author: Dillard, Judge.

text:
    A13A1631.
    THE STATE v. MUNOZ.
    (749 SE2d 48)
   Dillard, Judge.

The State appeals the trial court’s order suppressing Miguel Munoz’s custodial statement, arguing that the trial court erred in finding that it was not freely and voluntarily given. For the reasons set forth infra, we agree and reverse.

The facts pertinent to this appeal are undisputed. In December 2011, a detective with the Alpharetta Police Department began investigating a report filed by 15-year-oldP. G.’s mother that P. G. had been forcibly raped by 21-year-old Munoz after P. G. and several friends consumed alcohol at Munoz’s apartment. After interviewing P. G. and several other witnesses to the evening in question, the detective received information that P. G. and Munoz may have had sex, but that P. G.’s allegations of rape may have arisen only after her parents learned about it.

The detective took Munoz into custody and conducted a recorded interview. Prior to commencing the interview, Munoz was given and expressly waived his Miranda rights. The detective then began questioning Munoz about the reported incident and requested his version of the night at issue. When Munoz described a sequence of events that omitted any physical contact with P. G., this dialogue ensued:

Detective: Let me tell you what... I gave you the respect to come in here and be straight up and honest with me about what happened. But right now I have to call the bullshit card. I don’t know if you know this but I already talked to everyone that was in your house that night and what you’re telling me is very different from what they were saying. So, I want you to tell me exactly what happened with you and [P. G.]. And I’m not even going to bullshit with you. I’m going to tell you this, I don’t know if you know but you probably know, she went to the doctor the next day. She had a complete vaginal exam. We have DNA.[] We have all the doctor’s tests. ... I already know you guys had sex. I’m not worried about that. I don’t care What I care about is that I have a fifteen-year-old girl who’s telling everyone she was raped, okay? And I have to make sure that that wasn’t rape because there is a huge difference between forcing someone to have sex with you and someone that wants to have sex with you. . . . You see the difference?
Munoz: Yes.
Detective: You see the repercussions it can have on your life? Munoz: Yes.
Detective: Okay. So, now start talking.
Munoz: I did not have sex with her. . . .
Detective: I’m calling the bullshit card .... The only reason I am here with you instead of just throwing you in the jail is because I was to get your side. And I’m telling you she went to the doctor the next day, okay? So, I know she had sex. She knows she had sex, she knows her body. Everybody in that house said you had sex with her. But now that her father knows about it, she’s saying it was rape. And that’s my problem.
Munoz: I understand your problem.
Detective: So, if you come in here and be straight up with me and tell me what happened If you tell me, “Look, she was drunk, I was drunk, we were smoking, we were horny—”
Munoz: (Interjecting) And then, what, I get thrown in jail? And then I get charged for having sex with a minor? Detective: Listen to me. I’m here to work with you, okay? I’m here to work with you. I wouldn’t just waste my time. I’d just throw you in jail, okay?
Munoz: Yeah, I know.
Detective: You tell me that she wanted it or she actually forced you to have sex—anything. Cause I already know that she had sex, okay? So, you’re telling me “I haven’t touched her, she’s 15.” I know that wasn’t crossing your mind when you were drunk... but you giving me the truth and working with me can get you a long way, you sitting here and saying I didn’t do nothing—
Munoz: (Interjecting) No, I understand—
Detective: (Continuing)—That paints a totally different picture.
Officer 2: And there is going to be some scientific evidence at the end of the day . . . you can’t make that up.
Munoz: Yeah, DNA is DNA.... Well, look at it from my point of view. Even if I admit it, saying, “Oh yeah, I had sex with her,” there goes my school, my job. There goes everything. Don’t you get—■
Detective: (Interjecting) Not necessarily.
Munoz: (Continuing) registered—don’t you get like registered for having sex with a minor?
Detective: Not necessarily. That’s why I’m here with you.
Munoz: Yeah, but let’s be honest.
Detective: We are honest.
Munoz: Yeah, but who knows you’re not just saying that so I would tell the truth. Who’s to say—not calling you a liar, not saying you’re not credible. You’re not arrested. You’re not on the warrant.
Detective: I already know the truth .... But the only reason why I am here is because I want your side, okay? I don’t think you’re still understanding this. Because this is a whole different ball game if I present the case to the D.A. saying, “This guy did not cooperate with me. She said she was raped. Everybody saw her in this room. The doctor knows she had sex. Her parents know she had sex, everybody at school saw how shocked she was.” Okay? All of that against you ... and comparing to, “Hey, I talked to the guy. He was really honest with me, he told me straight up, ya know—”
Munoz: (Interjecting) Alright—
Detective: (Continuing) He made a mistake-—
Munoz: (Interjecting)—Alright. Alright.
Detective: (Continuing) Ya know, that she wanted it—
Munoz: (Interjecting) I’m gonna do the right thing—
Detective: (Continuing) he wanted it—
Munoz: (Interrupting) I’m gonna do the right thing. I’m gonna do the right thing. I’ll tell you everything I have. I promise. Just like I said, you have to see my point of view. I don’t—it’s hard. I don’t—this isn’t like I robbed a liquor store, or I stole a candy bar from a candy store, or something like that. This isn’t, oh, a traffic ticket, pulled over. This is something, like serious, like you were saying before. This is like jail for a long time, registered as a rapist, or it’s like that. Detective: If it gets to that, yes.
Munoz: So, everything-—-I mean, everything you’re assuming is true. I had sex with [P. G.].

Munoz then proceeded to detail the night in question, after which the interview proceeded as follows:

Detective: I can tell you that the fact that you did come to your senses and talk with us and be honest with us that— and being honest with us, that definitely helps. Because now I’m the one making the phone call and I can say, “Hey, this guy’s cool. He was straight up with me. He told me everything. He told me everything I wanted to know.” You know, “Take it easy on him.” Alright, I can’t promise you, you know—
Munoz: (Interrupting) Oh, I know. ... To be honest, I know something is gonna happen. How extreme it’s gonna be and how light it’s gonna be is another question. But I know something is gonna happen and I take responsibility for my actions ....
The interview ended shortly thereafter.

Munoz was subsequently charged with statutory rape, child molestation, and contributing to the delinquency of a minor. He thereafter filed a motion to suppress his statement, arguing that it was not freely and voluntarily given. Following a hearing, the trial court granted the motion after concluding that the statement was induced by

a threat that if [Munoz] denied having sexual intercourse with [P. G.] he would be charged with forcible rape, and a promise that if he admitted to having sexual intercourse with ... her he would not be charged with forcible rape, that he would not be thrown in jail[,] and that he would not have to register as a sex offender.

This appeal follows.

The crux of this appeal is whether Munoz’s confession was voluntary or whether it was instead induced by a “hope of benefit” promised by the State. At the outset, we note that incriminating statements are only admissible if “made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” Thus, to overcome suppression, the State must show that (1) the suspect was not presented with the “slightest hope of benefit,” and (2) even if a “hope of benefit” was presented to the criminal defendant by the State, the suspect’s incriminating statements were not actually induced by this “hope of benefit,” such that his or her confession was rendered involuntary as a matter of law.

At a motion-to-suppress hearing, the State must demonstrate the voluntariness of a confession by a preponderance of the evidence, and the trial court’s determination must be based on the totality of the circumstances. The trial court’s ruling as to voluntariness “must be upheld by the appellate court unless the decision is clearly erroneous.” And when reviewing the trial court’s decision, we must construe the evidence most favorably to upholding the trial court’s findings and judgment. Nevertheless, when the pertinent facts are not in dispute, our review is de novo, and we apply the legal principles to the facts independently. With these guiding principles in mind, we will now address the State’s sole enumeration of error.

The State argues that the trial court erred in suppressing Munoz’s statement, which it contends was not actually induced by threat or hope of benefit, but was instead freely and voluntarily given. Because we agree with the State, we reverse.

It is well established that “only voluntary incriminating statements are admissible against the accused at trial.” A statement is voluntary only if it was not actually induced by the “remotest fear of injury” or by the “slightest hope of benefit.” Generally, “fear of injury” in this context refers to “physical or mental torture or coercion by threats.” And the “slightest hope of benefit” has been interpreted to focus on “promises related to reduced criminal punishment—a shorter sentence, lesser charges, or no charges at all.” When determining whether a confession was freely given, we must look to the totality of the circumstances and the burden is on the State to prove by a preponderance of the evidence that a statement was, in fact, voluntary.

Significantly, however, the mere fact that an officer promises something to a person suspected of a crime in exchange for that person’s speaking about the crime “does not automatically render inadmissible any statement obtained as a result of that promise.” Rather, the key inquiry is whether “the alleged promise actually induced the statement that [the defendant] seeks to suppress.” Indeed, in order for a promise to render a confession involuntary, “[t]here must also be a causal connection between the police conduct and the confession.”

Here, the trial court identified both a threat and a hope of benefit that it concluded wrongfully induced Munoz’s statement and rendered it involuntary. Specifically, the trial court inferred from the colloquy between Munoz and the detective that Munoz was implicitly threatened that his failure to admit to sexual intercourse with P. G. would result in him being charged with forcible rape. And the trial court likewise construed the exchange as “a promise that if he admitted to having sexual intercourse with [P. G.], he would not be charged with forcible rape, that he would not be thrown in jail[,] and that he would not have to register as a sex offender.” We will address each of these findings in turn.

1. With respect to the implicit threat that Munoz was potentially facing a charge of forcible rape, the detective expressed nothing more than a truism. The crime was originally reported as such by P. G.’s mother, and it is apparent that throughout the detective’s investigation up to and including her interview with Munoz, the detective was attempting to determine whether the evidence gathered supported a claim of forcible, as opposed to statutory, rape. Moreover, to the extent that the detective encouraged Munoz to present his version of events so as to dispel allegations that he forcibly raped P. G., the questioning was not improper. It is well established that “admonitions to tell the truth will not invalidate a confession,” nor will assurances that the investigator will make a suspect’s cooperation known to the prosecution and it may help him or her.

Decided October 2, 2013

Reconsideration denied October 29, 2013.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Assistant District Attorney, for appellant.

2. We further disagree with the conclusion that Munoz’s statement was actually induced by a hope of benefit. Accepting the inferences drawn by the trial court that the detective promised Munoz “that he would not be charged with forcible rape, that he would not be thrown in jail and that he would not have to register as a sex offender” if he confessed to having sex with P. G., the recorded interview shows unequivocally that Munoz’s statement, nevertheless, was not actually induced by any such belief. Indeed, immediately before his admission, Munoz expressly acknowledged that his statement would result in him being sent to “jail for a long time [and being] registered as a rapist,” and the detective conceded, “[i]f it gets to that, yes.” And immediately after the confession, the detective informed Munoz that she could make no promises with regard to the outcome of the case, and Munoz responded “I know” before expressing that he knew “something [was] gonna happen.” Thus, even if the statements made by the detective “constitute [d] an improper hope of benefit, they, nevertheless, when viewed in the totality of the circumstances, did not actually induce [Munoz’s] confession.” It follows, then, that the trial court erred in suppressing Munoz’s statement.

Judgment reversed.

Andrews, P. J., concurs. McMillian, J., concurs fully in Division 1 and in judgment only as to Division 2.

Jennifer Lubinsky, for appellee.

       See OCGA § 5-7-1 (a) (4) (“An appeal may be taken by and on behalf of the State of Georgia from the superior courts . . . [f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized . . . .”).

        See OCGA § 16-6-1 (a) (1) (“A person commits the offense of rape when he has carnal knowledge of. . . [a] female forcibly and against her will.”).

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

       It is undisputed that, although P. G. did eventually go to the doctor, it was not the day following the incident and no DNA evidence was gathered. See Riley v. State, 278 Ga. 677, 680 (3) (604 SE2d 488) (2004) (“The officers’ bluff that scientific evidence would tell them exactly what happened in the trailer also did not make [the defendant’s] statement inadmissible, even considering that they admitted at the pretrial hearing that they had overstated their investigative capability.”); Frazier v. Cupp, 394 U. S. 731, 739 (89 SCt 1420, 22 LE2d 684) (1969) (“The fact that the police misrepresented [witness] statements ..., while relevant, [is] insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances’. . . .”); United States v. Harris, 914 F2d 927, 933 (7th Cir. 1990) (“[I]t is well settled that police may use small deceptions while interrogating witnesses.”).

        See OCGA § 16-6-3 (a) (“A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse ....).

        See OCGA § 16-6-4 (a) (1) (“Aperson commits the offense of child molestation when such person . .. [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.”).

        See OCGA § 16-12-1 (b) (1) (“A person commits the offense of contributing to the delinquency, unruliness, or deprivation of a minor when such person . . . [k]nowingly and willfully encourages, causes, abets, connives, or aids a minor in committing a delinquent act.”).

       Former OCGA § 24-3-50; see also State v. Lynch, 286 Ga. 98, 99-100 (1) (686 SE2d 244) (2009); State v. Brown, 308 Ga. App. 480, 482 (708 SE2d 63) (2011).

        Brown, 308 Ga. App. at 482.

        See Lynch, 286 Ga. at 99-100 (1); Brown, 308 Ga. App. at 482.

        State v. Ritter, 268 Ga. 108, 108 (485 SE2d 492) (1997).

        See Brown, 308 Ga. App. at 482; Dunn v. State, 289 Ga. App. 585, 587 (1) (b), n.1 (657 SE2d 649) (2008).

        See Brown v. State, 290 Ga. 865, 868 (2) (a) (725 SE2d 320) (2012) (“There is no dispute about what took place during the police interview in question, since it was recorded with both video and audio.”).

        See Brown, 308 Ga. App. at 482-83.

        Ritter, 268 Ga. at 109 (1); see Edenfield v. State, 293 Ga. 370, 373 (2) (744 SE2d 738) (2013).

       Former OCGA § 24-3-50, repealed by Ga. L. 2011, p. 99, § 2 (effective Jan. 1, 2013). Coinciding with the effective date of Georgia’s new Evidence Code, OCGA § 24-3-50 was replaced without change by OCGA § 24-8-824.

        Id.

        Thomas v. State, 317 Ga. App. 729, 731 (732 SE2d 559) (2012) (punctuation omitted).

        Brown, 290 Ga. at 868-69 (2) (b).

        Edenfield, 293 Ga. at 374 (2).

        Pulley v. State, 291 Ga. 330, 332 (2) (729 SE2d 338) (2012) (punctuation omitted); see Edenfield, 293 Ga. at 374 (2).

        Pulley, 291 Ga. at 332 (2) (punctuation omitted; emphasis supplied); see Brown, 308 Ga. App. at 486 (2), n.20.

        Pulley, 291 Ga. at 333 (2) (punctuation omitted); see Brown, 308 Ga. App. at 486 (2).

        See Cantrell v. State, 299 Ga. App. 746, 749 (1) (683 SE2d 676) (2009) (“A statement by police that makes the defendant aware of the potential legal consequences is in the nature of a mere truism and does not constitute a threat of injury or promise of benefit within the meaning of OCGA § 24-3-50.” (punctuation omitted)); Rollinson v. State, 276 Ga. App. 375, 379 (1) (d) (623 SE2d 211) (2005) (“[T]he fact that [the defendant] was told he would be arrested if he refused to talk to the police officers does not amount to coercion making his statements inadmissible.”); Davis v. State, 245 Ga. App. 508, 509 (538 SE2d 159) (2000) (holding that interrogating officer’s statements to suspect that he was in “big trouble” and that the offense alleged was punishable by 20 years confinement were mere truisms and not threats).

        Compare OCGA § 16-6-1 (b) (“Aperson convicted of the offense of rape shall be punished by death, by imprisonment for life without parole, by imprisonment for life, or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life.”) with OCGA § 16-6-3 (b) (“[A] person convicted of the offense of statutory rape shall be punished by imprisonment for not less than one nor more than 20 years.”).

        Pittman v. State, 277 Ga. 475, 478 (2) (592 SE2d 72) (2004); see Askea v. State, 153 Ga. App. 849, 851 (3) (267 SE2d 279) (1980) (“Acomment by an interrogating officer that it is always better to tell the truth is not such an inducement as to invalidate a confession.”); see also Edenfield, 293 Ga. at 374-75 (2).

        Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132) (1996) (rejecting defendant’s assertion “that the trial court should have suppressed his confession because the investigator told defendant that if he cooperated, the investigator would let the district attorney know of his cooperation and it might help him”); see also Leigh v. State, 223 Ga. App. 726, 727 (1) (478 SE2d 905) (1996).

        Pulley, 291 Ga. at 333 (2) (punctuation omitted) (holding improper hope of benefit by police chief did not induce defendant’s confession when defendant admitted immediately prior to making the statement that he “did not care” if the interrogators were going to help him or not and “he was going to tell them what happened anyway”); see Brown, 308 Ga. App. at 486 (2) (holding that investigator’s promise that defendant would be going home regardless of what he said during the interview did not render his subsequent confession inadmissible in part because, under the totality of the circumstances, it was apparent that defendant knew and understood that not to be true).


source: Caselaw Access Project

author: DOYLE, Presiding Judge. MCFADDEN, Judge,

license: Public Domain

text:
    A13A1168.
    In the Interest of A. M. B. et al., children.
    (750 SE2d 709)
   DOYLE, Presiding Judge.

We granted the mother’s application for discretionary review of a trial court order terminating her parental rights to five-year-old A. M. B. and three-year-old M. É. After thorough consideration of this case, including our review of the transcript of the termination hearing, which was not available at the time we granted the mother’s application, we have determined that the juvenile court’s order was supported by clear and convincing evidence. Accordingly, we find that the application for discretionary appeal was improvidently granted, and we dismiss the mother’s appeal.

Here, the Department of Family and Children Services (“the Department”) ordered shelter care for A. M. B. and M. B. in June 2011, when the children were four years old and two years old respectively, based on an allegation of sexual abuse of A. M. B. by the father in January 2011, use of illegal drugs by the father, and lack of housing or income for either of the parents. At the time the children were removed, police found methamphetamine paraphernalia and marijuana in the home, the father’s sisters accused him of sexually abusing them when they were young, and there was a complaint against the father for sexually abusing his three-year-old niece. Initially, the Department prepared a reunification case plan for the mother, but thereafter moved to terminate the mother’s parental rights.

At the termination hearing, evidence showed that the mother was likely to subject the children to generalized neglect; the mother exhibited major depressive disorder and generalized anxiety disorder, which likely would damage the children; the mother had not gained any skills from attending parenting classes, could not cope with any negative behaviors of the children, and was not aware of her own parental incompetence; the mother was unemployed during the twelve months of her case plan, and only worked inconsistently during the last month before the hearing; the mother failed to complete individual counseling sessions, failed to complete drug treatment, failed to have consistent housing, and failed to provide clean drug screens during the plan; and the mother continued her dependent relationship with the father, who was alleged to have sexually abused A. M. B., and who evidenced antisocial behavior disorder, a provisional diagnosis of pedophilic behaviors, and long-term substance abuse with an overall low prognosis for treatment of these issues. All of these facts support the juvenile court’s findings and the order terminating the mother’s parental rights.

Although the mother claims that the termination order was based only on her lack of financial resources and contends that she should have been given more time to address her case plan,

[ejssentially, the [mother] is asking this [C]ourt to reweigh the evidence and reevaluate the credibility of witnesses, which we will not do. While the record does show the [mother’s slight] efforts to comply with some aspects of the case plan, what weight to give that evidence was a question for the trier of fact. Likewise, judging the credibility of [her] good intentions was a task for the juvenile court. Moreover, the juvenile court was authorized to consider the [mother’s] past conduct in determining whether the causes of depriva - tion were likely to continue. And the decision as to ... child[ren’s] future [s] must rest on more than positive promises which are contrary to negative past fact.

Given this record, we conclude that the juvenile court was authorized to terminate the mother’s parental rights.

In accordance with Court of Appeals rules, we granted the mother’s application for discretionary review without the benefit of the full appellate record, including the transcript of the termination hearing; however, because the record supports the order of the court below, we conclude that the application for discretionary appeal was improvidently granted. Accordingly, the order granting the mother’s application is vacated, and her appeal is hereby dismissed.

Appeal dismissed.

Boggs, J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to express a concern about the implications of the extension in 2008 of the discretionary appeal procedure to terminations of parental rights. Very often — as in this case — such applications come to this court without a transcript of the termination hearing. It is my understanding that some juvenile courts provide transcripts to indigent applicants only after an application for discretionary appeal has been granted. I question the soundness of such a practice.

Until 2008, terminations of parental rights were subject to the direct appeal procedure set out at OCGA § 5-6-34. In legislation effective January 1, 2008, the General Assembly added such appeals to the list of types of cases subject to the discretionary procedure set out at OCGA § 5-6-35. See Ga. L. 2007, p. 554, § 3.

In this court a party petitioning for discretionary appeal has the burden of showing that “[Reversible error appears to exist” or that “[t]he establishment of a precedent is desirable.” Court of Appeals Rule 31 (a). Without a transcript, it is often difficult for this court to determine that the burden has been met. It is true that “[i]f the parties to the application agree on what happened in the trial court and adequately present it to the appellate court there is no need for parts of the record or transcript.” Harper v. Harper, 259 Ga. 246 (378 SE2d 673) (1989). And we have announced our expectation that in light “of the importance of the issue involved in these cases, . . . the representatives of DFACS will cooperate with the parent’s legal representatives in preparing substitutes for the transcript in these cases.” In the Interest of D. R., 298 Ga. App. 774, 780 (2) (681 SE2d 218) (2009) (citation omitted), overruled on other grounds by In the Interest of A. C., 285 Ga. 829 (686 SE2d 635) (2009). “But where a part of the record or transcript is necessary in order for the appellate court to determine whether or not the application should be granted, that part should be included with the application or response.” Harper, supra. And these cases are often fact intensive.

A petitioner trying to secure a transcript for an application for discretionary appeal faces certain obstacles. One is the time needed to prepare a transcript. That obstacle can generally be overcome by filing a motion for new trial. See OCGA § 5-5-40 (c) (authorizing trial courts to delay the briefing and hearing on a motion for new trial until after the transcript is prepared).

Another obstacle is the cost of preparing a transcript. As to that cost, it was well established, prior to 2008, that indigent parties seeking to appeal from terminations of parental rights were entitled to a transcript at no charge. See Nix v. Dept. of Human Resources, 236 Ga. 794, 796 (225 SE2d 306) (1976) (“It would be a strange interpretation (of the juvenile code) indeed if we should find that the legislature specifically gave (the parent) the right to appeal; that it specifically provided that all proceedings in juvenile court should be reported; that it specifically provided for the appointment of counsel for indigent persons, but that it nevertheless refused to permit (the parent) to pursue her statutory right to appeal solely because she was unable to afford a transcript. We are unwilling to so hold.”) (citation and punctuation omitted). This court followed Nix in In the Interest of B. C. P., 229 Ga. App. 111, 115 (3) (493 SE2d 258) (1997) (“Transcript costs are to be provided to an indigent parent appealing a deprivation action. Although the statutes are silent, the Supreme Court of Georgia has spoken. Nix v. Dept. of Human Resources, [supra], held that an indigent parent whose parental rights have been terminated is entitled to ‘a paupered copy of the transcript’ for use in appealing the decision of the trial court. Id. Although the right in termination cases now stems from OCGA § 15-11-85 (b) and not OCGA § 15-11-30, the latter root still provides a firm base for government-provided transcripts in deprivation cases. The Supreme Court expressly referenced the predecessors to OCGA §§ 15-11-30 and 15-11-26 (e) as authority for the right to a paupered transcript. It applied the venerable principle of implication, ‘in est de jure.’ ”). See also M. L. B. v. S. L. J., 519 U. S. 102, 128 (VI) (117 SCt 555, 136 LE2d 473) (1996) (“we hold that Mississippi may not withhold from M. L. B. a record of sufficient completeness to permit proper appellate consideration of her claims”) (citation and punctuation omitted).

It may be that the rule set out by our Supreme Court in Nix, supra, 236 Ga. 794, does not cover applications to appeal from terminations of parental rights. But that is far from clear.

While the General Assembly’s reason for subjecting some types of cases to the discretionary appeal procedure was that they had been consuming more judicial resources than their importance warrants, see OCGA § 5-6-35 (a) (6) (appeals from judgments for $10,000 or less); OCGA § 42-12-8 (prisoners’ litigation), that was not the reason appeals from terminations were made discretionary. See M. L. B., supra, 519 U. S. at 119 (IV) (the United States Supreme Court “was unanimously of the view that the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment. It was also the Court’s unanimous view that few consequences of judicial action are so grave as the severance of natural family ties.”) (citations and punctuation omitted). Appeals from terminations of parental rights were made discretionary in order to advance the State’s

legitimate interest in not permitting children determined to be deprived to languish in temporary care, but instead, to leave this situation for permanent stable homes as expeditiously as possible. See In the Interest of D. R., [supra, 298 Ga. App. at 779 (2)]. The discretionary appeal process provided in OCGA § 5-6-35 (a) (12) helps accomplish this goal by offering effective appellate review in an expedited manner, yet permitting a full appeal of the termination of parental rights if that is shown to be warranted.

In the Interest of A. C., supra, 285 Ga. at 834 (2). See also In the Interest of J. N., 302 Ga. App. 631, 634 (1) (691 SE2d 396) (2010) (indicating that direct appeals are still available from deprivation orders).

In this case the lack of a transcript at the application stage caused delay. From the application, we discerned the possibility that the mother’s argument had merit, leading us to grant the application. But without a transcript we were unable to properly evaluate the case and determine whether a rational trier of fact could have found by clear and convincing evidence that the mother’s rights should be terminated. Now, with the benefit of a transcript and a full record, we dismiss the appeal as improvidently granted.

Decided October 30, 2013.

Stephanie R. Myers, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Prior, Daniel & Wiltshire, Lee R. Moss, for appellee.

The application was filed in September 2012 and granted in October 2012. The appeal was then docketed in this court in February 2013. So the General Assembly’s objective of expedited resolution was frustrated in this case by the lack of a transcript at the application stage.

       See In the Interest of K. D. E., 288 Ga. App. 520 (654 SE2d 651) (2007) (“On appeal from a termination order, this Court views the evidence in the light most favorable to the appellee and determines whether any rational trier of fact could have found by clear and convincing evidence that the [mother’s] right[ ] to custody ha[s] been lost. This [C]ourt neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.”) (citations and punctuation omitted).

       At the time of the allegations of sexual abuse, the mother and children lived with the father at a home provided by his family. After the children were removed from the parents, the mother continued to live with the father.

       Testimony was presented that the mother was detached and frustrated during visits, she lacked structure and could not discipline her children, and she did not appear to learn or want to learn anything during parenting classes.

       The mother had one clean urine screen in May of 2012, shortly before the petition was filed, but she refused to submit a hair follicle screen at that time; she refused all of her other drug screens.

       See In the Interest of K. D. E. at 523 (“Georgia law provides for a two-step process that must be followed in determining whether to terminate parental rights. OCGA § 15-11-94 (a) requires that the trial court first determine whether there is present clear and convincing evidence of parental misconduct or inability. Parental misconduct or inability is determined under the four criteria set forth in OCGA § 15-11-94 (b) (4) (A) (i)-(iv). Those four factors are: (1) the child is deprived; (2) the lack of proper parental care and control by the parent whose rights are being terminated is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are shown to exist by clear and convincing evidence, then the court must also determine whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home.”) (punctuation omitted).

       (Punctuation and footnotes omitted.) See In the Interest of D. B., 306 Ga. App. 129, 137 (1) (701 SE2d 588) (2010).

       See id. at 139 (2); In the Interest of R. B., 309 Ga. App. 407, 411-413 (1) (710 SE2d 611) (2011).

       See, e.g., Killian v. State, 315 Ga. App. 731, 732 (728 SE2d 258) (2012); Mosley v. Ga. Peace Officer & Standards Training Council, 217 Ga. App. 798 (458 SE2d 503) (1995).


author: DOYLE, Presiding Judge.

text:
    A13A1306.
    PORTER v. THE STATE.
    (750 SE2d 713)
   DOYLE, Presiding Judge.

Following a jury trial, Quintez Porter was convicted of family violence battery, cruelty to a child in the third degree, aggravated stalking, and terroristic threats. Porter appeals the subsequent denial of his motion for new trial, arguing that (1) the evidence was insufficient to support his conviction for family violence battery, (2) the trial court erred by admitting the victim’s prior consistent statement, and (3) the trial court abused its discretion by qualifying one of the State’s witnesses as an expert. We affirm, for the reasons that follow.

Construed in favor of the verdict, the record shows that on October 22, 2010, Sergeant John Drossman of the City of Monroe Police Department responded to an allegation of assault at Walton Regional Medical Center. When he arrived, Drossman met with A. K., who had noticeable swelling and redness on the right side of her face and lip and a small laceration behind her left ear. A. K. told the officer that Porter hit her on both sides of her face with his hand following a verbal argument, causing her earring to puncture the skin behind her left ear. According to A. K., she previously had pressed charges against Porter for assault on two separate occasions. Drossman took photographs of A. K.’s injuries, and the photographs were shown to the jury during the subsequent trial.

Another officer testified that on July 19, 2011, Porter went to A. K.’s residence and refused to leave, in violation of a no-contact bond. Porter also went to A. K.’s apartment on July 27, 2011. A. K. called 911, and Porter told another person present that “if [A. K.] got him arrested that he would come back and kill her.”

At trial, A. K. testified that Porter, the father of her two children, had been violent with her “[i]n the past,” but she could not remember any specific incidents, despite refreshing her recollection with police reports. A. K. testified that she “[could not] remember” why she went to the hospital on October 22, 2010, but recalled “feeling dizzy.” She also “[could not] remember” having contact with Porter that day, and she denied that they had an argument. When the prosecutor showed A. K. the photographs of her face taken by Drossman at the hospital, A. K. testified that she did not see any injuries on her face in the photographs, but offered that “whenever [she] cr [ied, her] face blotches up like that.” She also did not recall making the two 911 calls in July 2011, even after they were played for the jury.

At the conclusion of the evidence, the jury found Porter guilty on all charges. This appeal followed the denial of his subsequent motion for new trial.

1. Porter contends that the evidence was insufficient to support his conviction for family violence battery. We disagree.

When reviewing the sufficiency of the evidence on appeal,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

“A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” “If the offense of battery is committed between... persons who are parents of the same child . . . then such offense shall constitute the offense of family violence battery. . . .”

Although A. K. was unable to recall the incident during her trial testimony, her prior inconsistent statement to Drossman was admissible at trial as substantive evidence. The victim’s statement, Drossman’s testimony regarding her injuries, and the photographs of the injuries were sufficient to support the jury’s guilty verdict as to family violence battery.

2. Porter argues that the trial court erred by admitting Dross-man’s testimony about A. K.’s statement to him because it constituted improper bolstering, quoting case law providing that “unless a witness’s veracity has affirmatively been placed in issue, the witness’s prior consistent statement is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury.” This argument is entirely without merit.

A. K. denied that she argued with Porter on the day of the incident, could not recall if she saw him that day, and refused to admit that the photographs depicted injuries to her face. Her statement to Drossman explaining that Porter hit her in the head twice was, therefore, inconsistent with her trial testimony. As explained in Division 1, “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.”

3. Porter also contends that the trial court abused its discretion by qualifying Drossman as an expert in domestic violence. This enumeration provides no basis for reversal.

Decided October 30, 2013.

S. Sincere Richards, for appellant.

Layla H. Zon, District Attorney, Ronald V. McNease, Jr., Assistant District Attorney, for appellee.

Following Drossman’s testimony that he attended domestic violence training at the police academy, attended 12 to 15 full-day classes on domestic violence, and investigated more than 75 domestic violence cases, the trial court qualified Drossman as an expert in “domestic violence generally,” over defense counsel’s objection. Thereafter, the prosecutor asked Sergeant Drossman to “elaborate on any training [he] had identifying a pattern of domestic violence.” Dross-man responded:

Well, basically, through experience is where most of our knowledge comes from, you know, versus in a class or looking at Power[ ]Points. Most of our experience comes from real-life experience. Identifying victims based on statements, injuries[,] is easier than ... identifying patterns. I can’t say that I can tell you that somebody’s had a pattern of abuse unless they tell me or unless I’ve had prior knowledge. So for me to tell you I can develop or give you information about whether somebody’s got a pattern of being a victim unless they give me those statements or unless I have prior knowledge, that’s all I can base it off of.

The remainder of Drossman’s testimony addressed the charged incident; he did not offer any additional testimony regarding domestic violence patterns, and at no point did he offer an opinion regarding a pattern of domestic violence by Porter. Thus, pretermitting whether the trial court abused its discretion by qualifying Drossman as an expert, this enumeration fails because Porter has failed to show that he was harmed by the qualification.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-5-23.1 (f)(2).

       OCGA § 16-5-70 (d) (2).

       OCGA § 16-5-91 (a).

       OCGA § 16-11-37 (a).

       The trial court did, however, vacate Porter’s conviction for cruelty to a child based on insufficiency of the evidence.

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

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).

       OCGA § 16-5-23.1 (a).

       OCGA § 16-5-23.1 (f).

       See Meeks v. State, 281 Ga. App. 334, 336-337 (636 SE2d 77) (2006).

       See id.; Griffin v. State, 262 Ga. App. 87, 88 (1) (585 SE2d 145) (2003).

       (Punctuation omitted; emphasis supplied.) Blackmon v. State, 272 Ga. 858, 859 (2) (536 SE2d 148) (2000).

        Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

       See Kelly v. State, 197 Ga. App. 811, 815 (4) (399 SE2d 568) (1990) (“ ‘An appellant must show not only alleged error but also ensuing harm.’ ”).


author: Ellington, Presiding Judge.

text:
    A13A1346.
    BEST v. CB DECATUR COURT, LLC.
    (750 SE2d 716)
   Ellington, Presiding Judge.

Following a bench trial, the trial court found in favor of CB Decatur Court, LLC (hereinafter, “the plaintiff”) on its breach of contract suit against its commercial tenant, Irma Best. Best appeals, contending that the trial court abused its discretion when it reopened the evidence to allow the plaintiff to present additional evidence to support its claim for damages. She also contends that the court erred in awarding the plaintiff attorney fees. For the following reasons, we affirm the award of damages, but we reverse the court’s award of attorney fees.

The record shows that, in June 2001, Best entered into a commercial property lease with DCP Decatur Investors, LLC (“DCP”). After renewing the lease through 2013, Best vacated the property and stopped paying rent in August 2010. In December 2010, DCP filed suit against Best for past due rent, late fees, and interest, as well as attorney fees as provided by the contract and pursuant to OCGA § 13-1-11. In response, Best admitted that she had signed the lease agreement and renewals, but she denied that she owed DCP any money. She also filed a counterclaim for fraud and conversion. Following a hearing, the trial court granted DCP’s motion to substitute its successor in interest, CB Decatur Court, LLC, as the party plaintiff, and granted partial summary judgment to the plaintiff on Best’s liability for unpaid rent and related expenses under the lease agreement and on Best’s counterclaim.

On October 1, 2012, the court conducted a bench trial on the amount of damages to be awarded, during which it overruled Best’s hearsay objections to some of the plaintiff’s evidence. The court subsequently issued an “Order Reopening Evidence and Scheduling Continuation of Bench Trial,” which stated as follows:

Upon consideration of the evidence presented, and prior to the entry of final judgment, the Court finds material evidence was admitted improperly at trial under the business records exception to the hearsay rule, over [Best’s] objection. Finding it would be unjust to strike from consideration, after the close of evidence, all testimonial evidence of damages substantiated only by the Plaintiff’s summary of account, without allowing the Plaintiff an opportunity to present admissible evidence of the debt owed, the Court directs evidence shall be reopened in this case for the presentation of evidence on the issue of unpaid rent and fees.

Best did not object to the order or the recommencement of the bench trial, but she moved for a directed verdict at the beginning of the proceeding, arguing that the plaintiff had presented insufficient evidence of its damages during the initial portion of the bench trial. The trial court denied the motion, noting that the plaintiff had presented some evidence to support its claim for damages. The plaintiff then called Best as a witness; Best admitted that she had signed the lease agreement and renewals and that she had failed to make any payments due under the lease since August 2010. The plaintiff also called its property manager to testify, and Best was able to cross-examine the witness. Following argument by counsel, the court awarded the plaintiff $69,195.22 in past due rent, late fees, and interest, $24,218.33 in attorney fees, and $267.50 in court costs. Best appeals from this order.

1. Best contends that the trial court abused its discretion in reopening the evidence sua sponte to allow the plaintiff to introduce additional evidence in support of its claim for damages. We disagree.

With regard to the reopening of evidence, the Supreme Court of Georgia has adopted a forgiving rule, and grants trial courts very broad discretion in permitting parties to offer additional evidence at any stage of the trial. In fact, our Supreme Court has noted that “leniency in this area is very unlikely to constitute an abuse of discretion, as the appellate courts are guided by [former] OCGA § 24-1-2, which provides that ‘[t]he object of all legal investigation is the discovery of truth.’ ”

(Punctuation and footnotes omitted.) Adorno v. State, 314 Ga. App. 509, 513 (2) (724 SE2d 816) (2012), quoting Taylor v. State, 282 Ga. 502, 504 (3) (651 SE2d 715) (2007).

Under the circumstances presented, we discern no abuse of discretion in the trial court’s decision to recommence the bench trial and allow the plaintiff to present additional admissible evidence on the amount of damages it incurred as a result of Best’s breach of the lease. See Adorno v. State, 314 Ga. App. at 513-514 (2) (After closing arguments, but before charging the jury, the trial court notified the parties that it had realized that it had made a mistake in excluding certain evidence. Over the defendants’ objection, the court ruled that it would reopen the evidence to allow the State and the defendants to present additional evidence. On appeal, this Court found that the trial court did not abuse its discretion in reopening the evidence.).

2. Best contends that the trial court erred in awarding the plaintiff attorney fees, arguing that OCGA § 13-1-11 applies to obligations to pay attorney fees based upon notes or other evidence of indebtedness, including commercial leases, and that the plaintiff failed to comply with the notice requirements of OCGA § 13-1-11 (a) (3). We agree.

OCGA § 13-1-11 provides, in relevant part, as follows:

(a) Obligations to pay attorney’s fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable and collectable as a part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity, subject to subsection (b) of this Code section[] and to the following provisions:
(1) If such note or other evidence of indebtedness provides for attorney’s fees in some specific percent of the principal and interest owing thereon, such provision and obligation shall be valid and enforceable up to but not in excess of 15 percent of the principal and interest owing on said note or other evidence of indebtedness;
(2) If such note or other evidence of indebtedness provides for the payment of reasonable attorney’s fees without specifying any specific percent, such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00; and
(3) The holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney’s fees. If the maker, endorser, or party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney’s fees shall be void and no court shall enforce the agreement. The refusal of a debtor to accept delivery of the notice specified in this paragraph shall be the equivalent of such notice.

(Emphasis supplied.)

The lease agreement at issue in this case included the following provision: “Tenant agrees to pay all attorney’s fees and expenses Landlord incurs in enforcing any of the obligations of Tenant under this Lease, or in any litigation or negotiation in which Landlord shall, without its fault, become involved through or on account of this Lease.” During the bench trial, the plaintiff asserted that it had a contingency fee contract with its counsel that provided for attorney fees totaling 35 percent of the amount recovered on its suit. The plaintiff argued that, because the lease agreement obligated Best to pay “all” of its attorney fees — not just “reasonable” attorney fees — OCGA § 13-1-11 did not apply to limit the amount of fees it could recover in this case. Even so, the plaintiff asserted that its evidence showed that the amount of fees due under the contingency contract, i.e., 35 percent of its recovery for unpaid rent, late fees, and interest, was customary in collection cases and reasonable under the circumstances presented in this case.

In its final order, the trial court ruled that the plaintiff could not recover attorney fees under OCGA § 13-1-11 because it had failed to provide the notice required under OCGA § 13-1-11 (a) (3), and it found that the plaintiff had presented no evidence to support an attorney fee award under OCGA § 13-6-11. Even so, the trial court concluded that the plaintiff had presented sufficient evidence to support a finding that an award of $24,218.33 in attorney fees, pursuant to the contingency fee contract between the plaintiff and its counsel, “is usual and customary for this type of litigation and is reasonable for the work involved in this protracted case[.]” Based upon this conclusion, the court awarded that amount to the plaintiff under the attorney fee provision of the lease agreement.

(a) The first question presented here is whether OCGA § 13-1-11 applies in this case, i.e., when a landlord sues a tenant under a commercial lease agreement to collect past due rent, late fees, and interest. Given the Supreme Court of Georgia’s ruling in RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. 841 (653 SE2d 680) (2007) (“RadioShack”), we conclude that it does.

In RadioShack, the Supreme Court addressed the following certified question from the Eleventh Circuit Court of Appeals:

Whether OCGA § 13-1-11 applies to and limits the award of attorneys’ fees and costs in this particular case — where the landlord under a commercial lease agreement filed suit against a tenant seeking the collection of past due rent as well as a declaration of other contractual rights of the parties — and, therefore, precludes an award of full attorneys’ fees and costs as provided in the lease agreement.

Id. at 841-842. The Supreme Court answered this question in the affirmative, id. at 846, and explained its ruling as follows:

By its terms, OCGA § 13-1-11 (a) applies to “[obligations to pay attorney’s fees upon any note or other evidence of indebtedness” which is collected through an attorney after maturity.... Since the issue was first addressed in 1977, the Court of Appeals has repeatedly held that a lease constitutes an “evidence of indebtedness” under OCGA § 13-1-11. In other cases, OCGA § 13-1-11 has been applied unquestioningly to provisions in leases authorizing the landlord to recover attorney’s fees against a tenant in default. Furthermore, the Court of Appeals has always included “commercial” leases in its holdings, and clearly has recognized that, in applying OCGA § 13-1-11 to a lease, the rent and other charges which the lease required tenants to pay constituted the principal amount of their debt.

(Citations and punctuation omitted.) Id. at 842. The Supreme Court held that

[a]n analysis of the intent of OCGA § 13-1-11 also indicates that the phrase “evidence of indebtedness” should be construed broadly so as to encompass leases. This statute is not one which must be strictly construed. An undertaking to pay attorney’s fees in addition to principal and interest is in the nature of an agreement for a penalty, and the statute under consideration is to take away the penalty in certain cases, and is remedial. Thus, the purpose of OCGA § 13-1-11 is to prevent a contractual provision for attorney’s fees from constituting a penalty for failure to pay an indebtedness. In its current form, the statute accomplishes this purpose in subsections (a) (1) and (2) by limiting the amount of attorney’s fees, and in subsection (a) (3) by giving the debtor notice and “an opportunity to meet his obligation without incurring additional expenses in the nature of attorney’s fees.” Obviously, a tenant who is sued for failure to pay rent may have as great a need for all of these protections, and as little bargaining power to avoid the insertion of an unreasonable provision for attorney’s fees, as an obligor on a note or other commercial paper. . . . Accordingly, we hold that the term “evidence of indebtedness,” as used in OCGA § 13-1-11, . . . includes all written leases which impose on the lessee an obligation to pay money.

(Citations and punctuation omitted; emphasis supplied.) Id. at 845-846.

Given this express ruling, we conclude that the plaintiff in this case was only entitled to attorney fees within the amount provided for in OCGA § 13-1-11 (a), and then only if it provided the required notice under OCGA § 13-1-11 (a) (3). RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. at 846.

(b) The next question presented, then, is whether the trial court correctly found that the plaintiff failed to provide the requisite notice pursuant to OCGA § 13-1-11 (a) (3). We will only set aside the trial court’s factual findings if they are clearly erroneous, and we defer to the court’s opportunity to judge the credibility of the witnesses when making such findings. OCGA § 9-11-52 (a).

Compliance with the notice requirements of OCGA § 13-1-11 (a) (3) is a “mandatory condition precedent” to the recovery of attorney fees under that statute. (Footnote omitted.) Core LaVista v. Cumming, 308 Ga. App. 791, 798 (2) (709 SE2d 336) (2011). However,

Georgia case law requires only substantial compliance with OCGA § 13-1-11 (a) (3), and this Court has construed substantial compliance to include notice as follows: So long as a debtor is informed that he has 10 days from receipt of the notice within which to pay principal and interest without incurring any liability for attorney fees, the legislative intent behind the enactment of OCGA § 13-1-11 (a) (3) has been fulfilled.

(Citation and punctuation omitted.) Id. at 798-799 (2).

In this case, the plaintiff argued at trial that the complaint provided the notice required under OCGA § 13-1-11 (a) (3). The complaint stated that “[n]otice for attorney’s fees, pursuant to OCGA § 13-1-11, has been given to and received by [Best] more than 10 days before this complaint was filed. DCP Decatur is thus entitled to recovery of attorney’s fees and expenses of litigation pursuant to OCGA § 13-1-11.” In her answer, however, Best denied this assertion. And, even if she had not, this Court has previously ruled that similar language in a complaint was not only insufficient to notify the defendant that he or she had an opportunity to avoid paying attorney fees by timely curing the default, but that it actually stated the opposite, i.e., that “the Lender is entitled to recover ... reasonably incurred attorneys’ fees.” Core LaVista v. Cumming, 308 Ga. App. at 799 (2). It follows that the complaint in this case did not provide Best with the required statutory notice. Id.; see Logistics Intl. v. Raco/Melaver, LLC, 257 Ga. App. 879, 881-882 (2) (572 SE2d 388) (2002).

The plaintiff also argues on appeal that, even if Best did not receive the required notice under OCGA § 13-1-11 (a) (3), she admitted that she was liable for its attorney fees by failing to timely respond to its Request for Admission No. 36, which stated as follows: “Please admit that Defendant Best owes Plaintiff DCP statutory contractual attorneys’ fees as provided by the Lease Agreement, Amendments to the Lease Agreement and Georgia law.” However, pretermitting whether this assertion fails for the same reason we explained in the preceding paragraph, the plaintiff failed to raise this argument in the court below and, therefore, it is deemed waived. See Bullington v. Blakely Crop Hail, 294 Ga. App. 147, 152 (3) (668 SE2d 732) (2008) (“This is a court for the review and correction of errors committed in the trial court, and an argument that was not made below will not be considered on appeal.”) (citations omitted).

Finally, although Best asserted at trial that she had not received notice pursuant to OCGA § 13-1-11 (a) (3), the plaintiff failed to produce any affirmative evidence that it had timely notified Best that she could avoid any obligation to pay its attorney fees by paying the rent, late fees, and interest due under the lease within ten days. Instead, the plaintiff argued that such notice was not necessary because OCGA § 13-1-11 did not apply in this case.

Under these circumstances, we conclude that the trial court did not err in finding that the plaintiff failed to provide Best with the notice required by OCGA § 13-1-11 (a) (3). Given our ruling in Division 2 (a), supra, that the plaintiff was only entitled to attorney fees under OCGA § 13-1-11 (a), and, even then, only if it provided the required notice under OCGA § 13-1-11 (a) (3), it follows that we must reverse the trial court’s award of attorney fees to the plaintiff.

3. Given our decision in Division 1, supra, Best’s remaining allegation of error is moot.

Decided October 30, 2013.

Knight & Johnson, James M. Johnson, Todd N. Robinson, for appellant.

Todd J. Poole, for appellee.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Branch, J., concur.

       Best does not challenge the admissibility or the sufficiency of this evidence of damages on appeal, nor does she contend that the trial court denied her the opportunity to present additional evidence during this proceeding.

       See also Bloomfield v. Bloomfield, 282 Ga. 108, 110 (1) (d) (646 SE2d 207) (2007) (After a bench trial, but before the trial court entered its final written order in the divorce case, the court allowed the wife to submit evidence of a marital asset that she claimed should be equitably divided. The husband did not object or request a hearing on the division of that asset. The Supreme Court found that the trial court did not abuse its broad discretion to reopen the evidence under these circumstances.); Westmoreland v. JW, LLC, 313 Ga. App. 486, 488 (1) (722 SE2d 102) (2012) (After the parties rested during a bench trial on a complaint for unpaid rent, the trial court reopened the evidence and allowed the plaintiff landlord to introduce into evidence the written assignment agreement between it and the original landlord. On appeal, this Court found that the trial court did not abuse its broad discretion in reopening the evidence.).

       OCGA § 13-1-11 (b), which adds certain requirements when attorney fees that are calculated under subsection (a) (2) total more than $20,000, does not apply in this case.

       Although the contract also required the plaintiff to pay counsel an hourly fee for counsel’s work in defending against Best’s counterclaim, the trial court did not award that sum to the plaintiff.

       See footnote 9, infra, regarding the merits of this argument.

       See Cascade Crossing II v. RadioShack Corp., 480 F3d 1228, 1232 (11th Cir. 2007).

       The Court noted that, “[i]f OCGA § 13-1-11 is to be revised so as to exclude ‘commercial leases,’ the General Assembly, rather than the courts, must take that action.” (Citation and punctuation omitted.) RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. at 843.

       Cf. Ins. Indus. Consultants v. Essex Investments, 249 Ga. App. 837, 844 (4) (549 SE2d 788) (2001) (concluding that OCGA § 13-1-11 was not applicable to the landlord’s declaratory judgment action seeking a ruling that its tenant had to vacate the leased premises at the end of the five-year term of the lease; because the landlord was not trying to collect on past due rent or other debts owed by the tenant, it did not have to comply with OCGA § 13-1-11 in order to enforce the attorney fee provision of the lease).

       Notably, we find no merit in the plaintiff’s contention during trial that OCGA § 13-1-11 did not apply in this case because the lease agreement obligated Best to pay “all,” and not just “reasonable,” attorney fees. First, the plaintiff has consistently insisted that the attorney fees it was seeking pursuant to the lease were both reasonable and customary. Second, to allow a plaintiff to avoid the limitations of OCGA § 13-1-11 and to collect unreasonably high attorney fees simply by omitting the adjective “reasonable” in its lease agreement would violate the very purpose of the statute, i.e., “to prevent a contractual provision for attorney’s fees from constituting a penalty for failure to pay an indebtedness.” RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. at 845. And, finally, in RadioShack, the Supreme Court specifically affirmed that OCGA § 13-1-11 “precludes an award oí full attorneys’ fees and costs as provided in the lease agreement.” (Citation and punctuation omitted; emphasis supplied.) Id. at 842, 846.

       Because the plaintiff failed to file a cross-appeal to challenge this adverse ruling, the issue of whether it was correct would generally not be subject to review by this Court in the instant appeal. See Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987) (“The general rule is that an appellee must file a cross-appeal to preserve enumerations of error concerning adverse rulings. OCGA § 5-6-38[.]”) (citation omitted). “However, a ruling that becomes material to an enumeration of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal.” (Citation omitted.) Id. For the purposes of this appeal, we find that the court’s ruling on the OCGA § 13-1-11 (a) (3) notice issue is material to Best’s assertion that it erred in awarding the plaintiff any attorney fees.


text:
    A13A1427.
    HARRIS v. THE STATE.
    (750 SE2d 721)
   DOYLE, Presiding Judge.

Johnny Eugene Harris was convicted on a multi-count indictment for violating the Georgia Racketeer Influenced and Corrupt Organizations Act (“RICO”), burglary, theft by taking, theft by deception, forgery in the first degree, and criminal trespass. Following the denial of his motion for new trial, he appeals, contending that the trial court erred because (1) the evidence was insufficient to support a guilty verdict on (a) theft by taking, (b) burglary, (c) theft by deception, and (d) certain RICO violations; (2) he was prohibited from arguing that he lacked criminal intent; (3) his special demurrer was erroneously denied; (4) certain jury charges were erroneously omitted; and (5) certain jury charges were incorrectly included. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that Harris devised and engaged in a scheme whereby he and others would identify vacant houses and, without permission or knowledge of the rightful owner, Harris or his accomplice would make repairs, change the locks, and rent the house to tenants. They presented prospective tenants with residential lease documents falsely purporting to have authority to rent the property. Harris and his accomplices also convinced others facing foreclosure to enter into a Candidacy Agreement, whereby the victim would pay Harris’s company in exchange for a false promise to find them another home. The scheme involved 14 homes in which neither Harris nor his company held any property interest.

After police investigated the scheme, Harris and others were charged in a 50-count indictment with RICO violations, burglary, theft by taking and deception, forgery, and criminal trespass. A jury found Harris guilty on each count, and the trial court sentenced him to serve 40 years, merging several counts. Following the denial of his motion for new trial, Harris filed this appeal.

1. (a) Harris first contends that the evidence was insufficient to prove felony theft by taking because the State failed to show asportation, intent, or that the value taken was greater than $500.

(i) Asportation. OCGA § 16-8-2 defines the theft by taking offense as follows:

A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.

Based on common law principles, Harris reads asportation into this definition as an essential element of theft in all cases, and argues that he actually “took” nothing because the property involved was real property which remained in its original place at all times. But this argument is belied by the statutory definition of the offense, which may be committed “regardless of the manner in which the property is taken or appropriated.” Thus, we have held that “[t]he word ‘theft’is not, like ‘larceny,’ a technical word of art with narrowly defined meaning, but a word of general and broad connotation, covering any criminal appropriation of another’s property to the taker’s use” The statute does not define the term “appropriate,” but we note the definition in Black’s Law Dictionary: “[t]o make a thing one’s own... to exercise dominion over an object to the extent, and for the purpose, of making it subserve one’s own proper use or pleasure.” In this case, the evidence authorized a finding that Harris, without permission from the rightful owner, made use of real property by charging rent to tenants. This unauthorized exercise of dominion over the real property was sufficient to support his conviction for theft by taking.

(ii) Intent. Harris also argues that, based on evidence that he was willing to return the property if the rightful owner ever inquired, he lacked intent to steal the properties. But

regardless of whether [Harris] intended to take the [properties] and withhold [them] permanently, his intent to take [them] for his own temporary use without the owner[s’] authorization evinces an intent to commit a theft. Once criminal intent at the time of taking is proved, it becomes irrelevant whether the deprivation is permanent or temporary.

(iii) Value. Based on his argument that the State failed to prove that he took the real property, Harris argues that the State failed to prove that the property was valued at more than $500. But as shown above, the State did not fail to prove his theft of the real property, and the evidence supports a finding that it was worth more than $500.

(b) Harris also challenges the sufficiency of the evidence with respect to burglary, arguing that the failure to prove the theft shows that he lacked the intent to commit a felony or theft in the premises, as required by the statutory definition of burglary. Based on our holdings above, this argument fails.

(c) Harris likewise challenges the evidence showing theft by deception, arguing that the people to whom he rented the homes received full value for the money they paid him. Nevertheless, under OCGA § 16-8-3 (b),

[a] person deceives if he intentionally: (1) Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false; (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed; (3) Prevents another from acquiring information pertinent to the disposition of the property involved; (4) Sells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid known lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not a matter of official record; or (5) Promises performance of services which he does not intend to perform or knows will not be performed. . . .

Here, the evidence showed that Harris deceived the tenants by claiming that he had authority to rent the premises when he did not, and this claim led the tenants to make payments to Harris under a false impression. Accordingly, this argument fails.

(d) Harris also argues that the evidence failed to support his RICO convictions because the underlying acts were not proved. In light of our conclusions above, this argument presents no basis for reversal.

2. Prior to trial, the State moved in limine to prevent Harris from arguing that he lacked criminal intent because he believed he was authorized under various civil theories to take over the properties he believed to be abandoned. The trial court granted the motion, ruling that Harris could refer to the properties as “vacant,” but not “abandoned,” and he could not proffer his mistaken belief of civil law to justify his actions. In two enumerations, Harris assigns this as error.

We note that Harris was allowed to argue that he lacked criminal intent based on his belief that he could “rehabilitate” the vacant properties and based on his behavior in openly advertising and posting notices announcing his intentions with respect to the properties. Based on this, Harris’s counsel argued that “[tjhey actually believed what they were doing was legitimate.” Therefore, Harris was not prohibited from arguing that he lacked criminal intent based on his subjective belief and as manifested by his actions.

Furthermore, “[a]ll citizens are presumed to know the law, and ignorance of the law excuses no one.” Harris’s theories on civil law were mistaken, and the trial court’s ruling preventing him from presenting those incorrect legal theories to the jury was not reversible error based on the record before us.

3. Harris next argues that the trial court erred by denying his special demurrers, arguing that the time frame listed in the indictment, October 1, 2010 to November 21, 2011, was too broad. But the dates listed corresponded with the operation of Harris’s company and many of the acts occurred during a time frame not known to the State.

When reviewing a post-conviction appeal of the court’s pre-trial ruling,

the standard of review occasioned by the trial court’s denial of a special demurrer is harmless error; the question [is] whether the defense was prejudiced by the incorrect form. Specifically, the relevant inquiry is whether the failure to narrow the range of dates alleged in the indictment materially affected [Harris’s] ability to present a defense.

Here, Harris has pointed to no specific harm to his ability to present his defense. The indictment informed him of the specific properties at issue and the conduct alleged to be unlawful. Harris does not show how his investigation or defense preparation was hindered by the indictment as written; therefore, this enumeration presents no basis for reversal.

4. Harris also challenges the trial court’s refusal to give certain requested jury charges.

(a) Mistake of fact. As discussed in Division 2, Harris urged certain mistaken civil theories as defenses. But Harris’s understanding of those civil law concepts was mistaken, and “[f]ailure to give a charge on mistake of fact is not error where the evidence shows that a party has made a mistake of law.”

(b) Theft by taking. Harris unsuccessfully requested the pattern jury charge addressing asportation, which charge states that “the slightest change of location... is sufficient evidence of carrying away or removal.” But the trial court correctly gave the pattern charge that tracks the statutory language and fully describes the offense. “A defendant is not entitled to a jury charge on legal issues which are irrelevant, not tailored to the evidence [,] or factually inapplicable. In order to have reversible error, there must be harm as well as error.” Accordingly, this argument fails.

(c) Other charges pertaining to civil or real property law. Without citing any legal authority, Harris generically repeats that he was entitled to jury charges on certain concepts of civil and real property law. But as discussed above, those theories were not correct statements of law tailored to the evidence in this case. Accordingly, we discern no reversible error.

5. Finally, Harris contends that the trial court erred by instructing the jury as to certain charges that he did not challenge until his post-trial motion for new trial. When an appealing party properly asserts an error in the jury instructions that were not challenged at trial, OCGA § 17-8-58 (b) requires the appellate court to conduct a review under the plain error standard. “[T]he hurdle to establishing plain error is high,” and the party asserting it must demonstrate the following:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Harris fails to meet any of these criteria. In a one-sentence, conclusory argument, he asserts that the challenged charges “would unduly influence and prejudice the jury.” Harris does not articulate how the charges deviated from a legal rule or manifested an obvious error. We have reviewed the charges and conclude that they are correct statements of law tailored to the evidence, and as such, this enumeration fails.

Decided October 30, 2013

Ashleigh B. Merchant, for appellant.

D. Victor Reynolds, District Attorney, Jason D. Marbutt, Daniel J. Quinn, Assistant District Attorneys, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-14-4 (a).

       OCGA § 16-7-1 (b).

       OCGA § 16-8-2.

       OCGA § 16-8-3 (a).

       OCGA § 16-9-1 (b).

       OCGA § 16-7-21 (b) (1).

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

       Harris’s company had various names including New Life Granted, New Life Holdings, or Georgia House Trust.

       (Emphasis supplied.) OCGA § 16-8-2.

       (Punctuation omitted; emphasis supplied.) Ruppert v. State, 284 Ga. App. 456, 458 (1) (a) (643 SE2d 892) (2007).

       Black’s Law Dictionary (6th ed. 1990). See also Doe v. State, 290 Ga. 667, 668 (725 SE2d 234) (2012) (“In construing [a] statute, we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning. .. .”).

       (Punctuation omitted.) Smith v. State, 172 Ga. App. 356, 357 (2) (323 SE2d 257) (1984).

       See OCGA § 16-8-12 (a) (1) (2012).

       See OCGA § 16-7-1 (b).

       The State, in turn, pointed out that Harris prevented his prospective lessees from recording any documents in the public record.

        Henry v. State, 295 Ga. App. 758, 760 (673 SE2d 120) (2009).

       See generally Mincey v. State, 303 Ga. App. 257, 257-258 (692 SE2d 809) (2010) (“A defendant’s ignorance of the fact that he was violating the law does not relieve him of criminal intent if he intended to do the act that the legislature prohibited. Criminal intention may be found from the circumstances connected with the act for which the accused is prosecuted”) (footnote omitted); Taylor v. State, 233 Ga. App. 221, 222 (1) (504 SE2d 57) (1998) (“Failure to give a charge on mistake of fact is not error where the evidence shows that a party has made a mistake of law”) (punctuation omitted).

       (Footnote omitted.) Howard v. State, 281 Ga. App. 797, 799 (1) (637 SE2d 448) (2006).

       See id.

        Taylor, 233 Ga. App. at 222 (1).

       Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.64.15 (4th ed.).

        Wicks v. State, 278 Ga. 550, 553 (5) (604 SE2d 768) (2004).

       See id.

       See State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

       Id. at 32, n. 2.

       (Punctuation omitted.) Id. at 33 (2) (a).


author: ELLINGTON, Presiding Judge.

text:
    A13A1456, A13A1457.
    CITY OF ST. MARYS et al. v. BRINKO; and vice versa.
    (750 SE2d 726)
   ELLINGTON, Presiding Judge.

After being terminated from her job with the City of St. Marys, Janet Brinko sued the city, the city manager, the mayor, members of the city council, and a city employee (collectively, “the defendants”). In her complaint, Brinko alleged that the defendants wrongfully terminated her employment, defamed her, and interfered with her employment contract (the “tort claims”). She also alleged that the city had violated her due process rights by denying her request for a post-termination hearing (the “due process claim”).

The defendants jointly filed a motion for summary judgment, asserting that Brinko could not prevail on her claims because, among other reasons, she was an at-will employee with no employment contract. Following a hearing, the trial court granted summary judgment to the defendants on Brinko’s tort claims, but denied their motion for summary judgment on the due process claim. The court also granted, sua sponte, summary judgment to Brinko on her due process claim and ordered the defendants to provide her with a post-termination hearing.

In Case No. A13A1456, the defendants appeal from the trial court’s grant of summary judgment to Brinko on her due process claim and from the court’s denial of their motion for summary judgment on that claim. In Case No. A13A1457, Brinko cross-appeals from the trial court’s grant of summary judgment to the defendants on her tort claims. For the following reasons, we reverse the court’s grant of summary judgment to Brinko on her due process claim, reverse its denial of summary judgment to the defendants on the due process claim, and affirm its grant of summary judgment to the defendants on Brinko’s tort claims.

“In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law.” (Citation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). Under OCGA § 9-11-56 (e), when a party moves for summary judgment and supports his or her motion by submitting affidavits, depositions, or answers to interrogatories, the opposing party

may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

On appeal, the appellate court reviews the grant or denial of summary judgment de novo. Benton v. Benton, 280 Ga. at 470. So viewed, the record shows the following undisputed facts.

From 2002 until July 15, 2010, Brinko was employed by the Convention and Visitors Bureau of the City of St. Marys. Throughout this period, Brinko did not have a written employment contract. According to Brinko, however, she and the city had an oral employment agreement for a term of 50 years. In July 2010, Bill Shanahan, the city manager and Brinko’s supervisor, placed her on administrative leave. Then, during a meeting on July 15, Shanahan and the city’s human resources director, Donna Folsom, notified Brinko that her employment was being terminated, effective immediately.

The next day, Brinko notified the city that she was appealing her dismissal and requested a hearing, pursuant to policy 26 B of the city’s personnel policy manual. The city responded that a hearing had been scheduled for Tuesday, August 3, that its witnesses would be Folsom and Shanahan, and that Shanahan would also be serving as the hearing officer. On July 29, Brinko sent a letter to Shanahan in which she objected to him serving as both a witness and the hearing officer; she requested that the city provide her with a “fair” hearing, i.e., with someone other than Shanahan serving as the hearing officer. The city did not respond to Brinko’s objection, but, instead, notified her on July 30 that the city had designated her appeal as having been withdrawn. According to the city, Brinko had failed to timely submit certain documents, including an evidence list, a list of witnesses, and a written statement explaining why her termination violated the city’s policies or was otherwise unlawful, at least three business days prior to the hearing date (i.e., by Thursday, July 29), as required by policy 26 B, section B (3) of the city’s policy manual. Brinko then filed the instant suit against the city, Shanahan, Folsom, and other city officials.

Case No. A13A1456

1. The defendants contend that the trial court erred in denying their motion for summary judgment on Brinko’s due process claim because the undisputed evidence shows that Brinko was an at-will employee and, as a result, she had no protected property interest in her employment. We agree.

A public employee’s claim that an employer violated his or her procedural due process rights must fail unless the employee had a protected interest in his or her employment. West v. Dooly County School Dist., 316 Ga. App. 330 (1) (729 SE2d 469) (2012).

A party is not entitled to procedural due process where the interest which would be impaired by governmental action does not involve that party’s protected] interest in life, liberty, [] or property. State law determines whether a public employee has a property interest in his or her job, and defines the dimensions of such interest. Consequently, we must look to Georgia law to determine whether [Brinko] had a property interest in [her] job.

(Citations and punctuation omitted.) Id. at 331 (1).

Under Georgia law, a public employee has a property interest in employment when that employee can be fired only for cause. In the absence of a contractual or statutory “for cause” requirement, however, the employee serves “at will” and may be discharged at any time for any reason or no reason, with no cause of action for wrongful termination under state law. Such “at[-]will” employees have no legitimate claim of entitlement to continued employment and, thus, have no property interest protected by the due process clause.

(Punctuation and footnote omitted.) Wilson v. City of Sardis, 264 Ga. App. 178, 179 (1) (590 SE2d 383) (2003).

In this case, the undisputed evidence in the record shows that Brinko did not have a valid contract of employment with the city and that her employment was terminable at will. In fact, the city’s personnel policy manual specifically states, in relevant part, as follows:

The City of St. Marys is an at-will-employer pursuant to Georgia law. While it is the City’s goal to provide employees and supervisors with beneficial programs, policies, and procedures, all of the City’s programs, policies, and procedures are dependent on economic and political considerations and may be changed from time to time by the City at its discretion. Since the Manual is advisory in nature, it creates no contractual obligations on the part of employees, supervisors, or the City and does not alter the at-will relationship. Employees and supervisors are free to quit at any time and for any reason, and the City has the same right to end the employment relationship. Employees must read and sign the City of St. Marys Employee Handbook upon being hired, which makes them aware of the Employer-at-will relationship.

(Emphasis supplied.) This is an affirmative and unequivocal statement that an at-will employment relationship existed between Brinko and the city. See Doss v. City of Savannah, 290 Ga. App. 670, 673 (1) (660 SE2d 457) (2008) (physical precedent only) (The city’s employee handbook specifically stated that it did not “constitute an expressed or implied contract” and that a city employee “may separate from his/her employment at any time; the City of Savannah reserves the right to do the same.” Thus, the handbook provided that the plaintiff’s employment was terminable at will.) (citation and punctuation omitted). Further, Brinko has failed to demonstrate that another policy in the city’s personnel manual, any other official city document, or any ordinance or statute altered her status as an at-will employee and provided that she could only be fired for cause.

It follows that, because Brinko’s employment was terminable at will, she did not have a protected property interest in her continued employment that was subject to procedural due process. Wilson v. City of Sardis, 264 Ga. App. at 179 (1); see DeClue v. City of Clayton, 246 Ga. App. 487, 489-491 (1) (540 SE2d 675) (2000) (Because the employee did not have a property interest in his employment, the city did not violate his due process rights by terminating his employment without notice and a hearing.). Accordingly, the trial court erred in granting Brinko’s motion for summary judgment and in denying the defendants’ motion for summary judgment on her due process claim.

2. Given our decision in Division 1, supra, the defendants’ remaining enumerated errors are moot.

Case No. A13A1457

3. Brinko contends that the trial court erred in granting summary judgment to the defendants on her tort claims. We find that this contention lacks merit for the reasons and authority given in the trial court’s order and the defendants’ brief. Further, the record supports the court’s order, and no reversible error of law appears. Finally, there is sufficient existing legal precedent that is adverse to Brinko’s contentions, so an opinion in this case would have no precedential value. Accordingly, we affirm the court’s grant of summary judgment to the defendants on Brinko’s tort claims, pursuant to Court of Appeals Rule 36.

Decided October 30, 2013.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, Emily R. Hancock, for appellant.

James E. Stein, for appellee.

Judgment affirmed in Case No. A13A1457. Judgment reversed in Case No. A13A1456.

Phipps, C. J., and Branch, J., concur.

       Policy 26 B provides that an employee whose employment has been terminated is entitled, upon request, to a hearing with the city manager or his designee, during which the employee may he represented by an attorney and may present evidence and cross-examine adverse witnesses in order to demonstrate that his or her termination was not in compliance with the city’s personnel policies or that it was otherwise unlawful. Following the hearing, the city manager or his designee will issue a ruling either affirming, modifying, or reversing the termination decision, and this ruling is final and unappealable.

       The section states, in relevant part, that,
      [n]o later than three (3) working days prior to such hearing, the employee and the decision-maker shall provide the City Manager or his/her designee a list of the witnesses and evidence they anticipate they will present at the hearing as well as a written statement specifying why the suspension, demotion or termination was not in compliance with the termination policy or is in error. Failure to provide the witness [list], evidence list and written statement will be considered to be a withdrawal of the appeal.

       On appeal, Brinko contends that, in addition to asserting a due process claim based upon an alleged violation of her property interest in her employment, her complaint also asserted a claim for violation of her “liberty interest without due process. The record, however, does not support her contention, nor does it show that the trial court ruled upon such a due process claim. Accordingly, this contention presents nothing for this Court to review.

        See Reid v. City of Albany, 276 Ga. App. 171, 171-172 (1) (622 SE2d 875) (2005) (Even if the city’s personnel policies included provisions for hiring, disciplining, firing, and due process that were intended to ensure that its employees were treated fairly, as alleged by the plaintiff, such policies did not alter his status as an at-will city employee who was barred from recovering on a claim that he was wrongfully discharged in violation of his due process rights.); cf. Doss v. City of Savannah, 290 Ga. App. at 674 (1) (physical precedent only) (Although the city’s employment handbook clearly stated that its police officers could be terminated at will, the police department’s standard operating procedures manual provided that officers could only be terminated for cause. Thus, a jury issue existed as to whether the plaintiff was an at-will employee.).

       We note that, in ruling that the defendants were not entitled to summary judgment on Brinko’s due process claim, the court concluded that such ruling “necessarily means [that Brinko] is entitled to prevail on it[.]” (Emphasis supplied.) The court cited to no authority in support of this conclusion, and this Court is not aware of any such authority. On the contrary, the denial of a motion for summary judgment is simply a ruling that the movant is not entitled to summary judgment because there are genuine issues of material fact that require resolution by a jury. See OCGA § 9-11-56 (c). It does not necessarily mean that the opposing party is entitled to summary judgment, and the trial court erred in reaching such a conclusion in this case.