text:
    A11A0646.
    In the Interest of D. D., a child.
    (713 SE2d 440)
   Dillard, Judge.

D. D. was adjudicated delinquent in Rockdale County Juvenile Court for committing sexual battery against a classmate at his middle school. He appeals his adjudication, claiming that the evidence of sexual battery was insufficient and that the juvenile court improperly engaged in ex parte communications with a State witness. For the reasons noted infra, we affirm the juvenile court’s delinquency adjudication on condition and remand this case with direction.

Viewing the evidence in the light most favorable to the juvenile court’s adjudication, the record shows that D. D. and the victim, M. T., were sixth-grade students at the same middle school when 11-year-old D. D. approached M. T. at her locker and touched her left breast for approximately two seconds. Although M. T. did not say anything in response, or otherwise react (perhaps out of shock), she informed her mother about the incident later that day. M. T. testified that she did not immediately approach her teacher because she “felt violated” and as if she should first tell her parents about what had happened. Her parents then informed the school, and M. T. spoke to the school resource officer and made a written statement the following day. Two days later, a complaint for misdemeanor sexual battery was filed in the Rockdale County Juvenile Court with the school resource officer listed as the complainant, and D. D. was thereafter charged by the State with felony sexual battery.

Shortly before his adjudicatory hearing on the sexual-battery charge, D. D. was also charged with bringing a weapon to school, a felony, after another student witnessed him with “a folding tool kit which contained a silver colored knife blade.” D. D. admitted to this subsequent charge, claiming that he had gone fishing with his father the day before and had forgotten that the tool was in his jacket pocket, but he continued to adamantly deny the sexual-battery charge.

As to the sexual-battery charge, M. T. testified that she was certain that D. D. had intentionally touched her breast because, although the area was crowded and it was not uncommon for students to brush up against each other in the school’s hallways, she was face-to-face with D. D. when he touched her breast and smirked at her before walking away. M. T. also testified about her prior difficulties with D. D., namely incidents when he took her pencils in class, kicked her backpack and purse down the hallway, kicked her textbooks, and made unwanted flirtatious noises toward her.

In his defense, D. D. testified that he did not remember touching M. T. and that, if he had, it was unintentional and due to the crowded nature of the hallway, in which students sometimes must push their way through the locker area. When questioned about his prior interactions/difficulties with M. T., D. D. explained that he had previously kicked her belongings for no reason but that he was attempting to return her pencils when he picked them up from the classroom floor.

After hearing the testimony by M. T. and D. D., the judge adjudicated D. D. delinquent, finding him responsible for sexual battery beyond a reasonable doubt. The sexual battery and weapon cases were then transferred to DeKalb County Juvenile Court for disposition because during the course of the proceedings, the Rock-dale County Juvenile Court discovered that while D. D. had been living with his father and grandmother in Rockdale County since he was two months old, his father had never legitimated D. D. And as a result, the court determined sua sponte that D. D. should live with his mother at her residence in DeKalb County and attend DeKalb County schools. D. D.’s cases were then transferred for disposition to DeKalb County, where the juvenile court followed the State’s sentencing recommendations, which included (1) one year on probation, with potential for early release; (2) residing with his mother in DeKalb County and staying out of Rockdale County; (3) a $100 supervision fee; (4) participation in any counseling deemed necessary; and (5) the potential for boot camp if D. D. violated his conditions. This appeal follows.

1. D. D. contends the evidence was insufficient to adjudicate him delinquent for committing sexual battery against M. T. We disagree.

In reviewing delinquency adjudications, “we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.” And under this standard of review, the evidence against D. D. was sufficient to adjudicate him delinquent for felony sexual battery.

Sexual battery is committed when a person “intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person,” and a female’s breasts are unquestionably included within the statute’s definition of “intimate parts.” In the case sub judice, the juvenile court was faced with conflicting testimony as to what occurred between M. T. and D. D., and “conflicts in the testimony are a matter of credibility for the trier of fact to resolve.” Indeed, so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the [adjudication] will be upheld.” Accordingly, the trial court was faced with sufficient evidence to find that D. D. was responsible for a sexual battery against M. T., a classmate under the age of 16, by intentionally making unwanted physical contact with her breast. However, our conclusion that the evidence was sufficient to uphold the juvenile court’s adjudication may, nevertheless, be impacted on remand by our decision in Division 2 of this opinion.

2. D. D. next argues that the juvenile court engaged in impermissible ex parte communications with a State witness prior to D. D.’s adjudicatory hearing, requiring reversal. Due to inadequacies and ambiguities in the record, we must remand this issue to the juvenile court for further inquiry and a hearing on this matter.

The communication in question is an e-mail sent to the juvenile-court judge by the middle school resource officer, who testified at a detention hearing the day before D. D.’s adjudicatory hearing but not at the adjudicatory hearing (though he was present at this second hearing). The body of the e-mail reads as follows:

I relayed your message to the school administrators at [D. D.’s middle school]. They wished me to relay to you that they thank you and they appreciate your thoughts regarding this morning’s juvenile hearing.
[A school administrator] said that they have been lied to. He said that certain information in writing has been given to the grandmother and [flather of [D. D.] several times with either “no response whatsoever[,”] or “stories” as it relates to [D. D.] being enrolled in Rockdale County Public Schools. They are happy with your statement to the mother that [D. D.] should be enrolled in Decatur City public schools where he will be residing at.

D. D. asserts that this e-mail not only constitutes an ex parte communication in and of itself but that it also makes reference to a separate communication, the contents of which are unknown. This communication merits further investigation because the school resource officer was the complainant in both charges filed against D. D., the evidence against D. D. was entirely based on a credibility determination by the judge, and the e-mail suggests that the judge both directly and indirectly communicated with representatives from the school D. D. was ultimately ordered to no longer attend. We also note that ex parte communications are presumptively harmful error. But given the current state of the record, we must remand this case to the juvenile court for consideration of the following issues: (1) when D. D. first learned of this e-mail communication and whether a waiver has occurred; and if a waiver has not occurred, (2) whether the State is nevertheless capable of rebutting the presumption of error through affidavits, sworn testimony, or other evidence. If on remand the juvenile court concludes that D. D. has not waived this issue, and the State fails to rebut the presumption that the ex parte communication at issue was presumptively harmful, D. D.’s adjudication of delinquency must be vacated and he must be readjudicated before a different judge.

Decided June 29, 2011.

Ford & Harrison, Julie D. Loring, Stephen M. Reha, for appellant.

R. Javoyne Hicks White, District Attorney, Cynthia M. Zurawsky, Assistant District Attorney, for appellee.

Accordingly, for all the foregoing reasons, we affirm D. D.’s adjudication on condition and remand this case to the juvenile court with direction.

Judgment affirmed on condition and case remanded with direction.

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

        E.g., In the Interest of C. R., 294 Ga. App. 164, 164 (669 SE2d 193) (2008).

       Although sexual battery is generally a misdemeanor of a high and aggravated nature, sexual battery “against any child under the age of 16 years” is a felony. See OCGA § 16-6-22.1 (c), (d).

        See generally In the Interest of R. W., 186 Ga. App. 885, 885 (368 SE2d 824) (1988) (addressing the transfer of a case for disposition of a nonresident child); see also OCGA § 15-11-30 (transfer of juvenile cases to county of residence).

       D. D. had also been placed in various detention facilities during the proceedings —including the time between his adjudication of delinquency and the eventual disposition of his cases.

       While the transfer of this case from Rockdale County to DeKalb County may have contributed to the delay, we note that the State’s brief was filed only after this Court twice ordered same. We pause to remind the State that it is explicitly required to file a responsive brief in all criminal appeals, and failure to timely file such a brief may result in nonconsider-ation or contempt. See Ct. App. R. 13; Ct. App. R. 23 (b).

        See OCGA § 16-3-1 (“A person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.”).

        E.g., In the Interest of C. R., 294 Ga. App. 164, 164 (669 SE2d 193) (2008) (citation and punctuation omitted).

       OCGA § 16-6-22.1 (b).

       OCGA § 16-6-22.1 (a).

        In the Interest of J. L. B., 280 Ga. App. 556, 560 (5) (634 SE2d 514) (2006) (citation and punctuation omitted).

        Id. ] see also In the Interest of C. R., 294 Ga. App. at 164 (“The evidence is examined . . . with all reasonable inferences construed in favor of the juvenile court’s findings.” (citation and punctuation omitted)).

        See In the Interest of J. L. B., 280 Ga. App. at 560 (5) (sufficient evidence of sexual battery when juvenile “ran up behind [victim], grabbed her breasts, crotch, and buttocks, and tried to push her down”); Gore v. State, 251 Ga. App. 461, 461-63 (1) (554 SE2d 598) (2001) (sufficient evidence of sexual battery when man pinched girls’ breasts and buttocks); Thompson v. State, 245 Ga. App. 396, 398 (3) (537 SE2d 807) (2000) (sufficient evidence of sexual battery when man touched girl’s buttocks as she emerged from swimming pool); Kelley v. State, 233 Ga. App. 244, 245, 246-47 (1) (503 SE2d 881) (1998) (sufficient evidence of sexual battery when man touched girl’s breasts while she showered).

       Although requested by D. D. and later by this Court, the clerk of court failed to timely transmit the transcript of the detention hearing. This transcript should be obtained and reviewed by the juvenile court on remand.

        Cf. Johnson v. State, 278 Ga. 344, 346-48 (3) (602 SE2d 623) (2004) (judge’s conduct, including ex parte communication with prosecutor during trial, resulted in an impression of bias, requiring reversal). Compare In re Martin, 218 Ga. App. 79, 80 (1) (460 SE2d 304) (1995) (holding that ex parte letter sent to judge by witness was not harmful error when there was no suggestion that the judge responded in any manner or any indication that the judge gave the letter consideration).

        See Unif. Sup. Ct. R. 4.1 (“[Jludges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding.”); see also City of Pendergrass v. Skelton, 278 Ga. App. 37, 39 (1) (628 SE2d 136) (2006) (“Ex parte communications are presumed to have been in error.”).

       We also note that the issue of the propriety of this communication appears to have been raised for the first time on appeal.

        See Ga. Power Co. v. Ga. Pub. Serv. Comm’n, 196 Ga. App. 572, 572-73 (1) (396 SE2d 562) (1990) (holding that complaint of ex parte communication had been waived on appeal when party did not raise the issue at the first opportunity); see also In re Martin, 218 Ga. App. at 80 (1) (suggesting that waiver may have occurred when no objection was raised below). Here, the record reflects that the e-mail was received by the judge and filed with the clerk of court the day before the adjudicatory hearing, but there is no indication in the record as to when D. D. first learned of this communication.

        Cf. Stephens v. State, 270 Ga. 354, 360 (4) (509 SE2d 605) (1998) (explaining that on prior remand for a hearing on the issue of ex parte communication, State presented testimony regarding alleged ex parte communication and trial court examined relevant documents).

        See Cousins v. Macedonia Baptist Church of Atlanta, 283 Ga. 570, 574 (1) (662 SE2d 533) (2008) (reversing when judge clearly based decision on ex parte communications); Arnau v. Arnau, 207 Ga. App. 696, 696 (1) (429 SE2d 116) (1993) (same); Osgood v. Dent, 167 Ga. App. 406, 409-10 (2) (306 SE2d 698) (1983) (same); see also Roylston v. Conway, 251 Ga. App. 648, 652 (1) (555 SE2d 28) (2001) (“Reliance upon a document, unsworn statements, and ex parte conversations not in evidence was harmful error and highly prejudicial!.]”). Compare Yates v. Dublin Sir Shop, Inc., 260 Ga. App. 369, 372 (3) (579 SE2d 796) (2003) (no error when trial court stated in its order that it did not initiate ex parte communication, the parties were equally responsible for the communication, and the information was not relied upon or considered in making its final order); Stinchcomb v. State, 192 Ga. App. 8, 8-10 (383 SE2d 609) (1989) (no error when judge engaged in ex parte communication with attorney regarding assignment of case, not an issue relevant to ultimate decision).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A11A1029.
    FOAT v. THE STATE.
    (713 SE2d 444)
   McFadden, Judge.

Jeffery Foat, Jr., appeals his convictions of aggravated assault and possession of a firearm during the commission of a crime on the ground that the evidence was insufficient to support the convictions. Finding that sufficient evidence supports the convictions, we affirm.

When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that Mary Flournoy, the mother of Delshawn Flournoy, drove Delshawn Flournoy and a friend to Shaquila Nixon’s house where Delshawn Flournoy was going to borrow some tools. When they arrived at the house, Delshawn Flournoy exited the car and entered the house while his mother and the friend waited in the car. Several people were sitting outside the house. Foat and his co-defendant, Verenzo Holmes, walked up to the house and began shooting at a man on the porch. The man shot back toward the street. Delshawn Flournoy was shot in the head while he was in the front room of the house. Delshawn Flournoy lost the use of his right leg and right arm and his ability to speak more than a few words because of his injury. Foat testified at trial that the man on the porch started shooting at him and Holmes. He denied having a gun.

“The offense of aggravated assault under OCGA § 16-5-21 has two essential elements: (1) that a simple assault under OCGA § 16-5-20 was committed on the victim and (2) that it was aggravated by” one of three factors, including the “use of a deadly weapon as provided in OCGA § 16-5-21.” Maynor v. State, 257 Ga. App. 151, 153 (570 SE2d 428) (2002). “A person commits the offense of simple assault when he or she either. . . [attempts to commit a violent injury to the person of another; or . . . [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (1), (2). A person commits the offense of possession of a firearm during the commission of a crime when the person has “on or within arm’s reach of his or her person a firearm . . . during the commission of. . . [ajny [felony] against or involving the person of another.” OCGA § 16-11-106 (b) (1).

Based on the evidence, the jury was authorized to conclude that Foat and Holmes shot at the house, resulting in Delshawn Flournoy being shot in the head. Such evidence was sufficient to support the convictions. See Culler v. State, 277 Ga. 717, 720 (4) (594 SE2d 631) (2004) (evidence that co-defendants intentionally fired shots at house occupied by several people, including the sleeping victim, established elements of aggravated assault — even though co-defendants did not know of victim’s presence — because it was likely that violent harm would be inflicted against all persons inside the house); Cornelius v. State, 273 Ga. App. 806, 807-808 (1) (616 SE2d 148) (2005) (evidence that defendant fired multiple shots into cab of truck occupied by three people supported conviction for aggravated assault), overruled in part on other grounds, Schofield v. Holsey, 281 Ga. 809 (642 SE2d 56) (2007); Maynor, supra at 154-156 (evidence that defendant shot a rifle at his neighbors’ residence when the neighbors were inside supported the aggravated assault conviction, even though the neighbors did not see him shoot the rifle and did not know there were gunshots until after they were fired). We therefore affirm Foat’s convictions.

Decided June 29, 2011.

William M. Fleming, for appellant.

Ashley Wright, District Attorney, Charles R. Sheppard, Madonna M. Little, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Adams, Judge.

text:
    A11A0210.
    WRIGHT v. DUE WEST ANIMAL CLINIC, P.C.
    (713 SE2d 407)
   Adams, Judge.

Angela M. Wright, DVM, is a licensed veterinarian, who worked briefly as a relief veterinarian at Due West Animal Clinic, EC. During the course of her work at Due West, Wright treated a dog belonging to Yvonne Matthews. Matthews subsequently filed a complaint with the State Board of Veterinary Medicine concerning Wright’s treatment of her dog. Wright’s attorney contacted Due West on several occasions requesting copies of the treatment records she prepared in connection with Matthews’ dog for use in responding to the complaint and to the Board’s ensuing investigation. Due West declined to produce the documents, however, because the owner of the dog had requested that the records not be released and Due West’s owner felt obligated to honor that request. Nevertheless, Due West indicated that it would comply with any subpoena or document request. Wright subsequently filed a “Petition to Compel Production of Documents” in the superior court, and Due West moved to dismiss for lack of subject matter jurisdiction and the failure to join an indispensable party. The trial court granted the motion finding that it lacked subject matter jurisdiction, and Wright appeals. We affirm.

Georgia’s Veterinary Practice Act, OCGA § 43-50-1 et seq., grants the State Board of Veterinary Medicine the power to discipline veterinarians and to conduct investigations. OCGA § 43-50-21 (a) (2), (3). Under OCGA § 43-50-41 (h) (1), the Board and those acting on its behalf have subpoena power to obtain documents to aid in such investigations. And, in fact, Due West indicated in its answer that it had furnished the Board with the documents requested by Wright pursuant to such a subpoena. Thus we find that any right to obtain copies of the pertinent records at this stage of the investigation is governed by this statute and the Board’s procedures, and we find no authority for the trial court to intervene to compel the production of documents. Georgia courts have generally refrained from interfering in ongoing administrative proceedings even where the constitutionality of such proceedings is at issue. See George v. Dept, of Natural Resources, 250 Ga. 491, 492 (299 SE2d 556) (1983) (“courts should not render advisory opinions (declaratory judgments) to administrative tribunals as such tribunals proceed, step by step, to perform their administrative function”) (citation and punctuation omitted); Brogdon u. State Bd. of Veterinary Medicine, 244 Ga. 780, 781 (262 SE2d 56) (1979).

Moreover, should the Board’s investigation progress to a formal disciplinary action, Wright will have the power under Georgia’s Administrative Procedure Act to obtain subpoenas and to apply to the superior court to enforce such subpoenas. OCGA § 50-13-13 (a) (6), (7). Her resort to the superior court at this stage of the proceedings was simply premature.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

Decided June 13, 2011

Reconsideration denied June 30, 2011

Langdale & Vallotton, W. Pope Langdale III, Christina L. Folsom, for appellant.

Powell & Erwin, William A. Erwin, Dupree & Kimbrough, Hylton B. Dupree, Jr., for appellee.

       Wright asserts in her petition that she resigned from the clinic the same day she performed surgery on Matthews’ dog.

       We agree with Wright that under OCGA § 24-9-29, a veterinary client waives any privilege applicable to veterinary records to the extent that the client “places the veterinarian’s care and treatment of the animal ... at issue in any civil or criminal proceeding.” Even assuming, without deciding, that a complaint to the State Board of Veterinary Medicine qualifies as such a “civil or criminal proceeding,” however, nothing in OCGA § 24-9-29 authorizes a trial court to step into the administrative process to compel the production of documents.


author: Dillard, Judge.

text:
    A11A0264.
    SPRADLING v. THE STATE.
    (715 SE2d 672)
   Dillard, Judge.

Following a jury trial, Phillip Clayton Spradling was convicted on one count of aggravated sexual battery, one count of aggravated sodomy, four counts of child molestation, and two counts of enticing a child for indecent purposes. His sole contention on appeal is that the trial court erred by admitting similar-transaction evidence. We disagree and affirm.

Construed in the light most favorable to the jury’s verdict, the evidence shows that in September 2008, Spradling lured twelve-year-old C. W and nine-year-old C. H. to his house under the guise that he was acting at the direction of C. W.’s mother. After the boys arrived at Spradling’s home and discovered that C. W’s mother was not there, they asked Spradling to return them to C. W’s grandmother, but Spradling refused to do so. Instead, Spradling coerced the boys into drinking beer, smoking cigarettes, and running around the house naked. As the night progressed, Spradling rubbed lotion on the children’s naked bodies, while fondling each boy’s buttocks and anus. The children resisted Spradling’s efforts, but he proceeded undeterred. At some point, Spradling also placed C. H. on his lap and grabbed the boy’s privates. Spradling then threatened the boys with physical harm if they told anyone what he had done.

Despite Spradling’s threats, the children reported his actions to their respective mothers. C. H. also reported that Spradling abused him on a previous occasion, when Spradling penetrated C. H.’s anus with both his penis and his finger.

During the subsequent trial, the jurors were shown two videotaped interviews of each child that were conducted as part of the ensuing investigation, and drawings by each boy, indicating the areas of their bodies where Spradling touched them, as well as the areas of Spradling’s body that they were forced to touch. The jury also heard testimony from a nurse examiner specializing in sexual assault, who conducted physical examinations of the children. The nurse testified that C. W.’s anal region was “abnormal” with redness and irritation, a finding she opined could be consistent with sexual assault. She further testified that C. H.’s anal region had evidence of scarring and irregular tissue, which she characterized as “strong” evidence of sexual abuse. Photographs of these physical findings were introduced into evidence by the State.

Additionally, the investigating detective testified as to his search of Spradling’s home (where the molestation occurred), noting that the search produced items directly corroborating the boys’ account of what transpired there: (1) Natural Light beer bottles, which were consistent with C. H.’s contention that the beer Spradling coerced the boys into drinking was contained in glass bottles that included a label beginning with the letter “N”; and (2) an empty pack of Bronco cigarettes, which was consistent with C. H.’s report that the cigarettes provided to the boys were in a red-and-white box. Finally, the State introduced a certified copy of Spradling’s prior indictment, plea, and sentence from the State of California for the sexual abuse of a male child who was victimized by Spradling from age eight through age fifteen.

On appeal, Spradling’s sole enumeration of error is that the trial court erred by admitting the certified copy of his prior conviction because (1) the State failed to establish a similarity between the prior crimes and the current crimes, and (2) the California documents were insufficient to otherwise establish that he had been convicted of the prior crimes. Spradling’s claims are without merit.

Generally speaking, the State is precluded from admitting similar-transaction evidence without presenting to the jury evidence showing a “connection and/or similarity between that offense or act and the crime charged . . . such that proof that the accused committed the former tends to prove that the accused also committed the latter.” It is well established, however, that in cases involving sexual offenses against children, “a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crime.”

Here, the certified copies submitted by the State included a California indictment that charged Spradling with one count of “continuous sexual abuse” against a child to whom Spradling had recurring access and with whom he “ engage [d] in three and more acts of lewd and lascivious conduct” while the child was eight years of age until the child was thirteen years of age; and three counts of “lewd and lascivious conduct” upon the same child for “willfully and lewdly commit [ting] a lewd and lascivious act upon and with the body and certain parts and members thereof of. . . [the] child . . . with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and of said child” while the child was fourteen and fifteen years old and Spradling was at least ten years older. The certified documents further included a plea form, pursuant to which Spradling pleaded nolo contendere to each of the crimes charged and a document entitled “abstract of judgment - prison commitment,” reflecting that Spradling had been sentenced to prison for 13 years.

Contrary to Spradling’s position, these documents are sufficient to prove not only the similarity between the present crimes and the former crimes, but also to establish that he was, in fact, convicted of those offenses. It is of no import that the terminology of the crimes charged differs from that used in Georgia law, or that the nomenclature on the relevant documents vary from those propounded in Georgia courts. And to the extent Spradling’s brief implies that the prosecutor’s mention of the prior convictions during the State’s closing argument was improper, he is simply incorrect.

Judgment affirmed.

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

On Motion for Reconsideration.

On motion for reconsideration, Spradling argues for the first time that the admission of his prior nolo contendere plea violated OCGA § 17-7-95 (c). That argument was not previously raised on appeal, nor was it raised in the trial court. While we agree with Spradling that OCGA § 17-7-95 (c) prohibits the admission of a plea of nolo contendere as similar-transaction evidence, Spradling’s “failure to make an objection based on this ground at trial constitutes waiver of the issue since reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.” It follows, then, that Spradling did not preserve this issue for appellate review.

Decided June 9, 2011

Reconsideration denied June 30, 2011.

Steven E. Miller, Jad B. Johnson, David J. Dunn, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

Motion for reconsideration denied.

        See, e.g., McIntyre v. State, 302 Ga. App. 778, 779 (1) (691 SE2d 663) (2010).

       C. W and C. H. were cousins staying at the home of C. W.’s grandmother, and Spradling was a family friend.

       It was later discovered that the lotion used by Spradling belonged to C. W ⅛ mother, who had unknowingly retrieved it from Spradling’s home after the incident.

        Williams v. State, 261 Ga. 640, 642 (2) (c) (409 SE2d 649) (1991) (“[I]n its presentation to the trier of fact, the [Sítate must do more than merely introduce a certified copy of a conviction and/or indictment into evidence.” (citation omitted)); see Unif. Sup. Ct. R. 31.3 (B).

        Washington v. State, 286 Ga. App. 268, 269-70 (2) (648 SE2d 761) (2007) (“In sexual offenses, admissibility of similar[-]transaction evidence is liberally construed and the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admitted as similar[-]transaction evidence.” (punctuation and footnote omitted)); see Parker v. State, 283 Ga. App. 714, 721 (3) (642 SE2d 111) (2007) (same); Lee v. State, 241 Ga. App. 182, 183-84 (2) (525 SE2d 426) (1999) (same).

        See generally Lee, 241 Ga. App. at 184 (2) (concluding that evidence that the appellant was found guilty of a crime in a court-martial proceeding and subsequently sentenced for that crime was sufficient to establish that he was convicted, irrespective of the foreign tribunal).

        See generally Arrington v. State, 286 Ga. 335, 346-47 (16) (e) (687 SE2d 438) (2009) (noting that the State is entitled to comment on similar-transaction evidence properly admitted at trial); O’Neal v. State, 170 Ga. App. 637, 638 (2) (318 SE2d 66) (1984) (same).

       In pertinent part, OCGA § 17-7-95 (c) provides that, “[e]xcept as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose.”

        Martin v. State, 281 Ga. 778, 779-80 (2) (642 SE2d 837) (2007) (“Georgia has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.” (citation and punctuation omitted)). See Bryson v. State, 282 Ga. App. 36, 44 (5) (638 SE2d 181) (2006) (appellant’s argument that similar-transaction evidence was improperly admitted under OCGA § 17-7-95 (c) was waived when raised for the first time on appeal); City of Monroe v. Jordan, 201 Ga. App. 332, 334 (2) (411 SE2d 511) (1991) (same) (overruled on other grounds, Sheriff v. State, 277 Ga. 182, 187-88 (2) (587 SE2d 27) (2003)).


text:
    A11A0081.
    DAVIS v. WALLACE et al.
    (713 SE2d 446)
   Adams, Judge.

Benjamin Davis appeals the trial court’s grant of summary judgment in favor of Wanda Wallace, Mickey M. Bruce, Samuel Patterson and Cruser & Mitchell, LLP (sometimes referred to collectively as “Defendants”) on his claims of abusive litigation and false imprisonment. He also appeals the trial court’s denial of his motions for reconsideration and default. We affirm for the reasons set forth below.

At the pertinent time, Wallace and Bruce were members of the Riverdale city council. Davis was employed by the Riverdale mayor as a photographer, and his job duties included videotaping city council meetings. This case arose in connection with two “Petition[s] for Stalking Temporary Protective Order” filed by Wallace against Davis. Wallace filed her first petition on December 9, 2005 based upon information provided by Bruce that on the evening of November 8, 2005, Davis threatened to blow up or set fire to Wallace’s residence. Wallace was not present at the time of these alleged threats, but Bruce called and told her about them. Bruce also reported the threats to the Riverdale police. On November 14, 2005, the investigating officer applied to a Clayton County magistrate for a disorderly conduct warrant against Davis, but the magistrate denied the application. Wallace subsequently accompanied police to the Clayton County solicitor-general’s office to discuss the incident, which resulted in the solicitor-general’s chief investigator calling Davis to tell him to stay away from Wallace. He also informed Davis that an investigator would be present at the next city council meeting to ensure that there were no problems. One week later, on November 21, the Riverdale police inactivated their investigation because there was “no indication of any criminal intent involving” Davis.

Nevertheless, on December 2, 2005, a Riverdale police investigator accompanied Wallace to the Superior Court of Douglas County to investigate the possibility of obtaining a restraining order against Davis, which resulted in Wallace’s petition on December 9. That day, the superior court signed a temporary protective order (“TPO”), which enjoined Davis from contacting or coming within 100 feet of Wallace and which set a hearing for January 10, 2006. The next day, December 10, 2005, when Davis appeared at a city council meeting with his video equipment, Patterson, Riverdale’s assistant chief of police, showed him the TPO and asked him to leave before the meeting began and before Wallace arrived. At the TPO hearing on January 10, the trial court granted Davis’s motion to dismiss Wallace’s December 9 petition on the ground that the hearing was untimely. Wallace was represented by Shalena Cook from the law firm of Cruser & Mitchell, LLP (“C&M”) at that hearing.

Wallace re-filed her petition the next day, January 11, 2006, and the superior court held a hearing on January 31, 2006. After hearing testimony from Bruce, Patterson, Wallace, and Davis, as well as argument from Cook as Wallace’s counsel, the superior court judge found no evidence of stalking and denied the petition.

On or about December 10, 2007, Davis filed his complaint for damages in the State Court of Clayton County describing these events but without specifying a cause of action. The Defendants first interpreted the complaint as asserting a federal claim under 42 USC § 1983 and removed the case to federal court, where Wallace and Bruce filed an answer and Patterson and C&M apparently filed motions for judgment on the pleadings. The federal court subsequently granted Davis’s motion to remand based upon his representation that he was asserting claims for abusive litigation under OCGA § 51-7-85 and not under federal law.

Upon remand, Patterson and C&M renewed their motions for judgment on the pleadings in the state court. The trial court stayed its ruling on these motions to allow Davis time to conduct discovery and noted that as a result, the motions would be treated as ones for summary judgment. In their motions, Patterson and C&M interpreted Davis’s complaint as asserting claims against them for defamation, and the trial court subsequently granted Patterson and C&M summary judgment as to any defamation claim. But the trial court expressly did not rule on “any claim for abusive litigation Plaintiff now seems to allege,” because Patterson and C&M had not briefed the issue “including the threshold issue whether the ante litem notice pursuant to OCGA § 51-7-84 (a) was fulfilled.” Davis filed a notice of appeal and a motion for reconsideration of that order, but later dropped the appeal. Patterson and C&M then moved for summary judgment on Davis’s abusive litigation and false imprisonment claims. On October 2, 2008, the trial court granted that motion and denied Davis’s motion for reconsideration. The trial court based its grant of summary judgment, in part, on Davis’s failure to provide ante litem notice of his abusive litigation claims as required under OCGA § 51-7-84.

Wallace and Bruce subsequently filed their own motion for summary judgment on October 5, 2009, and the trial court granted the motion on December 12, 2009. In the meantime, Davis filed a motion for reconsideration of the trial court’s grant of summary judgment to Patterson and C&M and a motion for default judgment on December 10, 2005. Patterson and C&M opposed Davis’s motions, but “in an abundance of caution” filed answers to the complaint on January 25, 2010. The trial court ultimately denied Davis’s motions for reconsideration and default judgment on March 12, 2010, and this appeal followed.

1. Davis argues that the trial court erred in granting any of the Defendants’ motions for summary judgment because they did not file timely answers to his complaint and further asserts that the trial court erred in denying his motion for default on this ground. We disagree.

Wallace was served with Davis’s complaint on December 20, 2007, and Bruce was served on December 26, 2007. The case was removed to federal court on January 11, 2008, and Wallace and Bruce filed a joint answer in federal court. The record contains a copy of that answer along with a notice of electronic filing from the United States District Court for the Northern District of Georgia indicating that Wallace and Bruce filed their answer on January 17, 2008, well within the 30-day filing requirement under OCGA § 9-11-12 (a). Although Davis asserts on appeal that they never filed an answer in federal court, the record indicates that his attorney was served electronically with a notice of this filing. It is well settled that “[a] timely answer filed in district court following timely removal of the action is sufficient to prevent a default in a state court if the case is subsequently remanded from district court.” (Citation and punctuation omitted.) Draper v. Reynolds, 278 Ga. App. 401, 402 (1) (629 SE2d 476) (2006). Accordingly, Wallace and Bruce were not in default.

Patterson was served with the complaint on December 18, 2007, and C&M acknowledged in the Notice of Removal that it had been served on December 14, 2007. The removal was filed within 30 days of the first service on January 11, 2007, and the jurisdiction of the state court was suspended pending remand. Cotton v. Federal Land Bank of Columbia, 246 Ga. 188, 191 (269 SE2d 422) (1980). Patterson and C&M assert that they filed a “timely” motion for judgment on the pleadings in federal court, but neither the date of the filing nor the filing itself appears in the limited appellate record designated by Davis. Davis acknowledges the filing of that motion, however, as did the trial court, and Davis does not contend that the motion was in any way untimely.

Moreover, Davis is apparently willing to concede on appeal that if a defendant files a motion for judgment on the pleadings within the time allotted for filing an answer, the defendant is not in default until the trial judge rules on the motion adversely to the defendant, citing Hopkins v. Harris, 130 Ga. App. 489 (1) (203 SE2d 762) (1973). Pretermitting whether this is a correct statement of Georgia law, we find that Davis waived his right to assert an argument based upon a failure by Patterson and C&M to timely respond to his complaint because he failed to raise this issue in a timely fashion before the trial court. In fact, the appellate record indicates that he waited until two months after the trial court granted summary judgment in favor of Patterson and C&M before raising this omission for the first time in his December 10, 2010 motions for reconsideration and default. Even then, he did not assert that the lack of an answer, in and of itself, precluded consideration of the summary judgment motions. Rather, he argued that it waived Patterson’s and C&M’s right to raise an ante litem notice defense to his abusive litigation claims. A party who fails to raise a contention in opposition to summary judgment in the trial court waives the issue for appeal. Ahmad v. Excell Petroleum, 276 Ga. App. 167, 169 (2) (623 SE2d 6) (2005).

Similarly, Davis’s motion for default was too little too late. Wallace and Bruce were never in default because they filed a timely answer, and by the time Davis made his motion, the trial court had already granted Patterson’s and C&M’s motions for summary judgment, thus terminating the case against them and obviating the need for a timely answer. See Majeed v. Randall, 279 Ga. App. 679, 681 (2) (632 SE2d 413) (2006). Moreover, we note that

[t]he statutory right to judgment following default is not an indefeasible right, but may or may not be asserted, and may be waived by a plaintiff by proceeding with the action without taking advantage of his right to judgment in a timely and proper manner. Such waiver need not be expressed, but may be implied in law by conduct or circumstances inconsistent with the right to judgment. Acts which have been held to constitute waiver include: joining issue upon the pleadings, going to trial on the merits, or announcing ready for trial and introducing evidence on the merits.

(Citation omitted.) Ward v. Swartz, 285 Ga. App. 788, 790 (2) (648 SE2d 114) (2007). The trial court found that Davis waived his right to a default judgment by conducting discovery, responding to motions with evidence in support of the merits of his case, and announcing ready and requesting that the case be put on the trial calendar. We agree that these actions were sufficient to constitute an implied waiver of default; Davis waited until the case had effectively been litigated before seeking a default judgment.

2. Davis next asserts that the trial court erred in granting summary judgment on his abusive litigation claims because the Defendants waived their right to an ante-litem notice defense by failing to raise the issue as an affirmative defense in a timely responsive pleading.

Under OCGA § 51-7-84 (a),

[a]s a condition precedent to any claim for abusive litigation, the person injured by such act shall give written notice ... to any person against whom such injured person intends to assert a claim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplated an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding, claim, defense, motion, appeal, civil process, or other position.

The trial court found that Davis had failed to provide such notice, and Davis does not dispute that finding. Rather he asserts that the Defendants could not rely upon this omission without asserting it as a timely affirmative defense. We disagree.

OCGA § 51-7-84 (a) expressly describes the notice as a “condition precedent” to an abusive litigation claim, which placed the burden upon Davis to provide such notice in order to assert his claims. Although a defendant may point to the absence of such notice in defending an abusive litigation claim, nothing in the statutory framework makes this an affirmative defense that must be pled in a responsive pleading to avoid waiver. If the General Assembly had intended to shift the burden to Defendants on this issue by making the omission of an ante litem notice an affirmative defense, it would have expressly done so as it did with the defense of good faith. Under OCGA § 51-7-82 (b) good faith is a complete defense to an abusive litigation claim; “provided, however, that good faith shall be an affirmative defense and the burden of proof shall be on the person asserting the actions were taken in good faith.” “A well-established canon of statutory construction, inclusio unius, exclusio alterius, provides that the inclusion of one implies the exclusion of [the] others.” (Citation and punctuation omitted.) Rodgers v. Gen. Motors Corp., 277 Ga. App. 547, 550 (1) (627 SE2d 151) (2006). The abusive litigation statutes are silent as to any requirement that a defense based upon the ante litem notice be affirmatively pled and proven by a defendant. Moreover, “Georgia’s abusive litigation statute is in derogation of the common law and must be strictly construed against the party asserting the right of action.” (Citation omitted; emphasis in original.) Sevostiyanova v. Tempest Recovery Svcs., 307 Ga. App. 868, 874 (4) (a) (ii) (705 SE2d 878) (2011). Thus, we conclude that the legislature never intended to make the lack of ante litem notice an affirmative defense, and this enumeration is without merit.

3. Davis further contends that the trial court erred in applying the notice defense to bar his abusive litigation claims because Patterson’s enforcement of the TPO interfered with his use of his video camera at the December 10, 2005 council meeting, resulting in $500 in damages. Davis bases this argument on OCGA § 51-7-82 (a), which provides that a timely, voluntary withdrawal, discontinuance, abandonment or dismissal of an action in response to an ante litem notice is a “complete defense” to an abusive litigation claim except “where the alleged act of abusive litigation involves the seizure or interference with the use of the injured person’s property by. . . restraining order, or similar process which results in special damage to the injured person.”

But this subsection clearly has no application here because Davis never supplied an ante litem notice and the Defendants never voluntarily withdrew, abandoned, discontinued or dismissed any action against Davis. The statutory framework does not prohibit the assertion of a defense based upon the lack of ante litem notice in an abusive litigation case alleging interference with property and special damages. To the contrary, the notice requirement is expressly made a condition precedent in every claim for abusive litigation, OCGA § 51-7-84, and the Defendants were entitled to point to Davis’s failure to comply with this provision in defending against his claims. Accordingly, this enumeration is without merit.

4. Davis argues next that the trial court erroneously granted summary judgment on his false imprisonment claim. Davis “maintains that he was imprisoned by Ms. Wallace when she told Chief Patterson to remove him from the council meeting room before she entered the room.” He asserts that “Chief Patterson had no authority pursuant to the TPO order to remove [Davis] from the council meeting room because at the time he was removed, he had no direct or indirect contact with Ms. Wallace, nor was he within 100 feet of her” as required by the TPO. We find no error.

False imprisonment is defined in Georgia in the civil context as “the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. Wallace testified that at the second TPO hearing that she had been concerned about Davis from other prior interactions where he indicated his dislike for her and shook his finger in her face. And when Bruce told her about the threats to her home, she took them “very seriously.” And the Douglas County Superior Court judge signed a TPO based upon Bruce’s information. Wallace provided Patterson with the TPO around the time of the December 10, 2005 council meeting. Patterson said that he examined the order at that time to ensure it was valid. When Patterson saw Davis at the meeting, he knew that Wallace was a council member and thus required to attend the meeting, which apparently would bring Davis within the proximal distance proscribed by the TPO. Patterson was unaware, however, that Davis was also required to be there by his employment.

Davis averred that Patterson ordered him to leave the council room, but the trial court found that Davis admitted in his deposition that he was “never touched, nor physically restrained or removed, but left after he was asked to leave.” As Davis did not include a copy of that deposition in the appellate record, we must presume that finding is correct. Patterson testified that he approached Davis, showed him the TPO and asked him to leave. He said that he wanted Davis to see the document and to understand the potential consequences resulting from the order. Patterson said he had no reason to expect that Davis would not comply with his request to leave, and had he not left, Patterson conceded that he would have felt duty-bound to arrest him for violating the order.

Davis cannot establish a claim for false imprisonment under these circumstances. Patterson believed that when Davis saw the TPO, he would understand that remaining in the room would violate the order and thus Patterson was attempting to avoid an arrest. Upon reviewing the document, Davis left, and he was not formally detained, manhandled or arrested in the process. But even if we were to conclude that Patterson’s request for Davis to leave the meeting somehow amounts to a detention within the meaning of OCGA § 51-7-20, Patterson was acting under the auspices of a valid TPO that was in full force and effect at the time. The superior court’s later dismissal of Wallace’s petition due to an untimely hearing date does not change the fact that the TPO was in effect at the time of the council meeting. A TPO simply expires or ceases to exist without a timely hearing; it is not void ab initio. OCGA § 9-11-65. And no claim for false imprisonment exists where the offending action was taken pursuant to valid process:

An action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and cannot be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be. Where the arrest is by valid process regularly sued out, action for malicious prosecution is the only remedy.

(Citation and punctuation omitted.) Joseph v. Home Depot, 246 Ga. App. 868, 872 (3) (542 SE2d 618) (2000). The fact that Patterson acted under the TPO to avoid any prohibited contact between Davis and Wallace, rather than waiting for the contact to actually occur does not change our analysis. Accordingly, under the circumstances of this case, the trial court properly granted summary judgment on this claim.

Decided June 30, 2011

Michael B. King, for appellant.

Cruser & Mitchell, William T. Mitchell, Jennifer G. Cowart, Terry L. Strawser, for appellees.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       We remind counsel that Ct. App. R. 25 (c) (2) (iii) requires that references to the record “should be indicated by specific [record] volume or part of the record and by (R-Page Number of the Record).” (Emphasis supplied.) In a case such as this one with only one record volume, all record citations simply should have begun with “R-” followed by the appropriate record page number(s) and not by the index number assigned to a particular pleading by the clerk of the lower court. In a case with multiple record volumes, the cite should indicate the particular volume or otherwise identify the part of the record first, then the record page number beginning with “R-.” Accordingly, citations to the record page number should be supplied in every case, and there is no need to reference the trial court’s index numbers unless, for some reason, there is no other way to identify a citation.

       Georgia law contemplates that a hearing on a temporary protective order be held no later than 30 days after the filing of the petition. OCGA § 9-11-65.

       The federal court described the complaint as “far from a model of clarity; it fails to articulate a short and plain statement of the claim or claims that Plaintiff intends to pursue.”

       In this appeal, Davis indicates that he never asserted any defamation claims, and we do not address the trial court’s ruling in that regard.

       Davis did assert in his motion for default, however, that the summary judgment orders should be vacated based upon the Defendants’ alleged default.


text:
    A11A0246.
    GONZALEZ v. THE STATE.
    (714 SE2d 13)
   Adams, Judge.

Marcos Ramirez Gonzalez appeals the trial court’s denial of his motion for new trial after he was convicted by a jury on one count of rape, two counts of aggravated child molestation, one count of aggravated sexual battery, and four counts of child molestation involving his stepdaughter. Gonzalez does not contest the sufficiency of the evidence to support these convictions, but rather asserts error in the conduct of his trial. Accordingly, we will address the underlying facts of the case only as necessary to consider Gonzalez’s arguments on appeal.

1. Gonzalez first contends that his trial counsel was deficient in failing to move for a mistrial after a juror, who spoke fluent Spanish, told the bailiff that portions of the victim’s videotaped statements had not been properly translated.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Citation, punctuation and footnotes omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). “We affirm the trial court’s decision on effective assistance of counsel unless the trial court’s underlying findings are clearly erroneous.” (Footnote omitted.) Leppla v. State, 277 Ga. App. 804, 810 (2) (627 SE2d 794) (2006).

The victim’s statement was videotaped and involved an interpreter’s translation from English into Spanish and from Spanish into English. The parties entered into a pre-trial stipulation in which both sides agreed that the recording was a fair and accurate representation of the victim’s interview and that the interpreter provided an accurate translation. This stipulation was read to the jury before the recorded statement was played. A short time later, during a break, the trial court informed counsel that a bailiff had reported that Juror Wellborn, who was fluent in Spanish, was requesting instruction “because she understands the Spanish we have” and was having “difficulty, or at least some difficulty, that she felt necessary to report, because some of the colloquialisms and translation is not necessarily the way [she] would translate it.” The trial court also noted that a portion of the Spanish had not been translated at all. Gonzalez’s counsel stated that she had the interview checked and she believed that the non-translated portion was innocuous, but she asked the trial court to give Juror Wellborn a curative instruction “just to rely on the English interpretation in deliberation.”

The trial court then instructed Juror Wellborn individually that “to the extent you can you should set aside anything that you hear ... in Spanish that is different than what is going to be given as the official interpretation here in the record and rely on the official interpretation.” The judge also noted that there was some Spanish that was not translated that both counsel felt did not need to be translated and he asked the juror to set aside anything that she heard and understood in that regard. When the trial judge asked the juror if she could do that, she replied, “Yes, absolutely, Judge.”

Gonzalez contends, however, that his trial attorney should have asked for a mistrial or at least questioned Juror Wellborn as to whether she had discussed the matter with any of the other jurors. He notes that when an irregularity appears in the conduct of the juror, prejudice is presumed and the burden is on the State to show beyond a reasonable doubt that no harm occurred. Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996).

Significantly, however, [this] presumption applies only where the issue was properly preserved at trial and raised as error on direct appeal; it does not apply in the context of an ineffective assistance of counsel claim. In the ineffective assistance context, the burden is upon the defendant to prove actual prejudice affirmatively from the record.

Cruz v. State, 305 Ga. App. 805, 813 (3) (f) (700 SE2d 631) (2010).

Gonzalez’s trial counsel testified at the hearing on the motion for new trial that the portion of the videotaped interview in question “was sort of an innocuous part of the tape when they were just sort of setting up the interview, [and] it was not anything substantive.” So she was satisfied with the trial court’s curative instruction and felt it was not necessary to move for a mistrial. Because Gonzalez neither identified the pertinent portion of the videotaped statement nor provided an English transcription of any untranslated portions, we have no way to evaluate his counsel’s analysis of the issue. Thus, Gonzalez failed to prove that his counsel’s trial conduct was in any way deficient, and we are left with the “strong presumption” that counsel’s performance fell “within the broad range of professional conduct.” (Citation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007).

By omitting any identification of the pertinent testimony, Gonzalez also failed to demonstrate that his defense was prejudiced. Further, Gonzalez provided no record support for his assertion that Juror Wellborn spoke with the bailiff about this issue in front of the other jurors; there is nothing in the record to demonstrate that the other jurors were even aware of her concern. And Juror Wellborn stated that she “absolutely” could rely on the official interpretation. Accordingly, Gonzalez has not established a reasonable probability that the outcome of his trial would have been different but for his counsel’s alleged deficiency. See Cruz v. State, 305 Ga. App. at 813 (3) (f); Sullivan v. State, 295 Ga. App. 145, 155 (7) (a) (671 SE2d 180) (2008).

2. Gonzalez next asserts that the trial court erred by failing to grant a mistrial sua sponte in response to the incident involving Juror Wellborn.

In the absence of any request for a mistrial, the trial court was required to act sua sponte only if there was a manifest necessity for a mistrial. Wright v. State, 276 Ga. 419, 420 (2) (577 SE2d 782) (2003). “And manifest necessity requires urgent circumstances.” (Citation and punctuation omitted.) Cox v. State, 293 Ga. App. 98, 102 (3) (666 SE2d 379) (2008). A trial court’s decision whether to grant a mistrial lies within its discretion based upon a consideration of the totality of the surrounding circumstances. Id. Thus,

a trial court’s decision whether to grant a mistrial based upon manifest necessity is entitled to great deference. This deference to the judge’s sound discretion also precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived a defendant of constitutional rights.

(Citations and punctuation omitted.) Moore u. State, 301 Ga. App. 220, 224 (2) (687 SE2d 259) (2009).

Gonzalez claims a mistrial was required because Juror Well-born’s conversation with the bailiff was in front of the other jurors, and it is unclear as to what she might have communicated to them about the translation. But as noted above, nothing in the record supports Gonzalez’s assertion that the other jurors were privy to Juror Wellborn’s conversation with the bailiff. Nor is there any evidence that they were in any way tainted by Wellborn’s independent interpretation of the videotaped interview. Accordingly, the record does not demonstrate a manifest necessity for a mistrial, and we cannot assume in the absence of such record evidence that the trial was so infected with prejudice as to deprive Gonzalez of a fair trial by an impartial jury. See Lawton v. State, 281 Ga. 459, 462-463 (3) (640 SE2d 14) (2007) (circumstances surrounding juror’s outburst in front of other jurors fell far short of demonstrating manifest necessity for mistrial); Cox v. State, 293 Ga. App. at 103 (3). This enumeration is without merit.

3. Gonzalez also argues that the trial court erred in allowing a victim-witness advocate employed by the district attorney’s office to sit with the victim during her testimony to provide support.

Prior decisions [of this Court] have recognized a broad discretion on the part of the trial court in controlling the trial of a case, have allowed a great deal of latitude in the examination of young, timid, or otherwise disadvantaged witnesses, and have generally found no abuse of discretion in permitting a familiar person to sit or stand near a young witness during their testimony.

(Citations omitted.) Williamson v. State, 234 Ga. App. 658, 658-659 (2) (507 SE2d 765) (1998). And this Court has found no abuse of discretion in allowing a county victim-witness coordinator to sit near a child while she testified when the victim had requested her presence. Miles v. State, 201 Ga. App. 568, 569 (5) (411 SE2d 566) (1991).

The victim in this case was 14 years old at the time of trial. After Gonzalez’s attorney objected, the trial court allowed counsel to voir dire the advocate, who testified that she had met the victim on a couple of occasions and talked with her on the phone, usually in the presence of the child’s mother. She said the victim was very shy due to the difficult situation involving her stepfather. The advocate also had some concerns that the girl might be developmentally disabled. On the morning of trial, the advocate presented the victim with the option of having the advocate sit near her during her testimony if it made her more comfortable. The advocate explained that it had been difficult to get the victim to open up, and she felt that they had a rapport. She indicated that it was the victim’s choice that she be there. She also confirmed that she had not coached the child in any way as to the responses she should give, but only told her that she should take her time in answering and tell the truth.

The trial judge ruled that he would allow the advocate to sit with the victim “in the event the child still does want you to sit with her” and directed the advocate to check with the victim one last time to see if that is what she wanted. He also instructed the advocate that she would have to sit five to six feet away and slightly behind the victim. He emphasized that it was very important that the advocate not convey by gesture, body language or otherwise any approval of the child’s answers, nor was she to prompt the child in any way.

Gonzalez does not contend that the advocate in any way violated the trial court’s instructions. Rather, he argues on appeal that a 14-year-old victim should not require such support. But his own attorney observed that the victim was “clearly very distraught and upset” prior to her testimony and she was concerned that the child might not “be able to communicate in any effective manner.” The trial court later observed that it was “obviously very, very, very stressful” for the victim to testify and that she was “struggling with this.” Under these circumstances, Gonzalez’s generalized statements that this procedure somehow prejudiced his defense fall short of demonstrating that the trial court abused its discretion in allowing the advocate at trial. See Bell v. State, 294 Ga. App. 779, 780-781 (3) (670 SE2d 476) (2008) (no abuse of discretion in allowing prosecutor to use leading questions to examine 14-year-old victim who demonstrated timidity and fear); Miles v. State, 201 Ga. App. at 569 (5).

4. Gonzalez enumerates that the trial court erred by not allowing him a sifting and thorough cross-examination of the victim’s mother “concerning her bias, interest and motive in [him] being convicted of the charged crimes creating a potential avenue for her to obtain a VAWA petition and remain in the country legally.” He asserts this examination was relevant to his sole defense that the mother fabricated the charges as a way of more quickly obtaining a favorable immigration status. Gonzalez concedes, however, that after he conducted voir dire of the mother outside the presence of the jury, the trial court allowed him to ask questions on these topics. Notably, Gonzalez does not point to any particular testimony that the trial judge prevented him from presenting. Rather, the gist of his appellate argument appears to be that the trial judge erred by requiring him to “preview” his cross-examination during voir dire, which caused him to lose the element of surprise with the witness, undercutting his defense strategy.

Although OCGA § 24-9-64 entitles a defendant to a thorough and sifting cross-examination of witnesses against him, the trial court is vested with discretion to limit the scope of cross-examination to matters that are material to the issues. . . . [And t]he trial court’s exercise of its discretion to curtail cross-examination will not be disturbed on appeal unless it is abused.

(Citations omitted.) Chambers v. State, 308 Ga. App. 748 (1) (708 SE2d 651) (2011). See also Shaw v. State, 241 Ga. 308, 311 (7) (245 SE2d 262) (1978) (trial judge has discretion to exclude even admissible evidence if he determines that its prejudicial impact substantially outweighs its probative value).

Following voir dire of the mother, the judge stated that he would allow the defense to “explore with the mother in the presence of the jury those issues that go to motive, interest, bias and prejudice” since Gonzalez’s attorney represented that his sole defense was that the allegations were fabricated by the victim at her mother’s behest. But the judge directed defense counsel to stay away from “illegally crossing the border and things of that nature.” The trial judge had previously expressed his concern to counsel that “how a victim gets [into the United States] one way or the other is irrelevant. . . [because] everybody is entitled to the protection of our law.” Having reviewed the voir dire and cross-examination of the mother, we find no abuse of discretion.

In any event, the trial court did not actually require Gonzalez’s trial counsel to conduct voir dire of the mother. Instead, he gave her the option of issuing his ruling without any voir dire. She replied, “Judge, I’m not saying that,” and posed an objection to being forced to explain to the State “what my defense is.” “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent, the defense might wish.” (Citation and punctuation omitted.) Kolokouris v. State, 271 Ga. 597, 600 (4) (523 SE2d 311) (1999). We find no violation of the Confrontation Clause in this case.

5. Gonzalez contends that the trial court erred in denying his motion for directed verdict at the close of the State’s case on the ground that no witness had pointed to him in the courtroom as being the perpetrator of the crimes. Gonzalez further contends that the trial court erred by instead allowing the State then to reopen its evidence and use the opportunity to bolster its witnesses’ statements through repetition of their prior testimony.

“It is within the discretion of the trial court to permit the state to reopen its case after the close of the evidence; and the trial court may deny a directed verdict of acquittal to permit the state to proffer evidence previously overlooked.” (Citation and punctuation omitted.) Ramey v. State, 288 Ga. App. 800, 802 (655 SE2d 675) (2007). See also In the Interest of A. L. S., 261 Ga. App. 778, 779 (1) (584 SE2d 27) (2003) (court has broad discretion to reopen a case even after the defendant moved for directed verdict).

The State argued in response to the defendant’s motion for directed verdict that it, in fact, had established identity. Although no one pointed to the defendant and identified him as tire perpetrator, the record shows that the victim’s mother testified on direct that she recognized the defendant and that she had married him in 2004. She described her married life with Gonzalez and their children, then testified about the night she found the victim in bed on top of her “husband,” which led to the charges in this case. The State argued that this was sufficient identification of the defendant as the perpetrator, but nevertheless moved to reopen the evidence to present additional evidence on identity. The trial court allowed the State to reopen the evidence for the limited purpose of identification, noting that all the witnesses were present and there would be no delay.

The State recalled the victim, her sister and her mother, who each identified Gonzalez as the man involved in the incidents to which they had previously testified. The defense objected on only one occasion, when the State asked the mother if Gonzalez was the man she saw with her daughter on the night in question, on the ground that the mother had already identified him by name. The trial court overruled the objection and the State asked only one more question: whether Gonzales was the “gentleman” the mother saw with the victim sitting on top of him that night, to which she replied “yes.”

Decided June 30, 2011.

Niria D. Baggett, for appellant.

Daniel J. Porter, District Attorney, W. Jay Hughes, Assistant District Attorney, for appellee.

Considering the totality of the circumstances, we find that the trial court acted well within its discretion in allowing the State to reopen its case and in properly limiting the scope of the examination afterwards. See Ramey v. State, 288 Ga. App. at 802; Overton v. State, 270 Ga. App. 285, 291 (4) (606 SE2d 306) (2004); Gooch v. State, 155 Ga. App. 708, 709 (1) (272 SE2d 572) (1980).

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       The trial court merged one count of aggravated child molestation and one count of child molestation into the rape conviction for sentencing purposes, and Gonzalez received an aggregate sentence of forty years, with thirty years to serve.

       Gonzalez’s appellate brief states, without citation, that a “VAWA petition” is a “special visa for victims of domestic violence under the immigration laws,” and his trial counsel represented to the trial court that it is “special protection for illegal citizens, protection under domestic violence law, under immigration law.”

       Although the trial judge raised this issue sua sponte, he did so following the cross-examination of the victim, during which the absence of objection from the State led him to believe that counsel had misinterpreted his prior ruling in an earlier, unrecorded bench conference. The judge held that conference in response to an objection from the State on the relevance of Gonzalez’s attorney cross-examining the victim about how she came to the United States.


author: Mikell, Judge.

text:
    A11A0293.
    INFINITE ENERGY, INC. v. PARDUE et al.
    (713 SE2d 456)
   Mikell, Judge.

Infinite Energy, Inc., a Florida-based natural gas marketer, filed a defamation action against attorney David L. Pardue, the law firm of Hartman, Simons, Spielman & Wood, LLP (“HSSW”), and Poston Communications, LLC, alleging that the defendants issued a press release that falsely accused Infinite Energy of having “deceived, cheated and misled” its customers. The trial court granted the defendants’ motions to dismiss, concluding, inter alia, that the statements were not actionable. Infinite Energy appeals. Because the trial court failed to apply the proper guidelines in evaluating the defendants’ motions to dismiss, and the complaint states a claim for defamation, we reverse.

1. Our Supreme Court has established the following guidelines applicable to motions to dismiss brought pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief may be granted: “A motion to dismiss should only be granted if the allegations of the complaint, construed most favorably to the plaintiff, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.” In other words, “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied.”

A trial court’s ruling on a motion to dismiss for failure to state a claim is subject to de novo review. In assessing the motion, we may consider exhibits attached to and incorporated into the pleadings. Here, the allegedly defamatory press release is attached to the complaint, and it states that on November 18, 2008, Pardue, then a member of HSSW, filed suit in federal court on behalf of three Korean-American dry cleaning business owners, alleging that Infinite Energy defrauded them “through exorbitant prices locked into three-year contracts signed following Hurricane Katrina.” The suit sought class-action status on behalf of the Korean Cleaners Association of Atlanta (“KCAA”). The press release quotes Pardue as follows:

Normally I defend class actions but I decided to help the dry-cleaning business community recover their losses in what is a clear case of wrongdoing. Infinite engaged in deliberate misinformation and scare tactics to lock the KCAA into high fixed rates when it was clear that the Katrina effect on gas prices was temporary. It is determined to reap illegal profits and to extract every penny possible from customers it has deceived, cheated and misled.

The press release was picked up by various publications, and, according to the complaint, Poston tried to have it published in the Gainesville Sun, the newspaper in Florida where Infinite Energy is headquartered, although it has no customers in Gainesville.

A cause of action for defamation consists of four elements: “(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.”

The second element is not at issue here. As to the first element, the trial court concluded that the defendants’ statements could not reasonably be interpreted as stating or implying defamatory facts about Infinite Energy. The court ruled that the statements were mere expressions of opinion that cannot be proven false. Infinite Energy argues that the trial court erred in so ruling, and we agree.

Slander or oral defamation includes “[mjaking charges against another in reference to his trade, office, or profession, calculated to injure him therein.” “This type of defamation is actionable per se and damage is inferred.” The complaint herein alleges that the defendants falsely stated that Infinite Energy “engaged in deliberate misinformation” and “deceived, cheated and misled” its customers by charging them “artificially inflated rates after Hurricane Katrina.” The complaint alleges that Infinite Energy has suffered damage to its character, reputation, and business, as a result of the statements. It is undisputed that the statements were published. These allegations stated a claim for slander per se.

Contrary to the defendants’ contention, these statements cannot be categorized as mere expressions of opinion that are incapable of being proved false.

It is true that a defamation action will lie only for a statement of fact. This is because a statement that reflects an opinion or subjective assessment, as to which reasonable minds could differ, cannot be proved false. As a result, a plaintiff who claims that a published opinion defamed him will generally be unable to carry his burden of proving the essential element of falsity.

As our Supreme Court has explained, however,

[t]here is ... no wholesale defamation exception for anything that might be labeled “opinion.” An opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts about the plaintiff that are capable of being proved false.

To the extent that Infinite Energy bases its defamation claim on published statements that it deceived, cheated, and misled its customers by overcharging them, the claim is actionable. Given that market rates for natural gas are quantifiable, the defamatory statements are capable of being proved false. Of course, whether the statements are actually true or false is a question for the jury. The trial court erred in concluding otherwise.

2. Having determined that the complaint sufficiently pled the first element of a defamation claim, we turn to the element of fault. This element necessitates a determination of whether Infinite Energy is a private figure, or, as the trial court found, a public figure. To recover on a defamation claim, a plaintiff who is a private person need only prove that the defendant acted with ordinary negligence, whereas a plaintiff who is a public figure must prove by clear and convincing evidence that the defendant acted with actual malice.

Public figures are classified as either “general purpose,” meaning for all purposes, or “limited purpose,” meaning for a limited range of issues. As the United States Supreme Court has explained,

those who attain [public figure] status have assumed roles of special prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

“Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society,” a plaintiff should not be deemed a public figure for all purposes. “It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” “Whether a person is a public figure, general or limited, is a question of law for the court to resolve.”

In the case at bar, the trial court ruled that Infinite Energy is both a general purpose public figure and a limited purpose public figure. First, the court held that

[Infinite Energy] is a general purpose public figure because it is a large, well-known natural gas marketer who is a household name beyond a local area or certain social circles. [Infinite Energy] served at least six hundred customers (as evidenced by the fact that there were more than six hundred customers involved in the class action law suit) and did substantial business in Fulton County, GA, despite being based in Gainesville, FL.

This reasoning is flawed. “A person is a general purpose public figure only if he is a ‘celebrity,’ his name a ‘household word’ whose ideas and actions the public in fact follows with great interest.” Construing the complaint’s allegations most favorably to Infinite Energy, as we must when reviewing the grant of a motion to dismiss, they do not show that Infinite Energy is a public figure for all purposes. Rather, the complaint and its attachments reflect that Infinite Energy is a “Florida-based energy giant” with at least 600 customers in Georgia who tried to maintain a class-action suit against the company for allegedly locking them into three-year contracts at inflated prices. These statements do not show that Infinite Energy is either a “household word” or that it holds a “position of such persuasive power and influence” that it should be deemed a public figure for all purposes. The trial court erred in concluding otherwise.

We next address the trial court’s conclusion that Infinite Energy is a limited purpose public figure. In so holding, the trial court found that Infinite Energy’s “role as the primary actor in the class action suit indicates its direct involvement in a legitimate public controversy.” At this stage of the proceedings, and considering the complaint in its proper light, the court erred in reaching this conclusion.

A court must apply a three-part test in determining whether a plaintiff is a limited purpose public figure: “a court must isolate the public controversy, examine the plaintiffs involvement in the controversy, and determine whether the alleged defamation was germane to the plaintiffs participation in the controversy.” A public controversy is an issue that “generates discussion, debate, and dissent in the relevant community.” But it must be “more than merely newsworthy. . . . [I]f the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.” Arguably, if the dry cleaners’ federal lawsuit had not failed, it could have had substantial ramifications for nonparticipant customers of Infinite Energy, making the issue a public controversy.

We next consider Infinite Energy’s involvement in the controversy. To constitute a public figure for this limited purpose, there must be evidence of record that Infinite Energy thrust itself to the forefront of the controversy. At this stage of the proceedings, there are no affidavits, depositions, or other evidence that might support such a conclusion. That the Georgia Public Service Commission (“GPSC”) “investigated the matter and advised certain KCAA members on how to switch from Infinite Energy,” as reported in a press release, which we take as true on motion to dismiss, does not imply that Infinite Energy thrust itself into the forefront of any public controversy. Here, Pardue and HSSW made the allegedly defamatory remarks, and “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” The defendants argue that Infinite Energy is an involuntary public figure. It is true that “occasionally, someone is caught up in the controversy involuntarily and, against his will, assumes a prominent position in its outcome. Unless he rejects any role in the debate, he too has ‘invited comment’ relating to the issue at hand.” This determination cannot be made from reviewing the complaint and attachments thereto. Accordingly, the trial court erred in finding, on motion to dismiss, that Infinite Energy is a limited purpose public figure.

3. Infinite Energy argues that the trial court erred in finding as a fact that the defendants’ statements were not made with actual malice. We agree.

Infinite Energy was not required to prove malice in order to survive a motion to dismiss for failure to state a claim for which relief may be granted. In accordance with rules of notice pleading, Infinite Energy was simply required to aver that the defendants acted with malice. The complaint alleges that Pardue acted with malice when he stated that Infinite Energy “deceived, cheated and misled” its customers and that all three defendants acted with malice by attempting to publish the statements in the Gainesville Sun, given that none of the potential class members lived in Gainesville and Infinite Energy does not offer natural gas services there.

When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim . . . , the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in [its] favor even though unfavorable constructions are possible.

Properly construed, the complaint and attachments thereto sufficiently state a claim for relief based on defamation.

4. Poston argues that the trial court’s ruling dismissing this action should be affirmed because the suit is barred by the applicable statute of limitation, OCGA § 9-3-33. We disagree.

Pursuant to OCGA § 9-3-33, “[a]ctions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues.” A suit for slander or defamation is one for injury to the reputation. In this case, the original press release was issued on November 18, 2008, and the original complaint was filed on November 18, 2009. Poston argues that the action was filed one day late, citing Jacobs v. Shaw, which held that “[a] claim for slander is untimely if brought on the anniversary date of the alleged publication or thereafter.” In Jacobs, we affirmed the summary judgment granted against a plaintiff in an action alleging slander per se, holding that it was time-barred under OCGA § 9-3-33 because it was filed at least one year after the alleged publication.

Jacobs relied on Holliday v. Lacy, a case which held that a personal injury action filed on the second anniversary of the underlying injury was barred by the statute of limitation because the date of injury was included in the time calculation. In 1985, during the interval between the Holliday and Jacobs decisions, the legislature amended OCGA § 1-3-1 (d) (3) to provide, in relevant part, that “when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted[.]” We have long held that OCGA § 1-3-1 (d) (3), as amended in 1985, applies to personal injury actions governed by the two-year statute of limitation in OCGA § 9-3-33, so that a complaint is timely if filed on the second anniversary of the underlying incident. It follows logically from these precedents that OCGA § 1-3-1 (d) (3) applies to the one-year statute of limitation for injuries to the reputation found in OCGA § 9-3-33, so that “the first day shall not be counted” in determining whether a claim is timely filed. Accordingly, we hold that the complaint in the case at bar was timely filed on the first anniversary of the date of publication. Jacobs and McCandliss v. Cox Enterprises are overruled to the extent that they conflict with our ruling.

Decided June 30, 2011.

Morris, Manning & Martin, Marguerite E. Patrick, Donald A. Loft, for appellant.

Carlock, Copeland & Stair, Johannes S. Kingma, William D. Newcomb III, Taylor, English & Duma, Sean R. Smith, for appellees.

Judgment reversed.

Ellington, C. J., Smith, P. J., Barnes, P J., Miller, P J., Phipps, P J., Andrews, Adams, Doyle, Blackwell, Dillard and McFadden, JJ., concur.

       (Citation omitted.) McGowan v. Progressive Preferred Ins. Co., 281 Ga. 169, 170 (637 SE2d 27) (2006).

       (Footnote omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). Accord Scouten v. Amerisave Mtg. Corp., 283 Ga. 72, 73 (1) (656 SE2d 820) (2008).

        Mattox v. Yellow Freight Systems, 243 Ga. App. 894 (534 SE2d 561) (2000).

        Bakhtiarnejad v. Cox Enterprises, 247 Ga. App. 205, 208 (1) (541 SE2d 33) (2000). Accord Stendahl v. Cobb County, 284 Ga. 525, 526 (1), n. 2 (668 SE2d 723) (2008). See OCGA § 9-11-10 (c).

       (Punctuation and footnote omitted.) Mathis v. Cannon, 276 Ga. 16, 20-21 (2) (573 SE2d 376) (2002).

       OCGA § 51-5-4 (a) (3).

       (Citations omitted.) Strange v. Henderson, 223 Ga. App. 218, 219 (477 SE2d 330) (1996); Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3) (278 SE2d 689) (1981); Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124) (1981).

       See Smith v. Moeller, 132 Ga. App. 184, 185-186 (4) (207 SE2d 669) (1974) (allegation that plaintiff falsely slandered defendant by representing to farmers and prospective customers that defendant was dishonest and his equipment defective and unreliable stated claim for slander per se); Dickey v. Brannon, 118 Ga. App. 33, 35 (5) (162 SE2d 827) (1968) (“[T]o charge falsely that one has acted deceitfully in conducting his business affairs is actionable per se.”).

         (Footnote omitted.) Gettner v. Fitzgerald, 297 Ga. App. 258, 261 (1) (a) (677 SE2d 149) (2009) (report that plaintiff was demoted because of unsatisfactory job performance deemed capable of being proved false). Compare Kirsch v. Jones, 219 Ga. App. 50, 51 (1) (464 SE2d 4) (1995) (statement that lawyer “bungled” case not actionable); Collins v. Cox Enterprises, 215 Ga. App. 679, 680 (452 SE2d 226) (1994) (A statement that a candidate was trying to fool voters by changing his name “does not imply an assertion of objective fact that might be proved false.”).

       (Punctuation and footnotes omitted.) Gast v. Brittain, 277 Ga. 340, 341 (589 SE2d 63) (2003). Accord Gettner, supra.

       See, e.g., Smith v. Stewart, 291 Ga. App. 86, 95 (1) (b) (660 SE2d 822) (2008).

        Mathis, supra at 22 (3); Riddle v. Golden Isles Broadcasting, 275 Ga. App. 701, 703 (1) (621 SE2d 822) (2005).

        Gertz v. Robert Welch, Inc., 418 U. S. 323, 345 (III) (94 SC 2997, 41 LE2d 789) (1974).

       Id. at 352 (V).

       Id. Accord Mathis, supra at 22-23 (3).

       (Citation and punctuation omitted.) Riddle, supra. Accord Gettner, supra at 263 (1) (c).

       (Citations and punctuation omitted.) Riddle, supra at 704 (1) (a) (Evidence failed to show that a local rap artist “had achieved the degree of celebrity and influence typical of a general purpose public figure.”) (citation omitted).

        McGowan, supra.

       Compare Reliance Ins. Co. v. Barron’s, 442 FSupp. 1341, 1348 (1) (S.D. N.Y. 1977) (billion dollar, publicly held corporation, subject to federal and state regulation, held to be a public figure in its suit against a financial weekly arising out of an article impugning plaintiffs’ motives in proposing a fifty million dollar stock sale).

       (Punctuation and footnote omitted.) Mathis, supra at 23 (3).

       Id. at 24 (3).

       (Citation and punctuation omitted.) Riddle, supra at 705 (1) (b).

       See Gertz, supra; Sewell v. Trib Publications, 276 Ga. App. 250, 255 (1) (622 SE2d 919) (2005).

       Compare Atlanta Humane Society v. Mills, 274 Ga. App. 159, 163-164 (2) (b) (618 SE2d 18) (2005) (The record demonstrated that director of humane society was a limited-purpose public figure because he issued press releases and participated in television investigation.).

       Compare Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 818-819 (3) (b), 820 (4) (555 SE2d 175) (2001) (finding by clear and convincing evidence that Richard Jewell was at least an involuntary limited-purpose public figure in connection with the 1996 bombing of the Centennial Olympic Park because of his voluntary public appearances).

        Hutchinson v. Proxmire, 443 U. S. 111, 135 (V) (99 SC 2675, 61 LE2d 411) (1979); Long v. Cooper, 848 F2d 1202, 1204-1205 (I) (11th Cir. 1988) (Closely-held corporation “did not thrust itself into a public controversy” and was not a limited purpose public figure.); Bruno & Stillman v. Globe Newspaper Co., 633 F2d 583, 591 (1st Cir. 1980) (same). But see Steaks Unlimited v. Deaner, 623 F2d 264, 273-274 (IV) (3d Cir. 1980) (Plaintiff was deemed a limited purpose public figure because it “launched an intensive [media] campaign” concerning its meat business, about which consumers had complained.).

       (Punctuation and footnote omitted.) Jewell, supra at 820 (4).

       We need not address, at this juncture, the trial court’s finding that the defendants’ statements were germane to Infinite Energy’s involvement in the controversy.

       See Ledford v. Meyer, 249 Ga. 407, 408-409 (2) (290 SE2d 908) (1982); accord Saye v. Deloitte & Touche, 295 Ga. App. 128, 132-133 (1) (a) (670 SE2d 818) (2008).

       See Ledford, supra (pleading conclusions in defamation complaint did not render complaint subject to dismissal for failure to state a claim upon which relief may be granted).

       (Citation and punctuation omitted.) Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 874 (463 SE2d 713) (1995).

       See Scouten, supra at 73-74 (2); Saye, supra at 135 (1) (b).

       See OCGA § 51-5-4 (a).

       219 Ga. App. 425 (465 SE2d 460) (1995).

       (Citation omitted.) Id. at 427 (2).

       Id.

       118 Ga. App. 341 (163 SE2d 750) (1968).

       Id. at 341 (1).

       See, e.g., McNeil v. McCollum, 276 Ga. App. 882, 886 (1) (625 SE2d 10) (2005) (where accident occurred on November 27, 2001, two-year statute of limitation expired on November 27, 2003); Reese v. City of Atlanta, 247 Ga. App. 701, 702 (545 SE2d 96) (2001) (claim for false arrest and false imprisonment held timely filed on second anniversary of plaintiffs arrest); Davis u. DESA Intl., 209 Ga. App. 318, 319 (433 SE2d 410) (1993) (personal injury action filed on second anniversary of injury held timely filed); Hollingsworth v. Hubbard, 184 Ga. App. 121, 122 (361 SE2d 12) (1987) (recognizing that under amended version of OCGA § 1-3-1 (d), date of collision did not count for purposes of computing timeliness of complaint); See also Knutsen v. Atlanta Women’s Specialists &c., 264 Ga. App. 87, 90 (589 SE2d 588) (2003) (noting, in dicta, that OCGA § 1-3-1 (d) (3), in effect, extends the statute of limitation for personal injuries from two years to two years plus one day); Gardner v. Hyster Co., 785 FSupp. 161, 163 (1992) (“Under clearly established Georgia law, therefore, amended OCGA § 1-3-1 (d) (3) governs OCGA § 9-3-33, thereby extending the statute of limitations for personal injury actions to two years and one day.”).

       265 Ga. App. 377, 380 (2) (593 SE2d 856) (2004) (affirming dismissal of a libel claim filed on the anniversary date of the alleged publication).