author: Blackwell, Judge.

text:
    A11A0309, A11A0310.
    NEWTON v. GOLDEN GROVE PECAN FARM et al. (two cases).
    (711 SE2d 351)
   Blackwell, Judge.

Following a hearing on August 2, 2010, the court below adjudged Salina Newton, a court-appointed receiver, guilty of criminal contempt, a judgment based on findings that Newton, several months before the August hearing, exercised her authority as receiver in a way that was contrary to the known directions of the court and that she and her lawyer, in the course of the August 2 proceedings, engaged in contemptuous conduct. Newton appeals from this judgment of contempt. With respect to the finding of contempt based on the way in which Newton performed her duties as receiver before the August 2 hearing, we conclude that the court below was required to give Newton fair notice and a reasonable opportunity to prepare a defense before it could try her for such contempt. Because the court did not do so, we must vacate the judgment of contempt to the extent it is based on anything that occurred before August 2. As to the finding of contempt based on conduct occurring in the course of the August 2 proceedings, we conclude that, although the court below was entitled to adjudicate any such contempt summarily and without advance notice, there is nothing in the record to sustain the finding that Newton or her lawyer did or said anything contemptuous. Accordingly, we reverse the judgment of contempt to the extent it is based on anything that occurred at the August 2 hearing.

Pursuant to the forfeiture provisions of the Georgia Racketeer Influenced and Corrupt Organizations Act, OCGA § 16-14-7, prosecutors commenced civil proceedings in September 2009 to forfeit certain properties owned by Michael K. and Phyllis M. Bleckley, which were located in Stewart and Webster Counties. In their civil filings, the prosecutors alleged that the Bleckleys obtained approximately $3.4 million from investors by means of fraud and then used the money to purchase the properties that are the subject of the forfeiture proceedings. The prosecutors also asked the court below to appoint a receiver for these properties while the forfeiture proceedings were pending, and the court below agreed, appointing Newton. Under the terms of the receivership order, Newton was authorized to take possession and control of the properties in Stewart and Webster Counties, which included two pecan orchards, a funeral home, and several automobiles. Newton also was expressly authorized to, if appropriate, “file for relief and protection under the Federal Bankruptcy Code on behalf of [the properties].”

After Newton was appointed as receiver, Central Bank of Georgia, which claimed to have a valid security interest in some of the properties, asked the court below for a “status hearing,” and the court convened such a hearing on April 13, 2010. At this status hearing, the court below apparently gave some direction about the receivership — the alleged disregard of which is the basis for some of the contempt findings — but we do not know exactly what was said at this hearing because it was not transcribed. We do know that Newton attended the April 13 hearing, as did her lawyers, lawyers representing Central Bank and the Bleckleys, a prosecuting attorney, a police detective, and a lawyer representing the alleged victims of the investment fraud that gave rise to the forfeiture proceedings. When, several months later, the court below tried to ascertain what had occurred at the April 13 hearing, these attendees had varying recollections of what had transpired, some recalling that the court indicated on April 13 that it intended to dissolve the receivership altogether, and others recalling that the court indicated that it would modify the receivership by removing certain properties from it. The court itself recalled that it had dissolved the receivership at the April 13 hearing or at least announced its intent to do so. In any event, no written order followed the April 13 hearing that dissolved or modified the receivership.

On April 30, Newton filed several petitions under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Middle District of Georgia, and the various properties of the Bleck-leys that originally had been put into receivership, both in Stewart and Webster Counties and elsewhere, became part of the bankruptcy estates. Newton ostensibly filed these bankruptcy petitions because she thought it was impractical and inefficient to manage the various properties in receivership under the supervision of superior courts in five different counties and because she thought that she could better manage the properties through a unified custodianship under the supervision of a single bankruptcy court. Newton apparently did not seek guidance from the court below at the April 13 hearing about a potential bankruptcy filing, nor did she do so at any other time before she filed the bankruptcy petitions on April 30. Instead, Newton relied exclusively on the authority to make such filings contained in the original order appointing her as receiver, which, as of April 30, had not been revoked by any written order of the court below.

On June 15, 2010, the Bleckleys sought an injunction from the court below that would prohibit Newton from disposing of certain properties that originally had been a part of the receivership, and on the same day, the court below entered a temporary restraining order that purported to enjoin Newton from doing just that. Newton responded to this order six days later, when she filed a plea of stay, in which she notified the court below of the earlier filing of the bankruptcy petitions and noted that, absent an order of the bankruptcy court allowing relief from the automatic stay, the court below was without jurisdiction to make orders concerning the property of a bankruptcy estate. Apparently in response to the plea of stay, the court below issued an order on June 24, nunc pro tunc to April 13, that purported to remove Newton as receiver.

Nearly a month later, the court below entered a notice, which was served on both Newton and her lawyer, that the court would hold a “status conference” on August 2, 2010. Nothing was mentioned in the notice about contempt, and nothing in the record indicates that the court below gave any other notice of the purpose of this “conference” prior to its commencement. But at some point during the “conference,” the court below raised the possibility that, in light of the direction that was given at the April 13 hearing, Newton might have acted contemptuously. The court then commenced summary contempt proceedings and found that, when Newton filed the bankruptcy petitions on April 30, she acted in defiance of the direction given at the April 13 hearing and thereby “ subvert [ed] the will of the [c]ourt.” The court also found that, by engaging counsel to prepare and file the bankruptcy petitions, Newton wasted the assets of the receivership. In addition, the court expressed concerns about arguments pressed at the August 2 hearing by the lawyer representing Newton, and it found that Newton, at the August 2 hearing, had continued to defy the direction given at the April 13 hearing.

The court adjudged Newton guilty of “direct, indirect, [and] summary contempt.” Neither at the hearing nor in its later written order did the court specifically identify the conduct that it found to be direct contempt, the conduct that it found to be indirect contempt, or the conduct it found to be “summary” contempt, but we nevertheless think that we understand in general terms the basis for each. Based on its adjudication of contempt, the court below sentenced Newton to pay a fine of $500 as to each of the companion cases and to be incarcerated for five days. The court also invited Central Bank, the Bleckleys, and any other party that might have been injured as a result of the purportedly contemptuous conduct to submit an affidavit detailing their attorney fees and costs, so that the court could require Newton to reimburse them. Newton filed notices of appeal as to the findings of contempt in each of the companion cases, and these consolidated appeals follow.

1. We turn first to whether the court below erred when it summarily adjudged Newton guilty of contempt based upon her conduct prior to the August 2 hearing, namely the preparation and filing of bankruptcy petitions in April. We note that there is some doubt about whether the contemptuous conduct of a court-appointed receiver in her capacity as receiver is properly characterized as direct or indirect contempt. If it properly is characterized as indirect contempt, as we think the court below characterized it, the law is clear that Newton was entitled to reasonable notice of the contempt charge before the commencement of the contempt hearing, so that she would have an adequate opportunity to prepare and present a defense to the contempt charge:

[WJhere the alleged contumacious acts are committed outside the court’s presence, the considerations justifying expedited procedures do not pertain. Thus, summary adjudication of indirect contempts is prohibited, and due process requires that a person who is tried for indirect criminal contempt is entitled to more normal adversary procedures. Among other things, he or she must be advised of charges, have a reasonable opportunity to respond to them, and be permitted the assistance of counsel and the right to call witnesses.

Ramirez v. State, 279 Ga. 13, 15 (2) (608 SE2d 645) (2005) (citations and punctuation omitted); see also Dowdy v. Palmour, 251 Ga. 135, 142 (2) (c) (304 SE2d 52) (1983) (holding that party sought to be held in contempt must be given “reasonable notice of the specific charges and [an] opportunity to be heard”). Here, the notice of hearing indicated only that the court intended to conduct a “status conference” on August 2, and no mention was made of contempt until the hearing was underway. See note 6, supra. Newton did not have time to employ a lawyer specifically to defend her against the contempt charges, to discuss the case with such a lawyer, or to consult with a lawyer about witnesses or evidence that might be presented in her defense. She timely objected to the absence of advance notice and her resulting inability to adequately prepare a defense. As a result, we cannot conclude that what originated as a “status conference” and developed into a summary contempt hearing complied with due process. See Ramirez, 279 Ga. at 16 (3).

Even if the preparation and filing of the bankruptcy petitions by the receiver might be more properly characterized as direct contempt, we still think that the court below was not entitled to adjudicate it summarily and without advance notice. Although a direct contempt often may be addressed summarily, that is so only because, “[w]here misconduct occurs in open court, the affront to the court’s dignity is more widely observed, justifying summary vindication.” Ramirez, 279 Ga. at 15 (2) (citation and punctuation omitted). That is, summary adjudication is warranted when a contempt “threaten[s] a court’s immediate ability to conduct its proceedings.” Id. at 16 (3) (citations and punctuation omitted); see also Pounders v. Watson, 521 U. S. 982, 988 (117 SC 2359, 138 LE2d 976) (1997) (summary contempt exception to normal due process requirements applies only to conduct “actually observed by the court, and where immediate punishment is essential to prevent demoralization of the court’s authority before the public”) (citation and punctuation omitted). Here, the preparation and filing of bankruptcy petitions posed no such threat because the court did not adjudicate the alleged contempt until more than three months after it occurred and approximately two-and-a-half months after the court had notice of it as a result of Newton filing a plea of stay in which she represented that she had filed the bankruptcy petitions.

In these circumstances, even if the alleged contempt might be characterized as direct, there was no compelling interest in summary adjudication. Absent a strong interest in summary adjudication, we conclude that Newton was entitled to “more normal adversary procedures,” including reasonable notice and a reasonable opportunity to prepare a defense. See Ramirez, 279 Ga. at 15 (2). We must, therefore, vacate the judgment below to the extent it is based on a finding of contemptuous conduct before the August 2 hearing, and we remand for further proceedings consistent with this opinion.

2. We consider next whether the trial court erred when it summarily adjudged Newton guilty of direct contempt based on something that she or her lawyer said or did during the August 2 “status conference.” If Newton herself did anything contemptuous during these proceedings that obstructed the proceedings and impaired their integrity, we harbor no doubt that it was proper for the court below to adjudicate the direct contempt summarily. As indicated in Division 1, supra, where contemptuous conduct occurs in open court,

a trial court has the power, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing. This summary power is authorized where contumacious conduct threatens a court’s immediate ability to conduct its proceedings, such as where a witness refuses to testify, or a party disrupts the court. Direct contempts in the presence of the court traditionally have been subject to summary adjudication, to maintain order in the courtroom and the integrity of the trial process in the face of an actual obstruction of justice.

Ramirez, 279 Ga. at 14 (2) (citations and punctuation omitted).

With these principles in mind, we have parsed the record of the August 2 hearing, in search of some conduct that might properly form the basis for a summary finding of direct contempt, but we can find none. Indeed, the transcript of the August 2 proceedings indicates that Newton herself said nothing at all at the hearing, except to speak her name when the court asked her to identify herself for the record. There is no indication that she spoke her name in a disrespectful manner or that she personally did anything else during the hearing that might have tended to show disrespect to the court, that adversely affected the integrity of the proceedings, or that impaired the ability of the court to conduct them. In short, we find no indication of anything that Newton herself said or did in the August 2 hearing that might even arguably support a finding of direct contempt.

Consequently, and in light of the court below’s comments about the arguments made by Newton’s lawyer, we think that the finding of direct contempt must be based on something that Newton’s lawyer did or said at the August 2 hearing. And we think the court below most likely based its finding of direct contempt on the lawyer’s argument that Newton was authorized after the April 13 hearing to file bankruptcy petitions concerning the properties that originally had been made part of the receivership because the court, even if it indicated an intent to dissolve or modify the receivership at the April 13 hearing, had not entered a written order to that effect. Because the record contains no indication that the argument was made in an improper, disrespectful, or disruptive manner, we also conclude that the finding of direct contempt must be based on the substance of the argument. As a preliminary matter, we doubt seriously that the substance of legal arguments that a lawyer offers during a hearing on behalf of his client properly can form a basis for adjudging the client guilty of criminal contempt, at least in the absence of evidence, of which there is none here, that the client knew the arguments to be baseless, but directed the lawyer to make them anyway. Even assuming that the substance of the legal arguments of counsel could properly form the basis in some case for a finding of contempt on the part of the client, however, we do not think the substance of the argument made by Newton’s lawyer can sustain the finding of direct contempt.

Our consideration of this issue is informed by In re Jefferson, 283 Ga. 216, 220 (657 SE2d 830) (2008), in which our Supreme Court held that an attorney may be held in contempt for statements made during courtroom proceedings only if the court finds beyond a reasonable doubt

(1) that the attorney’s statements and attendant conduct either actually interfered with or posed an imminent threat of interfering with the administration of justice and (2) that the attorney knew or should have known that the statements and attendant conduct exceeded the outermost bounds of permissible advocacy.

Applying this principle to the circumstances of this case, although the court below might have seen no merit in the argument that Newton’s filing of the bankruptcy petitions on April 30 was proper, nothing in the record suggests that this argument interfered with, or was likely to interfere with, the integrity of the proceedings or the capacity of the court to administer justice. Nor does the record indicate that Newton or her lawyer had a reason to think that the argument — even if it lacked merit, something about which we need not, and do not, decide — exceeded the outermost bounds of permissible advocacy. As discussed in note 3, supra, there was disagreement amongst those present at the April 13 hearing about what action the court had taken, or had announced its intention of taking, at that hearing. Moreover, the court below specifically invited the argument by asking Newton’s lawyer, who described himself as her “bankruptcy counsel” whether he thought Newton was authorized to file the bankruptcy petitions. As a result, the substance of the legal arguments made by her lawyer at the August 2 hearing cannot sustain the finding of direct contempt. There being nothing else in the record to sustain the finding, we reverse the judgment below to the extent it is based on a finding of contemptuous conduct by Newton or her lawyer at the August 2 hearing.

3. Newton requests that, if she is retried for contempt based on her actions prior to the August 2 “status conference,” her case be assigned to another judge. We note that the issue of contempt involves a dispute about what happened at the April 13 hearing, something about which the record is silent because the hearing was not recorded, and about which the persons present, including the judge, now have divergent recollections. Consequently, we think it would be better for another judge to conduct any contempt proceedings on remand. See Dowdy, 251 Ga. at 143 (3); see also In re Crane, 253 Ga. 667, 668 (1) (324 SE2d 443) (1985) (impartiality of judge “might reasonably be questioned by reason of his knowledge that he was likely to be a material witness in the proceeding”). We order, therefore, that this case be reassigned for the purpose of any further contempt proceedings against Newton.

Decided June 3, 2011.

Day & Crowley, Bobby L. Scott, Christopher J. McFadden, for appellant.

Page, Scrantom, Sprouse, Tucker & Ford, William L. Tucker, Kirsten C. Stevenson, Gardner, Willis, Sweat & Handelman, Mark L. Pickett, Langley & Lee, Lauren M. Brock, John T. Martin, Frank K. Martin, Justin R. Arnold, Jay P. Wells, for appellees.

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

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

       Newton had been appointed receiver in one case by the Superior Court of Stewart County and in a companion case by the Superior Court of Webster County. Each county is a part of the Southwestern Judicial Circuit. On August 2, the court below was sitting as the superior court of both counties, and the court entered an order of contempt in each of the companion cases. These orders are identical, both orders are based on the same underlying conduct, and Newton appeals from both orders. We consolidated her appeals from these orders, and for the ease of our discussion, we refer herein to the “court below” and the “contempt order,” as if there were only one of each. By these references, however, we mean to refer to the superior courts of both counties and to the orders of each court. There is no reason in this appeal to distinguish between the two courts and the two identical contempt orders.

       Prosecutors also commenced proceedings in Meriwether, Troup, and Marion Counties to forfeit other properties owned by the Bleckleys, and Newton also was appointed as receiver by superior courts of those counties.

       Lawyers for Central Bank and the Bleckleys, for instance, recalled that the court dissolved the receiverships at the April 13 hearing or at least indicated its intent to do so, but the prosecuting attorney, the police detective, lawyers for Newton, and a lawyer for the alleged victims recalled that the court indicated its intent to remove certain properties from receivership, but otherwise left the receivership intact.

       Nunc pro tunc, the literal translation of which is “now for then,” signifies an order that is entered at a later date to formalize something that occurred or that was directed on, and is effective as of, an earlier date. See Black’s Law Dictionary at 1069 (6th ed. 1990).

       Newton asserts in her brief that the court below erred in issuing the June 24 order, but Newton does not mention the removal order in her notices of appeal, nor does the trial court reference the June 24 order in its later finding that Newton acted in contempt of court. Nevertheless, we note that, although the court below indisputably had authority to remove its receiver prior to the filing of bankruptcy petitions on April 30, the bankruptcy filing effectively converted any receivership to a custodianship, which then was under the exclusive jurisdiction of the bankruptcy court. Pimper v. State of Ga., 274 Ga. 624, 625-626 (555 SE2d 459) (2001). To the extent that any order entered after the commencement of bankruptcy proceedings was intended to affect the custody, control, possession, or disposition of any property that then was a part of a bankruptcy estate and, therefore, subject to the automatic stay, the court below exceeded its authority, and the order would be void. Id.

       The first mention of contempt that we find in the record is at page 54 of the transcript of the August 2 proceedings, when the court below said:
      And — and I think it’s pretty clear, if an order — if the Court’s order of April 13th had been entered as directed by the Court, and as the receiver — my receiver — was aware of that order and she contradicted that order by subverting the wishes of the Court by going into a bankruptcy to prevent the jurisdiction of this Court — and I don’t know that it necessarily did — then I think that might very well be a contemptuous act.

       A court usually is authorized to summarily adjudicate contempt only in cases of direct contempt, Ramirez v. State, 279 Ga. 13, 14 (2) (608 SE2d 645) (2005), so we understand the references by the court below to “direct” and “summary” contempt to refer to the same thing. Direct contempt is generally understood to mean contempt in the presence of the court. Id. Indirect contempt, on the other hand, is generally understood to mean contemptuous conduct occurring outside the presence of the court. Id. Accordingly, we understand the references to “summary” and “direct” contempt to refer to conduct at the August 2 hearing, and we understand the reference to “indirect” contempt to refer to earlier conduct that occurred outside the courtroom.

       There is some authority for the proposition that anything contemptuous that a court-appointed receiver does in her capacity as a receiver might properly be characterized as a direct contempt since the official acts of one who draws his authority from the court are, in a sense, done in the presence of the court. See Evans v. White, 178 Ga. 262, 263 (172 SE 913) (1934). But we think the court below did not characterize the conduct occurring before August 2 and outside the courtroom as direct contempt because, if it had, we see nothing else that even arguably might form a basis for the finding of indirect contempt. Accordingly, we understand that actions taken by Newton as receiver — but prior to August 2 and outside the courtroom — were the basis for the finding of indirect contempt in the court below. For reasons explained herein, we need not resolve definitively whether the conduct of Newton before August 2 is properly characterized as direct or indirect contempt.

       While Newton was represented by counsel at the “status conference,” her lawyer acknowledged to the court below that he was a bankruptcy lawyer and that he would prefer to defer legal questions related to the contempt charge to lawyers who had experience in that area.

       The court below noted in its written order finding Newton in contempt that Newton, in open court on August 2, “continued to defy the Court’s ruling that she had been removed as receiver” and “continued to defy the Court’s ruling that, at a minimum, [certain] real property. . . had been removed from the receivership.” To be sure, we have parsed the transcript of the August 2 hearing and discern nothing else that might properly have formed the basis for a finding that Newton committed direct contempt at the hearing.

       The Supreme Court also identified some specific factors that a trial court properly may consider in assessing statements made in court by a lawyer and whether they amount to contempt: (1) the extent to which the lawyer was put on notice, prior to a contempt citation, that continuing to make the offending statements would constitute contempt; (2) the likely impact of the offending statements on the deliberations of the finder of fact; (3) whether the making of the offending statements were an isolated incident or reflected a broader pattern of behavior; (4) the significance of the particular subject of the statements in the context of the case as a whole, as well as the relative gravity of the case; and (5) the extent, if any, to which the trial court provoked the offending statements with its own conduct. Id.

       Given our holdings in Divisions 1 and 2, it is not necessary for us to reach the other claims of error that Newton asserts on appeal.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A11A0405.
    RICHARDSON v. PHILLIPS.
    (711 SE2d 358)
   McFadden, Judge.

Bobby E. Richardson, Sr., a resident of Miller County, petitioned to remove Miller County commissioner Frankie C. Phillips from office for alleged illegal and unethical conduct. After the parties filed cross-motions for summary judgment, the trial court entered judgment for Phillips. Richardson appeals. Because the record shows that no illegal or unethical conduct occurred, we affirm.

This is the second time this case has been before us. See Richardson v. Phillips, 302 Ga. App. 305 (690 SE2d 918) (2010). The facts are detailed in our prior opinion, and we will not repeat them all here. Briefly, however, the evidence shows that in 1995, before her election to the county commission, Phillips purchased a building on the Miller County courthouse square. The seller, Hilda J. Grow, financed the transaction. As part of the acquisition, Phillips gave Grow a promissory note for $42,000, as well as a deed to secure debt. Pursuant to the note, Phillips agreed to pay Grow $5,367 per year for 15 years. The note also subjected Phillips to a prepayment penalty if she paid off the debt before July 1, 2005. Id. at 305-306.

Phillips was elected to the Miller County Board of Commissioners in 1996. Four years later, she decided to sell the building to an entity that, in turn, planned to gift it to the County. That sale is at the crux of this dispute.

As we noted in our prior opinion, “[a] complex, multi-party transaction was structured under which title to the Property ultimately was to be conveyed to Miller County so that the Property could be used as a county office building.” Richardson, supra at 306. The deal involved not only Phillips and the County, but Union Investment, Inc. and the Ruth T. Jinks Foundation, Inc., two corporations that managed the estate of a local family. Phillips sold the property to Union; which agreed to assume and pay off Phillips’s outstanding indebtedness to Grow. Union then leased the property to the County. Although the County was obligated under the lease to make yearly payments of $5,367, the Jinks Foundation donated the required funds to the County prior to each payment. In July 2005, when the original prepayment penalty was no longer at issue, the Foundation donated to the County the amount needed to pay off the promissory note to Grow. Union then deeded the property to Miller County as a gift. See id. at 307. Ultimately,

[t]he transaction was structured with the intent and purpose that the Property be deeded to Miller County without the use of any taxpayer funds, but in a manner that would compensate Phillips for the Property, would avoid having to pay the prepayment penalty to Grow, and would have tax advantages for the Jinks family estate.

Id. at 306.

Although Miller County obtained title to the property as a gift, Richardson filed the instant action in 2007, asserting that Phillips unethically and illegally transacted business with the County while she was a county commissioner. Richardson sought an order removing Phillips from office, as well as other declaratory relief. Following cross-motions for summary judgment, the trial court found that Richardson’s claims were moot because the transaction had been completed and the County owned title to the property free and clear of any debt. It thus granted summary judgment to Phillips on all claims.

Richardson appealed, giving rise to our first opinion in this case. We agreed with the trial court that Richardson’s declaratory judgment claims should be dismissed. See Richardson, supra at 309-310 (1). But we refused to find that the completed transaction mooted Richardson’s effort to remove Phillips from office. Id. at 310-311 (2). We thus vacated that portion of the summary judgment order and remanded the case for further proceedings on the removal claim. Id. at 311.

On remand, the trial court considered the merits of the parties’ summary judgment arguments with respect to removal. Following a hearing, the court once again granted summary judgment to Phillips. This appeal followed.

In support of removal, Richardson argues that Phillips violated the Local Act creating the Miller County Board of Commissioners. See Ga. L. 1983, pp. 4594, 4603, § 14 (the “Local Act”). Pursuant to Section 14 of that Act:

No member of the board . . . shall be financially interested directly or indirectly in any contract to which the county is a party, either as a principal, surety, or otherwise; nor shall such member of the board . . . purchase from or sell to the county any real or personal property, goods, or services. Any contracts made in violation of any of the foregoing provisions shall be illegal and the person who violates this section shall be removed from office upon proper proceedings instituted by any taxpayer of the county in accordance with the provisions of Code Section 36-1-14 of the OCGA, relating to the purchase of goods or property by interested county officers with county funds.

Id.

Phillips had an indirect financial interest in this transaction. Although Union agreed to assume her obligations to Grow, Grow “did not sign or otherwise agree to the Assumption Agreement, and it is undisputed that Phillips remained liable on the original promissory note.” Richardson, supra at 306. Continued and timely payments under the note — including through the County’s lease — were important to Phillips.

Based on this indirect financial interest, Richardson argues that Section 14 of the Local Act mandates Phillips’s removal. As noted by Phillips, however, Section 14 references OCGA § 36-1-14, which also addresses the removal of county government officials. That Code section prohibits a county official from purchasing goods or property for public or county purposes

from any person or partnership of which he is a member or by whom he is employed, unless by sanction of the majority of the members of the county governing authority or unless it is made clearly to appear that such individual [or] partnership . . . offers and will sell the goods or property as cheaply as or cheaper than the same can be bought elsewhere.

OCGA § 36-1-14 (a).

Reading OCGA § 36-1-14 (a) together with the Local Act, Phillips contends that a commissioner who engages in a County-involved real estate transaction should not be removed if the County receives property at no cost. In this case, the County was gifted a building on the courthouse square at no cost and free of any debt. Phillips certainly benefitted from the transaction. But so did the County, undermining the appearance of improper self-dealing.

Richardson, on the other hand, argues that the Local Act’s reference to OCGA § 36-1-14 relates only to the technical process for removal contained in OCGA § 36-1-14 (b), not the basis for removal described in subsection (a). See OCGA § 36-1-14 (b) (“Any county governing authority, any member thereof, or any county officer violating subsection (a) of this Code section shall be removed from office upon proper proceedings instituted by any taxpayer in the county. Any contract made in violation of subsection (a) of this Code section shall be illegal.”). He further argues that, for purposes of Miller County, the Local Act’s strict removal requirements “pro tanto repeal[ed]” the less stringent standard in OCGA § 36-1-14 (a).

To support these arguments, Richardson cites Moore v. Whaley, 189 Ga. 647, 649 (1) (7 SE2d 394) (1940), which explains that the legislature may “pass separate and distinct acts for any counties which require county commissioners, and it is not necessary that these acts ... be uniform in their operation in all such counties.” The legislature may also use local acts to amend or supersede general statutes that might otherwise apply to a county commission. Id.; SCA Svcs. of Ga. v. Fulton County, 238 Ga. 154, 156 (231 SE2d 774) (1977). According to Richardson, the strict removal language in Section 14 supersedes any provision in OCGA § 36-1-14 (a) that might offer Phillips relief.

A narrow interpretation of the Local Act, however, is not necessarily proper. Ultimately, we must determine the General Assembly’s intent in enacting the legislation. See Moore, supra at 650 (2). Such intent controls over the literal meaning of the terms used. See Randolph County v. Bantz, 270 Ga. 66, 67 (508 SE2d 169) (1998). And “[o]ur system of law is not to be construed by single Code sections or single provisions of the law; the entire system must be construed as a whole to determine the intent and purpose of the law as applied to each particular case or state of facts.” (Punctuation omitted.) Weldon v. Bd. of Commrs. of Monroe County, 212 Ga. App. 885, 887 (2) (443 SE2d 513) (1994) (applying rules of statutory construction to interpretation of local law and general statute). Legislation relating to the same subject matter should be “construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” (Punctuation omitted.) Id. See also Morgan v. Woodard, 253 Ga. 751, 752 (325 SE2d 369) (1985) (local act and general statute that are “interwoven” should be considered “in pari materia”).

Section 14 of the Local Act specifies that any removal effort proceed pursuant to OCGA § 36-1-14. The legislature, therefore, clearly intended that the two pieces of legislation be read together. Compare Moore, supra at 651 (local act regarding removal of county commissioners did not mention general removal statute, and the two acts offered different bases for removal; the local act, therefore, pro tanto repealed general statute). Although Richardson contends that we should only construe the Local Act in conjunction with OCGA § 36-1-14 (b), nothing in Section 14 requires this result. On the contrary, Section 14 references the provisions (plural) of OCGA § 36-1-14. Those provisions establish a process for removing county officials who engage in prohibited “interested transactions.” They also exempt from the prohibition any transaction through which a county acquires property “as cheaply as or cheaper than the same can be bought elsewhere.” OCGA § 36-1-14 (a).

The legislature could have drafted the Local Act in a manner that referenced only the removal procedures in OCGA § 36-1-14 (b). But it did not. The local legislation cites to the entire statute, which includes the exemption at issue here. This broad reference is instructive. See Gavin v. State, 292 Ga. App. 402, 405 (664 SE2d 797) (2008) (“Because the legislature could have expressly created the exception urged by [the appellant], we find it instructive that it did not.”).

Moreover, the Local Act already includes the substantive language from OCGA § 36-1-14 (b). Like subsection (b), the Local Act deems any contract made in violation of its provisions illegal. Both pieces of legislation also state that individuals who engage in illegal transactions “shall be removed from office upon proper proceedings instituted by any taxpayer” in the county. OCGA § 36-1-14 (b); Ga. L. 1983, pp. 4594, 4603, § 14. The Local Act then directs that any removal proceed in accordance with OCGA § 36-1-14.

“Under the rules of statutory construction, we must construe all related statutes together, give meaning to each part of the statute, and avoid constructions which result in surplusage and meaningless language.” (Citation and punctuation omitted.) Velasquez v. State, 276 Ga. App. 527, 530-531 (2) (623 SE2d 721) (2005). If, as Richardson contends, the General Assembly only intended to import OCGA § 36-1-14 (b) into the local legislation, the procedural language already appearing in the Local Act would be mere surplusage. Conversely, since the procedural language from OCGA § 36-1-14 (b) is in the Local Act, Richardson’s reading makes the Local Act’s reference to OCGA § 36-1-14 superfluous.

Decided June 3, 2011

William D. Hall, David A. Webster, for appellant.

O’Quinn & Cronin, Michael A. O’Quinn, for appellee.

Richardson asks us to construe the Local Act in a way that renders much of its language meaningless. This we cannot do. See Velasquez, supra. The trial court properly harmonized the local and general statutory legislation to find that Phillips’s actions — which benefitted the County at no cost to taxpayers — do not require her removal. Accordingly, we affirm.

Judgment affirmed.

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


author: MCFADDEN, Judge.

text:
    A11A0277.
    THOMAS v. BANK OF AMERICA CORPORATION et al.
    (711 SE2d 371)
   MCFADDEN, Judge.

Rosa Thomas appeals the trial court’s order dismissing her putative class action against Bank of America Corporation and FLA Card Services, N.A. Because we agree with the trial court that federal banking law preempts Thomas’s claims, we affirm.

We review de novo the grant of a motion to dismiss for failure to state a claim and construe the complaint’s factual allegations in favor of the plaintiff. Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 284 Ga. App. 387 (643 SE2d 864) (2007). Viewed in this light, the record shows that the defendants are national banking corporations. In 2002, the federal Office of the Comptroller of the Currency adopted through notice-and-comment rulemaking a regulation authorizing national banks to issue debt cancellation contracts and debt suspension agreements. 12 CFR §§ 37.1 through 37.8; 67 Fed. Reg. 58962 (Sept. 19, 2002).

A [debt cancellation contract] is a loan term or a contractual arrangement modifying loan terms linked to a bank’s extension of credit, under which the bank agrees to cancel all or part of a customer’s obligation to repay an extension of credit from that bank upon the occurrence of a specified event. A [debt suspension agreement] is a loan term or a contractual arrangement modifying loan terms linked to a bank’s extension of credit, under which the bank agrees to suspend all or part of a customer’s obligation to repay an extension of credit from that bank upon the occurrence of a specified event.

67 Fed. Reg. at 58962. Under this authority, the defendants created a debt cancellation product called “Credit Protection Plus.”

For 95 cents per $100 of outstanding balance on a credit card account, Credit Protection Plus provides for the cancellation of the account balance or suspension of the minimum payment due if certain specified events — such as job loss, illness, or death — occur. Being employed is a requirement for some of the Credit Protection Plus components. But because the components are bundled, a customer who purchases Credit Protection Plus must purchase all components, including those components for which she is ineligible.

Thomas contends that she purchased Credit Protection Plus on July 9, 2007, when she received a telephone solicitation. She further contends that the scripted telephone solicitation did not inform her that she was ineligible for most components of Credit Protection Plus. Thomas filed this action, alleging: (1) that the defendants committed insurance fraud by falsely representing that all of the bundled components of Credit Protection Plus would be available to her; (2) that the defendants violated OCGA § 33-31-7 of the Georgia Insurance Code by failing to quote the premium rates for the bundled components separately so that she could purchase them separately; (3) that the defendants violated OCGA § 33-31-9 (a) of the Georgia Insurance Code by charging premiums that exceeded the premium rates on file with the Georgia Insurance Commissioner; (4) that the defendants violated the Georgia RICO Act; (5) that the defendants engaged in unfair and deceptive business practices by selling Thomas products for which she was not eligible; (6) that the defendants committed the tort of bad faith by failing to verify their customers’ eligibility for Credit Protection Plus and by failing to inform them if they were ineligible; and (7) that there was a partial failure of consideration since the defendants charged all customers — those eligible and those ineligible — the same price for Credit Protection Plus.

The trial court granted the defendants’ motion to dismiss Thomas’s action, finding, among other things, that federal banking law preempted all of Thomas’s claims. Thomas now appeals.

1. In McCulloch v. Maryland, 17 U. S. 316 (4 LE 579) (1819), the United States Supreme Court held that federal law prevails over state law with respect to national banking. In 1864, Congress enacted the National Bank Act, which granted nationally chartered banks certain enumerated powers and “all such incidental powers as shall be necessary to carry on the business of banking.” 12 USC § 24. See Watters v. Wachovia Bank, N.A., 550 U. S. 1, 10-11 (II) (A) (127 SC 1559, 167 LE2d 389) (2007). To prevent state regulation from impairing the national banking system, Congress provided that “[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law.” 12 USC § 484 (A). See Watters, supra at 14 (II) (A) (“Visitorial powers” include the power to inspect a bank’s books and to regulate its banking activities. 12 CFR § 7.4000 (a) (2).). “[GJrants of both enumerated and incidental ‘powers’ to national banks [are] grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law.” Barnett Bank &c. v. Nelson, 517 U. S. 25, 32 (II) (116 SC 1103, 134 LE2d 237) (1996).

Express preemption occurs when Congress, or a federal agency acting within the scope of its congressionally delegated authority, has explicitly indicated an intention to preempt state law in the text of a statute or regulation. See Fidelity Fed. Sav. & Loan Assn. v. de la Cuesta, 458 U. S. 141, 153-154 (II) (102 SC 3014, 73 LE2d 664) (1982). Field preemption occurs “when federal regulation in a legislative field is so pervasive that we can reasonably infer that Congress left no room for the states to supplement it.” Pace v. CSX Transp., 613 F3d 1066, 1068 (III) (11th Cir. 2010). “Such field preemption can occur when an agency, acting pursuant to its delegated authority, promulgates regulations that evidence a clear intent to occupy a specific field.” Wells Fargo Bank v. Boutris, 419 F3d 949, 966 (II) (D) (2) (9th Cir. 2005). And “[e]ven when Congress has neither expressly preempted state law nor occupied the field, state law is preempted when it actually conflicts with federal law.” Pace, supra at 1068 (III).

2. In ruling that Thomas’s state law claims are preempted by federal banking law, the trial court relied on 12 CFR § 37.1, which provides:

(a) Authority. A national bank is authorized to enter into debt cancellation contracts and debt suspension agreements and charge a fee therefor, in connection with extensions of credit that it makes, pursuant to 12 USC § 24 (Seventh).
(b) Purpose. This part sets forth the standards that apply to debt cancellation contracts and debt suspension agreements entered into by national banks. The purpose of these standards is to ensure that national banks offer and implement such contracts and agreements consistent with safe and sound banking practices, and subject to appropriate consumer protections.
(c) Scope. This part applies to debt cancellation contracts and debt suspension agreements entered into by national banks in connection with extensions of credit they make. National banks’ debt cancellation contracts and debt suspension agreements are governed by this part and applicable Federal law and regulations, and not by part 14 of this chapter or by State law.

That regulation — with its clear statement that debt cancellation and suspension agreements are governed by federal, not state, law — in conjunction with the statutory language that “[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law,” 12 USC § 484 (A), amounts to express preemption. See Fidelity Fed., supra at 153 (II). See also 67 Fed. Reg. 58962, 58964 (Sept. 19, 2002) (“This final rule, together with any other applicable requirements of Federal law and regulations, are intended to constitute the entire framework for uniform national standards for [debt cancellation contracts] and [debt suspension agreements] offered by national banks. Accordingly, the final rule states that [debt cancellation contracts] and [debt suspension agreements] are regulated pursuant to Federal standards . . . and not State law.”).

Further, as the defendants argue, the Comptroller of the Currency’s extensive framework of regulation indicates an intent to occupy fully the area of debt cancellation and suspension agreements, and therefore amounts to field preemption. Spinelli v. Capital One Bank, 265 FRD 598, 605 (IV) (C) (M.D. Fla. 2009) (“[T]he [Comptroller of the Currency’s] comprehensive scheme of regulation leaves no room for state law when it comes to Debt Agreements.”). The regulations authorize national banks to enter into debt cancellation contracts and debt suspension agreements (12 CFR § 37.1); prohibit certain practices, including misrepresentation (12 CFR § 37.3); provide the terms for refunds (12 CFR § 37.4); mandate disclosures (12 CFR § 37.6); and require national banks to obtain their customers’ written, affirmative election to purchase the product and written acknowledgment of receipt of the disclosures (12 CFR § 37.7).

In spite of the explicit dictate that debt cancellation contracts are not governed by state law, as well as the implicit federal intent to occupy the field, Thomas contends that states may regulate the rates charged for debt cancellation contracts because the federal regulatory scheme does not explicitly pronounce the rates banks may charge, and such state regulations do not interfere with any legitimate business activities of national banks. And, she argues, debt cancellation contracts are insurance, so the rates that banks charge for them are subject to regulation by the Georgia Insurance Commissioner.

As for Thomas’s second argument, the Comptroller of the Currency has explicitly stated that debt cancellation contracts and debt suspension agreements are banking products, not insurance. See 67 Fed. Reg. at 58962, 58975. In its explanation for adopting the regulation allowing national banks to issue debt cancellation contracts and debt suspension agreements, the Comptroller of the Currency wrote that its ruling was

not intended as a means for National Banks to invade the field of insurance. Rather, it is a recognition by this Office of a National Bank’s right to protect itself by the establishment and maintenance of appropriate reserves against anticipated losses in connection with its lending activities under 12 USC § 24. The necessity to maintain such reserves and to adjust its charges in relation to both reserves and the risk involved in a particular transaction has long been recognized as an essential part of the business of banking.

67 Fed. Reg. at 58963. Rejecting one commentator’s assertion that states have the authority to regulate debt cancellation contracts insurance, the Comptroller of the Currency stated that

[debt cancellation contracts] and [debt suspension agreements] are banking products authorized under 12 USC § 24 (Seventh). This final rule, together with any other applicable requirements of Federal law and regulations, are intended to constitute the entire framework for uniform national standards for [debt cancellation contracts] and [debt suspension agreements] offered by national banks. Accordingly, the final rule states that [debt cancellation contracts] and [debt suspension agreements] are regulated pursuant to Federal standards, including [12 CFR] part 37, and not State law.

Id. at 58964. None of the cases Thomas cites for the proposition that debt cancellation contracts are insurance involved national banks. E.g., Monk v. C. E. Osgood Co., 249 Mass. 473 (144 NE 371) (1924) (involving corporation in the business of selling household furniture, carpets and similar articles on installment plan); Justice v. Branch Banking &c. Co., Case No. 2:08-230 (2009 U.S. Dist. LEXIS 24668, 2009 WL 853993) (S.D. W. Va., decided March 24, 2009) (involving state chartered bank).

It is true, as Thomas contends, that the federal regulatory scheme does not explicitly set the rates banks may charge for debt cancellation contracts and debt suspension agreements. The Comptroller of the Currency has spoken on the issue, though. It has stated that “a regulatory approach that includes price controls as a primary component is not warranted” and that its “regulations reflect the fact that national banks may set fees subject to standards of prudent banking practices.” 67 Fed. Reg. at 58964. It is clear, therefore, that the Comptroller of the Currency has determined that debt cancellation contracts are not subject to state laws, including state insurance laws, and that banks may charge fees in accordance with prudent banking practices, regardless of state insurance law.

To the extent that the Comptroller of the Currency has determined not to specify the fees banks may set, its determination has preemptive effect because “[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then [a] pre-emptive inference can be drawn — not from federal inaction alone, but from inaction joined with action.” Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U. S. 495, 503 (II) (108 SC 1350, 99 LE2d 582) (1988). “Where such a decision not to regulate represents ... a considered determination that no regulation is appropriate, that choice preempts contrary state law imposing governing standards.” (Emphasis in original.) Wells Fargo, supra at 966 (II) (D) (2).

Thomas further argues that the 2010 enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act, PL 111-203 (2010), confirms her position that federal banking law does not preempt her claims based on Georgia consumer protection law. (The Dodd-Frank Act can be found at http://www.cftc.gov/ucm/groups/ public/@swaps/documents/file/hr4173_enrolledbill.pdf.) The provision of the Act on which she relies, Section 1044 (a), amends the National Banking Act to provide:

State consumer financial laws are preempted, only if—
(A) application of a State consumer financial law would have a discriminatory effect on national banks, in comparison with the effect of the law on a bank chartered by that State;
(B) in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner, et al., 517 U.S. 25 (1996), the State consumer financial law prevents or significantly interferes with the exercise by the national bank of its powers; and any preemption determination under this subparagraph may be made by a court, or by regulation or order of the Comptroller of the Currency on a case-by-case basis, in accordance with applicable law; or
(C) the State consumer financial law is preempted by a provision of Federal law other than this title.

We do not consider the effect of the Dodd-Frank Act. The Act does not apply to Thomas’s purchase of Credit Protection Plus because her purchase predates the Act. See Section 1043 (“This title . . . shall not be construed to alter or affect the applicability of any regulation, order, guidance, or interpretation prescribed, issued, and established by the Comptroller of the Currency . . . regarding the applicability of State law under Federal banking law to any contract entered into on or before the date of enactment of this Act. . . .”).

We must defer to a federal agency’s reasonable interpretation of a statute it is charged with administering. Chevron U.S.A. v. Natural Resources Defense Council, 467 U. S. 837, 844 (II) (104 SC 2778, 81 LE2d 694) (1984); Schneider v. Susquehanna Radio Corp., 260 Ga. App. 296, 299-300 (1) (581 SE2d 603) (2003). And the Comptroller of the Currency’s interpretation of the National Bank Act must be given “great weight”:

It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute. The Comptroller of the Currency is charged with the enforcement of banking laws to an extent that warrants the invocation of this principle with respect to his deliberative conclusions as to the meaning of these laws.

Clarke v. Securities Indus. Assn., 479 U. S. 388, 403-404 (III) (107 SC 750, 93 LE2d 757) (1987). Indeed, the Comptroller of the Currency’s judgments and regulations promulgated with the intention to preempt state law are subject to judicial review only to determine whether they are unreasonable, unauthorized or inconsistent with the underlying federal statute. Fidelity Fed., supra.

The superior court did not err by concluding that federal law preempts Thomas’s claims and that Credit Protection Plus is not insurance.

3. Because we have determined that federal banking law preempts all of Thomas’s claims, we do not reach her remaining enumerations of error.

Decided June 6, 2011

Hurt, Stolz & Cromwell, James W. Hurt, Jr., for appellant.

King & Spalding, Dwight J. Davis, Phyllis B. Sumner, Justin C. Jeffries, for appellees.

Judgment affirmed.

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


author: Ellington, Chief Judge.

text:
    A11A0355.
    STAIB v. THE STATE.
    (711 SE2d 362)
   Ellington, Chief Judge.

A Floyd County jury found Amanda Staib guilty beyond a reasonable doubt of two counts of cruelty to children in the second degree, OCGA § 16-5-70 (c), and two counts of contributing to the deprivation of a minor, OCGA § 16-12-1 (b) (3). She appeals from the denial of her motion for new trial, contending that the trial court erred in denying her motion to suppress evidence and erred in sentencing her. She also contends that the evidence was insufficient to support her convictions and that her convictions should have merged. For the following reasons, we affirm.

1. Staib argues that the trial court erred when it found that police officers were authorized to enter her home without a warrant and, consequently, erred in denying her motion to suppress evidence gathered subsequent to such entry.

Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005). So viewed, the record shows the following facts.

At approximately 6:15 a.m. on January 11, 2009, a Floyd County police officer received a call instructing her to report to the local hospital to investigate a domestic violence incident. When she arrived at the hospital, she interviewed Staib, who said that she and her husband had gotten into an altercation earlier that morning and that he had hit her several times in the head. The officer told Staib that she was going to get an arrest warrant for her husband and go to the couple’s home to arrest him for simple battery. The officer suggested to Staib that she should stay away from her home for her safety until her husband was arrested. Staib told the officer that her two small children, who were twenty months old and four years old, were in the home and that she did not want them to be left alone in the house. Staib asked the officer to call her if her husband was arrested so she could come to the house and get the children. The officer told Staib that she would call her when she went to the house to arrest her husband.

The officer obtained an arrest warrant for Staib’s husband and called Staib at approximately 10:45 a.m., shortly before arriving at her home to arrest her husband. At that time, the officer learned that Staib was at a friend’s house in Alabama, approximately one hour away from her home. Staib told the officer that she was going to come home and that she would call and ask her grandmother to go to the house and take care of the children until she got there. The officer told Staib that she would wait at the house until either Staib or a family member could pick up the children.

The officer and two other officers arrived at Staib’s home and knocked on the front door. Mr. Staib answered the door, and the officers asked him to step outside. Mr. Staib immediately responded that he knew why the officers were at his home. The officers arrested Mr. Staib pursuant to the warrant and placed him in handcuffs. The officers asked about the children, and Mr. Staib told them that the children were still asleep inside the house. The officers told Mr. Staib that his wife or someone else was coming to take care of the children. However, because no one had arrived yet to care for the children, and because the officers did not want to leave the children inside the house unattended until someone arrived, they told Mr. Staib that they should go inside the house while they waited. Mr. Staib said “okay,” and the officers followed him into the house.

Upon entering the house, the officers immediately observed extremely unsanitary conditions in the house and recognized that such conditions may constitute evidence of a crime. Consequently, as the officers located the children in the bedrooms and moved them to the front room, they took pictures of the children and of the conditions that were in plain view. While they were waiting for Staib to arrive, her husband told them that her grandmother lived nearby, so an officer contacted the grandmother; within minutes, the grandmother arrived at the house and immediately tried to clean up the house while she watched the children. When Staib arrived at the house, the officers arrested her for cruelty to children.

Prior to trial, Staib moved to suppress the photographs and other evidence obtained subsequent to the officers’ entry into her home, asserting that the officers’ warrantless entry was illegal, thus rendering the evidence inadmissible. The trial court conducted a hearing on Staib’s motion to suppress prior to trial. After hearing the above evidence, the court denied Staib’s motion to suppress, finding that Staib knew the officers were going to arrest her husband and, as a result, she had asked the officers not to leave her children alone in the house. Although Staib had said she was going to ask her grandmother to take care of the children, she did not tell the officers where the grandmother lived or how to contact her. The court found, therefore, that the officers were justified in entering the house to take care of the children and to make sure nothing harmed them, noting that it was just a safety issue and a matter of common sense, because “nobody in their right mind would leave [a twenty-month-old toddler and a four-year-old child] in a home and stand outside the door while [the toddler] is in a crib and might wake up. It’s just ridiculous to even think so.”

(a) Pretermitting whether Mr. Staib’s response of “okay” when the officers said they should enter the house constituted his consent to their entry, particularly when he was handcuffed and under arrest at the time, the officers’ entry was authorized by another exception to the warrant requirement: exigent circumstances.

It is axiomatic that the Fourth Amendment of the Constitution of the United States

usually prohibits police officers from entering a person’s home without the homeowner’s consent, absent a warrant allowing them to do so. An exception to the warrant requirement exists, however, where the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.

(Citations and punctuation omitted.) Love v. State, 290 Ga. App. 486, 487 (659 SE2d 835) (2008). Exigent circumstances may exist when a warrantless entry is necessary for the police

to preserve public order, to maintain the peace, and to protect lives, persons, property, health and morals. In these cases, police do not enter a residence for the purpose of arresting or seizing evidence against an occupant; rather, they enter in response to what they reasonably perceive as an emergency involving a threat to life or property.

(Citations and punctuation omitted.) Id. at 488.

Knowledge or the reasonable belief that minor children in a residence are without adult supervision is an exigent circumstance that authorizes police entry to help those believed to be in need of immediate aid. The temporary care of minor children left without adult supervision by police action requires police to care for the children until responsibility for their care and custody is undertaken by a responsible adult. Indeed, for law enforcement officers to leave minor children unattended after removing the person providing the children with adult supervision may violate the children’s right to due process.

(Citations omitted.) State v. Peterson, 273 Ga. 657, 659-660 (2) (543 SE2d 692) (2001).

Given the evidence presented in this case, the trial court was authorized to find that the children’s age, their undisputed inability to care for themselves, and the lack of adult supervision due to their mother’s absence and their father’s arrest constituted an exigent circumstance which authorized the officers’ entry into the residence for the purpose of temporarily supervising the children until a responsible adult arrived to relieve them. State v. Peterson, 273 Ga. at 660 (2).

(b) Staib claims, however, that, before the officers arrested her husband, they knew that the children’s grandmother lived nearby and was on her way to the house to take care of the children and, thus, they had no reason to enter the house. But this assertion is not supported by the evidence in the record, which shows that the officers specifically denied that they knew Staib ⅛ grandmother lived nearby until Mr. Staib told them (after he had been arrested and he and the officers had entered the house).

(c) Moreover, once the officers were legally in the house pursuant to the exigent circumstances, they were authorized to photograph items of potential evidentiary significance that were in plain view, specifically, the family’s living conditions. Lord v. State, 297 Ga. App. 88, 92 (1) (a) (676 SE2d 404) (2009); see State v. Peterson, 273 Ga. at 657-660 (1), (2) (A police officer was authorized to photograph and to seize items of evidence observed in plain view within the limited scope of the initial intrusion, even though the exigency that justified the warrantless entry no longer existed.).

In this case, the officers took photographs of the home’s interior as they moved through the house, looking for the children. They photographed the children in the conditions in which they were found before moving them to the front room so they could be supervised. Other than unlocking a door so that they could release the four-year-boy, G. S., from a bedroom, there is no evidence that the officers moved anything else or that they photographed anything in the house that was not in plain view. Under these circumstances, the photographs were legally seized and, thus, admissible at trial. State v. Peterson, 273 Ga. at 657-660 (1), (2); Lord v. State, 297 Ga. App. at 92 (1) (a).

Consequently, we find no error in the trial court’s denial of Staib’s motion to suppress.

2. Staib contends that there was insufficient evidence to support her convictions for cruelty to children in the second degree, arguing that the State failed to present evidence of the essential element of cruel and excessive mental pain.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

According to the officers, immediately upon entering Staib’s residence, they saw that the floor was completely covered in garbage, including empty beer cans, empty cases of beer, food containers and food waste, dirty diapers, feces, broken CDs and electronic equipment, and dirty laundry. While walking through the house looking for the children, the officers saw that there was garbage strewn throughout the entire house. In fact, one officer testified that there was not a single place one could stand in the house where one would not be standing in garbage, and another officer testified that, in his opinion, the house was not suitable for a human to live in. The officers testified that the entire house smelled strongly of urine, feces and ammonia, stated that the odor was “pretty horrible,” and compared the odor of the house to a “landfill” and “cat litter box.”

The officers found the 20-month-old girl, C. S., standing up in a crib in her parent’s bedroom at the end of a hallway. C. S. was not wearing a diaper, clothes or shoes and had urinated in her crib; there was also a large spot of feces on the crib’s mattress. The officers were unable to find any clean diapers to put on the toddler.

The officers found four-year-old G. S., who was only wearing shorts, locked in his bedroom, standing behind a door that was chained on the outside, far above his reach. While locked, the door only opened about two to four inches; even when the officers moved the chain to unlock the door, though, they were unable to open it more than two feet due to piles of garbage on the floor. Because G. S. was locked in his bedroom, he could not get to the bathroom and, thus, had urinated in his room. The mattress in the room was covered with stains, and the ammonia smell was so strong that, according to one officer, it would be difficult to stand in the room.

After the officers moved the children to the front room, both children started “foraging” through the garbage, repeatedly trying to eat food out of the trash bags on the floor. According to one of the officers, it looked as though the children had not been bathed in a year. After Staib’s grandmother arrived at the house, she was able to find a diaper for C. S. and some clothes for the children, but was unable to find any shoes for either child.

Based upon these observations, the officers contacted the Department of Family and Children Services (“DFCS”), and the officers and a DFCS caseworker determined that it was necessary to take protective custody of the children. The caseworker’s testimony describing the conditions of the house and the children was consistent with that of the officers, and she added that she had lived in third world countries almost all of her life but this was the worst house she had ever been in. The caseworker testified that the children were covered in dirt and “smelled like the house . . . not good at all.” Because neither child had on shoes or clothes appropriate for the January weather, she wrapped them in blankets before transporting them to the DFCS office. The caseworker noted that, unlike most children who are removed from their home by a caseworker they do not know, C. S. and G. S. did not scream and cry, but, instead, wanted to be picked up, were smiling and seemed happy to go with her. She added that, when she bathed them at the DFCS office, the children were “super excited to be in the bath tub.”

In addition to this evidence, the caseworker testified that, when she took the children into custody, four-year-old G. S. was unable to speak other than to say “momma,” and communicated through facial expressions, grunts and other noises. She added, though, that both children otherwise appeared to be “healthy.” A second caseworker confirmed that both children were unable to speak and were developmentally delayed when they were removed from their home. At the time of Staib’s trial, however, the children had been in DFCS custody for nine months, and G. S. was catching up developmentally and was able to speak in short sentences. Further, C. S. was potty-training, could follow directions, and could speak one and two-word phrases, actions which were typical for her age.

On appeal, Staib argues that the evidence was insufficient to show that the children had experienced “cruel and excessive mental pain” as a result of their living conditions, contending that the DFCS caseworker testified that the children appeared to be “healthy” when they were taken into custody and that the State failed to present any evidence of any statements, actions or observations of distress on the part of the children. Staib also argues that there was no evidence that the conditions of the house were unhealthy for the children, pointing out that the officers allowed the children to stay inside the house until they were taken into custody by DFCS. These arguments lack merit.

“What constitutes cruel or excessive physical or mental pain must be resolved by a jury.” (Citation omitted.) Alford v. State, 243 Ga. App. 212, 214 (3) (534 SE2d 81) (2000).

“Cruel” and “excessive” are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts “cruel” or “excessive” pain (in this instance, mental rather than physical pain). There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferences from that evidence, would prohibit the finding made by the jury.

(Citation and punctuation omitted.) Bunn v. State, 307 Ga. App. 381, 382-383 (1) (a) (705 SE2d 180) (2010).

Pretermitting whether the children were, in fact, physically healthy when taken into custody, there was more than sufficient evidence from which the jury could infer that the children had suffered cruel and excessive mental pain as a result of the patently unhealthy, filthy and dangerous conditions in which they were forced to live. As shown above, the State presented overwhelming evidence of the filthy and neglected conditions of the children; their significant developmental delays, including four-year-old G. S.’s inability to speak; C. S.’s confinement to a urine and feces-stained crib without a diaper, and the fact that G. S. was locked in a urine-soiled bedroom without access to a toilet; the children’s fervor to eat trash out of the garbage bags on the floor as soon as they were released from their respective enclosures; the oppressive and obnoxiously foul odors to which they were chronically exposed; and their obvious willingness — even happiness — to leave the house with a stranger. In addition, the State presented the testimony of the officers and the DFCS caseworker regarding their reactions when they were exposed even briefly to the offensive odors and the unsanitary conditions of the house.

Further, the fact that the officers did not instantly remove the children from the house, but kept them inside for an hour or so while the officers and the caseworker assessed the situation and made arrangements for them, does not negate the overwhelming evidence of the unhealthy conditions of the house. As noted above, the events at issue here took place in January, and there were no shoes or appropriate clothing in the house for the children to wear outside; in fact, they had to be wrapped in a blanket just to make the trip to the DFCS office.

Accordingly, we find that the evidence presented and all reasonable inferences from that evidence, when viewed in the light most favorable to the jury’s verdict, were sufficient to support the jury’s conclusion that the children suffered cruel and excessive mental pain, as alleged in the indictment, beyond a reasonable doubt. See Bunn v. State, 307 Ga. App. at 382-383 (1) (a); Alford v. State, 243 Ga. App. at 214 (3).

3. Staib contends that the trial court should have applied the rule of lenity and sentenced her for the misdemeanor convictions of contributing to the deprivation of a minor instead of for the felony charges of cruelty to children.

The rule of lenity entitles the accused to the lesser of two penalties where the same conduct would support either a felony or a misdemeanor conviction. Even though the rule of lenity may apply when the applicable misdemeanor is not a lesser included offense to the charged felony, the essential requirement of the rule of lenity is that both crimes could be proved with the same evidence.

(Punctuation and footnote omitted; emphasis in original.) Johnson v. State, 283 Ga. App. 99, 107 (5) (640 SE2d 644) (2006). See also Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004) (Under the rule of lenity, “where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.”) (punctuation and footnote omitted).

In Johnson, this Court specifically considered and rejected the same argument as that propounded by Staib, ruling as follows:

[The defendant’s] cruelty to children conviction required proof that she caused [the victim] excessive mental pain. Contributing to the deprivation of a minor, by contrast, requires a showing that the defendant wilfully committed an act or wilfully failed to act “when such act or omission would cause a minor to be found to be a deprived child,” which is statutorily defined as a child who lacks “proper parental care or control or other care or control necessary for the child’s physical, mental, or emotional health or morals. ”[] [The defendant’s] conviction for contributing to the deprivation of a minor, therefore, required proof that she failed to provide [her child] with the proper care necessary for [his or] her health. . . . Because different facts were required to prove .. . cruelty to children[ ] and contributing to the deprivation of a minor, the rule of lenity does not apply.

(Punctuation and footnotes omitted.) Id. at 107-108 (5). Accordingly, this claim of error lacks merit.

4. Staib contends that her misdemeanor convictions on Counts 7 and 8, contributing to the deprivation of G. S. and C. S., respectively, should have merged into her corresponding felony convictions for cruelty to children, Counts 5 and 6. We disagree.

Under OCGA § 16-1-7 (a) (1), “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if. . . [o]ne crime is included in the other[.]” In determining whether there are two separate offenses or one crime is included in the other, Georgia’s courts apply the “required evidence” test. Williams v. State, 293 Ga. App. 193, 195 (1) (666 SE2d 703) (2008).

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the [required evidence test requires a determination of] whether each provision requires proof of a fact which the other does not. As [the Supreme Court of Georgia] stated previously, a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

(Citation and punctuation omitted.) Id. See also Drinkard v. Walker, 281 Ga. 211, 214-217 (636 SE2d 530) (2006) (adopting the “required evidence” test for determining when one crime is included in another under OCGA § 16-1-6 (1), and overruling cases which are inconsistent with that test).

As shown in footnote 4 and Division 3, supra, the offenses of cruelty to children in the second degree and contributing to the deprivation of a minor each has at least one essential element that the other does not: causing the child cruel or excessive physical or mental pain and wilfully failing to provide the child with the proper care necessary for his or her health, respectively. Therefore, pursuant to the “required evidence” test, the offenses do not merge as a matter of law. Williams v. State, 293 Ga. App. at 193 (1). Thus, there was no error.

5. Staib contends that the trial court erred in sentencing her to ten years, to serve six years in prison, as compared to her husband’s sentence of ten years, to serve four years, when they were both convicted of the same crimes. She argues that the two-year disparity between the sentences shows that the trial court punished her for testifying on her own behalf at trial. We disagree.

(a) “It is well-established that there is a presumption that [a] sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.” (Citations and punctuation omitted.) State v. Freeman, 198 Ga. App. 553, 557 (3) (402 SE2d 529) (1991).

The record shows that, throughout her trial, Staib’s defense was premised upon her claim that she lacked any knowledge of the conditions of the children and of her home on the day she and her husband were arrested, that such conditions must have been created during the few hours that she was away from her home that morning, and, therefore, that her husband was solely responsible for the deplorable conditions.

During sentencing, the trial court described Staib’s defense as “totally unfathomable,” given the photographs and other evidence presented by the State. The court specifically noted that Staib had consistently refused to show any remorse or take any responsibility for her acts and her neglect of her children, instead choosing to place all the blame on her husband. According to the court, “[w]ithout remorse[,] there is no mercy,” and it stated that her refusal to accept any responsibility would be reflected in her sentence. Further, in addressing Staib’s concern that she would lose her nursing license as a result of her convictions and sentence, the court stated its belief that, given the facts in this case, her inability to work as a nurse would actually protect the patients at the hospital where she was employed.

Decided June 6, 2011.

Lee W. Fitzpatrick, for appellant.

Leigh E. Patterson, District Attorney, Suhirjahaan S. Morehead, Assistant District Attorney, for appellee.

Given these statements, which strongly suggest that the trial court found that Staib’s defense was based upon lies and asserted in bad faith, we conclude that Staib has failed to meet her burden of showing that the court acted improperly in imposing her sentences. See State v. Freeman, 198 Ga. App. at 557 (3) (regarding defendant’s burden of proof).

(b) Moreover, even if the trial court had not explained its reasoning for imposing harsher sentences upon Staib, the sentences were within the statutory limits for each of the crimes for which Staib was convicted. See OCGA §§ 16-5-70 (e) (2) (authorizes a sentence for a conviction of cruelty to children in the second degree of between one and ten years imprisonment); 16-12-1 (b) (3) (authorizes a sentence for a conviction of contributing to the deprivation of a minor of up to one year imprisonment and/or a fine of not more than $1,000). “We will not review for legal error any sentence which is within the statutory limits.” (Citations and punctuation omitted.) Brown v. State, 242 Ga. App. 347, 349-350 (3) (529 SE2d 650) (2000).

Accordingly, Staib has failed to demonstrate that her sentences were unlawful.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       The video-recorder in one of the officers’ patrol cars videotaped the officers’ encounter with Mr. Staib outside the house, and the State played the videotape during the hearing on Staib’s motion to suppress.

       See Division 2, infra. Notably, at trial, one of the officers testified that he could already smell the house’s odor while he was walking in the yard, possibly because some of the house’s windows were broken.

       The State also charged Mr. Staib with several counts of cruelty to children and contributing to the deprivation of a minor. He was tried jointly with Staib and convicted of two counts of each offense; he also pled guilty to family violence battery for his acts toward his wife. He is not a party to this appeal.

       Under OCGA § 16-5-70 (c), a person commits the offense of cruelty to children in the second degree “when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” The indictment in this case charged Staib with causing the children to suffer “cruel and excessive mental pain,” but not physical pain.

       Cf. Hightower v. State, 256 Ga. App. 793, 794-796 (1) (570 SE2d 22) (2002) (The 25-year-old defendant was charged with cruelty to children in the first degree, child molestation and statutory rape based upon evidence that he had sexual intercourse with a 14-year-old girl. At trial, the victim specifically testified that she did not suffer any mental or physical pain as a result of the intercourse or her relationship with the defendant, which she described as consensual. Thus, the evidence was insufficient to prove that the victim suffered cruel or excessive physical or mental pain or that the defendant maliciously caused such pain, as required by OCGA § 16-5-70 (b). This Court noted that, otherwise, every incident of statutory rape would also constitute cruelty to children in the first degree.).

       See OCGA §§ 15-11-2 (8) (definition of a “deprived child”); 16-12-1 (b) (3) (“A person commits the offense of contributing to the . .. deprivation of a minor when such person . . . [w]illfully commits an act or acts or willfully fails to act when such act or omission would cause a minor to be found to be a deprived child[.]”).

       Although Mr. Staib did not testify at trial, he presented three witnesses to testify on his behalf.

       For example, during opening statements, her counsel told the jury that, the State was “trying to convict Ms. Staib of things that happened while she was gone.” According to counsel, when Staib left the house that morning, all of the trash was in garbage bags and the bags were sitting in a corner. Further, Staib’s counsel blamed the toddler, C. S., for taking off her diaper and four-year-old G. S. for smearing his feces on the wall, suggesting that the children were responsible for the messes in the crib and the bedroom. Counsel summarized his argument by asserting that the deplorable conditions found by officers “happened while [Staib] was at the hospital seeking treatment” and that she was not responsible for the crimes, but was, instead, a victim. Counsel reasserted these arguments when moving for a directed verdict and during his closing arguments, at which time he told the jury that Staib’s husband had deliberately “trashed the place” while she was gone.