text:
    A14A1097.
    CRAPPS v. THE STATE.
    (766 SE2d 178)
   Branch, Judge.

Alander Crapps was tried by a Gwinnett County jury and convicted of a single count of aggravated stalking. He now appeals from the denial of his motion for a new trial, asserting that the evidence was insufficient to sustain his conviction and that the trial court erred in failing to give a curative instruction after the victim’s testimony improperly placed Crapps’s character in issue. Crapps also asserts a claim of ineffective assistance of counsel. We find no error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence, and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that Crapps began a romantic relationship with Erica Pass in July 2011 and shortly thereafter the couple began living together, along with Pass’s son, at Crapps’s DeKalb County apartment. At some point during the couple’s relationship, Crapps qualified for Social Security mental health disability benefits. Social Security would not pay the benefits directly to Crapps, however, and required that he designate another individual as his payee. Crapps asked Pass to serve as his payee, telling her that he knew no one else who could fill that role. Pass explained that when she received those funds each month, she gave them directly to Crapps.

On February 12, 2012, after the couple had been living together for approximately six months, Crapps awakened Pass at around 3:00 a.m. and began screaming at her. Crapps, who had just examined the contents of Pass’s cell phone, was demanding to know with whom Pass had been communicating via text message. Pass attempted to calm Crapps, but when her efforts failed, she gathered her son and went to her car in an effort to leave. Crapps, however, followed Pass and stood behind her car, thwarting her attempt to get away from him. When Pass rolled down her car window slightly to talk to Crapps, he reached inside the car and pulled on the window, breaking the window out of the car. Crapps then dragged Pass out of the car through the window opening, with Pass suffering significant cuts to her back in the process. Once Pass was out of the car, Crapps punched her in the face; he then took Pass’s shoes and fled the scene.

Pass called the police, who eventually located and arrested Crapps. Crapps subsequently bonded out of jail and on February 16, 2012, the DeKalb County Magistrate Court entered an order of “Special Condition of Bond” for Crapps, which required Crapps to “[s]tay away, absolutely, directly or indirectly, by person and telephone, from the person, home, job, and school of Erica Pass ...” Immediately following the February incident and for some period of time following entry of the protective order, Pass continued to stay at Crapps’s apartment periodically because she had no place else to sleep. On some of those occasions, Crapps was present. Approximately four to six weeks after the entry of the order, Pass was able to move into the Gwinnett County home of her aunt. Additionally, Pass obtained a job at a Waffle House in Lawrenceville.

Following her move to Gwinnett County, Pass initiated limited contact with Crapps via text message regarding his disability benefits and the fact that Crapps needed to designate a new payee to receive those funds on his behalf. When Crapps continued to use Pass as his payee, Pass went to the local Social Security office in May 2012 and had herself removed as payee for Crapps’s disability benefits. She then informed Crapps of this fact via text message.

On May 27, 2012, Pass reported to her Waffle House job at around 9:00 p.m. Approximately one hour later, Pass’s co-worker, Ashley Byrd, answered the Waffle House telephone and a woman asked if Pass was there. When Pass came to the phone, however, Crapps was on the other end of the line. Crapps then threatened Pass, telling her, “I’m going to fuck you up. You want to fuck with my money? I got you. I’m going to fuck you up. We’re going to see about this.” Pass immediately hung up the phone, but Crapps called back within minutes. Crapps then threatened Pass a second time, telling her: ‘You want to fuck with my money? You think it’s a game? Yeah, I’m going to get your ass.” Crapps then began laughing, at which point Pass told him to quit calling her and hung up the phone.

Sometime later that night, Byrd noticed a man standing outside the Waffle House staring at Pass; she called Pass’s attention to the man, and Pass recognized Crapps standing outside the restaurant grinning at her from approximately 20 to 25 feet away. After Crapps made eye contact with Pass, he fled the scene. Approximately two minutes later, Byrd and Pass walked into the restaurant’s parking lot, where they heard air escaping from the tires on Pass’s car. Upon examination, they discovered that the tires on the passenger side of Pass’s car had been slashed. Pass called the police, and Crapps was subsequently arrested and indicted for aggravated stalking.

Crapps told his trial counsel that prior to the incident at the Waffle House, Pass had been calling him frequently. Thus, defense counsel decided that the strongest theory of defense was that Crapps’s contact with Pass had been consensual and therefore could not be considered stalking. To support this defense, counsel subpoenaed Crapps’s cell phone records for the months of February through July 2012, thinking they would show that Pass had initiated contact with Crapps despite the protective order. In response to that subpoena, Crapps’s cell phone carrier provided counsel with the records for February and March 2012, but told him that no records were available for the months of April through July 2012, either because they had been purged or could otherwise not be located.

During his cross-examination of Pass, defense counsel attempted to support the theory that Crapps’s contact with Pass after the entry of the protective order was consensual. He therefore asked Pass why, after the protective order was in place, she had continued to sleep at Crapps’s apartment. Pass responded, “[b]ecause [Crapps] was incarcerated at the time I [obtained the protective order]. He was still in jail.” Defense counsel immediately moved for a mistrial on the grounds that this response improperly placed Crapps’s character in issue. The court denied that motion, and the trial then continued without defense counsel requesting a curative instruction as to Pass’s allegedly prejudicial testimony.

At the close of the State’s evidence, Crapps moved for a directed verdict, which the trial court denied. The defense then rested without presenting any evidence. After the jury found Crapps guilty, defense counsel moved for a presentencing, psychological evaluation. The trial court denied that motion but invited defense counsel to present any available information regarding Crapps’s mental health issues. During the sentencing phase, defense counsel stated that Crapps suffered from bipolar disorder.

Following his conviction, Crapps moved for a new trial. After an evidentiary hearing on that motion, the trial court denied the same. This appeal followed.

1. We first address Crapps’s claim as to the sufficiency of the evidence. With respect to this claim of error,

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. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. 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.

Castaneira v. State, 321 Ga. App. 418, 423 (2) (740 SE2d 400) (2013) (citation and punctuation omitted).

Under Georgia law, a person commits aggravated stalking when, in violation of a protective order, he “follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-91 (a). For purposes of the stalking statute, “harassing and intimidating” is defined as

a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

OCGA § 16-5-90 (a) (1). To prove that an act was done for the purpose of harassing and intimidating the victim, therefore, the State must show that the act was part of a “pattern of harassing and intimidating behavior.” State v. Burke, 287 Ga. 377, 379 (695 SE2d 649) (2010) (citation and punctuation omitted). See also Louisyr v. State, 307 Ga. App. 724, 728-729 (1) (706 SE2d 114) (2011). Thus, to convict Crapps of aggravated stalking, the State had to prove that Crapps contacted Pass without her consent and in violation of the protective order; that this conduct placed Pass in reasonable fear for her safety; and that the conduct at issue was part of a pattern of harassing and intimidating behavior toward Pass. Louisyr, 307 Ga. App. at 728 (1).

On appeal, Crapps contends that the evidence was insufficient to show that he engaged in any behavior for the purpose of harassing or intimidating Pass, because the evidence showed that following the entry of the protective order, Pass continued to have consensual contact with Crapps. This argument is without merit.

The record shows that Pass admitted contacting Crapps via text message following the entry of the protective order for the limited purpose of ending Pass’s status as the payee on Crapps’s disability benefits. Particularly when viewed in light of the other evidence presented at trial, Pass’s testimony on this issue does not support the conclusion that Pass consented to the contact at issue in this case.

Although Pass admitted initiating contact with Crapps via text message in an effort to sever the final tie that existed between the couple, Pass also testified that she never contacted Crapps by any method other than text. Pass’s testimony made clear that she was careful to avoid any personal communication with Crapps either via phone or in person. Additionally, Pass moved to a different county and did not provide Crapps with her residential address or inform him of her place of employment. Crapps, however, went to some effort to locate Pass. As soon as he located Pass, Crapps immediately began threatening her and within an hour or two after making those threats, Crapps went to Pass’s place of work and remained until he made Pass aware of his presence. Moreover, the evidence supports the conclusion that while at the Waffle House, Crapps vandalized Pass’s car, effectively disabling it. Pass testified that this conduct frightened her and left her feeling “unsafe” and “vulnerable,” because Crapps was able to engage in this conduct even though she had moved to an undisclosed location and obtained a protective order against him.

This evidence supports the jury’s conclusion that Crapps’s conduct with respect to the Waffle House incident constituted a pattern of harassing and intimidating behavior, and it is therefore sufficient to support Crapps’s conviction for aggravated stalking. See Slaughter v. State, 327 Ga. App. 593, 595 (1) (a) (760 SE2d 609) (2014) (evidence showing that the defendant engaged in a series of acts that placed the victim “in reasonable fear for her safety” supported defendant’s conviction for aggravated stalking); Nosratifard v. State, 320 Ga. App. 564, 569-570 (1) (740 SE2d 290) (2013) (evidence sufficed to show that defendant’s conduct in sending threatening text messages to the victim and her family, which led the victim to fear for the safety of herself and her family, was done for the purpose of harassing and intimidating the victim). See also Oliver v. State, 325 Ga. App. 649, 652-653 (1) (753 SE2d 468) (2014) (a defendant’s conduct over the course of a single day can establish a pattern of harassing and intimidating behavior).

2. Crapps next asserts that the trial court erred when, following Pass’s testimony that Crapps was in jail at the time the protective order issued, it failed to give the jury a curative instruction. As Crapps acknowledges, however, he did not request such an instruction. “When no objection to testimony is raised at trial, the issue is waived, and the error, if any, is not preserved for appeal.” Miller v. State, 295 Ga. 769, 775-776 (3) (a) (764 SE2d 135) (2014), citing Martin v. State, 281 Ga. 778, 779-780 (2) (642 SE2d 837) (2007). Thus, “[fjailure to give an unrequested curative instruction does not create reversible error.” Id., citing Hamilton v. State, 274 Ga. 582, 584 (4) (555 SE2d 701) (2001) (even where an objection is raised, no reversible error is created by a trial court’s failure to give an unrequested curative instruction). Accordingly, we can consider this enumeration only under the plain error rule.

“A plain error is one that is so clearly erroneous that it creates a likelihood of a grave miscarriage of justice or seriously affects the fairness, integrity, or public reputation of the judicial proceeding.” Jackson v. State, 321 Ga. App. 607, 613-614 (2) (739 SE2d 86) (2013) (citation and punctuation omitted). To demonstrate plain error, an appellant must show that the error caused him harm, i.e., that the error likely affected the outcome at trial. Id. See also Wagner v. State, 311 Ga. App. 589, 594, n. 3 (716 SE2d 633) (2011) (Blackwell, J., concurring specially) (“Unlike a harmless-error analysis, where the appellee bears the burden of showing that an error did not likely affect the outcome below, a plain-error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome below.”) (citing United States v. Olano, 507 U. S. 725, 734 (II) (A) (113 SCt 1770, 123 LE2d 508) (1993)). Crapps cannot meet this burden.

“[E] vidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” Ferguson v. State, 307 Ga. App. 232, 237 (2) (704 SE2d 470) (2010) (citation and punctuation omitted). See also Forrester v. State, 255 Ga. App. 456, 459 (2) (565 SE2d 825) (2002) (“[ajny evidence establishing that a defendant has committed the crimes for which he is being tried will inevitably say something about his character”) (citation, punctuation and emphasis omitted). In this case, the indictment, which was read to the jury at the outset of trial, charged Crapps with contacting Pass “in violation of a condition of pretrial release.” To convict Crapps of the crime charged, therefore, the State was required to prove that Crapps had violated a court order. Moreover, the circumstances that led to that court order were relevant to the question of whether Crapps had engaged in a pattern of harassing and intimidating conduct toward Pass. See Louisyr, 307 Ga. App. at 729 (1) (the State may introduce evidence of the prior history between the parties to demonstrate that defendant had engaged in a pattern of behavior toward the victim). Those circumstances, in turn, included the fact that Crapps was arrested and jailed as a result of the February incident and that he then became subject to the protective order.

Given both the language of the indictment and the elements of the crime at issue, we fail to see how Pass’s testimony that Crapps was in jail at the time the protective order issued could have prejudiced him. Accordingly, we find no error by the trial court in failing to provide sua sponte a curative instruction to the jury following this testimony. See Miller, 295 Ga. at 776 (3) (a) (a witness’s “passing references” to the defendant’s incarceration does not impermissibly place the defendant’s character into evidence; a jury could “reasonably assume that a defendant charged with [the crime at issue] would be arrested for the crime”).

3. Crapps contends he received ineffective assistance of counsel, and he raises four separate grounds in support of this claim. To prove that any of these grounds resulted in ineffective assistance, Crapps must prove both that his lawyer’s performance was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Crapps cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Causey v. State, 319 Ga. App. 841, 842 (738 SE2d 672) (2013).

With respect to the first prong of the Strickland test, deficient performance, Crapps must show that his attorney performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in light of prevailing professional norms. Strickland, 466 U. S. at 687-688 (III) (A). To demonstrate that he suffered prejudice as a result of his attorney’s performance, Crapps must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 (III) (B). “This burden, though not impossible to carry, is a heavy one.” Arnold v. State, 292 Ga. 268, 270 (2) (737 SE2d 98) (2013), citing Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986).

(a) Crapps asserts that trial counsel was ineffective for failing to request, in a more timely fashion, Crapps’s cell phone records for the months of February through July 2012. Had such a timely request been made, Crapps argues, the cell phone records for the most relevant months (presumably April and May 2012) would have been available. Crapps, however, failed to present any evidence at the hearing on his new trial motion showing when trial counsel subpoenaed those documents, and he therefore failed to prove that any such subpoena was untimely. Nor did Crapps show that had the request been made earlier, the records in question would in fact have been available. Thus, we have no basis for finding that trial counsel performed deficiently in this regard.

More importantly, Crapps has failed to show how the lack of these records prejudiced him. Although Crapps contends that these records would have demonstrated that Pass phoned him on a number of occasions prior to the Waffle House incident, that fact would not refute the evidence showing that on the evening in question Crapps engaged in a pattern of harassing and intimidating conduct toward Pass, in violation of a court order. Thus, even if the missing phone records showed that Pass had called Crapps after the protective order was in place, it is unlikely that such evidence would have resulted in Crapps’s acquittal.

(b) In further support of his ineffective assistance claim, Crapps points to the fact that trial counsel was aware Crapps had received disability benefits because of his mental health, yet trial counsel failed to file a pretrial motion for a psychological evaluation of Crapps. Assuming arguendo that trial counsel’s failure in this regard constituted deficient performance, Crapps has failed to show how this failure prejudiced him. Because Strickland requires a defendant to offer “more than speculation to establish prejudice,” Hambrick v. Brannen, 289 Ga. 682, 684 (715 SE2d 89) (2011) (citation omitted), a defendant asserting an ineffective assistance claim based on counsel’s failure to obtain a psychological evaluation “must show a reasonable probability that such an evaluation would have affected the outcome at trial.” Arnold, 292 Ga. at 272 (2) (b) (citation and punctuation omitted). See also Jennings v. State, 282 Ga. 679, 680 (2) (653 SE2d 17) (2007) (“[t]he burden is on the defendant to show... that he has a mental condition that should have been investigated and offered as proof of a defense to criminal liability ... or of his incompetence to stand trial”) (citation and punctuation omitted).

Here, the only evidence of Crapps’s mental illness appears in the transcript of the sentencing phase of trial, where counsel told the trial court that Crapps suffered from bipolar disorder. At the hearing on his new trial motion, however, Crapps presented no medical records or other evidence reflecting this diagnosis, Crapps’s treatment history for the disease, or his mental state at the time of the crime charged. Nor did he present any expert testimony showing what a pretrial evaluation could have revealed or that this information would have been favorable to Crapps’s defense. Thus, “[b]ecause [Crapps] produced no expert testimony at the motion for new trial hearing showing that a psychological evaluation would have aided an insanity defense, his ineffective assistance claim rests on speculation and fails for lack of demonstrated prejudice.” Perkins v. State, 328 Ga. App. 508, 511 (1) (759 SE2d 626) (2014) (citations omitted). See also Hambrick, 289 Ga. at 684 (defendant failed to prove the prejudice prong of his ineffective assistance claim where he failed “to show there was a reasonable probability that he might have been found incompetent to stand trial, legally insane at the time of the crimes, or guilty but mentally ill,” had defense counsel requested a pretrial psychological evaluation).

(c) At the hearing on his motion for a new trial, Crapps presented evidence that at the time of the February 2012 incident that resulted in the protective order against him, Pass was serving probation under the First Offender statute. OCGA § 42-8-60. On appeal, Crapps contends that trial counsel was ineffective for failing to use this fact to impeach Pass. We find no merit in this assertion.

Georgia law makes clear that “[t]he first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender on general credibility grounds ... because no adjudication of guilt has been entered.” Smith v. State, 276 Ga. 263, 264-265 (2) (577 SE2d 548) (2003) (citations and punctuation omitted). Crapps argues, however, that counsel should have used Pass’s probationary status as of February 2012 to impeach her motives and bias in reporting the DeKalb County incident to police. Crapps reasons that because Pass was on probation at the time of that incident, she had motivation to lie to police about any culpability she may have had with respect to the confrontation that resulted in the entry of the protective order.

Decided November 20, 2014.

Pamela T. Britt, for appellant.

Daniel J. Porter, District Attorney, Richard C. Armond, Assistant District Attorney, for appellee.

A witness’s first offender status may be used to impeach the witness’s bias and motive only when the record shows that the witness may have received special, first offender treatment in exchange for testimony favorable to the State. See Jackson v. State, 316 Ga. App. 588, 593 (4) (730 SE2d 69) (2012) (“evidence of a witness’s first offender status is admissible to ‘reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State’ ”), quoting Melson v. State, 263 Ga. App. 647, 648 (2) (588 SE2d 822) (2003). No such circumstances exist in this case. Rather, Crapps’s argument is that Pass’s probationary status would demonstrate that she had motive to lie to police in 2012 regarding Crapps’s conduct in the DeKalb County incident. In other words, Crapps contends that trial counsel should have used Pass’s probationary status to impeach her credibility. Given that the evidence was inadmissible for this purpose, counsel did not perform deficiently in failing to impeach Pass. Failure to proffer inadmissible evidence, like failure to make a futile motion, does not render defense counsel’s performance deficient. See Causey, 319 Ga. App. at 844 (“failure to pursue a futile motion does not constitute ineffective assistance”) (citation and punctuation omitted). Accordingly, Crapps cannot prove this claim of ineffective assistance.

(d) Crapps further asserts that trial counsel performed deficiently when, during his cross-examination of Pass, he elicited her testimony that Crapps had been in jail at the time the protective order was entered. As discussed supra in Division 2, however, Crapps cannot show prejudice resulting from Pass’s testimony. Accordingly, Crapps cannot prove the prejudice prong of this ineffective assistance claim.

For the reasons set forth above, we affirm the order of the trial court denying Crapps’s motion for a new trial.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       OCGA § 16-5-91.

       According to Pass, if Social Security finds that a disability recipient might not use the benefits for their intended purposes (including the payment of rent, utilities, and food), then the agency will require the recipient to name a payee to receive and use those benefits on the recipient’s behalf.

       Before their break-up, Crapps was aware that Pass had applied for a job at Waffle House, but Pass never told him that she had been hired or at which Waffle House she was working.

       At the motion for new trial hearing, counsel stated that he would have liked a continuance to have an opportunity to explore more fully whether the relevant cell phone records could be retrieved, but did not seek such a continuance because Crapps had insisted the lawyer file a statutory speedy trial motion and he insisted on moving forward with the trial as scheduled.

       OCGA § 42-8-60 (a) provides, in relevant part:
      Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant... [djefer further proceeding and place the defendant on probation as provided by law[.]
      OCGA § 42-8-60 (a) (1).


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A14A1153.
    MIKELL v. STATE OF GEORGIA et al.
    (766 SE2d 233)
   Phipps, Chief Judge.

In this civil in rem forfeiture action, Ricky Mikell appeals the trial court’s order finding that his residence was subject to forfeiture because the property had been used to facilitate a drug transaction. Mikell contends that the trial court erred by failing to perform the proper constitutional analysis on the record. As discussed below, the record does not reveal whether the trial court performed the detailed analysis required by Howell v. State of Ga. in determining whether the forfeiture constituted an excessive fine. We therefore vacate the trial court’s order and remand the case with direction that the court conduct the proper constitutional analysis and make appropriate findings of fact and conclusions of law on the record. Because Mikell’s remaining contentions were not raised below, they will not be considered on appeal.

Construed to support the judgment, the evidence adduced at the forfeiture hearing showed that Mikell and his wife (Shelby Mikell) bought the residence in 1993. In 1996, after the two divorced, the residence became titled in Mikell’s name. Mikell’s adult sons, Joseph and Andrew Mikell, and Holly Skipper (the mother of Joseph Mikell’s child) lived with Mikell in the house.

In March 2013, sheriff’s deputies attempted to serve at the residence an arrest warrant on Skipper. Andrew Mikell would not allow the deputies to enter to look for Skipper, and Joseph Mikell told Andrew Mikell (on a speaker phone) not to allow them to enter because “My shit’s in the house.” The deputies then obtained a warrant to search the premises for Skipper and illegal substances.

In executing the search warrant, deputies found in a bedroom about two-and-one-half pounds of marijuana, plastic baggies, and scales; they found firearms within a few feet of that bedroom, and marijuana residue in two vehicles on the premises. Joseph Mikell, Andrew Mikell, and Skipper were arrested on drug charges. The deputies seized three vehicles and other items on the basis that they had been used in the sale or transport of drugs, and a lien was placed on the residence.

In addition to the facts set out above, the following evidence was adduced at the forfeiture hearing. In 2008, deputies had executed a search warrant at the residence, where multiple purchases of marijuana had occurred; Mikell acknowledged then, as Andrew Mikell and Skipper were being arrested for drug offenses, that illegal activity was occurring at the house, that he had talked to “them over and over about all this,” and that “ [h] e was tired of itA civil forfeiture action was filed as a result of the 2008 investigation, but the court declined to seize the property at that time, warning Mikell that a forfeiture action would proceed if he returned to court under the same circumstances.

There was also evidence that a 2011 murder investigation (in which Andrew Mikell’s name was “brought up”) had revealed more drug activity at the residence. During the murder investigation, deputies detected at the house an odor of marijuana in every room except one where an infant was present. Andrew Mikell admitted to an investigator during the 2011 investigation that he had been selling marijuana, which admission he made in Mikell’s presence; Mikell lived at the house at the time, as did Shelby, Joseph and Andrew Mikell, and Skipper.

In April 2014, the State of Georgia filed a civil in rem complaint seeking forfeiture of the residence (and the seized personal property) on the grounds that the property had been “directly or indirectly purchased with money from drug sales or used in the sale of illegal drugs.” The complaint named as defendants in rem the purported owners or interest holders of the property (Joseph and Andrew Mikell, and Skipper), and identified Mikell as a “known purported” interest holder.

In his answer, Mikell asserted that, inter alia, he was an innocent owner of the real (and personal) property, inasmuch as he did not know and could not have reasonably known of the conduct giving rise to the forfeiture; he had not acquired proceeds from the conduct at issue or held the property in community with or for the benefit of any person whose conduct gave rise to its forfeiture; and the forfeiture violated the Eighth Amendment because it was grossly disproportionate to the gravity of the offense.

Following the hearing, the trial court entered an order granting the forfeiture. In the order, the court pertinently provided:

After considering all evidence presented the Court finds that Ricky Mikell is not an innocent third party claimant to the property in question. Furthermore, the Court finds that this ruling is not in violation of the Eighth Amendment of the Constitution prohibiting excessive fines and is not disproportional to the gravity of the offense based on the evidence presented to the Court and considering the Court[’]s earlier ruling.

This appeal followed.

[I]n rendering judgment on a complaint for forfeiture, the trial court is required to make mixed findings of fact and law, which this Court must accept unless they are clearly erroneous. And we defer to the trial court’s judgment as to witness credibility and will affirm the trial court’s findings if there is any evidence supporting them. But when the evidence is uncontroverted and no question regarding the credibility of witnesses was presented below, we conduct a de novo review of the trial court’s application of law to the undisputed facts, . . . owe no deference to the trial court’s conclusions of law [, and] ... we are free to apply anew the legal principles to the facts.

1. Mikell argues that the trial court erred by failing to perform the proper constitutional analysis for determining whether the forfeiture of his residence constitutes an excessive fine in violation of the Eighth Amendment. He asks this court to remand the case with direction in connection therewith. We agree that the record does not indicate whether the trial court considered the mandatory guidelines.

The Eighth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Excessive Fines Clause of the Eighth Amendment applies to civil in rem forfeitures^] and the United States Supreme Court in United States v. Bajakajian, [] held that a forfeiture constitutes an excessive fine “if it is grossly disproportional to the gravity of a defendant’s offense.”
In Howell, [] the Supreme Court of Georgia . . . conclud[ed] that trial courts inquiring into whether a forfeiture constitutes an excessive fine should take into account the following considerations: (1) the harshness, or gross disproportionality, of the forfeiture in comparison to the gravity of the offense, giving due regard to (a) the offense committed and its relation to other criminal activity, (b) whether the claimant falls within the class of persons for whom the statute was designed, (c) the punishments available, and (d) the harm caused by the claimant’s conduct; (2) the nexus between the property and the criminal offenses, including the deliberate nature of the use and the temporal and spatial extent of the use; and (3) the culpability of each claimant.

In conducting the analysis adopted by the Court in Howell for determining whether a forfeiture is constitutionally excessive, trial courts must make findings of fact and conclusions of law on the record. On-the-record findings are necessary to “provide an opportunity for meaningful appellate review of [the trial court’s] decision.”

Citing Howell, Mikell asserted before the trial court that the forfeiture of his residence based on marijuana being found in a bedroom occupied by Joseph Mikell and Skipper, when Mikell had no involvement with the drugs, was an excessive fine under the Eighth Amendment. But the record does not show that the court made the findings of fact and conclusions of law required by that decision.

“Accordingly, we vacate the trial court’s judgment of forfeiture and remand this case for further proceedings in the trial court consistent with Howell” “[T]he trial court is directed to enter a new order including findings of fact and conclusions of law pursuant to the analysis required by Howell, and either party shall be entitled to appeal the trial court’s new order within 30 days of its entry.”

Decided November 20, 2014.

Dozier & Hillis, Dennis G. Dozier, Sr., Bethany M. Hillis, for appellant.

Richard A. Mallard, District Attorney, J. Barclay Black, Assistant District Attorney, for appellees.

2. Mikell contends the trial court erred by ordering the sale of his residence, when such is prohibited under OCGA § 44-13-1. However, Mikell did not raise this issue in the trial court, and therefore we cannot consider it on appeal.

3. Mikell contends that the trial court erred by ordering the distribution of forfeiture proceeds to various entities because in so doing the court effectively voided the lienholders’ (mortgagees’) security interests without giving the lienholders proper notice. Assuming arguendo that Mikell had standing to claim that the lienholders did not receive proper notice, he did not raise the issue in the trial court, and we will not consider it on appeal.

Judgment vacated and case remanded with direction.

Ellington, P. J., and McMillian, J., concur.

       283 Ga. 24 (656 SE2d 511) (2008).

       Id. at 26 (1).

        Walker v. State of Ga., 281 Ga. App. 526 (636 SE2d 705) (2006).

       See OCGA § 16-13-49 (e) (1).

       Id.

       Id.

        Buchanan v. State of Ga., 319 Ga. App. 525, 526-527 (737 SE2d 321) (2013) (punctuation and footnotes omitted).

       See Thorp v. State of Ga., 264 Ga. 712, 713 (1) (450 SE2d 416) (1994).

       524 U. S. 321, 334 (III) (A) (118 SCt 2028, 141 LE2d 314) (1998).

        Tipton v. State of Ga., 321 Ga. App. 870, 872 (2) (743 SE2d 532) (2013).

       Supra at 26 (1).

        Tipton, supra at 872-873 (2).

        Buchanan, supra at 528-529.

       Id. at 529 (footnote omitted); Tipton, supra at 873 (2).

       See Tipton, supra; Buchanan, supra.

        Buchanan, supra (footnote omitted); Salmon v. State of Ga., 249 Ga. App. 591, 592 (2) (549 SE2d 421) (2001); Mitchell v. State of Ga., 236 Ga. App. 335-336 (1) (511 SE2d 880) (1999).

        Tipton, supra (citations omitted); Buchanan, supra.

       OCGA § 44-13-1 pertinently provides:
      Except as otherwise provided in this article, there shall be exempt from levy and sale by virtue of any process whatever under the laws of this state any real or personal property or both of a debtor in the amount of $5,000.00 or $21,500.00 for real or personal property that is the debtor’s primary residence. No court or ministerial officer in this state shall ever have jurisdiction or authority to enforce any judgment, execution, or decree against property set apart under this Code section [.]

        See Martin v. State of Ga., 291 Ga. App. 902, 905-906 (2) (663 SE2d 307) (2008) (physical precedent only), citing Kaiser v. State, 285 Ga. App. 63, 69 (2) (646 SE2d 84) (2007).

       See generally Ryder Automobile Leasing Co. v. Tates, 112 Ga. App. 18, 20 (143 SE2d 411) (1965).

       See Martin, supra.


author: Ray, Judge.

text:
    A14A1235.
    HOLLAND INSURANCE GROUP, LLC et al. v. SENIOR LIFE INSURANCE COMPANY.
    (766 SE2d 187)
   Ray, Judge.

William Holland and Senior Life Insurance Company (“Senior Life”) entered into an agreement (“Agreement”) authorizing Holland to sell Senior Life’s insurance products as an independent agent. Senior Life subsequently terminated the Agreement and notified Holland that it “suspended” payment of commissions to Holland pending an investigation of whether Holland had violated restrictive covenants contained in the Agreement. Holland then filed a complaint against Senior Life seeking injunctive relief and a declaratory judgment that the Agreement’s restrictive covenants are overbroad and thus, unenforceable. Holland filed a motion for judgment on the pleadings, which the trial court denied. Senior Life then filed an amended counterclaim seeking enforcement of the forfeiture provisions of the agreement based on Holland’s alleged violation of restrictive covenants. Senior Life then sought a preliminary injunction for the return of all confidential documents, including completed insurance applications and “Leads” (information regarding prospective clients). Senior Life also sought to enjoin Holland and his sub-agents from using and distributing such information after the termination of the Agreement. The trial court granted that motion. Holland appeals from both of the trial court’s rulings. For the reasons below, we affirm in part and reverse in part.

1. Holland’s motion for judgment on the pleadings sought a declaratory judgment that: “(1) the non-solicitation and confidentiality provisions of the [Agreement] are unenforceable as a matter of law; and (2) the liquidated damages of the [Agreement] are void[.]” The motion also sought “a permanent injunction preventing Senior Life from attempting to enforce such provisions” and asked the trial court to order Senior Life to pay Holland all commissions that he is owed under the Agreement. After a hearing, the trial court denied the motion in a single sentence.

On appeal, Holland argues that the trial court erred in denying the motion for judgment on the pleadings because the Agreement contains several restrictive covenants that are overbroad and, thus, unenforceable and invalid under A. L. Williams & Assocs. v. Faircloth, 259 Ga. 767 (386 SE2d 151) (1989). In A. L. Williams, our Supreme Court held that “[i]t would be paradoxical to strike down a covenant as invalid, and at the same time uphold a forfeiture that is conditioned upon a violation of that very covenant. Hence, a forfeiture provision that is conditioned expressly upon an invalid covenant must be invalid in se.” Id. at 768 (1) (b).

A motion for judgment on the pleadings is proper

where the undisputed facts that appear from the pleadings establish that the movant is entitled to judgment as a matter of law. All well-pleaded facts are to be accepted as true. However, the trial court is not required to adopt a party’s legal conclusions based on those facts. In other words, the granting of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. In considering a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings, including exhibits attached to the complaint or the answer.

(Citations and punctuation omitted.) Lapolla Industries v. Hess, 325 Ga. App. 256, 258 (2) (750 SE2d 467) (2013). See also Cardin v. Outdoor East, 220 Ga. App. 664, 665 (468 SE2d 31) (1996) (The grant of a motion for judgment on the pleadings is proper only where the allegations disclose with certainty that the opposing party would not be entitled to judgment under any state of provable facts.).

Accordingly, in deciding whether Holland is entitled to judgment on the pleadings, the trial court must accept Senior Life’s well-pleaded allegations. See Kwickie/Flash Foods v. Lakeside Petroleum, 246 Ga. App. 729, 729 (541 SE2d 699) (2000). The pleadings allege that Senior Life and Holland entered into the Agreement by which Senior Life appointed Holland as an independent agent and representative of Senior Life for the purposes of soliciting and selling life insurance policies. Under the Agreement, Senior Life agreed to pay Holland “commissions and fees based on premiums received by [Senior Life] with respect to [Senior Life] insurance policies issued and placed into force from applications solicited by or through [Holland] or [Holland’s] [s] ub - agent [s].” The Agreement was in effect from July 29, 2002, until June 15, 2011, when Senior Life terminated the contract. Senior Life’s answer also contends that Holland “has violated one or more of the terms of the [Agreement]; consequently, he has forfeited all rights to renewal commissions pursuant to Section 5.7” and “Holland has induced or assisted in inducing a Senior Life policyholder to surrender, lapse, relinquish ... or otherwise reduce a policy in value by use of non-forfeiture benefits; [and] consequently, he has forfeited his right to renewal commissions pursuant to Section 7.10” of the Agreement.

Holland contends that the trial court erred in denying his motion for judgment on the pleadings on the grounds that restrictive covenants, nondisclosure provisions, and forfeiture provisions of the Agreement are unreasonable, invalid and unenforceable. The reasonableness of a restrictive covenant is a question of law, which we review de novo. Murphree v. Yancey Bros. Co., 311 Ga. App. 744, 747 (716 SE2d 824) (2011).

[Restrictive covenants that are ancillary to employment contracts receive strict scrutiny, and are not blue-penciled. This is because it is generally true in an employer/employee relationship that the employee goes into a transaction such as this at a great bargaining disadvantage and does so in exchange for the opportunity to [be employed].

(Punctuation and footnotes omitted.) Id. However, the Agreement contains a severability clause. “Void restrictive covenants, which cannot be blue-penciled out of the contract, do not void the entire contract when the contract contains a severability clause[.]” (Citations omitted.) Capricorn Systems v. Pednekar, 248 Ga. App. 424, 428 (2) (d) (546 SE2d 554) (2001). Accord Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 297-298 (1) (491 SE2d 394) (1997).

(a) Holland first contends that Section 5.5 of the Agreement, titled “Confidentiality,” is overly broad. That provision provides, in relevant part, that “[u]ntil this Agreement terminates and at all times thereafter, you will hold in the strictest confidence and not use in any manner detrimental to us, or disclose, publish, or divulge, directly or indirectly, to any individual or entity any Confidential and Proprietary Information[.]” Section 5.5 defines “Confidential and Proprietary Information” as

certain confidential and proprietary information relating to our business, including, but not limited to, certain lists of or data relating to our Customers and Prospective Customers ... and certain other information relating to our services, marketing techniques, business methods or finances, which information is generally not known to the public.... [Senior Life] take[s] all reasonable steps necessary to ensure that each and every component of the Confidential and Proprietary Information constitutes a “Trade Secret.”

Holland contends that the “Confidential and Proprietary Information” defined in Section 5.5 does not constitute a trade secret and, thus, that the confidentiality covenant is void because it does not contain a time limit.

The validity of a non-disclosure provision depends upon its reasonableness, which, in turn, hinges on two factors: (1) whether the employer is attempting to protect confidential information relating to the business, such as trade secrets, methods of operation, names of customers, personnel data, and so on; and (2) whether the restraint is reasonably related to the protection of the information.

(Punctuation and footnote omitted.) Physician Specialists in Anesthesia v. MacNeill, 246 Ga. App. 398, 407-408 (7) (539 SE2d 216) (2000). “A nondisclosure clause with no time limit is unenforceable as to information that is not a trade secret.” (Citation omitted.) Allen v. Hub Cap Heaven, 225 Ga. App. 533, 539 (6) (484 SE2d 259) (1997). Accord Carson v. Obor Holding Co., 318 Ga. App. 645, 649-650 (1) (a) (734 SE2d 477) (2012). It is undisputed that Section 5.5 of the Agreement contains no time limitation; thus, whether or not Section 5.5 is overly broad and unenforceable hinges upon whether the “Confidential and Proprietary Information” it prohibits disclosing constitutes a trade secret.

OCGA § 10-1-761 (4) defines a “Trade Secret” as “information, without regard to form, including, but not limited to, technical or nontechnical data, ... a method, a technique, . . . financial data, financial plans, product plans, or a list of.. . potential customers or suppliers which is not commonly known by or available to the public----” (Emphasis supplied.) Although “a client list may be subject to confidential treatment under the Georgia Trade Secrets Act, the information itself is not inherently confidential.” (Citations and punctuation omitted.) Crews v. Roger Wahl CPA, P.C., 238 Ga. App. 892, 898, n. 4 (520 SE2d 727) (1999). This is because “[c]ustomers are not trade secrets. Confidentiality is afforded only where the customer list is not generally known or ascertainable from other sources and was the subject of reasonable efforts to maintain its secrecy.” (Citations omitted.) Id.

In Physician Specialists in Anesthesia, supra, this Court held that a fact question precluded summary judgment on plaintiff’s argument that a nondisclosure covenant was unenforceably over-broad because “the legitimacy of the need to maintain the confidentiality of such information is a question of fact whose resolution is for the court below.” (Punctuation and footnote omitted.) Id. at 408 (7). Similarly, here, we cannot conclude as a matter of law that the “Confidential and Proprietary Information” defined in Section 5.5 of the Agreement does not constitute a trade secret. Additional facts beyond those set forth in the relevant pleadings are needed to determine whether the information defined as Senior Life’s “Confidential and Proprietary Information” is a legitimate trade secret or merely confidential information relating to its business. Compare Equifax Svcs. v. Examination Mgmt. Svcs., 216 Ga. App. 35, 37 (1) (a) (453 SE2d 488) (1994) (finding that a confidentiality agreement prohibiting a former employee from disclosing “any confidential information” at any time after the conclusion of his employment was overbroad when such confidential information was not included in the confidentiality agreement’s definition of “trade secret”). See also Atlanta Bread Co. Intl. v. Lupton-Smith, 292 Ga. App. 14, 15 (663 SE2d 743) (2008) (“Whether the restraints imposed by a restrictive covenant are reasonable is a question of law for determination by the court. [However, a] questionable restriction, if not void on its face, may require the introduction of additional facts to determine whether it is reasonable”) (footnotes omitted). As additional facts beyond those set forth in the pleadings are needed to make this determination, we find no error in the trial court’s denial of Holland’s motion for judgment on the pleadings as to this provision.

(b) Holland next contends that Section 5.7 of the Agreement, titled “General Remedies and Damages,” is unenforceable because the section includes an overbroad noncompete clause. We agree.

Section 5.7 provides a “formula” for determining liquidated damages as well as other damages that could be imposed if it is found that Holland violated “the terms of this Agreement[.]” That section further includes the following noncompete clause:

Notwithstanding our proprietary interest in our Customers and Prospective Customers, we recognize that upon termination of this Agreement, certain of our Customers may choose to sever their respective relationship with us in favor of you or any person engaging you after the termination of this Agreement, without any direct or indirect solicitation by you in violation of the terms of this Agreement. As such, . . . you hereby agree that, with respect to any Customer of ours who completely or partially severs his/her relationship with us in favor of you . . . you shall pay us an amount equal to 100% of the commissions you earned (whether accrued or actually received) from us with respect to the Severing Customer during the twenty-four (24) month period immediately preceding the termination of this Agreement.

(Emphasis supplied.)

Generally, a restrictive covenant “may not validly preclude the employee from accepting unsolicited business from customers of his former employer.” Vulcan Steel Structures v. McCarty, 329 Ga. App. 220, 221-222 (1) (764 SE2d 458) (2014). An employer may properly protect itself from the risk that a former employee “might appropriate its customers by taking unfair advantage of client contacts developed while working for that employer, but the company cannot prevent [the employee] from merely accepting overtures from those customers.” (Citation and punctuation omitted.) Id. at 222 (1). Thus, because the plain language of Section 5.7 penalizes Holland from accepting the unsolicited business from Senior Life’s former clients, regardless of who initiated the contact, it is unreasonable and unenforceable. Id. Accord Waldeck v. Curtis 1000, Inc., 261 Ga. App. 590, 590-593 (583 SE2d 266) (2003) (covenant prohibiting former employee from “actually effecting] the sale to any Customer Account of, or accepting] any offer from any Customer Account for, any product that is one of the [former employer’s] [p]roducts or that is substantially similar to or competitive with any of the [former employer’s] [p]roducts” was unreasonable because it prohibited former employee from merely accepting business without any solicitation); Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, PC., 213 Ga. App. 891, 892-893 (447 SE2d 94) (1994) (finding that employment agreement requiring employee to pay liquidated damages upon termination of his employment constituted a covenant not to compete. Even though the agreement contemplated the possibility that employee would leave, the “legal effect” of the liquidated damages provision was that of a noncompete agreement).

Because the Agreement contains a severability clause, the void restrictive covenant in Section 5.7 does not void the entire contract. See Capricorn Systems, supra at 428 (2) (d). Thus, the other contract terms survive the void terms of Section 5.7. However, the invalid restrictive covenant cannot be excised from Section 5.7 so as to preserve the liquidated damages provision also contained therein. See Johnstone, supra at 298 (1). Accordingly, we find that the trial court erred in denying Holland’s motion for judgment on the pleadings as it relates to the liquidated damages provision in Section 5.7.

2. Holland next contends that the trial court erred in granting Senior Life’s motion for preliminary injunction. We disagree.

Senior Life applied for a motion for preliminary injunction seeking an order requiring Holland to return Senior Life’s “ ‘leads,’ marketing materials and insurance applications,” and enjoining Holland and his sub-agents from using and distributing such information. The trial court granted Senior Life’s motion and ordered Holland to return the “Leads” and insurance applications to Senior Life.

When determining whether to issue an interlocutory injunction, the trial court must consider whether

(1) there is a substantial threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) the threatened injury to the moving party outweighs the threatened harm that the injunction may do to the party being enjoined; (3) there is a substantial likelihood that the moving party will prevail on the merits of her claims at trial; and (4) granting an interlocutory injunction will not disserve the public interest.

(Citation and footnote omitted.) SRB Investment Svcs. v. Branch Banking & Trust Co., 289 Ga. 1, 5 (3) (709 SE2d 267) (2011). Even though an interlocutory injunction is an “extraordinary remedy, and the power to grant it must be prudently and cautiously exercised, the trial court is vested with broad discretion in making that decision.” (Citation omitted.) Id. Where, as here, the facts are in dispute, this Court will reverse the trial court’s ruling “only in the event of manifest abuse of discretion.” (Punctuation and footnote omitted; emphasis in original.) Lowe’s Home Centers v. Garrison Ridge Shopping Center Marietta, Ga., 283 Ga. App. 854, 855 (643 SE2d 288) (2007).

During the course of the Agreement, Holland would periodically obtain “Leads” from Senior Life by selecting a zip code he wished to target and submitting an order for “Leads” to Senior Life. Senior Life would then design a marketing pamphlet and contract with another company to print and mail the pamphlet to prospective customers in the targeted geographic area. The pamphlet contained a pre-paid postcard that could be detached by an interested customer and mailed back to a post office box maintained by Holland. The printing company billed Senior Life directly for its services. Senior Life would recoup the cost of providing “Leads” from Holland. Holland would then sell and distribute the “Leads” to his sub-agents for the purpose of soliciting business.

Several provisions of the Agreement govern Holland’s use of the “Leads.” Section 2.1 of the Agreement provides that Holland “shall maintain accurate records and documentation regarding any ‘Leads’ (i.e., names of [Senior Life’s] Customers or Prospective Customers) that you receive from us or any other source.” Section 5.5 of the Agreement stated that Holland “recognize [s] that [Senior Life] devote [s] significant financial, human, and other resources to the development of our customer base, ‘Leads,’ and the general goodwill associated with our business[,]” and that the “Leads” constitute “Confidential and Proprietary Information” of Senior Life. Section 5.2 of the Agreement, titled “Marketing Materials and Procedures,” provides that Senior Life’s “name, product title, logos, trademarks and other advertising materials are and at all times shall remain” the property of Senior Life, and Holland “shall not use any materials in any manner which has not been approved in writing” by Senior Life. Section 5.2 further states that “Upon termination of this Agreement, [Holland] shall return, and [Holland] shall cause [his] Sub-agents to return, all . . . marketing and other materials” provided by Senior Life. (Emphasis supplied.) Section 5.5 (b) provides that “Upon our request,... or within thirty (30) days following . . . termination, [Holland] will deliver to [Senior Life] only and shall not retain for [Holland’s] or anybody else’s use, any and all ‘Leads,’records, files... and materials of any type . . . containing any Confidential and Proprietary Information.”

Senior Life’s senior vice-president, Nicholas Murray, testified via affidavit that after Senior Life terminated its Agreement with Holland, Holland refused to return Senior Life’s materials, including its “Leads” and insurance applications completed by prospective customers. Murray further stated that Senior Life had received information that Holland continued to use the “Leads” after the termination of the Agreement, and had given and sold used “Leads” to his sub-agents so that they would make sales calls for insurers other than Senior Life. Senior Life identified several of its former policyholders that Holland had successfully switched to other life insurers as a result of using the contact information on Senior Life “Leads.” Senior Life further discovered that Holland allowed his agents and sub-agents to use the Senior Life “Leads” to switch Senior Life policyholders to other insurers and “cross-sell” Medicare Advantage products. Holland’s sub-agent persuaded a former Senior Life policyholder to switch her life insurance from Senior Life by falsely telling the policyholder that Senior Life was going out of business. Senior Life also obtained information that Holland did not keep the “Leads” and insurance applications locked in a file cabinet, but rather left them in boxes on a table in his office so that sub-agents could inspect them. After the termination of his Agreement, Holland refused to return the “Leads” and informed Senior Life that he no longer had possession of such records. Without providing any citation to the record, Holland asserts that, contrary to Murray’s testimony, the leads in this matter are not “Senior Life Leads,” but rather, that Holland purchased the leads from the printing company himself.

After a hearing, the trial court granted Senior Life’s motion for a preliminary injunction. We find no merit in Holland’s assertion that the trial court abused its discretion in granting the preliminary injunction and ordering Holland to return all “Leads” obtained through Senior Life or the printing company during the time the Agreement was in force, as well as all insurance applications that were submitted to Senior Life.

The trial court held that it was “extremely likely” that Senior Life would prevail at trial on its claims that Holland breached the portions of the Agreement requiring Holland to return the “Leads” and other confidential and proprietary documents to Senior Life. Such a finding was not a manifest abuse of discretion where Holland does not dispute the validity of these provisions, and, as discussed above, the Agreement contains a severability clause. See Lee v. Environmental Pest & Termite Control, 271 Ga. 371, 373-374 (2) (516 SE2d 76) (1999) (upholding trial court’s grant of interlocutory injunction prohibiting former employee from providing pest control services to customers he contacted or learned about during the time he was employed, even when his employment agreement did not contain a noncompetition restrictive covenant, but did contain a confidentiality agreement).

We further find no manifest abuse of discretion in the trial court’s finding that Senior Life will suffer irreparable injury unless Holland is restrained from using Senior Life’s “Leads” and insurance applications, and that an injunction serves the public interest. Holland has presented evidence that Senior Life did not enforce its policy of requesting all materials to be returned when other Senior Life employment agreements were terminated, and that there was a delay between the termination of the Agreement and Senior Life filing the motion for preliminary injunction. However, in the present case, Senior Life alleges that it has learned through discovery that Holland and his sub-agents falsified insurance applications in order to hide the replacement of Senior Life policies, engaged in the illegal process of “switching” and “cross-selling,” and lied to current policy holders by informing them Senior Life was going out of business. See Parker v. Clary Lakes Recreation Assn., 272 Ga. 44, 45 (526 SE2d 838) (2000) (“a demonstration of irreparable injury is not an absolute prerequisite to interlocutory injunctive relief”) (citations omitted).

Decided November 20, 2014.

Drew Eckl & Farnham, Joseph C. Chancey, Meredith R. Guerrero, for appellants.

Coleman Talley, Gregory T. Talley, Edward F. Preston, William E. Holland, for appellee.

Holland next argues that the preliminary injunction should be reversed because Senior Life has an adequate remedy at law. See, e.g., Allen, supra at 540 (8) (“[I]t is error to grant an injunction when the party seeking it has an adequate remedy at law”) (citation omitted). Senior Life argues that it would suffer significant harm beyond the threat of lost business and customers had the trial court not granted its motion. It contends that Holland’s continued use of the copied Senior Life insurance applications could potentially expose Senior Life to regulatory sanctions and other damages for violating the privacy rights of its applicants, since the applications contain sensitive data such as the applicant’s birthday, social security number, health history, and banking information. After reviewing the record, we conclude that the trial court was authorized to find that the “harm to [Senior Life] arising from [or by] Mr. Holland’s continued possession and use of.. . ‘leads,’ insurance applications, and expirations outweighs any possible harm that Mr. Holland may suffer from losing possession of such documents and files.” Therefore, the trial court acted within its broad discretion in granting interlocutory relief. See Lee, supra at 373-374 (2).

Judgment affirmed in part and reversed in part.

Andrews, P. J., and McFadden, J., concur.

       Other plaintiffs in the suit include Holland Insurance Group, LLC and Global Premier Benefits, LLC. They were not parties to the Agreement.

        See Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66, 66-67 (428 SE2d 328) (1993) (holding that Court of Appeals had jurisdiction when, “[ajlthough the parties sought equitable relief, both the orders enjoining the partners from violating their contracts and the orders denying the injunctive relief were secondary to the principal issue of the construction of the contacts — an issue of law”) (citation omitted).

       Holland argues in his appellate brief that Sections 2.1 (j), 5.4, 7.4, 7.8 and 7.10 of the Agreement are overly broad and unenforceable. However, an examination of the appellate record fails to disclose that Holland presented these arguments before the trial court. Although the trial court’s order notes that a hearing was held, there is no transcript in our appellate record. Issues not raised and ruled upon in the court below cannot be raised in this Court for the first time on appeal. Trop, Inc. v. City of Brookhaven, 296 Ga. 85 (3) (764 SE2d 398) (2014). Thus, the enforceability of these particular sections is not properly before this Court.

       We note that in 2011 the Georgia General Assembly amended OCGA § 13-8-53 to permit blue-penciling, providing that “a court may modify a covenant that is otherwise void and unenforceable so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties.” OCGA § 13-8-53 (d). However, the amended Code section only applies to contracts entered into on or after May 11, 2011. Lapolla, supra at 262 (2), n. 4.

       Section 9.6 of the Agreement, titled “Severability [,]” provides that “[t]he provisions of this Agreement shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision shall not affect the validity or enforceability of the remainder of this Agreement.”


text:
    A14A1304, A14A1305.
    CAVENDER v. THE STATE (two cases).
    (766 SE2d 196)
   Phipps, Chief Judge.

In January 2012, a Coweta County grand jury indicted Kevin Ray Cavender for two counts of aggravated child molestation and five counts of child molestation. Later that month, a Carroll County grand jury indicted him for two additional counts of child molestation and two counts of sexual battery. Cavender waived venue as to the Carroll County offenses and consented to have both indictments tried jointly in Coweta County. Following the trial, the Coweta County jury found Cavender guilty of two counts of child molestation arising out of the Carroll County indictment and guilty of seven counts of child molestation pursuant to the Coweta County indictment.

In Case No. A14A1304, Cavender challenges the sufficiency of the evidence supporting his convictions under the Carroll County indictment. In Case No. A14A1305, Cavender raises a sufficiency challenge to several of the Coweta County convictions. Although we affirm the convictions in Case No. A14A1304, we affirm in part and reverse in part the convictions in Case No. A14A1305.

When reviewing the sufficiency of the evidence, we construe the evidence and all reasonable inferences drawn from it in the light most favorable to the jury’s verdict. “We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.”

So viewed, the evidence shows that 13-year-old T. B. knew Cavender, his wife, and his children through her best friend, V. K. In the late spring or early summer of 2010, T. B. spent the night at a Carroll County residence where Cavender was also present. She woke up in the middle of the night and found Cavender trying to lift the bedcovers off her. T. B. pulled the covers down, and nothing more happened.

Although the incident made T. B. uncomfortable, she spent the weekend with the Cavender family at their Coweta County home five or six months later, in November 2010. On the second night of the visit, T. B. was again awakened by Cavender in the middle of the night. This time, Cavender had his hands on her stomach and was tugging at her pants, which had been unbuttoned and unzipped while she slept. T. B. rolled over, buttoned her pants, and stayed still. Cavender left the room without saying anything to her. The next morning, T. B. reported the incident to her mother and the police.

Cavender made similar advances toward Y. K., who is related to the Cavender family and often stayed with them. When V. K. was 12 or 13 years old, for example, she spent the night with the Cavenders, who lived in Carrollton at the time. Early in the morning, she felt her bedcovers move and saw Cavender’s hand on her buttocks. When V. K. looked at Cavender, he left the room. On a subsequent occasion when she was 13 or 14 years old, V. K. again spent the night at Cavender’s home and awoke to find Cavender lifting her bedcovers near her buttocks and looking at her. As before, Cavender left the room when she awoke.

At some point, the Cavender family moved to Coweta County. After the move, V. K. and a friend spent the night at the family’s new residence. Fearing that Cavender might bother her during the night, V. K. placed cushions around herself, but she woke to find Cavender pulling at her covers. Cavender left, and V. K. moved next to her friend. Although V. K. managed to go back to sleep, she woke later that night and discovered Cavender lying between her and her friend. When V. K. asked Cavender what he was doing, he ran out of the room.

On yet another occasion, V. K. encountered Cavender at her grandmother’s house in Coweta County. Cavender approached while she was sleeping on a couch and pulled the covers back from her buttocks. V. K. woke up, told Cavender to leave her alone, and he departed.

Cavender also engaged in inappropriate conduct with another relative’s son and daughter, D. B. and M. B. In the spring of 2010, three-year-old D. B. told his mother and stepfather that Cavender had “stuck his wee-wee into [D. B.’s] butt hole.” The following spring, six-year-old M. B. made a similar outcry to her stepfather, and she informed a psychologist that Cavender had “put his private in her butt.”

In addition to this evidence, the state offered similar transaction testimony from two other girls, C. C. and J. S. C. C. testified that, on one occasion, she and J. S. spent the night at the Cavender family home. During the night, C. C. woke up to find Cavender kneeling over her, rubbing his hand on her leg and vagina. J. S. also provided details about the incident, noting that it had occurred around November 2008 and that Cavender had rubbed her legs several times that morning as she tried to sleep.

Case No. A14A1304

The Carroll County Indictment

1. Pursuant to the Carroll County indictment, Cavender was convicted of two counts of child molestation for separate incidents in which he touched V. K.’s buttocks and removed the bedcovers from V. K. while she slept. On appeal, Cavender argues that these convictions must be reversed because “there was nothing to show physical contact of a sexual nature.” We disagree.

A person commits the offense of child molestation when he “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Child molestation does not require a physical touching. The key question is whether the defendant committed an immoral or indecent act with the intent to arouse or satisfy his or the victim’s sexual desires. For purposes of OCGA § 16-6-4, immoral or indecent acts are “acts generally viewed as morally indelicate or improper or offensive and acts which offend against the public’s sense of propriety.” Whether an action meets this definition “is a jury question that may be determined in conjunction with the intent that drives the act.”

V. K. testified that Cavender placed his hand on her buttocks while she was sleeping and, on another occasion, lifted the covers near her buttocks and stared at her. In both instances, he quickly left the room when she woke up. The evidence further shows that Cavender committed similar acts against other sleeping girls, including one incident where he touched C. C.’s vagina and another where he tried to pull off T. B.’s pants. Under these circumstances, a jury could find that Cavender engaged in immoral or indecent acts against V. K. with the intent to arouse or satisfy his sexual desires. The evidence supporting the Carroll County convictions, therefore, is sufficient.

Case No. A14A1305

The Coweta County Indictment

2. Cavender argues that the state failed to prove venue as to the first two counts of the Coweta County indictment, which involve the abuse of D. B. and M. B. “[P]roper venue in all criminal cases is the county in which the crime was allegedly committed and is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt.” The state may establish venue through direct and circumstantial evidence. Whether the state proved venue beyond a reasonable doubt is a question for the jury, and the jury’s determination will not be set aside if any evidence supports it.

According to Cavender, the state offered no evidence that D. B. and M. B. were molested in Coweta County. The evidence shows, however, that D. B. told a police investigator that the abuse occurred at Cavender’s house, and D. B.’s outcry occurred just after he returned from a visit to Cavender’s home in the spring of 2010. Similarly, M. B. stated in a forensic interview that she was abused at Cavender’s residence, and she told her father that the molestation took place approximately 13 months prior to her May 2011 outcry.

Based on this evidence, a jury could find that both incidents occurred in the spring of 2010 at Cavender’s home. And although the testimony about where Cavender lived at the time is conflicting, the record contains evidence that he resided at an apartment in Coweta County between February 2009 and at least November 2010. Under these circumstances, the jury was authorized to conclude that Cavender molested D. B. and M. B. in Coweta County.

3. Cavender also challenges the sufficiency of the evidence as to counts four through seven of the Coweta County indictment.

(a) We agree with Cavender that the evidence is insufficient as to count four, which alleges that he molested T. B. by lifting the covers off her body while she slept. At trial, T. B. testified without equivocation that this incident occurred in Carroll County. Venue in Coweta County, therefore, was improper. Although the state argues that Cavender waived the issue of venue by agreeing to join the Coweta County and Carroll County indictments for trial, the record shows that he waived venue only as to the crimes indicted in Carroll County, not the Coweta County offenses. Accordingly, because the crime charged in count four of the Coweta County indictment did not take place in Coweta County, we must reverse Cavender’s conviction as to this offense. We note, however, that Cavender may be retried for this crime “because evidence of venue does not go to the guilt or innocence of the accused, and hence it does not invoke double jeopardy concerns.”

(b) The evidence relating to counts five through seven of the Coweta County indictment, however, is sufficient. Those counts allege that Cavender molested V. K. by (1) lifting her bedcovers to stare at her buttocks while she was sleeping; (2) lying down between V. K. and her friend as they slept; and (3) lifting the bedcovers off V. K.’s buttocks on a different occasion while she slept on a couch at her grandmother’s house.

Once again, Cavender argues that these allegations do not imply any sexual misconduct. As we explained above, however, the jury was tasked with resolving whether Cavender’s conduct constituted an immoral or indecent act committed with intent to arouse or satisfy his sexual desires. V. K. testified about these events at trial, stating that she woke each time to find Cavender moving her bedcovers, staring at her body, or sleeping beside her. When she asked Cavender what he was doing, he left the room. This evidence, combined with the evidence of Cavender’s similar behavior with other girls and prior conduct toward V. K., authorized the jury to find Cavender guilty of molestation as charged in counts five through seven of the Coweta County indictment.

Decided November 20, 2014.

Person Law Firm, Wesley G. Person, for appellant.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

Judgment affirmed in Case No. A14A1304. Judgment affirmed in part and reversed in part in Case No. A14A1305.

Ellington, P. J., and McMillian, J., concur.

       The trial court directed a verdict for Cavender on the Carroll County sexual battery counts, and the jury found Cavender guilty of the lesser included offense of child molestation on the Coweta County aggravated child molestation charges.

        O’Rourke v. State, 327 Ga. App. 628, 630 (1) (760 SE2d 636) (2014).

       Id. (citation and punctuation omitted).

       OCGA § 16-6-4 (a) (1).

       See Hicks v. State, 254 Ga. App. 814, 816 (2) (563 SE2d 897) (2002) (the act required by child molestation statute “maybe merely verbal”); Snider v. State, 238 Ga. App. 55, 56-57 (1) (a) (516 SE2d 569) (1999) (child molestation conviction was supported by sufficient evidence where, among other things, defendant was often nude in presence of teenaged victim, sat on edge of tub while victim bathed, and watched her take a shower).

        Wormley v. State, 255 Ga. App. 347, 348 (565 SE2d 530) (2002) (citation and punctuation omitted).

        Lester v. State, 278 Ga. App. 247, 251 (3) (628 SE2d 674) (2006) (citation and punctuation omitted).

       See O’Rourke, supra at 631 (1) (evidence that defendant touched victim’s buttocks with hand and fingers supported child molestation conviction); Snider, supra at 56-57 (1) (child molestation conviction sustained in part on evidence that defendant watched teenaged victim in bath); Pittman v. State, 178 Ga. App. 693, 694(4) (344 SE2d 511) (1986) (“In child molestation cases evidence of other similar or connected sexual offenses against children is admissible to corroborate the testimony of the victim as well as to show the lustful disposition of the defendant”) (citation and punctuation omitted).

       See OCGA § 16-6-4 (a) (1); O’Rourke, supra; Snider, supra; see also Shorter v. State, 271 Ga. App. 528, 529 (1) (610 SE2d 162) (2005) (child molestation convictions supported by sufficient evidence, which included testimony from the victims and similar transaction witnesses).

        Hargrave v. State, 311 Ga. App. 852, 853 (1) (717 SE2d 485) (2011).

       Id.

       Id.; see also Moody v. State, 279 Ga. App. 457, 458-459 (631 SE2d 473) (2006) (“[A]slong as there is some competent evidence on each element necessary to prove the state’s case, the jury’s verdict will be upheld. [And] since venue is a question for the jury, its decision will not be set aside if there is any evidence to support it.”) (punctuation and footnote omitted).

       Cavender’s father-in-law testified that Cavender moved into the Coweta County residence in February 2009, and T. B. asserted that he still lived there in November 2010.

       See Hargrave, supra at 854-855 (1) (jury must resolve conflicts in evidence as to venue).

       Although Cavender also purports to challenge his conviction under count eight, the Coweta County indictment has only seven counts.

       T. B. offered no testimony about where the incident occurred in Carroll County, such as at a particular house or location. She stated only that it took place in Carroll County.

       See Thompson v. State, 277 Ga. 102, 104 (3) (586 SE2d 231) (2003) (reversing conviction on venue grounds where victim testified that crime occurred at defendant’s place of business, but there was no evidence as to location of business).

        Rogers v. State, 298 Ga. App. 895, 899 (3), n. 9 (681 SE2d 693) (2009) (citation and punctuation omitted).

       See OCGA § 16-6-4 (a) (1); O’Rourke, supra; Shorter, supra; Snider, supra.


author: ANDREWS, Presiding Judge.

text:
    A14A1379.
    SHIRLEY v. SAILORS et al.
    (766 SE2d 201)
   ANDREWS, Presiding Judge.

A. D. Shirley, Sr., a beneficiary under the wills of Otha and Marguerite Bennett, filed proceedings in the probate court against Dorothy Sailors, the executrix under the wills, seeking a settlement of accounts, and alleging that Sailors acted as an executor de son tort, and converted money from the estates. The probate court issued a decision in favor of Shirley, and Sailors appealed to the superior court. In the present appeal, Shirley claims the superior court erred by granting motions for partial summary judgment in favor of Sailors on the de son tort and conversion issues, and by denying his motion for partial summary judgment. For the following reasons, we affirm in part and reverse in part.

Otha Bennett died testate on August 25, 2005 at the age of 87 leaving his entire estate to his widow, Marguerite Bennett, who died testate on May 21, 2007 at the age of 92. In August 2007, the Probate Court of Banks County issued letters testamentary to Sailors, as executrix under both wills, and the wills were probated in solemn form. In July 2008, Shirley, the residuary beneficiary in Marguerite’s will, cited Sailors, as executrix of Marguerite’s estate, to appear before the probate court for a settlement of accounts. In October 2008, Shirley filed a motion in Otha’s estate and Marguerite’s estate asking the probate court to declare Sailors to be an executor de son tort pursuant to OCGA § 53-6-2, and alleging that Sailors converted money from the estates. In April 2011, the probate court conducted a hearing on the settlement of accounts and the motion. After hearing evidence, the probate court issued a final order finding that Sailors breached her fiduciary duties as an executrix of the estates; that Sailors acted as an executor de son tort; and that Sailors converted money from the estates which Shirley would have received as a beneficiary under Marguerite’s will. The probate court ordered that Shirley recover from Sailors as settlement of Marguerite’s estate the amount of $749,780.78 (including penalties pursuant to OCGA § 53-6-2) plus interest.

Sailors (as executrix in both estates and individually) appealed from the probate court decision to the Superior Court of Banks County. OCGA §§ 5-3-2 (a); 5-3-29. In the superior court, Sailors filed two motions: (1) a motion for partial summary judgment on Shirley’s motion to declare that Sailors acted as an executor de son tort pursuant to OCGA § 53-6-2; and (2) a motion for partial summary judgment to determine ownership of all joint accounts, savings accounts, and certificates of deposit, as joint tenants with right of survivorship. Shirley filed a cross-motion for partial summary judgment on the issue of ownership of joint accounts or certificates of deposit.

1. The superior court correctly granted partial summary judgment in favor of Sailors on Shirley’s motion asking that Sailors be deemed an executor de son tort for actions she took prior to being appointed executrix of the estates at issue.

Under OCGA § 53-6-2,

[a]ny person who, without authority of law, wrongfully intermeddles with or converts the personalty of a decedent whose estate is unrepresented shall be deemed an executor de son tort and as such shall be liable to the creditors and heirs or beneficiaries of the estate for double the value of the property so possessed and converted.

The double liability is a penalty imposed on an executor de son tort (an executor of his own wrong) for converting property from a decedent’s unrepresented estate. Mathews v. DeFoor, 172 Ga. 318, 318 (158 SE 7) (1931). But where a person

renders himself liable as an executor [of] his own wrong, but is then appointed administrator and duly qualifies as such, he can not, in a suit thereafter brought, be held liable as an executor [of] his own wrong on account of such prior conduct; but he becomes liable for the proper administration of the estate as a lawful administrator.

Id. at 319. Because Sailors was subsequently appointed executrix of both estates at issue, she cannot be held liable under OCGA § 53-6-2 as an executor de son tort for alleged prior wrongful conduct. Id. But this does not preclude Shirley’s separate claim that Sailors wrongfully obtained or held money in various accounts that belonged to the estates, and that she breached her fiduciary duties as executrix by failing to recover this property for the estates. See Greenway v. Hamilton, 280 Ga. 652 (631 SE2d 689) (2006); In re Estate of Knapp, 326 Ga. App. 486, 489-490 (756 SE2d 716) (2014). Although the superior court cited other reasons for its grant of partial summary judgment in favor of Sailors on the issue of whether she acted as an executor de son tort, we affirm under the right for any reason rule. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

2. The superior court also granted Sailors’s motion for partial summary judgment on the issue of the ownership of joint accounts and certificates of deposit with the right of survivorship, and denied Shirley’s cross-motion for partial summary judgment on this issue. Essentially, the issue was whether money in various bank accounts and certificates of deposit, originally funded by the Bennetts as joint accounts with right of survivorship in the name of the Bennetts and Sailors, passed outside the decedents’ estates to Sailors, individually, pursuant to the presumption set forth in OCGA § 7-1-813 (a).

It is undisputed that in 1999 and 2000, Otha and Marguerite approached Sailors (Otha’s niece) and sought her assistance with handling their finances. Otha and Marguerite, along with Sailors, went to a bank where Otha did business, and Otha opened three new joint accounts with right of survivorship; placed existing bank accounts and certificates of deposit owned by Otha and Marguerite into the three accounts; and put each account in all three names — Otha Newton Bennett, Marguerite Bennett, and Dorothy A. Sailors. The bank employee who knew Otha from prior business at the bank, and assisted in opening the new accounts, testified that Otha conducted all the business and told her to open the joint accounts. Funds from these joint accounts were eventually used to purchase certificates of deposit also jointly held in the names of the Bennetts and Sailors.

In February 2001, Otha and Marguerite executed separate wills (both naming Sailors as executrix) and executed separate, identical powers of attorney. Otha’s will left all of his estate to his surviving wife, Marguerite, and contained a residuary bequest to Shirley. Similarly, Marguerite’s will left all of her estate to Otha (if he survived her) and contained a residuary bequest to Shirley. Both wills contained a provision recognizing the effect of existing joint accounts and stating:

All bonds, bank accounts, savings and loan accounts and other similar property I may own at the time of my death in the name of myself and any other person, which are in terms payable on or after my death to such person, shall be the sole property of such person, and my Execut[rix] shall make no claim against such person on account thereof.

The powers of attorney executed by Otha and Marguerite both named Sailors as their agent and gave her general financial powers to act for their benefit by managing their estates and affairs, including the power

[t]o make deposits or investments in, or withdrawals from, any account, holding or interest which I may own or hereafter have, or be entitled to, in any banking, trust or investment institution, including postal savings, depository office, credit unions, savings and loan associations and similar institutions, to exercise any right, option or privileges pertaining thereto; and to open or establish accounts, holdings or interest of whatever kind or nature, with such institution, in my name or in my said [agent’s] name or in both our names jointly, either with or without right of survivorship.

From early 2001 until the Bennetts died, Sailors visited Otha and Marguerite three to four times a week, drove them to appointments in her car, bought their groceries, paid their bills, took them to the doctor, and essentially acted as their fulltime care giver, in addition to managing their finances, funds in accounts, and certificates of deposit, The record shows that, during this period, Sailors made numerous financial decisions for the Bennetts with respect to funds in the original joint accounts and certificates of deposit. As a joint account holder with the Bennetts, or pursuant to power of attorney, Sailors withdrew funds on numerous occasions from the original joint accounts and certificates of deposit and transferred the funds to other accounts or certificates of deposit paying higher interest rates. Sailors often made these transfers into accounts or certificates of deposit in her name only, or in her name and her husband’s name. Evidence showed that, with some exceptions, Sailors used the funds in all the accounts for the benefit of Otha and Marguerite during their lives, regardless of whether the accounts or certificates of deposit were jointly in her name with one or both of the Bennetts, or solely in her name or with her husband. There was evidence that the Bennetts gave Sailors authority to place these funds in the various accounts and certificates of deposit she established, and Sailors testified that Otha told her on numerous occasions that, what was left of the funds after she took care of them for life, would belong to her.

When Otha died in August 2005, and when Marguerite died in May 2007, funds existed in these various accounts or certificates of deposit that were solely in Sailors’s name (or in the names of Sailors and her husband).

Under OCGA § 7-1-813 (a),

[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. If there are two or more surviving parties, the respective ownership of each during his lifetime shall be in proportion to his previous ownership interests under Code Section 7-1-812, augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of survivorship continues between the surviving parties.

As provided in OCGA § 7-1-812 (a), “[a] joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” Accordingly, when the Bennetts established and wholly funded the original joint accounts and certificates of deposit (held jointly with Sailors, who furnished no money), this gave rise to a presumption that funds remaining in the joint accounts after the Bennetts died belonged to Sailors and did not become part of the decedents’ estates. OCGA § 7-1-813 (a). Moreover, under these provisions, Otha and Marguerite each owned half of the funds in the joint accounts during their lifetimes, and when Otha died in August 2005, Otha’s half interest was split equally between the surviving account holders, Marguerite and Sailors. OCGA § 7-1-812 (a).

In applying these principles to funds in the various accounts and certificates of deposit existing when Marguerite died, the superior court found that all of the funds originated from the joint accounts funded by Otha and Marguerite. Because all the funds could be traced to the original joint accounts, the court apparently concluded that the presumption in OCGA § 7-1-813 (a) applied so that funds remaining after Otha and Marguerite died belonged to Sailors as against any claim by the decedents’ estates. We find that the superior court erred to the extent it applied the presumption in OCGA § 7-1-813 (a) to funds which Sailors withdrew from the original joint accounts and placed in accounts solely in her name (or with her husband). Although OCGA § 7-1-817 provides that any sums in a joint account may be paid, on request, to any party on the joint account, this does not give a party to the j oint account authority to take and exercise control over account funds (owned by another joint party) in which the taking party has no ownership interest. Parker v. Kennon, 242 Ga. App. 627, 628-629 (530 SE2d 527) (2000). “[A]uthority to withdraw funds from a joint account does not equate to ‘ownership’ of those funds.” Howard v. Estate of Howard, 249 Ga. App. 287, 291 (548 SE2d 48) (2001). To the extent Sailors took funds in excess of her ownership from a joint account containing funds owned by Otha or Marguerite, and placed those funds in an account in her name, this severed the joint account relationship and extinguished the presumption under OCGA § 7-1-813 (a) that the funds belonged to Sailors after the Bennetts died. As to the funds remaining in these accounts, a factual issue exists on Shirley’s claim that the funds belong to the decedents’ estates. To the extent that any funds remained in joint accounts or certificates of deposit established between Sailors and Otha or Marguerite, the superior court correctly concluded that the presumption in OCGA § 7-1-813 (a) applied; that there was no clear and convincing evidence to the contrary; and that funds remaining in those accounts belonged to Sailors after the Bennetts died.

Judgment affirmed in part and reversed in part.

McFadden, J., concurs. Ray, J., concurs in judgment only.

Decided November 20, 2014.

David C. Jones, Jr., for appellant.

Wanda L. Barnett, Perry Law Firm, Gregory M. Perry, Jeffrey M. Perry, for appellees.

       Sailors testified that she placed her husband’s name on the accounts so that, if she became disabled, he could give the accounts to another relative of Otha’s to use the funds for care of the Bennetts.

       There was evidence that Sailors paid herself as much as $500 per month for her care of the Bennetts and financial management, and that she used funds to repair her car, and remove a tree at her home.

       The superior court calculated that, when Sailors started managing the Bennetts’ money, their joint accounts totaled about $374,000, and at Marguerite’s death, the funds in various accounts traceable to the original joint funds was about $419,000.