text:
    A13A1082.
    BLANCHARD v. THE STATE.
    (750 SE2d 183)
   BARNES, Presiding Judge.

Sylvester Blanchard appeals his convictions for DUI-less safe (alcohol) and unsafe tires. He contends that he received ineffective assistance of counsel because trial counsel did not present evidence that his diabetes could have contributed to his behavior at the time of his arrest, and thus the trial court should have granted his motion for a new trial. For the reasons stated below, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that Blanchard’s tire “blew out” as he was driving home around midnight. A motorist who observed the blow-out and subsequent shredding of the tire called 911 to report the incident when Blanchard did not slow down or change course. Police arrived at Blanchard’s residence to find him “passed out” in the driver’s seat, still wearing his seat belt and with the key in the ignition. Upon waking Blanchard, officers noted the “strong odor of an alcoholic beverage” on his breath, slurred speech, confusion, lack of coordination, and glassy, bloodshot eyes. Blanchard agreed to submit to a portable Breathalyzer test, which was positive. Blanchard was arrested for DUI and unsafe tires. When the officers asked him for another breath test at the precinct, Blanchard refused. Blanchard testified that he did not take the second test because he was not intoxicated, and that the only alcohol he had consumed was a small amount of Four Loko, an energy drink that contains alcohol. He further testified that, had he been intoxicated, he would have agreed to the test and pled guilty to the charge, as he did in 2008. The jury found Blanchard guilty on both counts.

At his motion for a new trial hearing, the physician’s assistant who treated Blanchard for diabetes testified that, in extreme conditions, a diabetic may become very hyperglycemic or very hypoglycemic, and that the symptoms of these conditions may mimic intoxication. He could not confirm whether these conditions would result in a false positive for alcohol on a Breathalyzer test.

Blanchard’s trial counsel testified that Blanchard did not disclose that he was diabetic until three days before trial. He further testified that, although he did not request a continuance to try to retain an expert witness, nor did he request funds from the public defender’s office to hire one, he had elicited testimony from the State’s expert witness that symptoms of diabetes can be mistaken for intoxication.

The trial court denied the motion for a new trial, and Blanchard appeals from that order. Blanchard maintains that he did not receive effective assistance of counsel because trial counsel did not follow up on his diabetes disclosure by requesting a continuance to investigate it as a possible defense, and did not procure an expert witness or medical professional to testify about the way that the symptoms of diabetes may mimic intoxication.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must demonstrate that counsel’s performance was deficient and that there is a reasonable probability that the result at trial would have been different but for counsel’s deficiency. Lynch v. State, 291 Ga. 555, 556 (2) (731 SE2d 672) (2012). See also Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). “If [Blanchard] fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” Lynch, 291 Ga. at 556 (2).

The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous.

Sarratt v. State, 299 Ga. App. 568, 569 (2) (683 SE2d 10) (2009).

Blanchard maintains that counsel should have requested a continuance and funds to hire an expert witness after he revealed his medical condition. Alternatively, he contends that counsel should have subpoenaed the physician’s assistant who has treated him for diabetes to testify about the disease. “In Georgia, 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.” (Citation and footnote omitted.) Carter v. State, 265 Ga. App. 44, 48 (4) (593 SE2d 69) (2004). Trial counsel testified at the hearing for a new trial that he and Blanchard had agreed from their first meeting that their defense would be fatigue because Blanchard had worked long hours and had eaten very little on the day of his arrest. After Blanchard’s disclosure of his medical condition, counsel incorporated the new information into the planned testimony and elicited testimony from the State’s expert witness that diabetics sometimes exhibit symptoms consistent with intoxication. “Trial tactics and strategy . . . 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 footnote omitted.) Sarratt, 299 Ga. App. at 571 (2) (c).

Blanchard contends that his medical provider’s testimony could have created a reasonable doubt that his conduct was the result of intoxication by providing information about how a diabetic’s daily food and drug intake may affect behavior. However, when Blanchard’s treating physician’s assistant testified at the new trial hearing, he could not confirm whether diabetes alone could result in a positive portable breath test. Thus, his testimony that the symptoms of diabetes may mimic those of intoxication was merely cumulative of that presented by the State’s expert at trial. “The failure to call an expert at trial does not prejudice the defendant if the expert’s testimony would have been cumulative of testimony elicited from other witnesses by defense counsel during trial.” Rolland v. State, 321 Ga. App. 661, 668 (3) (a) (742 SE2d 482) (2013). “[Blanchard] has failed to show how this witness’ testimony would have changed the outcome of the trial when the same evidence [he] contends [the witness] would have testified to was admitted through other witnesses.” Gibson v. State, 290 Ga. 6, 12 (6) (b) (717 SE2d 447) (2011); see also Wesley v. State, 286 Ga. 355, 358 (3) (h) (689 SE2d 280) (2010) (no ineffective assistance based on counsel’s failure to present cumulative evidence).

“To establish the prejudicial effect of trial counsel’s failure to present certain evidence, an appellant is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of the case.” White v. State, 293 Ga. App. 241, 242 (1) (666 SE2d 618) (2008). This Blanchard has not done. Accordingly, as Blanchard has not shown a reasonable probability that the outcome of the trial would have been different had trial counsel requested a continuance and called an expert, the trial court did not err in finding Blanchard’s ineffectiveness claim meritless, and thus, denying his motion for new trial.

Decided October 18, 2013.

Anne P. Rodman, for appellant.

Larry Chisolm, District Attorney, Timothy W. Ruffini, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A1006.
    PIERRE v. ST. BENEDICT’S EPISCOPAL DAY SCHOOL.
    (750 SE2d 370)
   DOYLE, Presiding Judge.

Kenya Pierre appeals from the grant of summary judgment to St. Benedict’s Episcopal Day School (“the School”) in the School’s breach of contract suit against her for failure to pay tuition and other charges. Pierre contends that the trial court erred because (1) a genuine issue of material fact exists as to whether the parties mutually departed from the terms of the contract, (2) the liquidated damages clause was unenforceable, and (3) the Prophecy rule was not applicable in this case. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment asa matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Pierre is the mother of two daughters who were enrolled at the School, as well as a third, younger daughter attending a separate pre-school program affiliated with the School. On February 15,2011, Pierre executed two identical contracts with the School reflecting the 2011-2012 re-admission of the two older daughters and Pierre’s promise to pay tuition for them both:

In consideration of, and subject to, the acceptance of this Enrollment Contract by [St. Benedict’s School] each of the undersigned parent(s)... jointly and severally agrees to pay the full year’s tuition specified below for the student specified above. . . . The tuition amount (less the amount of the tuition deposit) is due in full on or before June 1,2011, unless the undersigned elect(s) [an extended payment option or financing agreement], . . .
A tuition deposit of $818.80 must accompany this Enrollment Contract to constitute a valid acceptance of enrollment at the School. The tuition deposit is non-refundable. If the [SJchool is notified in writing on or before June 1, 2011 that the Student will not attend for the 2011-12 academic year the financial obligations to pay additional tuition for the academic year will be released. After June 1, 2011, there will be no tuition refunds or waiving of obligations to pay the additional tuition for the academic year.[]
The [parents] agree that in the event the above-named Student voluntarily withdraws from the School, or is suspended, dismissed or expelled from the School for any reason on or after the first day of classes, the full year’s tuition is due and payable by the Responsible Parties to the School as full compensatory liquidated damages under this Enrollment Contract, and not as a penalty; and that it is impossible to more precisely estimate the damages to be suffered by the School in the event of such withdrawal, suspension, dismissal or expulsion. The Responsible Parties acknowledge and agree that the School has needs and expectations for such tuition and has planned for payments of such tuition irrespective of any operating budget surplus that the School may have for such school year. . . .
This Enrollment Contract contains the entire agreements of the parties and supersedes all prior agreements, written or oral, between the parties. This Enrollment Contract may not be amended except in a written document signed by all parties that expressly acknowledges such amendment(s). Time is of the essence in this Enrollment Contract.

On April 1, 2011, the School’s director of admissions, Anne Shamanski, telephoned Pierre and notified her that Pierre’s youngest daughter would not be admitted to kindergarten for the 2011-2012 year because the daughter’s fifth birthday, on June 29, was considered too late. Shamanski recommended that the younger daughter remain in the separate pre-school program that she already attended at the School. Pierre replied that she would not keep her daughter in pre-school for another year and that she would send her daughter to a different kindergarten. Pierre also informed Shamanski over the phone that her other two daughters would not be attending the School in the 2011-2012 year.

A few weeks later, Shamanski e-mailed Pierre letting her know that the youngest daughter had been accepted into the kindergarten program and attaching a contract to the e-mail. Pierre did not sign the contract.

Over the ensuing weeks, Shamanski placed a number of phone calls to Pierre to determine if Pierre had changed her mind about enrolling her daughter in kindergarten. Pierre replied over the phone that she would not be enrolling any of her daughters at the School.

On June 16, 2011, Pierre’s husband sent an e-mail (from himself and Pierre) to Shamanski informing her that, due to financial reasons, none of their daughters would be attending the School in the 2011-2012 school year. Also in June, Pierre encountered a snafu while enrolling her youngest daughter at a mini-camp at the School, and Pierre was incorrectly informed of a balance on her account for previous after-school care. Pierre provided receipts showing her after-school care payment, and after several rounds of fruitless communications, Pierre was not able to resolve the camp and after-school care billing dispute. The final communication about the camp and after-school care billing dispute was in July 2011; Pierre did not make any further payments to the School.

In December 2011, Pierre received a demand letter from a law firm representing the School seeking payment of $16,524.96 in tuition plus $335.93 in interest. Pierre did not pay the demand, and in January 2012, the School sued Pierre for breach of the tuition contract. Pierre answered, counterclaimed, and later moved for summary judgment or to dismiss the complaint. The School subsequently moved for summary judgment, and, following a hearing, the trial court denied Pierre’s motion to dismiss and granted the School’s motion for summary judgment. Pierre now appeals.

1. Pierre contends that the trial court erred by granting summary judgment to the School because a question of fact exists as to whether the parties mutually departed from the terms of the contract, which would require the School to give notice to Pierre that it would require strict compliance with the June 1 notice deadline. We disagree.

Pierre relies on OCGA § 13-4-4, which provides:

Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.

“For a departure from the terms of a contract to be sufficient to require notice by one of the parties of his or her intention to insist upon strict compliance with the contract, the departure must be mutual and intended, such that the parties have essentially a new agreement concerning the requirements of the original contract.” The question of mutual departure is ordinarily for the factfinder, but it may be decided by the court on a motion for summary judgment in the absence of evidence to support such a finding.

Here, Pierre argues that the School’s historically flexible execution of contracts demonstrates its departure from enforcing the notice requirement for the withdrawal of her students from the School. But Pierre relies on her alleged experience in prior years and on her fruitless negotiations with the School over separate aftercare and summer camp obligations, and she points to no evidence that the School, by its conduct in 2011, intended to create a new agreement as to her obligations in the 2011-2012 contract itself. The 2011-2012 contract contained a merger clause and explicitly required any modifications to be in writing. Evidence purporting to show “the modification of other, separate contracts [cannot] constitute evidence of a ‘mutual departure’ from this contract within the meaning of OCGA § 13-4-4. Any evidence of a departure from the terms of [other] contracts has no bearing upon the outcome of the case sub judice.”

Further, although Pierre averred that she was never invoiced for the 2011-2012 tuition payment, and that it was not a usual practice for the School to provide invoices or receipts, nothing in the contract predicates Pierre’s obligation to pay on her receipt of an invoice or billing statement. The contract unambiguously states that the full tuition amount is due “on or before June 1, 2011,” and the obligation was created upon execution by Pierre and acceptance by the School. It is undisputed that Pierre failed to provide written notice of her daughters’ withdrawal from the School before June 1, 2011, as required by the contract. Accordingly, the trial court correctly found no genuine issue of material fact supporting Pierre’s defense of mutual departure.

2. Pierre also contends that the trial court erred by ruling that her obligation to pay full tuition was a liquidated damages clause and not an unenforceable penalty. We disagree.

If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby. A liquidated damages provision is enforceable if (1) the injury caused by the breach is difficult or impossible to estimate accurately, (2) the parties intended to provide for damages rather than a penalty, and (3) the stipulated sum is a reasonable estimate of the probable loss. The party who defaults on a contract has the burden of proving that a liquidated damages provision is an unenforceable penalty.

(a) Pierre asserts that the measure of damages for her withdrawal after June 1 is not difficult to estimate accurately, in part because the contract provides for a deposit of $818.80, which Pierre argues is the real measure of damages. But this ignores the School’s need to plan and budget for the school year and the fact that the School was not fully enrolled for the grades in which her daughters attended. The School presented evidence that it operated at a deficit, and tuition, even at full enrollment, did not cover expenses. It is clear that the impact of the withdrawal of a student could not be estimated accurately because the School’s budgeting decisions are made in March of each year for the following fall. Based on the record, Pierre did not meet her burden to show that the injury caused by her late withdrawal was difficult to accurately estimate.

(b) Pierre also failed to show that the parties intended the tuition payment obligation to be a penalty and not damages. “Whether a provision represents liquidated damages or a penalty does not depend upon the label the parties place on the payment but rather depends on the effect it was intended to have and whether it was reasonable.” It is undisputed that the amount owed is the tuition amount, which is set to defray the costs of holding a spot open for a student, as opposed to an arbitrary or punitive amount. The record shows that the contract’s structure of a deadline for withdrawal evinces no intent to penalize the parents; rather it affords the School a way to plan and budget for the coming school year according to enrollment numbers. Accordingly, Pierre has not shown that the tuition payment was an unenforceable penalty.

(c) Likewise, Pierre failed to show that the stipulated tuition payment was an unreasonable estimate of the probable loss. As noted above, the School operated at a deficit in the 2011-2012 year, and tuition payments do not cover expenses even at full enrollment.

The withdrawal of a student would, absent the liquidated damages provision, result in a loss of the expected tuition and an increase in the [Sjchool’s deficit. Based on the evidence, [Pierre is] unable to meet [her] burden of showing that the contractual stipulation of one year’s tuition as damages is a penalty because it is not a reasonable estimate of the [S]chool’s probable loss for a breach.

3. Finally, Pierre argues that the trial court improperly applied the Prophecy rule against her to reconcile evidence that she orally told the School of her withdrawal of her daughters in April 2011 because her youngest daughter had not been accepted with evidence that her husband e-mailed the School their withdrawal for financial reasons on June 16, 2011.

Decided October 21, 2013.

M. Katherine Durant, for appellant.

Stokes, Lazarus & Carmichael, William K. Carmichael, Rachel Humphrey, for appellee.

Under Prophecy, a trial court that is faced with a party’s self-contradictory sworn testimony on a material fact should disregard the portions of that testimony that favor the party when deciding a motion for summary judgment, unless the party offers a reasonable explanation for the contradiction. The Prophecy rule applies only to self-contradictions in a party’s sworn testimony. It does not apply to unsworn statements, non-party witness testimony, or contradictions between a party’s testimony and another person’s testimony.

Here, the purported testimony was not contradictory in any material way. Pierre orally notified the School in April, and notified the school in writing on June 16. There is no relevant contradiction to be resolved, and the Prophecy rule has no bearing on the question of when the School was notified in writing of the withdrawal of Pierre’s daughters. Nevertheless, in light of our rulings in Divisions 1 and 2, this enumeration presents no basis for reversal.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

      (Emphasis supplied.)

       (Emphasis supplied.) Duncan v. Lagunas, 253 Ga. 61, 62 (1) (316 SE2d 747) (1984).

       See Circle K Stores v. T. O. H. Assoc., 318 Ga. App. 753, 755-756 (1) (734 SE2d 752) (2012) (noting that the mutual departure defense ordinarily raises a jury question but granting summary judgment in the absence of evidence to support the defense); Salahat v. Fed. Deposit Ins. Corp., 298 Ga. App. 624, 629 (3) (680 SE2d 638) (2009) (granting summary judgment).

       (Punctuation omitted; emphasis in original.) Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 187 (1) (474 SE2d 56) (1996).

       (Punctuation and footnotes omitted.) Turner v. Atlanta Girls’ School, 288 Ga. App. 115, 116 (653 SE2d 380) (2007).

       Pierre’s inclusion in the record of an advertisement for fall openings in classes not attended by her daughters does not preclude summary judgment because in the face of direct testimonial evidence from the School about its fall enrollment capacity, “[g]uesses or speculation which raise merely a conjecture or possibility, . . . are not sufficient to create even an inference of fact for consideration on summaryjudgment.” Cagle Constr. v. Travelers Indem. Co., 305 Ga. App. 666, 669 (1) (700 SE2d 658) (2010).

        Turner, 288 Ga. App. at 117.

       See id.

       Id.

       (Footnotes omitted.) CSX Transp. v. Belcher, 276 Ga. 522, 523 (1) (579 SE2d 737) (2003).


author: Miller, Judge.

text:
    A13A1285.
    VAUGHN v. THE STATE.
    (750 SE2d 375)
   Miller, Judge.

On March 30, 2011, Mark Anthony Vaughn entered a nonnegotiated guilty plea to one count of theft by deception (OCGA § 16-8-3 (a)) from his employer, Rome Electric Motor Works, Inc., and was sentenced to ten years, to serve two and a half with the balance on probation. At the time of his sentencing, the trial court noted that the matter of restitution was to be determined at a later time. Following a hearing on September 26, 2012, after the completion of his prison sentence, Vaughn was ordered to pay his former employer $260,637.02 as restitution.

Vaughn appeals from that order, arguing that the restitution as ordered included amounts taken outside of the dates charged in the accusation and beyond the civil statute of limitation and that the trial court did not follow the mandate of OCGA § 17-14-10. For the reasons set out below, we reverse and remand this case to the trial court.

On appeal from a restitution order, this Court reviews the record “to determine whether each party has met his or her specified burden and whether a restitution award was supported by the preponderance of the evidence.” (Citation and punctuation omitted.) In the Interest of E. W., 290 Ga. App. 95, 96 (2) (658 SE2d 854) (2008).

The record shows that the accusation, filed September 15, 2010, charged Vaughn and co-defendant William Hackworth with theft by deception in that they, “between the dates of the 12th day of January, 2008 and the 10th day of January, 2010,... did then and there obtain property, to wit: MONETARY FUNDS, . . . belonging to ROME ELECTRIC MOTOR WORKS” by facilitating and accepting fraudulent payments for which no goods or services were obtained. (Emphasis supplied.) The amount reportedly taken during that period was approximately $57,000. The restitution order, however, required Vaughn to repay $260,637.02 based on his and Hackworth’s theft of funds over a nearly 12-year period from May 1998 through February 2010.

Robert Bowling from Rome Electric testified at the sentencing hearing that Vaughn was in charge of ordering supplies and was allowed to initial his own invoices, which the company then paid. Hackworth would send in fake invoices, which Vaughn initialed and the company paid. Bowling estimated that about a quarter million dollars had been taken over ten years. During this hearing, Vaughn acknowledged that he had personally benefitted from approximately $70,000 of the stolen money.

William Bowling, brother of Robert and another officer of the company, testified at the restitution hearing and presented a tabulation of all the fraudulent invoices, beginning May 14, 1998 and ending February 12, 2010, totaling $260,637.02. William Bowling also testified that, when the theft was initially reported to police in 2011, the dates of false invoices reported were from January 12, 2008 through February 21, 2010, amounting to $57,000. Bowling also said that he told the detective that this was just the beginning.

During the restitution hearing, Vaughn argued that restitution should be limited to the period within the dates set out in the accusation and stated that he had relied on the dates and amounts in the accusation and the State’s file. Upon the court’s inquiring of counsel if he were limited to the dates in the accusation, the State responded

[t]he only thing that I can suggest to the Court, the way the indictment read[s] is between two specific dates. Some indictments say on or about a certain date. This one ... alleged a beginning and an ending date. That was what was presented to the police at the time the arrest was made.

Vaughn argues that the restitution as ordered included amounts taken outside of the dates charged in the accusation and beyond the civil statute of limitation and that the trial court did not follow the mandate of OCGA § 17-14-10. We agree.

Restitution forces criminal defendants to take responsibility for damage they have caused, helps deter crime, and “is punishment when ordered as part of a criminal sentence.” Harris v. State, 261 Ga. 859, 860 (2) (413 SE2d 439) (1992).

At a restitution hearing, the State has the burden of demonstrating the amount of loss sustained by the victim by the preponderance of the evidence, OCGA § 17-14-7 (b), and the amount of restitution ordered shall not exceed the victim’s damages. OCGA § 17-14-9. OCGA § 17-14-2 (2) defines “damages” for purpose of the restitution statute as “all special damages which a victim could recover against an offender in a civil action,... based on the same act or acts for which the offender is sentenced[.]” (Emphasis supplied.) See also Mayfield v. State, 307 Ga. App. 630, 631 (2) (b) (705 SE2d 717) (2011). The statute of limitation for a civil suit for recovery of converted funds is four years after the right of action accrues. OCGA § 9-3-32.

As charged, the accusation fell within the four-year statute of limitation for prosecution of theft by deception and was the basis upon which Vaughn was sentenced. OCGA § 17-3-1 (c). Had the State charged Vaughn with theft by deception for the entire 12-year period for which restitution was ordered, it would have been required to allege in the accusation an exception to the statute of limitation in each count of the indictment to which it applied. Jenkins v. State, 278 Ga. 598, 604 (1) (B) (604 SE2d 789) (2004) (exception to the statute of limitation must be pled in the indictment if the State is relying on one); Jannuzzo v. State, 322 Ga. App. 760, 762 (1) (746 SE2d 238) (2013) (State alleged in the indictment that the accused and the crime were unknown to the State, tolling the statute); State v. Barker, 277 Ga. App. 84, 87 (3) (625 SE2d 500) (2005) (indictment is fatally defective if it appears on its face that the statute oflimitation has run unless the indictment also alleges one or more of the exceptions which would remove the bar of the statute). The State did not do so in this case, and there is no evidence that any of the exceptions would have applied.

Although acknowledging the two-year time span included in the accusation, the trial court nonetheless ordered restitution for the entire twelve-year period. The trial court, relying on Stack-Thorpe v. State, 270 Ga. App. 796, 798-799 (1) (608 SE2d 289) (2004), found that the prosecution was not limited by OCGA § 17-3-1 (c), “as the series of transactions constituted a single theft, the theft was not discovered until February 2009, and the indictment was made within four years after that discovery.” While this statement is accurate, as noted above, the indictment in this case did not allege, as required, the tolling statute and, therefore, the prosecution could not go beyond the four-year statute oflimitation contained in OCGA § 17-3-1 (c). Barker, supra, 277 Ga. App. at 87 (3).

Because Vaughn pled guilty, we take this opportunity to overrule Beall v. State, 252 Ga. App. 138, 139 (3) (555 SE2d 788) (2001), to the extent that it holds that “entry of a guilty plea waives statute of limitation defenses.”

The only case cited in Beall for that proposition, State v. Barrett, 215 Ga. App. 401 (451 SE2d 82) (1994), involved a negotiated plea agreement which contained an express waiver of the statute of limitation and was based on contract principles. As noted in Barrett, supra, 215 Ga. App. at 405, there is no absolute bar to a defendant’s waiver of the protection of the statutes of limitation.

A defendant may waive rights which exist for his own benefit, but he may not waive those which belong to the public generally. ... As the protection afforded by [statutes oflimitation] is statutory in origin, does not affect the court’s jurisdiction, and is personal to an individual defendant, it is comparable to the speedy trial provisions of OCGA § 17-7-171, which can be waived.

Decided October 21, 2013.

Stephen F. Lanier, for appellant.

Leigh E. Patterson, District Attorney, Harold W. Goldin, Jr., Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Barrett, supra, 215 Ga. App. at 405-406 (2). Having entered into plea negotiations resulting in his receiving first offender status and having expressly waived his statute of limitation defense in his plea agreement, Barrett was bound by his contractual waiver.

In Beall v. State, supra, the accused probate judge pled guilty to an accusation alleging violation of her oath of office without any plea agreement with the State. Following a restitution hearing, Beall was ordered to pay $54,000, which included monies taken during a four-month period outside the statute of limitation. This Court, citing only Barrett, supra, rejected her argument that she could not be required to pay restitution for those four months, stating only that “entry of a guilty plea waives statute of limitation defenses.” As set out above, that is not the holding of Barrett, and we reverse Beall.

Vaughn’s plea agreement contained no language indicating that he was waiving his statute of limitation defense. Instead, he explicitly argued at the restitution hearing that the trial court could not assess him damages outside of the statute of limitation.

Therefore, because the trial court ordered restitution beyond the period encompassed by the accusation and the civil statute of limitation, we reverse and remand this case for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

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

       Hackworth died prior to Vaughn’s sentencing hearing.

       The amount of the victim’s damages is only one factor for a court to consider in determining the amount of restitution. The sentencing court must also consider the offender’s present financial condition and future earning capacity, as well as the goal of rehabilitation of the offender. OCGA § 17-14-10.

       The exceptions are where the accused is not usually and publicly a resident of this state; where the accused and the crime are unknown; where the accused is a government officer or employee and the crime charged is theft by conversion of public property while such an officer or employee; and where the accused is a guardian or trustee and the crime charged is theft by conversion of property of the ward or beneficiary. OCGA § 17-3-2.


text:
    A13A1516.
    MYERS et al. v. FIRST CITIZENS BANK & TRUST COMPANY, INC.
    (750 SE2d 378)
   DOYLE, Presiding Judge.

First Citizens Bank & Trust Company, Inc. (“the Bank”), filed suit against Gary and Toni Myers seeking to recover on two promissory notes. The trial court granted summary judgment to the Bank, awarding judgment in specific amounts. The Myerses appeal, arguing that (1) the trial court erred by granting summary judgment to the Bank because the Bank failed to rebut their affirmative defense that the Bank negligently failed to comply with federal regulations regarding lending policies; and (2) the Bank failed to prove the amount due under the notes. For the reasons that follow, we affirm the grant of summary judgment as to liability, but vacate the judgment amount and remand the case for damage calculation.

A party is entitled to summary judgment where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. . . ,”

On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence. To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact. On appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to . . . the nonmoving parties.

So viewed, the record shows the Myerses purchased two lots in the Currahee Club subdivision in Stephens County in 2006. On April 24, 2009, they refinanced the original promissory notes by executing two new promissory notes in favor of the Bank, one in the amount of $140,938.47 and the other in the amount of $130,589.84. On September 19, 2011, the Bank filed suit against the Myerses for nonpayment of the promissory notes, seeking principal, interest, and attorney fees. The Bank subsequently filed a motionfor summary judgment, relying upon the affidavit of a Bank officer. The trial court granted the motion following a hearing, entering judgment in favor of the Bank and against the Myerses (1) as to the first note: principal, interest, and attorney fees in the amount of $175,588.92, plus interest thereafter; and (2) as to the second note: principal, interest, and attorney fees in the amount of $160,274.99, plus interest thereafter. This appeal followed.

1. The Myerses argue that the trial court erred by granting summary judgment to the Bank “because the Bank failed to carry its burden of establishing the non-existence of the [Myerses’] defense that the Bank negligently failed to comply with federal regulations regarding lending policies.” We disagree.

In a suit to enforce a promissory note, it is well established that a plaintiff establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant^] can establish a defense.

Here, the Myerses allege that the Bank’s undisputed failure to create and maintain written policies regarding its monitoring of current market conditions in violation of federal regulations — 12 CFR § 365.2 — constituted negligence. According to the Myerses, they properly raised this negligence as an affirmative defense below, and the Bank’s subsequent failure to meet its burden to establish the nonexistence of this defense precludes summary judgment. There is no authority, however, for the Myerses’ position that the violation of this federal regulation constitutes an affirmative defense. Thus, the trial court did not err by rejecting this argument.

2. Although the Myerses’ argument regarding liability is without merit, we agree that the trial court erred by entering judgment because the Bank failed to prove the amount due under the promissory notes.

In support of its summary judgment motion, the Bank relied upon the affidavit of Regis Sakalik, the Bank’s credit resolution officer and senior vice president. Sakalik averred that he “ha[s] knowledge of the facts set forth in [the affidavit,” and he stated the amounts due to the Bank on both promissory notes, including single figures for both principal and interest, plus attorney fees. Sakalik did not explain how such damages were calculated, and the only documents attached to his affidavit as exhibits were copies of the promissory notes. The Bank provided no evidence regarding the amounts, if any, that the Myerses had paid toward the notes, nor did it provide a basis for the attorney fee or interest calculations.

“[Wjhere a party sues for damages, [it] has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty.” The Bank

offered no testimony or any documentation explaining its method of calculating the specific amounts sought, such as evidence of [the Myerses’] . . . payment history or evidence showing how it calculated the interest or attorney fees sought. Where, as here, we cannot be certain of the amounts due under the terms of the agreement without reference to evidence outside the pleadings, the amounts are unliquidated and must be established____Because the pleadings do not contain evidence from which the trial court could confirm [the Bank’s] calculations of its purported damages, we must vacate and remand.

Decided October 21, 2013.

John E. Taylor, for appellants.

Sanders & Ranch, Brian C. Ranch, for appellee.

Judgment affirmed in part and vacated in part, and case remanded.

McFadden and Boggs, JJ., concur.

       OCGA § 9-11-56 (c).

       (Punctuation and footnotes omitted.) Capital City Developers v. Bank of North Ga., 316 Ga. App. 624, 624-625 (730 SE2d 99) (2012).

       The notes provided that in the event of default, the Bank may demand “the entire unpaid principal balance under [the Note] and all accrued unpaid interest immediately due,” as well as attorney fees, including the Bank’s “costs of collection, including court costs and ... 15 [percent] of the principal plus accrued interest.”

       (Punctuation and footnote omitted.) Trendmark Homes v. Bank of North Ga., 314 Ga. App. 886, 887 (726 SE2d 138) (2012).

       12 CFR § 365.2 provides:
      (a) Each insured state nonmember bank shall adopt and maintain written policies that establish appropriate limits and standards for extensions of credit that are secured by liens on or interests in real estate, or that are made for the purpose of financing permanent improvements to real estate.
      (b) (1) Real estate lending policies adopted pursuant to this section must:
      (1) Be consistent with safe and sound banking practices;
      (ii) Be appropriate to the size of the institution and the nature and scope of its operations; and
      (iii) Be reviewed and approved by the bank’s board of directors at least annually.
      (2) The lending policies must establish:
      (i) Loan portfolio diversification standards;
      (ii) Prudent underwriting standards, including loan-to-value limits, that are clear and measurable;
      (iii) Loan administration procedures for the bank’s real estate portfolio; and
      (iv) Documentation, approval, and reporting requirements to monitor compliance with the bank’s real estate lending policies.
      (c) Each insured state nonmember bank must monitor conditions in the real estate market in its lending area to ensure that its real estate lending policies continue to be appropriate for current market conditions.
      (d) The real estate lending policies adopted pursuant to this section should reflect consideration of the Interagency Guidelines for Real Estate Lending Policies established by the Federal bank and thrift supervisory agencies.

       Specifically, the Myerses allege that “[b]ut for [the Bank’s] lack of such policies, the Bank may have learned of the insolvency of the owners of The Currahee Club and... problems with the sewer systems and, as it should have done, taken them into account when determining whether to make loans to the [Myerses].” (Emphasis supplied.) The Myerses do not contend that the Bank was aware of problems with the septic sanitary sewer system or of the insolvency of the subdivision at the time it issued the loans.

       In fact, the only published case addressing this argument soundly rejected it. See Intervest Mtg. Investment Co. v. Skidmore, 655 FSupp.2d 1100, 1103-1104 (III) (A) (E.D. Cal. 2009) (rejecting the defendants’ attempt to characterize the bank’s failure to comply with 12 CFR § 365.2 as an affirmative defense to breach of contract).

       (Punctuation omitted.) Alexander v. Wachovia Bank, Nat. Assn., 305 Ga. App. 641, 642 (700 SE2d 640) (2010) (quoting Tucker Nursing Center v. Mosby, 303 Ga. App. 80, 82 (1) (692 SE2d 727) (2010)).

       (Citations and punctuation omitted.) Alexander, 305 Ga. App. at 643 (quoting Morgan v. Wachovia Bank, N.A., 237 Ga. App. 257, 258 (2) (514 SE2d 239) (1999)).


text:
    A13A1068.
    DELL v. DELL.
    (748 SE2d 703)
   Miller, Judge.

This appeal arises from Dwain and Sarah Dell’s petition for the termination of Leah M. Dibello Dell’s parental rights to her natural child, and stepmother Sarah Dell’s petition to adopt the child. The juvenile court sitting by designation in the superior court terminated Leah Dell’s parental rights and granted Sarah’s adoption petition. Leah Dell appeals, contending that (1) the evidence did not support the termination of her parental rights; (2) she was denied her right to competent legal counsel; (3) she was discouraged from appealing her case; and (4) she was not provided with a copy of the final judgment. For the reasons that follow, we vacate and remand to the superior court.

On appeal from an order terminating parental rights based on an adoption petition, we construe the evidence favorably to the trial court’s ruling and determine whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost. We do not weigh the evidence or assess witness credibility, but defer to the trial court’s factual findings and affirm unless this standard is not met.

(Citation omitted.) Weher v. Livingston, 309 Ga. App. 665 (710 SE2d 864) (2011).

So viewed, the evidence shows that the minor child, E. D., was born on September 14, 2002. E. D. is the natural child of Dwain and Leah, who were married at the time of E. D.’s birth. Dwain and Leah separated when E. D. was a toddler because Leah became addicted to methamphetamine. E. D. was subsequently found to be deprived, and Dwain was awarded custody of her. In December 2004, Dwain and Leah divorced, and Dwain was granted permanent primary physical and legal custody of E. D. Although Leah was properly served in the divorce action and had notice of the hearing, she did not appear.

Between 2004 and November 2006, Leah regularly visited with E. D. Although ordered to pay monthly child support, however, Leah made only one payment of approximately $1,300 after Dwain filed a contempt action. In 2007, Leah moved to Florida. After she moved, Leah and Dwain lost contact with each other. Since that time, Leah has not contacted Dwain or E. D., paid any child support, or sent any letters, cards or gifts.

Dwain and Sarah married in June 2007, and had a daughter, A. D., in January 2010. Sarah is a certified pre-K teacher, who works at E. D.’s daycare. Sarah has lived with and cared for E. D. since 2007, and E. D. considers Sarah to be her mother. E. D. has no health problems, has progressed appropriately in school and has bonded with her half-sister, A. D.

On September 3, 2010, Dwain and Sarah filed their petition to terminate Leah’s parental rights. The petition also requested an order permitting Sarah to adopt E. D. Although Leah was personally served, attended a mediation and completed a court-mandated workshop, she did not attend the scheduled trial in this case.

At the trial in this case, Leah’s counsel moved for a continuance, stating that Leah was without funds to travel from Florida to the scheduled trial. Leah’s counsel assured the superior court that Leah would be able to attend the trial if it were continued until the following month. The superior court denied the motion, and the trial was conducted in Leah’s absence.

Following the trial, the superior court terminated Leah’s rights based on her abandonment of E. D. and her failure to provide for E. D.’s care and support for more than a year. The superior court also approved Sarah’s adoption of E. D., finding that adoption was in E. D.’s best interests.

1. Leah contends that the evidence did not support the termination of her parental rights. We do not reach this contention because the trial court’s final order did not include findings of fact and conclusions of law as required to support the termination of parental rights under OCGA § 19-8-10.

Adoptions in Georgia are governed by the statutory definitions, provisions and requirements set forth in OCGA § 19-8-1 et seq. This case involves a stepmother’s petition to adopt a child whose legal father and legal mother, as defined by OCGA § 19-8-1, are both still living and are no longer married to each other, and whose legal mother has not surrendered her parental rights. Accordingly, our analysis begins with OCGA § 19-8-6 (a) (1). That statute pertinently provides:

A child whose legal father and legal mother are both living but are not still married to each other may be adopted by the spouse of either parent only when the other parent voluntarily and in writing surrenders all of his rights to the child to that spouse for the purpose of enabling that spouse to adopt the child and the other parent consents to the adoption [.]

(Emphasis supplied.) See also In re C. N. W., 274 Ga. 765, n. 4 (560 SE2d 1) (2002). Where, as here, the legal mother refuses to surrender her parental rights, the superior court may still grant the stepparent’s petition to adopt the child if the superior court determines by clear and convincing evidence that the “[c]hild has been abandoned by the parent.. . and . . . that the adoption is in the best interests of [the] child, after considering the physical, mental, emotional, and moral condition and needs of the child . . . , including the need for a secure and stable home.” (Punctuation omitted.) OCGA § 19-8-10 (a) (1). The superior court may also grant the stepparent’s adoption petition if it finds

clear and convincing evidence that the parent, for a period of one year or longer. immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that child as required by law or judicial decree.

(Citation and punctuation omitted; emphasis supplied.) Weber, supra, 309 Ga. App. at 666. See also OCGA § 19-8-10 (b).

In such a case, the parent must be served with a copy of the petition, and the parent may appear at the trial in the pending adoption action to show why his/her parental rights should not be terminated by that adoption. See OCGA § 19-8-10 (c); Smallwood v. Davis, 292 Ga.App. 173, 176-177 (2) (664 SE2d 254) (2008). Moreover, the petitioning stepparent has the burden of proving that termination of the parent’s rights is warranted, including the lack of justifiable cause. See In re Petition of Marks, 300 Ga. App. 239, 242 (684 SE2d 364) (2009).

If the petitioner meets that burden of proof and the court finds that one of the above situations exists, then the court must also determine whether the proposed adoption is in the best interest of the child. With regard to the best interest test in adoption cases, the trial court has very broad discretion with which this Court will not interfere except in cases of plain abuse. However, a court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship. The requirements of Georgia’s adoption statutes are mandatory and must be strictly construed in favor of the natural parents, because the application thereof results in the complete and permanent severance of the parental relationship.

(Citations and punctuation omitted.) Marks, supra, 300 Ga. App. at 242-243.

“In all cases wherein Code Section 19-8-10 is relied upon by any petitioner as a basis for the termination of parental rights, the court shall include in the decree of adoption appropriate findings of fact and conclusions of law relating to the applicability of Code Section 19-8-10.” OCGA § 19-8-18 (b). A judgment granting an adoption and terminating a parent’s rights

must conclusively show compliance with the statutory criteria prescribed as a condition precedent for such termination. The decree must present more than a mere legal conclusion which is not supported by mandatory findings of fact, or a dry recitation that certain legal requirements have been met.

(Citations and punctuation omitted.) Sauls v. Atchison, 316 Ga. App. 792, 795 (2) (730 SE2d 459) (2012).

Here, in terminating Leah’s parental rights, the superior court stated only that Leah has abandoned E. D. and

for a period longer than a year [Leah] has failed to provide for the care and support of [E. D.] as required by law and judicial decrees of record. The Court is of the opinion that the adoption of [E. D.] by Sarah Dell is in the best interests of the child. [Leah] has a history of substance abuse and has demonstrated an inability to be present to care for or provide for the child. . . . Furthermore, [Leah] has not been paying child support for several years, not made efforts to obtain visitation with her child through the courts.

In this case, the superior court’s order was deficient because it did not address any of the criteria for termination of parental rights pursuant to OCGA § 15-11-94, it did not include specific findings of fact showing that Leah abandoned E. D., and it did not include specific factual findings showing that she failed to provide care and support for E. D. without justifiable cause. See Maynard v. Brown, 27 6 Ga. App. 229 (622 SE2d 901) (2005). Compare Ray v. Denton, 278 Ga. App. 69, 72-73 (2) (628 SE2d 180) (2006) (remand not required where decree included specific findings regarding father’s failure to pay court-ordered child support and where decree further stated that conclusions of law were based on trial court’s findings of fact and verified petition which specifically referenced OCGA § 19-8-10). Moreover, the superior court’s conclusion that adoption was in E. D.’s best interest also lacked particularity. Ray v. Hann, 323 Ga. App. 45, 48 (2) (746 SE2d 600) (2013).

As set forth above, we emphasize that a judgment “having such a final, ultimate and significant result as that of severing the rights of a parent to a child must conclusively show compliance with the statutory criteria prescribed as a condition precedent for such termination.” (Citation and punctuation omitted.) In the Interest of M. D. F., 263 Ga. App. 50, 51 (587 SE2d 199) (2003). Since the trial court’s decree was deficient, we are unable to evaluate whether the superior court erred in terminating Leah’s parental rights pursuant to O CGA § 19-8-10. See Hann, supra, 323 Ga. App. at 48 (2). Accordingly, we vacate the order terminating Leah’s parental rights, as well as the adoption decree, and remand this case to the trial court for further proceedings, including entry of a new order with specific findings of fact and conclusions of law as required by the Georgia legislature in OCGA §§ 19-8-10 and 19-8-18 (b). In so holding, this Court is not unsympathetic with the plight of the father and stepmother in this case. In fairness, however, this Court must note that Leah, the natural mother, requested reconsideration of the trial court’s order before this case was appealed to this Court, thereby evidencing a desire to be heard on this issue. Moreover, it is the law that we afford all the rights of fundamental fairness to the natural mother before we terminate her rights. We make no comment on whether the evidence presented could support a finding of abandonment or failure to provide for the care and support of E. D. without justifiable cause. Following entry of a new order, the “adversely affected party may enter another appeal upon the entry of such judgment.” In the Interest of M. D. F., supra, 263 Ga. App. at 52.

2. Leah also contends that she was denied her right to competent legal counsel. We are unable to reach this contention because the record does not include a copy of the transcript on Leah’s motion for reconsideration, even though she was entitled to a paupered copy of the transcript as an indigent parent whose parental rights were terminated.

In any proceeding for terminating parental rights, if a parent is indigent and desires to be represented by counsel, “the court shall appoint an attorney for such parent.” OCGA § 15-11-98 (b). See also In the Interest of J. M. B., 296 Ga. App. 786, 789 (676 SE2d 9) (2009). An indigent parent has a statutory right to effective legal representation in termination proceedings. See In the Interest of A. R. A. S., 278 Ga. App. 608, 609 (1) (629 SE2d 822) (2006). Moreover, “an indigent parent whose parental rights have been terminated is entitled to a paupered copy of the transcript for use in appealing the decision of the trial court.” In the Interest of B. C. P., 229 Ga. App. 111, 115 (3) (493 SE2d 258) (1997).

Here, the record shows that Leah was represented by appointed counsel based on evidence of her indigency. Following the trial, but prior to entry of the order terminating her parental rights, Leah moved pro se for reconsideration and to reopen the matter, contending that her appointed counsel provided ineffective assistance. Thereafter, the superior court appointed new counsel for Leah and held a hearing on Leah’s motion for reconsideration. The hearing, however, was not transcribed, even though Leah was entitled to a paupered copy of the transcript. See Nix v. Dept. of Human Resources, 236 Ga. 794, 796 (225 SE2d 306) (1976) (holding that indigent parent’s right to paupered transcript at all stages of any proceeding involving termination of that parent’s right is implied by law). In the absence of the transcript we cannot properly review Leah’s claims of ineffective assistance. Accordingly, we direct the trial court on remand to prepare a copy of the transcript or conduct a new hearing on these claims.

Decided September 25, 2013

Reconsideration denied October 23, 2013.

Leah M. Dibello Dell, pro se.

Andrew T. Mosley II, for appellee.

3. In light of our holding in Division 1 that the adoption decree was deficient, we need not address Leah’s remaining contentions regarding the superior court’s alleged conduct in discouraging her from appealing her case, and the superior court’s alleged failure to provide her with a copy of the final judgment.

Judgment vacated and case remanded.

Barnes, R J., concurs. Ray, J., concurs fully in Divisions 2 and 3 and in judgment only as to Division 1.

       Prior to entry of the order terminating her parental rights, Leah moved the trial court for reconsideration to reopen the matter. Although the superior court referred to a hearing on this motion in its final order, the hearing was not transcribed.

       A finding of abandonment under OCGA § 19-8-10 (a) (1) requires “clear and convincing evidence of an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental obligations growing out of the parent/child relationship, and forego all parental duties and claims.” (Citation and punctuation omitted; emphasis in original.) Marks, supra, 300 Ga. App. at 243 (1).

       As this Court recently stated,
      justifiable cause for the failure to pay child support may be found in situations where the parent has been unable to earn income due to incarceration, mental illness, mental incapacity, hospitalization, or other circumstances beyond his or her control. Each case must be decided on its own circumstances.
      (Citation and punctuation omitted.) Ray v. Hann, 323 Ga. App. 45,49 (2) (746 SE2d 600) (2013).


author: McMILLIAN, Judge.

text:
    A13A1357, A13A1358.
    LANE v. THE STATE (two cases).
    (750 SE2d 381)
   McMILLIAN, Judge.

This appeal arises from armed robberies and burglaries at two locations in Louisville, Georgia on the same night. Appellants Merkeith Lane and Dominique Lane were two of the five persons charged with the crimes; four of the five were tried together and convicted. Appellants claim a number of errors at trial, including that: (1) a custodial statement by Merkeith was not freely and voluntarily given and therefore inadmissible; (2) the trial court erred in closing the trial to the public for the testimony of one witness; (3) the trial court erred in allowing the introduction of nontestifying co-defendants’ statements that implicated Appellants; (4) Dominique’s trial counsel was ineffective for failing to object to the in-court identification by one of the victims; (5) the trial court failed to instruct the jury that the testimony of an accomplice required sufficient corroboration to establish Dominique’s participation in the crimes charged; and (6) there was insufficient evidence to convict Dominique of armed robbery, attempted armed robbery, and burglary. Finding no error, we affirm.

Reviewing the evidence in the light most favorable to the jury’s verdict, as we must on appeal, in the early morning hours of July 2, 2007, two women and one man were awakened at a residence in Louisville, Georgia by five men who demanded money. The women were so frightened that they hid under the bedcovers in their respective bedrooms, but the other victim, Eric Fleming, was taken from the bedroom and he was struck in the head with a gun. Shots were also fired. The perpetrators then left with a cell phone and approximately $170.

During this exchange, Fleming was able to identify two of the perpetrators, Merkeith and Dominique Lane, who were his cousins and whom Fleming has known all of their lives. Fleming also recognized one of the other perpetrators, B. M., as the one who shot the gun. However, upon being interviewed by law enforcement, Fleming did not initially disclose that he recognized Appellants, explaining that “You won’t believe that two people in your life that you knew all your life would try — would do something like that.” Fleming later received anonymous threatening calls at his workplace about testifying in court.

Also on the morning of July 2, 2007, Jacountress Martin and his friend Travis Washington arrived at Martin’s home in Louisville, Georgia. Martin went inside where he encountered five intruders and was shot in the hand and thigh. Washington did not identify any of the perpetrators, and Martin did not testify at trial.

A few days after the robbery, Investigator Clark Hiebert interviewed Merkeith Lane. In that interview, although Merkeith was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966), he did not request an attorney, nor did he ask that the interview be terminated. Initially, Merkeith denied any part in the armed robberies, but he eventually confessed.

After the trial court denied the motion to exclude the statements, Investigator Hiebert was permitted to testify about Merkeith’s confession while substituting the words “other” or “others” in place of the names of the other defendants with the exception of B. M. who testified. Likewise, Investigator Hiebert was permitted to testify about statements made by co-defendants Kyle Gilmore, Christopher Young, and Dominique Lane that each was with B. M. and “others” on the night of July 2, 2007, although none of these defendants admitted that they were involved in the armed robberies.

At trial, B. M. testified against the others. B. M. was 16 years old at the time of the robberies and had entered a plea deal that would allow him to be treated as a juvenile on the charges. Prior to B. M.’s testimony, the State requested that B. M. be treated as a juvenile and that the courtroom be closed for his testimony. The trial judge asked defense counsel if they had any objections to the closing of the courtroom, and none objected. B. M. testified that he, along with Appellants, Kyle Gilmore, and Christopher Young went to rob the first residence where they encountered Eric Fleming. He also admitted carrying the gun that went off. After robbing the first residence, the five perpetrators went to the second residence also to rob it, and B. M. and at least one of the other co-defendants shot at Jacountress Martin. Christopher Young, Dominique Lane, and B. M. had guns; Merkeith Lane did not.

After trial, Appellants were each convicted of two counts of armed robbery, criminal attempt to commit armed robbery, and two counts of burglary. Merkeith’s counsel did not file a motion for new trial, but on July 14, 2011, the trial court authorized the filing of an out-of-time motion for new trial, which after a hearing, was denied. Merkeith timely filed his notice of appeal in Case No. A13A1357.

Dominique initially filed a motion for new trial on December 12, 2008, which was denied, and then a notice of appeal on August 31, 2009. After the appeal was docketed, Dominique raised an ineffective assistance of counsel claim against his trial and appellate counsel, leading to the appointment of new counsel, who filed a motion to remand to pursue the ineffectiveness claim. This Court granted the motion for remand, and the trial court heard and denied Dominique’s second amended motion for new trial. The appeal in Case No. A13A1358 followed.

Case No. A13A1357

1. Merkeith Lane contends that the trial court erred in not suppressing his statements under OCGA § 24-3-50 because they were induced by hope of benefit. Former OCGA §§ 24-3-50 and 24-3-51 provided:

To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.

The “slightest hope of benefit” refers to “promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all.” Brown v. State, 290 Ga. 865, 868-869 (2) (725 SE2d 320) (2012). See also Preston v. State, 282 Ga. 210, 212 (2) (647 SE2d 260) (2007) (“Generally, the reward of a lighter sentence for confessing is the ‘hope of benefit’to which OCGA § 24-3-50 refers.”) (citation and punctuation omitted); Brown v. State, 278 Ga. 724, 728 (3) (609 SE2d 312) (2004) (“ ‘slightest hope of benefit’ can mean hope of a lighter sentence”). “The promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect.” (Citation omitted.) White v. State, 266 Ga. 134, 135 (2) (465 SE2d 277) (1996).

“In determining the admissibility of a custodial statement during a Jackson v. Denno hearing, the trial court must consider the totality of the circumstances and apply a preponderance of the evidence standard.” (Citation and punctuation omitted.) Samuels v. State, 288 Ga. 48, 49 (2) (701 SE2d 172) (2010). “On appeal, when we review the denial of a motion to suppress a statement, we owe no deference to the way in which the trial court resolved questions of law, but we generally accept its findings about questions of fact and credibility unless clearly erroneous.” (Citation and footnote omitted.) Edenfield v. State, 293 Ga. 370, 374 (744 SE2d 738) (2013). See also Preston, 282 Ga. at 212 (2) (“A trial court’s findings regarding the admissibility of an incriminating statement will be upheld on appeal unless clearly erroneous.”); Pittman v. State, 277 Ga. 475, 477 (2) (592 SE2d 72) (2004) (same). But “when the material facts are not in dispute — when they can be ascertained definitely, for instance, from a video recording of a statement — we give less deference to the fact findings of the trial court.” Edenfield, 293 Ga. at 374, n. 6.

Turning first to the partial transcript of the recording of Merkeith’s interview, Merkeith complains that Investigator Hiebert offered an impermissible hope of benefit when he explained:

Come sentencing time, the district attorney says, Your Honor, we talked to this young man and he had an opportunity to work something out without all the expenses of a jury trial in this county, and now we’ve had two jury trials. We would like to see him receive the maximum on each count but to run consecutive rather than concurrent. And that means when one sentence is complete, then the next one starts. And I feel like on this case I wouldn’t be a bit surprised if the district attorney is going to want to go consecutive unless somebody decides to — the ones that decide to help theirself, they’re going to get a break.

Investigator Hiebert also referenced a conversation that he had with the district attorney’s office in which “[t]hey said, if Merkeith wants to get straight, if he wants to tell the truth, listen to him. If he don’t, we’ll deal with it.” After these exhortations, Merkeith again denied knowledge about the armed robberies. But after some further discussion about how the district attorney may favor the persons who “get straight” before trial, Merkeith began confessing to the armed robberies. The entire interview took 60 to 90 minutes.

Based on our review of the record, we find that the trial court correctly determined that the statements made by Investigator Hiebert do not contain an explicit or implicit offer for a reduced sentence such that they would constitute an impermissible hope of benefit. To the contrary, the investigator’s explanation of consecutive versus concurrent sentences and the options available to the district attorney’s office merely emphasized the seriousness of the charges. See Preston, 282 Ga. at 212 (2) (officer’s discussion of the possible sentences and statement that the district attorney brought charges based on a recommendation from the police “amounted to no more than an explanation of the seriousness of [the defendant’s] situation” and “[a]dmonitions to tell the truth . . .”) (citation and punctuation omitted). Compare Foster v. State, 283 Ga. 484 (660 SE2d 521) (2008) (written promise by detective not to press any additional weapons charges against defendant was impermissible hope of benefit). And we note that the investigator made it clear that the district attorney’s office would listen if Merkeith wanted to “tell the truth” and that the district attorney would “deal with it” if Merkeith continued to deny the charges. This amounts to no more than a permissible admonition to tell the truth. See Pittman, 277 Ga. at 478 (2) (urging defendant to tell the truth so he could “work this” was no more than an admonition to tell the truth).

Moreover, we find Merkeith’s reliance on Canty v. State, 286 Ga. 608 (690 SE2d 609) (2010), to be misplaced. In Canty, our Supreme Court held that telling a defendant that confessing to the crime could result in a “shorter term ... is exactly the hope of benefit which is prohibited under Georgia law.” Id. at 610. But Investigator Hiebert did not tell Merkeith that he would receive a reduced sentence if he confessed. And “[m]erely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the ‘hope of benefit’ sufficient to render a statement inadmissible under OCGA § 24-3-50.” (Citation and punctuation omitted.) Samuels, 288 Ga. at 50 (2).

Accordingly, after examining the totality of the circumstances, we conclude that the trial court did not err in denying Merkeith’s motion to exclude his statement pursuant to former OCGA § 24-3-50. See Sosniak v. State, 287 Ga. 279 (695 SE2d 604) (2010) (under totality of the circumstances, detectives never promised or gave hope to defendant that he would receive a lighter punishment in exchange for a confession).

2. Merkeith also urges us to consider as plain error the closing of the courtroom for the testimony of B. M. while conceding that trial counsel was given the opportunity to object and explicitly waived any objection. “The improper closing of a courtroom is a structural error requiring reversal only if the defendant properly objected at trial and raised the issue on direct appeal.” Reid v. State, 286 Ga. 484, 488 (690 SE2d 177) (2010). In the absence of an objection at trial, “the issue of closure may only be raised in the context of an ineffective assistance of counsel claim.” (Citation and punctuation omitted.) State v. Abernathy, 289 Ga. 603, 611 (5) (715 SE2d 48) (2011). Because Merkeith has not asserted an ineffective assistance of counsel claim on this ground, this issue has not been preserved and his enumeration of error fails.

3. Merkeith also asserts that the trial court erred in allowing Investigator Hiebert to testify about statements made by his nontestifying co-defendants in violation of Bruton v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d 476) (1968). Specifically, Merkeith complains that Investigator Hiebert testified that co-defendants Kyle Gilmore and Christopher Young separately stated that each, along with B. M., and others went to the park on the night of July 2, 2007. With respect to Dominique Lane, Investigator Hiebert testified that “Dominique stated that he, [B. M.], and others were together and walked through the projects on the Hill, and [B. M.] and others parted ways while he and another went home.” Investigator Hiebert was then asked in summary: “So each of these four defendants sitting at defense table acknowledged that they were with [B. M.] and others July 2, 2007 in the early morning hours, or the night of July 1, 2007?” to which he replied in the affirmative.

In Bruton, the United States Supreme Court held that in a jury trial with multiple defendants, the admission of a statement of a nontestifying co-defendant which inculpates the defendant unconstitutionally deprives that defendant of the Sixth Amendment right to cross-examine witnesses, even where the jury is instructed to limit its consideration of the statement to the co-defendant who made it. Bruton, 391 U.S. at 135-136. But “Bruton is not violated if a co-defendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.” (Citations omitted.) Moss v. State, 275 Ga. 96, 98 (561 SE2d 382) (2002). See also Dulcio v. State, 292 Ga. 645, 649 (740 SE2d 574) (2013); Thomas v. State, 268 Ga. 135, 137-138 (485 SE2d 783) (1997).

The statements by Dominique, Christopher Young, and Kyle Gilmore merely asserted that “others” were with B. M. sometime during the night and early morning hours of the armed robberies but did not inculpate Merkeith or anyone else in the actual crimes or place them at the crime scenes. Although other evidence linked Merkeith as part of the group with B. M. at the armed robberies, including Merkeith’s own confession and the victim’s identification, the Bruton rule only applies when the statements on their face incriminate the nontestifying defendant. Accordingly, these statements do not violate Bruton. See Moss, 275 Ga. at 99 (2) (no Bruton violation from statement that defendant went to apartment on night of murder and stayed in bathroom for a while since it did not clearly incriminate defendant); Dulcio, 292 Ga. at 649 (unclear statements that could just as credibly be interpreted as saying defendant was responsible for an argument that preceded the murder did not violate Bruton).

Case No. A13A1358

4. Dominique Lane asserts that he received ineffective assistance of counsel because (a) his trial attorney did not move to suppress the in-court identification by one of the victims of the armed robberies nor did he move for a mistrial on the grounds that the witness’s identification had not been disclosed in discovery and (b) trial counsel did not request a jury charge that the testimony of an accomplice requires sufficient corroboration to establish Dominique’s participation in the crimes charged.

Under the well-established standards set out in Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), “[t]o show a denial of effective assistance, a defendant must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance.” State v. Worsley, 293 Ga. 315, 323 (3) (745 SE2d 617) (2013). “To prove that the performance of his lawyer was deficient, a defendant must show that the lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms.” Id. The failure to make a futile motion does not constitute ineffective assistance. Lupoe v. State, 284 Ga. 576, 579-580 (669 SE2d 133) (2008).

(a) Dominique asserts that his counsel was ineffective for failing to move to suppress the identification by victim Eric Fleming prior to trial, object to the in-court identification of Dominique, or move for a mistrial because the State allegedly failed to provide notice that Fleming could identify Dominique. At trial, Fleming testified that he recognized Dominique as one of his assailants, that he was related to Dominique, and that he had known Dominique his entire life. Fleming was also able to provide details about Dominique such as his nickname and where they had grown up together. At the motion for new trial hearing, trial counsel testified that he did not move to suppress the in-court identification because he found nothing objectionable to the testimony. However, counsel conceded that it would have been appropriate to file a motion to suppress the identification before trial.

Pretermitting the issue of whether the in-court identification procedures were unduly suggestive, we find that because Fleming knew Dominique before the armed robbery, there was an independent basis for the in-court identification, making futile any objection to the testimony. See Lupoe, 284 Ga. at 579-580 (no basis for excluding eyewitness identification when witness had known defendant for several years, spoke with defendant about the crime just before he committed it, and saw defendant commit the crime); Williams v. State, 290 Ga. App. 829, 833-834 (7) (a) (661 SE2d 563) (2008) (although photo lineup was suggestive, victim had worked with defendant for two years and had independent basis for identification). And for the same reasons, any motion to suppress prior to trial would have also been futile. See Dumas v. State, 283 Ga. App. 279, 282 (5) (641 SE2d 271) (2007) (even ifshowup was impermissibly suggestive, witness had known defendant as customer and therefore there was an independent basis for the identification).

Moreover, there was no discovery violation upon which trial counsel could have sought a mistrial. OCGA § 17-16-7 requires the prosecution to produce any witness statement in its possession, custody or control when the witness is intended to be called at trial, but these obligations are not triggered when a witness makes an oral statement as in this case. See Forehand v. State, 267 Ga. 254, 255-256 (3) (477 SE2d 560) (1996); Winfrey v. State, 286 Ga. App. 718, 721 (3) (650 SE2d 262) (2007). See OCGA § 17-16-1 (2) (defining “statement of a witness”). And both trial counsel and the trial judge recalled the prosecutor disclosing at the Jackson-Denno hearing that an eyewitness could identify Dominique. Accordingly, trial counsel was not deficient in failing to seek a mistrial for the purported discovery violation.

(b) Dominique also asserts that his trial counsel was ineffective by failing to request a jury charge that the testimony of an accomplice requires sufficient corroboration to establish defendant’s participation in the crime. Former OCGA § 24-4-8 provides:

The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness . . . .

“Slight evidence of defendant’s identity and participation from an extraneous source is all that is needed to corroborate the accomplice’s testimony.” (Citation and punctuation omitted.) Wooten v. State, 240 Ga. App. 725, 728 (3) (c) (524 SE2d 776) (1999); Harris v. State, 308 Ga. App. 456, 458 (707 SE2d 878) (2011). Moreover, our Supreme Court has held that an accomplice corroboration charge is only required “where the sole witness in the case is an accomplice.” Johnson v. State, 258 Ga. 506, 508 (5) (371 SE2d 396) (1988).

In this case, the accomplice, B. M., was not the only witness. Eric Fleming identified Dominique, and Dominique admitted in a statement to law enforcement that he was with B. M. on the night of the armed robberies. And these statements provide more than the “slight evidence” needed to corroborate the accomplice’s testimony. For these reasons, counsel was not ineffective for failing to request a charge on accomplice corroboration. Harris, 308 Ga. App. at 459 (no ineffective assistance of counsel for failing to request charge on accomplice corroboration when State did not rely solely on accomplice testimony in securing conviction); Wooten, 240 Ga. App. at 728 (no ineffective assistance of counsel for failing to request accomplice corroboration charge when State did not rely wholly on accomplice’s testimony).

We also do not find plain error in the failure to instruct the jury that corroboration is required for the same reasons. See Brown v. State, 321 Ga. App. 198, 200 (739 SE2d 118) (2013) (no plain error in failing to give accomplice corroboration charge when State relies on other evidence apart from accomplice’s testimony). See State v. Kelly, 290 Ga. 29, 32 (718 SE2d 232) (2011) (“We now hold that, under OCGA § 17-8-58 (b), appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.”).

5. Dominique also asserts that the trial court erred in allowing Investigator Hiebert to testify about Merkeith’s custodial statements in violation of Bruton. Bruton, 391 U.S. at 123. Specifically, Investigator Hiebert was allowed to testify that Merkeith confessed that he, B. M., and “others” went to commit the armed robberies, but the trial court instructed the jury that they were to only consider such statements against the maker and not any co-defendant. Dominique contends that the substitution of the names of the defendants with “other” or “others” violates Bruton and its progeny.

Since Bruton was issued, the United States Supreme Court and our Supreme Court have considered the extent that custodial statements by nontestifying co-defendants must be redacted to exclude the name of the defendant in order to pass constitutional muster. See Richardson v. Marsh, 481 U.S. 200 (107 SCt 1702, 95 LE2d 176) (1987); Gray v. Maryland, 523 U.S. 185 (118 SCt 1151, 140 LE2d 294) (1998); Hanifa v. State, 269 Ga. 797 (505 SE2d 731) (1998). In Hanifa, our Supreme Court explained:

Following the lead of the U. S. Supreme Court, we hold that, unless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant’s statement which inculpates the defendant by referring to the defendant’s name or existence, regardless of the existence of limiting instructions and of whether the incriminated defendant has made an interlocking incriminating statement. A co-defendant’s statement meets the Confrontation Clause’s standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant. The fact that the jury might infer from the contents of the co-defendant’s statement in conjunction with other evidence, that the defendant was involved does not make the admission of the co-defendant’s statement a violation of the Confrontation Clause.

(Emphasis supplied.) Id. at 803-804. See Burns v. State, 280 Ga. 24 (622 SE2d 352) (2005) (upholding co-defendant’s statement that did not refer to defendant). “[Statements which, despite redaction, refer directly to a person whom the jury may infer to be the defendant run afoul of the confrontation clause____” Davis v. State, 272 Ga. 327, 331 (6) (528 SE2d 800) (2000). Thus, both the defendant’s name and existence must be eliminated from the nontestifying co-defendant’s statement.

Here, Investigator Hiebert was allowed to testify to the existence of the “others” involved in the armed robberies, and given the evidence that five men committed the armed robberies, with four of them on trial and B. M. as a witness, the jury reasonably could have concluded that the “others” referred to Dominique and his co-defendants. Because Dominique did not have an opportunity to cross-examine Merkeith, his Sixth Amendment rights were violated. See Davis, 272 Ga. at 331 (statement which did not implicate nontestifying co-defendant and stated that “someone” shot the victim violated Bruton)Hanifa, 269 Ga. at 804 (identification of defendant by nickname and as “someone,” “others” and “they” violated Bruton). Cf. Butler v. State, 270 Ga. 441, 445-446 (511 SE2d 180) (1999) (allowing redacted statement when there are multiple defendants on trial, letters were used in place of the defendants’ names, and it was unclear which defendant corresponded with each letter).

However, a Bruton violation does not require reversal “if the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the co-defendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the statement was harmless error.” (Citation and punctuation omitted.) Anderson v. State, 311 Ga. App. 732, 736 (716 SE2d 813) (2011); Richard v. State, 287 Ga. App. 399, 403 (4) (651 SE2d 514) (2007). See also Davis, 272 Ga. at 332 (outlining cases in which the Bruton violation has been held not so harmful as to require reversal). Here, Dominique has not shown harm resulting from this testimony given the other overwhelming evidence of his guilt. Accomplice B. M. testified that Dominique was involved in the armed robberies, victim Eric Fleming positively identified Dominique as participating in the first armed robbery, and Dominique admitted being with B. M. sometime during the night or early morning hours when these incidents took place. Accordingly, the trial court did not err in denying Dominique’s motion for new trial on this ground.

6. Dominique further contends that the admission of Merkeith’s custodial statements violated his Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36 (124 SCt 1354, 158 LE2d 177) (2004), because Merkeith did not testify at trial. At the outset, we note that Crawford and Bruton expound related but distinct doctrines. Although both are grounded in the Sixth Amendment’s Confrontation Clause, Crawford holds that a defendant must have an opportunity to confront and cross-examine any person whose testimonial statement is put into evidence, id. at 54, while Bruton limits the use of inculpatory statements by nontestifying co-defendants at trial. Bruton, 391 U.S. at 135-136. Although Dominique preserved his objection under Bruton, he waived any objection under Crawford by failing to object on this ground at trial. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314, n. 3 (129 SCt 2527, 174 LE2d 314) (2009); Haywood v. State, 301 Ga. App. 717, 722 (689 SE2d 82) (2009); Sheppard v. State, 294 Ga. App. 270, 271 (2) (669 SE2d 152) (2008).

7. Finally, Dominique contends that the evidence was insufficient to convict him of two counts of armed robbery with respect to two victims at the first residence, attempt to commit armed robbery with respect to one of the victims at the first residence, and two counts of burglary with respect to the two residences. Although we recognize that this Court reversed the convictions of co-defendants Kyle Gilmore and Christopher Young because the State failed to adduce evidence required to corroborate B. M.’s testimony identifying Gilmore and Young as participants in the crimes, see Gilmore v. State, 315 Ga. App. 85, 88 (726 SE2d 584) (2012), we have determined that B. M.’s testimony was sufficiently corroborated as against Dominique and his participation in the crimes.

Decided October 23, 2013.

Peter D. Johnson, for appellant (case no. A13A1357).

Marnique W. Oliver, for appellant (case no. A13A1358).

S. Hayward Altman, District Attorney, Kelly A. Jenkins, Assistant District Attorney, for appellee.

Accordingly, upon review of the record, we find that the evidence was sufficient to enable a rational trier of fact to find Dominique guilty beyond a reasonable doubt of the crimes charged and upon which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Andrews, P. J., and Dillard, J., concur.

       “On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Goss v. State, 305 Ga. App. 497, 497 (699 SE2d 819) (2010).

       The interview was recorded, and the portion heard by the trial judge at the JacksonDenno hearing was transcribed. Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       OCGA §§ 24-3-50 and 24-3-51 have appeared together since their initial enactment in 1863, and are to be read in tandem. See Brown v. State, 290 Ga. 865 (725 SE2d 320) (2012). Although these sections were repealed as of January 1,2013, in connection with the enactment of Georgia’s new Evidence Code, they have been reenacted in substantially the same form in OCGA § 24-8-824.

       There was no photo lineup used to identify Dominique.

       Furthermore, Fleming’s delayed identification of Dominique provides no basis for challenging his conviction because trial counsel had the opportunity to cross-examine Fleming about why he failed to make the identification sooner and the possibility that Fleming misidentified Dominique. And Fleming explained that he did not identify his cousins because he was shocked that his relatives whom he has known their entire lives would rob him at gunpoint.

       Although the testimony at the Jackson-Denno hearing was transcribed, argument by counsel was not.

       Former OCGA § 24-4-8, which was effective at the time of trial, has been repealed as part of Georgia’s new Evidence Code. It has been re-enacted at OCGA § 24-14-8.

       OCGA § 16-8-41 (a) provides in pertinent part: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”

       OCGA § 16-4-1 states: “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”

       At the time of the offense, OCGA § 16-7-1 provided: “A person commits the offense of burglary when, without authority and with the intent to commit a felony therein, he enters or remains within the dwelling house of another or any building . .. .”


author: ANDREWS, Presiding Judge.

text:
    A13A1454.
    BRAY v. DEPARTMENT OF TRANSPORTATION.
    (750 SE2d 391)
   ANDREWS, Presiding Judge.

Emory H. Bray owns real property in Coweta County which was subject to a condemnation action in which part of the property was taken for public road improvements. Bray was compensated for the taking pursuant to the eminent domain provisions of the Georgia Constitution. This appeal involves Bray’s subsequent “inverse condemnation” action in which he seeks additional compensation. In the subsequent action, Bray alleged: (1) that in June 2008, the City of Newnan filed a condemnation action by which it took part of his property for the purpose of road improvements designed and constructed by the Georgia Department of Transportation (DOT); and (2) that in June 2011, a judgment was entered in the condemnation action awarding him compensation for the taking and consequential damages to the remaining property pursuant to Article I, Section III, Paragraph I of the Georgia Constitution. Bray’s subsequent “inverse condemnation” action was filed in August 2012, named only the DOT as defendant, and sought, pursuant to the same constitutional eminent domain provisions, an award of additional consequential damages allegedly caused by the DOT’s negligent construction of the road improvements. The trial court granted the DOT’s motion to dismiss this action on the basis: (1) that Bray failed to comply with the ante litem notice provisions set forth in OCGA § 50-21-26 requiring that notice be given to the State as a prerequisite to any tort claim brought against the State pursuant to the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.); and (2) that the action asserted professional engineering negligence and failed to comply with the provisions of OCGA § 9-11-9.1 requiring that the complaint be accompanied by an expert affidavit. Bray appeals from the order granting the motion and dismissing the action. For the following reasons, we affirm in part and reverse in part.

1. The June 2011 condemnation award was conclusive as to all damages to the remaining property, foreseen or not, resulting from proper construction of the road improvements. Woodside v. Fulton County, 223 Ga. 316, 319 (155 SE2d 404) (1967), overruled on other grounds, Powell v. Ledbetter Bros., 251 Ga. 649 (307 SE2d 663) (1983). In the August 2012 action alleging “inverse condemnation,” Bray sought an award of additional damages to the remaining property caused by negligent or improper construction of the improvements performed by an agent or contractor of the condemnor in the course of the prior eminent domain project. Because Bray sought compensation for property negligently taken or damaged by the road improvements, he stated a cause of action under the constitutional eminent domain provisions not barred by the prior condemnation award for damages resulting from proper construction of the improvements. Id. at 320. Damage to remaining property caused by negligent or improper construction in the course of a prior eminent domain project may be recovered from the condemnor by a separate “inverse condemnation” proceeding, and the condemnor cannot escape the constitutional duty to compensate the property owner for the damage by claiming that the negligent party was an independent contractor rather than the condemnor’s agent or employee. Id. at 320; Butler v. Gwinnett County, 223 Ga. App. 703, 704 (479 SE2d 11) (1996); Wright v. MARTA, 248 Ga. 372, 374-375 (283 SE2d 466) (1981).

2. The trial court erred by dismissing the “inverse condemnation” action against the DOT for failure to comply with notice provisions set forth in the Georgia Tort Claims Act (GTCA). The GTCA provides exceptions to a state agency’s sovereign immunity protection subject to certain limitations. Reidling v. City of Gainesville, 280 Ga. App. 698, 701 (634 SE2d 862) (2006). But “[n]o sovereign immunity exists where a cause of action for inverse condemnation lies, because the Constitution itself affords the right.” Powell, 251 Ga. at 651, overruled on other grounds, David Allen Co. v. Benton, 260 Ga. 557 (398 SE2d 191) (1990). The GTCA does not apply.

3. The trial court correctly dismissed the “inverse condemnation” action to the extent the complaint sought compensation under the constitution for damage to the remaining property based on allegations that professional engineering negligence caused the damage, but filed no supporting expert affidavit required by the provisions of the Civil Practice Act set forth in OCGA § 9-11-9.1. “[Condemnation proceedings essentially are civil actions,” and “the Civil Practice Code applies to condemnation proceedings, so long as such application does not conflict with the special statutory provisions prescribed for the State’s exercise of its eminent domain powers.” Dept. of Transp. v. Woods, 269 Ga. 53, 55 (494 SE2d 507) (1998); OCGA § 9-11-81. We find no conflict with application of OCGA § 9-11-9.1 of the Civil Practice Act to Bray’s “inverse condemnation” action to the extent it seeks compensation based on allegations of professional engineering negligence.

An “inverse condemnation” action is brought under the eminent domain provisions of the Georgia Constitution “requiring the payment of compensation for the taking or damaging of private property for public purposes.” Woodside, 223 Ga. at 319. Although the action is brought pursuant to the constitutional provisions, the constitutional right to compensation may be based on allegations of negligence, including professional negligence, which describe the manner in which the compensable damage was caused. Richmond County v. Williams, 109 Ga. App. 670, 674 (137 SE2d 343) (1964). Under OCGA § 9-11-9.1 (a), the Civil Practice Act imposes an initial pleading requirement on the plaintiff in a civil action which provides in relevant part:

In any action for damages alleging professional malpractice against. . . any . . . legal entity alleged to be liable based upon the action or inaction of a professional licensed by the State of Georgia and listed in subsection (g) of this Code section... the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

Decided October 23, 2013.

The list of licensed professionals set forth in subsection (g) of OCGA § 9-11-9.1 includes “[professional engineers.” We conclude that, to the extent the “inverse condemnation” action sought compensation for damages to the property based on allegations of professional engineering negligence, Bray was required to file with the complaint the expert affidavit required by OCGA § 9-11-9.1. In the absence of the required affidavit, the trial court did not err in dismissing the complaint to the extent it sought compensation based on allegations of professional engineering negligence. OCGA § 9-11-9.1 (b).

We find, however, that the allegations of the complaint are so general that it may be liberally construed to claim damages based, not only on professional engineering negligence, but also on ordinary or other negligence not controlled by the expert affidavit requirements of OCGA § 9-11-9.1.

In determining, as a matter of law, whether the complaint alleged claims based on ordinary negligence, professional negligence, or both, we construe the complaint under the test applied to motions to dismiss for failure to state a claim in OCGA § 9-11-12 (b) (6). Hardwick v. Atkins, 278 Ga. App. 79-80 (628 SE2d 173) (2006). We look solely to the allegations of the complaint and liberally construe the allegations to state a claim if, within the framework of the complaint, the plaintiff may introduce evidence which will sustain a grant of relief based on the claim. Williams v. Alvista Healthcare Center, 283 Ga. App. 613 (642 SE2d 232) (2007). We will conclude that the complaint does not allege a claim only if the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief on the claim under any state of provable facts. Id.

Health Mgmt. Assocs. v. Bazemore, 286 Ga. App. 285, 287 (648 SE2d 749) (2007). To the extent Bray could produce evidence in support of the damage claim based on allegations of ordinary or other negligence not controlled by OCGA § 9-11-9.1, the trial court erredin dismissing the complaint for failure to file the expert affidavit required by OCGA § 9-11-9.1.

Judgment affirmed in part and reversed in part.

Dillard and McMillian, JJ., concur.

Hodges, McEachern & King, Carl H. Hodges, Timothy K King, for appellant.

Samuel S. Olens, Attorney General, Robert C. Edwards, Senior Assistant Attorney General, Sharon R Horne, Assistant Attorney General, for appellee.

       Bray’s “inverse condemnation” action alleged that the City of Newnan was the condemnor in the road improvement project, and that the DOT prepared the plans and constructed the improvements on behalf of the City. No issue is presented in this appeal as to whether the City, as condemnor, was a necessary party to the action, or whether the action properly named the DOT as the sole defendant. See 29A C. J. S. Eminent Domain § 588 (2013). We assume for purposes of this appeal that the “inverse condemnation” action was properly brought against the DOT.