text:
    A12A0576.
    ROSE v. HOUSEHOLD FINANCE CORPORATION II.
    (728 SE2d 879)
   Miller, Judge.

Bruce A. Rose filed suit against the lender, Household Finance Corporation II (“HFC”), alleging that HFC incorrectly charged interest on Rose’s unsecured revolving line of credit with HFC (the “subject loan”). Rose, appearing pro se, appeals from the trial court’s order granting summary judgment to HFC on the grounds of res judicata based upon the adjudication of the parties’ prior action regarding the subject loan. Rose contends that the doctrine of res judicata did not apply in this case, and that the trial court’s erroneous ruling was based on a void judgment. Discerning no error, we affirm.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the record shows that Rose and his wife received the subject loan, in the amount of $15,000, in February 2006. In September 2009, HFC filed an action against the Roses seeking the unpaid principal and interest on the subject loan, as well as attorney fees. In their answer to HFC’s complaint, the Roses raised the following affirmative defenses: (i) HFC’s calculation of interest on the subject loan was usurious or based on a rate that was greater than allowed by law; (ii) HFC’s claims were based on an adhesion contract; (iii) HFC was barred from collecting attorney fees under the Fair Debt Collections Practices Act; and (iv) HFC’s damages were limited to real or actual damages. HFC moved for summary judgment on all of its claims against the Roses, as well as on the Roses’ affirmative defenses. HFC specifically claimed that it was entitled to summary judgment because Rose materially breached and defaulted on the underlying contract and was liable to HFC for damages, interest, and contractual attorney fees; HFC further claimed that there was no basis supporting the Roses’ affirmative defenses. The trial court granted summary judgment and awarded damages to HFC, finding that there were no genuine issues of material fact and that HFC was entitled to judgment as a matter of law.

In June 2010, Rose filed the instant action against HFC, alleging that HFC’s methods of calculating interest resulted in Rose being charged “interest-on-interest” for an unsecured debt, which violated OCGA § 7-4-17, and that HFC’s calculation of interest was usurious or based on a rate that was greater than allowed by law. HFC filed a motion for judgment on the pleadings, contending that Rose’s complaint was barred by the doctrine of res judicata. The trial court converted HFC’s motion to one for summary judgment and granted it for the reasons set forth in HFC’s motion.

1. Rose first contends that the trial court erred in granting summary judgment to HFC on the grounds of res judicata. We disagree.

“The doctrine of res judicata prevents re-litigation of matters that were or could have been litigated in a previously-adjudicated action.” (Punctuation and footnote omitted.) Neely v. City of Riverdale, 298 Ga. App. 884, 886 (2) (681 SE2d 677) (2009); see OCGA § 9-12-40 (“A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”).

A prior action may bar a subsequent action under the doctrine of res judicata if the prior action resulted in an adjudication by a court of competent jurisdiction and the two actions have an identity of parties and subject matter. Res judicata is an affirmative defense (OCGA§ 9-11-8 (c)) which must be established by the pleader.

(Citations omitted.) Waggaman v. Franklin Life Ins. Co., 265 Ga. 565 (458 SE2d 826) (1995).

The doctrine applies even if some new factual allegations have been made, some new relief has been requested, or a new defendant has been added. It is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid.

(Footnote omitted.) Neely, supra, 298 Ga. App. at 887 (2).

To carry its burden of proof, HFC introduced a certified copy of the trial court’s final summary judgment order entered in the 2009 action filed by HFC against the Roses regarding their repayment of the subject loan. Cf. Waggaman, supra, 265 Ga. at 565. Although Rose contends that the issue of whether HFC violated OCGA § 7-4-17 was never tried or heard in this previously-adjudicated action, Rose’s contention is belied by the record. Notably, in their answer to HFC’s complaint, the Roses asserted as an affirmative defense that HFC’s calculation of interest on the subject loan was “usurious or based on a rate that was greater than allowed by law.” One of the specific grounds upon which HFC moved for summary judgment was that there was no genuine issue of material fact as to the Roses’ affirmative defense of usury. In their opposition to HFC’s motion for summary judgment, the Roses asserted that HFC’s “methods of calculating interest resulted in [the Roses] being charged interest on interest for an unsecured account — a direct violation of OCGA § 7-4-17.” By subsequently finding that there were no genuine issues of material fact with respect to HFC’s claims or the Roses’ affirmative defenses, including that of usury, the trial court’s grant of summary judgment was an adjudication on the merits of those claims and defenses. See Roth v. Gulf Atlantic Media of Ga., 244 Ga. App. 677, 679 (1) (536 SE2d 577) (2000) (“When a grant of summary judgment in a prior suit is relied upon to support a plea of res judicata in a subsequent suit, the basis of the prior summary judgment must be examined. If that summary judgment actually adjudicated the merits, the plea of res judicata must be sustained; but if the summary judgment did not adjudicate the merits, then the res judicata plea should be denied.”) (footnotes omitted).

In Rose’s instant action against HFC, Rose asserts his same claims of improper interest calculations or usury with respect to the subj ect loan. As in his answer and summary judgment response in the previously-adjudicated action, Rose’s instant complaint again alleges that HFC’s “methods of calculating interest resulted in [Rose] being charged interest-on-interest for an account not secured by real estate — in violation of OCGA § 7-4-17,” and that HFC’s “calculation of interest [was] by default usurious or based on a rate that is greater than allowed by law.” As these same matters were already litigated between the same parties in an action previously adjudicated on the merits by a court of competent jurisdiction, the doctrine of res judicata barred Rose’s instant action against HFC.

2. Rose further contends that res judicata cannot bar the instant action because the trial court based its ruling on a prior void judgment. Rose argues that the trial court’s prior judgment was void because the trial court failed to conduct an evidentiary hearing before ruling on HFC’s motion for summary judgment. Rose’s argument, however, is an impermissible collateral attack on the trial court’s prior summary judgment order.

OCGA § 9-11-60 (a) provides that “[a] judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.”

The Supreme Court of Georgia has defined the term “void on its face,” as used in this subsection to mean those judgments which lack either personal or subject matter jurisdiction. Therefore, collateral attacks on judgments are limited to circumstances where the trial court lacks either subject matter or personal jurisdiction.

(Citations and punctuation omitted.) Walker v. Blackwell, 259 Ga. App. 324 (577 SE2d 24) (2003); see also Lawing v. Erwin, 251 Ga. 134, 135 (303 SE2d 444) (1983) (“[I]t was error to entertain [a] collateral attack on an unrelated judgment not void on its face[.]”) (punctuation omitted). Here, there is no contention that the trial court lacked jurisdiction over the subject matter or over the Roses in the previously-adjudicated action. Rather, Rose challenges the trial court’s prior judgment on the ground that the trial court failed to hold an eviden-tiary hearing before ruling on the merits of HFC’s motion for summary judgment. While Rose characterizes the judgment as “void,” he is actually asserting the invalidity of the judgment on the basis of an allegedly erroneous ruling, i.e., one made without a hearing. Cf. Butler v. Home Furnishing Co., 163 Ga. App. 825 (296 SE2d 121) (1982).

Decided June 18, 2012.

Bruce A. Rose, pro se.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Linda S. Finley, Natalie C. Suhl, Joshua N. Tropper, for appellee.

There is a distinction between “void” and “erroneous,” as used with reference to acts from a judicial body, the general rule being that, where the body has jurisdiction of the subject-matter and of the person affected, its judgment in the case will not be void, though it may be erroneous. If the judgment is merely erroneous, it can be attacked, and the error corrected only by appeal or by a direct proceeding to set it aside, while, if it be absolutely void, it is a nullity from the beginning, and may be treated as such without further proceedings to have such nullity judicially declared.

(Citation and punctuation omitted.) Id. at 825-826. As the trial court’s prior summary judgment order was not void on its face, the only manner in which Rose could have attacked it was through a direct proceeding brought in the trial court that entered the judgment pursuant to OCGA § 9-11-60. See Walker, supra, 259 Ga. App. at 324-325.

Accordingly, Rose cannot now collaterally attack the trial court’s prior summary judgment order through the filing of a subsequent lawsuit, and it follows that the doctrine of res judicata precludes Rose’s instant action against HFC. Cf. Butler, supra, 163 Ga. App. at 826. Therefore, the trial court properly granted summary judgment to HFC on the ground of res judicata.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       The trial court subsequently denied the Roses’ motion to vacate and set aside the summary judgment order, and this Court denied Rose’s application for discretionary review of that subsequent order.

       There is no dispute that the trial court was a court of competent jurisdiction.

       We nevertheless note that under Uniform Superior Court Rule 6.3, a trial court may decide a motion for summary judgment without an oral hearing in the absence of a written request for one by either party. See Southern Intl. Pictures v. Friedman, 201 Ga. App. 87, 87-88 (1) (410 SE2d 51) (1991). Rose does not allege, nor does the record reflect, that any such request was made in this case.

       And as previously noted, Rose did in fact file a motion to vacate and set aside the trial court’s prior summary judgment order. However, the trial court denied Rose’s motion, and this Court denied Rose’s application for discretionary review of the trial court’s ruling.


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A12A0539.
    MILANI et al. v. PABLO.
    (728 SE2d 883)
   MlKELL, Presiding Judge.

Shortly before the expiration of the statute of limitation, Gregory Milani and Jeanette Milani (“appellants”) brought suit against Andres Pablo, an uninsured motorist, seeking damages that arose when his vehicle hit their motorcycle. After a hearing, the trial court revoked its earlier order allowing for service by publication and granted Pablo’s motion to dismiss on the grounds that appellants had not acted diligently in attempting to serve him personally. Appellants contest this order on appeal, and for the reasons below, we affirm.

On April 24, 2009, four days before the statute of limitation expired, the appellants filed the instant suit against Pablo for injuries they sustained on April 28, 2007, when Pablo’s vehicle hit their motorcycle. On May 1, 2009, a sheriff’s deputy filed a “non est” return of service, writing on the return that the “address [was] not good.” On May 7, 2009, appellants searched for Andres Pablo on two websites, 411.com and Intelius People Search Report, but the search was limited to Georgia addresses. On May 8, 2009 and May 19, 2009, appellants sent certified letters to the three addresses located by the websites. All of the letters were returned as undeliverable. On May 18, 2009, an answer was filed by special appearance on behalf of Pablo, and on June 15, 2009, his counsel filed a motion to dismiss the complaint based on insufficiency of service and expiration of the statute of limitation. Appellants filed motions for service by publication and for the appointment of a special process server on July 9, 2009, and both motions were granted the same day before opposing counsel had time to respond. After a hearing on Pablo’s motion to dismiss, the trial court issued an order dismissing the appellants’ complaint for want of service and held that the order allowing service by publication should not have been granted.

1. On appeal, the appellants dispute the trial court’s determination. Primarily, they contend that the trial court applied the wrong legal standard of due diligence and erroneously held them to a higher degree of due diligence than the law authorizes. We disagree.

OCGA § 33-7-11 (d) requires service upon both the uninsured motorist and the uninsured motorist carrier. The burden is on the plaintiff to investigate and ascertain the missing defendant’s whereabouts to effect service, and in doing so, the insured must exercise due diligence. Appellant bears the burden of showing that due diligence was exercised. And,

when service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.

Appellants’ argument that the trial court used the wrong legal standard of due diligence is misguided. “While it is true that the ‘due diligence’ required for personal jurisdiction for liability purposes and the due diligence required for service by publication to satisfy uninsured motorist coverage are different standards,” appellants misconceive the law applicable to their situation. Once Pablo raised the defense of defective service, appellants incurred the duty to act “with the greatest possible diligence to ensure proper and timely service or risk dismissal of his or her case.” The determination of whether appellants met this burden is within the discretion of the trial court and will not be disturbed on appeal absent abuse.

Bearing these principles in mind, we conclude that the trial court acted within its discretion in finding that appellants did not satisfy their burden of showing that they acted with the greatest possible diligence in attempting to serve Pablo. Appellants did not seek the appointment of a special process server or move for service by publication until July 9,2009, almost two months after Pablo filed an answer by special appearance raising the defense of ineffective service and one month after Pablo filed a motion to dismiss for lack of service. Further, because Pablo was known to be a transient migrant worker, appellants should have been on notice that the search should have extended beyond Georgia to nearby states. “Due diligence is a question of fact which addresses itself in the first instance to the discretion of the trial court.” In this case, the evidentiary posture authorized the trial court to conclude that appellants did not use wisely or diligently such time and resources as they had, knowing from the start that the expiration of the limitation period was imminent when the complaint was filed and further knowing since May 1, 2009 that there was a problem of service.

2. Appellants next contend that the trial court abused its discretion by vacating its earlier order for service by publication. They argue that by issuing the order, the trial court, in effect, made a finding that they acted with due diligence. We disagree.

The trial judge granted the motion for service by publication on the same day the motion was filed, without providing opposing counsel the opportunity to respond. Although the trial court did originally authorize service by publication, it did not enter any finding whatsoever about due diligence.

The case cited by appellants, Starr v. Wimbush, does not require a different result. In Starr, the trial court had ordered service by publication in a ruling expressly finding defendant could not be found after due diligence. Defendant was personally served two months later, during which time several additional steps were taken to locate him. Because the attempted service by publication was ineffective, and because service had not been perfected until eight months after the statute of limitation had run, defendant moved to dismiss. The court granted the motion, finding that the plaintiff had failed to show due diligence in attempting to perfect service. Starr reversed, holding the publication order had established due diligence and the record clearly showed due diligence from the time of that order until service.

In the case sub judice, the trial court’s order granting service by publication did not expressly find that appellants had exerted due diligence in their attempts to serve Pablo. Further, the record is hot clear, as in Starr, that appellants acted with the greatest possible diligence in attempting to serve Pablo after the grant of the motion for service by publication.

Decided June 19, 2012.

Gregory W. Holt, for appellants.

Reynolds, Horne & Survant, Larry K. Moore, Thomas C. Mac-Diarmid, for appellee.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       See OCGA § 9-3-33 (“Actions for injuries to the person shall he brought within two years after the right of action accrues”).

        Barabont v. Villaneuva, 261 Ga. App. 839, 841 (1) (584 SE2d 74) (2003).

        Starr v. Wimbush, 201 Ga. App. 280, 281 (2) (410 SE2d 776) (1991).

       (Citation omitted; emphasis in original.) Barabont, supra at 841 (1).

       Id. at 842 (1).

       (Citations and punctuation omitted.) State Farm &c. Ins. Co. v. Manders, 292 Ga. App. 793, 794 (665 SE2d 886) (2008); Parker v. Shreve, 244 Ga. App. 350, 352 (535 SE2d 332) (2000) (physical precedent only).

        Livingston v. Taylor, 284 Ga. App. 638, 639 (644 SE2d 483) (2007).

       (Citation, and punctuation omitted.) Leach v. Monroy, 237 Ga. App. 855, 856 (517 SE2d 95) (1999).

        Bailey v. Lawrence, 235 Ga. App. 73, 77 (2) (508 SE2d 450) (1998). See Patterson v. Lopez, 279 Ga. App. 840, 843 (2) (632 SE2d 736) (2006) (trial court did not abuse discretion in finding plaintiff guilty of laches when she did not attempt to serve defendant until several weeks after statute of limitation lapsed); compare Parker, supra at 352 (trial court abused discretion by finding plaintiff guilty of laches when service made 12 days after statute of limitation expired) (physical precedent only).

        Barabont, supra at 842 (2); Leach, supra at 856 (McMurray, P. J., concurring specially) (the grant of a motion for service by publication is not an ex parte finding that plaintiff exercised due diligence to serve defendant).

       Supra.

       Id. at 282.


author: Blackwell, Judge.

text:
    A12A0068.
    CANTRELL v. THE STATE.
    (728 SE2d 913)
   Blackwell, Judge.

On November 11, 2009, Victor Cantrell sold cocaine to a confidential informant and an undercover police officer, and he did so within 1,000 feet of the Butler Street Apartments, a housing complex apparently operated by the Gainesville Housing Authority. Cantrell subsequently was tried by a Hall County jury and convicted of unlawful sale of a controlled substance, an act prohibited by OCGA § 16-13-30 (b), and unlawful distribution of a controlled substance within 1,000 feet of a “housing project,” an act prohibited by OCGA § 16-13-32.5 (b). On appeal, no one disputes that the evidence adduced at trial is sufficient to sustain the former conviction, but Cantrell argues that the evidence is not sufficient to sustain the latter. The problem is, he says, that no evidence at trial shows that the Butler Street Apartments were occupied by low and moderate-income families, which, according to our precedents, is necessary to prove that a housing complex is a “housing project,” as that term is used in OCGA § 16-13-32.5 (b). We agree that the evidence is insufficient to sustain the conviction for unlawful distribution of a controlled substance within 1,000 feet of a housing project, and we are constrained to reverse that conviction.

For the purposes of OCGA § 16-13-32.5 (b), “housing project” means “any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.” OCGA § 16-13-32.5 (b). As we have explained before, when the State prosecutes someone under OCGA § 16-13-32.5 (b), it must prove that the housing complex at issue is, in fact, a “housing project,” and that requires, among other things, proof that the complex consists of dwelling units occupied by low and moderate-income families. See, e.g., Quarterman v. State, 305 Ga. App. 686, 689-690 (1) (a) (700 SE2d 674) (2010) (reversing conviction under OCGA § 16-13-32.5 (b) where State failed to offer competent evidence that housing complex was “occupied by low and moderate-income families”); Williams v. State, 303 Ga. App. 222, 224 (1) (692 SE2d 820) (2010) (same); Mahone v. State, 296 Ga. App. 373, 376 (3) (674 SE2d 411) (2009) (same); Collins v. State, 278 Ga. App. 103, 106 (1) (b) (628 SE2d 148) (2006) (same); Johnson v. State, 214 Ga. App. 77, 81 (2) (447 SE2d 74) (1994) (same).

Decided June 20, 2012.

Travis A. Williams, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

In this case, there was testimony at trial that the Butler Street Apartments are “government housing” and that a sign posted at the Butler Street Apartments reads “Gainesville Housing Authority.” This testimony is sufficient to prove that the Butler Street Apartments are “under the jurisdiction of a housing authority” and consist of “dwelling units.” It is not sufficient, however, to prove that the Butler Street Apartments are occupied by low and moderate-income families. Cf. Robinson v. State, 314 Ga. App. 545, 548 (1) (724 SE2d 846) (2012) (affirming conviction where evidence established that housing complex was “public assistance housing,” not merely “public housing”). No other evidence appears in the record concerning the nature of the Butler Street Apartments. For this reason, the evidence does not sustain the conviction under OCGA § 16-13-32.5 (b), and we must reverse that conviction.

Judgment reversed.

Mikell, P. J., and Miller, J., concur.

       Our decision does not disturb the conviction under OCGA § 16-13-30 (b).

       Some people might say that “government housing” necessarily refers to housing provided or subsidized by the government for persons of low and moderate income. But we held otherwise in Mahone, where we reversed a conviction under OCGA § 16-13-32.5 (b) notwithstanding evidence that the housing complex at issue was a “housing development ... a government housing unit.” 296 Ga. App. at 374, 376 (3). And in any event, we note that “government housing” might also refer to other kinds of housing provided by the government, including, for instance, housing for military personnel or students attending a public college or university.


author: Andrews, Judge.

text:
    A12A0292.
    BRADDY v. THE STATE.
    (729 SE2d 461)
   Andrews, Judge.

We granted Calvin Braddy’s application for interlocutory appeal of the trial court’s order denying his motion to recuse. For reasons that follow we conclude that the trial court erred in not assigning this case to another judge to rule on the motion.

The record shows that Braddy, in two separate indictments, was charged with burglary and three counts of forgery in the first degree. After the judge to whom the case was first assigned recused, the case was transferred to Judge Kathy S. Palmer. Braddy subsequently filed a motion to recuse Judge Palmer, claiming that she had ex parte conversations about his case and had voiced an opinion on what sentence she thought was appropriate for him before he ever appeared in front of her in court.

Defense counsel’s affidavit, filed with the motion, stated that after he became aware that Judge Palmer may have formed an opinion about the case, he requested a meeting with Judge Palmer and the district attorney. At that meeting, Judge Palmer “recited several alleged facts of the case,” and expressed her opinion that Braddy had lost his “moral compass” and had let people down who placed their trust in him; therefore, she was going to reject a joint recommendation of probation and was going to sentence Braddy to at least three years in prison. The affidavit further stated that when counsel asked Judge Palmer whether she had learned these facts in any evidentiary hearing, Palmer replied that she had not; rather, she had spoken about the case with Judge Reeves, the former judge in the case, and had spoken to Bob Ford, the lead investigator in the case.

Judge Palmer denied the motion to recuse. She found that the motion was timely and was legally sufficient, but was without merit. In the order, the judge stated that she did not have any ex parte communication with the lead investigator and she may have commented on the officer’s involvement based on knowledge gained in her briefing by the previous judge. The judge also stated that her comments on the case were merely comments to an “unfamiliar practitioner” about the court’s practices.

Defense counsel requested a certificate of immediate review to appeal the order. The trial court denied the request. Defense counsel filed an application without the certificate, which this Court granted.

1. We first address the issue of our jurisdiction. As a general rule, a certificate of immediate review is a prerequisite to appellate review of a nonfinal order. See OCGA § 5-6-34 (b). When no certificate of immediate review is obtained, and this Court does not grant permission to appeal, the case must be dismissed. Calloway v. Calloway, 161 Ga. App. 752 (289 SE2d 559) (1982).

We may, however, consider treating such orders under the collateral order doctrine.

The collateral order exception is to be applied if the order (1) resolves an issue that is “substantially separate” from the basic issues to be decided at trial, (2) would result in the loss of an important right if review had to await final judgment, and (3) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it.

Fulton County v. State, 282 Ga. 570, 571 (651 SE2d 679) (2007).

The order in this case meets this test. It concerns a matter wholly unrelated to the basic issues to be decided in the criminal case. Whether the trial judge could properly preside over the case would be unresolved if review had to await final judgment. Finally, the order resolves the matter completely and nothing remains in the underlying case to affect it. See Fulton County, supra. We therefore conclude that we have jurisdiction to consider Braddy’s appeal. See generally Britt v. State, 282 Ga. 746, 749 (653 SE2d 713) (2007) (discovery order directly appealable under the collateral order doctrine); Fulton County, 282 Ga. at 571 (county may file a direct appeal from an order requiring it to pay a defendant’s expenses in a murder case under the collateral order exception to the final judgment rule); Scroggins v. Edmondson, 250 Ga. 430, 431-432 (297 SE2d 469) (1982) (order cancelling notice of lis pendens is directly appealable as a collateral order); Patterson v. State, 248 Ga. 875, 876-877 (287 SE2d 7) (1982) (denial of plea in bar on double jeopardy grounds is a directly appealable collateral order).

2. Addressing the merits of the issue, Braddy contends that the trial court erred in denying his motion to recuse because, instead of taking the facts alleged in the affidavit as true, the court disputed the facts in its order. The State filed a brief in which it stated that it “has no argument or authorities contrary to that submitted by Appellant.”

Uniform Superior Court Rule 25.3 reads:

When 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. The allegations of the motion shall stand denied automatically. The trial judge shall not otherwise oppose the motion. In reviewing a motion to recuse, the judge shall be guided by Canon 3 (E) of the Georgia Code of Judicial Conduct.

Thus, the threshold inquiries concerning the motion to recuse are:

was the motion timely filed, were the affidavits supporting the motion legally sufficient, and did the affidavits aver facts that, when assumed to be true, would warrant the trial judge’s recusal from hearing the case? If all three conditions precedent were met, the trial judge was required to refer the motion to another judge.

Mayor &c. of City of Savannah v. Batson-Cook Co., 291 Ga. 114 (728 SE2d 189) (2012).

In City of Savannah, the Supreme Court of Georgia determined that our review of appeals from the denial of a motion to recuse is de novo:

USCR 25.3 does not authorize a discretionary determination on the part of the trial judge presented with a motion and affidavit to recuse — the Rule states that another judge shall be assigned to hear the recusal motion if the motion is timely, the affidavit legally sufficient, and the facts set forth in the affidavit, when taken as true, would authorize recusal. Deciding whether the motion is timely, whether the affidavit is legally sufficient, and whether the facts asserted authorize recusal under any of the factual scenarios set forth in OCGA § 15-1-8 and Canon 3E (l) does not require the exercise of discretion; rather, they present questions of law, for which the appropriate standard of review is de novo.

Decided June 20, 2012.

Hogue & Hogue, Franklin J. Hogue, for appellant.

S. Hayward Altman, District Attorney, Bradford N. Childers, Assistant District Attorney, for appellee.

Id.

Here, the trial court held that the motion was “timely” and “legally sufficient in its form.” The trial court then went on to dispute, as discussed above, the source of the comments and to defend the motive behind her comments on the defendant’s behavior.

“To warrant disqualification of a trial judge the affidavit supporting the recusal motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” (Punctuation omitted.) Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67) (1981). “Neither the truth of the [movant’s] allegations nor the good faith of the pleader may be questioned, regardless of the judge’s personal knowledge to the contrary. The test is whether, assuming the truth of the facts alleged, a reasonable person would conclude that a personal as distinguished from a judicial bias exists.” State v. Fleming, 245 Ga. 700, 702 (267 SE2d 207) (1980).

In the case before us, assuming all the facts as presented in the affidavit to be true, Braddy’s motion to recuse is legally sufficient. “The [affidavit] met the criteria of USCR 25.2 [because it] contained definite and specific foundational facts of the trial judge’s extrajudicial conduct demonstrating a purported lack of impartiality and [was] not stated in conclusory fashion or as a matter of opinion.” City of Savannah, supra. Therefore, the judge was required to assign another judge to hear the motion to recuse. Because the judge did not do so, the order on the recusal motion must be vacated and the case remanded to the Superior Court of Washington County for disposition of the motion to recuse by a different judge. See City of Savannah, supra; Gillis v. City of Way cross, 247 Ga.App. 119, 122 (543 SE2d 423) (2000); Butler v. Biven Software, 222 Ga. App. 88, 93 (473 SE2d 168) (1996).

Judgment vacated and case remanded with direction.

Doyle, P. J., and Boggs, J., concur.

       Canon 3E (1) requires a judge to recuse in any proceeding in which the judge’s impartiality might reasonably be questioned.


author: DOYLE, Presiding Judge.

text:
    A12A0305.
    IN THE INTEREST OF D. S., a child.
    (728 SE2d 890)
   DOYLE, Presiding Judge.

The mother of D. S. appeals from an order of the Douglas County Juvenile Court finding D. S. to be deprived, arguing that there was insufficient evidence to support the deprivation determination or to establish that venue was proper in Douglas County. We affirm, for the reasons that follow.

When reviewing a juvenile court’s finding of deprivation, this Court views the evidence

in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

So viewed, the record shows that the mother participated in the Douglas County Family Drug Treatment Program from July 2008 through July 2009. In February 2010, the mother was enrolled in a different drug program in Paulding County, after which she left and resided in Powder Springs. In May 2010, the mother entered a transitional shelter in Douglas County, where she remained until mid-June 2010, when she left and returned to the Powder Springs address. In August 2010, the mother voluntarily placed her four children, including six-year-old D. S., in foster care through Bethany Christian Ministries (“BCM”), but she retained legal custody of the children at that time. BCM placed D. S. in a foster home in Paulding County.

In November 2010, the Douglas County Juvenile Court placed D. S. in the custody of the Department of Family and Children Services (“DFCS”) because the father was incarcerated and the mother had not had contact with DFCS in approximately one month. The juvenile court noted in the order that DFCS had provided “exhaustive services” to the mother and father, including substance abuse counseling and parenting counseling. On December 6, 2010, DFCS filed a deprivation petition in Douglas County. On January 14, 2011, the mother filed a motion to dismiss on the ground that venue was not proper in Douglas County. Following a hearing, the juvenile court denied the motion to dismiss and entered an order finding D. S. to be deprived. This appeal followed.

1. The mother argues that there was insufficient evidence to support the juvenile court’s finding that D. S. was deprived because she exercised proper parental care and control by placing him in foster care. We disagree.

Under OCGA § 15-11-2 (8) (A), a deprived child is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” “ ‘This definition focuses upon the needs of the child regardless of parental fault. The deprivation petition is brought on behalf of the child[,] and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.’ ” “Where children have been removed from parental custody, [DFCS] may prove current deprivation by showing that, if the child [was] returned to the parent [ ] at the time of the hearing, [he] would be deprived.”

In the instant case, DFCS presented evidence that after the mother left the transitional shelter in June 2010, she lived with her grandmother. The mother conceded, however, she did “not get along” with her grandmother, and as a result, the mother left and went to live with friends at various times. The mother has been unemployed since February or March 2010, and she relies on her parents for transportation. Although she was supposed to enter the Job Corps, the mother failed to do so because she “didn’t have everything lined up to emotionally be able to do that.” The mother did not have contact with D. S. for several weeks while he was in the foster home because “[she] emotionally couldn’t do it.”

Relying on In the Interest of C. C., the mother argues that D. S. was not without adequate proper parental care or control because she voluntarily placed him in foster care. Her reliance is misplaced. In C. C., we reversed the juvenile court’s finding that the child was deprived because the mother voluntarily and temporarily placed her in foster care, during which time the mother underwent mental health treatment. The mother also obtained employment, continued to see a therapist, and took medicine for her mental health problems, which the trial court found were not an impediment to proper parenting. C. C. is, therefore, distinguishable.

Decided June 20, 2012.

Victoria S. Ward, for appellant.

In this case, the mother did voluntarily place D. S. in foster care. She has, however, failed to obtain stable housing or a job, and she relies on others for transportation. Moreover, she has failed to maintain meaningful contact with D. S., admitting that she was emotionally unable to do so. “ ‘Lack of stable housing and lack of support due to a parent’s unstable or irregular employment are appropriate factors in determining deprivation.’ ” Thus, we conclude that the evidence supported the juvenile court’s order finding D. S. to be deprived.

2. The mother also contends that venue was not proper in Douglas County. This enumeration is without merit.

OCGA § 15-11-29 (a) provides that a juvenile proceeding may be commenced in the county in which the child resides or if deprivation is alleged, the proceeding may be brought in the county in which the child is present when it is commenced. Moreover, as to venue, it may be presumed as a matter of law, subject to rebuttal, that a child placed in the custody of a county department of family and children services thereafter assumes the residence of that county department.

Here, Douglas County DFCS was involved with this family for some time. The mother lived in a shelter in Douglas County in May and June 2010, and when she left the shelter, she had no stable address, instead alternating between living with her grandmother and various friends. At the time the deprivation petition was filed, D. S. was in the custody of Douglas County DFCS, where he remained through the entry of the deprivation order. This constitutes sufficient evidence that venue was proper in Douglas County.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, AndreaR. Moldovan, Calandra A. Harps, Assistant Attorneys General, for appellee.

       (Punctuation omitted.) In the Interest of B. M. B., 241 Ga.App. 609 (527 SE2d 250) (1999).

        In the Interest of B. B., 267 Ga. App. 360, 362 (1) (599 SE2d 304) (2004).

       (Punctuation omitted.) In the Interest of T. V., 302 Ga. App. 124, 127 (1) (690 SE2d 457) (2010).

       249 Ga. App. 101 (547 SE2d 738) (2001).

       See id. at 102-103.

       See id.

        T. V., 302 Ga. App. at 127 (1).

       See id.; B. B., 267 Ga. App. at 361 (1).

       (Punctuation omitted.) In the Interest of R. B., 309 Ga. App. 407, 413 (2) (710 SE2d 611) (2011).

       See id.; In the Interest of A. J. M., 277 Ga. App. 646, 648 (2) (627 SE2d 399) (2006); In the Interest of A. M. G., 213 Ga. App. 897, 898 (446 SE2d 760) (1994).


text:
    A12A0446.
    CARTWRIGHT v. FIRST BAPTIST CHURCH OF KEYSVILLE, INC.
    (728 SE2d 893)
   DOYLE, Presiding Judge.

Maggie C. Cartwright sued First Baptist Church of Keysville, Inc. (“the Church”), seeking title to two tracts of real property occupied by the Church under theories of implied and express trust. Following a trial, a jury rendered a verdict in favor of Cartwright, but based on evidence of a prior quia timet action vesting fee simple title in the Church, the trial court granted the Church a judgment notwithstanding the verdict (“jnov”). Cartwright filed this appeal contending that the prior action did not have a res judicata effect on this proceeding. Finding no error, we affirm.

The record shows that prior to 1907, the disputed property was owned by Cartwright’s grandfather, Robert Cheatham, who was the pastor ofthe Church, which began operating on the property. Cheatham allegedly gave or sold part of his parcel to the Church, but after his death, a question arose as to whether the deed, which had been lost, was properly recorded. So in 1976, Cartwright, as Cheatham’s heir, executed a deed conveying a fee simple interest in favor of the Church, and she was told that if the Church stopped operating on that property, the land would revert hack to her family. Thereafter, in 1993, Cartwright again executed a deed conveying to the Church a fee simple interest in additional property along the boundary of her property to accommodate a Church annex. She made this transfer with the same understanding that the property would revert to her should the property no longer be used by the Church.

In 1997, a dispute arose over the boundary line between Cartwright and the Church, so the Church filed a quia timet action pursuant to OCGA § 23-3-60 et seq. (“Quiet Title Act”) with respect to the tracts transferred by Cartwright. Cartwright was served with the petition, and in 1998 the trial court ultimately entered an order pursuant to the Act finding that fee simple title vested in the Church and establishing the boundary line pursuant to an agreement between the Church and Cartwright.

After further doctrinal and personnel disputes between the Church and Cartwright, the Church dismissed her as a member in 2006. By 2009, the Church had moved its operations to a different property located in Hephzibah, Georgia, and Cartwright brought the instant action seeking title to the Church property. Based on implied and express trust theories, a jury rendered a verdict in favor of Cartwright, but the trial court entered a jnov in light of the 1998 order entered in the quia timet action, which order was produced on the final day of trial. Cartwright now appeals.

Cartwright contends that the trial court erred by concluding that the quia timet order had a res judicata effect in her later action seeking to impress a trust upon the property. She argues that the 1998 order could not have settled a controversy that arose only when the Church later sought to move its operations from its former site to the Hephzibah site. Nevertheless, this position misapprehends the nature of the quia timet action.

OCGA § 23-3-61, which authorized the quia timet action, provides as follows:

Any person, which term shall include a corporation, partnership, or other association, who claims an estate of freehold present or future . . . , whether in the actual and peaceable possession thereof or not and whether the land is vacant or not, may bring a proceeding in rem against all the world to establish his title to the land and to determine all adverse claims thereto or to remove any particular cloud or clouds upon his title to the land, . . . which proceeding may be against all persons known or unknown who claim or might claim adversely to him, whether or not the petition discloses any known or possible claimants.

The purpose of this Code section

is to create a procedure for removing any cloud upon the title to land,... and for readily and conclusively establishing that certain named persons are the owners of all the interests in land defined by a decree entered in such proceeding, so that there shall be no occasion for land in this [SJtate to be unmarketable because of any uncertainty as to the owner of every interest therein.

Here, the Church’s action was brought pursuant to the above Code sections and sought fee simple title to property occupied by the Church and held pursuant to the deeds granted to the Church. The quia timet decree concluded that fee simple title vested in the Church and “conclusively established] the title of [the Church] as set forth in this Decree against all the world.” Thus, the decree on its face “conclusively establish [ed] that [the Church is] the owner[ ] of all the interests in land defined by [the] decree.” That the decree specifically addresses the boundary line dispute and historical deed recordation issues does not narrow the scope of the decree or change the nature of the decree. According to the statutory procedure, and by the explicit terms of the decree, the 1998 order settled the title to the land conclusively, not only as to a specific person but as to a specific cloud on the title.

Were we to conclude otherwise, this would frustrate the purpose of the statute, which is to readily and conclusively establish title to land to avoid unmarketability due to uncertainty of ownership. Thus, the statute operates to avoid precisely this scenario in which a person such as Cartwright, who participated in the prior quia timet action, later asserts a new claim to title in a subsequent action. Should the later action succeed, no quiet title action could produce the result intended by the statute.

This conclusion is entirely consistent with res judicata principles:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

Under this rule, “[i]t is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective cases.” Thus, even if the parties are now focusing on a different potential defect in the Church’s title, the prior quiet title action was sufficient to establish title because the conclusive nature of the Church’s title was put in issue, Cartwright participated in the action, and a court of competent jurisdiction rendered a judgment on the merits of the Church’s ownership interest in the land.

Decided June 20, 2012

Tucker, Everitt, Long, Brewton & Lanier, John B. Long, for appellant.

Warlick, Tritt, Stebbins & Murray, Charles C. Stebbins III, for appellee.

Cartwright nevertheless argues that her interest could not have been asserted in the prior action because the Church had not ceased operating at the time of the quia timet action. But even if title had not vested in her due to a reversion based on an express or implied trust, she still had standing to assert the allegedly then-existing express or implied trust that she now claims hinders the marketability of the property. Therefore, the prior quia timet action, which settled the Church’s ownership interest in the property, was sufficient to bar Cartwright’s present action seeking title to the property. “Recognizing the sometimes impossible task of determining the identity or residence of all possible adverse claimants due to title irregularities spanning many years, the legislature made the [quia timet] proceeding in rem against all the world.” Thus, “[a] litigant must discharge all his weapons, and not reserve a part of them for use in a future encounter. He must realize that one defeat will not only terminate the campaign, but end the war.”

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       The Church was originally named Stancey Nocia Baptist Church and later became First Baptist Church of Keysville and was incorporated thereafter in 1997. For purposes of this opinion, we refer to the party and its predecessors as the Church.

       The trial court’s order notes that counsel for both parties were apparently unaware of the existence of the 1998 order until the final day of trial.

       (Emphasis supplied.) OCGA § 23-3-60.

       OCGA §23-3-60.

       See id.

       OCGA §9-12-40.

       (Punctuation omitted.) Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998).

       See id. (“If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense [of res judicata] is valid.”).

        Smith v. Ga. Kaolin Co., 264 Ga. 755 (1) (449 SE2d 85) (1994).

       (Punctuation omitted.) Piedmont Cotton Mills v. Woelper, 269 Ga. at 111.


text:
    A12A0667.
    CONEY v. THE STATE.
    (728 SE2d 899)
   Andrews, Judge.

On this out-of-time appeal from his conviction for cocaine trafficking, John Edward Coney argues that the trial court erred when it denied his motion for new trial because he was arraigned without counsel, with the harmful result that he lost a hearing on his motion to suppress the evidence that formed the basis of his conviction. In the alternative, Coney argues that trial counsel was ineffective for failing to file a timely motion to suppress and for other reasons. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on February 28,2007, a Cordele police officer received a call to be on the lookout for a black male in the area of 24th Avenue and 13th Street. The officer soon saw Coney enter the passenger side of a vehicle, which drove down an unpaved alley, kicking up dirt as it did so. The officer followed, but did not pull the vehicle over because, as he testified, he did not have probable cause to arrest or detain Coney.

When the vehicle turned into a school parking lot with a construction site where Coney was working, the officer activated his blue lights and called out to Coney, who was walking toward the construction site office, that he wanted to speak to him. Although the officer testified that this encounter was voluntary, he called for backup. The female driver of the car got out and gave the officer Coney’s driver’s license, which information the officer called in to his dispatcher. After a substantial delay, the dispatcher reported that Coney was not the person the officers were looking for. The first officer then told Coney that he was free to go.

As the officers were leaving, however, a dispatcher reported that Coney was the subject of an outstanding arrest warrant from Henry County. Both officers immediately returned to the construction site and detained Coney. When asked about the outstanding arrest warrant, Coney replied that the matter “had been taken care of.” The officers told Coney that they needed to detain him pending verification that the warrant had been satisfied. As the first officer conducted a weapons check, he felt something “bulky” in Coney’s right front pocket. The officer testified that he put his hand into the pocket because “[he] could not say that [the bulky object] was not a weapon.” Coney immediately resisted and was arrested for obstruction. The bulky object turned out to be a roll of currency amounting to $615. A further search of Coney’s pockets recovered a bag containing more than 31 grams of 78% pure cocaine. Shortly after Coney’s arrest, the dispatcher confirmed that the Henry County arrest warrant was no longer outstanding.

On April 4, 2007, trial counsel made his first appearance in the case and filed a motion for discovery. Coney was indicted on May 14 on charges of cocaine trafficking, possession of cocaine with intent to distribute within 1,000 feet of a school, and obstruction. On June 4, Coney appeared at arraignment and signed a form indicating a plea of not guilty. Although the prosecutor was present and signed the form, Coney’s counsel was not present and did not learn of the event until he received a calendar call for August 9. The State filed discovery responses on June 27.

On the morning of trial, August 23, 2007, counsel filed motions, including one to suppress the cocaine. The motion to suppress was denied as untimely because it violated the circuit’s standing order to file such motions within ten days of receiving discovery responses. A jury found Coney guilty of cocaine trafficking but not guilty of the two other charges against him. Coney was convicted and sentenced to 30 years. His motion for new trial was denied.

1. The evidence outlined above was sufficient to sustain Coney’s conviction for cocaine trafficking. See OCGA § 16-13-31 (a) (1) (defining trafficking in cocaine as being in knowing possession of 28 grams or more of 10% or more of cocaine); Jackson, supra.

2. Coney argues that he was deprived of his right to counsel at arraignment with the harmful result that the trial court refused to hear his motion to suppress the cocaine that formed the basis of his conviction. We disagree.

The trial court denied the motion to suppress filed on the morning of trial not because of any deadline triggered by Coney’s arraignment, but rather because the motion was filed in violation of the circuit’s standing order to file such motions within ten days of the return of discovery. Reserving the question whether this failure amounted to ineffective assistance (the subject of Division 3 below), Coney has not asserted or shown that he suffered any specific harm as a result of a lack of counsel at the June 4 arraignment.

Under Uniform Superior Court Rule (USCR) 30.2, a trial judge faced with a defendant lacking counsel at arraignment “shall inquire whether the accused is represented by counsel and, if not, inquire into the defendant’s desires and financial circumstances.” USCR 33.2 (A) further provides:

A defendant shall not be called upon to plead before having an opportunity to retain counsel, or if defendant is eligible for appointment of counsel, until counsel has been appointed or right to counsel waived. A defendant with counsel shall not be required to enter a plea if counsel makes a reasonable request for additional time to represent the defendant’s interest, or if the defendant has not had a reasonable time to consult with counsel.

The Supreme Court of Georgia has held that the provisions of USCR 33 are “mandatory in this state,” State v. Evans, 265 Ga. 332, 334 (1) (454 SE2d 468) (1995). Coney has consistently asserted that his substantive constitutional right to counsel was violated at the June 4 arraignment, and he refused subsequent arraignment as well. Compare Cox v. State, 279 Ga. 223, 228-229 (9) (610 SE2d 521) (2005) (when a defendant does not argue any denial of substantive protections at an arraignment held while he was a fugitive, when he was later arraigned with the benefit of counsel, and when his pretrial motions were mooted by developments in the case, any error resulting from an absence of counsel at arraignment was harmless).

Nonetheless, as our Supreme Court has also held, a reversal for lack of counsel at any “critical stage of a criminal proceeding,” including an arraignment, “is by no means automatic. . . . The harmfulness of counsel’s absence must appear.” Dixon v. Hopper, 237 Ga. 811, 812 (1) (229 SE2d 656) (1976). “[Wjhere the record does not show whether or not the defendant was prejudiced by the absence of counsel” at a pretrial appearance, a trial court “should determine whether the lack of counsel was harmless error.” State v. Hightower, 236 Ga. 58, 60 (222 SE2d 333) (1976). “A federal constitutional error can be held harmless only if the state shows beyond a reasonable doubt that the error did not contribute to the verdict obtained.” Id. Thus in Bache v. State, 208 Ga. App. 591 (431 SE2d 412) (1993), this Court held that a defendant who lacked counsel at arraignment, but who could not show how any specific motion not made “would have enhanced his defense,” could not show harm arising from the absence of counsel at that stage of the proceedings. Id. at 592 (1).

Because the record shows that Coney did not lose the right to a hearing on his motion to suppress as a result of a lack of counsel at arraignment, because he has not alleged any other specific harm resulting from that event, and because he was afforded the assistance of counsel at trial, we conclude that the State has carried its burden of showing that any error arising from the absence of counsel at arraignment was harmless. See Dixon, 22>1 Ga. at 812-813 (State carried its burden of showing no harm arising from lack of counsel at arraignment when defendant failed to allege any specific harm arising therefrom and when he was represented by counsel at trial); Bache, 208 Ga. App. at 592 (1); compare Ledford v. State, 247 Ga. App. 885 (545 SE2d 396) (2001) (reversing defendant’s conviction because she lost the right to file a motion to suppress when she appeared without counsel at arraignment).

3. Coney argues that counsel was ineffective when he failed (a) to appear at arraignment; (b) to file a timely motion to suppress; (c) to file other, unspecified pretrial motions; (d) to review discovery prior to trial; (e) to conduct an adequate investigation and preparation of the case; (f) to obtain a ruling on the issue whether Coney was properly arraigned; and (g) to advise him of the status of the case. We disagree with these contentions.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The question of ineffectiveness is a mixed one of law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs, 272 Ga. at 88 (4).

(a), (b) As we have noted above, Coney has not asserted any harm arising from counsel’s failure to appear at arraignment other than the loss of his right to a hearing on his motion to suppress. “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” Richardson v. State, 276 Ga. 548, 553 (3) (580 SE2d 224) (2003). Further, Davenport v. State, 172 Ga. App. 848, 852 (324 SE2d 201) (1984), quoting Strickland, 466 U. S. at 697. Pretermitting whether counsel’s failure to file a motion to suppress within ten days of the State’s filing of its discovery responses was deficient performance, Coney cannot show that the motion to suppress had any likelihood of success, with the result that he cannot show prejudice as a result of counsel’s omissions.

“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

According to the Supreme Court of Georgia, the “material inquiry” in any case involving probable cause to arrest is “whether the facts within the officer’s knowledge at the time of the arrest constituted reasonably trustworthy information which was sufficient to authorize a prudent person to believe that [the suspect] had committed an offense.” Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996) (validating an arrest based on an officer’s reasonable reliance on information concerning an outstanding but incorrect warrant). This Court has thus held not only that “ ‘a radio transmission that confirms an outstanding warrant establishes the necessary probable cause to arrest,’ ” Howard v. State, 273 Ga. App. 667, 668 (1) (615 SE2d 806) (2005), quoting Buchanan v. State, 259 Ga. App. 272, 274-275 (576 SE2d 556) (2002), but also that a search made pursuant to such an arrest is legal:

[I]f an officer stops an individual outside his home, requests a computer check on the individual, and is told that there is an outstanding arrest warrant for the individual, the officer may lawfully arrest the individual and search him or her pursuant to the arrest, and any seized contraband will be admissible to support additional criminal charges against the individual, even if it is later discovered that no valid warrant existed at the time of the arrest.

(Emphasis supplied.) State v. Edwards, 307 Ga. App. 267, 271-272 (704 SE2d 816) (2010). The existence of probable cause authorizes a search incident to arrest, moreover, even if an officer believes that he is, at the moment the search is undertaken, detaining rather than arresting the person searched. See Sibron v. New York, 392 U. S. 40, 67 (88 SC 1889, 20 LE2d 917) (1968); see also id. at 77 (Harlan, J., concurring) (“If the prosecution shows probable cause to arrest prior to a search of a man’s person, it has met its total burden. . . . [T]he prosecution must be able to date the arrest as early as it chooses following the development of probable cause”); LaFave, Search and Seizure (3d ed., 1996), Vol. 4, § 9.2 (e), pp. 46-47.

Coney does not dispute that he was detained and searched as a result of a dispatcher’s report that there was an outstanding warrant for his arrest. And Coney has not argued or shown that any evidence not obtained or reviewed before trial would have created a question of fact on this subject. Even assuming that the police officer did not himself interpret Coney’s detention as an arrest, then, and even if the information on which that detention was based was later proven to be incorrect, there is no evidence in this record to dispute the conclusion that police obtained probable cause to arrest Coney “once the officer learned of the warrant.” Howard, 273 Ga. App. at 668 (1). Because probable cause to arrest Coney and to search him incident to that arrest has been shown on undisputed facts, he cannot make the requisite “strong showing” that a motion to suppress the evidence found during that search would have been meritorious. Richardson, 276 Ga. at 553 (3). As a result, no further proceedings are necessary on an ineffectiveness claim arising from any failure to file such a motion. See Quinn v. State, 268 Ga. 70, 72 (485 SE2d 483) (1997) (the totality of circumstances, including the discovery of a large sum of money, the presence of a pistol on the seat of defendant’s car, and alerting by narcotics dog, provided probable cause to search; because a motion to suppress “would not have been meritorious,” no further proceedings were required on the motion or an ineffectiveness claim concerning it); compare Suluki v. State, 302 Ga. App. 735, 738 (1) (691 SE2d 626) (2010) (reversing conviction where defendant showed a “reasonable probability ... that the outcome [of his trial] would have been different” if counsel had filed a motion to suppress).

(c) As we have noted above, Coney has not asserted how any motion other than a motion to suppress would have assisted his defense. A generalized assertion that a defendant was unable to file an unspecified pretrial motion as a result of counsel’s absence at arraignment is insufficient to make out a claim for ineffective assistance. Bache, 208 Ga. App. at 592 (1).

(d) , (e) Coney asserts that counsel failed to interview a number of witnesses, including the driver of the vehicle in which Coney traveled to the construction site, the radio dispatcher, and other officers at the scene. Coney also points out that counsel did not review the police video of the incident until the morning of trial. But Coney did not proffer any specific evidence at the hearing on the motion for new trial tending to show that he suffered prejudice as a result of these omissions.

In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a petitioner is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. The failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant.

Decided June 20, 2012.

Tony L. Axam, Danielle P. Roberts, for appellant.

Denise D. Fachini, District Attorney, Barbara A. Becraft, Henry O. Jones III, Assistant District Attorneys, for appellee.

(Citation and punctuation omitted; emphasis supplied.) Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995). Even on appeal, Coney fails to assert or show how, apart from the legal issues arising from his search and arraignment, any of this potential evidence would have affected his conviction for cocaine trafficking, the elements of which are possession of the drug in a certain amount and of a certain purity. It follows that the trial court did not clearly err when it denied Coney’s motion for new trial on this ground. See Lenderman v. State, 271 Ga. App. 883, 886-887 (611 SE2d 135) (2005) (under the evidence proffered at the hearing on defendant’s motion for new trial, it was “impossible to conclude” that any additional evidence “would have changed the outcome of his trial”).

(f) As we have held in Division 2 above, Coney has not shown harm as a result of the absence of counsel at arraignment. It follows that any failure to obtain a ruling on this matter could not amount to ineffective assistance. See Morgan v. Mitchell, 272 Ga. 134, 138 (1) (527 SE2d 556) (2000).

(g) Coney has not argued, let alone shown, how any failure to keep him advised of the status of his case would have affected the outcome of his trial. As it is unsupported by either citation to the record or legal argument, we deem this assertion of error abandoned. Smith v. State, 214 Ga. App. 631, 633 (7) (448 SE2d 906) (1994).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


text:
    A12A0739.
    KIRKLAND v. THE STATE.
    (728 SE2d 907)
   DOYLE, Presiding Judge.

Following a stipulated bench trial, Averil Lydell Kirkland appeals from his conviction of possession of marijuana with intent to distribute, contending that the trial court erred by denying his motion to suppress. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that a police officer on patrol encountered Kirkland sitting in a parked car, which was backed into a private residence. The officer was aware of an armed robbery one quarter mile away approximately 45 minutes prior to his encounter with Kirkland, whom the officer observed to be an African-American male wearing a black stocking cap and dark hooded sweatshirt — features matching those of the suspect in the armed robbery. The suspect also was described as carrying a Glock-style handgun. Based on the similarity of the suspect’s description, the officer stopped his marked cruiser and approached Kirkland, who was talking on a cell phone in his car.

The officer asked Kirkland to hang up the phone so he could talk to him and requested that Kirkland step out of the vehicle. Kirkland complied, and the officer explained that he was looking for an armed robbery suspect. Kirkland denied any involvement in the robbery and complied with the officer’s request to see his identification. The officer asked Kirkland for consent to perform a pat-down search, explaining that the suspect was armed, and Kirkland gave his consent.

Upon patting down Kirkland, the officer immediately felt what he believed, based on his training and experience, to be a bag of marijuana in Kirkland’s front pants pocket and asked Kirkland what it was. Kirkland replied, “a bag,” and the officer asked if he could see the bag, and Kirkland replied, “yes.” The officer retrieved the bag from Kirkland’s pocket and recognized it as containing marijuana. The officer placed Kirkland under arrest for possession of marijuana. After securing Kirkland, the officer searched Kirkland’s vehicle incident to the arrest and discovered a bag of clear plastic sandwich bags, a second bag of marijuana, multiple small plastic “jewelry bags,” and some digital scales. After being read his Miranda warnings, Kirkland claimed ownership of the bags of marijuana, but he stated that the scales and plastic bags belonged to an unnamed friend. The officer transported Kirkland to the police station, where he determined the marijuana to weigh 1.88 ounces, including the bags.

Kirkland was charged with possession of marijuana with intent to distribute and prior to trial he moved to suppress the evidence found during the search of his person and vehicle. Following an evidentiary hearing, the trial court denied the motion, and Kirkland stipulated to the evidence adduced at the hearing, maintaining his objection to the admissibility of the evidence. The trial court overruled the objection, found Kirkland guilty, and sentenced him to ten years. This appeal followed.

Kirkland argues that the trial court erred by denying his motion to suppress because the officer’s actions were unlawful at each stage: the initial encounter, the pat-down search, and the search of his vehicle. Our review of these questions is de novo in this case, and as explained below, each ground fails.

[The case law delineates] three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first tier, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry[ ] stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and obj ective basis for suspecting the persons are involved in criminal activity. A Fourth Amendment seizure only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.

Here, the encounter began when the officer observed Kirkland sitting in a parked car, and the officer pulled over and approached Kirkland to speak to him about the recent robbery.

It is well established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a “stop” or “seizure” but rather clearly falls within the realm of the first type of police-citizen encounter.... Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.

Because Kirkland was already stopped and the officer did not block Kirkland’s vehicle, activate his blue lights, or otherwise indicate that Kirkland was unable to leave, the initial encounter was a first-tier encounter requiring no suspicion. “Police officers may approach a citizen, ask for identification, ask him to roll down a window or step out of a car, and freely question him without any articulable suspicion, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.”

Likewise, the subsequent pat-down was proper because it was performed pursuant to Kirkland’s consent, which the evidence shows he freely gave when requested by the officer.

A valid consent eliminates the need for either probable cause or a search warrant. Moreover, once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. The burden of proving the validity of a consensual search is upon the State. To meet its burden, the State must show that the consent was voluntarily given and was not merely acquiescence to a claim of lawful authority.

The evidence showed that the officer merely requested a pat-down search of Kirkland as they conversed outside of Kirkland’s vehicle. Kirkland gave his consent, so the officer was authorized to execute the search regardless of any suspicion. Upon feeling the bag in Kirkland’s pocket, the officer again sought consent to remove it, which Kirkland also freely gave. Thus, the officer’s discovery and retrieval of the marijuana in Kirkland’s pocket was not the result of an unauthorized detention or seizure. And having discovered the bag of suspected marijuana in Kirkland’s pocket, the officer was authorized to place him under arrest and detain him.

Decided June 20, 2012.

Travis A. Williams, for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

Finally, the officer’s search of Kirkland’s vehicle incident to the arrest was lawful under the circumstances. In Arizona v. Gant, the United States Supreme Court held that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” The crime of arrest in this case was the possession of bagged marijuana in Kirkland’s pocket, and it was reasonable to believe that evidence relevant to this offense might be found in the vehicle from which Kirkland exited.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       See Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (if “the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review”).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Citations and punctuation omitted.) Akins v. State, 266 Ga. App. 214, 215 (596 SE2d 719) (2004).

       (Citation and punctuation omitted.) Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999).

       (Punctuation omitted.) Mauge v. State, 279 Ga. App. 36, 38 (630 SE2d 174) (2006).

       See Gary v. State, 244 Ga. App. 535, 537 (2) (536 SE2d 192) (2000).

       (Citations and punctuation omitted.) Brint v. State, 306 Ga. App. 10, 12-13 (2) (701 SE2d 507) (2010).

       See Ware v. State, 309 Ga. App. 426, 429 (710 SE2d 627) (2011); Brint, 306 Ga. App. at 13 (2).

       See Ross v. State, 255 Ga. App. 462, 464 (566 SE2d 47) (2002) (“An officer may make a warrantless arrest and search if, at the time of the arrest, he has probable cause to believe the accused has committed or is committing an offense.”).

       556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009).

       (Punctuation omitted.) Id. at 343 (III).

       See id. at 344 (III) (noting New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981) and Thornton v. United States, 541 U. S. 615 (124 SC 2127, 158 LE2d 905) (2004) as examples of drug offense cases in which the offense of arrest supplied a basis for a vehicle search incident to the arrest).


text:
    A12A0742.
    CRAWFORD v. KINGSTON.
    (728 SE2d 904)
   Andrews, Judge.

On appeal from the trial court’s dismissal of her renewed personal injury action against Scott Kingston, Christine Crawford argues that because an intervening dismissal in federal court was involuntary and could not operate as an adjudication on the merits under OCGA § 9-11-41 (a) (3), and because the federal complaint was never served on Kingston, she had the right to renew her action under OCGA § 9-2-61. We agree and reverse.

The record shows that Crawford filed her first complaint concerning an August 2006 motor vehicle accident in Cherokee County State Court. Crawford voluntarily dismissed this complaint in September 2009, after the running of the applicable statute of limitation. See OCGA § 9-3-33 (actions for personal injury “shall be brought within two years after the right of action accrues”). In December 2009, and based on her belief that Kingston was a Florida resident, Crawford filed a complaint arising from the same facts in federal court for the Northern District of Georgia. Crawford could not locate or serve Kingston in Florida, however, and Kingston’s counsel made a special appearance in order to contest service and jurisdiction. After a discovery dispute, Kingston was ordered to amend his responses, at which point Crawford learned that Kingston had moved to Georgia. In March 2010, and after Crawford conceded that the federal court had lost diversity jurisdiction, the court dismissed the federal action without prejudice.

Three days later, Crawford refiled her Georgia action in Cherokee County (the “renewal action”). Kingston then moved to dismiss the renewal action on the ground that the federal dismissal was voluntary and operated under OCGA § 9-11-41 (a) (3) as an adjudication on the merits. At the hearing on his motion, Kingston also argued that the renewal action was barred under OCGA § 9-2-61. After additional briefing, the trial court granted the motion on the latter ground.

1. Crawford first argues that the federal dismissal was not voluntary for purposes of OCGA § 9-11-41 (a). We agree.

OCGA § 9-11-41 (a) provides:

(1) . . . Subject to the provisions of.. . any statute, an action may be dismissed by the plaintiff, without order or permission of court: (A) By filing a written notice of dismissal at any time before the first witness is sworn; or (B) By filing a stipulation of dismissal signed by all parties who have appeared in the action.
(2) By order of court. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed upon the plaintiff’s motion except upon order of the court and upon the terms and conditions as the court deems proper. . . .
(3) Effect. A dismissal under this subsection is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.

(Emphasis supplied.)

On this record, we cannot agree with Kingston’s contention that the federal dismissal was voluntary. Under Georgia law, “only voluntary dismissals filed by a plaintiff are to be counted for purposes of [OCGA § 9-11-41].” (Emphasis supplied.) Reese v. Frazier, 158 Ga. App. 237, 238 (2) (279 SE2d 529) (1981); see also Troup v. Chambers, 280 Ga. App. 392 (634 SE2d 191) (2006) (“[s]ubsection (a) (3) of the statute has nothing to do with involuntary dismissals”). Even when a federal plaintiff moves to dismiss her own action, the Eleventh Circuit has held that “the actual dismissal is by the court and therefore does not implicate the [Federal Rule of Civil Procedure 41 (a) (1)] two-dismissal rule.” ASX Investment Corp. v. Newton, 183 F3d 1265, 1268 (11th Cir. 1999). As the court explained:

The primary purpose of the “two dismissal” rule is to prevent an unreasonable use of the plaintiff’s unilateral right to dismiss an action prior to the filing of the defendant’s responsive pleading.... A dismissal obtained by motion and order of the court under Rule 41 (a) (2) or similar state rule is not unilateral and does not pose the same danger of abuse or harassment as does a Rule 41 (a) (1) dismissal by plaintiff’s notice. In ruling on such motions, a court has discretion to determine whether the dismissal will be with or without prejudice and with or without conditions based on its view of the case and the plaintiff’s actions.

(Citations and punctuation omitted; emphasis supplied.) Id.

Here, and even though Crawford requested the dismissal of her own federal action, the dismissal itself was by an order of the federal court for a failure of its own jurisdiction. As such, that dismissal was involuntary under OCGA §9-11-41 (a) (2) rather than voluntary under subsection (a) (1), and thus could not operate as an adjudication on the merits under subsection (a) (3). Troup, 280 Ga. App. at 393 (reversing grant of motion to dismiss third complaint when dismissal of federal suit for lack of jurisdiction over remaining state law claims was involuntary).

2. Crawford also argues that her third complaint is not barred by OCGA § 9-2-61. We agree.

OCGA § 9-11-41 (a) provides that it is “subject to the provisions” of the renewal statute, OCGA § 9-2-61, which in turn provides:

(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later...; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.
(c) The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.

(Emphasis supplied.) “While OCGA § 9-11-41 (a) permits a plaintiff to dismiss her action twice without prejudice, OCGA § 9-2-61 (a) controls the refiling of these actions, both within and outside the statute of limitation period.” White v. KFC Nat. Mgmt. Co., 229 Ga. App. 73, 74 (2) (493 SE2d 244) (1997).

It is true that of the three complaints filed by Crawford — the first and third in Georgia state courts, the second in a Georgia federal court — only the first was filed before the running of the statute of limitation. Crawford attempted to recommence her action in federal court after the expiration of the statute of limitation but within six months of her voluntary dismissal of the first complaint. But Crawford never served Kingston with the federal complaint, with the result that it was void and could not amount to a renewal of the first complaint. See Franek v. Ray, 239 Ga. 282, 285 (236 SE2d 629) (1977) (filing alone is “not the commencement of suit unless followed by service within a reasonable time”); Shy v. Faniel, 292 Ga. App. 253, 256 (4) (663 SE2d 841) (2008) (reversing the grant of a motion to dismiss a third complaint because plaintiff’s second complaint, which was void for lack of service, had no bearing on the renewal of a first complaint by means of the third).

The parties agree that the third complaint was intended as a renewal of the first complaint, which was voluntarily dismissed “after the expiration of the applicable period of limitation.” OCGA § 9-2-61 (a). It is also plain that the federal dismissal was not only involuntary, as we have held above, but also “dismissed without prejudice for lack of subject matter jurisdiction” by the federal court. OCGA § 9-2-61 (c). On the record before us, then, Crawford has exercised the “privilege of renewal” after that expiration “only once” — that is, in the third complaint, which was successfully served on Kingston. Id. It follows that the trial court erred when it granted the motion to dismiss Crawford’s third complaint.

Decided June 20, 2012.

Thomas G. Tidwell, for appellant.

Downey & Cleveland, Sean L. Hynes, Jonathan C. Jones, for appellee.

Judgment reversed.

Doyle, P. J., and Boggs, J., concur.


author: Ellington, Chief Judge.

text:
    A12A1446.
    IN THE INTEREST OF R. H., a child.
    (728 SE2d 911)
   Ellington, Chief Judge.

In this juvenile delinquency case, R. H. appeals from a restitution order entered by the Juvenile Court of DeKalb County, contending that the State failed to prove by a preponderance of the evidence that the goods he admitted stealing from the victim were worth $250, the amount that the court ordered him to pay. For the reasons explained below, we vacate the restitution order and remand.

OCGA § 17-14-3 allows for court-ordered restitution, as part of a sentence, to the victim of a crime. “The amount of restitution ordered shall not exceed the victim’s damages.” OCGA § 17-14-9. For purposes of restitution, OCGA § 17-14-2 (2) defines damages as “all. . . damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced [.]” When restitution is ordered for property that the defendant stole or destroyed, the correct determination for the amount of restitution is the fair market value of the property at the time of loss, rather than the original purchase price or replacement cost. Hawthorne v. State, 285 Ga. App. 196, 197 (1) (648 SE2d 387) (2007). Where the defendant disputes the amount or type of restitution, the trial court resolves the issue, and “[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the [S]tate.” OCGA § 17-14-7 (b). “[Determinations regarding the credibility of the witnesses and the weight to be accorded conflicting evidence are for the trial court, and this Court will not interfere with such determinations as long as there is any evidence to support them.” (Citation omitted.) Coile v. State, 311 Ga. App. 537, 537-538 (716 SE2d 527) (2011).

In this case, the only witness on the issue of value was the victim. The victim testified that the stolen property consisted of a Nook Color e-reader, which she purchased new approximately four months before the theft, along with five e-books stored on the e-reader, a leather case, a memory card, and earphones, at a retail total of $408. All items were in “excellent” or “great” condition when stolen. In calculating the amount of the restitution award, the trial court acknowledged that electronics equipment “depreciates and unfortunately [the court] cannot give [a victim] replacement cost” but only present fair market value. “[T]aking into account [the price of] everything and then kind of cutting it down a little because I think that’s the fair thing to do[,]” the trial court ordered R. H. to pay the victim $250 as restitution.

The State maintains that the trial court was authorized to determine the fair market value because there was evidence as to both the purchase price and the current condition of the property. As we have held, however, OCGA § 17-14-9 does not permit a trial judge to set the amount of restitution by approximation but requires that the amount be based on proper opinion evidence of fair market value. Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988).

The value of stolen property can be established by one having knowledge of the age and condition of the subject property and some knowledge, experience, or familiarity of [the fair market value of] such property. . . . Such proof is routinely required in civil cases. Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property or similar property[,] and [the witness] must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.

(Citation, punctuation and footnotes omitted.) Jackson v. State, 250 Ga. App. 617, 619 (552 SE2d 546) (2001). Thus, the State may prove fair market value by producing “a witness, including the victim of the theft, who is familiar with the stolen items and has a fact-supported opinion as to their value.” Id. In Jackson, as in this case, the trial judge stated that, in addition to retail price or replacement cost, he gave some consideration to the age of stolen electronics equipment (a car CD player) and what the depreciated value might be, but we vacated the restitution order because the State had failed to offer any fact-supported opinion evidence of “the fair market value of [the stolen property], the condition of the items, or an appropriate method of discounting the items from their replacement value to their fair market value.” Id. Likewise, because it is

apparent [in this case] that the amount of restitution was set by approximation rather than by a proper opinion of the value of the items damaged[,] ... we are constrained to vacate that portion of the trial court’s judgment setting the amount of restitution, and remand this case to the trial court for the amount of restitution to be set properly after hearing competent evidence.

Lovell v. State, 189 Ga. App. at 313 (3).

In reaching this result, we acknowledge that, for items that are unique or are otherwise “not readily available for repurchasing,” the State’s burden in proving fair market value may be “extraordinarily difficult, if not impossible, to meet.” Jackson v. State, 250 Ga. App. at 621-622 (Mikell, J., concurring specially). We, too, are concerned that “hypertechnical” rules for proving restitution may frustrate the salutary purposes of restitution in compensating victims and reducing straight confinement for nonviolent offenders. See id. The State’s position that, for property for which there is no “Kelley Blue Book” equivalent, “the fairest way to establish value is to provide the judge with as much information as possible (for example, purchase price, age of the item, and condition) and allow the trial judge to impartially assign value, as he did here[,]” is not unreasonable. As we stated in Jackson, however, this Court lacks the authority to rewrite the statutes that establish the parameters of restitution. Id. at 620.

Judgment vacated and case remanded.

Dillard, J., concurs. Phipps, P. J., concurs in judgment only.

Decided June 20, 2012.

Randee J. Waldman, for appellant.

Robert D. James, Jr., District Attorney, Diana V. Kovach, Cynthia M. Zurawsky, Assistant District Attorneys, for appellee.

       We note that the State does not hear the same burden of producing evidence when a defendant stipulates as to the amount of the victim’s damages, as may occur in the case of a negotiated guilty plea.

       Cf. Fewox v. State, 243 Ga. App. 651, 652 (534 SE2d 121) (2000) (The State carried its burden of proving the fair market value of a collection of stolen CDs where the victim calculated an average per disc based on their resale values.); Sutton v. State, 190 Ga. App. 56, 57 (1) (378 SE2d 491) (1989) (The State carried its burden of proving fair market value of a stolen truck where an employee of the victim’s insurer testified that the value assigned to the stolen vehicle was based upon a consideration of the fair market value of a truck of comparable age and condition, utilizing a survey predicated on representative samples.).