author: McFadden, Judge. BARNES, Presiding Judge,

text:
    A12A1891.
    WALKER et al. v. MECCA et al.
    (739 SE2d 450)
   McFadden, Judge.

Devona Walker, the parent and guardian of Sherwood Burnett, and Tiyesha Burnett filed a personal injury action against Kyle Mecca, Gerald Mecca and Earl Sheppard III. Finding that the plaintiffs previously had dismissed two prior lawsuits arising from the same automobile accident, the trial court granted the Meccas’ motion to dismiss as to all three defendants on the ground that the action was barred by OCGA § 9-11-41 (a) (3). The plaintiffs appeal, arguing that OCGA § 9-11-41 (a) (3) does not bar the action because the dismissed lawsuits involved different defendants. But there is no such limit on the scope of OCGA § 9-11-41 (a) (3). It applies when an action seeking recovery on the same claim was brought and dismissed twice, regardless of the parties named as defendants. We therefore affirm.

“The facts relevant to this appeal are undisputed, and our review is de novo.” (Citation omitted.) Controlled Blasting v. Viars, 293 Ga. App. 284 (666 SE2d 626) (2008). On June 13, 2009, the plaintiffs were passengers in Sheppard’s vehicle when it was involved in a collision with a vehicle driven by Kyle Mecca. The plaintiffs filed three complaints alleging that they were injured in the accident and seeking recovery for their injuries. They filed a complaint on September 21, 2009, against the Meccas, which they dismissed on June 20, 2011. They filed a complaint on June 6, 2011, against Sheppard, which they dismissed on June 20, 2011. They filed the instant action on July 6,2011, against the Meccas and Sheppard, again alleging that they were injured in the June 13 accident and seeking recovery for their injuries sustained in that accident.

The Meccas moved to dismiss the complaint, arguing that under OCGA § 9-11-41 (a) (3) two previous voluntary dismissals of the personal injury action operate as an adjudication on the merits as to them even though they were not defendants in both previous dismissals of the action. The trial court granted the motion, holding that it applies to all defendants, and the plaintiffs appeal.

Under OCGA § 9-11-41 (a) (3), a voluntary dismissal “is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.” As the trial court correctly held, this case is controlled by Belco Electric v. Bush, 204 Ga. App. 811 (420 SE2d 602) (1992). In Belco, decided under a former version of the statute that applied when a party had dismissed an action three times, see Ga. L. 2003, p. 820, § 4, we ruled that “the controlling factor is the third voluntary dismissal of the same cause of action rather than the named party defendants.” Belco, 204 Ga. App. at 815. We held that

[ujnder the plain language of OCGA § 9-11-41 (a), an adjudication on the merits is based not on a requirement that the same defendant was three times dismissed, but because an action seeking recovery on the same claim was brought and voluntarily dismissed three previous times. Thus, the statute is designed to prevent a plaintiff from repeatedly filing actions for the same claim against any defendant, not only previously named defendants.

Id.

In this case, “[although various defendants were named in the suits, the present action, and all of the previous actions brought and voluntarily dismissed by [the plaintiffs], sought recovery on the same claim,” Belco, 204 Ga. App. at 815, the injuries the plaintiffs sustained as a result of the June 13, 2009 accident.

The plaintiffs contend that they may proceed under the authority of Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 272 Ga. 209 (528 SE2d 508) (2000), and Mateen v. Dicus, 286 Ga. App. 760 (650 SE2d 272) (2007). Those cases involved the issue of whether a voluntary dismissal with prejudice of one party extended to another party. Hedquist, 272 Ga. at 212 (2); Mateen, 286 Ga. App. at 761 (2). Neither of those cases involved the application of OCGA § 9-11-41, and they are therefore not controlling.

The plaintiffs’ two previous voluntary dismissals of the personal injury action operated as an adjudication on the merits, and the trial court correctly granted the motion to dismiss.

Judgment affirmed.

McMillian, J., concurs. Barnes, P. J., concurs fully and specially.

BARNES, Presiding Judge,

concurring fully and specially.

I concur fully with the majority opinion, which holds that the “two dismissal” rule set forth in OCGA § 9-11-41 (a) (3) must be applied when an action seeking recovery on the same claim is brought and dismissed twice, irrespective of the parties named as defendants. While this case is controlled by Belco Electric v. Bush, 204 Ga. App. 811, 815 (420 SE2d 602) (1992), I write separately to explain why the language and structure of OCGA § 9-11-41 compels the resultreached in Belco and by the majority in this case. Nevertheless, while the result in this case is dictated by the current statutory scheme, there also are good reasons why the General Assembly should amend OCGA § 9-11-41 so that the “two dismissal” rule applies only to the same or substantially the same defendant, and I urge the General Assembly to do so.

As an initial matter, the language of OCGA § 9-11-41 (a) (3), when construed together with subsection (d) of the same statute, dictates that the “two dismissal” rule be applied even if the defendant is not the same in both suits. Specifically, OCGA § 9-11-41 (a) (3) provides: “A dismissal under this subsection is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.” In contrast, OCGA § 9-11-41 (d), a subsection of the same statute regarding costs, provides: “If a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.” (Emphasis supplied.) “Where, as here, the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” (Citation and punctuation omitted.) Berryhill v. Ga. Community Support &c., 281 Ga. 439, 442 (638 SE2d 278) (2006). We therefore must assume that if the General Assembly had intended to limit the “two dismissal” rule to cases where the defendant was the same in both suits, it would have done so, as it did in the cost provision of the same statute.

While the result of this case is dictated by the language of OCGA § 9-11-41 (a) (3) and the canons of statutory construction, there are important reasons why the General Assembly should amend OCGA § 9-11-41 (a) (3) to limit its application to cases where the defendant is the same or substantially the same. First, OCGA § 9-11-41 (a) (3) should be amended because applying the “two dismissal” rule to unrelated defendants is inconsistent with the public policy behind the rule. As we have explained, the commonly understood public policy behind having a “two dismissal” rule is “[t]o prevent the unscrupulous plaintiff from harassing a defendant by repeatedly filing the same complaint.” Harris v. Sampson, 162 Ga. App. 241, 243 (290 SE2d 165) (1982). Discussing the “two dismissal” rule under Federal Rule of Civil Procedure 41, Professors Wright and Miller have opined that

a general holding that the “two dismissal” rule applies even when the suits are not against the same defendant seems unsound. If two defendants are unrelated, it is difficult to see how one defendant can be so harassed by a single dismissal against [him] that the dismissal should be with prejudice merely because an earlier action on the same claim against the other defendant was dismissed.

9 Charles Alan Wright et al., Federal Practice and Procedure § 2368 (3d ed. 2012). Consistent with the public policy behind the rule, many courts have held that the “two dismissal” rule should not be applied to unrelated defendants. See, e.g., Lake at Las Vegas Investors Group v. Pacific Malibu Dev. Corp., 933 F2d 724, 728 (9th Cir. 1991); Fernandez v. Estate of Gatti, No. 10-62269-CIV, 2011 WL 2077817, at *2-3 (S.D. Fla. May 26, 2011); Matvejs v. Martin County Sheriffs Office, No. 06-14133-CIV, 2006 WL 3755202, at *3 (S.D. Fla. Dec. 19,

Decided March 7, 2013

Savage, Turner, Pinckney & Madison, Ashleigh R. Madison, for appellants.

Hawkins, Parnell, Thackston & Young, William H. Major III, Daniel N. Mills, Bridges, Ormand & DeMetz, Dennis J. Manganiello, Stephen D. Morrison, Jr., for appellees.

2006); Falkenstein v. Braufman, 88 NW2d 884, 888-889 (Minn. 1958). In contrast, Georgia, through its enactment of OCGA § 9-11-41 (a) (3), has adopted a “two dismissal” rule that is overinclusive given the underlying public policy involved.

Second, OCGA § 9-11-41 (a) (3) should be amended because application of the “two dismissal” rule to unrelated defendants is inconsistent with application of the renewal statute, OCGA § 9-2-61. We have construed the renewal statute as requiring that the first suit dismissed by the plaintiff and the second-filed suit must involve the same or “substantially identical” defendants for the privilege of renewal to be exercised. See, e.g., Gish v. Thomas, 302 Ga. App. 854, 861-862 (3) (691 SE2d 900) (2010); Soley v. Dodson, 256 Ga. App. 770, 772-773 (569 SE2d 870) (2002). Because OCGA §§ 9-11-41 and 9-2-61 are clearly interrelated, see Crawford v. Kingston, 316 Ga. App. 313, 316 (2) (728 SE2d 904) (2012), amending OCGA § 9-11-41 (a) (3) so that the “two dismissal” rule would not apply to unrelated defendants would harmonize the two statutes, which is surely the better result.

As we have emphasized, “this Court has authority only to interpret statutes, not to rewrite them.” Morrison v. Claborn, 294 Ga. App. 508, 513 (2) (669 SE2d 492) (2008). The remedy in this case, therefore, lies with our legislature. For the reasons previously discussed, I urge the General Assembly to amend OCGA § 9-11-41 (a) (3) so that the “two dismissal” rule applies only when an action seeking recovery on the same claim has been brought and voluntarily dismissed twice against the same or substantially the same defendant.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A1964.
    GRUNER v. THACKER.
    (739 SE2d 440)
   Branch, Judge.

Melanie Howton Gruner, acting pro se, filed suit against multiple parties arising out of her arrest at a traffic roadblock. Defendant Melodie Thacker moved for summary judgment, which was granted, and Gruner appealed. Gruner’s appeal, however, was dismissed by the trial court, and she now appeals that ruling.

Gruner filed suit in November 2006 against Thacker (the intake officer on the night of Gruner’s arrest), as well as the arresting officer, the chief of police, the City of McDonough, and several other individuals. Gruner alleged a violation of her civil rights, false arrest, false imprisonment, negligence, conspiracy, and conversion, and she thereafter amended her complaint several times. In November 2010, Thacker moved for summary judgment on all claims against her, and a hearing was set for February 17, 2011. Following the hearing, the trial court granted the motion and filed its order on February 23, 2011.

Gruner timely filed her notice of appeal on March 21,2011. Inher notice, she requested that the clerk omit nothing from the record on appeal and stated that a transcript would be filed for inclusion in the record. On that same day, Gruner filed an affidavit of indigence in which she stated that she was “financially unable to pay the filing fee required for filing costs in the Court of Appeals of Georgia, and I respectfully and humbly request I be permitted to file the Appellate Application and Brief without having to pay filing fees.” There is no indication that Thacker traversed Gruner’s affidavit at any time. On March 29, 2011, the trial court sua sponte filed an order denying Gruner’s request to proceed in forma pauperis after “having considered the affidavit and the record as a whole.” On April 11, Gruner resubmitted her request to proceed in forma pauperis and this time attached a signed and notarized court form in which she presented supporting financial information and requested that she be allowed to proceed in forma pauperis for “the rest of this case.” There is no indication that the trial court ever acted on this request.

On April 20, Gruner amended her notice of appeal to state that she had been informed by the Court of Appeals that she could provide a record appendix on her own to prepare for the appeal. See Rules of the Court of Appeals of Georgia, former Rule 17. In her amended notice of appeal, Gruner identified 15 documents in the record and asked the trial court clerk to send her a bill for the cost of the documents as well as for transcripts of two pretrial hearings held on July 8, 2010, and February 17, 2011. She also requested that she be informed of any other costs that were required. The trial court clerk’s office responded on July 8, 2011, over two-and-one-half months after the request, as follows:

I have included an Index with the items you requested in your Amended Appeal along with a bill of cost. The cost for an appeal would be $1.00 per page on the record and $2.50 to certify that record, a $35.00 charge to certify each transcript____You have not stated in your amended appeal what you want the Clerk to forward to the Court of Appeals [;] therefore an estimated cost cannot be figured. Regarding any transcripts or depositions for the case it would be your responsibility to order the transcripts from the court reporter and the depositions from the recorder that took those.

On August 31, 2011, Gruner contacted at least one defense counsel regarding preparation of the record appendix.

On September 1, 2011, Thacker moved to dismiss Gruner’s appeal. Thacker asserted that “because of Plaintiff’s conduct [,] the record has not been completed.” Thacker added that Gruner had not filed a transcript nor taken proper steps to reproduce the record and that the record had not been transmitted to the Court of Appeals.

In late September 2011, Gruner attempted to file a record appendix with this Court, but this Court returned the submission and did not docket the case because it required corrections to be in compliance with this Court’s requirements. On November 3, 2011, Gruner appears to have filed a transcript in the trial court. On March 7, 2012, the trial court dismissed Gruner’s appeal in a one-sentence order without any findings.

On appeal, Gruner contends, among other things, that the trial court erred (1) by dismissing her notice of appeal and by failing to make findings in its ruling; (2) by denying her right to proceed in forma pauperis (for which she argues the court failed to hold a hearing); and (3) by not holding a hearing on the motion to dismiss her appeal. We find this appeal to be controlled by two recent whole court decisions of this Court: Grant v. Kooby, 310 Ga. App. 483, 485 (713 SE2d 685) (2011), and Boyd v. JohnGalt Holdings, LLC, 318 Ga.App. 866 (736 SE2d 459) (2012).

1. In order for a trial court to dismiss an appeal for unreasonable delay in the filing of the transcript or in the transmission of the record, OCGA § 5-6-48 (c) “requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then to exercise discretion in deciding whether to dismiss the appeal.” Propst v. Morgan, 288 Ga. 862, 863 (708 SE2d 291) (2011). See also Grant, 310 Ga. App. at 485, citing Propst. And a trial court errs by not engaging in the analysis outlined by the Supreme Court and making the requisite findings of fact when addressing a motion to dismiss an appeal on these grounds. Grant, 310 Ga. App. at 485-486; Rogers v. Norris, 262 Ga. App. 857 (1) (586 SE2d 747) (2003). Without such findings, “we are unable to engage in meaningful appellate review” of the trial court’s decision. (Footnote omitted.) Grant, 310 Ga. App. at 486. Here, as in Grant and Rogers, the trial court entered a summary-order without any explanation. “Failure to make these findings mandates that we vacate the order dismissing the appeal and remand the case with the direction that findings of fact be entered on these issues.” (Citations omitted.) Rogers, 262 Ga. App. at 857 (1).

2. In addition, the trial court was not authorized to deny Gruner pauper status without a hearing. First,

although the order dismissing [this] appeal[ ] concerns, in part, a trial court’s determination regarding the validity of a pauper’s affidavit, which is normally not subject to review, this appeal concerns the procedure used by the trial court when making an indigence ruling, which is appealable.

(Citations and punctuation omitted.) Boyd, 318 Ga. App. at 868 (1) (challenge to trial court’s failure to hold a hearing regarding party’s indigence could be raised on appeal). And second, Boyd makes clear that in cases where a party files an affidavit of indigence pursuant to OCGA § 9-15-2, and either the opposing party files a traverse or the court inquires into the truth of the affidavit on its own, a hearing is required on the matter. Id. at 869 (2).

In Boyd, the plaintiffs attempted to appeal an appealable order of the trial court, and after filing their notice of appeal and receiving a bill of costs from the clerk, the plaintiffs filed affidavits of indigence in which they stated that because of their poverty, they were unable to pay costs. Boyd, 318 Ga. App. at 867. See also OCGA § 9-15-2 (a) (1). The defendant did not traverse the affidavits. Over three months later, the trial court denied the plaintiffs pauper status without holding a hearing on the issue. The plaintiffs moved for reconsideration and attached new affidavits that included factual support for the assertion of indigence, but the trial court refused the request, and the plaintiffs appealed the denial of indigent status. Id. at 867. The plaintiffs thereafter took steps to prepare a record appendix and amended their notice of appeal to so indicate. Id. at 868. And they attempted to submit the record appendix to the Supreme Court, but the trial court clerk would not take steps to certify the plaintiffs’ appeal. Id. Eventually, the defendant moved to dismiss the plaintiffs’ appeals, and after a hearing, the court granted the motions. Id.

This Court held that “without a traverse or a hearing, the Boyds’ affidavits stand unrebutted in the record, and the Boyds should have been relieved from paying costs without any adverse impact on their rights to pursue a legal remedy.” Boyd, 318 Ga. App. at 872 (2). The same is true here, and as in Boyd, therefore, we must “remand[ ] for an evidentiary hearing on the question of indigence before further proceedings on the merits.” Id.

Decided March 7, 2013.

Melanie H. Gruner, pro se.

Williams, Morris & Waymire, Jason C. Waymire, for appellee.

3. Finally, with regard to the possible reconsideration of Thacker’s motion to dismiss her appeal, a hearing is not specifically required:

To dismiss an appeal under OCGA § 5-6-48 (c), a trial court must give the party opposing the motion “notice and an opportunity for a hearing.” This requirement, however, is satisfied if the party is given an opportunity to respond on the record to the motion to dismiss.

(Footnote omitted.) Mitchell v. 3280 Peachtree 1, LLC, 285 Ga. 576 (1) (678 SE2d 880) (2009); see also Grant, 310 Ga. App. at 486. Here, Gruner was given an opportunity to respond on the record to the motion to dismiss.

In sum, the orders of the trial court denying Gruner’s motion to proceed in forma pauperis and dismissing Gruner’s appeal are vacated. The case is remanded and upon remand, the trial court is directed to hold a hearing on Gruner’s indigence, following which, if necessary, it may reconsider the motion to dismiss the appeal in accordance with this decision. As a result of this opinion, Gruner’s remaining enumerations of error are moot and need not be addressed.

Judgment vacated and case remanded with direction.

Miller, P. J., and Ray, J., concur.


author: Barnes, Presiding Judge.

text:
    A12A2000.
    THOMPSON v. THE STATE.
    (739 SE2d 434)
   Barnes, Presiding Judge.

Douglas Thompson and five co-defendants were indicted for crimes arising from a home invasion that involved three victims, and the co-defendants were also indicted for additional crimes related to two more armed robberies that occurred later the same evening. A jury convicted Thompson of four counts of aggravated assault, three counts of false imprisonment, and one count each of armed robbery, burglary, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a felony, and the trial court sentenced him to an aggregate of 40 years, to serve 20 incarcerated followed by 20 on probation. On appeal, Thompson argues that the evidence was insufficient as to the crimes other than the drug offense, that he was entitled to a directed verdict due to a substantial variance between the indictment and evidence, and that the trial court erred in allowing the State to impeach witnesses without a proper foundation and by allowing the prosecutor to sit in the witness stand during closing argument. For the reasons that follow, we affirm.

1. Thompson argues that the evidence was insufficient to support the verdict. On appeal, a reviewing court must view the evidence in the light most favorable to the verdict, no longer presuming the defendant is innocent. Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). Consistent with Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we neither weigh the evidence nor decide if witnesses were credible, but only determine whether the evidence, viewed in the light most favorable to the verdict, is sufficient to sustain the convictions. Campbell v. State, 278 Ga. 839, 840 (1) (607 SE2d 565) (2005).

Viewed in that light, the evidence at trial established that around midnight on September 15, 2010, Thompson kicked in a door and entered an apartment occupied by three men. Thompson and two or three other intruders began screaming at the men to get on the floor. One man was forced to the living room floor at gunpoint, another was herded from a back bedroom to the living room, and the third victim jumped out of the window. That victim, who testified at trial through an interpreter, was captured at gunpoint when he returned to the apartment to help his friends. The intruders searched the apartment and took one of the victim’s wallet and the keys to his work van, then left. A neighbor called 911, and officers responded. One of the officers interviewed a victim, who described the incident and the intruders’ height, weight, and race, although their faces were covered. The officer noted that the victims’ door frame was shattered and a footprint on the door indicated it had been kicked in.

Several hours later, three armed robberies took place within forty minutes of each other. One of the victims found a DeKalb County police officer and was reporting the crime when he spotted the robbers driving by. The officer saw the occupants throw objects from the car, pulled it over, and placed the six occupants under arrest. Gwinnett County officers responded to the arrest because the robberies had taken place in Gwinnett County, and a crime scene investigator collected two handguns and other items from the roadside. A Gwinnett County detective assigned to investigate the home invasion and the armed robberies interviewed the arrestees, some of whom finally admitted they were involved with the robberies and identified Thompson as one of the robbers in the home invasion. Several also said during interviews that Thompson had provided the guns used in the string of robberies. Based on these statements, the police obtained and executed a search warrant for Thompson’s house, where they found marijuana, digital scales, and a device used to grind marijuana.

Several of Thompson’s co-defendants pled guilty to various crimes and testified that Thompson provided the guns and participated in the home invasion. One co-defendant testified that someone in the group had identified the apartment as belonging to a drug dealer, and that he rode to the scene of the invasion with Thompson in Thompson’s car. The co-defendant had planned to take any money they found, and Thompson had planned to take any drugs they found. Six other people rode to the scene of the invasion in a separate vehicle. Thompson kicked the door in, and he and the co-defendant entered the apartment with handguns, but they found no drugs or money. The group returned to their own neighborhood, and everyone but Thompson went back out and committed the other armed robberies. In contrast, Thompson and his girlfriend both testified that he had been home on the night of the home invasion.

Thompson argues on appeal that the only testimony implicating him in the crimes came from co-defendants who had all made deals with the prosecution in exchange for testifying against him. He contends that this evidence was insufficient because the only victim who testified could not identify him, his fingerprints were not found on the weapons or at the scene, no stolen items were found in his house, and he and his fiancée both testified that he had been home all night.

While a defendant may not be convicted on the uncorroborated testimony of one accomplice, only slight evidence is required to corroborate it. James v. State, 316 Ga. App. 406, 408 (1) (730 SE2d 20) (2012). See also former OCGA § 24-4-8. Further, if “more than one accomplice testifies at trial, the testimony of one accomplice may be corroborated by the testimony of the others.” Hanifa v. State, 269 Ga. 797, 808-809 (7) (505 SE2d 731) (1998). While Thompson argues that when “the self-serving testimony of these accomplices is the only corroborating evidence, this rule should not be applied as a matter of fundamental fairness,” as the State notes, four accomplices identified Thompson as providing the guns for the home invasion and driving there in his own car. Further, two of those four identified Thompson as the person who kicked in the front door, entered the apartment first, and held a gun to one victim’s head. Finally, the accomplices, including a girl who was 13 when the crimes were committed, identified Thompson as a participant more than a year before they tendered their guilty pleas.

The accomplices’ testimony concerning Thompson’s participation in the crimes related to the home invasion was sufficiently corroborated to authorize the denial of his motion for a directed verdict of acquittal. Hanifa, 269 Ga. at 809 (7). Accordingly, the evidence as outlined above was sufficient for a rational trier of fact to find Thompson guilty beyond a reasonable doubt of the offenses charged. Campbell, 278 Ga. at 841 (1).

2. Thompson contends that the trial court erred in denying his motion for a directed verdict based on a fatal variance between the indictment and the evidence. A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311) (1984).

Thompson was indicted for and convicted of the armed robbery and false imprisonment of Israel Cruz, the aggravated assault and false imprisonment of Pedro Moncera Arellano, and the burglary of the dwelling house of Israel Cruz, Pedro Moncera Arellano, and Luis Perez. At trial, one of the victims identified himself variously as Luis Garcia, Luis Roberto Garcia, and Alberto Garcia, and the investigating officer testified that the victim had given his name as “Luis Roberto Garcia-Perez.” Perez testified about the home invasion, during which his roommates “Israel Penya” and “Pedro Moncero” were present. When asked to refer to the other victims using “their whole name,” the witness replied, “I just know his name like that, Israel.” He later testified that when the robbers burst into the apartment, “Israel” was asleep in the living room and “Pedro was in his room.” The robbers placed “Israel” on the ground and brought “Pedro” out of his room into the living room, and when they left they took a wallet of “Israel’s.”

Thompson contends that, because the evidence at trial identified two of the victims as “Israel Penya” and “Pedro Moncera” but not “Israel Cruz” and “Pedro Moncera Arellano,” he was entitled to directed verdicts on the charges involving Cruz and Arellano. We disagree.

[If] a variance exists between the victim’s name as alleged in the indictment and as proven at trial, . . . the variance is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use of a nickname or alias by the victim.

Harrison v. State, 192 Ga. App. 690, 691 (1) (385 SE2d 774) (1989). While Thompson points out, correctly, that the State put forth no evidence to demonstrate the cause of the variance between the victims’ names in the indictment and the victims’ names adduced at trial, our law does not require an explanation for why the names were different; it only requires that the different names actually refer to the same person.

That the controlling issue is the identity of the person, not the similarity of the name, was first described in Chapman v. State, 18 Ga. 736 (1855). Our Supreme Court explained the reasoning as follows:

The change continually going on in the mode of spelling names — the different pronunciation of the same name, according to the circumstances and condition in life of the owner, makes the objection, upon the score of discrepancy, much less material than formerly. Idems sonans is no longer an infallible test. Identitate personae, and not identitate nominis, is and should always have been the true and only issue.

(Emphasis omitted.) Id. at 738.

So a grand juror identified as “Hutson” instead of “Hudson” was not grounds to quash an indictment. Chapman, 18 Ga. at 738. Nor was a defendant being identified in an indictment as “John Biggers” instead of “John Bickers,” or a victim identified as “J. W. Willoughby” instead of “J. B. Willoughby,” as “Connie Lynn Day” instead of “Connie Anne Day,” as “Clayburn” instead of “Cleveland,” or as “Blossom Henderson” instead of “Daisy M. Henderson.”

The difference in one victim’s name between the indictment — Pedro Moncera Arellano — and the proof — Pedro Moncero — is much like the differences in the cases cited. The first two names are the same in both instances, and circumstantial evidence is strong that both names refer to the same person, one of the three men whose residence was invaded by Thompson and the other defendants. The difference between the names of Israel Cruz and Israel Penya is greater, but the issue is still whether the State presented sufficient evidence to allow a reasonable trier of fact to conclude that the two names referred to the same person. The third victim testified that he had two roommates, one named Israel, who were also present when armed meninvadedhis residence, and one of Thompson’s co-defendants who entered the apartment testified that there were three men inside. Considering the evidence as a whole, the State presented sufficient evidence to allow a reasonable trier of fact to conclude that the names in the indictment referred to the victims present during the home invasion. Therefore, the trial court did not err in denying Thompson’s motion for a directed verdict as to the counts involving these victims.

3. Thompson contends that the trial court erred in allowing the State to impeach him and his witness without a proper foundation. After Thompson and his fiancée testified and the defense rested, the trial court allowed the State over objection to recall the detective to the stand in rebuttal to testify about statements Thompson and his fiancée made that contradicted their trial testimony. He argues that the proper way to impeach him or his witness would have been to show them their prior statements and then pose questions regarding any discrepancies.

Thompson’s fiancée confirmed during cross-examination that she remembered talking to a detective and giving a statement, and that she had had an opportunity to review that statement. During his direct examination, Thompson testified that he gave a statement to the police, that he told them he did not rob, he sold drugs, that they would find evidence of drug possession with intent at his house, that he was not involved in this home invasion, that he had been at home that night, and that he told them the same thing he was telling the jury. During cross-examination, he testified that he told the detective that no one had used his car that night and no one had asked to borrow it, and when asked if he told the detective that his co-defendant had borrowed his car, he responded, “That is a lie. I never said that, ma’am,” and proceeded to explain what he did say. He testified that he did not tell the detective he had experience with guns, then qualified the definition of “experience.” He testified that he did not tell the detective that he had a second phone for his other girlfriend, but rather said he had a second phone for “another female, not girlfriend. Big difference.” He testified that he did not change his story about his phone numbers during his interview with the detective, did not tell him he was “cool” with one of the co-defendants because he brought his car back without scratches, and did not say it was possible somebody had “put” him at the home invasion.

On rebuttal, the detective testified about differences between the fiancée’s statement to him and her testimony at trial, and about Thompson’s statement to him and his testimony at trial. For example, the detective testified that Thompson told him he let his co-defendant borrow his car that evening, and that “possibly one person could put him” at the scene of the home invasion but he did not see how six people could say he was there.

Under former OCGA § 24-9-83, a witness could be impeached by his previous contradictory statements about relevant matters. Before proving the contradictory statements, the witness should be reminded about “the time, place, person, and circumstances” of the previous statements, which should be shown to him if in writing and available, and the witness may be recalled to lay this foundation. Former OCGA § 24-9-83. Furthermore, “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence. The fact that the witness might be one involved in the crime does not make his prior inconsistent statements inadmissible.” White v. State, 268 Ga. 28, 33 (6) (486 SE2d 338) (1997). See also Williams v. State, 304 Ga. App. 592, 595 (3) (696 SE2d 512) (2010). The trial court did not err in allowing the State to question a police officer in rebuttal about inconsistent statements from Thompson or his fiancée.

4. Finally, Thompson argues that the trial court erred by overruling his objection when the prosecutor sat in the witness stand during closing argument, citing Grayhouse v. State, 65 Ga. App. 853, 855-856 (16 SE2d 787) (1941). He contends that allowing the prosecutor to do so “suggests to the jury that evidence presented from that chair is aligned with the prosecution” and constituted “unfair means in the trial to the prejudice of the accused.”

In Grayhouse, this court found no error in denying a defendant’s motion for mistrial after the prosecutor asked a witness about having voluntarily spent the previous night in jail for his own protection. 65 Ga. App. at 853. After discussing the “profound and conclusive” requirement that all defendants receive fair and impartial trials, this court affirmed, holding that, absent evidence to the contrary, “it must be assumed that the jury was fair and impartial, and did not act consciously, because of the alleged implication, from spite or bias.” Id. at 855, 859.

Decided March 7, 2013.

Brown & Gill, Angela B. Dillon, M. Katherine Durant, for appellant.

Daniel J. Porter, District Attorney, Lindsay B. Gardner, Assistant District Attorney, for appellee.

During closing argument in this case, the prosecutor sat in the witness box for two-and-a-half pages out of a fifteen-page transcript while discussing some of the co-defendants’ testimony.

As for the assertion it was error to permit the assistant district attorney to sit in the witness chair as he addressed the jury during closing argument, we note counsel is permitted wide latitude in closing argument, and any limitation of argument is a matter for the court’s discretion. No principle is better settled than that in the conduct of trials, both civil and criminal, a broad discretion is vested in the judge below, and that that discretion will not be controlled by this court unless it is manifestly abused. Seeing no manifest abuse of discretion, we affirm the judgment of conviction.

(Citations and punctuation omitted.) Watkins v. State, 278 Ga. 414, 415 (2) (603 SE2d 222) (2004).

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       OCGA§ 24-4-8 was repealed bythe new Evidence Code and reenacted as OCGA § 24-14-8 (2013).

        Biggers v. State, 109 Ga. 105, 106 (34 SE 210) (1899).

        Gresham v. State, 216 Ga. 106, 109 (5) (115 SE2d 191) (1960).

        Tate v. State, 104 Ga. App. 699 (1) (122 SE2d 528) (1961).

        Wilson v. State, 67 Ga. App. 404 (20 SE2d 433) (1942).

        Bland v. State, 182 Ga. App. 626 (356 SE2d 704) (1987).

       Effective for trials conducted after January 1, 2013, OCGA § 24-9-83 was repealed and replaced by OCGA §§ 24-6-613 (b), 24-6-621, 24-8-801 (d) (1) (A).


author: BARNES, Presiding Judge.

text:
    A12A2363.
    HUDSON v. GODOWNS et al.
    (739 SE2d 462)
   BARNES, Presiding Judge.

Following a bench trial, Brenda M. Hudson appeals the final order and judgment in this boundary line and trespass case. She contends that the trial court erred in finding an ambiguity in the parties’ initial settlement agreement, that the court’s order accepting the agreement was final and could not be modified outside that term of court in which it had been entered, and that the court erred in its factual determination of where the boundary line was located. For the reasons that follow, we affirm the order.

Hudson filed a complaint against neighboring property owners Ricky Godowns and Belinda Sheram (collectively, “Godowns”), seeking an injunction and to have the boundary line between the properties established. She contended that Godowns had trespassed on her land and removed timber, for which she sought damages, and had been stubbornly litigious. After Godowns was served, the parties appeared in court for a hearing on the injunction and reached an apparent agreement, stipulating certain facts in open court that were reduced to a written order (the “Stipulated Order”). The parties agreed that the boundary line between their properties was as depicted on a certain plat, and Godowns renounced any claim to land south of the line “with bearing of N 69 degrees 07 minutes 05 seconds E on the plat.” The parties also agreed to each appoint a registered forester to determine if Godowns had cut any trees on Hudson’s land, and if so, their monetary value. If the foresters disagreed on the value of the trees, the trial court without a jury would determine damages and the issue of litigation costs.

At a subsequent hearing scheduled to determine damages, it became clear that, despite the purported settlement, “the parties had a major disagreement as to the location of the property line,” as the trial court found. Hudson thought the line would be as shown on the plat between two points marked by “rebar found,” while Godowns thought the line would be started at one of those points but then follow the bearing on the plat to a different endpoint. In an order, the trial court found that the agreement embodied by the Stipulated Order could be interpreted two ways, and that parol evidence “clearly demonstrate [d] that there was no meeting of the minds and therefore no binding or enforceable agreement” (“the Rescinding Order”). Instead, the parties were “left where they began, with no agreement and a dispute as to the location of the property line along with all other issues[.]”

Hudson has challenged the trial court’s Rescinding Order multiple times, in an unsuccessful application for interlocutory appeal to this court in opposition to Godowns’ motion to open default, in a motion for summary judgment, in a motion titled “Plaintiff’s Request of a Court Ruling on a Jury Resolution of Extrinsic Evidence,” and in a “motion to set aside judgment” under OCGA § 9-11-60 (b), (d) (1). In separate, detailed orders, the trial court denied each motion, noting finally that Hudson had expended many resources arguing the same issue on multiple grounds.

After the parties waived their right to a jury trial, the trial court held a bench trial, and the parties presented extensive testimony about the disputed boundary line. The court reviewed the evidence, made findings of fact, and concluded that the boundary line was located where Godowns thought it was. It also found that Godowns’ surveyor had trespassed onto Hudson’s land and awarded her $1 in nominal damages. Finally, the court awarded no attorney fees or costs, finding that each party had reasonable claims and none of them had acted in bad faith.

1. We note initially that Hudson’s brief does not follow the form or sequences required by Court of Appeals Rule 25 (a) and (c) (1). While she enumerates seven errors, her argument section does not follow the order of the enumeration of errors, is not correspondingly numbered, and does not address the issues in sequence. Hudson’s failure to adhere to our rules has hampered our ability to ensure that all her enumerations are addressed, but “to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations.” John Crane, Inc. v. Wommack, 227 Ga. App. 538 (1) (489 SE2d 527) (1997).

2. Hudson essentially argues that the Stipulated Order accepting the parties’ agreement was final and could not be modified outside that term of court. An order adjudicating fewer than all the claims is not final, however, and “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” OCGA § 9-11-54 (b). See Hubbert v. Williams, 175 Ga. App. 393, 394 (1) (333 SE2d 425) (1985). The trial court’s Stipulated Order in this case was clearly not final because damages were still to be determined, as Hudson tacitly admitted by filing an application for interlocutory appeal of that order rather than a direct appeal. Because “no final order had been entered in the matter and the case remained pending, . . . the superior court had authority to reconsider the [Stipulated Order], vacate it, and order that the matter proceed to trial.” Internal Medicine Alliance v. Budell, 290 Ga. App. 231, 235 (1) (659 SE2d 668) (2008).

3. Hudson argues that the trial court erred in finding an ambiguity in the parties’ initial settlement agreement, and in resolving that ambiguity without a jury.

‘Whether a settlement is an enforceable agreement is a question of law for the trial court to decide.” Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 749 (1) (525 SE2d 118) (1999). Tobe enforceable, the settlement agreement must be “definite, certain, unambiguous and satisfy the same requisites of formation and enforceability as any other contract [, and a] meeting of the minds is the first requirement of law relative to contracts.” (Citations and punctuation omitted.) Id. at 749-750 (1). A purported settlement agreement in which the parties did not actually agree on the essential terms is not a settlement agreement at all. Pourreza v. Teel Appraisals & Advisory, 273 Ga. App. 880, 882-883 (616 SE2d 108) (2005).

When the trial court began the damages hearing in this case, it was immediately apparent that the parties had not actually agreed to the location of the boundary line between their properties. Hudson thought they had agreed to place the boundary line as it was drawn on her plat, from one marker to another marker, and Godowns thought they had agreed to place the boundary line starting at a marker and using the compass direction written on the plat to locate the line. Applying the different interpretations resulted in different boundary lines.

On appeal, Hudson does not argue that the parties had actually agreed to the property line placement in the Stipulated Order. She argues instead that if the terms of the Stipulated Order are ambiguous, then a jury should have determined which party’s interpretation of the ambiguity was correct.

Hudson confuses the issue of whether a settlement ever existed with the issue of interpreting a standard contract. In standard contract interpretation, if the parties agree to the existence of a contract, the trial court then determines whether the contract terms are ambiguous. McKinley v. Coliseum Health Group, 308 Ga. App. 768, 770 (1) (708 SE2d 682) (2011). If they are, the court then applies the rules of contract construction to resolve the ambiguity, and if the court cannot resolve the ambiguity, then a jury question exists over the meaning and intent of the parties. But the issue here is the threshold one of contract formation, not contract interpretation.

The first issue to determine when considering the enforceability of a contract, here the settlement agreement, is whether the parties actually agreed. “[A] trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties.” (Citations and punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 696-697 (446 SE2d 199) (1994). Here, the trial court found that uncontroverted evidence showed that the parties had made a mutual mistake of fact and that there had been no meeting of the minds. Our review of the record leads us to conclude that the trial court was correct in this regard. Thus, the trial court did not err in determining that the parties failed to reach an agreement about the location of the boundary line between their properties.

4. Finally, Hudson asserts that the court erred in its factual determination of where the boundary line was located. “Factual findings and credibility determinations by the trial court will be upheld on appeal if there appears in the record any evidence to support them.” Dudley v. Snead, 250 Ga. 804, 804-805 (1) (301 SE2d 480) (1983). Having reviewed the entire record, including the transcripts and exhibits, we conclude that some evidence supports the trial court’s determination of the boundary line location, and thus affirm.

Decided March 7, 2013.

Michael J. Moses, Walter C. McMillan, Jr., for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, Dalton D. Dowdy, for appellees.

Judgment affirmed.

McFadden and McMillian, JJ., concur.


text:
    A12A2510.
    JOHNSON v. THE STATE.
    (739 SE2d 469)
   Branch, Judge.

On appeal from his conviction for aggravated assault, obstruction, and possession of a firearm by a convicted felon, Johnny Mack Johnson argues that the evidence was insufficient and that the trial court should have suppressed all references to the gun recovered from his home. Johnson also argues that the charge to the jury was erroneous in a number of respects and that counsel should have withdrawn from representation because his office had previously represented two victims in the case. We find no error and affirm.

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

So viewed, the record shows that on the night of October 21,2007, Corey McKeller reported his brother’s car stolen from a street where Johnson lived. The police told McKeller to wait for them at the location of the alleged theft. McKeller did so and was sitting in his car with his infant daughter in the back seat when Johnson arrived. Sarrain Cook, a friend of McKeller, was also out looking for McKeller’s brother’s car and arrived as a passenger in a car driven by Kevin Toomer, a friend of both Cook and McKeller. Cook got out of the car and asked Johnson, the ex-husband of Cook’s grandmother, what had happened to McKeller’s brother’s car. Johnson responded, “Boy, I told you when I see you, I was going to get you.” When Cook responded that he was not a boy, Johnson pulled out a handgun and fired three shots: the first at the car in which Cook had been a passenger, a second after climbing on top of the same car as Cook hid behind, and a third as Cook fled down the street. Cook ran to a house with an open door, asked the occupants to call the police, and ran back to the car in which he had arrived, which picked him up and left the scene.

McKeller, who had remained in his own car, yelled out to Cook and Johnson that he had called the police. As McKeller drove away, Johnson shot at McKeller’s car as well. When an arriving police officer told Johnson to place his hands behind his back, Johnson refused and had to be pepper-sprayed by a second officer. A shell casing of unspecified caliber was recovered from the street where the shootings took place.

Johnson was charged with aggravated assault each as to McKeller, his infant daughter, and Cook (Counts 1, 2, and 3); obstruction (Count 4); and possession of a firearm by a convicted felon (Count 5). Johnson filed a motion to suppress evidence including a .25-caliber pearl-handled silver revolver found at his house after his arrest. At the outset of the hearing on the motion, the State conceded that the search of Johnson’s home yielding the handgun was illegal. The trial court then suppressed “any evidence . . . seized at that time.”

At the outset of trial, the court noted that although the State was free to elicit eyewitness descriptions of the gun Johnson used in the shooting at issue, the State could make “no reference to the source of the gun,” and that “nothing can be introduced into evidence that was seized” during the illegal search of Johnson’s house. Johnson’s counsel did not object to this ruling.

At trial, McKeller described the gun he saw Johnson use in the shooting as “a little silver” handgun with “pearl handles” on its sides. McKeller also described a prior incident in the spring of2007 in which Johnson threatened McKeller, Cook, and Toomer with the same .25-caliber pearl-handled silver handgun and shot at Toomer’s car twice while Cook was a passenger in it. Johnson’s ex-wife also testified that she had seen a silver pearl-handled handgun in early 2007 when she was cleaning out Johnson’s mother’s home after her death and that Johnson had taken the handgun at that time.

The jury acquitted Johnson of the aggravated assault on the infant but found him guilty of the remaining charges. He was convicted and sentenced to 46 years to serve. His motion for new trial was denied.

1. In challenging the sufficiency of the evidence against him, Johnson attacks the credibility of McKeller, Cook, and Johnson’s ex-wife on the basis of the prior difficulties between him and all of these witnesses. But such matters of credibility are for the jury, and not this Court, to decide. As such, the evidence outlined above was sufficient to sustain Johnson’s conviction. SeeOCGA §§ 16-5-21 (defining aggravated assault), 16-10-24 (a) (defining misdemeanor obstruction), 16-11-131 (b) (defining possession of a firearm by a convicted felon); Jackson, supra.

2. On appeal, Johnson argues for the first time that all references to the .25-caliber handgun, including those made by eyewitnesses as to his possession and use of the gun before and at the incident at issue, should have been suppressed as a result of the illegal search of his house conducted afterward. As Johnson himself concedes, however, there is no authority for such a sweeping prohibition. Further, we will not consider a motion to suppress raised for the first time on appeal, let alone one containing constitutional objections. Hatcher v. State, 224 Ga. App. 747, 748-749 (1) (482 SE2d 443) (1997) (“Failing to file a timely motion to suppress amounts to a waiver of even constitutional challenges.”).

3. Johnson argues that the trial court erred when it refused to charge the jury on (a) simple assault and (b) reckless conduct as lesser included offenses of aggravated assault, and that it also erred when (c) it charged the jury that the State need only prove that a deadly weapon was used in the assaults. Again, we disagree.

(a) Although Johnson suggests that a charge on the lesser included offense of simple assault was warranted simply because Johnson had been involved in prior disputes with Cook without injuring Cook, Johnson fails to raise a question of fact as to whether he assaulted Cook without a gun in the course of the incident at issue. This Court has repeatedly held that where “ ‘the undisputed evidence shows that [an] assault was committed with a deadly weapon, it is not error to refuse to give a charge on simple assault as a lesser included offense.’ ” (Emphasis omitted.) Comley v. State, 218 Ga. App. 520, 521 (2) (462 SE2d 432) (1995), quoting Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591) (1993); see also Clark v. State, 191 Ga. App. 386, 387 (3) (381 SE2d 763) (1989). Under these facts, Johnson “either committed an aggravated assault or none at all. There was no evidence of an attempt to commit an injury not involving a gun.” (Citation and punctuation omitted.) Dickerson, supra at 241 (1). It follows that the trial court did not err when it refused to charge the jury on simple assault. Id.

(b) Johnson also argues that he was entitled to a charge on reckless conduct. We disagree.

OCGA § 16-5-60 (b) defines the misdemeanor of reckless conduct as causing bodily harm or endangering the bodily safety of another person “by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person” when “the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise.”

As the State points out, Johnson was acquitted on aggravated assault on the infant, thus mooting any issue concerning reckless conduct as a lesser included offense of that crime. Further, Johnson did not testify, and he has pointed to no evidence suggesting that the gun discharged accidentally. As to the counts against the two adult victims, therefore, the evidence was thus susceptible to only two reasonable conclusions: that Johnson shot at the victims, or that he shot into the air in order to scare them. Neither of these acts was negligent. Bright v. State, 238 Ga. App. 876, 885 (11) (520 SE2d 48) (1999) (neither defendant’s shooting at a victim nor his shooting at a window over victim’s head was a negligent act). As a result, Johnson was “either guilty of aggravated assault or not under the evidence,” id., and the trial court did not err when it refused an instruction on reckless conduct. Id. (affirming trial court’s refusal to charge on reckless conduct).

(c) Jones also argues that there was a fatal variance between the trial court’s charge that Jones used a “deadly weapon” in the assaults and the indictment’s specification that he used a .25-caliber handgun.

It is true that “[i]f the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance[.]” Jones v. State, 312 Ga. App. 15, 18 (2) (b) (717 SE2d 526) (2011). It is equally true, however, that

[n]ot every variance in proof from that alleged in the indictment is fatal. The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. Unless the variance subjects defendant to one of these dangers it is not fatal.

(Footnote omitted.) Id. A variance between an indictment naming a particular kind of firearm and proof establishing that a different firearm was actually used is not fatal to a criminal conviction. Id. (no fatal variance between an indictment alleging that defendant used a pellet gun and evidence showing that he used a BB gun); Mathis v. State, 299 Ga. App. 831, 833 (1) (a) (684 SE2d 6) (2009) (variance between evidence of a “pellet gun” and the indictment’s “handgun” was not fatal).

This indictment, which was read to the jury, specified that Johnson committed the assaults with a .25-caliber handgun, and at least one witness in this case described the gun at issue as a .25-caliber. Accordingly, there was no actual variance, let alone a fatal one, between the allegations in the indictment and the evidence produced at trial. See Jones, supra. Further, Johnson was definitely informed as to the charges against him, and there is no evidence that he is at risk of another prosecution for the same offense.

4. Finally, Johnson argues that the public defender who eventually defended him at trial suffered from an actual conflict because another attorney in the same public defender’s office had previously represented McKeller and Cook in other matters. We disagree.

As Johnson concedes, and because the “mere possibility of conflict is insufficient to impugn a criminal conviction,” a defendant has the burden of showing an actual conflict, meaning that there is “ ‘a substantial risk’ ” that counsel’s representation of him was “ ‘materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.’ ” (Citation omitted.) Lytle v. State, 290 Ga. 177, 178 (2) (718 SE2d 296) (2011), quoting Burns v. State, 281 Ga. 338, 340, n. 3 (638 SE2d 299) (2006).

Johnson points out that the public defender originally representing him had previously represented McKeller and Cook and had therefore agreed to the assignment of new counsel in order to avoid “a potential conflict” as to “what witnesses were called” and “what information” might be used to impeach either Johnson or the victims. The record of the hearing on Johnson’s motion for new trial shows, however, that the public defender who eventually represented Johnson at trial had never represented either Cook or McKeller, and that Johnson’s first assigned public defender had represented the two men.only in other matters. Johnson’s trial counsel also testified that he had not shared any information that would have affected his ability to represent Johnson with any other members of the public defender’s office.

Decided March 7, 2013.

Joseph C. T. Lewis, for appellant.

C. Paul Bowden, District Attorney, for appellee.

This record is insufficient to show an actual conflict in that there is no “substantial risk” that trial counsel’s representation of Johnson in this case was “materially and adversely affected” by the first public defender’s representation of McKeller and Cook in other matters. (Punctuation omitted.) Lytle, supra at 178 (2). It follows that the trial court did not err when it denied Johnson’s motion for new trial on this ground.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       Our Supreme Court is currently considering whether “the rules for imputing conflicts operate within a single circuit public defender office in the same manner as those within a law firm.” State v. Abernathy, 289 Ga. 603, 604 (1) (715 SE2d 48) (2011), citing In re: Formal Advisory Opinion No. 10-1, Case No. S10U1679 (docketed July 1,2010). We need not reach this question because we find no evidence of any actual conflict or adverse effect arising from Johnson’s representation by two members of the same public defender’s office at different times. See id.


author: MCFADDEN, Judge.

text:
    A12A2540.
    In the Interest of S. C. P., a child.
    (739 SE2d 474)
   MCFADDEN, Judge.

S. C. P. appeals the juvenile court’s order placing him in restrictive custody for acts that, if committed by an adult, would constitute the designated felony of trafficking in methamphetamine in violation of OCGA § 16-13-31 (c). He argues that the order must be reversed because the delinquency petition alleged that he participated in the delivery of a certain amount of methamphetamine but the state proved only that he participated in the delivery of that amount of a methamphetamine mixture. Although there is a split of authority in this court regarding whether such a distinction constitutes a fatal variance requiring reversal, the Supreme Court of Georgia, addressing a different controlled substances statute, has followed the line of authority holding that this distinction is not a fatal variance. Following our Supreme Court’s reasoning, we find that there was no fatal variance requiring reversal in this case, and we affirm.

In a delinquency petition, the state accused S. C. P. of

deliver[ing] and distributing] more than 400 grams of a substance categorized as Schedule II by OCGA § 16-13-26, contrary to the laws of this [s]tate,... TO WIT:... in concert • with another delivering] and distributing] more than one pound of methamphetamine to a confidential informant, a violation of [OCGA §] 16-13-31 (e).

The petition also notified S. C. P. that an adjudication of delinquency on this count would be a designated felony requiring that he be placed in restrictive custody. See OCGA § 15-11-63.

The evidence at the delinquency hearing, viewed in the light most favorable to the disposition, In the Interest of J. R., 300 Ga. App. 422 (685 SE2d 397) (2009), showed that on August 3, 2010, S. C. P. delivered to a confidential informant 445.9 grams of a substance that tested positive for methamphetamine. This act constituted trafficking in methamphetamine under OCGA § 16-13-31 (e), which pertinently provides that a person commits the felony offense of trafficking if that person “knowingly . .. delivers [ ] ... 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article.” OCGA § 16-13-31 (e) does not contain a purity requirement for the trafficking of methamphetamine or amphetamine. See generally Hardin v. State, 277 Ga. 242, 243 (2), (587 SE2d 634) (2003) (addressing legislature’s decision to treat methamphetamine trafficking differently from cocaine trafficking in this regard).

Nevertheless, S. C. P. argues that, given the allegations in the delinquency petition, the state was required to prove the purity or composition of the substance. He essentially argues that there was a fatal variance between the delinquency petition’s allegations and the hearing evidence, because the state proved only that S. C. P. delivered a mixture containing some amount of methamphetamine. We have applied the fatal variance rule to delinquency proceedings. See, e.g., In the Interest of J. H. M., 295 Ga. App. 483, 484 (672 SE2d 411) (2008); In the Interest of B. A. C., 289 Ga. App. 588, 588-589 (1) (657 SE2d 652) (2008).

In support of his argument, S. C. P. points to Elrod v. State, 269 Ga. App. 112 (603 SE2d 512) (2004), which concerned a charge that the defendant violated OCGA § 16-13-31 (e) by possessing more than 28 grams of amphetamine. Evidence was presented that the substance at issue weighed more than 28 grams and tested positive for amphetamine, but no evidence was presented concerning the purity or composition of the substance. Id. at 112-113 (1). We held this evidence to be insufficient to show that the defendant was in possession of 28 grams or more of amphetamine as charged in the indictment. Id. at 113 (1). In so holding, we noted that OCGA § 16-13-31 (e) sets forth two methods of committing this offense — “by possessing 28 grams or more of amphetamine or by possessing 28 grams or more of any mixture containing amphetamine” — and we cited the rule that “[w]here ... the indictment alleges that the crime was committed by one method, the [s]tate is required by the indictment to prove commission of the crime by that particular method.” (Citations omitted.) Id. at 112 (1). We reached the same conclusion in Daniel v. State, 251 Ga. App. 792, 792-793 (555 SE2d 154) (2001).

But another line of authority holds that this variance is not fatal because OCGA § 16-13-31 (e) treats equally the substances of methamphetamine, amphetamine, and a mixture containing either methamphetamine or amphetamine. In Sims v. State, 258 Ga. App. 536 (574 SE2d 622) (2002), the defendant was charged with violating OCGA § 16-13-31 (e) by “possessing more than 200 grams of amphetamine,” but the trial evidence showed that the defendant possessed more than 200 grams of a mixture of amphetamine and methamphetamine. Id. at 536 (1). Although the defendant argued that this constituted a fatal variance, we held that “any variance in this case between the allegations of the indictment and the proof at trial [was] not fatal” and that such a variance would not subject the defendant to the dangers against which the fatal variance rule protects. Id. at 537 (1). In so holding, we noted “that OCGA § 16-13-31 (e) treats amphetamine and a mixture containing amphetamine equally.” Id. Other decisions of this court have reached similar conclusions based on the Code section’s equal treatment of the substances. See, e.g., Howard v. State, 291 Ga. App. 289, 292 (2) (661 SE2d 644) (2008) (finding no fatal variance where indictment alleged possession of methamphetamine but state instead proved possession of amphetamine; citing among reasons for this finding that “the statute under which [the defendants] were charged and other statutes dealing with both amphetamine and methamphetamine [ ] treat the two drugs equally”) (citations omitted); Emilio v. State, 257 Ga. App. 49, 51-52 (2) (570 SE2d 372) (2002) (finding that OCGA § 16-13-31 (e) “does not establish two different methods of trafficking based on the purity of the drug” but instead treats pure amphetamine and a mixture containing amphetamine equally; thus, where the indictment alleged trafficking in amphetamine and there was proof that the substance at issue tested positive for amphetamine, the trial court’s instruction that trafficking may be accomplished by possessing amphetamine or a mixture containing amphetamine did not create the possibility that the defendant was convicted of an offense not charged) (footnote omitted); Bellamy v. State, 243 Ga. App. 575, 579-580 (2) (530 SE2d 243) (2000) (finding no fatal variance between indictment charging that defendant trafficked a mixture containing methamphetamine and proof that substance at issue was pure methamphetamine, because OCGA § 16-13-31 (e) “treats pure methamphetamine and a mixture containing methamphetamine equally’).

Decided March 7, 2013.

Avrett, Ponder & Withrock, William B. Barnwell, for appellant.

T. Joseph Campbell, District Attorney, Rosemary M. Greene, Assistant District Attorney, George P. Govignon, for appellee.

Pertinently, the Supreme Court of Georgia has cited the Sims rationale to find no fatal variance in a case in which the defendant was accused of violating another criminal statute involving a controlled substance. In Rochefort v. State, 279 Ga. 738 (620 SE2d 803) (2005), the Court noted that

for purposes of [the relevant Code section], “ephedrine” and “pseudoephedrine” are synonymous, so that the one includes the other.... Therefore, there was no fatal variance between the accusation charging possession of ephedrine and the proof at trial showing possession of pseudoephedrine. See Sims v. State, 258 Ga. App. 536, 537 (1) (574 SE2d 622) (2002) (no fatal variance where statute treats two substances equally).

Id. at 741 (2).

Faced with the choice in this case of whether to follow the line of authority represented by Sims, or the line of authority represented by Elrod and Daniel, we must take the lead of our Supreme Court and follow Sims. Because “methamphetamine” and a “mixture containing methamphetamine” are synonymous for purposes of OCGA § 16-13-31 (e), there was no fatal variance between the delinquency petition charging delivery of a certain amount of methamphetamine and the proof at the hearing showing delivery of that amount of a mixture containing methamphetamine. See Rochefort, 279 Ga. at 741 (2); Sims, 258 Ga. App. at 537 (1). To the extent this holding conflicts with the holdings set forth in Elrod, 269 Ga. App. 112, and Daniel, 251 Ga. App. 792, and their progeny, those decisions are hereby overruled.

Judgment affirmed.

Ellington, C. J., Barnes, P. J., Miller, P. J., Phipps, P. J., Doyle, P. J., Andrews, Dillard, Boggs, Ray, Branch and McMillian, JJ., concur.


author: MILLER, Presiding Judge.

text:
    A12A2568.
    CITIFINANCIAL SERVICES, INC. v. VARNER et al.
    (739 SE2d 477)
   MILLER, Presiding Judge.

Nancy Ann Varner sued Ronald and Rachel Burris for equitable partition and sale of real property. Citifinancial Services, Inc. (“the Bank”) intervened in the action, asserting that it had a lien on the property that was the subject of the dispute. The Bank thereafter filed a motion for summary judgment, claiming that it was entitled to a first priority lien on the property under the doctrine of equitable subrogation. The trial court denied the Bank’s motion. We granted the Bank’s application for interlocutory appeal to review the trial court’s decision. The Bank contends that the trial court erred in denying its motion for summary judgment since the uncontested facts established that it was entitled to be subrogated to the rights of the first lienholder. For the reasons that follow, we reverse the denial of summary judgment as to the equitable subrogation claim.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

(Citation and footnote omitted.) Secured Equity Financial v. Washington Mut. Bank, 293 Ga. App. 50 (666 SE2d 554) (2008).

So viewed, the record shows that on December 21, 2004, Varner conveyed the subject property to her son, Mr. Burris, via a warranty deed recorded on December 22, 2004. Thereafter, on March 5, 2005, Mr. Burris conveyed the property via warranty deed to himself and his wife, Mrs. Burris, as joint tenants with rights of survivorship. On October 12, 2005, Mr. Burris allegedly executed a quitclaim deed conveying his property interest back to Varner. The deeds conveying the property jointly to the Burrises and subsequently to Varner were not recorded at the time of their alleged executions.

On October 3, 2008, Mr. Burris obtained a loan in the amount of $15,823.34 from the Bank. In connection with the loan transaction, Mr. Burris executed a promissory note and a security deed pledging the property as collateral.

Following the loan transaction between the Bank and Mr. Burris, Varner’s quitclaim deed and the Burrises’ warranty deed were recorded. The quitclaim deed conveying the property to Varner was recorded on August 10, 2009. The warranty deed conveying the property to the Burrises as joint tenants was recorded thereafter on September 24, 2009.

Immediately after Varner recorded her quitclaim deed, she filed a dispossessory action against the Burrises, claiming that she was the owner of the property and that the Burrises were tenants holding over beyond the lease term. As a part of their defenses, the Burrises challenged the validity of Varner’s quitclaim deed and filed a counterclaim seeking to have the quitclaim deed declared as fraudulent and void.

Thereafter, Mr. Burris and Mrs. Burris refinanced the original loan with the Bank. On October 23, 2009, the Burrises executed a promissory note in the amount of $32,471.72 in favor of the Bank. A portion of the loan proceeds from the refinance transaction was used to pay off the original loan to the Bank. In connection with the refinance transaction, the Burrises executed another security deed pledging the property as collateral, which was recorded on October 28, 2009.

Varner subsequently filed a complaint for equitable partition and sale of the property, asserting that the property was owned by Varner and Mrs. Burris as tenants in common. The Bank filed a motion to intervene in order to protect its security interest in the property. The trial court granted the Bank’s motion to intervene.

The Bank served discovery requests, including requests for admissions, separately to Varner and the Burrises. In Varner’s responses to the Bank’s requests for admissions, she denied having any knowledge of the Bank’s loan and refinance transactions that encumbered the property and further denied that the Bank had a valid first priority lien on the entire property. The Burrises, however, did not file responses to the Bank’s requests for admissions.

The Bank filed a motion for summary judgment, arguing that the evidence, including the facts deemed admitted by the Burrises’ failure to respond to the requests for admissions, established its entitlement to equitable subrogation to the first priority lienholder position. The trial court denied the Bank’s summary judgment motion, but certified the ruling for immediate appellate review under OCGA § 5-6-34 (b). The Bank filed an application for interlocutory review, which this Court granted. This appeal ensued.

The Bank contends that the trial court’s decision was erroneous since the relevant undisputed evidence established its claim for equitable subrogation. We agree.

The doctrine of equitable subrogation has been consistently described as follows:

Where one advances money to pay off an encumbrance on realty either at the instance of the owner of the property or the holder of the encumbrance, either upon the express understanding or under circumstances under which an understanding will be implied that the advance made is to be secured by the senior lien on the property, in the event the new security is for any reason not a first lien on the property, the holder of the security, if not chargeable with culpable or inexcusable neglect, will be subrogated to the rights of the prior encumbrancer under the security held by him, unless the superior or equal equity of others would be prejudiced thereby; knowledge of the existence of an intervening encumbrance will not alone prevent the person advancing the money to pay off the senior encumbrance from claiming the right of subrogation where the exercise of such right will not in any substantial way prejudice the rights of the intervening encumbrancer.

(Citations and punctuation omitted.) Byers v. McGuire Properties, 285 Ga. 530, 536-537 (4) (679 SE2d 1) (2009). Essentially, the doctrine means that

in certain circumstances, a lender who pays off the lien of a senior creditor may step into the shoes of the senior creditor as to the priority of the senior creditor’s lien.... The typical remedy is that equity will set aside a cancellation of the original security and revive it for the benefit of the party who paid it off.

(Citation and punctuation omitted.) Secured Equity Financial, supra, 293 Ga. App. at 52. “[E]quitable subrogation applies even where a senior encumbrance is satisfied out of purchase money.... Moreover, the equities are substantially similar in refinancing and sales transactions [.]” (Citations and punctuation omitted.) Byers, supra, 285 Ga. at 537 (4). The doctrine “is of equitable origin, being founded upon the dictates of refined justice, and its basis is the doing of complete, essential, and perfect justice between the parties, and its object is the prevention of injustice.” (Punctuation and footnote omitted.) Bankers Trust Co. v. Hardy, 281 Ga. 561, 562 (640 SE2d 18) (2007). Accordingly,

[t]he courts incline rather to extend than restrict the principle. The doctrine has been steadily growing and expanding in importance, and becoming general in its application to various subjects and classes of persons, the principle being modified to meet the circumstances of cases as they have arisen.

(Citations and punctuation omitted.) Byers, supra, 285 Ga. at 538 (4).

Here, the uncontroverted evidence established that the Bank advanced loan proceeds to the Burrises in the loan transactions. Significantly, the Burrises do not contest the Bank’s claim for equitable subrogation and did not respond to the Bank’s statement of facts supporting the motion for summary judgment. No evidence has been presented to controvert the Bank’s claims that

• when the Burrises submitted the loan applications, they swore and affirmed that they owned the property;
• the Burrises executed the refinance security deed;
• it was the intent of the Burrises to use the refinance loan proceeds to pay off the original loan;
• the refinance loan proceeds were used to pay off the original loan; and
• the Bank did not have actual notice of Varner’s 2005 quitclaim deed.

The foregoing uncontested facts reflected that the Bank advanced the refinance loan proceeds to pay off the original loan encumbrance on the property with an implied understanding that the Bank would remain the senior lienholder. See Byers, supra, 285 Ga. at 538 (4).

Although the Burrises have not challenged the Bank’s claim for equitable subrogation, Varner has challenged the Bank’s claim. Varner asserts that equitable subrogation should not be applied since the Bank engaged in inexcusable neglect by failing to perform a title examination, which would have revealed the existence of her quitclaim deed and interest in the property. The record evidence shows that although Varner’s quitclaim deed had not been recorded in the county’s index at the time of the original loan in October 2008, it had been recorded by the time of the Bank’s subsequent refinance transaction in October 2009. Contrary to Varner’s argument, however, the Bank’s constructive knowledge of the quitclaim deed is not fatal to its claim.

Knowledge of the existence of an intervening encumbrance will not alone prevent the person advancing the money to pay off the senior encumbrance from claiming the right of subrogation where the exercise of such right will not in any substantial way prejudice the rights of the intervening encumbrancer.

(Citations and punctuation omitted.) Baxter v. Bayview Loan Servicing, 301 Ga. App. 577, 587 (1) (c) (688 SE2d 363) (2009). Even if the Bank erred in overlooking the quitclaim deed in a title examination, such error would not be egregious enough to defeat a claim for equitable subrogation. See, e.g., Byers, supra, 285 Ga. at 539 (4) (ruling that even if the intervening lienholder’s deed had been indexed by the county and overlooked by the claimants, “this error would not be egregious enough to defeat the claim for equitable subrogation”) (citations and punctuation omitted).

The evidence further fails to reflect that Varner would be prejudiced by the grant of equitable subrogation in favor of the Bank. Varner’s purported acquisition of the property was a part of an intra-familial transaction whereby her son, Mr. Burris, allegedly executed a quitclaim deed conveying the property to her in consideration of “LOVE AND AFFECTION.” In response to the Bank’s request for admissions, Varner admitted that she was attempting to maintain the property for the benefit of the Burrises. The Burrises obtained the benefits of the loan proceeds and encumbered the property with the liens in favor of the Bank. In addition, at the time Varner recorded the quitclaim deed, the Bank’s original senior security deed was still of record. Under these circumstances, the gratuitous intra-familial conveyance to Varner does not allow her and the Burrises to avoid the Bank’s first priority lien interest in the amount of the original indebtedness. See, e.g., Davis v. Johnson, 241 Ga. 436 (246 SE2d 297) (1978) (allowing a bank to be subrogated to its own rights, and noting that the intervening judgment creditor would not be prejudiced by the bank’s restoration to its priority rights since the bank’s senior security deed was still of record when the intervening judgment was recorded).

Decided March 7, 2013.

Joseph K. Grodzicki, for appellant.

Beck, Owen & Murray, Charles D. Jones, for appellee.

Since the evidence conclusively established that the Bank was entitled to prevail on its claim for equitable subrogation, the trial court’s decision must be reversed.

Judgment reversed.

Ray and Branch, JJ., concur.

       We note that the Bank further contends that the trial court erred in failing to recognize that the Burrises’ failure to respond to its requests for admissions rendered all material facts admitted under OCGA § 9-11-36 (a) (2). However, we are unable to review the Bank’s claim in this regard. Our appellate record merely contains the filed certificates of service showing that the Bank served request for admissions upon the Burrises and an affidavit averring that the Burrises failed to respond to the requests. Significantly, however, the record fails to contain the actual pleadings setting forth the separate requests to the Burrises. Consequently, we have no means of confirming the specific facts covered by those requests. The burden is on the party alleging error to show it by the record, and since the Bank has failed to submit a complete record of the pleadings at issue, our appellate review of this issue has been precluded. See Hooks v. Humphries, 303 Ga. App. 264, 268-269 (3), n. 7 (692 SE2d 845) (2010).

       The record does not reflect that the trial court addressed the Burrises’ claims, and thus, the validity of the quitclaim deed remains unresolved.

       We note that the circumstances in this case are distinguishable from those in Chase Manhattan Mtg. Corp. v. Shelton, 290 Ga. 544, 549-550 (4) (722 SE2d 743) (2012), and Bankers Trust, supra, 281 Ga. at 563-564, where the Court held that equitable subrogation did not apply due to the lenders’ inexcusable neglect. In Chase Manhattan and Bankers Trust, the lenders had prior knowledge of the joint property owners’ interests in the property and had opportunities to protect their interests by including the joint property owners in the loan transactions, but they negligently failed to do so. See Chase Manhattan, supra, 290 Ga. at 544, 550 (4); Bankers Trust, supra, 281 Ga. at 563. In the instant case, however, there is no evidence that the Bank had prior knowledge of Varner’s alleged interest in the property. The constructive notice that the Bank is deemed to have had due to the filing of Varner’s quitclaim deed prior to the refinance loan transaction was not sufficient to defeat the Bank’s equitable subrogation claim. See Byers, supra, 285 Ga. at 539 (4).

         The Bank’s summary judgment motion argued that Varner was not a bona fide purchaser for value since she acquired her interest in the property under a gratuitous transfer and she did not pay any monetary amount for her acquisition. In response, Varner submitted an affidavit in which she claimed that Mr. Burris executed the quitclaim deed in exchange for her agreement to pay for legal services when Mr. Burris was having marital difficulties with his wife. The quitclaim deed attached to Varner’s affidavit, however, stated that the transfer was “in consideration of the sum of LOVE AND AFFECTION” only and no monetary sum was provided. Varner’s self-contradictory testimony on this issue must be construed against her and did not preclude the entry of summary judgment. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (1) (343 SE2d 680) (1986).

       The record shows that the Bank served separate requests for admissions to Varner. Varner, unlike the Burrises, responded to the Bank’s requests. Nevertheless, the facts relevant to the Bank’s claim in this case center around the conduct of the Burrises and the Bank, who engaged in the loan transactions. Varner denied any awareness of the loan transactions, and she failed to provide any evidence contradicting the Bank’s claims regarding the loan transactions. Nothing prevents the consideration of the Burrises’ uncontested facts as to their own conduct in this lawsuit simply because such happens to work to Varner’s detriment. See, e.g., KHD Deutz of America Corp. v. Utica Mut. Ins. Co., 220 Ga. App. 194, 198 (3) (469 SE2d 336) (1996).