author: MILLER, Presiding Judge.

text:
    A16A0803.
    KINDRED NURSING CENTERS LIMITED PARTNERSHIP et al. v. CHRZANOWSKI et al.
    (791 SE2d 601)
   MILLER, Presiding Judge.

This wrongful death case raises the question of whether the trial court properly determined that Jeanne Chrzanowski (“Jeanne”) lacked capacity to enter into an agreement to arbitrate with Kindred Nursing Centers. The trial court concluded that Jeanne lacked the necessary capacity at the time she entered into the agreement and denied Kindred Nursing Centers’ motion to dismiss or to stay and to compel arbitration of the wrongful death and negligence claims filed by Jeanne’s estate. After a thorough review of the record, we conclude that the trial court applied an incorrect standard and improperly shifted the burden of proof. Accordingly, we vacate the trial court’s order and remand for further proceedings.

“We review the record in this case de novo to determine whether the trial court’s denial of the motion to compel arbitration is correct as a matter of law.” (Citation omitted.) Ashburn Health Care Center v. Poole, 286 Ga. App. 24 (648 SE2d 430) (2007).

So viewed, the evidence shows that in November 2011, Jeanne was living alone when she fell at home and broke her ankle. On December 4, 2011, following surgery, Jeanne was admitted to Kindred Nursing Centers in Marietta for rehabilitation.

According to Jeanne’s medical records from the hospital and Kindred Nursing Centers, she suffered from chronic obstructive pulmonary disease (“COPD”), coronary artery disease, hypertension, and a history of some cognitive impairment. In the month before her fall, Jeanne went to the emergency room twice within a few days and reported feeling “loopy” and out of sorts, with some memory loss. The second time she went, she had no recollection of her prior visit just 48 hours earlier. A neurological consult identified an altered mental state, with mild cognitive impairment, depression, and some amnesia. Nevertheless, at the hospital after her fall in November, Jeanne was alert and oriented, and she was able to understand and consent to her treatment plan.

At the time of her admission to Kindred Nursing Centers, Jeanne required oxygen, narcotic pain medications, and antibiotics to treat a urinary tract infection. Although her son and daughter-in-law accompanied Jeanne upon her arrival to Kindred Nursing Centers, the admissions team did not complete the paperwork with Jeanne until a few days later, on December 7. The paperwork included an alternative dispute resolution agreement (“the ADR Agreement”), providing:

Any and all claims or controversies arising out of or in any way related to this Agreement, including interpretation of this Agreement, or the Resident’s stay at, or the care or services provided by, the Facility, whether arising out of State or Federal law, whether existing or arising in the future, whether for statutory, compensatory, or punitive damages, and whether sounding in breach of contract, tort, or breach of statutory or regulatory duties (including, without limitation, any claim based on violation of rights pursuant to O.C.G.A. § 31-8-126, negligence, medical malpractice, any other departure from accepted standards of health care or safety, or a claim for unpaid nursing home charges), irrespective of the basis for the duty or of the legal theories upon which the claim is asserted, shall be submitted to ADR as described in this Agreement.

The ADR Agreement indicated that signing it was “voluntary” and “optional.” The assistant admissions coordinator, Sandra Stodghill, met with Jeanne to discuss the paperwork, and Jeanne signed the ADR Agreement.

Following her admission to Kindred Nursing Centers, various assessments concluded that Jeanne experienced periods of confusion and forgetfulness. Specifically, on December 5, two days before Jeanne signed the ADR Agreement, occupational therapy evaluated Jeanne and reported that she was confused, even though she was able to participate in establishing her plan of care. In weekly progress notes from December 5 through December 12, occupational therapy reported that Jeanne was very anxious and confused, commenting to staff, “look at the walls, they are coming out.”

In addition, a speech pathologist evaluated Jeanne on December 7 and found that she was severely impaired in understanding yes and no questions; moderately impaired in concentration, understanding sentences, and conversation; and moderately to severely impaired in memory, reasoning, and judgment. That same day, a dietician performed a nutrition therapy assessment and found Jeanne was very confused and could not remember if she had eaten breakfast. Another assessment determined that Jeanne was at risk for falls due to weakness, medications, confusion, and forgetfulness.

The history and physical completed on December 8 noted that nursing staff reported that Jeanne was more confused than usual. The following day, however, progress notes indicated that even though Jeanne experienced “poor cognition from time to time,” Jeanne was alert and oriented to person and time, could understand others, had no visual or hearing deficits, and wanted to return to independent living after rehabilitation.

In the weeks following her admission, Jeanne’s condition declined, resulting in additional falls and hospitalizations. Jeanne died on April 25, 2012.

Thereafter, Jeanne’s sons, Michael Chrzanowski, on behalf of himself and as administrator of Jeanne’s estate, and Alan Chrzan-owski (collectively “the Chrzanowskis”) filed this wrongful death and negligence suit against Kindred Nursing Centers. Kindred Nursing Centers moved to dismiss the suit and compel arbitration, arguing that the claims were subject to arbitration under the ADR Agreement. The Chrzanowskis opposed the motion, arguing that Jeanne lacked the capacity to enter into the ADR Agreement.

In ruling on Kindred Nursing Centers’ motion to compel arbitration, the trial court had the deposition testimony of Jeanne’s son and daughter-in-law, Michael and Deborah Chrzanowski; the deposition testimony of the Chrzanowskis’ expert, Dr. Daniel Lively; the hearing testimony of assistant admissions coordinator Sandra Stodg-hill; and the hearing testimony of Kindred Nursing Centers’ expert, Dr. Gary Grove.

In her deposition, Deborah Chrzanowski testified that Jeanne lived alone prior to her fall, was somewhat independent, and continued to drive. The family noticed that Jeanne needed more assistance with some things as early as 2010, and they began to see changes in Jeanne’s mental capacity. When Jeanne was in the hospital after her ankle surgery, she seemed confused about the time of day, and sometimes forgot whether she had eaten. Deborah admitted, however, that at the time of her admission to the nursing home, Jeanne knew where she was, knew that she had broken her ankle, and knew that she would need to stay in the nursing home for some time. In fact, Jeanne was “mad” and wanted to leave. Deborah testified that, in the few weeks after her admission, Jeanne became more confused and forgetful.

Michael Chrzanowski testified that his mother suffered from dementia and Alzheimer’s disease and was deteriorating mentally since 2010. Michael offered contradictory testimony about whether Jeanne was able to drive. He further testified that before her fall in November, Jeanne was often forgetful, would leave the oven on, forget to pay bills, and no longer did household chores. He explained that Jeanne was “out of it” while in the hospital after her surgery, and she yelled that people were out to get her and that she was going to call the police. In contradiction to Deborah’s testimony, Michael testified that when Jeanne was admitted to Kindred Nursing Centers, she did not know where she was or what was happening. He believed her mental status declined while she was in Kindred Nursing Centers.

Dr. Lively, who was certified in internal medicine and geriatrics, testified on behalf of the Chrzanowskis. Dr. Lively stated that based on the medical records from the hospital and Kindred Nursing Centers, in his opinion, Jeanne lacked the capacity to sign the ADR Agreement. He also reviewed Michael Chrzanowski’s deposition, which corroborated his conclusion that Jeanne suffered from dementia.

According to Lively, the evaluations done in October, coupled with the records from Kindred Nursing Centers, verified that Jeanne was experiencing chronic dementia. Lively further opined that there was no evidence of “waxing and waning” mental status or periods of lucidity Rather, Jeanne’s records showed that she had a series of medical problems that were likely to produce dementia, including COPD, coronary artery disease, depression, and oxygen dependency Moreover, Dr. Lively opined that Jeanne suffered from progressive dementia and medication-induced delirium resulting from her pain medications and the use of anesthesia during surgery. He further opined that Jeanne’s dehydration and urinary tract infection altered her mental status. Lively explained that drops in oxygen levels from COPD or the improper use of oxygen could result in confusion and memory loss. Thus, Lively testified that after reviewing the records, it was his opinion, to a reasonable degree of medical certainty, that Jeanne suffered from significant cognitive impairment and lacked the capacity to understand the ADR Agreement at the time she signed it.

In support of their motion to compel arbitration, Kindred Nursing Centers offered the testimony of assistant administrator Stodghill, who had completed the paperwork and ADR Agreement with Jeanne two days after Jeanne was admitted. Stodghill remembered that Jeanne seemed to be intelligent, alert, and oriented. She testified that Jeanne was adamant about looking over all the paperwork and signing it, and Jeanne did not ask any questions. Stodghill further stated that she would not have completed the paperwork with Jeanne if she thought Jeanne was confused. Although Stodghill admitted that she did not review any of the notes or evaluations in Jeanne’s chart before having Jeanne sign the paperwork, she testified that she had worked in nursing homes for many years and was formerly a certified nursing assistant. She testified that, when she usually completed paperwork with residents and families, she told them the ADR Agreement was optional, and if they had questions, she would have them talk to the admissions director.

Kindred Nursing Centers also offered the testimony of its expert, Dr. Grove, a psychiatrist with a specialization in geriatric psychiatry Dr. Grove testified that he did not examine or treat Jeanne, but had reviewed her records to form an opinion as to her capacity to understand the ADR Agreement. Grove explained that confusion did not equate to lack of capacity, and patients suffering from confusion could have periods of lucidity. He found no evidence of any dementia diagnosis until February 2012, well after Jeanne’s admission to Kindred Nursing Centers. Grove disagreed with Lively’s assessment and found that Jeanne’s impairment was more consistent with acute and sudden delirium that would resolve itself. Grove explained that confusion resulting from low oxygen levels also would resolve itself once the oxygen levels increased. Grove noted that the records showed Jeanne had lived independently and was able to perform her own activities of daily living prior to her hospitalization, which would be inconsistent with a finding of severe cognitive impairment. Grove further explained that the nursing progress notes from December 7 identified only intermittent periods of confusion, and the notes from December 8 showed no confusion at all. Grove discounted the evaluations from the speech pathologist and the dietician because neither one was qualified to determine Jeanne’s capacity. Accordingly, Grove opined that Jeanne had the necessary capacity to enter into the ADR Agreement at the time she signed it on December 7.

After considering all of the evidence, the trial court denied the motion to compel arbitration, applying the standard applicable to motions for summary judgment, and explaining that Kindred Nursing Centers bore the burden of proving an absence of evidence supporting the Chrzanowskis’ claim that Jeanne lacked capacity to enter the contract. Based on the evidence presented, and applying this standard, the trial court found that Kindred Nursing Centers had not met its burden because there was sufficient evidence that Jeanne lacked the capacity to enter into the ADR Agreement at the time she signed it. This Court granted Kindred Nursing Centers’ application for interlocutory appeal, and this appeal followed.

1. In its first enumeration of error, Kindred Nursing Centers argues that the trial court erred in applying the summary judgment standard and placing the burden of proof on it to disprove the Chrzanowskis’ defense of incapacity. We agree.

Georgia law provides that a party may seek an order compelling arbitration, and upon a challenge to the validity of the agreement, the trial court “shall summarily hear and determine that issue and, accordingly, grant or deny the application for an order to arbitrate.” OCGA § 9-9-6 (a); see also Triad Health Mgmt. of Ga., III v. Johnson, 298 Ga. App. 204, 206 (2) (679 SE2d 785) (2009) (“whether there is a valid agreement to arbitrate is . . . appropriate for determination by the court”) (citations omitted).

“Whether there is a valid agreement to arbitrate is generally governed by state law principles of contract formation, and is appropriate for determination by the court.” (Citations omitted.) Triad Health Mgmt. of Ga., III, supra, 298 Ga. App. at 206 (2). As the party seeking arbitration, Kindred Nursing Centers bears the burden of proving the existence of a valid and enforceable agreement to arbitrate. Ashburn Health Care Center, supra, 286 Ga. App. at 25. Nevertheless, as the party challenging Jeanne’s capacity to enter into a contract, the Chrzanowskis bear the burden of showing Jeanne’s incapacity. Nelson v. State Farm Life Ins. Co., 178 Ga. App. 670, 672 (1) (344 SE2d 492) (1986). A contract entered into by one who is mentally incompetent is voidable rather than void. OCGA § 13-3-24 (a).

Here, Kindred Nursing Centers produced the ADR Agreement, which Jeanne signed. Accordingly, they established a prima facie case with regard to whether Jeanne entered into an enforceable contract. See OCGA § 13-3-1. The burden of proof then shifted to the Chrzan-owskis, as the party challenging that agreement, to show that Jeanne lacked the capacity to enter into the agreement. Nelson, supra, 178 Ga. App. at 672 (1).

One of the tenets of our contract law is that a party must be able to contract. However, every person is presumed to be of sound mind and discretion but the presumption may be rebutted. For this reason our courts start with the general rule that every [person] is presumed to have all [her] mental faculties and to be of normal and ordinary intelligence, and where it is contended that one who executed a contract was not competent to execute it, the burden is upon [she] who asserts the incompetency. Mental or physical impairment is never presumed. It must be proved.

(Citations and punctuation omitted.) Id.

Moreover, as we have explained:

In order to void a contract on the ground of mental incapacity of the maker, [she] must have been non compos mentis, that is, entirely without understanding, at the time the contract was executed. It is also the policy of Georgia law, wherever possible, to uphold contracts and to uphold the capacity of one to enter into a contract. Further, even proof of a temporary loss of sanity or competency would create no presumption that it continued up to the time of execution of the contract, and the burden remains on the party alleging incapacity to show such incapacity at the very time of the transaction.

(Citations and punctuation omitted.) Id.

In its ruling, the trial court relied on Anderson v. Benton, 295 Ga. App. 851 (673 SE2d 338) (2009), for the proposition thatthe summary judgment standard applied to its resolution of a motion to compel arbitration. We find Anderson inapposite. In that case, the trial court applied the summary judgment standard because the parties had, in fact, moved for summary judgment on their motion to enforce a settlement agreement. Id. at 852.

Moreover, in applying the summary judgment standard, the trial court in this case improperly shifted the burden of proof and required Kindred Nursing Centers to demonstrate an absence of any evidence that Jeanne lacked capacity By shifting the burden of proof, the trial court misapplied our case law presuming competency, which places the burden on the person claiming incapacity, and ignored the well-settled preference for upholding contracts. We note that if the summary judgment standard applied, the trial court would not have been able to resolve the conflicting evidence of Jeanne’s capacity, as it did here.

We find that the use of the summary judgment standard to evaluate a person’s capacity to enter an arbitration agreement is improper. Notably, sending factual questions to a jury to determine capacity to enter into an arbitration contract would effectively turn every challenge to an arbitration agreement into a mini-trial. This would defeat the entire purpose of arbitration and ignore this Court’s intention to uphold arbitration agreements when possible. Helms v. Franklin Builders, 305 Ga. App. 863, 865 (700 SE2d 609) (2010) (Georgia has a public policy favoring arbitration); Operations Mgmt. Intl. v. City of Forsyth, 288 Ga. App. 469, 470 (654 SE2d 438) (2007) (“The purpose of arbitration is to avoid resorting to the courts for dispute resolution.”). In ruling on the motion to compel arbitration, the trial court was permitted to make factual determinations from evidence outside the pleadings, and the trial court should have analyzed the facts and relevant law with this posture in mind. See OCGA § 9-9-6 (a) (allowing trial court to “summarily hear and determine the issue”).

By applying a motion-for-summary-judgment standard — and applying it improperly — the trial court required Kindred Nursing Centers to establish the absence of any evidence of incapacity and impermissibly shifted the burden of proving incapacity from the Chrzanowskis to Kindred Nursing Centers. Cf. Freeman v. GGNSC Rome, No. 4:15-CV-0165-HLM, 2015 WL 10960943, *5 (II) (A) (N.D. Ga. Oct. 26, 2015) (party challenging enforcement of arbitration agreement bears burden of establishing defense). We therefore vacate the trial court’s order and remand this case for further proceedings. On remand, the trial court should consider whether the Chrzanow-skis have met their burden of showing that Jeanne lacked the capacity to sign the ADR Agreement at the moment she signed it. In so holding, we express no opinion as to whether the Chrzanowskis can meet this burden, but the trial court is authorized to make factual determinations about Jeanne’s capacity to enter the ADR Agreement based on the evidence before it.

2. In light of our conclusion in Division 1 that the trial court applied the incorrect burden of proof, we need not address Kindred Nursing Centers’ other enumerations of error.

Judgment vacated and case remanded.

McFadden and McMil-lian, JJ., concur.

Decided September 28, 2016.

Carlton Fields Jorden Burt, Walter H. Bush, Jr., Christopher B. Freeman, for appellants.

Wilkes & McHugh, Carl R. Wilander, for appellees.

       The complaint named as defendants Kindred Nursing Centers Limited Partnership, Kindred Healthcare, Inc., Kindred Healthcare Operating, Inc., Administrator Janet Ledlow, and Director of Nursing Timeka Hammond. We refer collectively to the defendants as “Kindred Nursing Centers.”


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A0864.
    ALI v. THE STATE.
    (791 SE2d 599)
   McMlLLIAN, Judge.

Abdur-Raheem Haneef Ali appeals the trial court’s denial of his motion for new trial after a jury convicted him of two counts of armed robbery. In his sole enumeration of error on appeal, Ali argues that he received ineffective assistance of counsel because his trial attorney failed to thoroughly cross-examine a State’s witness regarding his plea to lesser charges in connection with the crimes in this case. We affirm for the reasons set forth below.

The evidence at trial showed that on the afternoon of December 18, 2012, Ali was a passenger in a car with four to five other people, when some of the occupants of the car engaged in an altercation with three skateboarders after they asked to borrow a cell phone from the skateboarders. Later that afternoon, the skateboarders saw the car again at a friend’s apartment building. One of the passengers in the car stepped out of the car with a gun, walked straight toward one of the skateboarders, and then turned to the other two skateboarders and demanded their cell phones. After taking the cell phones, the man and his companions fled in their car. The skateboarders got the car’s tag number and reported the incident to police. Ali later admitted to police that he had served as the lookout for this robbery and admitted being in the car with the others when the robbery was planned.

The next day, another victim was standing outside his workplace when two men came up and asked to borrow his cell phone. As he handed his phone over, one of the men snatched his phone and ran off. The victim ran after the man who snatched his phone, and after the men got into a car, he chased the car. The victim’s co-worker wrote down the car’s license plate number, which was later relayed to police.

The description of the vehicle and the tag number given by the victim and his co-worker matched the tag number and description of the car involved in the robbery of the skateboarders. Police later located the owner of the car, Harra Oumer, who testified at trial that Ali had been in the car when he and the other occupants of the car discussed finding someone to rob on December 18, 2012. He said that Ali had also been present during the altercation and later robbery of the skateboarders that day Oumer further testified that Ali, three other people, and he had gone to the mall where the victim worked on December 19, 2012, to look for someone to rob. He said that Ali and another man got out of the car, while he and two others waited in the car. A short time later, Ali and the other man ran and jumped in the car, and when Ali got in the car, he had a cell phone in his hand, which he kept.

Ali argues on appeal that he received ineffective assistance of counsel because his trial attorney failed to cross-examine Oumer regarding the minimum sentence he avoided when he pled guilty to reduced charges. To establish his claim of ineffective assistance of counsel, Ali must demonstrate that his trial counsel’s performance “was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation omitted.) Ford v. State, 298 Ga. 560, 566 (8) (783 SE2d 906) (2016). If the defendant fails to prove either of these factors, this Court is not required to examine the other. See Green v. State, 291 Ga. 579, 580 (2) (731 SE2d 359) (2012). Moreover, “[a] strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.” (Citation omitted.) Ford, 298 Ga. at 566 (8). Moreover, “[tjrial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Silvey v. State, 335 Ga. App. 383, 397 (3) (b) (iii) (780 SE2d 708) (2015). And “decisions about what questions to ask on cross-examination are quintessential trial strategy and will rarely constitute ineffective assistance of counsel. In particular, whether to impeach prosecution witnesses and how to do so are tactical decisions.” (Citation and punctuation omitted.) Edwards v. State, 299 Ga. 20, 24 (2) (785 SE2d 869) (2016).

The evidence at trial showed that Oumer pled guilty to three counts of robbery in connection with the two robberies in this case, for which he received a sentence of five years confinement, followed by five years probation. Ali’s trial counsel did not cross-examine Oumer regarding this plea at trial. At the hearing on Ali’s motion for new trial, Ali’s trial counsel stated that he did not know that he could have impeached Oumer on the mandatory minimum sentence for armed robbery he avoided by entering a guilty plea to three counts of the lesser included offense of robbery See OCGA § 17-10-6.1 (b) (1) (imposing “a mandatory minimum term of imprisonment of ten years” for armed robbery, no portion of which “shall be suspended, stayed, probated, deferred, or withheld by the sentencing court”). He stated that if that were true and if he thought that Oumer had been given some promise by the State in exchange for his testimony, he would have “brought that up.”

Decided September 28, 2016.

Michael S. Marr, for appellant.

Pretermitting whether counsel’s performance was deficient, we find that Ali has failed to show that but for counsel’s errors, a reasonable probability exists that the outcome of the trial would have been different, if his counsel had questioned Oumer about his sentence. Oumer testified at trial that he had been given no promises in exchange for talking to police, and trial counsel acknowledged that the evidence showed there had been no deals with Oumer in exchange for his testimony. And Ali admitted acting as a lookout for the robbery and being in the car when the robbery was planned. Moreover, Ali’s trial counsel stated that Oumer’s testimony was, in fact, helpful because he stated that another of the men involved in the crime was the ringleader, which tallied with Ali’s two-prong defense that (1) Ali did not know the crime was going to take place until it started happening and (2) this other man forced Ali to go along with the crime once it began.

Based on this evidence, we find that Ali has failed to carry his burden to show that he was prejudiced by his trial counsel’s failure to impeach Oumer regarding the mandatory minimum sentence he avoided, and thus his claim of ineffective assistance of counsel fails. See Starling v. State, 299 Ga. 263, 265 (2) (787 SE2d 705) (2016) (even assuming arguendo trial counsel’s performance was deficient, claim of ineffective assistance of counsel fails where defendant failed to establish any resulting prejudice); Wilhite v. State, 337 Ga. App. 324, 327 (1) (c) (787 SE2d 293) (2016) (same).

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Kylene F. Armond, Assistant District Attorneys, for appellee.

       Ali was also charged with one count of robbery, but the jury acquitted him of that charge .

       Ali does not dispute that the evidence at trial was sufficient to support his convictions.


text:
    A16A0963.
    WILLIAMS v. GEORGIA DEPARTMENT OF CORRECTIONS.
    (791 SE2d 606)
   McMlLLIAN, Judge.

Mario Williams appeals from the trial court’s order finding that his claims for conversion and invasion of privacy against the Georgia Department of Corrections (the “DOC”) are barred by the doctrine of sovereign immunity. For the reasons set forth below, we affirm.

We review de novo a trial court’s ruling on a motion to dismiss on sovereign immunity grounds and owe no deference to the trial court’s rulings on questions of law. See Laskar v. Bd. of Regents of the Univ. System of Ga., 320 Ga. App. 414, 414 (740 SE2d 179) (2013). So viewed, the record shows that Williams is a practicing attorney who represents several inmates housed at the Georgia Diagnostic and Classification State Prison (the “Prison”) in Jackson, Georgia. Williams alleges that sometime between August 8, 2012, and August 11, 2012, a correctional officer at the Prison knowingly “open[ed], read, took, and kept [Williams’ attorney-client] privileged mail” from at least one of his incarcerated clients. Williams further alleges that this was done with knowledge of the correctional officer’s supervisors and in violation of the Prison’s established policy and procedure. As a result, Williams claims to have experienced “mental pain and suffering” and “a whole bunch of stress and unnecessary hassle, as well as court fees and other expense.”

In August 2014, Williams filed suit against the DOC and several of the Prison’s individual employees in the United States District Court for the Middle District of Georgia, asserting claims for conver - sion and invasion of privacy. Williams voluntarily dismissed his claims against the DOC but later filed a renewal action against the DOC in Fulton County Superior Court. The DOC moved to dismiss the complaint on the grounds that (1) Williams’ claims are barred by the detention of goods exception set forth in OCGA § 50-21-24 (3) of the Georgia Tort Claims Act (“GTCA”), and (2) Williams failed to state a claim for conversion because he does not have a possessory interest in his client’s unmailed letters. The trial court granted the DOC’s motion to dismiss, finding that Williams’ claims were barred under the inspection exception found at OCGA § 50-21-24 (8), which was not raised by the DOC below. This appeal followed.

1. In his sole enumeration of error, Williams asserts that the trial court erred in granting the DOC’s motion to dismiss on the basis of sovereign immunity Because sovereign immunity is not an affirmative defense, but rather a privilege that is subject to waiver by the State, the party seeking to benefit from that waiver has the burden of establishing the waiver of sovereign immunity. Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 193 (718 SE2d 55) (2011), overruled on other grounds, Rivera v. Washington, 298 Ga. 770, 778, n. 7 (784 SE2d 775) (2016). Thus, Williams, rather than the DOC, has the burden of establishing whether the State has waived sovereign immunity for the claims asserted in his complaint.

Sovereign immunity has constitutional status, and that immunity may be waived only by a constitutional provision or an Act of the General Assembly See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 597-98 (755 SE2d 184) (2014) (reviewing the history of sovereign immunity in Georgia); Ga. Const. of 1983, Art. I, Sec. II, Par. IX. In 1992, the General Assembly enacted the GTCA, OCGA § 50-21-20 et seq., which waives “sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment ’’OCGA § 50-21-23 (a).

However, the GTCA contains exceptions to this limited waiver of sovereign immunity, and to the extent the GTCA sets forth those exceptions, the State and its departments remain immune from suit. See OCGA § 50-21-24 (setting forth 13 limitations to the State’s waiver of sovereign immunity). One such exception relates to the State’s inspection powers. OCGA § 50-21-24 (8) provides:

The state shall have no liability for losses resulting from... [inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety[.]

On appeal, Williams claims that the inspection exception does not apply because the cause of action stated in his complaint arose not from the inspection of the mail but rather from the unlawful reading and confiscation of that mail. However, because the DOC did not raise this exception below, Williams did not have the opportunity to present evidence and argument in opposition, and the record is undeveloped as to the facts that may or may not support the application of the inspection exception in this case. Thus, even if we were to address this exception on a de novo review, the existing record lacks evidence upon which to base such a determination. See Grant v. Ga. Forestry Comm., 338 Ga. App. 146, 155-56 (4) (789 SE2d 343) (2016). We, accordingly, decline to consider whether the inspection exception bars Williams’ claims against the DOC. See Hobbs v. Great Expressions Dental Centers of Ga., P.C., 337 Ga. App. 248, 249, n. 2 (786 SE2d 897) (2016) (declining to consider argument not raised in motion to dismiss even though review was de novo).

2. Remand for further development of the record is not necessary in this case, however, because the DOC raised an alternative argument below as to why Williams’ claims must fail. In its motion to dismiss, the DOC argued that Williams does not have a property interest in his unnamed clients’ letters. And although the trial court did not ultimately base its dismissal on this ground, it did consider the issue, noting in its final order:

The Court also has serious reservations regarding whether Plaintiff’s complaint sets forth claims for which relief could be granted in any event, particularly because the complaint contains no allegation that the letters at issue were ever mailed to Plaintiff.

We, thus, are permitted to consider this alternative ground for upholding the trial court’s dismissal under the “right for any reason” rule. See Ratliff v. McDonald, 326 Ga. App. 306, 311, n. 7 (756 SE2d 569) (2014).

OCGA § 51-10-1, which embodies the common law action of trover and conversion, provides: “The owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.” “Conversion involves the unauthorized assumption and exercise of right of ownership over personal property of another, contrary to the owner’s rights.” Professional Energy Mgmt. v. Necaise, 300 Ga. App. 223, 227 (1) (c) (684 SE2d 374) (2009). Thus, “in order for a plaintiff to recover in a conversion suit he must show that he has title or right of possession to the property involved.” (Citation and punctuation omitted.) Adler v. Hertling, 215 Ga. App. 769, 773 (1) (451 SE2d 91) (1994).

Here, as noted by the trial court, there is no allegation in the complaint that Williams’ unnamed clients had taken any affirmative steps to relinquish control or possession of the letters to Williams at the time the letters were confiscated. And in Williams’ parallel litigation against the individual officers, the Eleventh Circuit held that the letters in his unnamed clients’ possession had not been placed in the mail and that Williams, as an addressee, does not have a protectable Fourth Amendment possessory interest in the envelopes and their contents. Williams v. Russo, 636 Fed. Appx. 527, 531 (III) (A) (11th Cir. 2016). We find this reasoning persuasive in the context of Williams’ state law claims for conversion and therefore find that Williams’ conversion claim fails as a matter of law because he does not have any title or right of possession in the property at issue. See Adler, 215 Ga. App. at 773 (1).

Decided September 28, 2016

Betts and Associates, David E. Betts, for appellant.

Samuel S. Olens, Attorney General, A. Ellen Cusimano, Assistant Attorney General, for appellee.

3. Lastly, to the extent that Williams raises a claim for invasion of privacy, it also fails for similar reasons. Under Georgia law, there are four disparate torts under the common name of invasion of privacy:

(1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

(Citation omitted.) McConnell v. Dept. of Labor, 337 Ga. App. 457, 465-66 (3) (787 SE2d 794) (2016). Here, it appears that Williams is asserting the first form, i.e., that the DOC intruded upon his seclusion or solitude or into his private affairs. However, for the reasons stated in Division 2, this claim also fails because Williams does not have a protectable interest — whether denominated as a property interest or privacy interest — in his unnamed clients’ unmailed letters. See Williams, 636 Fed. Appx. at 532 (III) (B) (no Fourth Amendment privacy interest in unmailed letters); McConnell, 337 Ga. App. at 466 (3) (upholding dismissal of invasion of privacy claim because plaintiff failed to allege that defendant intruded into plaintiff’s seclusion, among other reasons). Accordingly, the trial court did not err in granting the DOC’s motion to dismiss Williams’ claims.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

       Williams’ clients are neither parties to nor named in the complaint.

       We also note that because a motion to dismiss asserting the protection of sovereign immunity challenges the subject matter jurisdiction of the court, the trial court is entitled to hear evidence and make relevant factual findings in deciding the issue of immunity. Rivera v. Washington, 298 Ga. 770, 778 (784 SE2d 775) (2016). And to the extent a trial court makes factual findings in support of this legal decision, those findings are sustained if there is any evidence authorizing them. Loehle v. Ga. Dept. of Public Safety, 334 Ga. App. 836, 836-37 (780 SE2d 469) (2015). Here, it appears that the trial court did not conduct a hearing on the motion, relying instead on the pleadings and the parties’ briefing.

       Before filing that suit, Williams first appealed the superior court’s dismissal of his warrant application for a probable cause hearing to consider criminal offenses he alleged were committed by the correctional officer. See Williams v. Russo, 322 Ga. App. 654 (745 SE2d 842) (2013). However, Williams ultimately elected not to pursue criminal charges.

       Williams, however, elected to proceed with his claims against the individual employees in federal court. See Williams v. Russo, 2015 U.S. Dist. LEXIS 4160, No. 5:14-cv-287 (M.D. Ga., Jan. 14, 2015). The district court denied the employees’ motion to dismiss Williams’ 42 USC § 1983 claims, and the employees appealed. Id. In January 2016, the Eleventh Circuit reversed the district court’s order, holdingthat Williams does not have a protectable FourthAmendment interest “as an addressee in envelopes seized from his client’s prison cell.” See Williams v. Russo, 636 Fed. Appx. 527, 531-32 (III) (B) (11th Cir. 2016).

       The DOC falls within the scope of the GTCA as one of the State of Georgia’s “departments.” See OCGA § 50-21-22 (5).

       Correctional officers generally have a duty to inspect incoming and outgoing mail to ensure it does not contain “escape plots, plans to commit illegal acts, plans to violate institution rules, or other security concerns.” Ga. Comp. R. & Regs., r. 125-3-3-.01 (1). Even privileged mail may be inspected by fluoroscope, metal detecting devices, or manual manipulation. Ga. Comp. R. & Regs., r. 125-3-3-.03 (2). And any privileged correspondence reasonably suspected of containing contraband or of being inauthentic may be opened and inspected in the inmate’s presence. Id.

       See Grant v. Newsome, 201 Ga. App. 710, 710 (1) (411 SE2d 796) (1991).

       On appeal, the DOC explains that it did not read Williams’ complaint as including an invasion of privacy claim, so the DOC did not raise any arguments regarding such claim in its motion to dismiss. Based on our review of the complaint, as renewed, we find the DOC’s construction of the complaint to be reasonable. However, since the trial court sua sponte determined that such claim had been raised and ruled upon it, in the interest of the efficient administration of justice, we will also consider it on appeal.


author: Dillard, Judge.

text:
    A16A1176.
    SUTTON v. THE STATE.
    (791 SE2d 618)
   Dillard, Judge.

Timothy Sutton appeals his conviction for possession of tools for the commission of a crime, arguing that the evidence was insufficient to support his conviction, that the trial court erred in failing to instruct the jury sua sponte on the elements of burglary, and that his trial counsel was ineffective for failing to request such an instruction. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the evening of September 24, 2012, a deputy sheriff with the Candler County Sheriff’s Office was on patrol, and at some point during his shift, he parked in a “dark area” to monitor the intersection of Georgia Highways 57 and 46. Around 10:30 p.m., a vehicle approaching the intersection “caught [the officer’s] attention” because, after stopping at the four-way stop, the car—which was “traveling on Highway 46 coming from Metter [, Georgia]”—made “an extremely slow left turn” that was “so slow that it was very unusual.” Based on his observations, the officer believed that there was a good chance that the vehicle’s driver was impaired, and consequently, he began following the car. When the vehicle turned onto a residential street, the officer observed the driver turn into a driveway, back out, and drive back in the direction from which he came. The officer then observed the driver turn into a second driveway, back out, and again drive back toward the highway.

After the vehicle returned to Highway 57, the driver ran a stop sign, which prompted the officer to initiate a traffic stop. When the officer approached the vehicle, Sutton, who was driving the car, stated that he did not have a driver’s license. Then, at some point during the traffic stop, the officer noticed that socks were pulled over the outsides of Sutton’s shoes, which heightened the officer’s suspicions. Indeed, based on his training and experience working on burglary cases, the officer knew that “people who commit burglaries will wear socks over their hands or feet to conceal their fingerprints ... or footprints ...Next, the officer looked into the back seat area of the vehicle, where he observed a pry bar, saws, a grinder, a sledgehammer, work-style gloves, and a hat. The officer then inquired as to what Sutton was doing in the area, and he responded that he was “riding the area looking for some property that a relative owned.” Ultimately, the officer arrested Sutton for driving without a license and transported him to jail.

During the transport, the officer heard “thumping around in the cage area of [his] vehicle,” and upon arriving at the jail, the officer discovered that Sutton had removed his shoes and the socks covering them, even though he was handcuffed, and left them in the floorboard. The officer found this behavior “very unusual” because no other arrestee had ever removed his or her shoes during a transport in his 20 years of experience in law enforcement. At this point, based on everything the officer had witnessed, he arrested Sutton for possession of tools for the commission of a crime.

Later, during a custodial interview with the officer, Sutton explained that, on the night in question, he had traveled to Metter, Georgia, to eat at a fast-food restaurant, after which he planned to return to his father’s residence in Excelsior, Georgia (which was on the opposite side of the county from where the traffic stop occurred near Aline, Georgia). Nevertheless, Sutton explained that he “mistakenly” turned toward Aline, where he stopped at a gas station to pour power-steering fluid into his vehicle just prior to the traffic stop. According to Sutton, he then planned to drive toward Excelsior, but when he saw the patrol car, he turned onto a nearby residential street because he was driving without a license. And as to his behavior of turning into and backing out of private driveways, Sutton told the officer that he did so in hopes that, if he were stopped by police, he could “save on the tow bill by being in a residence.”

Ultimately, Sutton was charged, via indictment, with one count of possession of tools for the commission of a crime. And following a jury trial, he was convicted of the charged offense. Sutton then filed a motion for a new trial, but waived a formal hearing on the motion because it was “based almost purely upon the law” and did not require the presentation of any additional evidence. After considering the briefs submitted by the parties, the trial court denied Sutton’s motion for a new trial. This appeal follows.

1. Sutton first argues that the evidence was insufficient to support his conviction for possession of tools for the commission of a crime. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed “in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” And, of course, in evaluating the sufficiency of the evidence, we do not “weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Thus, we will uphold a jury’s verdict so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” Bearing these guiding principles in mind, we turn now to Sutton’s specific challenge to the sufficiency of the evidence to support his conviction.

Under OCGA § 16-7-20 (a), “[a] person commits the offense of possession of tools for the commission of [a] crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.” And here, the indictment charged Sutton

with the offense of POSSESSION OF TOOLS FOR THE COMMISSION OF [A] CRIME (O.C.G.A. [§] 16-7-20) for that the said accused... on September 24, 2012, in [Candler County,] did then and there unlawfully have in his possession tools, to wit: pry bars, saws, grinder, sledge hammer, along with gloves and dark knit hat, which [are] commonly used in the commission of burglary, with the intent to use said items in the commission of a crime, contrary to the laws of the state of Georgia, the good order, peace and dignity thereof.

On appeal, Sutton claims that while the evidence presented, including his two previous convictions for burglary-related crimes, detailed infra, “arguably rais[es] a suspicion of guilt,” it was insufficient to support his conviction. Specifically, Sutton contends that his conviction for possession of tools for the commission of a crime was unsupported because (1) although pictures of the tools in his possession were shown to the jury, the tools themselves were not submitted as evidence such that the jury could evaluate whether they showed signs of recent use and whether they had actually been used in the commission of a crime; and (2) the State presented no evidence that he committed a burglary prior to his encounter with the patrol officer.

Sutton is indeed correct that, in the majority of cases in which this Court has upheld convictions for possession of tools for the commission of a crime, there was at least some evidence that the tools were actually used in some specific crime or attempted crime. But although such evidence may support a conviction for possession of tools for the commission of a crime, Sutton has provided us with no legal authority—and there is none that we can find—suggesting that evidence of recent use of the tools in a particular crime or attempted crime is necessary to support a conviction under OCGA § 16-7-20 (a). This is because the plain language of the statute itself requires only that the defendant possess the relevant tools with the intent to use them in the commission of a crime, not that the tools must have already been used to commit a particular crime.

And here, there was evidence that the arresting officer observed Sutton driving in a suspicious manner when he made an unusually slow turn at a four-way stop and when he pulled into and backed out of driveways on a residential street before driving back in the same direction from which he came. In fact, the officer was so concerned by Sutton’s odd behavior that he initially assumed Sutton was an impaired driver. Further, in addition to the numerous tools found in the back seat of Sutton’s vehicle, he had socks pulled over his shoes, which the officer testified is sometimes done during burglaries to avoid leaving footprints. Sutton also removed those shoes and socks while still in handcuffs, which the officer had never seen an arrestee do before. In addition to this odd and suspicious behavior, Sutton lied to the patrol officer about why he was driving around the Aline area. Indeed, during the traffic stop, Sutton claimed that he was “riding the area looking for some property that a relative owned.” But later, in his official statement to law enforcement, he contended that he inadvertently arrived in Aline after “mistakenly” taking a wrong turn away from his intended destination, which was on the opposite side of the county

Additionally, the jury heard evidence that Sutton had been involved in two prior burglaries. Specifically, in November 2003, the same arresting officer in this case investigated a burglary in which numerous items, including lottery tickets, a firearm, and a bank bag, were stolen from a gas station that was across the street from the one where Sutton stopped just prior to the traffic stop. Based on the investigation that ensued, Sutton was identified as a person of interest, and a search warrant was issued for his home. During that search, law-enforcement officers discovered various items connected to the crime, and ultimately, Sutton pleaded guilty to burglary

The State also presented evidence that in 2010, roughly two years before Sutton’s instant arrest, a detective and patrol officer with the Savannah-Chatham Metropolitan Police Department were dispatched to a restaurant at approximately 2:00 a.m. when the restaurant’s alarm sounded. While clearing the area, the officer observed someone through a hole in the ceiling, but the person jumped off of the roof when the officer began yelling at him. Shortly thereafter, Sutton was discovered hiding nearby with both of his ankles broken, and a duffle bag containing tools was also found in the area. Although the officer could not remember the exact number of tools in Sutton’s possession, she knew that he had a crowbar, a bandana, gloves, and, as in this case, an extra pair of socks. Other officers also seized various items from the bag, including two crowbars, black gloves, a cell phone, cigarettes, a scanner flashlight, a blue bandana, and a steak knife. Initially, Sutton was charged with burglary, possession of tools for the commission of a crime, and obstruction. However, he was ultimately only convicted of criminal trespass (a lesser included offense) and possession of tools for the commission of a crime.

Despite the foregoing evidence, Sutton argues that our decision in Burnette v. State, which he acknowledges has been “restricted” or distinguished by many subsequent cases, requires the State to present evidence that the alleged burglary tools “were in such a condition that they could be used in the commission of a crime.” However, this Court made no such pronouncement in Burnette. Instead, in Burnette, we noted the fact that the “tools were rusty and there was no indication that they had been used recently” was merely a factor to be considered in determining whether, under the particular facts and circumstances of that case, the evidence was insufficient to support the defendant’s conviction for possession of tools for the commission of a crime. Regardless, Burnette is factually distinguishable from the instant case in significant respects.

Specifically, unlike this case, the defendant in Burnette was found in possession of the relevant tools and apprehended after a report that he may have burglarized a specific residence. And in holding that the evidence was insufficient to support the defendant’s conviction in Burnette, we relied on evidence that “there were no pry marks or gouges on the window or doors of the . . . house to indicate there had been a forcible entry” and that “the sill of the window found open was covered with dust which was undisturbed.” But here, as Sutton emphasizes on appeal, his possession of the alleged burglary tools, as presented to the jury, was not connected or related to a specific burglary, such that this Court can even consider evidence that the alleged burglary tools were or were not used in any particular burglary. Thus, Burnette’s holding was based on the particular facts and circumstances of that case, which, unlike this one, involved allegations that the tools had been recently used in a specific burglary, and we did not mandate that the State, in every case, must present any particular type of evidence regarding the condition of the alleged burglary tools.

In sum, the circumstantial evidence—including Sutton’s suspicious and unusual behavior prior to the traffic stop, the fact that he was wearing socks over his shoes and inexplicably removed his shoes and the extra socks while handcuffed during his transport to jail, his contradictory statements to police as to why he was in the Aline area, his 2003 conviction for a burglary that occurred in the exact same area of the traffic stop, and his 2010 conviction for the same offense charged here in which he possessed some of the same alleged burglary tools he possessed in this case—is sufficient, along with the tools found in his possession, to support Sutton’s conviction.

2. Sutton next argues that the trial court plainly erred by failing to charge the jury on the elements of burglary when the indictment specifically charged him with possession of tools commonly used in the commission of burglary Again, we disagree.

At the outset, we note that, as conceded by Sutton, he neither requested a jury charge on the elements of burglary, nor objected to the trial court’s failure to give such a charge. Nevertheless, under our Supreme Court’s construction of OCGA § 17-8-58, “we review for plain error an alleged error in jury instructions properly enumerated and argued on appeal that was not raised by trial counsel before the jury retired to deliberate.” And under plain-error review, reversal of a conviction is authorized “if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” Finally, we note that “[satisfying all four prongs of this standard is difficult, as it should be.”

As to the first prong of the plain-error analysis, Sutton argues that the trial court was required to “explain the elements of each offense at issue” to the jury, and its failure to do so is reversible error. He further contends that when “certain legal offenses” are elements of the charged crime, a trial court errs in failing to provide the jury with legal definitions of the “elemental crimes.” In support of this argument, he refers us to cases in which the trial court failed to charge the jury on the legal definition of a crime that was a “material element” of the charged offense. But his reliance on those cases is misplaced because we have expressly held “that possession of burglary tools and burglary are separate and distinct offenses and conviction of one is not an essential part of conviction of the other.” Indeed, as previously discussed, a conviction for possession of tools for the commission of a crime—in this case burglary—requires only the possession of tools with the in ten t to use them to commit burglary, not that a burglary must actually occur. Moreover, as also previously mentioned, “[i]n the vast majority of cases construing [OCGA § 16-7-20], whether a tool is commonly used in the commission of [burglary, theft, or another crime] is within the ken of the average juror,” and therefore, jurors may make such a determination based on their own personal knowledge and experience. Because the trial court’s failure to instruct the jury on the elements of burglary was not error, much less a “clear and obvious” one, Sutton has failed to meet his burden of satisfying the first and second prongs of the plain-error analysis.

3. Finally, Sutton argues that his attorney rendered ineffective assistance by not objecting to the trial court’s failure to charge the jury on the elements of burglary and by not requesting such an instruction. Yet again, we disagree.

We first note that in evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington. Under this test, the appellant first must show that counsel’s performance was deficient and, second, that he was prejudiced by counsel’s deficient performance. Moreover, there is a “strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” And lastly, we note that because Sutton waived a hearing on his ineffective-assistance-of-counsel claim and his trial counsel did not testify, counsel’s decisions are presumed to be strategic, and Sutton must show that “the presumed strategy was so unsound that no reasonable lawyer would have adopted it to show deficient performance.” As acknowledged by our Supreme Court, “[tjhat is an unusually heavy burden to carry,” and when trial counsel does not testify, “[i]t is extremely difficult to overcome the presumption of reasonable professional assistance . . . .” With these guiding principles in mind, we turn now to Sutton’s specific claim.

With respect to his trial counsel’s failure to request a jury charge on the elements of burglary or to object to the court’s failure to give such an instruction, Sutton first argues that, “[t] o the extent that trial counsel’s inaction somehow prevented the trial court from taking corrective action, and waived the matter for appellate review, . . . counsel acted deficiently.” But, as explained in Division 2 supra, the trial court did not err in failing to charge the jury on the elements of burglary because burglary is not an essential element of Sutton’s charged offense. Thus, any objection to the trial court’s failure to give such a jury charge on that basis would have been meritless, and of course, “counsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance.”

Decided September 28, 2016.

Russell R. Jones, Robert L. Persse, for appellant.

S. Hayward Altman, District Attorney, Jessica B. Wilson, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm Sutton’s conviction.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        See, e.g., Hartzler v. State, 332 Ga. App. 674, 675 (774 SE2d 738) (2015).

        Id. at 676 (1) (punctuation omitted); see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Hartzler, 332 Ga. App. at 676 (1) (punctuation omitted).

        Id. (punctuation omitted).

       We note that Sutton also summarily asserts, without further explanation or citation to authority, that his conviction is unsupported because the State presented no evidence that the tools in his possession were even capable of being used in the commission of a crime. However, in the vast majority of cases construing OCGA § 16-7-20, “whether a tool is commonly used in the commission of a crime is within the ken of the average juror.” Kenemer v. State, 329 Ga. App. 330, 333 (765 SE2d 21) (2014) (punctuation omitted); see also Norwood v. State, 265 Ga. App. 862, 864-65 (2) (595 SE2d 537) (2004) (holding that the jury could determine from the tools admitted into evidence whether they were “burglary tools”), disapproved of on other grounds by Harris v. State, 286 Ga. 245 (686 SE2d 777) (2009). Thus, expert testimony on this issue is not required, and “jurors are entitled to use their knowledge and experience to decide both elements set out in the Code section—common use and intent.” Kenemer, 329 Ga. App. at 333. Furthermore, we have expressly held that at least some of the tools in Sutton’s possession, such as the sledgehammer and gloves, are items commonly used in the commission of burglary. See Kennon v. State, 232 Ga.App. 494, 496 (3) (502 SE2d 330) (1998). Andas to the other items that Sutton was charged with possessing (i.e., pry bars, saws, a grinder, and dark knit hat), the jurors were entitled to use their own knowledge and experience to determine whether those items can be considered “burglary tools.” See Kenemer, 329 Ga. App. at 333. Thus, to the extent that Sutton has adequately briefed this argument on appeal, we conclude that it is meritless.

        See, e.g., Walker v. State, 281 Ga.App. 94, 100 (6) (635 SE2d 577) (2006) (holding that the evidence was sufficient to support a conviction for possession of tools for the commission of a crime when, inter alia, the defendant was present at the scene where cars were broken into with the kind of tools that the defendant possessed and stolen items were found in his vehicle); Manous v. State, 205 Ga. App. 804, 805 (1) (423 SE2d 721) (1992) (holding that there was sufficient evidence to support a conviction for possession of tools for the commission of a crime when, inter alia, the defendant had been seen walking in close proximity to a restaurant that had been “forcibly entered” and a glass cutter and lock picks were found in his car, which was parked near the restaurant); Ranson v. State, 198 Ga. App. 659, 660-61 (2) (402 SE2d 740) (1991) (affirming a conviction for possession of tools for the commission of a crime when, inter alia, the broken glass found in the defendant’s tool bag indicated that the tools had been used to break into a truck that had a broken window); Moore v. State, 197 Ga. App. 9, 9-10 (1) (397 SE2d 477) (1990) (affirming a conviction for possession of tools for the commission of a crime when, inter alia, there was evidence that screwdrivers, such as those in the defendant’s possession, were “popular for use in burglaries” and that there were “fresh scratches” on a door frame that a homeowner had seen the defendant attempting to “pry open”).

        See OCGA § 16-7-20 (a) (“A person commits the offense of possession of tools for the commission of [a] crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.” (emphasis supplied)); Kennon, 232 Ga. App. at 496 (3) (noting—in a case in which there was no evidence that the alleged burglary tools had been used to commit a crime—that the element of intent in OCGA § 16-7-20 (a) “is a question of fact for jury resolution” and “may be proven by circumstantial evidence, by conduct, demeanor, motive, and all other circumstances”).

       168 Ga. App. 578 (309 SE2d 875) (1983).

        See, e.g., Kenemer, 329 Ga. App. at 332 (noting that Burnette “has been distinguished frequently on th[e] [intent] element of OCGA § 16-7-20 . . .”); Anderson v. State, 264 Ga. App. 362, 364 (1) (590 SE2d 729) (2003) (noting that Burnette was factually distinguishable from the case at issue); Manous, 205 Ga. App. at 805 (1) (same); Ranson, 198 Ga. App. at 660-61 (2) (same); Moore, 197 Ga. App. at 9-10 (1) (same).

        See Burnette, 168 Ga. App. at 580 (2) (b).

        See id. at 578-79.

        Id. at 580 (2) (b).

        See Kennon, 232 Ga. App. at 496 (3) (holding that there was sufficient evidence to support a conviction for possession of tools for the commission of a crime when the evidence showed that, late at night, the defendant positioned his vehicle behind a closed business and immediately moved upon noticing the police ; his stolen pick-up truck contained numerous tools commonly used in the commission of burglary; and his presence behind a closed business in possession of the tools was unexplained); see also Bryant v. State, 320 Ga. App. 838, 840-41 (2) (740 SE2d 772) (2013) (affirming a conviction for possession of tools for the commission of a crime when the defendant possessed items consistent with drug distribution, and noting that “[ijntent is a question of fact for jury resolution and may be proven by circumstantial evidence, by conduct, demeanor, motive, and all other circumstances” (punctuation omitted)); Evans v. State, 216 Ga. App. 21, 23-24 (2) (453 SE2d 100) (1995) (holding that the discovery of a screwdriver in a co-defendant’s coat and the misleading statements of the co-defendants regarding how long they had been in certain parking lots coupled with their prior suspicious activity was sufficient probable cause to support their arrests for possession of tools for the commission of a crime).

       OCGA § 17-8-58 (b) (“Failure to object [to any portion of a jury charge or a failure to charge the jury] in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the [trial] court’s attention as provided in subsection (a) of this Code section.”).

        Smith v. State, 292 Ga. 316, 319 (3) (737 SE2d 677) (2013).

        Id.; accord Lake v. State, 293 Ga. 56, 59 (5) (743 SE2d 414) (2013).

        Lake, 293 Ga. at 59 (5).

        See Essuon v. State, 286 Ga. App. 869, 872 (2) (650 SE2d 409) (2007) (holding that the trial court committed reversible error when it failed to charge the jury on the legal elements of “felony” and “murder” when both were elements of the charged offense—criminal solicitation to commit a felony—and murder was the underlying felony); Moore v. State, 235 Ga. App. 175, 175-76 (509 SE2d 108) (1998) (holding that the trial court committed reversible error in failing to instruct the jury on the elements of rape when rape was an essential element of the charged offenses—burglary with intent to rape and aggravated assault with intent to rape).

        Butler v. State, 130 Ga. App. 469, 477 (5) (203 SE2d 558) (1973) (emphasis supplied); see also Smith v. Ault, 230 Ga. 433, 433 (1) (197 SE2d 348) (1973); Shelly v. State, 107 Ga. App. 736, 737 (1) (131 SE2d 135) (1963).

        See supra note 7 & accompanying text.

        Kenemer, 329 Ga. App. at 333 (punctuation omitted); see supra note 5. It is worth noting that, here, there was evidence that Sutton had two prior convictions related to burglaries that involved him entering into businesses in an apparent attempt to commit theft. Presumably, this evidence was helpful to the jury in establishing that, generally, the offense of burglary involves a person entering someone else’s property without permission with the intent to commit theft. See OCGA § 16-7-1 (b) (“A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another.”). But, as discussed supra, even without such evidence, jurors are permitted to make a determination of whether particular tools are commonly used to commit burglary based on their own knowledge and experience.

        See Hughley v. State, 330 Ga. App. 786, 789 (2) (769 SE2d 537) (2015) (holding that the defendant failed to demonstrate plain error in the trial court’s failure to give a certain jury charge when he “failed to show a ‘clear or obvious’ error in the trial court’s charge”); Fleming v. State, 324 Ga. App. 481, 484 (1) (749 SE2d 54) (2013) (holding that the trial court “did not err, much less plainly err” in failing to give an unwarranted jury charge).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984); see also Ashmid v. State, 316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012).

        Ashmid, 316 Ga. App. at 556 (3); see also Strickland, 466 U. S. at 687 (III).

        Ashmid, 316 Ga. App. at 556 (3) (punctuation omitted); see also Strickland, 466 U. S. at 689 (III) (A).

        Butler v. State, 292 Ga. 400, 405 (3) n.8 (738 SE2d 74) (2013).

        Id.

        Id. (punctuation omitted), quoting Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012).

        Porter v. State, 292 Ga. 292, 294(3) (a) (736 SE2d 409) (2013); accord Humphrey v. Lewis, 291 Ga. 202, 214 (V) (A) (i) (728 SE2d 603) (2012).


author: Ray, Judge.

text:
    A16A1177.
    McCANTS v. THE STATE.
    (791 SE2d 611)
   Ray, Judge.

A jury convicted Earl McCants of trafficking in cocaine (OCGA § 16-13-31 (c)) and possession of a firearm during the commission of a felony(OCGA § 16-11-106). Heappeals from the denial of his amended motion for new trial, contending that the evidence was insufficient to prove beyond a reasonable doubt that he knowingly possessed more than 400 grams of cocaine. For the reasons that follow, we affirm.

Reviewing the evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the record reflects that on March 26, 2011, at about 1:30 a.m., a police officer pulled over a Ford Expedition that was swerving in its lane. McCants owned the Expedition, but when the vehicle was stopped, he was sitting in the front passenger seat, and his friend, Trevis Harpe, was driving. Harpe’s hands shook badly when he handed his license to the officer, and the officer smelled burnt marijuana and Blunt Power air freshener as he interacted with Harpe and McCants. McCants acted oddly, thumbing through his wallet several times, touching the same piece of paper multiple times, before eventually giving the officer an “older insurance card” for the vehicle. Harpe continued to display nervous behavior as the officer was writing a traffic citation, repeatedly saying, “I know nothing.” The officer placed Harpe at the front of the vehicle and spoke to McCants, whom the officer testified was “extremely intoxicated.”

The officer asked McCants to step out of the vehicle and patted him down for weapons. The officer then searched the vehicle. He found a handgun between the front passenger seat and the center console, as well as ammunition. McCants admitted that the gun was his, but told the officer that he did not think he needed to mention it because it was registered.

The officer also found a backpack containing a “brick-sized object” wrapped in multiple layers of cellophane packaging that had been slit open, revealing a white, powdery substance. The backpack was under the passenger seat where McCants had been sitting. Later testing showed that the substance was cocaine weighing 987.98 grams and with a purity of 42.3 percent. The officer testified that, in his experience, this type of slit in the cocaine’s packaging indicated that the drug had been observed or tested prior to sale. The officer testified that the street value of this cocaine could range from about $30,000, if the approximately kilo-sized brick were sold whole, to more than $98,000 if it were cut up and sold in smaller portions for about $100 a gram.

The officer also found a large amount of cash on McCants and Harpe. McCants had $4,000 rubber-banded into $1,000 increments in one pocket and $367 in his other pocket. A narcotics agent testified that banding money into $1,000 increments is a common practice among drug dealers and that McCants told him he earned about $8.50 an hour. McCants testified that he made $18 an hour. The officer also found $1,587 on Harpe.

McCants and Harpe were tried jointly At trial, McCants testified that Harpe, whom he knew from school, had borrowed his Expedition to go to a strip club in Atlanta and that McCants rode along. McCants testified that he and Harpe left for Atlanta at about 6:30 p.m. and that the drive there from his home in Bonaire took about one-and-a-half hours. He testified that they picked up Harpe’s cousin, who got in the back seat of the Expedition with a black backpack and a shoe box. McCants testified that he had never seen, handled, or looked inside the backpack.

The testimony of McCants, Harpe, and Harpe’s cousin, Elzie Fulks, differed as to which strip club they had visited and how they got there. Harpe denied riding to the club in McCants’s vehicle, and Fulks testified that he does not know McCants and that he never got into the Expedition or placed the backpack inside it. Harpe testified that he saw McCants at the club and agreed to drive him home because he needed a ride and McCants was intoxicated. Harpe denied any knowledge of the backpack and said Fulks was never in the Expedition’s back seat.

McCants testified that he was carrying about $4,400 in cash because he had planned to buy rims at a shop in Atlanta for another vehicle he owned. However, he testified that he did not buy the rims because they were separated from the tires and would not fit in the Expedition.

The jury found McCants guilty, and he appeals. His sole enumeration of error is that there was insufficient evidence to convict him of trafficking as charged in the indictment. The indictment charged him, inter alia, with knowing possession of more than 400 grams of cocaine. McCants argues only that the State failed to prove that he knowingly possessed the amount indicated.

The applicable version of OCGA § 16-13-31 (a) (1) states:

Any person who ... is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine and, upon conviction thereof, shall be punished as follows: . . . (C) If the quantity of . . . the mixture involved is 400 grams or more, the person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $1 million.

(Emphasis supplied.) OCGA § 16-13-31 (a) (1). Our Supreme Court, in Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014), determined that the version of OCGA § 16-13-31 (a) (1) applicable here “contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it.” Given that “ ‘knowledge’ is made part of an offense, the State has the burden to prove the defendant’s guilty knowledge.” (Citation omitted.) Id. Even so, the jury could

find criminal intention, i.e., knowledge, upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Indeed, both knowledge and possession may be proved, like any other fact, by circumstantial evidence.

(Punctuation and footnotes omitted.) Freeman v. State, 329 Ga. App. 429, 432 (1) (765 SE2d 631) (2014).

When a conviction is based solely on circumstantial evidence, like the convictions in this case, the circumstantial evidence must not only be consistent with the hypothesis of guilt, but must also exclude every other reasonable hypothesis save that of the guilt of the accused. But not every hypothesis is a reasonable one; the evidence need not exclude every conceivable inference or hypothesis — only those that are reasonable.

(Citations, punctuation and emphasis omitted.) Blevins v. State, 291 Ga. 814, 816 (733 SE2d 744) (2012). The jury determines whether an alternate hypothesis offered by the defendant is reasonable, and this Court will only disturb a jury’s finding if it cannot be supported as a matter of law. Id.

The facts, as outlined above, authorized the jury to find that McCants was at least in joint constructive possession of the cocaine. McCants was the owner of the vehicle, but he was not driving it.

Under Georgia law, the owner of an automobile is presumed to be in possession and control of any contraband found in the automobile, but this presumption is rebuttable by evidence of equal access to the contraband by others. However, the equal access rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband. Possession may be joint or exclusive, and actual or constructive. Joint constructive possession with another will sustain a conviction for possession of contraband.

(Citations and punctuation omitted.) Jackson v. State, 314 Ga. App. 272, 274 (1) (a) (724 SE2d 9) (2012). Here, the evidence circumstantially shows that McCants and Harpe had equal access to the cocaine and had joint constructive possession of it. The cocaine was in a package that had been opened and stored directly under McCants’s seat. Both the drug and the hidden gun were within McCants’s reach. He was carrying a large amount of cash banded into $1,000 increments, and a narcotics agent testified that this was consistent with how drug dealers divide their money. McCants also displayed odd behavior when stopped by the officer, including repeatedly thumbing through his wallet. McCants, Harpe, and Fulks offered inconsistent explanations about where they had been and who had ridden in the Expedition. Taken together, the jury was authorized to conclude that these facts exceed mere spatial proximity to the drug and exclude every other reasonable hypothesis other than McCants’s guilt. Blevins, supra. See Taylor v. State, 263 Ga. App. 420, 422 (1) (587 SE2d 791) (2003) (jury authorized to believe handgun found in defendant’s car was there to protect illegal cocaine cargo). “As long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, the question of fact regarding constructive possession remains within the domain of the trier of fact.” (Citation and punctuation omitted.) Sabb v. State, 317 Ga. App. 537, 540 (731 SE2d 399) (2012).

The evidence also supports the jury’s inference that McCants knew the cocaine he was transporting weighed in excess of the 400 grams mentioned in the indictment, given the relatively short turnaround time on his trip between Bonaire and Atlanta, the fact that he had a concealed gun and ammunition, and the fact that the cocaine package stored under his seat had been opened, which the narcotics officer testified meant that the drugs had been looked at or tested. At 987.98 grams, the cocaine weighed more than twice the 400 grams charged in the indictment, was in excess of 35 times the weight of the statutory 28-gram threshold for a trafficking offense, and its purity was well in excess of that listed in the indictment or the statute. See Anderson v. State, 338 Ga. App. 171, 175-176 (5) (789 SE2d 363) (2016) (among other things, large amount of cocaine, defendant acting oddly, inconsistent stories, and short turnaround time on trip sufficient to support knowledge of trafficking amount); Summerville v. State, 332 Ga. App. 617, 618, 620 (1) (774 SE2d 190) (2015) (among other things, large amount of cash and marijuana well over trafficking amount sufficient to show knowledge); Robinson v. State, 331 Ga. App. 872, 877 (772 SE2d 223) (2015) (defendant and co-defendant’s inconsistent statements and possession of drugs nearly 10 times the trafficking amount, among other things, sufficient to show knowledge of trafficking amount) (physical precedent only). Compare Childs v. State, 330 Ga. App. 727, 730-731 (1) (769 SE2d 147) (2015) (evidence insufficient to show knowledge of trafficking amount where cocaine found was only slightly higher than trafficking amount, and there was no evidence to show defendant had weighed cocaine or was familiar with trafficking amounts). The large amount of cash McCants was carrying, divided into $1,000 increments as is common practice among drug dealers, also was circumstantial evidence of trafficking. See generally Mordica v. State of Ga., 319 Ga. App. 149, 154 (1) (b) (736 SE2d 153) (2012).

Decided September 28, 2016.

David J. Walker, for appellant.

James L. Wright III, District Attorney, Arkesia S. Jenkins, David V. Rhoden, Assistant District Attorneys, for appellee.

Viewing the evidence in favor of the jury’s verdict under the standard set forth in Jackson v. Virginia, supra, and given that the jury was properly charged as to the knowledge element of the trafficking offense as alleged in the indictment, we find that the jury was authorized to determine that sufficient evidence supported McCants’s trafficking conviction.

Judgment affirmed.

Doyle, C. J., and Andrews, R J., concur.

       This Court affirmed the cocaine trafficking conviction of McCants’ co-defendant, Trevis Harpe, in an unreported opinion. Harpe v. State, 330 Ga. App. XXVI (Case No. A14A2300) (February 19, 2015).

       McCants does not challenge his conviction for possession of a firearm during the commission of a felony.

       Although both parties’ briefs state that McCants’s wife owned the Expedition, the record indicates that McCants himself owned the vehicle.

       The current, amended version of OCGA § 16-13-31 omits the word “knowingly,” but as the amendment became effective July 1, 2013, it does not apply to McCants’s case as the underlying offense occurred in 2011. See Ga. L. 2013, p. 222, § 4.


author: Branch, Judge.

text:
    A16A1318.
    SUNTRUST BANK v. LILLISTON et al.
    (791 SE2d 614)
   Branch, Judge.

A party to a contractual arbitration clause may waive arbitration by acting inconsistently with that right to the prejudice of the other party In this case, the defendant litigated a case through discovery and placement of the case on the trial calendar without asserting its contractual right to arbitrate, but the plaintiffs dismissed their case before trial and filed a renewal action months later. In this case of first impression, we granted SunTrust’s application for interlocutory appeal to decide whether the defendant’s actions in the first litigation waived its right to arbitrate the renewal action. For the reasons that follow, we affirm the trial court’s determination that SunTrust waived its right to arbitrate.

For the purpose of the limited inquiry before us, the parties agree to the essential facts. The parties agree that the case arose out of two loan transactions and a “Swap Agreement” associated with financing for one or more automobile dealerships. In 2001, SunTrust Bank loaned approximately $500,000 to L-T Adventures, Inc. (“LTA”) in a transaction that did not include an arbitration provision. In 2005, SunTrust loaned approximately $2 million to Jedon Lilliston (a co-owner of LTA) and her former husband in a transaction that was guaranteed by LTA. And, in connection with this second loan, Sun-Trust, Lilliston, and her former husband entered into an “ISDA Master Agreement,” also known as the “Swap Agreement.” The Swap Agreement contains an arbitration clause that provides for mediation of disputes arising thereunder and, if mediation is unsuccessful, “any party may demand arbitration.”

A dispute regarding charged and collected interest eventually arose between the parties regarding both loan transactions and the Swap Agreement, and on April 9, 2013, Jedon Lilliston and LTA filed suit against SunTrust in the State Court of Chatham County The case was transferred to the Superior Court of Fulton County on August 8, 2014. On January 15, 2015, over 21 months after filing the complaint, the plaintiffs voluntarily dismissed their action. SunTrust never demanded arbitration in that action. On June 19, 2015, Lilli-ston and LTA filed the present renewal action in the Superior Court of Fulton County SunTrust answered and soon filed a motion to compel arbitration based on the arbitration provision contained in the Swap Agreement.

The trial court denied SunTrust’s motion to compel arbitration, and in so doing, it found that the Swap Agreement contained a valid agreement to arbitrate between the parties, that some of the claims at issue in the suit were subject to arbitration, but that SunTrust waived its right to compel arbitration based on its actions in the original litigation. The court found that SunTrust participated in the original litigation for more than a year and a half without raising the issue of arbitration, that SunTrust participated in discovery and filed a motion for summary judgment in the original action, and that the original action had been placed on the trial calendar before the plaintiff dismissed it. The court concluded therefore that SunTrust had “acted inconsistently with the right to arbitrate” and that “[t]he delay and cost associated with conducting discovery prejudiced the Plaintiffs.” SunTrust appeals this ruling.

“The standard of review of a trial court’s ruling on a motion to compel arbitration is whether the trial court was correct as a matter of law.” Order Homes v. Iverson, 300 Ga. App. 332, 333 (685 SE2d 304) (2009) (punctuation and footnote omitted).

The parties do not dispute that the Federal Arbitration Act governs the enforceability of their arbitration agreement. See 9 USC § 2. The relevant provision of the Act provides as follows:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 USC § 2. The language of this code section makes clear that arbitration is favored under the Act. See AT&T Mobility v. Concepcion, 563 U. S. 333, 339 (II) (131 SCt 1740, 179 LE2d 742) (2011) (“We have described this provision as reflecting both a ‘liberal federal policy favoring arbitration,’ and the ‘fundamental principle that arbitration is a matter of contract[.]’ ”) (citations omitted). But as explained by the Eleventh Circuit, “despite the strong policy in favor of arbitration, a party may, by its conduct, waive its right to arbitration.” S & H Contractors v. A. J. Taft Coal Co., 906 F2d 1507, 1514 (III) (11th Cir. 1990) (citations omitted). More specifically,

a party that substantially invokes the litigation machinery prior to demanding arbitration may waive its right to arbitrate. A party has waived its right to arbitrate if, under the totality of the circumstances, the party has acted inconsistently with the arbitration right, and, in so acting, has in some way prejudiced the other party[.]

Id. (citations and punctuation omitted). Thus, the trial court correctly followed well established law in holding that a party to an arbitration clause may waive its contractual right to arbitrate by acting inconsistently with that right to the detriment of the other party to the contract.

On appeal, SunTrust argues that the trial court erred as a matter of law because a renewal action under OCGA § 9-2-61 is a de novo action and that, as this Court has held, “[a] defendant is not estopped from raising a proper defense in a renewal action simply because that defense was not raised in the original action.” Adams v. Gluckman, 183 Ga. App. 666 (1) (359 SE2d 710) (1987); Fine v. Higgins Foundry & Supply Co., 201 Ga. App. 275, 276-277 (1) (b) (410 SE2d 821) (1991) (same). On this point, SunTrust relies heavily on Hornsby v. Hancock, 165 Ga. App. 543 (301 SE2d 900) (1983), in which a defendant did not object to venue in the plaintiff’s first malpractice action, which the plaintiff dismissed when the case was called for trial. Id. at 543. In response to the plaintiff’s later renewed action in the same court, the defendant moved to dismiss for lack of venue. Id. The trial court granted the motion, and on appeal, this Court affirmed and held that because the second action was a renewal of the first, it was in effect a de novo action during which the defendant could assert defenses not raised in the original action. Id. at 544. SunTrust concludes that because the existence of an agreement to arbitrate is a defense similar to lack of venue, it should be allowed to demand arbitration in the renewal action despite not raising it in the original action below.

Despite SunTrust’s argument to the contrary, Hornsby is in fact consistent with the trial court’s ruling. In the present action, the trial court did not hold that SunTrust was barred from demanding arbitration in the renewal action simply because it failed to raise the issue in the original action. Rather, in the renewal action the court considered SunTrust’s demand for arbitration but found that SunTrust had waived its right to arbitrate by acting inconsistently with that right during the original action. The trial court’s reasoning recognizes the possibility that if the original action had proceeded differently, Sun-Trust might not have waived its right to arbitrate in a renewal action. For example, if the plaintiff had dismissed the original action before SunTrust acted inconsistently with its right to arbitrate, SunTrust would not have waived that right in the renewal action. Or if SunTrust’s actions in the first action, although inconsistent with its right to arbitrate, did not cause any prejudice to the plaintiffs, then SunTrust would not have waived its right to arbitrate in the renewal action. Thus, Hornsby supports the trial court’s decision because Hornsby did not bar SunTrust from raising arbitration in the renewal action. Rather, its motion to compel arbitration was denied for an independent reason, namely waiver.

Decided September 28, 2016

Morris, Manning & Martin, David W. Cranshaw, Simon R. Malko, for appellant.

Savage, Turner & Pinckney, Brent J. Savage, Brent J. Savage, Jr., for appellees.

“The question of what constitutes a waiver of the right of arbitration depends on the facts of each case.” USA Payday Cash Advance Center # 1 v. Evans, 281 Ga. App. 847, 850 (637 SE2d 418) (2006) (punctuation and footnote omitted). Here, the trial court concluded that SunTrust had waived its right to arbitration by participating in discovery and by filing a motion for summary judgment in the original litigation without raising the issue of arbitration for more than a year and a half, causing the case to end up on the trial calendar. SunTrust does not dispute these findings of fact. The trial court also found that “the delay and cost associated with conducting discovery prejudiced the [appellees].” See Morewitz v. West of England Ship Owners Mut. Protection and Indem. Assn., 62 F3d 1356, 1366 (II) (C) (4) (11th Cir. 1995) (“Prejudice has been found in situations where the party seeking arbitration allows the opposing party to undergo the types of litigation expenses that arbitration was designed to alleviate.”) (citations omitted). As held in USA Payday, “we cannot overturn the factual findings underlying the trial court’s conclusion because based on the record, we cannot say that they are clearly erroneous.” USA Payday, 281 Ga. App. at 851 (footnote omitted). Given that SunTrust does not challenge the trial court’s underlying factual findings and because the trial court correctly held that a party may waive its right to arbitrate a renewal action by taking actions in the corresponding original action that prejudice that opposing party, we find no error in the trial court’s denial of SunTrust’s motion to compel arbitration.

Judgment affirmed.

Ellington, P. J., and Mercier, J., concur.

       See Court of Appeals Rule 25 (b) (1) (“Except as controverted [by the appellee], appellant’s statement of facts may be accepted by this Court as true.”).

       SunTrust does not dispute these factual findings. And although the record of the original action has not been included in the record before us, it is well established that a trial court “may take judicial notice of records in the same court.” In the Interest of J. P. V., 261 Ga. App. 194, 196 (2) (582 SE2d 170) (2003) (punctuation and footnote omitted). Cf. Belcher v. Folsom, 258 Ga. App. 191, 192 (573 SE2d 447) (2002) (where “the renewed action was filed in the same court as the original action, the trial court could take judicial notice of the physical record from the original action in determining if the renewed action met the tests for renewal”).