve any error in allowing references to “felony warrant”) (citation and punctuation omitted). To consider on appeal an objection to the admission of evidence that never was raised at trial “would deprive the trial court of the opportunity to consider the error alleged, and take corrective action, if necessary.” Ward v. State, 238 Ga. App. 540, 542 (2) (519 SE2d 304) (1999). At trial, the lawyer for Luckie never argued that the questions the prosecuting attorney proposed to ask, and ultimately did ask, of Hurst would not elicit testimony showing some relationship between the two men and that the proposed cross-examination, therefore, was not probative of a relationship under OCGA § 24-9-68.

Instead, the lawyer offered two other reasons why this line of cross-examination should not be allowed. First, she objected to this line of cross-examination to the extent that it might elicit testimony that would impugn the character of her client. But because the State actually elicited no testimony from Hurst about Luckie having been implicated in the crime for which Hurst was arrested, the testimony about which Luckie now complains did not even touch upon his character, and this objection affords no basis for a reversal of the judgment of conviction. The testimony elicited at trial did, of course, touch upon the character of the witness, but that is a different objection. The objection made at trial did not preserve the assertion of error that Luckie now raises on appeal.

Second, the lawyer for Luckie objected that the pending charge was not a conviction, presumably a reference to the rule that a witness may not be impeached under OCGA § 24-9-84.1 with proof that he committed a crime unless he has been convicted of it. See Watkins v. State, 276 Ga. 578, 581 (3) (581 SE2d 23) (2003) (witness cannot be impeached with proof of specific misconduct unless that misconduct has resulted in a criminal conviction); see also Polk v. State, 202 Ga. App. 738, 739 (2) (415 SE2d 506) (1992) (same). And this would have been a fine objection if the State had offered the testimony at issue, and if the trial court had admitted it, for the purpose of impeaching Hurst by proof that Hurst himself had possessed heroin. But the State offered this testimony for the distinct purpose of showing under OCGA § 24-9-68 that Hurst and Luckie had a relationship that would give Hurst a motive to lie for Luckie.

When evidence is offered for a specific purpose (to prove, for instance, the relationship between a witness and a party), it is no answer to say that it is inadmissible for a different purpose (to prove, for instance, that the witness is a criminal and should not, therefore, be believed). An objection to such evidence, if it is to provide grounds for appellate review, must be directed toward the specific purpose for which evidence is offered by the proponent and admitted by the trial court. Cf. Wilcox v. State, 263 Ga. 293, 294 (1) (430 SE2d 741) (1993) (“We will not consider whether the trial court erred in refusing to admit the evidence for a purpose raised for the first time on appeal, when the appellant affirmatively stated a different and invalid purpose at trial.”); Lee v. State, 241 Ga. App. 182, 183 (1) (525 SE2d 426) (1999) (where evidence excluded by trial court was not admissible for specific purpose for which it was offered in trial court, proponent could not argue on appeal that it should have been admitted for a different purpose). No conviction is required to offer proof that bears upon the relationship between a witness and a party. See Beam v. State, 265 Ga. 853, 856-857 (4) (463 SE2d 347) (1995); see also Fields v. State, 285 Ga. App. 345, 346 (3) (646 SE2d 326) (2007). Consequently, the objection that Hurst had not yet been convicted did not meet the purpose for which the evidence was offered and admitted. More important, it is a different objection than the one Luckie raises on appeal, and it did not, therefore, preserve the issue Luckie now presses for our review.

Decided June 21, 2011

Reconsideration denied July 14, 2011

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

Because Luckie never argued in the trial court that the testimony elicited by the cross-examination at issue was not probative of any relationship between him and Hurst, there is nothing for us to review on appeal. Accordingly, we are constrained to affirm the judgment below.

Judgment affirmed.

Barnes, P. J., concurs. Adams, J., concurs in the judgment only.

       See OCGA § 16-13-30 (b).

       See OCGA § 16-13-3.

       “The state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.” OCGA § 24-9-68; see also Lockett v. State, 217 Ga. App. 328, 330 (2) (457 SE2d 579) (1995) (physical precedent only) (noting that “evidence of a witnesses] feelings to the parties, interest in the result of trial, bias, prejudice, or intent or motive generally is admissible at trial”).

       In an effort to show that the admission of this evidence harmed him, Luckie does assert on appeal that this testimony reflected badly upon his own character by enabling the prosecuting attorney to later argue that Hurst had a motive to lie for Luckie at this trial because, Hurst might hope, Luckie then would lie for Hurst at any subsequent trial of the charges against Hurst. We are not persuaded by this assertion. The testimony itself said nothing about Luckie and simply did not reflect on his character, even if the later argument by the prosecutor did. Luckie does not enumerate any error concerning the argument of the prosecutor, only the admission of the testimony by Hurst about his own pending charges, which made no mention of Luckie whatsoever. And in any event, we do not reach the question of harm because we find no error has been preserved for our review.

       If Luckie had made such an objection, the trial court might have granted the motion in limine. Or perhaps the State would have then changed course and asked for leave to elicit testimony showing that, when Hurst was arrested, so was Luckie, which would have allowed Luckie to object that, although such testimony might be probative of their relationship, it was too prejudicial to be admitted. And perhaps the trial court would have disallowed the proposed cross-examination on that basis. But nothing like that occurred at trial, and we will not reverse a judgment based on speculation about what might have occurred if a proper objection had been raised.


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A11A0607, A11A0608.
    GILL PLUMBING COMPANY v. JIMENEZ; and vice versa.
    (714 SE2d 342)
   Barnes, Presiding Judge.

This is the second appearance of this contractual indemnity case before this court. See Jimenez v. Gilbane Bldg. Co., 303 Ga. App. 125 (693 SE2d 126) (2010). On remand from the first appeal, a jury trial was held that addressed, among other things, whether and to what extent a plumbing subcontractor was required to indemnify a plumbing contractor for damages resulting from a burst pipe. Using a special verdict form, the jury found that the parties had entered into a valid written contract that included an indemnity agreement and awarded the plumbing contractor damages in the amount of $191,382.01. The trial court entered judgment on the verdict, leading to these companion appeals.

In Case No. A11A0607, the plumbing contractor, Gill Plumbing Company, contends that the trial court erred in refusing to enter a judgment that molded the verdict to correct an alleged illegality and inconsistency in the damages award. In Case No. A11A0608, the plumbing subcontractor, Jose Alfredo Jimenez, contends that the trial court erred in denying his motion for a directed verdict on Gill Plumbing’s indemnity claim because the evidence purportedly failed to show that the parties entered into a valid written contract. For the reasons discussed below, we affirm in both appeals.

The record shows that Gilbane Building Company was the general contractor for the construction of a dormitory at Georgia Southern University. Gilbane hired Gill Plumbing as the plumbing contractor. Gill Plumbing then subcontracted with Jimenez to install the pipes in the slab floor and walls of the dormitory.

After the dormitory was completed and occupied by students, a pipe in one of the walls burst, causing water to flood the residential housing units on three levels of the building. The flooding caused extensive structural damage to the units and significant mold growth. Students who had been living at the dormitory were displaced to a nearby hotel for several weeks, and the university deducted the costs associated with housing them from what it owed to Gilbane for the project.

Gilbane hired Belfor USA Group, Inc. to perform the structural repair work and the mold remediation of the dormitory. Belfor completed the repair and remediation of the dormitory and submitted a final bill to Gilbane in the amount of $990,060.63.

When its repair bill was not paid, Belfor sued Gilbane for breach of contract and other claims. Asserting a contractual right of indemnity for damages resulting from the burst pipe, Gilbane brought Gill Plumbing into the case as a third-party defendant. Gill Plumbing ultimately admitted liability under its indemnity agreement with Gilbane, but disputed the amount that it owed. Gilbane assigned its indemnity claim against Gill Plumbing to Belfor, and the parties were realigned. Belfor, on its own behalf and as assignee of Gilbane, then proceeded against Gill Plumbing directly for the costs of the mold remediation, dormitory repairs, and housing of the university students, plus prejudgment interest and attorney fees.

Gill Plumbing brought Jimenez into the case as a fourth-party defendant, alleging that it had a written contract with him that included an indemnity agreement. Its contractual indemnity claim against Jimenez was based on two documents, both of which were undisputedly signed by him. The first document, entitled “Labor Contract,” contained several provisions relating to the dormitory project and made reference to the terms of an “attached Exhibit ‘A.’ ” The second document, entitled “Exhibit A: Insurance and Indemnity Subcontractor Agreement” (the “Indemnity Provision”), provided in relevant part:

The Work performed by the Subcontractor shall be at the risk of the Subcontractor exclusively. To the fullest extent permitted by law, Subcontractor shall indemnify, defend (at Subcontractor’s sole expense) and hold harmless Contractor, the Owner (if different from Contractor), affiliated companies of Contractor, . . . from and against any and all claims for . . . damage to property . . . which arise or are in any way connected with the Work performed, Materials furnished, or Services provided under this Agreement by Subcontractor or its agents. These indemnity and defense obligations shall apply to any acts or omissions, negligent or willful misconduct of Subcontractor, its employees or agents, whether active or passive. Said indemnity and defense obligations shall further apply, whether or not said claims arise out of the concurrent act, omission, or negligence of the Indemnified Parties, whether active or passive. Subcontractor shall not be obligated to indemnify and defend Contractor or Owner for claims found to be due to the sole negligence or willful misconduct of Indemnified Parties.

Gill Plumbing moved for and was granted partial summary judgment on its contractual indemnity claim against Jimenez. The trial court’s order granting partial summary judgment to Gill Plumbing was reversed on the first appeal to this court. See Jimenez, 303 Ga. App. at 130. We held that a jury had to resolve whether the parties had entered into an enforceable written contract that included an indemnity agreement and, if so, what were the contractual terms. Id. at 129-130.

On remand, the claims of the parties, including Gill Plumbing’s contractual indemnity claim against Jimenez, were tried before a jury. There was no dispute that Gill Plumbing and Jimenez had an oral agreement under which Jimenez agreed to install the pipes in the slab floor and walls of the dormitory in return for $167,000. Rather, the primary questions for the jury were whether the parties had agreed to a written contract that included an indemnity agreement, and, if so, whether and to what extent Jimenez was liable to Gill Plumbing for damages caused by the burst pipe.

At the close of the evidence, Jimenez moved for a directed verdict on the issue of the existence of a written contract that included an indemnity agreement. Jimenez contended that the two documents relied upon by Gill Plumbing, the Labor Contract and the Indemnity Provision, were unenforceable as a written contract because they lacked essential terms and there was no meeting of the minds or mutual assent to the terms of the contract. The trial court took the motion under advisement and allowed the case to go to the jury.

The jury subsequently entered a two-part special verdict. In section one of the special verdict, the jury found that Belfor, for itself and as assignee of Gilbane, was owed a combined total of $864,746.51 in damages from Gill Plumbing as a result of the burst pipe. In section two of the special verdict, the jury found that there was a written contract between Gill Plumbing and Jimenez that included indemnification for the dormitory project; that Gill Plumbing was not solely negligent in causing the damage to the dormitory; and that Jimenez was at fault for causing damage to the dormitory. However, the jury in section two of the special verdict went on to find that Jimenez owed contractual indemnity to Gill Plumbing only in the amount of $191,382.01 for the burst pipe.

Several days after the trial but before a final judgment had been entered, Gill Plumbing filed a letter brief in which it requested that the trial court enter a judgment that molded the verdict to correct an alleged illegality and inconsistency in the damages awarded by the jury. Gill Plumbing argued that once the jury found in section two of the special verdict that a written contract for indemnity existed, that Gill Plumbing was not solely negligent in causing the damage to the dormitory, and that Jimenez was at fault for the damage to the dormitory, then as a matter of law, all damages arising from the burst pipe ($864,746.51), as set forth in section one of the special verdict, should have been awarded to Gill Plumbing under its indemnity agreement with Jimenez. As such, Gill Plumbing argued that the jury’s award of only $191,382.01 to Gill Plumbing in section two of the special verdict was contrary to the law and inconsistent with the other findings made by the jury, and, therefore, ought to be disregarded as mere surplusage or stricken as illegal on its face in fashioning the final judgment. In connection with its letter brief, Gill Plumbing submitted a proposed final judgment under which judgment would be entered in favor of Gill Plumbing and against Jimenez in the amount of $864,746.51, rather than in the lower amount awarded by the jury.

The trial court declined to enter a judgment molding the verdict in the manner requested by Gill Plumbing on its contractual indemnity claim. Instead, the trial court entered a final judgment in favor of Gill Plumbing and against Jimenez in the amount of $191,382.01, consistent with the damages awarded by the jury in the special verdict. These companion appeals followed.

Case No. A11A0607

1. In several related enumerations of error, Gill Plumbing argues that the trial court erred by failing to enter a judgment that molded the verdict to correct the alleged illegality and inconsistency of the damages awarded by the jury on its contractual indemnity claim. According to Gill Plumbing, the trial court should have disregarded or stricken the damages award of $191,382.01 in section two of the special verdict and instead have entered a final judgment in favor of Gill Plumbing and against Jimenez in the greater amount of $864,746.51. Accordingly, Gill Plumbing requests that the final judgment be set aside and the case remanded with the instruction that the trial court amend the judgment to reflect the greater amount of damages.

The trial court committed no error in declining to enter a judgment molding the verdict in the manner requested by Gill Plumbing in its letter brief. “In a proper case, the superior court may mold the verdict so as to do full justice to the parties in the same manner as a decree in equity.” OCGA § 9-12-5.

[Yet] this “molding” authority is not without limits. . . . [W]hile a verdict in certain circumstances may be reformed or remodeled in the presence of the jury before they have retired from the box, once the jury has dispersed[,] the trial judge has no power either to add to or to take from their findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. Nor can the trial judge accomplish the same result as amending the verdict in matter of substance by entering a decree different from the verdict of the jury, thereby eliminating certain substantial findings of the verdict, and substantially modifying or changing other findings of the jury.

(Citations and punctuation omitted.) Force v. McGeachy, 186 Ga. App. 781, 784 (1) (368 SE2d 777) (1988). See Allstate Ins. Co. v. Durham, 194 Ga. App. 867, 868-869 (392 SE2d 53) (1990); Parrish Bakeries of Ga. v. Wiseman Baking Co., 104 Ga. App. 573, 575 (122 SE2d 260) (1961). This principle is codified at OCGA § 9-12-7, which provides: “A verdict may be amended in mere matter of form after the jury has dispersed. However, after a verdict has been received and recorded and the jury has dispersed, it may not be amended in matter of substance either by what the jurors say they intended to find or otherwise.”

Gill Plumbing requested that the trial court mold the verdict, after the jury had been dispersed, by disregarding or striking the amount of damages awarded in section two of the special verdict ($191,382.01) and then entering a judgment against Jimenez in a greater amount ($864,746.51). But an increase in the amount of damages awarded by the jury clearly is a matter of substance, not mere form. See French Quarter, Inc. v. Peterson Young Self & Asselin, 220 Ga. App. 852, 853 (1) (471 SE2d 9) (1996); Force, 186 Ga. App. at 783-784 (1). See also Crawford v. Presbyterian Home, Inc., 216 Ga. App. 54, 56 (4) (453 SE2d 480) (1994) (noting that “a verdict may not be amended regarding a matter of substance such as an award of damages”). The trial court thus was without authority to mold the verdict in the way proposed by Gill Plumbing. See Voxcom v. Boda, 221 Ga. App. 619, 619-620 (472 SE2d 155) (1996) (trial court erred by modifying the verdict to increase the amount of interest awarded by the jury); Allstate Ins. Co., 194 Ga. App. at 868-869 (trial court lacked authority to modify jury verdict to increase damages from $58,900 to $77,000); Force, 186 Ga. App. at 783-784 (1) (trial court improperly amended the jury verdict to increase the damages from zero to $1,500); Hoffman v. Clendenon, 150 Ga. App. 98, 99 (1) (256 SE2d 676) (1979) (holding that trial court was without authority to amend the verdict “to increase the amount of damages determined by the jury”). It follows that the trial court did not err by declining to follow Gill Plumbing’s proposal and instead entering a judgment consistent with the jury’s special verdict.

It is true, as Gill Plumbing asserts, that a trial court may write off or strike a portion of a verdict that is illegal. See Kimble v. Kimble, 240 Ga. 100, 101 (2) (239 SE2d 676) (1977); Dearing & Dearing Enterprises v. A. R. III, Inc., 205 Ga. App. 386, 386-387 (1) (422 SE2d 284) (1992). But Gill Plumbing did not ask the trial court merely to write off or strike a portion of the verdict; rather, it asked the court to enter a judgment that increased the amount of damages owed by Jimenez.

Gill Plumbing also relies upon Roswell Road &c. Liquor Store v. Schurke, 138 Ga. App. 502 (227 SE2d 282) (1976). In that case, we held that if a jury enters a verdict exonerating a servant of liability but holding the master liable under the doctrine of respondeat superior, the trial court may remove the inconsistency by amending the verdict to find in favor of both defendants. Id. at 503. The present case is distinguishable from Schurke because the net effect of the amendment to the verdict requested by Gill Plumbing would be to increase the liability of a defendant, namely, Jimenez. And an amendment to the verdict increasing a defendant’s liability is not authorized under our case law. See Voxcom, 221 Ga. App. at 619-620; Allstate Ins. Co., 194 Ga. App. at 868-869; Force, 186 Ga. App. at 783-784 (1); Hoffman, 150 Ga. App. at 99 (1).

In conclusion, we note that Gill Plumbing was not without a potential remedy in this case if it believed that the jury’s verdict was incorrect. After the return of the verdict but before the dispersal of the jury, Gill Plumbing could have argued to the trial court that the jury’s damage award in section two of the special verdict was illegal and internally inconsistent, and then could have requested that the court give the jury additional instructions and permit it to consider the matter again. See Force, 186 Ga. App. at 784 (1). Alternatively, after the jury was dispersed, Gill Plumbing could have asked the trial court to grant a new trial on the issue of damages or to conditionally grant a new trial under its power of additur. See OCGA § 51-12-12 (a), (b); Spence v. Hilliard, 260 Ga. 107 (1) (389 SE2d 753) (1990); Parrish Bakeries of Ga., 104 Ga. App. at 575. Instead, Gill Plumbing chose to seek entry of a judgment molding the verdict to increase the amount of damages, a method that was procedurally inappropriate. Gill Plumbing thus must be satisfied with the recovery of damages awarded it by the jury.

Case No. A11A0608

2. Jimenez cross-appeals from the trial court’s judgment, contending that he was entitled to a directed verdict on the issue of whether there was a valid written contract that required him to indemnify Gill Plumbing. He argues that the two documents relied upon by Gill Plumbing to form the written contract, the Labor Contract and the Indemnity Provision, did not name Gill Plumbing as a party, rendering the contract too indefinite to be enforceable. He further argues that the two documents failed for lack of consideration and that there was no mutual assent by the parties to the contractual terms.

(a) As an initial matter, we point out the trial court reserved ruling on Jimenez’s motion for a directed verdict, and Jimenez never renewed his motion or otherwise sought to invoke a ruling thereafter. “It is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver.” (Punctuation and footnote omitted.) Pep Boys-Manny, Moe & Jack, Inc. v. Yahyapour, 279 Ga. App. 674 (2) (632 SE2d 385) (2006). Nevertheless, Jimenez asserts that there was no evidence to support the jury’s finding that there was a written contract that included an indemnity agreement, and

[c]hallenges to the sufficiency of the evidence may be considered on appeal pursuant to OCGA § 5-6-36 (a), which provides that “the entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.”

(Punctuation and footnote omitted.) Id. Consequently, we will consider the merits of Jimenez’s challenge to the evidence despite his failure to invoke a ruling on his motion for a directed verdict. Id.

(b) Jimenez argues that the Labor Contract and the Indemnity Provision were too indefinite to be enforced because they failed to name Gill Plumbing as a contracting party. We disagree.

While Jimenez is correct that the Labor Contract and the Indemnity Provision do not name Gill Plumbing anywhere on them, “[e]ven when the terms of an agreement are too indefinite to be enforceable, it may later become enforceable by virtue of the subsequent acts, words, or conduct of the parties.” (Citation and punctuation omitted.) Mills v. Barton, 205 Ga. App. 413, 414 (3) (422 SE2d 269) (1992). The president of Gill Plumbing testified that the Labor Contract and the Indemnity Provision were form contract documents that Gill Plumbing required all of its subcontractors to sign before working on plumbing projects, and that Jimenez had signed the documents at Gill Plumbing’s office before starting on the dormitory project. The president further testified that after signing the two documents, Jimenez performed the slab and rough-out work as requested by Gill Plumbing and was paid $167,000 for his work.

Jimenez, who had worked as a subcontractor for Gill Plumbing for over 15 years, confirmed that the Labor Contract and the Indemnity Provision were form documents that Gill Plumbing required him to sign before performing work on any project, and admitted that it was his signature on those documents. He likewise confirmed that Gill Plumbing paid him $167,000 for performing the agreed-upon work on the dormitory project.

Given this testimony, there was evidence from which the jury could identify Gill Plumbing as a party to the Labor Contract and the Indemnity Provision. See American Global Dev. Group v. Sasser & Weatherford, Inc., 249 Ga. App. 479, 482-483 (3) (548 SE2d 465) (2001) (although there was some uncertainty from the language of the contract as to which entities were the contracting parties, there was testimony from which the jury could identify them). Accordingly, the documents were not unenforceable for failure to identify the contracting parties.

Jimenez also points out that the Indemnity Provision refers only to the indemnification of the “Contractor” and the “Owner” without defining those terms. But if the terms of a contract are ambiguous, and the ambiguity cannot be resolved by the rules of contract construction, the ambiguity is a factual matter for resolution by the jury through consideration of parol evidence. See Livoti v. Aycock, 263 Ga. App. 897, 902 (2) (590 SE2d 159) (2003). With respect to the Indemnity Provision, Jimenez testified that he understood that if his installation of the pipes in the dormitory was defective, “Gill Plumbing was going to come to [him] and ask [him] to pay for any damages that might occur that they had to pay for.” Jimenez’s testimony was sufficient for the jury to resolve any ambiguity concerning which company was to be indemnified under the Indemnity Provision.

(c) Jimenez next argues that the Labor Contract and the Indemnity Provision were unenforceable because there was no consideration for his agreement to the contractual terms. We are unpersuaded.

Although Jimenez contends that the Labor Contract and the Indemnity Provision failed to contain any contractual language requiring Gill Plumbing to pay Jimenez for his work, the Labor Contract on its face provides that the “Total Contract Amount” was $167,000. Moreover, even if a contract fails to set out the consideration owed by one of the contracting parties, the lack of consideration can be cured by performance, rendering the contract binding and enforceable. See Thomas v. Coastal Indus. Svcs., 214 Ga. 832 (1) (108 SE2d 328) (1959). Both the president of Gill Plumbing and Jimenez testified that he was paid $167,000 by Gill Plumbing for performing the subcontractor work on the dormitory project. Thus, any perceived deficiency in the Labor Contract and the Indemnity Provision regarding the consideration that Gill Plumbing was to pay to Jimenez was cured by Gill Plumbing’s performance.

Jimenez also asserts that there was a lack of consideration because the Labor Contract and the Indemnity Provision were not signed by him until after he completed his work on the dormitory project, and thus not until after he had already performed his orally agreed-upon contractual obligations. See, e.g., Glisson v. Global Security Svcs., 287 Ga. App. 640, 641-642 (653 SE2d 85) (2007) (“[A] promise to perform a preexisting contractual obligation does not constitute consideration for a new agreement.”) (footnote omitted). In support of his assertion, Jimenez points out that some of the language in the Labor Contract was written in the past tense. However, the fact that there was some language in the past tense, suggesting that the subcontracting work had already been completed, simply created an ambiguity for the jury to resolve through parol evidence. See RLI Ins. Co. v. Highlands on Ponce, 280 Ga. App. 798, 802-803 (1) (635 SE2d 168) (2006) (where terms of contract were in conflict with one another, jury had to resolve the intent of the contracting parties). And the president of Gill Plumbing testified that Jimenez signed the contract documents before he began work on the dormitory project. Hence, there was testimony upon which the jury could resolve the ambiguity caused by the use of the past and present tenses in the contractual documents in favor of finding that the Labor Contract and the Indemnity Provision were executed before the commencement of any work on the dormitory project.

(d) Lastly, Jimenez argues that there was a lack of mutual assent to the terms of the Labor Contract and the Indemnity Provision because he could not read or communicate well in English and did not understand what he had signed. His argument is without merit.

Decided June 16, 2011

Reconsideration denied July 14, 2011

Drew, Eckl & Farnham, Steuan A. Miller, Lisa R. Richardson, for appellant.

Carlock, Copeland & Stair, Wayne D. McGrew III, Tonya F. Stokes, Kilpatrick, Townsend & Stockton, Keith L. Richardson, Weinstock & Scavo, Marvin P. Pastel II, Michael S. Love, for appellee.

“One signing a document has a duty to read it and is bound by the terms of a document he does not read.” (Citation and punctuation omitted.) Pioneer Concrete Pumping Svc. v. T&B Scottdale Contractors, 218 Ga. App. 596 (1) (462 SE2d 627) (1995). This is true even if the signer cannot read, because in that circumstance the signer has a duty “to procure some reliable person to read and explain it to him.” (Citations omitted.) Brewer v. Royal Ins. Co. of America, 283 Ga. App. 312, 315 (1) (641 SE2d 291) (2007). To the extent that Jimenez maintained that he had a confidential relationship with Gill Plumbing that relieved him of his duty to read the documents, see Cochran v. Murrah, 235 Ga. 304, 305 (219 SE2d 421) (1975), the jury was entitled to find that no such relationship existed in this case.

[T]he mere fact that two persons have transacted business in the past. . . and that they have come to repose trust and confidence in each other as the result of such dealings is not sufficient, in and of itself, to warrant a finding that a confidential relationship exists between them[.] ... In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.

(Citations and punctuation omitted.) Kienel v. Lanier, 190 Ga. App. 201, 203 (2) (378 SE2d 359) (1989).

For these combined reasons, we conclude that the issue of whether the parties entered into a written contract that included an indemnity agreement was properly submitted to the jury for resolution. Therefore, the trial court committed no error in denying Jimenez’s motion for a directed verdict on Gill Plumbing’s contractual indemnity claim.

Judgments affirmed.

Adams and Blackwell, JJ., concur.

       After entry of the final judgment, Gill Plumbing filed a motion requesting that the trial court amend the judgment in which it raised the same arguments set forth in its prior letter brief. The trial court never ruled on the motion.

       OCGA § 51-12-12 (a) permits a trial court to interfere with a jury award where “the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” Yet this statutory provision does not authorize a trial court to unilaterally reduce or increase a jury’s award of damages. See Spence v. Hilliard, 260 Ga. 107, 108 (1) (389 SE2d 753) (1990). Rather, the provision gives a trial court three alternatives when faced with an award of damages that is clearly inadequate or excessive:
      The judge may (1) grant a motion for new trial; (2) grant a motion for new trial as to damages only; or (3) conditionally grant a motion for new trial. The third option gives the trial judge the opportunity to give the litigants the benefit of his or her trial experience and to spare the parties the expense and trouble of a new trial. Under this provision of the statute, the trial judge calculates an appropriate damage award. The parties then have an opportunity to accept the trial court’s award and end the case, or reject it and proceed with a new trial. All three statutory options involve granting a motion for new trial.
      (Emphasis omitted.) Id. See OCGA § 51-12-12 (b). Here, Gill Plumbing never moved for a new trial on the issue of liability or damages and never requested that the trial court exercise its power of additur under OCGA § 51-12-12 to conditionally grant a new trial. Indeed, Gill Plumbing specifically maintains that “[tjhis is not a situation where a new trial is necessary on the damage aspect of the indemnity claim.”

       Asserting that this court must resolve the substantive issue of whether the verdict in this case was internally inconsistent, Gill Plumbing relies upon Anthony v. Gator Cochran

        Constr., 288 Ga. 79 (702 SE2d 139) (2010), which held that a party does not waive a claim that a jury verdict is void and that the judgment entered on it must be set aside by failing to object to the special verdict form that was submitted to the jury. That case, however, is clearly distinguishable from the present one. In Anthony, the plaintiffs moved for judgment notwithstanding the verdict, or in the alternative, for a new trial, contending that the jury verdict was internally inconsistent and had to be set aside. See Anthony v. Gator Cochran Constr., 299 Ga. App. 126, 127 (682 SE2d 140) (2009). Here, as previously noted, Gill Plumbing never requested that the trial court simply set aside all or part of the verdict; instead, it requested that the trial court enter a judgment substantively molding the verdict to increase the amount of damages owed by Jimenez. As such, the present case is controlled by our precedent addressing the circumstances under which a trial court can mold a jury verdict, rather than cases addressing a request merely to have the verdict stricken or set aside in whole or in part.


author: Doyle, Judge.

text:
    A11A0743.
    GREEN v. THE STATE.
    (714 SE2d 646)
   Doyle, Judge.

Following a jury trial, Brian Green appeals his conviction of armed robbery and kidnapping (two counts each), contending that (1) he received ineffective assistance of counsel based on his trial counsel’s failure to object to a jury instruction that allegedly expanded the indictment, and (2) the evidence was insufficient to prove the asportation element of the kidnapping offenses. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that in December 2005, Melissa Carlisle was working as a sales associate at a bookstore, along with Ben Creekmore, who was working as an assistant manager. Just before closing time, Green entered the store, having been there approximately 20 minutes before. After perusing the gift displays with Carlisle, Green accompanied her to the cash register so he could check out. As Carlisle opened the cash drawer, Green reached over the counter and grabbed the money in the drawer. Carlisle resisted, and Green produced a handgun and said, “Let me show you what I’m all about.” Carlisle called out to Creekmore for help. Creekmore came from another part of the store, and Green, having cleaned out the cash drawer, forced both Carlisle and Creekmore to walk approximately 100 feet to the back of the store, where the safe was located. Once at the back of the store, Creekmore told Green that there was no safe, and Green slapped him, saying, “Don’t f— with me.” Green then forced Carlisle, who did not have access to the safe, into an adjacent office and demanded that Creekmore open the safe. After the safe was opened, Green took a bag full of money, put Creekmore in the office with Carlisle, told them not to call the police, closed the door, and fled.

After they were sure that Green was gone, Carlisle called the police, while Creekmore went to the front of the store to lock the door. The police arrived shortly thereafter and conducted an investigation. A few days later, Carlisle and Creekmore identified Green in a photo lineup as the armed robber.

Green was charged with two counts of armed robbery, two counts of kidnapping, and one count of terroristic threats. The jury returned a guilty verdict on all counts, and the trial court entered a judgment of conviction on all counts, later vacating the terroristic threats conviction due to a defect in the indictment. Green now appeals from the denial of his motion for new trial as to the armed robbery and kidnapping counts.

1. Green contends that he received ineffective assistance of trial counsel based on counsel’s failure to object to the jury charge on armed robbery, which, he argues, improperly expanded the indictment. We disagree.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Green argues that his trial counsel should have objected to a discrepancy between the armed robberies as alleged in the indictment and the manner in which the jury was charged on the armed robbery offenses. Counts 1 and 2 of the indictment, which the trial court did not read to the jury but sent back with the jury during deliberations with instructions for them to carefully read it, alleged as follows: “Brian Green . . . did enter the Family Christian Bookstore with the intent to commit theft and took money from the cash register ... by use of an offensive weapon, to wit: a handgun, contrary to the laws of [Georgia]. ...”

By contrast, the jury charge on armed robbery given by the trial court stated as follows: “A person commits armed robbery when, with intent to commit theft, that person takes property of another from the person or immediate presence of another by the use of an offensive weapon, or by any replica, article, or device having the appearance of such weapon.” Green contends that the italicized portion of the jury charge, which did not appear in the indictment, allowed the jury to convict him of the crime in a manner not alleged in the indictment. Therefore, he argues on appeal that his trial counsel performed deficiently by not objecting to the jury charge.

It is error to charge the jury that a crime may be committed by alternative methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.

Here, the sole evidence of Green’s weapon was that it was a gun. Each victim referred to it only as a handgun and explicitly referred to his or her fear of being shot. There was no evidence that the object held by Green in this case was anything other than a handgun. There was evidence that Green partially concealed the weapon with a glove, but “[ujnless there is some evidence that appellant committed an armed robbery by use of any replica, article or device having the appearance of an offensive weapon, there is no reasonable [possibility] that the jury convicted him of the commission of this type. . . ,” The evidence uniformly showed that the article used in this robbery was a handgun. Therefore, based on this record, there is not a reasonable likelihood that the jury convicted Green of robbing the victims with a replica, and this enumeration presents no basis for reversal.

2. Green also contends that the evidence failed to support the guilty verdict as to kidnapping, arguing that the State failed to prove the asportation element of the offense. We disagree.

OCGA § 16-5-40 (a) defines the kidnapping offense as follows: “A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” We must evaluate the sufficiency of the evidence of abduction or stealing away by analyzing the following four factors:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

“Not all of the four factors must favor the [Sítate in order to prove asportation.”

Here, the evidence showed that after he robbed the cash register, Green forced Carlisle and Creekmore to move approximately 100 feet at gunpoint from the front of the store to the back of the store and later further back into an office where he closed the door with the employees inside. The only windows were at the front of the store, so the victims could not be seen by anyone outside of the empty store. Although the forced movement to the back of the store may have initially been in furtherance of the robbery of the safe, the further movement into the back office occurred after the robbery was completed. This movement was not a necessary or inherent part of the robbery. Rather, the movement

created additional danger to the employees by isolating them and reducing their chances of rescue, enhanced [Green]’s control over them, and enabled [Green] to avoid apprehension and to effect his escape from the scene. Under these circumstances, the movement at issue was not simply a criminologically insignificant circumstance attendant to the armed robberies, but was in the nature of the evil the kidnapping statute was originally intended to address.

Decided July 1, 2011

Reconsideration denied July 14, 2011

Brian Steel, for appellant.

David McDade, District Attorney, Marc A. Watkins, James A. Dooley, Assistant District Attorneys, for appellee.

Accordingly, there was sufficient evidence of asportation to support Green’s kidnapping convictions.

Judgment affirmed.

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

       OCGA § 16-8-41 (a).

       OCGA § 16-5-40 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       (Emphasis supplied.)

       (Citation and punctuation omitted.) Pettway v. State, 204 Ga. App. 804-805 (420 SE2d 619) (1992).

       Id. at 804-805. See also Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987).

       See Pettway, 204 Ga. App. at 804.

       (Emphasis supplied.)

        Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008).
      In 2009, the legislature amended OCGA § 16-5-40 to provide that slight movement is sufficient evidence of asportation, as long as the movement is not incidental to another offense. OCGA § 16-5-40 (b) (1) (2009); Ga. L. 2009, p. 331, § 1. The amendment also defines the circumstances under which the movement is not merely incidental to another offense. See OCGA § 16-5-40 (b) (2) (2009); Ga. L. 2009, p. 331, § 1. However, the amendment only applies to crimes committed on or after the amended statute’s effective date of July 1, 2009, and, therefore, is not applicable in the present case.

        Walker v. State, 305 Ga. App. 607, 611-612, n. 1 (699 SE2d 902) (2010).

        Walker, 305 Ga. App. at 612 (1) (b).

       (Punctuation omitted.) Id.

       See Henderson v. State, 285 Ga. 240, 244-245 (5) (675 SE2d 28) (2009); Verdree v. State, 299 Ga. App. 673, 681-682 (5) (a) (683 SE2d 632) (2009); Brower v. State, 298 Ga. App. 699, 707 (2) (680 SE2d 859) (2009); Flores v. State, 298 Ga. App. 574, 576-577 (1) (680 SE2d 609) (2009) (short duration of movement not dispositive).


author: McFadden, Judge.

text:
    A11A0768.
    THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH v. BATSON-COOK COMPANY et al.
    (714 SE2d 242)
   McFadden, Judge.

The City of Savannah appeals the judgment entered in this action arising from the construction of an underground parking garage. The dispute arose out of the discovery of “materially different site conditions,” as defined under the parties’ contract. Raito, Inc., a subcontractor on the project, filed the action against Batson-Cook Company, the firm the city hired to design and build the garage. Batson-Cook then filed a third-party complaint against the city.

The city argues that the trial court erred in denying its motion to recuse the trial court judge, contending that, at a minimum, he should have assigned the motion to another judge for resolution. But the city’s factual assertions are legally insufficient to warrant recusal. The city argues that the trial court erred in its ordering of the trial, but the trial court did not abuse its broad discretion in this regard. The city argues that it was entitled to a directed verdict on Batson-Cook’s claim for final payment because Batson-Cook did not fulfill the contract conditions for final payment, but at least some of the conditions with which Batson-Cook did not comply depended on resolution of the issues of this lawsuit. The city argues that the trial court should have granted its motion for directed verdict because Batson-Cook did not give it notice of the alleged materially differing site conditions within the contractual deadline, but there was evidence that the city received timely notice. The city argues that the trial court should have granted its motion for directed verdict on Batson-Cook’s bad faith claim. But there was evidence that the city arbitrarily denied Batson-Cook’s claim for an adjustment in price despite knowing that conditions were very different from what the parties had believed when they entered the contract. The city argues that the trial court erred by charging the jury on quantum meruit and promissory estoppel. We disagree because, contrary to the city’s assertion, not all of the claims for payment arose from the parties’ contractual relationship. The city argues that Raito’s action was barred by its failure to comply with the Nonresident Contractors Act. But Raito’s late registration constituted substantial compliance with the Act. Finding that no enumeration requires the reversal of the judgment, we affirm.

The city hired Batson-Cook to design and build an underground parking garage at Ellis Square. The September 1, 2005 contract included a guaranteed maximum price of $29,592,416 and a completion date of August 28, 2007. The contract also included a “materially differing site conditions” clause, which provided that should Batson-Cook encounter site conditions that differed materially from the conditions indicated in the contract documents or from conditions ordinarily found to exist, the price of the contract would be adjusted. The contract required the party observing the materially different condition to notify the other party within 21 days.

In December 2004, prior to the execution of the contract, WPC, Inc., a local engineering firm the city had hired, prepared a preliminary soils report that analyzed four soil borings so that interested bidders could prepare cost proposals. The borings indicated that the northeast corner of the site contained soft clay. The contract entered between the city and Batson-Cook contemplated a second, more detailed soils report. At the city’s direction, Batson-Cook hired WPC to prepare the second report. On September 26, 2005, about two weeks after Batson-Cook and the city had entered their contract, WPC provided the second report. The second report showed no additional soft clay.

Batson-Cook hired Raito, Inc. to design and install an excavation support system for the project. After Raito began its work, it learned of additional soft clay at the site. Accordingly, it had to revise its design. Raito considered this to be a materially differing site condition, and so notified Batson-Cook on June 1, 2006.

Initially Batson-Cook denied that this was a materially differing site condition, but eventually it changed its opinion. When it did, Batson-Cook sought from the city an adjustment in the contract price based on differing site conditions. Because WPC’s engineer disagreed that materially different site conditions existed, since both of its soil reports had identified soft clay at the site, the city denied Batson-Cook’s claim.

On March 6, 2008, before the project was completed, Raito sued Batson-Cook in Troup County, Batson-Cook’s corporate home, for $5.8 million. Raito sought reimbursement for the extra costs it incurred in redesigning and constructing the support system because of the differing soil conditions.

Batson-Cook answered Raito’s complaint and filed a third-party complaint against the city. Batson-Cook sought to pass through Raito’s damages, agreeing that if conditions at the site were materially different, then Raito was entitled to reimbursement but that the city should pay. Batson-Cook also sought damages of its own.

The city answered Batson-Cook’s complaint and filed a counterclaim against Batson-Cook. It alleged that Batson-Cook breached the contract and performance bond in unspecified ways.

The case was tried, and a jury returned a verdict in favor of Raito against Batson-Cook for $2,766,330 and for Batson-Cook against the city for $15,162,592 plus $2,009,620 in attorney fees and expenses. The jury also found Batson-Cook owed the city $594,000 for project delay. The city then filed this appeal.

1. The city challenges the denial of its motion to disqualify Judge William F. Lee, contending that at a minimum, Judge Lee should have assigned its motion to another judge for disposition. We review the denial of a motion to recuse for abuse of discretion. Vaughn v. State, 247 Ga. App. 368, 370 (2) (543 SE2d 429) (2000). Under Uniform Superior Court Rule (USCR) 25.3,

[w]hen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse.

“[T]he court’s duty [is] limited to determining the legal sufficiency of the affidavit required under USCR 25.2.” Studenic v. Birk, 260 Ga. App. 364, 368 (2) (579 SE2d 788) (2003). “The focus here is not on bias in fact but whether the judge’s impartiality might reasonably be questioned, keeping in mind the reality that any judge will have come to the bench after having had extensive contacts with the community and the legal profession.” (Punctuation omitted.) Sears v. State, 262 Ga. 805 (1) (b) (426 SE2d 553) (1993), overruled on other grounds, Brogdon v. State, 287 Ga. 528 (697 SE2d 211) (2010).

The city attached three affidavits to its motion to recuse. The first was the affidavit of Gregory K. Morgan, a partner with the firm representing the city. In his affidavit, Morgan attested: (1) that Batson-Cook counsel asked him to e-mail the city’s discovery requests directly to attorney J. Littleton Glover, Jr., a member of the law firm Glover & Davis, who apparently would prepare the response; (2) that Batson-Cook counsel authorized Morgan to speak directly to Glover about the case because Glover is a lawyer and “in charge” or “the leader”; (3) that Morgan has communicated about the case on at least three occasions with Glover directly — without Batson-Cook counsel; (4) that some time later, Morgan found a letter on Glover & Davis letterhead signed by Nathan T. Lee as counsel for Batson-Cook; and (5) that Nathan Lee is Judge Lee’s nephew.

The second affidavit was from Andrew D. Shore, another partner with the firm representing the city. Shore attested in his affidavit that Judge Lee assigned himself the case and that certain discovery documents indicated that J. Littleton Glover, Jr., and his firm are general counsel to Batson-Cook and represented Batson-Cook in the dispute that gave rise to this lawsuit. Shore attached to his affidavit Batson-Cook’s interrogatory responses, verified by Glover, which include Batson-Cook’s disclosure that at a social gathering, Glover told Judge Lee that Batson-Cook would be involved in a complex case in Troup County According to the interrogatory responses, Judge Lee asked Glover whether Glover & Davis was general counsel for Batson-Cook in the matter, and Glover responded no.

Bruce Brown, another attorney for the city, submitted the third affidavit. Brown made no attestations about the case, but instead attached Georgia Secretary of State records showing that Glover is the registered agent for service of process for various companies affiliated with Batson-Cook.

The city in essence argues that Judge Lee improperly assigned himself the case involving a company for which his nephew’s law firm is general counsel. The substance of these allegations, based on the factual assertions in the affidavits, is legally insufficient to warrant recusal because it did not demonstrate that Judge Lee’s impartiality might reasonably be questioned. Sears, supra. See also Ga. Kidney & Hypertension Specialists v. Fresenius USA Mktg., 291 Ga. App. 429, 430 (1) (662 SE2d 245) (2008) (fact that trial judge’s daughter worked for a company that provided contract legal services to plaintiffs counsel did not support recusal). Compare Gillis v. City of Waycross, 247 Ga. App. 119, 121-122 (543 SE2d 423) (2000) (affidavits raised “reasonable question about” judge’s impartiality and motion to recuse should have been assigned to different judge). Consequently, Judge Lee did not err by failing to assign the disqualification motion to another judge.

2. The city argues that the court erred in its ordering of the trial by allowing Batson-Cook to put on its case first, followed by the city, and then followed by Raito. It contends that this amounted to an impermissible re-alignment of parties. It further contends that this allowed the de facto plaintiff, Batson-Cook, to avoid suing the city in Chatham County and instead to pursue its claims in its home county, amounting to a “fraud upon the Constitution.”

The city has failed to show that the trial court’s ordering of the trial amounted to a “realignment of the parties” by effectively making Batson-Cook the plaintiff and the city the defendant. Batson-Cook, in fact, was the plaintiff as far as its claims against the city, and the city was, in fact, the defendant as far as Batson-Cook’s claims against it. Raito, which sought close to $6 million from Batson-Cook, the only party with which it had a contract, was not a “nominal” plaintiff. The city has pointed to nothing showing that Raito and Batson-Cook did anything improper in structuring the lawsuit.

“It is traditional that most of these procedural matters which come up during the conduct of a trial should lie within the sound discretion of the trial court in the absence of a controlling statute, and there is none here.” Berryhill v. State, 235 Ga. 549, 550 (3) (221 SE2d 185) (1975), overruled in part by O’Kelley v. State, 284 Ga. 758 (670 SE2d 388) (2008).

Much latitude of discretion must be allowed the [c]ourts, as to their mode of conducting business. The order in which a party is to introduce his evidence is to be regulated by the discretion of the [c]ourt. Discretion in regulating and controlling the business of the court is necessarily confided to the judge; and this court should never interfere with its exercise unless it is made to appear that wrong or oppression has resulted from its abuse.

(Citations and punctuation omitted.) Ellis v. Cameron & Barkley Co., 171 Ga. App. 211 (1) (319 SE2d 38) (1984). And “[t]he trial court has broad discretion in determining how it will conduct a trial. This includes wide discretion in assigning positions of the parties, especially where there are more than two sides and more than two parties.” (Citations omitted.) Shivers v. Webster, 224 Ga. App. 254, 257 (2) (480 SE2d 304) (1997).

The city has not shown that the trial court abused its discretion by ordering the presentation of the case in the manner the court thought the jury would most easily understand.

3. The city argues that the trial court should have granted its motion for directed verdict on Batson-Cook’s claim for final payment because Batson-Cook did not fulfill the contract conditions for final payment. “The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard.” (Punctuation omitted.) F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987). The city contends that it was entitled to a directed verdict on Batson-Cook’s claim for final payment because Batson-Cook failed to comply with contract provisions requiring Batson-Cook to request a final inspection, to submit a final accounting, to submit certain affidavits and the consent of its surety to demonstrate that it had paid its subcontractors, and to submit a final application for payment. Batson-Cook counters that its noncompliance with these provisions was excused by the city’s failure to approve the change orders relating to the differing site conditions. For example, because the city did not approve the change orders regarding differing soil conditions, whether Raito was entitled to additional payment was in question, and Batson-Cook could not pay Raito. Since Raito contended it had not been fully paid, as demonstrated by its initiating this lawsuit against Batson-Cook, Batson-Cook could not provide the required affidavit that its subcontractor had been paid.

The city cites Dixie Roof Decks v. Borggren/Dickson Constr., 195 Ga. App. 881 (395 SE2d 19) (1990), in support of its position that Batson-Cook’s failure to submit the documents bars final payment. In that case, we held that where the subcontract contained as an express condition precedent to final payment that the subcontractor provide a warranty, the subcontractor could not argue that it should be excused from the duty to produce the warranty by the contractor’s failure to make final payment and the contractor’s indication that it would dispute certain sums claimed by the subcontractor. Here, at least some of the conditions with which Batson-Cook did not comply depended on resolution of the issues of this lawsuit, such as whether differing soil conditions existed and whether the guaranteed maximum price should be adjusted. The law does not require a futile act. Deer Creek v. Section 1031 Svcs., 235 Ga. App. 891, 893 (510 SE2d 853) (1999). See also Union Fire Ins. Co. v. Stone, 41 Ga. App. 49, 50 (152 SE 146) (1930) (“The defendant having contended that the policy had been canceled prior to the loss, and that therefore there was no liability thereunder, it was unnecessary for the plaintiff to do a futile act in filing a proof of loss as required by the provisions of the policy.”).

Given that Batson-Cook and the city disputed whether Batson-Cook was entitled to an adjustment in the guaranteed maximum price, and given that Raito contended it was due more compensation from Batson-Cook, it would have been futile for Batson-Cook to comply with these procedural requirements for final payment.

4. The city argues that the trial court should have granted its motion for directed verdict because Batson-Cook did not give it notice of the alleged materially differing site conditions within 21 days of its April 3, 2006 discovery, as the contract required. Specifically, the contract provided “that if a party observed materially differing conditions, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than twenty-one (21) days after the first observance of the conditions.”

The city’s contention that the contract requires written notice of materially differing site conditions is wrong. The provision requiring written notice applies to any claims Batson-Cook might have for injury or damages for which it believes the city is liable. The provision requiring notice of materially differing site conditions does not specify the method or manner of giving notice.

And some evidence was presented that the city had notice. During his cross-examination, the city’s executive administrator of the project testified about his receipt in March and April 2006 of a series of e-mails between Batson-Cook, Raito, WPC, and the city that referenced the differing site condition. Given this evidence, and the April 3 date of discovery of the condition, whether the city had timely notice in accordance with the requirements of the contract was a question for the jury. MARTA v. Green Intl., 235 Ga. App. 419, 423-424 (2) (a) (509 SE2d 674) (1998).

5. The city argues that the trial court should have granted its motion for directed verdict on Batson-Cook’s bad faith claim because there was no evidence of bad faith. Under OCGA § 13-6-11, “where the plaintiff has specially pleaded and has made prayer [for the expenses of litigation] and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” However, if a bona fide controversy clearly exists between the parties, then an OCGA § 13-6-11 award is authorized only if a party has acted in bad faith. Memar v. Jebraeilli, 303 Ga. App. 557, 563 (4) (694 SE2d 172) (2010). “[B]ad faith cannot be prompted by an honest mistake as to one’s rights or duties but must result from some interested or sinister motive.” (Punctuation omitted.) C & H Dev. v. Franklin County, 294 Ga. App. 792, 795 (2) (670 SE2d 491) (2008). Whether a party has acted in bad faith is generally a jury question. Harris v. Tutt, 306 Ga. App. 377, 380 (3) (702 SE2d 707) (2010).

Batson-Cook does not deny that a genuine controversy existed. Thus, it was required to present evidence of bad faith. Through its cross-examination of the city’s executive administrator of the project, Batson-Cook presented some evidence that he denied Batson-Cook’s claim for an adjustment in price on the ground that site conditions were not different from the conditions noted in the contract. He made this conclusion by comparing WPC’s first and second reports, although Batson-Cook had by then hired an expert who concluded that conditions were very different. The administrator decided site conditions did not differ from the conditions in the contract documents solely because the contract documents indicated the presence of clay. He testified that he made this decision even though he did not have the expertise to determine whether subsurface information in April 2006 showed differing conditions than those indicated in the two WPC reports The administrator rejected Batson-Cook’s materially different conditions claim, simply because the WPC reports had always indicated the presence of clay, even though the contract provided that should Batson-Cook encounter site conditions that differed materially from the conditions indicated in the contract documents or from conditions ordinarily found to exist, the price of the contract would be adjusted.

This evidence would authorize a finding of something other than a good-faith belief on the part of [the city] that [Batson-Cook] was asking them to pay more than they were contractually obligated to pay. It follows that the trial court did not err in denying the [city’s] motion for directed verdict and allowing the issue of attorney fees to go to the jury.

Harris, supra.

6. The city argues that the trial court erred by giving Raito’s jury charges on quantum meruit and promissory estoppel because all the claims are governed by contract. On the contrary, Raito sought compensation for extra work incurred because of materially differing site conditions. It could pursue claims for both breach of contract and promissory estoppel or quantum meruit for the extra work it incurred. See Hathaway Dev. Co. v. Advantage Fire Sprinkler Co., 290 Ga. App. 374 (659 SE2d 778) (2008) (affirming judgment in favor of subcontractor in its action for breach of contract and for recovery for extra work under quantum meruit).

The case the city cites to support its proposition that Raito could not seek equitable recovery for its extra work is distinguishable. In that case, Choate Constr. Co. v. Ideal Electrical Contractors, 246 Ga. App. 626 (541 SE2d 435) (2000), the subcontractor failed to comply with the explicit contract terms regarding payment for extra work. Thus, we concluded,

Decided May 11, 2011

Reconsideration denied July 14, 2011

Phillips & Morgan, Gregory K. Morgan, Andrew D. Shore, Elizabeth B. Hodges, Wiseman, Blackburn & Futrell, James B. Blackburn, Peter A. Giusti, for appellant.

Willis, McKenzie, DeGennaro & Alford, Charles J. Willis, Mark L. DeGennaro, Ellis, Painter, Ratterree & Adams, Robert S. Glenn, Jr., Stanley Karsman, for appellees.

[i]t would be unfair, under these circumstances, to allow a subcontractor to circumvent the explicit terms of the subcontract it had admittedly agreed to by seeking payment outside the subcontract for work that was contemplated and provided for under the subcontract. Because [the subcontractor] admitted the subcontract but did not follow the procedure it prescribed for changes in work or extra work, it cannot recover for such work under a theory of quantum meruit.

Id. at 630 (4). The city cites to no provision in the contract between Batson-Cook and Raito that expressly precluded Raito from seeking equitable payment for extra work.

7. The city argues the trial court should have dismissed Raito’s complaint because at the time it filed the lawsuit, it had not registered with the state as required by the Nonresident Contractors Act, OCGA § 48-13-31. Raito filed suit on March 6, 2008. It registered as a nonresident contractor on April 17, 2008. The Supreme Court has expressly held that “late registration and payment of all taxes and revenues due the State and its political subdivisions constitute substantial compliance with the requirements of the Act, thus removing the bar to maintenance of an action on the contract.” Clover Cable of Ohio v. Heywood, 260 Ga. 341, 344 (3) (392 SE2d 855) (1990).

8. The city argues that Raito was not entitled to final payment because it had not satisfied the contract conditions for final payment. For the reasons discussed in Division 3, supra, this argument lacks merit.

Judgment affirmed.

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


author: Miller, Presiding Judge.

text:
    A11A0004.
    THE STATE v. REIMERS.
    (714 SE2d 417)
   Miller, Presiding Judge.

The State appeals the trial court’s order granting Christian Eric Reimers’s motion for discharge and acquittal of three counts of child molestation (OCGA § 16-6-4 (a) (1)), on the grounds that Reimers’s Sixth Amendment right to a speedy trial was violated. For the reasons that follow, we reverse and remand with direction.

The trial court’s weighing of each factor and its balancing of all four factors — its ultimate judgment — are reviewed on appeal only for abuse of discretion. However, where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished. In addition, the trial court’s order must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker [v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972)] analysis. See Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

(Citations and punctuation omitted.) State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).

The record shows that Reimers was arrested on June 4, 2008, for child molestation, specifically for touching the breasts, buttocks, and vaginal area of a female child under the age of 16 with his hand. Reimers has been represented by counsel at all times since that date. On June 8, 2008, a consent bond was entered and Reimers was released from jail. The charges against Reimers were presented to the grand jury, and a true bill was returned on October 6, 2009. Reimers filed a waiver of arraignment on the date of his scheduled arraignment, November 3, 2009. The State provided formal discovery and filed a demand for reciprocal discovery on November 20, 2009. Supplemental discovery was provided to Reimers on January 27, 2010, to provide him the forensic video recording of the State’s interview of the alleged victim. Reimers provided reciprocal discovery in the nature of witness lists to the State on February 26, 2010, and separately filed a statutory demand for speedy trial pursuant to OCGA § 17-7-170.

Reimers announced ready for trial at calendar calls on March 30 and May 25, 2010. Although his case was placed on the criminal jury trial calendar for the week beginning June 14, 2010, it was not reached for trial during that week. On June 11, 2010, Reimers filed the underlying motion for discharge and acquittal, raising for the first time a violation of his constitutional right to a speedy trial. Three days later, the trial court granted a consent motion to amend bond conditions to clarify and make an “express exception” from its previously ordered limitations as to contact with children under 16 years of age for purposes of facilitating Reimers’s employment. And, on July 6, 2010, the trial court granted the instant motion for discharge and acquittal. At issue is whether the trial court abused its discretion in applying the four-part balancing test set forth by the United States Supreme Court in Barker.

1. Presumptive Prejudice. Before engaging in the Barker analysis, we must first determine “whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered presumptively prejudicial. If not, the speedy trial claim fails at the threshold.” (Citation and punctuation omitted.) Porter, supra, 288 Ga. at 525 (2) (a). In calculating the length of delay where a trial has not occurred, as here, the delay should be measured from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied. Ruffin v. State, 284 Ga. 52, 55, n. 15 (663 SE2d 189) (2008). In this case, such dates are June 4, 2008, and July 6, 2010, respectively. Additionally, pretrial delay of one year or more generally marks the point at which delay becomes presumptively prejudicial. See Doggett v. United States, 505 U. S. 647, 652, n. 1 (112 SC 2686, 120 LE2d 520) (1992); see also Porter, supra, 288 Ga. at 526-527 (2) (b); Ruffin, supra, 284 Ga. at 53, n. 1.

The State concedes, and we agree, that the trial court properly concluded that the two-year delay in this case was presumptively prejudicial. The threshold inquiry thus having been satisfied, we proceed to the four-factor Barker balancing test. Porter, supra, 288 Ga. at 525 (2) (a).

2. Barker Factors. Under Barker, the trial court was required to consider:

(1) the length of the delay; (2) reasons for the delay; (3) defendant’s assertion of the right; and (4) the prejudice to the defendant. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test. Thus, we must apply and weigh these factors together to determine if [Reimers’s] constitutional right to a speedy trial has been abridged.

(Citations omitted.) Layman v. State, 284 Ga. 83, 84 (663 SE2d 169) (2008).

(a) Length of Delay. The State concedes the presence of presumptive prejudice, but argues that the trial court failed to weigh the length of delay factor in its Barker analysis. We agree. The trial court’s complete failure to consider the length of delay in balancing the Barker factors was error. Ruffin, supra, 284 Ga. at 56-57 (2) (b) (i) (“It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of the four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. . . . This latter enquiry is significant to the speedy trial analysis because the presumption that pretrial delay has prejudiced the accused intensifies over time.”) (punctuation and footnote omitted; emphasis supplied).

(b) Reason for the Delay. The trial court weighed this factor heavily against the State, finding that the reason for the pretrial delay was unexplained and not attributable to the defense. “Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” Boseman v. State, 263 Ga. 730, 733 (1) (b) (438 SE2d 626) (1994). As Reimers concedes in his appellate brief, there is no evidence that “the State’s inaction was purposeful to hamper the defense.” See Nelloms v. State, 274 Ga. 179, 180 (549 SE2d 381) (2001) (“[TJhere is nothing evidencing that most serious abuse — [a] deliberate attempt to delay the trial in order to hamper the defense.”) (citation and punctuation omitted). Accordingly, we agree that this factor weighs against the State, but contrary to the finding of the trial court, not heavily. State v. Nagbe, 302 Ga. App. 682, 684 (691 SE2d 593) (2010).

(c) Assertion of the Right. The State contends that the trial court erred in weighing this factor in favor of Reimers and against the State. We agree.

While the constitutional right to a speedy trial may be invoked as soon as an accused is arrested and need not await “indictment, information, or other formal charge[,J . . . [t]he relevant question for purposes of the third Barker-Doggett factor is whether the accused has asserted the right to a speedy trial ‘in due course.’ ” (Punctuation and footnotes omitted.) Ruffin, supra, 284 Ga. at 62-63 (2) (b) (iii).

Here, Reimers was arrested on June 8, 2008, and indicted on October 6, 2009. Reimers filed a speedy trial demand on February 26, 2010, which was based only on his statutory right to a speedy trial under OCGA § 17-7-170 (a), rather than the constitutional ground raised in this appeal and asserted for the first time in Reimers’s June 11, 2010 motion for discharge and acquittal. Accord Torres v. State, 270 Ga. 79, 80 (2) (508 SE2d 171) (1998); see also Disharoon v. State, 288 Ga. App. 1, 4 (1) (c) (652 SE2d 902) (2007) (concluding that first time defendant asserted his constitutional right to a speedy trial was in his motion for discharge and acquittal).

Despite the two-year delay in asserting his constitutional right to a speedy trial, the trial court determined that this factor should be weighed heavily in favor of Reimers. The trial court first found that Reimers could not be faulted for his failure to assert his demand on either constitutional or statutory grounds prior to receiving complete discovery from the State. The trial court went on to discuss the months following Reimers’s statutory speedy trial demand, finding that during such time, Reimers took “extraordinary measure[s]” and “remarkable steps to ensure that his assertion of that right was made known and effectuated.” The trial court specifically pointed to Reimers’s appearance at a calendar call when he was not on the calendar, where Reimers agreed to waive any notice requirements and asked to be placed on trial, as well as Reimers’s appearance at the subsequent calendar call, where he announced ready for trial.

Although Reimers’s two-year delay in asserting his constitutional right to a speedy trial normally would be weighted heavily against him, we recognize that mitigating circumstances can authorize a trial court to find otherwise, i.e., by weighting this factor slightly against the defendant. See State v. Ivory, 304 Ga. App. 859, 862-863 (2) (c) (698 SE2d 340) (2010); see also State v. Moses, 301 Ga. App. 315, 320 (2) (c) (692 SE2d 1) (2009). Notably, we found no abuse of discretion in Ivory where the trial court mitigated the weight given this factor due to the defendant’s demands that the State comply with discovery obligations before asserting his right to a speedy trial. Ivory, supra, 304 Ga. App. at 862-863 (2) (c). Here, on the other hand, the trial court cited the above-referenced mitigating circumstances as its basis for weighing the assertion of right factor heavily in favor of Reimers. Thus, the trial court misapplied the law to the extent that it failed to weigh against Reimers, or even slightly against him, his delay in asserting his constitutional right to a speedy trial.

(d) Prejudice to the Defendant. In evaluating this final Barker factor, we consider three types of prejudice associated with an unreasonable delay before trial — oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused’s defense will be impaired. Porter, supra, 288 Ga. at 529 (2) (c) (4). The State challenges the trial court’s findings on the latter two types of prejudice, asserting that Reimers’s evidence of anxiety and concern is no more significant than that inherently present as to any person facing criminal prosecution, and that apart from the fact that the alleged victim is two years older than she was at the time of the arrest, there is no evidence of impairment to the Reimers’s defense. We agree.

Regarding anxiety and concern, the trial court found that Reimers “provided specific evidence that he has suffered anxiety and concern above and beyond that which is typical of one facing felony criminal charges.” The trial court specifically pointed to Reimers’s loss of, and inability to obtain, employment due to the pendency of his criminal charges, as well as the resulting exhaustion of financial resources to maintain his home and the threat of imminent foreclosure. The trial court also found that Reimers “lost the past two years of experiencing the life of his children,” because his child molestation charges deprived him of custody of his children.

As an initial matter, the trial court’s finding on anxiety and concern appears to conflict with its conclusion at the hearing on Reimers’s motion for discharge and acquittal. At that hearing, the trial court stated, “As far as anxiety and concern of the defendant about his life, I’m not sure that’s tied particularly to the case.” Morever, this Court has previously found that difficulties similar to Reimers’s, such as the loss of employment, the break-up of a marriage, and financial difficulties, while “certainly associated with the fact of [a defendant’s] arrest and prosecution,” were not shown to be specifically caused by the delay in the defendant’s prosecution. See Simmons v. State, 304 Ga. App. 39, 44 (2) (d) (696 SE2d 75) (2010); Jackson v. State, 279 Ga. 449, 453-454 (3) (614 SE2d 781) (2005). Likewise, while the difficulties raised by Reimers in this case are certainly associated with the fact of Reimers’s arrest and prosecution for child molestation, Reimers has not shown that the delay in this case is actually the cause of such difficulties. Indeed, even Reimers testified that it was simply “having an accusation charged against [him] . . . that’s causing [him] the anxiety.” Thus, given the lack of evidentiary support, coupled with the trial court’s conclusion at the motion for discharge and acquittal hearing, the record provides no basis for the trial court’s finding that Reimers suffered extraordinary anxiety and concern as a result of the pretrial delay.

Finally, of the three “forms of prejudice, the most serious is [the possibility of impairment to the defense], because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (Citation and punctuation omitted.) Porter, supra, 288 Ga. at 529 (2) (c) (4). As discussed in Division 1 above, this case involved a presumption of prejudice that arose from the two-year delay. See id. at 531 (2) (c) (4) (“[OJnce the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.”). However, “the presumptive prejudice that arises from the significant delay in [Reimers’s] trial cannot alone carry his Sixth Amendment claim without regard to the other Barker criteria.” (Punctuation and footnote omitted.) Harris v. State, 284 Ga. 455, 456-457 (667 SE2d 361) (2008). Moreover,

[t]he weight given to the prejudice factor may be bolstered if the defendant can demonstrate some actual impairment to his defense in addition to prejudice that is presumed from the passage of time. Likewise, the weight given to presumed prejudice may be reduced or even eliminated if the State can show that the defense has not, in fact, been substantially impaired.

Porter, supra, 288 Ga. at 532 (2) (d).

Beyond the presumptive prejudice that arose in this case, however, the trial court made no finding of demonstrable impairment to Reimers’s defense. In support of his motion for discharge and acquittal, Reimers asserted that “the State’s case gains strength with the aging of its witness,” and that Reimers’s defense is impaired given the jury’s decreased ability “to make appropriate credibility determinations of the witness due to her current age, as opposed to her age at the time of the allegations.” In addressing Reimers’s assertions, the trial court acknowledged that it could not “know for certain what a jury may ultimately determine after hearing the testimony from the [victim], direct and cross-examination, reviewing her prior statements and deliberating on any other evidence which may be produced.” The triad court nevertheless went on to find that it could not rule out the possibility of impairment to Reimers’s defense as the statements of the child victim provided the only direct evidence of the allegations in this case and that no physical or other corroborating evidence was indicated. As even apparently recognized by the trial court in its order, however, such is not sufficient evidentiary support showing demonstrable impairment of Reimers’s defense.

Accordingly, although a presumption of prejudice arose from the passage of time in this case, Reimers failed to substantiate this presumption with any evidence of actual impairment or extraordinary anxiety and concern. The trial court erred to the extent it found otherwise.

Decided July 14, 2011.

Dick Donovan, District Attorney, Paul E. Hemmann, Assistant District Attorney, Fred A. Lane, Jr., for appellant.

Timothy B. Lumpkin, for appellee.

3. Barker Balancing Test. As indicated above, we recognize that “[a] trial court exercises substantial discretion in applying the Barker balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” Porter, supra, 288 Ga. at 533 (2) (e). Nevertheless, “where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” (Citation and punctuation omitted.) Id.

Here, the trial court’s order erred in its factual findings regarding Reimers’s extraordinary anxiety and concern. The trial court’s order also reveals significant legal errors. Notably, it failed to consider the length of delay as the first of the Barker factors. Further, it erred in weighing the reason for delay factor heavily against the State (rather than simply against the State), and in weighing the assertion of right factor heavily in favor of Reimers (rather than against, or slightly against, him). Finally, the trial court erred to the extent it did not consider Reimers’s failure to substantiate presumptive prejudice with any evidence of actual impairment.

As a result, the trial court could not properly balance the Barker factors, and the trial court’s order must be vacated and the case remanded “for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.” (Citations omitted.) Porter, supra, 288 Ga. at 534 (2) (e). Accordingly, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

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

       Although Reimers did not make a claim of oppressive pretrial incarceration in his motion for discharge and acquittal, the trial court’s order found that there was no evidence of this type of prejudice under the Barker analysis, citing the fact that Reimers spent only five days in custody following his arrest. As the State concedes on appeal, the trial court was authorized to find a lack of oppressive pretrial incarceration in this case.

       One of the special conditions of Reimers’s bond required him to “stay away, absolutely, directly or indirectly, by person and telephone, from the person, home fofj any child under age 16 years.” As an exception to this condition, however, Reimers was permitted to visit with his two children.