text:
    A14A1392.
    THE STATE v. CARTWRIGHT.
    (764 SE2d 175)
   BARNES, Presiding Judge.

The State appeals from the order of the trial court granting Allison Cartwright’s motion to suppress following her arrest for DUI. It contends that the trial court erred in finding that OCGA § 40-8-25 (b) did not apply to a nonfunctioning center brake light. For the reasons that follow, we reverse.

[T]hree fundamental principles . . . must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013). To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.” Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012). To that end, we owe “no deference to the trial court’s conclusions of law” and are instead “free. to apply anew the legal principles to the facts.” (Citation and punctuation omitted.) Martin v. State, 316 Ga. App. 220, 220 (729 SE2d 437) (2012).

The facts are essentially undisputed and demonstrate that on the morning of June 26, 2013, a patrol officer with the Cobb County police observed that when Cartwright stopped for a red signal light, the center light located “at the top of the back window .. . under the roof” was not working. Based on his observation, the officer initiated a stop of Cartwright’s vehicle, and upon noticing the odor of alcohol on Cartwright’s breath and conducting field sobriety tests, subsequently arrested her for DUI. She was also charged with violating OCGA § 40-8-25 (b), which provides, in pertinent part, that “[i]f a motor vehicle is manufactured with two brake lights, both must be operational.”

Cartwright filed a motion to suppress, contending that the stop was illegal because the officer lacked articulable suspicion for the stop. Specifically, she argued that she had not committed any traffic violations before she was stopped because her two brake lights were functioning. At the hearing on the motion to suppress, the officer was the sole witness. He testified that he observed Cartwright’s 2002 BMW 325i

without an operational center brake light. . . . On 1990 vehicles and newer, coming out of the factory, they actually have three operational brake lights. One on either passenger side, driver side, and one in the center window, which allows other motorists to view the vehicle when it is stopping. . . . [The center light is] a rectangular red light in the center of the rear window of the vehicle.

He further testified that he observed the “two lights on the rear of the vehicle . . . light up and the center one would not,” and that he had stopped Cartwright because the center brake light was not operational.

On cross-examination, the officer agreed that OCGA § 40-8-25 (b) only states that if a vehicle has two brake lights then both must be operational, and that Cartwright’s BMW had two functional brake lights when he pulled her over. On redirect, the officer agreed that he could have charged Cartwright with violating OCGA § 40-8-26. That statute requires that

[ejvery brake light shall be plainly visible and understandable from a distance of 300 feet to the rear both during normal sunlight and at nighttime, and .. . [w]hen a vehicle is equipped with a brake light or other signal lights, such light or lights shall at all times be maintained in good working condition.

He further testified that he had stopped Cartwright based on his belief that OCGA § 40-8-25 (b) required that if the vehicle was manufactured with three brake lights, then all of the brake lights had to be operational.

In maintaining that the stop was illegal, Cartwright argued that there was no Georgia law requiring that all three lights be functioning, and that OCGA § 40-8-25 (b) only requires that if a car has two brake lights both must be functional. As to OCGA § 40-8-26 (b), she argued that the State had failed to satisfy its burden to prove, as a matter of law, that the light in question was, in fact, a brake light. The trial court granted Cartwright’s motion to suppress. In doing so, the court found as a matter of fact that the light in question was not illuminated when Cartwright was stopped, and also that the officer had acted “in what was his good faith belief” that Georgia law required that the center light be illuminated. But the court ruled that

as a matter of law... there is no requirement under Georgia law that there be such a light illuminated, working____[T]he officer’s good faith belief was based on... his mistaken belief that something was a violation of law, that, in fact, is not a violation of law at all____Because I’m finding that there was no violation of the law upon which the good faith of the Officer could operate . . . I’m going to grant the motion.

Although the State had argued that per Lancaster v. State, 261 Ga. App. 348, 350 (1) (582 SE2d 513) (2003), it did not matter whether OCGA § 40-8-25 (b) only required two lights to be functional because the officer had stopped Cartwright because a light he believed to be a brake light was not functioning, and the officer in good faith believed that OCGA § 40-8-25 (b) required all brake lights to be functional. The trial court nonetheless found that Lancaster was distinguishable because, unlike in Cartwright’s case, “Lancaster fails to identify which of the three lights on the rear of the vehicle was the inoperable brake light,” and the defendant in that case had conceded that his car was equipped with three brake lights and in this case Cartwright did not do so. It also found, as a matter of law, that there was no law in Georgia requiring that the center light in question be illuminated, and thus the officer’s good faith belief justifying the stop was based on a mistaken belief that something was a violation of law, that was not actually a violation of law.

“[I]t is well settled that police may conduct a brief investigatory stop of a vehicle if they have specific, articulable facts that give rise to a reasonable suspicion of criminal conduct.” Lancaster, 261 Ga. App. at 350 (1). Moreover,

[i]f the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute.

(Citation and punctuation omitted; emphasis supplied.) State v. Hammang, 249 Ga. App. 811 (549 SE2d 440) (2001) (officer’s honest but mistaken belief that defendant had violated traffic law by driving without headlights on through poorly lit intersection when it was “almost dark outside” provided reasonable articulable suspicion for traffic stop). Thus, even if the officer was mistaken in his belief that the light at issue was a brake light and that Georgia law required that all brake lights be illuminated,

the officer’s reasonable belief that an offense had been committed, though he may have been mistaken either as to fact or law, was yet a sufficient “founding suspicion” to enable the trial court to determine the stop was not mere arbitrariness or harassment, which is the real question.

McConnell v. State, 188 Ga. App. 653, 654 (1) (374 SE2d 111) (1988) (physical precedent only). The trial court’s reasoning in this regard “misses the mark, as it presupposes that a crime must have been committed for the stop to have been valid.” Dixon v. State, 271 Ga. App. 199, 201 (609 SE2d 148) (2005) (officer’s later discovery that a vehicle was not required to have functioning fog lights did not render the stop on that basis invalid).

Accordingly, as it is undisputed both that the light at issue was not functioning when Cartwright was stopped and that the officer had acted with the good faith belief that Cartwright had violated OCGA § 40-8-25 (b), the trial court erred in granting Cartwright’s motion to suppress.

Judgment reversed.

Boggs and Branch, JJ., concur.

Decided September 24, 2014.

Barry E. Morgan, Solicitor-General, Tad E Keller, Dana J. Norman, Assistant Solicitors-General, for appellant.

Justin I. Spizman, for appellee.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A0818.
    SANCHEZ v. ATLANTA UNION MISSION CORPORATION.
    (764 SE2d 178)
   BARNES, Presiding Judge.

Wilfredo Sanchez filed this negligence action against Atlanta Union Mission Corporation (the “Atlanta Mission”) after he was injured while carrying out a work assignment as part of a substance abuse rehabilitation program. Atlanta Mission moved for summary judgment on the ground that a contractual exculpatory clause allegedly agreed to by Sanchez when he enrolled in the rehabilitation program waived and released it from liability for its own negligence. The trial court granted Atlanta Mission’s motion for summary judgment based on the exculpatory clause, resulting in this appeal. For the reasons discussed below, we conclude that Atlanta Mission failed to prove the terms of the exculpatory clause and thus failed to prove that Sanchez waived and released it from liability. Accordingly, we reverse.

To prevail on summary judgment, the movant must demonstrate that no genuine issue of material fact exists and that the undisputed facts, when viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. And a defendant moving for summary judgment based on an affirmative defense may not rely upon an absence of evidence in the record disproving the affirmative defense.

(Citations and punctuation omitted.) Porex Corp. v. Haldopoulos, 284 Ga. App. 510, 511 (644 SE2d 349) (2007). See OCGA § 9-11-56 (c). Consequently, the burden was on Atlanta Mission to come forward with evidence establishing that Sanchez’s negligence claim was barred by a contractual exculpatory clause waiving and releasing it from liability. See Porex Corp., 284 Ga. App. at 511. See also OCGA § 9-11-8 (c) (release is an affirmative defense); Stockbridge Dental Group v. Freeman, 316 Ga. App. 274, 275 (728 SE2d 871) (2012) (referring to defenses based on exculpatory clause as affirmative defenses).

Construed in the light most favorable to Sanchez as the nonmovant, the record reflects that from April 2010 through early August 2010, Sanchez was a resident at the Atlanta Mission and participated in its substance abuse rehabilitation program. As part of his participation in the program, Sanchez was required to take classes and perform work assignments on a daily basis.

On June 8,2010, Sanchez was assigned to disassemble and move steel-framed hospital beds from the main floor into the basement at the Carpenter House, a building owned by the Atlanta Mission. According to Sanchez, the basement where his work crew was required to move the beds was dark and flooded with water. Sanchez testified that he was not given a light or any safety equipment while working in the basement and was never provided any instructions regarding how to safely move the beds, which were old and very heavy. While performing his work assignment, Sanchez was struck by a headboard from a hospital bed, causing him to sustain head and neck injuries and to require hospitalization for several days. Sanchez ultimately left the rehabilitation program because he was unable to attend classes or perform his work assignments as a result of continued severe pain.

Sanchez subsequently brought this negligence action seeking damages for his injuries from Atlanta Mission. Following discovery, Atlanta Mission moved for summary judgment, contending that before Sanchez was admitted into its rehabilitation program, he was required to sign a form entitled “My Commitment to the Personal Development Program” (the “Personal Development Agreement”). Although the two copies of the Personal Development Agreement introduced into the record were blurry and difficult to read, Atlanta Mission claimed that the third and ninth paragraphs of the agreement contained an exculpatory clause waiving and releasing it from any liability for its own negligence. According to Atlanta Mission, the third paragraph of the Personal Development Agreement provided:

I understand that I am fully responsible for my health care and for any accidents or injuries that occur while in residence. I assume full responsibility for exercising proper personal hygiene, obtaining qualified care if needed, following prescribed treatment guidelines, obtaining prescribed medications, and payment for services rendered.

Atlanta Mission further claimed that the ninth paragraph of the Personal Development Agreement provided:

I assume all responsibility and risk that may be involved in my stay at [Atlanta Mission’s ministry centers. I do release and relinquish all claims whatsoever that may arise out of and/or in connection with my stay at [Atlanta Mission] for myself, my heirs, executors, administrators, or any other personal representative.

Atlanta Mission argued that the third and ninth paragraphs of the Personal Development Agreement barred Sanchez’s negligence claim as a matter of law and thus entitled it to summary judgment.

In support of its motion for summary judgment, Atlanta Mission also submitted an unsigned form that it argued in its brief was an “exemplar” of the Personal Development Agreement signed by Sanchez. The unsigned form was attached to the affidavit of Atlanta Mission’s Chief Financial Officer, Gregory Copeland (the “Copeland Affidavit”). The third and ninth paragraphs of the unsigned form contained the same language that Atlanta Mission claimed was included in the third and ninth paragraphs of the Personal Development Agreement signed by Sanchez. To the extent that the pertinent paragraphs of the Personal Development Agreement signed by Sanchez were too blurry to read, Atlanta Mission contended that the unsigned form attached to the Copeland Affidavit was admissible as an exemplar to establish the contents of the signed Personal Development Agreement.

Opposing summary judgment, Sanchez contended that the copies of the Personal Development Agreement signed by him that had been submitted by Atlanta Mission in support of its motion were not entitled to evidentiary consideration because the pertinent paragraphs were “totally and completely illegible.” He further contended that the alleged exemplar attached to the Copeland Affidavit was inadmissible to establish the terms of any contract between him and Atlanta Mission. Additionally, Sanchez argued that to the extent there was admissible evidence showing the terms of an exculpatory clause agreed to by him, the clause was unenforceable because it was vague and ambiguous.

Following a hearing, the trial court granted summary judgment in favor of Atlanta Mission on the ground that Sanchez’s negligence claim was barred by the exculpatory clause contained in the ninth paragraph of the Personal Development Agreement signed by him. The trial court found that the Personal Development Agreement was “clearly legible as it appears on the record.” The trial court further found that the unsigned form attached to the Copeland Affidavit was admissible as an exemplar of the contract entered between Sanchez and Atlanta Mission. The trial court then went on to conclude that the ninth paragraph of the Personal Development Agreement was clear and unambiguous, did not violate public policy, and was enforceable against Sanchez as a matter of law, entitling Atlanta Mission to summary judgment.

On appeal from the grant of summary judgment to Atlanta Mission, Sanchez contends that the trial court erred in considering the copies of the Personal Development Agreement contained in the record to find that he had agreed to an exculpatory clause relieving Atlanta Mission of liability. We agree.

Atlanta Mission, “as the party alleging that a contract exists, [had] the burden of proving its existence and its terms.” (Citation and punctuation omitted.) Swanstrom v. Wells Fargo Bank, 325 Ga. App. 743, 744 (2) (754 SE2d 786) (2014). The record reflects that in support of its claim that Sanchez had agreed to an exculpatory clause in the Personal Development Agreement waiving and releasing it from liability, Atlanta Mission submitted a copy of the Personal Development Agreement in which the paragraphs relevant to its claim were blurry and impossible to read in their entirety. Because the relevant paragraphs were illegible, the Personal Development Agreement “[was] not entitled to evidentiary consideration.” Id., quoting Black v. Floyd, 280 Ga. 525, 526 (1) (630 SE2d 382) (2006). See Kelley v. Gen. Motors Acceptance Corp., 145 Ga. App. 739 (1) (244 SE2d 911) (1978); United Ins. Co. of America v. Hadden, 126 Ga. App. 362, 364 (2) (190 SE2d 638) (1972). The pertinent paragraphs of the copy of the Personal Development Agreement included as an exhibit to Sanchez’s deposition likewise were too blurry to be read in their entirety and could be afforded no evidentiary consideration. See id. Consequently, Atlanta Mission could not rely upon the copies of the Personal Development Agreement included in the record to prove the terms of the alleged exculpatory clause, and the trial court erred to the extent it concluded otherwise. See id.

Atlanta Mission argues, however, that the unsigned form attached to the Copeland Affidavit was an exemplar of the contract it required all of its program participants to sign and thus was admissible to prove the terms of the exculpatory clause contained in the Personal Development Agreement signed by Sanchez. We are unpersuaded in light of the record before us.

Under the best evidence rule, “[t]o prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.” OCGA § 24-10-1002. But “[t]he original shall not be required and other evidence of the contents of a writing, recording, or photograph shall be admissible if[ ] . . . [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” OCGA § 24-10-1004 (l).

Arguably, if an original writing has become degraded or damaged to the point that its material provisions are no longer legible, the original is “lost” or “destroyed” for purposes of OCGA § 24-10-1004 (1). Cf. Hartz v. Sobel, 136 Ga. 565, 582 (71 SE 995) (1911) (notingthat “[i]f a deed or any other written instrument should, by reason of age or accidental tearing or obliteration, be in such condition that certain words were illegible or entirely missing from it,” parol evidence may be introduced to prove the meaning of the illegible or missing words). And we see no reason why a document properly identified by an affiant as an “exemplar,” or “a standard specimen,” could not serve as “other evidence” to prove the contents of a lost or destroyed original writing. See Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F3d 83, 91-93 (2d Cir. 2002) (existence and terms of lost insurance policy could be proven by secondary evidence, including standard or “typical” policies); Franklin Mtg. Capital Corp. v. Sunrise Security Mtg., No. G028753,2003 Cal. App. Unpub. LEXIS 117, at *14 (Cal. Ct. App. Jan. 7, 2003) (“Franklin was indeed permitted to prove the content of the agreement through secondary evidence, including oral testimony, and evidence of its standard form exemplars and routine practice.”). See also United States v. Ross, 33 F3d 1507, 1513 (11th Cir. 1994) (“Once the terms of [Federal Rule of Evidence] 1004 are satisfied, the party seeking to prove the contents of the recording ... may do so by any kind of secondary evidence.”) (citation and punctuation omitted).

The problem in the present case, however, is that the Copeland Affidavit is insufficient to establish a basis for the admission of the alleged exemplar as “other evidence” under OCGA § 24-10-1004 (1). In his affidavit, Copeland never states that a more legible copy of the Personal Development Agreement signed by Sanchez ever existed, and he never accounts for the poor quality of the copies of the Personal Development Agreement that do appear in the record or otherwise explain why a more legible copy could not be produced. Indeed, Copeland never mentions the Personal Development Agreement signed by Sanchez and never links it to the alleged exemplar in any respect. Furthermore, the top of the Personal Development Agreement is titled “My Commitment to the Personal Development Program” and refers to the “Atlanta Union Mission” while the top of the alleged exemplar is titled “Program Commitment” and refers to the “Atlanta Mission,” and thus the two documents clearly contain discrepancies. But Copeland fails to offer any explanation regarding the discrepancies in the forms, the timing of the changes in the forms, or whether those changes were material to this case. Because of these deficiencies in the Copeland Affidavit, the alleged exemplar was not admissible to prove the contents of the Personal Development Agreement signed by Sanchez. See Philips-Van Heusen Corp. v. Mitsui O. S. K. Lines Ltd., No. 1:CV-00-0665, 2002 U.S. Dist. LEXIS 27057, at *48 (M.D. Penn. Aug. 14, 2002) (exemplar of contract excluded where party seeking to introduce it failed to explain why the original contract could not be produced in its entirety and failed to explain discrepancies between the documents). See also In re Oakley, 397 BR 36, 47 (Bankr. S.D. Ohio 2008), aff’d, 431 BR 307 (B.A.P. 6th Cir. 2009) (“For secondary evidence to be admissible . . . , the proponent of the evidence must first establish loss or destruction of the original contract.”).

Given that the material provisions of the Personal Development Agreement contained in the record are illegible, and given that the Copeland Affidavit was insufficient to establish a basis for the admission of the alleged exemplar, the Atlanta Mission failed to show that the Personal Development Agreement signed by Sanchez contained an exculpatory clause waiving and releasing it from liability for its own negligence. Hence, we must conclude that the trial court erred in granting summary judgment to Atlanta Mission based on a contractual exculpatory clause.

Decided September 25, 2014.

Daryl Von Yokely, for appellant.

Mabry & McClelland, Jon D. Stewart, Jr., for appellee.

Judgment reversed.

Branch, J., concurs. Boggs, J., concurs in judgment only.

       The trial court did not address the exculpatory clause allegedly contained in the third paragraph of the Personal Development Agreement.

       Neither party contends that the copies of the Personal Development Agreement in the appellate record are more illegible or differ in any respect from the copies reviewed by the trial court. By order entered on June 26,2014, we requested that the trial court clerk supplement the appellate record if a clearer copy of the Personal Development Agreement signed by Sanchez existed in the trial court record. The clerk responded that no clearer copies were available.

       Because Atlanta Mission filed its motion for summary judgment in June 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1,2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       A duplicate copy is admissible to the same extent as the original in many circumstances. See OCGA § 24-10-1003.

       OCGA § 24-10-1004 lists additional conditions underwhich “other evidence” can be used to prove the contents of an original. See OCGA § 24-10-1004 (2)-(4). None of these additional conditions appear to be at issue here.

       An “exemplar” is an “ideal or typical example; a standard specimen.” Black’s Law Dictionary 593 (7th ed. 1999).

       “Given the similarity between Georgia’s new evidence code and the Federal Rules of Evidence, it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” (Citation and punctuation omitted.) Williams v. State, 328 Ga. App. 876, 879 (1), n. 14 (763 SE2d 261) (2014).

       The top of the Personal Development Agreement is in a larger font size than the body of the document and is legible.


author: ANDREWS, Presiding Judge.

text:
    A14A1134.
    HAYEK et al. v. CHASTAIN PARK CONDOMINIUM ASSOCIATION, INC.
    (764 SE2d 183)
   ANDREWS, Presiding Judge.

Joseph and Rosette Hayek appeal from an order granting summary judgment to Chastain Park Condominium Association, Inc. (“Chastain Park”) for unpaid assessments and other charges associated with their ownership of a condominium. The Hayeks claim that the trial court erred in granting summary judgment on Chastain Park’s claim for past due assessments because the only evidence supporting that claim constituted hearsay. They also claim that the trial court erred in awarding attorney fees because Chastain Park failed to prove the underlying debt, rendering its claim for attorney fees unreasonable and unrecoverable. For reasons that follow, we reverse.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from a grant of summary judgment, we apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. Walter R. Thomas Assoc. v. Media Dynamite, 284 Ga. App. 413, 413-414 (643 SE2d 883) (2007).

So viewed, the evidence showed that the Hayeks own a condominium in the Chastain Park Condominium development. Pursuant to the declaration governing the development, owners agree to pay annual assessments in equal monthly installments that are due on the first day of each month. If a monthly installment of the annual assessment is not paid in full by the tenth day of the month, a late charge of ten percent of the unpaid amount may be imposed and interest at the rate of ten percent per year will accrue from the due date. If assessments and other charges remain unpaid for 30 days or more, Chastain Park has the right to institute suit to recover all amounts due, including reasonable attorney fees actually incurred.

On February 6, 2012, counsel for Chastain Park sent a demand letter to the Hayeks seeking to recover $4,816.08 for past due assessments, interest, and late fees owed through January 31, 2012, the February 2012 assessment, and attorney fees. When payment in full was not received within 30 days, Chastain Park accelerated all assessments and other charges due through December 31, 2012, and filed suit against the Hayeks for $7,064.77, plus interest and attorney fees. The Hayeks were living in California at the time and exchanged numerous e-mails with Chastain Park’s counsel, management company, and board of directors in an attempt to resolve issues related to the amounts sought. Those efforts were unsuccessful, and the Hayeks answered the complaint, denying the allegations regarding the amounts owed.

Chastain Park filed a motion for summary judgment on July 31, 2013. In its motion, Chastain Park sought $9,276.25 for assessments and $828.75 for late fees through July 2013, $1,253.42 for interest, and $9,592.10 for attorney fees and costs, for a total of $20,950.52. In support of its motion, Chastain Park submitted an affidavit from Robin Steinkritz, who had been the property manager since May 2011. Although Steinkritz averred that the Hayeks owed the amounts sought in the motion for summary judgment, he based his statements regarding the amounts owed on an account ledger attached to the affidavit. According to the account ledger, the Hayeks owed a total of $20,669.46 for assessments and other charges. That amount included a “balance forward” of $9,599.03 and charges for the period from August 1, 2012 through July 17, 2013 as follows: $2,912.76 for monthly assessments, $311.48 for late fees, $789.52 for interest, $202.40 for special assessments, and $11,671.24 for a category designated as “winter.” The account ledger also reflected payments of $4,816.97.

In support of its claim for attorney fees, Chastain Park submitted an affidavit from its counsel, Stephen Winter. According to Winter, his law firm incurred $15,007.50 in attorney fees, $123.74 in expenses, and $250.70 in court costs in connection with this case. After applying payments made by the Hayeks first to costs and attorney fees and then to other charges, Winter averred that the balance owed for attorney fees and expenses was $9,592.10.

In response to the motion for summary judgment, the Hayeks disputed the amounts sought by Chastain Park and submitted an affidavit in which David Hayek averred that refinancing documents showed that assessments on his condominium were up to date as of January 2011 and that the prior property management company had failed to cash his $2,500 check for all 2011 assessments. The Hayeks claimed that Chastain Park had failed to prove its case through admissible evidence, arguing that Steinkritz’s unsupported statements regarding the amounts owed and the account ledger on which he relied were inadmissible hearsay. They also claimed that the attorney fees sought by Chastain Park were unreasonable and unrecoverable.

The trial court granted Chastain Park’s motion for summary judgment and awarded damages in the amount of $19,333.52. The court awarded the amount of assessments, late fees, and interest sought in the summary judgment motion, but the attorney fee award was $7,975.10 instead of the $9,592.10 sought in the motion.

1. The Hayeks claim that summary judgment should not have been granted on Chastain Park’s claim for past due sums because the only evidence offered to support those claims — the account ledger and Steinkritz’s affidavit testimony regarding the amounts owed — was inadmissible hearsay. We conclude that the damages sought are insufficiently certain, and therefore reverse.

OCGA § 24-8-803 (6) provides an exception to the hearsay rule for

... a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness. . . ,

In his affidavit, Steinkritz averred that as the property manager for Chastain Park, he was familiar with the declaration for the development and that a true and correct copy of the duly recorded declaration was attached to his affidavit. The Hayeks admit that they are condominium owners in the Chastain Park development and that they are required to pay assessments pursuant to the declaration attached to Steinkritz’s affidavit.

To prove the amounts owed by the Hayeks, Chastain Park sought to admit the applicable account ledger through Steinkritz, who averred that, as the property manager, he was familiar with Chastain Park’s books and records, including account ledgers for individual condominium units and owners. He stated that he was familiar with the account ledger for the Hayeks and that it was made and maintained in the regular and ordinary course of business of the property management company and Chastain Park. He did not state that the entries were made at or near the time of the described events or that the entries were made by, or from information transmitted by, a person with personal knowledge and a business duty to report. Cf. FDIC v. Sri Chakra Group, LLC, No. 5:13-CV-268 (MTT), 2014 U.S. Dist. LEXIS 12701, at *12 (M.D. Ga. 2014) (business records properly authenticated under FRE 803 (6) where affiant states she maintains custody, control, and supervision over relevant records and is personally familiar with procedures used to maintain those records, records are made in regular course of company’s business at or near the time of the transactions they represent and it is the regular course of the company’s business to make such records).

The initial entry on the account ledger for the Hayeks is dated July 31, 2012, and is a charge in the amount of $9,599.03, entitled “b alance forward.” Steinkritz does not explain what is included in this charge, and no documentation is attached to his affidavit showing the basis for the charge. The remaining charges are for monthly assessments, special assessments, interest, late fees, and other charges and appear to be dated when they were incurred. The ledger also shows payments by the Hayeks for monthly assessments and special assessments between August 2012 and July 2013 and a lump sum payment of $2,184.57 in September 2012. There is no indication as to how these payments were applied to the amounts owed. With the inclusion of the undefined “balance forward” and the failure to demonstrate how payments were allocated, we are unable to determine the amount of past assessments still owed and whether interest and late payments were properly imposed and calculated.

“Where 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.” Ware v. MultiBank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 250 (2) (758 SE2d 145) (2014) (citation and punctuation omitted). Based on the current record, the amount of damages is insufficiently certain, thereby precluding summary judgment on the amount of past due assessments, late charges, and interest. See id. at 251; see also SKC, Inc. v. eMAG Solutions, 326 Ga. App. 798, 804 (3) (755 SE2d 298) (2014) (where documentary evidence supporting damages contains unexplained inconsistencies, summary judgment on the amount of damages is not appropriate).

Decided September 25, 2014.

Ford & Finnerty, Mark Ford, for appellants.

Winter Capriola Zenner, Elizabeth F. Taylor, for appellee.

2. The Hayeks claim that the award of attorney fees and expenses must be reversed because Chastain Park failed to prove the underlying debt, rendering its claim for attorney fees unreasonable and unrecoverable. Because issues of fact remain regarding the reasonableness of the fees sought, we reverse.

Chastain Park’s declaration provides that if assessments and other charges remain unpaid for 30 days, Chastain Park may file suit to collect all amounts due, “including reasonable attorneys’ fees actually incurred.” Chastain Park’s counsel submitted an affidavit seeking attorney fees for time his firm spent on this case, the expenses it incurred, and court costs. The amounts sought in Winter’s affidavit differ from the amounts awarded by the court on summary judgment, presumably because amounts paid by the Hayeks were applied to the attorney fees and costs, but as noted above, there is no statement as to exactly how the payments were allocated. Given those inconsistencies and the uncertainty regarding the amount of unpaid assessments for which attorney fees were incurred, we cannot determine whether the claimed fees were reasonable. Thus, we reverse the award of attorney fees and costs. See generally Hershiser v. Yorkshire Condo. Assn., 201 Ga. App. 185, 186 (2) (410 SE2d 455) (1991) (evidence showing no more than amount billed by attorney is insufficient to establish reasonableness of claimed attorney fees); see also In re Jacobs, 324 BR 402, 409 (III) (Bankr. N.D. Ga. 2005) (fact that condominium association could lawfully exercise legal remedies upon homeowner’s default does not automatically mean that attorney fees incurred in exercising those remedies are “reasonable attorneys’ fees actually incurred”).

Judgment reversed.

McFadden and Ray, JJ., concur.

       Georgia’s new Evidence Code became effective on January 1, 2013, and applies to any motion made on or after such date. Ga. L. 2011, p. 99, § 101.

       “Because OCGA § 24-8-803 mirrors Rule 803 of the Federal Rules of Evidence, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting that statute. See Ga. L. 2011, p. 99, § 1.” Ware v. MultiBank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 249 (2), n. 11 (758 SE2d 145) (2014) (citations omitted).


author: McFADDEN, Judge.

text:
    A14A0954.
    WAGNER v. ROBINSON.
    (764 SE2d 189)
   McFADDEN, Judge.

Willard P. Wagner appeals the grant of summary judgment to Nancy E. Robinson in this action arising from Wagner’s work on property owned by Robinson. Wagner argues that the trial court erred in granting summary judgment because issues of material fact are in dispute. We find that Robinson has not shown by undisputed fact that Wagner is barred from enforcing the parties’ 2008 oral agreement or that Wagner did not perform his part of the oral agreement. But we agree with Robinson that the evidence that Wagner failed to file notice of his lien action is undisputed. We therefore affirm in part and reverse in part the trial court’s grant of summary judgment to Robinson.

A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). We apply a de novo standard of review “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.” Moore v. Camara, 317 Ga. App. 651, 652 (732 SE2d 319) (2012).

Viewed in this light, the evidence shows that in May 2007, Wagner and Robinson’s father agreed that Wagner would renovate and repair the father’s residence. In exchange, the father was to give Wagner a certain piece of property. The father’s health was declining, and prior to his death Robinson was involved in the renovation work in that she bought materials and would sometimes pay Wagner and other workers. The father died in October 2008, and Robinson inherited the property.

Some time between January and March 2011, Wagner and Robinson signed a written agreement. They acknowledged that they had entered an oral agreement in approximately May 2008 under which Wagner would perform certain home remodeling projects for Robinson in exchange for the future conveyance of clear title to the property that had been part of the agreement with the father. They also acknowledged that Wagner had performed all the work satisfactorily. Nonetheless, Robinson did not transfer the property to Wagner.

Wagner filed this lawsuit in October 2011, seeking enforcement of his agreement with Robinson to perform the work in exchange for the property. He also asserted claims for breach of contract, compensation under a theory of quantum meruit, and foreclosure of his lien. Robinson answered the complaint and filed a counterclaim, alleging that Wagner had committed fraud by representing that he was a Georgia-licensed contractor and that he had failed to complete the work in a satisfactory manner.

In July 2013, Wagner amended his complaint. He alleged that once Robinson’s father died in October 2008, Robinson and Wagner entered an oral agreement to complete the work and that they reduced the oral agreement to writing in January 2011. He sought enforcement of the January 2011 contract. As in the original complaint, he also asserted claims for breach of contract, compensation under a theory of quantum meruit, and foreclosure of his lien. Robinson answered the amended complaint, this time adding as a defense that Wagner was not a Georgia-licensed contractor at the time he entered the agreement, specifying neither the 2008 oral agreement nor the 2011 contract, so the agreement was unenforceable under Georgia statutory law. She again filed a counterclaim.

Robinson moved for summary judgment on Wagner’s claims, although apparently not on her counterclaims. (In her brief in support of her summary judgment motion, Robinson did not argue that she was entitled to summary judgment on her counterclaims.) Robinson made three arguments as to why she was entitled to summary judgment. First, she argued that under OCGA § 43-41-17 (b), Wagner’s failure to have a Georgia contractor license when the parties entered their oral agreement in October 2008 barred him from enforcing it. She also argued that Wagner was not entitled to specific performance because he had not completed his obligations under the agreement. Although she did not specify whether she meant the 2008 oral agreement or the 2011 contract, apparently she meant the 2008 oral agreement. Finally, she argued that Wagner could not foreclose his claim of lien because he had not filed a notice of the lien action with the superior court clerk as OCGA § 44-14-361.1 (a) (3) requires.

Without making findings of fact or conclusions of law, the trial court granted Robinson’s motion for summary judgment, and Wagner filed this appeal.

1. Whether OCGA § 43-41-17 (b) applies to the 2008 contract is a question of fact.

Wagner does not dispute that he did not obtain his Georgia contractor license until July 2012. But he argues that OCGA § 43-41-17 (b), the statute that bars unlicensed contractors from enforcing their contracts, does not apply to the parties’ 2008 oral agreement because they entered the contract before the statute’s effective date. OCGA § 43-41-17 (b) states in pertinent part:

As a matter of public policy, any contract entered into on or after July 1, 2008, for the performance of work for which a residential contractor or general contractor license is required by this chapter and not otherwise exempted under this chapter and which is between an owner and a contractor who does not have a valid and current license required for such work in accordance with this chapter shall be unenforceable in law or in equity by the unlicensed contractor. For purposes of this subsection, a contractor shall be considered unlicensed only if the contractor was unlicensed on the effective date of the original contract for the work, if stated therein, or, if not stated, the date the last party to the contract executed such contract, if stated therein. If the contract does not establish such a date, the contractor shall be considered unlicensed only if the contractor was unlicensed on the first date upon which the contractor provided labor, services, or materials under the contract. Notwithstanding any other provision of law to the contrary, if a contract is rendered unenforceable under this subsection, no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto. . . .

Wagner argues that the parties entered their oral agreement at the latest in May 2008. As evidence, he points to the parties’ 2011 contract, which was attached as an exhibit to his affidavit filed in response to the summary judgment motion. That contract recites that “beginning approximately in May of 2008, an agreement was made between the [pjarties” to the effect that Wagner would perform the work in exchange for the piece of property.

Robinson argues that the evidence is undisputed that the parties entered their oral agreement in October 2008, after the effective date of the statute. She points to two pieces of evidence. First, she points to Wagner’s deposition testimony, but we do not find that testimony to be unequivocal regarding the date of the 2008 oral agreement. Wagner simply testified that after Robinson’s father died, he and Robinson decided “okay, this is what we’re going to do, and [they] went forward from there.” Second, she points to allegations in Wagner’s amended complaint that, “On October 3,2008, [the father] died. At that point, [Robinson and Wagner] entered into an oral contract to complete the work.”

Generally, a party is bound by the admissions made in his pleadings. Knutsen v. Atlanta Women’s Specialists Obstetrics & Gynecology, 264 Ga. App. 87, 89-90 (589 SE2d 588) (2003). However, if the trial court admits conflicting evidence,

and either the court (e.g., when ruling on a motion for summary judgment, as here,) or the jury (when reaching its verdict) considers the conflicting evidence on the merits, the pleadings at that point become amended to conform to such evidence. This is because, by admitting the evidence and allowing the factfinder to consider it, the trial court has in effect, either sua sponte or by overruling an opposing motion, tacitly permitted the pleading party to withdraw the admission contained in the pleadings.

Id. at 90 (citations, punctuation and emphasis omitted). The superior court here expressly stated that it reviewed the parties’ evidence, which included the conflicting evidence as to the date the parties entered the 2008 contract. “The superior court having thus tacitly allowed [Wagner] to ‘amend’ his pleadings, no admission in judicio remained in bar of his claim.” Id. (citations and punctuation omitted). Rather, the withdrawn admission created a conflict of fact. Wilson v. Ortiz, 232 Ga. App. 191, 197 (3) (501 SE2d247) (1998). Consequently, the date the parties entered the 2008 oral agreement was not undisputed, and Robinson was not entitled to summary judgment on this ground.

2. Robinson was not entitled to summary judgment on the specific performance claim.

In her motion for summary judgment, Robinson argued that Wagner was not entitled to specific performance because he did not fully perform his part of the agreement. See Simpron Acquisition Co. v. L. Simpson Charitable Remainder Unitrust, 305 Ga. App. 564, 566 (1) (b) (699 SE2d 860) (2010) (“A party seeking specific performance of a contract must show substantial compliance with his part of the agreement in order to be entitled to a decree.”) (citation omitted). (It appears she was referring to the 2008 oral agreement, not the 2011 contract.) Among other things, she points to Wagner’s deposition testimony that the work had not been inspected.

Wagner argues that the evidence shows he completed the work required by the parties’ 2008 oral agreement. He points to the 2011 contract, in which the parties acknowledged that the work had been completed and that no additional work would be requested under the agreement. And he points to the provision in the 2011 contract which states that it “supersedes any and all prior understandings” between the parties. “[I]f a contract contains an entire agreement clause, a party cannot argue [she] relied upon representations other than those contained in the contract.” Fabian v. Pontikakis, 327 Ga. App. 392, 396 (1) (759 SE2d 295) (2014) (citation and punctuation omitted).

Because Robinson has not shown “that there is no genuine issue as to any material fact and that [she] is entitled to a judgment as a matter of law,” OCGA § 9-11-56 (c), the trial court erred in granting her summary judgment on Wagner’s specific performance claim.

3. Wagner has not pointed to evidence that he filed a notice of his lien action with the superior court clerk as OCGA§ 44-14-361.1 (a)(3) requires.

Robinson argued on summary judgment that Wagner’s lien was unenforceable because he did not file a notice of his lien action with the superior court clerk. OCGA § 44-14-361.1 (a) (3) provides in part that a contractor lien is unenforceable unless “within 30 days after commencing [a] lien action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed.”

When asked whether he had filed anything with the superior court clerk after he filed his lien, Wagner answered, “not that I recall.” He does not point to any evidence that he filed the required notice. Nor does he make any argument on this issue. Consequently, he has not shown that the superior court erred by granting Robinson summary judgment on his claim for foreclosure of his lien.

4. Robinson’s summary judgment cannot be affirmed under the “right for any reason” rule.

In her motion for summary judgment, Robinson argued that the 2008 oral agreement was unenforceable due to Wagner’s lack of a contractor license, that Wagner was not entitled to specific performance because he did not complete the work in the parties’ agreement, and that Wagner could not recover on his lien because he had not filed the required notice with the superior court. She did not rely below on an argument that the 2011 contract was unenforceable due to Wagner’s lack of a contractor license. She makes that argument now, but we cannot address it.

Appellate courts do apply the “right for any reason” rule when reviewing grants of summary judgment. City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002). “But that rule cannot be applied so as to affirm the trial court” on grounds not raised before the trial court. Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013). “[A] grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” Id. (citation omitted; emphasis in original). Since Robinson did not present this issue in her motion for summary judgment, application of the right for any reason rule is not appropriate.

Decided September 26, 2014.

William G. Schwall, for appellant.

Townley & Lindsay, Thomas F. Lindsay, for appellee.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ray, J., concur.


author: Phipps, Chief Judge.

text:
    A14A1084.
    BANKS v. THE STATE.
    (764 SE2d 187)
   Phipps, Chief Judge.

Joshua Banks was indicted on charges of felony murder, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. A jury found him guilty of involuntary manslaughter as a lesser included offense of felony murder, and guilty of the firearm possession charges. Banks appeals from the convictions and the denial of his motion for new trial, contending that the court erred by failing to include on the verdict form reckless conduct as a lesser included offense of felony murder. We affirm.

Viewed in the light most favorable to the verdict, the evidence showed the following. On January 18, 2010, Banks was with several people in the parking lot of an apartment complex. Banks displayed a handgun and “playfed] with it.” He then fired the gun in the air, said “that’s building 16,” and fired several shots into the building. One of the bullets entered a window of an apartment in that building, fatally striking thirteen-year-old T. S., who resided in the apartment.

In September 2010, police officers interviewed Banks about the shooting. After officers advised Banks of his Miranda rights, he admitted that on the night of the shooting, he had been drinking heavily and “just started shooting.” Banks claimed that what happened had been an accident, and that he had been reflecting on how he “had taken . . . this boy’s young life.”

In its charge, the court pertinently instructed the jury to consider whether mitigating circumstances would cause the felony murder charge to be reduced to involuntary manslaughter. The court then defined for the jury involuntary manslaughter, instructed that involuntary manslaughter would be predicated on the offense of reckless conduct, and defined reckless conduct. The verdict form submitted to the jury listed involuntary manslaughter as a lesser included offense of felony murder, but did not list reckless conduct as a lesser included offense.

In his motion for new trial, Banks challenged, inter alia, the court’s failure to include reckless conduct on the verdict form as a lesser included offense of felony murder. In its order denying the motion, the court stated that a separate reckless conduct option was not required to be on the verdict form because there was no evidence of reckless conduct other than that which directly related to the death of the victim; the reckless conduct charge “had to be in the context of involuntary manslaughter.”

1. Although Banks does not challenge on appeal the sufficiency of the evidence, a rational jury was authorized to find him guilty beyond a reasonable doubt of the crimes for which he was convicted.

2. Banks contends that reversal is required because the trial court failed to include on the verdict form reckless conduct as a lesser included offense of felony murder. Assuming that Banks informed the court of this specific objection before the jury retired to deliberate, the contention is nonetheless without merit.

“If a death occurs as the result of reckless conduct, a defendant is guilty of involuntary manslaughter. Here, there was no evidence of [Banks’s] allegedly reckless conduct other than that directly related to the death of the victim.” Thus, as the trial court stated, a charge on reckless conduct had to be in the context of involuntary manslaughter. In this case, the verdict form was consistent with the jury charges and was properly adjusted to the evidence. Accordingly, the court did not err by failing to include reckless conduct on the verdict form. We note that the cases relied upon by Banks are inapposite and do not support his position that the trial court must include on a verdict form reckless conduct as a lesser included offense of felony murder.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

Decided September 26, 2014

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

       OCGA § 16-5-3 (a).

       OCGA § 16-5-1 (c).

       OCGA §§ 16-11-131; 16-11-106.

       See Van v. State, 294 Ga. 464, 465 (1) (754 SE2d 355) (2014).

       The state introduced evidence showing that Banks previously had been convicted of a felony.

       The verdict form showed:
      COUNT ONE - FELONY MURDER
      _... NOT GUILTY of Felony Murder.
      OR
      __ . . . GUILTY of Felony Murder.
      OR
      _ . .. GUILTY of the lesser included offense of Involuntary Manslaughter.

       SeeOCGA § 16-5-3 (a) (“Aperson commits the offense ofinvoluntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony”; this offense is punishable by imprisonment of not less than one year nor more than ten years (i.e., a felony (OCGA § 16-1-3))); Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Roscoe v. State, 288 Ga. 775 (1) (707 SE2d 90) (2011) (possession of a firearm by a convicted felon); Hickson v. State, 308 Ga. App. 50, 51 (1) (706 SE2d 670) (2011) (possession of a firearm during the commission of a felony); Snell v. State, 306 Ga. App. 651, 653 (1) (703 SE2d 93) (2010) (involuntary manslaughter).

       OCGA § 16-5-60 (“Reckless conduct . . . (b) A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor”).

         At trial, Banks argued that “reckless conduct” should be included on the verdict form as a lesser included offense of involuntary manslaughter. See Cheddersingh v. State, 290 Ga. 680, 682-683 (2), n. 2 (724 SE2d 366) (2012) (stating that appellant had a duty to inform the trial court of the specific objection to the verdict form before the jury retired to deliberate; failure to object in accordance with OCGA § 17-8-58 (a) “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties”; further, treating preprinted verdict form as a portion of the jury instructions in determining whether there was error in jury instructions).

        Simmons v. State, 266 Ga. 223, 229 (7) (b) (466 SE2d 205) (1996) (citation omitted); Reed v. State, 238 Ga. App. 297, 298 (517 SE2d 824) (1999); see Snell, supra.

        Simmons, supra; Snell, supra; Reed, supra.

       See Reed, supra.

        Reed, supra. See generally Arvinger v. State, 276 Ga. App. 127, 129 (2) (622 SE2d 476) (2005) (verdict form was not required to remind jury of its alternatives as to lesser included offenses); McElroy v. State, 244 Ga. App. 500, 502 (1) (b) (536 SE2d 188) (2003) (finding no error in the form of the verdict where the form did not include lesser included offenses; noting that appellant had cited no precedent which would have required the trial court to submit a special verdict form reminding the jury of its options as to lesser included offenses).

       Cases cited by Banks include: Manzano v. State, 282 Ga. 557, 559-560 (3) (a) (651 SE2d 661) (2007) (felony murder conviction reversed where trial court refused to give defendant’s requested charge on involuntary manslaughter with reckless conduct as the predicate misdemeanor); Reed v. State, 279 Ga. 81, 86-87 (7) (610 SE2d 35) (2005) (defendant was not entitled to a charge on misdemeanor involuntary manslaughter (OCGA § 16-5-3 (b) — regarding commission of a lawful act in an unlawful manner) because evidence did not support such a charge); Reinhardt v. State, 263 Ga. 113-114 (2) (428 SE2d 333) (1993) (felony murder and arson convictions reversed where trial court refused defendant’s request to charge on involuntary manslaughter and reckless conduct; Court noted that there was evidence that the setting of the fire was the result of reckless conduct), overruled on other grounds by Vergara v. State, 283 Ga. 175, 177-178 (1) (657 SE2d 863) (2008); Allison v. State, 288 Ga. App. 482, 485 (1) (654 SE2d 628) (2007) (no death resulted); Beaton v. State, 255 Ga. App. 901, 902-903 (2) (567 SE2d 113) (2002) (no death resulted); McDonald v. State, 224 Ga. App. 411, 412-413 (481 SE2d 1) (1997) (no death resulted).


text:
    A14A1269.
    VERA v. THE STATE.
    (764 SE2d 427)
    Decided September 29, 2014.

      Patty & Young, Clifton M. Patty, Jr., for appellant.

      Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Mark P. Higgins, Jr., Assistant District Attorneys, for appellee.
   ANDREWS, Presiding Judge.

Pursuant to the grant of an out-of-time appeal, Hector Vera appeals from the judgment of conviction entered after he pled guilty in 2004 to one count of misdemeanor family violence battery and three counts of misdemeanor second degree cruelty to children. His sole enumeration of error is that the guilty plea is invalid because he was not advised of his rights under Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969). The trial court record shows, and the State concedes, that Vera was not advised of his Boykin rights to confront witnesses and the privilege against self-incrimination. Because the record shows that Vera was not advised of and did not knowingly waive these Boykin rights, his guilty plea is invalid, and his conviction must be reversed and the case remanded to the trial court for further proceedings. Tyner v. State, 289 Ga. 592, 595 (714 SE2d 577) (2011).

Judgment reversed and case remanded.

McFadden and Ray, JJ., concur.

       The misdemeanor offense of second degree cruelty to children with which Vera was charged in 2004 has since heen re-defined as misdemeanor third degree cruelty to children in OCGA § 16-5-70 (d).


author: Boggs, Judge.

text:
    A14A1472.
    HAGAN v. KEYES.
    (764 SE2d 423)
   Boggs, Judge.

Jules Hagan appeals following a jury verdict in favor of Christopher Keyes on Keyes’ complaint seeking damages for fraud, breach of contract, and unjust enrichment. Hagan asserts that the trial court erred in awarding Keyes damages on the breach of contract claim, denying his motion for a directed verdict on the fraud claim, and awarding Keyes attorney fees. Hagan also asserts that Keyes’ unjust enrichment claim fails as a matter of law. For the following reasons, we affirm the entry of judgment on Keyes’ claim for damages, but reverse the award of attorney fees for lack of sufficient evidence.

Viewed in the light most favorable to the verdict, the evidence showed that Billy Nelson was contacted by Hagan about purchasing certain property owned by Bruce Townsend. When Keyes expressed to Nelson, who was his friend and neighbor, that he was “looking for some acreage to buy,” Nelson told him about Townsend’s property. Keyes asked Nelson if Hagan had a contract on the property, and if he would be “willing to sell the contract.” Keyes told Nelson to inform Townsend that he would give him “a $ 100,000 upfront binder and that he would give . . . Hagan $100,000 for the sale of the contract.”

Hagan agreed to enter into the purchase agreement with Townsend and then to assign that agreement to Keyes for $100,000. Keyes testified that Nelson persuaded him not “to go down to the property” or talk to Townsend because “the deal would get screwed up.” On May 14,2007, Townsend and Hagan signed an agreement for the purchase of 70 acres for $700,000 (71 acres minus the 1 acre for Townsend’s home) prepared by Keyes’ attorney. Ten days later, Hagan assigned the agreement to Keyes.

After the assignment, Keyes and Hagan went to look at the property, and Keyes discovered from Townsend that a portion of it, the marshfront portion, had already been sold. Keyes then researched property records and discovered that six of Townsend’s seventy acres, a fair amount of which “was right along the marsh that would grant [Keyes] access ... to the river,” were sold in 1999 and 2000. Keyes informed Townsend that the portion of the property that had already been sold, and which he believed he would purchase under the assigned purchase agreement, had significant value, and that while he remained committed to the purchase, Townsend had “significantly damaged [his] position.” When Keyes requested the return of his money from both Hagan and Townsend, Hagan told him, “He didn’t have the money, ‘Go ahead and sue me, . . . [n]othing is in my name anyways.’ ” Townsend told Keyes, “He ain’t got it, you know, gone, spent, back taxes, whatever, spent it all.”

Nelson testified that he was unaware that a portion of the 70 acres had been sold. Hagan testified that he was aware some of Townsend’s property had been sold, but that he believed 70 acres remained and that the purchase was for the 70 acres “at [$] 10,000 an acre.” Townsend, however, testified that the total sales price was not based upon a certain price per acre, that he was aware at the time he signed the purchase agreement that he “didn’t have 70 acres to sell,” and that Hagan “also knew that.” Townsend explained that he had informed the parties that “six acres [were] missing,” that he had known Hagan “all [his] life,” and that Hagan “knew that the acreage was missing. And I figured that there would be — they had been out there doing some wetlands work..., so I figured we was in the process of getting everything legally done the way it should be done.” Townsend explained further that he was unaware of Keyes’ agreement with Hagan to assign the purchase agreement and did not become aware of Keyes’ involvement for “10 days to 2 weeks” after he signed the purchase agreement with Hagan.

When Townsend refused to return the $100,000 Keyes paid in earnest money through Hagan, Keyes sued Townsend for specific performance, or in the alternative the return of the $100,000, and claimed that Townsend committed fraud. Townsend filed a third-party complaint against Hagan alleging that Hagan failed to disclose to Keyes that six acres were not included in the sale. Hagan answered and asserted a counterclaim against Townsend seeking damages for breach of contract and fraud. Keyes then filed a complaint against Hagan, the third-party defendant, seeking damages for breach of contract, fraud, and unjust enrichment.

Following a trial on the claims asserted, a jury found in favor of Keyes and against both Hagan and Townsend “jointly and severally in the amount of: $200,000, in damages flowing from the contractual agreement . . . and, $12,000 in attorney’s fees and the costs of litigation.” It is from this verdict that Hagan appeals.

1. Hagan asserts that Keyes’ claim for unjust enrichment fails as a matter of law. But the verdict form reflects that the jury did not enter a verdict against Hagan on Keyes’ claim for “damages flowing from the theory of unjust enrichment.” This claim of error is therefore without merit.

2. Hagan contends that the trial court erred in awarding damages on Keyes’ breach of contract claim. The verdict form allowed the jury to decide whether to rule in favor of Hagan or Townsend, or to rule against them “jointly and severally” for “damages flowing from the contractual agreement,” against Townsend individually for “damages flowing from the contractual agreement,” or against Hagan individually for “damages flowing from the theory of unjust enrichment.” The verdict form did not distinguish between Keyes’ claims for breach of contract and fraud, and Hagan posed no objection to the form. “In the absence of a verdict form requiring the jury to specify how it found the defendants liable, the method by which a jury reaches a particular verdict is not a matter of which this Court can take judicial cognizance.” (Citations and punctuation omitted.) Bloodworth v. Bloodworth, 277 Ga. App. 387, 389 (1) (b) (626 SE2d 589) (2006); see also Esprit Log & Timber Frame Homes v. Wilcox, 302 Ga. App. 550, 554-555 (3) (691 SE2d 344) (2010) (where verdict form did not specify which of several underlying causes of action formed basis for award, no showing of impermissible double recovery). We cannot decide whether the trial court erred in awarding damages for breach of contract because we have no verdict before us showing that the jury did in fact find in favor of Keyes under that theory. See Wilcox, supra.

3. Hagan argues that the trial court erred in denying his motion for a directed verdict on Keyes’ fraud claim. Specifically, Hagan contends that there was no evidence of scienter or justifiable reliance. “[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.” (Citation, punctuation and footnote omitted.) Goody Products v. Development Authority of the City of Manchester, 320 Ga. App. 530, 534-535 (1) (740 SE2d 261) (2013). “The elements of fraud are (1) false representation by defendant; (2) scienter or knowledge of the alleged falsehood; (3) intent to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff.” (Citations and punctuation omitted.) Nebo Ventures v. NovaPro Risk Solutions, 324 Ga. App. 836, 838-839 (1) (752 SE2d 18) (2013).

Hagan argues that there was no evidence he had scienter — knowledge of the falsehood concerning the amount and type of property Townsend owned and could therefore sell to Keyes via Hagan’s assignment of the purchase agreement. But to the contrary, there was some evidence Hagan was aware, prior to assigning the agreement to Keyes, that Townsend had sold six acres and that some of that acreage was marshfront property.

Hagan also argues that Keyes cannot show justifiable reliance because he failed to perform any due diligence prior to purchasing the assignment to discover the number of acres Townsend owned and was therefore able to sell. “We have frequently cautioned.that questions of fraud, the truth and materiality of representations made by a seller, and whether the buyer could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” (Citations and punctuation omitted.) Stephen A. Wheat Trust v. Sparks, 325 Ga. App. 673, 676-677 (2) (754 SE2d 640) (2014). This principle would apply here to the agreement between Hagan and Keyes to assign the purchase agreement to Keyes in exchange for $100,000. Keyes testified that prior to the assignment, he had desired to visit the property and talk to Townsend, but that Nelson warned him such actions could affect the purchase deal between Hagan and Townsend. The fact that Keyes checked property records and discovered the problem after the assignment and before closing on the purchase does not mean that such inquiry was required as a matter of law prior to the assignment. It was for the jury to decide whether Keyes justifiably relied upon the purchase agreement Hagan assigned to him or whether he should have made some further independent inquiry. See Nebo Ventures, supra, 324 Ga. App. at 842 (1) (d); see also Akins v. Couch, 271 Ga. 276, 279 (2) (b) (518 SE2d 674) (1999) (“[T]he location of information in public records does not necessarily defeat a claim of passive concealment.”); Cates v. Owens, 87 Ga. App. 270, 275-276 (1) (73 SE2d 345) (1952) (previous knowledge of land and its boundaries did not preclude recovery for fraudulent misrepresentation).

Because there was some evidence to support a verdict against Hagan for fraud, we cannot say that the trial court erred in denying his motion for directed verdict. Goody Products, supra, 320 Ga. App. at 533-534 (1).

4. Hagan contends that the trial court erred in awarding attorney fees to Keyes because no evidence was presented as to the reasonableness of the fees or the amount of fees that were attributable to his prevailing claim.

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

OCGA § 13-6-11. But “[a]n award of attorney fees is unauthorized if appellee failed to prove the actual costs of the attorney and the reasonableness of those costs.” (Citations, punctuation and footnote omitted.) Cannon Air Transp. Svcs. v. Stevens Aviation, 249 Ga. App. 514, 519 (6) (548 SE2d 495) (2001).

Decided September 29, 2014.

Ashley E. Browning, Williams, Rentz & Moulton, Jeffrey B. Rentz, for appellant.

Adam S. Poppell III, J. Alvin Leaphart, for appellee.

Keyes requested attorney fees in his complaint against Hagan, and presented evidence that he owed his attorney $ 12,000 in fees. But no evidence was presented regarding the reasonableness of those fees. In the absence of some documentation or testimony “to show what constituted a reasonable attorney fee in light of the litigation history of the case,” the evidence is insufficient to support the jury’s verdict. Smith v. Travis Pruitt and Assoc., 265 Ga. 347, 348 (2) (455 SE2d 586) (1995). The award of attorney fees must therefore be reversed. Prainito v. Smith, 315 Ga. App. 791, 795-796 (4) (728 SE2d 309) (2012).

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Branch, J., concur.

       Townsend is not a party to this appeal.

       We also note that the jury was not charged on the issue of attorney fees.


text:
    A14A1459.
    THE STATE v. ROBERTSON.
    (764 SE2d 427)
   ANDREWS, Presiding Judge.

Following a jury trial, David Robertson was convicted of two counts of rape and two counts of aggravated sodomy. Robertson filed a motion for new trial, which the trial court granted, finding that the State failed to prove venue in Fulton County beyond a reasonable doubt. The State now appeals, arguing that it presented sufficient evidence as to venue. For the reasons that follow, we affirm.

We first address the standard of review. OCGA § 5-5-50 states: “The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” While the statute may provide the standard of review in both civil and criminal cases, it “is not applicable in all situations where a trial court has entered a first grant of a motion for new trial.” O’Neal v. State, 285 Ga. 361, 362-363 (677 SE2d 90) (2009). For example, we review de novo a trial court’s first grant of a new trial on a special ground involving a question of law. Id. at 363; see also State v. James, 292 Ga. 440, 441 (1) (738 SE2d 601) (2013).

Robertson’s motion for new trial, as amended, asserted the general grounds, see OCGA §§ 5-5-20 and 5-5-21, discussed the scope of a trial court’s discretion to grant a new trial under those statutes, and argued that the verdict was contrary to the law and evidence because the State failed to prove venue beyond a reasonable doubt. OCGA §§ 5-5-20 and 5-5-21 “afford the trial court broad discretion to sit as a thirteenth juror and weigh the evidence on a motion for new trial alleging [the] general grounds.” (Citation and punctuation omitted.) Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013). At the hearing on the motion for new trial, however, Robertson’s counsel, rather than discussing the trial court’s discretion to grant a new trial on the general grounds, argued that the evidence at trial was legally insufficient to establish venue in Fulton County. The trial court’s order on the motion for new trial contains no indication that it exercised any discretion. Rather, the trial court concluded as a matter of law that the circumstantial evidence upon which the State relied to prove venue was legally insufficient. The trial court thus granted a new trial on the general grounds, but it did so based on a purely legal determination. See Jones v. State, 272 Ga. 900, 901-902 (2) (537 SE2d 80) (2000) (“[T]he State’s failure to prove venue beyond a reasonable doubt renders the verdict contrary to law [and] without a sufficient evidentiary basis.”) (punctuation and footnote omitted). Under these circumstances, we conclude that, consistent with our general practice in reviewing questions of law, a de novo standard of review should be applied. See, e.g., Bell v. State, 323 Ga. App. 751 (748 SE2d 114) (2013).

The evidence at trial showed that on April 20, 2005, Robertson drove a co-worker home after work to 222 Cole Street, Marietta in Cobb County. When Robertson and his co-worker arrived, some girls were sitting on the front porch, including the 16-year-old victim, who lived there, and the victim’s sister. Later in the evening, the victim’s sister asked Robertson to drive her to her apartment at 740 Mozley Drive, Smyrna in Cobb County. Robertson drove the victim’s sister and her sister’s boyfriend to that address, and the victim rode with them.

The victim testified that after dropping off her sister and her sister’s boyfriend, Robertson told her that he wanted to take her to “see the lights of Atlanta.” She stated that she could not remember whether they drove in the direction of Atlanta or how long they were in the car but testified that it was “for a while.” They stopped when they “got to the park.” The victim recalled that they “got to a building and ended up parking.” The victim testified that she ended up lying on some sheets and clothes Robertson laid on the ground and that Robertson raped her. The victim testified that they got back in the car and that she thought they went back to Marietta. They stopped on the way, and the victim did not know where they were. The victim stated that they got out of the car and that Robertson made her bend over the hood and stuck his penis in her vagina. He also made her put his penis in her mouth. The victim stated that she thought Robertson managed to put his penis in her vagina again after they got back in the car. Then Robertson took her home. The victim disclosed what had happened to one of the adults in her Cole Street home, who took the victim to the hospital. The victim admitted on cross-examination that she was not sure that she was in Piedmont Park. When asked, “isn’t it true that you simply told one of the district attorneys or a police officer that you were in a park and that it was the district attorney or the police officer that suggested that it was Piedmont Park,” the victim replied, “yes.”

A City of Marietta police officer who interviewed the victim at the hospital testified that she was able to determine where the crime occurred because the victim was describing landmarks where she and Robertson were driving, such as Turner Field. The officer testified that the victim told her that Robertson pulled into a park not far from Turner Field. According to the officer, the victim also said something about the park being under construction and having big dirt piles. The officer testified that she called Fulton County to find out if Piedmont Park was in “their jurisdiction” and was informed that it was and that Fulton County would send an officer to the hospital. She testified on cross-examination that when she called Fulton County, she was told that there were big dirt piles close to Piedmont Park, but she also stated: “I have not seen the park still to this day, so I can’t tell you.” The officer clarified that one reason she called Fulton County was that she believed the crimes occurred in Atlanta. She also admitted that the victim never told her that she had been in Piedmont Park.

A detective with the City of Atlanta Police Department who investigated the case testified that he received a call from the Marietta Police Department on April 21, 2005 and learned that the victim was at a hospital in Marietta and was reporting that she had been sexually assaulted in Atlanta. The detective met with the victim that day, and she told him that she had traveled with Robertson from Cobb County, they got on 1-285, and he asked her if she wanted to go to Atlanta to see the city lights. He further testified that the victim had disclosed to the Marietta police officer that the sexual assault happened in Piedmont Park. When the prosecutor asked him to clarify what he learned from the victim regarding the location of the crime, the detective responded that the victim and the Marietta police officer both told him that the sexual assault happened “inside the city at Piedmont Park.” The prosecutor then showed the detective a map, and the detective testified that it showed a route from the victim’s sister’s apartment in Cobb County “to Piedmont Park inside the City of Atlanta.” The map was admitted into evidence for demonstrative purposes and published to the jury. The detective testified that the map delineated the border between Fulton County and Cobb County, the area in Cobb County appeared in darker shading, and Piedmont Park was marked with a star. The map depicts Piedmont Park as located in Fulton County.

An investigator for the Atlanta Judicial Circuit, Public Defender’s Office testified during the defense case that she had worked on Robertson’s case and had interviewed the victim in April 2006. She testified that the victim told her that “we were in Atlanta” but also stated that Robertson took her to a park and that she did not know where she was. She also testified that the victim told her that part of the events occurred in Atlanta and part in Marietta. A public defender representing Robertson also participated in the interview and testified that the victim stated that she was unsure where she was and that the “second event” occurred in Marietta. Robertson testified that he had consensual sex with the victim at two locations on the night in question and that they never entered Atlanta or crossed the Chattahoochee River, which forms the boundary between Fulton County and Cobb County. He also stated that he is familiar with “the outskirts of Atlanta that cross over into Cobb . . . but not coming from Cobb crossing over to Atlanta, Fulton County.”

The State argued at trial and the trial court agreed that the jury charge should include an instruction based on OCGA § 17-2-2 .(h), which states: “If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” The State argued during closing argument that the jury was authorized to find venue in Fulton County under the terms of this statute. But in concluding that the State failed to prove venue, the trial court did not consider or address OCGA § 17-2-2 (h). Even under this Code section, however, the State fell short of proving venue because it did not establish beyond a reasonable doubt that Robertson and the victim entered Fulton County. The evidence on this issue was circumstantial. While venue may be proved with circumstantial evidence, see Lanham v. State, 291 Ga. 625, 626 (2) (732 SE2d 72) (2012), the evidence here was insufficient to exclude every reasonable hypothesis that Robertson and the victim never entered Fulton County. See OCGA § 24-14-6; former OCGA § 24-4-6.

Testimony that Robertson intended to or did drive the victim to Atlanta does not establish that Robertson drove the victim into Fulton County because of the dearth of evidence as to the county or counties in which Atlanta is located. The Marietta officer testified that one reason she called Fulton County was that she believed the crimes occurred in Atlanta, and her testimony was evidence that Atlanta lies to some extent in Fulton County. The Atlanta police detective testified that Piedmont Park is in Atlanta and in Fulton County, which likewise indicates an overlap between the city and county. Robertson testified at one point that he is familiar with “the outskirts of Atlanta that cross over into Cobb ... but not coming from Cobb crossing over to Atlanta, Fulton County.” Even if it may be inferred from his testimony that Fulton County and Atlanta share a common boundary with Cobb County, the record is silent regarding the extent of the confluence. Significantly, while there was evidence that some part of Atlanta is in Fulton County, the State did not show that if Robertson drove into Atlanta, he necessarily also crossed the border between Fulton County and Cobb County.

Nor did the Atlanta detective’s testimony concerning the location of Piedmont Park on a map showing the border between the two counties aid the State in proving that Robertson and the victim entered Fulton County. While such testimony was sufficient to allow the jury to conclude that Piedmont Park is located in Fulton County, see Smith v. State, 295 Ga. 283, 288 (2) (759 SE2d 520) (2014), the State was unable to prove that Robertson and the victim went to Piedmont Park. Although the Atlanta detective testified that the Marietta officer and the victim told him that the crime occurred in Piedmont Park, the victim admitted that she was not sure that she was in Piedmont Park on the night in question and that a police officer or district attorney had suggested that location to her. Even crediting the Atlanta detective’s testimony that the victim identified Piedmont Park as the location of one of the crimes, the record does not support the conclusion that she did so based on her own personal knowledge. To the extent that the Marietta officer told the Atlanta detective that Robertson and the victim had been in Piedmont Park, her testimony establishes that she reached this conclusion because the victim mentioned driving by landmarks like Turner Field. The Marietta officer admitted that the victim did not tell her that she had been in Piedmont Park.

The Marietta officer testified that after the victim mentioned Turner Field and a park with big dirt piles, she contacted Fulton County to determine if Piedmont Park was in its jurisdiction. The Marietta officer did not discuss the location of Turner Field relative to Piedmont Park, mention whether there are other parks in the vicinity of Turner Field, or explain how or if she excluded the possibility that Robertson might have stopped at another park. The Marietta officer also stated that Fulton County advised her that there were dirt piles at Piedmont Park, but even assuming this hearsay carried probative value, see Clement v. State, 324 Ga. App. 39, 42 (749 SE2d 41) (2013), she did not explain how or if she determined that other parks in the area did not have dirt piles. She also admitted that she has never seen Piedmont Park. We cannot conclude that the circumstances upon which the Marietta officer relied in identifying Piedmont Park as an actual or possible crime scene were sufficient to exclude other reasonable possibilities or that her opinion that one of the crimes occurred there carries any more weight than the circumstantial evidence upon which it is based. See Clay v. State, 193 Ga. App. 377, 378 (2) (387 SE2d 644) (1989) (reversing DUI conviction and concluding that arresting officer’s observations of appellant did not provide evidentiary foundation for his opinion that appellant was less safe driver).

Since the State failed to present circumstantial evidence supporting a finding that Robertson and the victim entered Fulton County, the jury had no basis to apply OCGA § 17-2-2 (h). See Melton v. State, 282 Ga. App. 685 (639 SE2d 411) (2006) (State failed to prove that residence where appellant committed sexual crimes against victim was in county and thus presented no evidence supporting venue in county under OCGA § 17-2-2 (h) as to subsequent crime that occurred when appellant took victim for motorcycle ride to unknown location). Compare Taylor v. State, 328 Ga. App. 551 (1) (759 SE2d 892) (2014) (evidence was sufficient as to venue for aggravated sodomy; victim was abducted in county, driven to wooded area where crime occurred, and then rescued in county); Sewell v. State, 302 Ga. App. 151, 155 (3) (690 SE2d 634) (2010) (venue as to aggravated assault that occurred in appellant’s car sufficiently established by evidence that appellant shot victim as she drove between two locations in county). The trial court did not err in granting a new trial based on the State’s failure to prove venue beyond a reasonable doubt.

Judgment affirmed. McFadden, J., concurs.

Ray, J., concurs in judgment only.

Decided October 2, 2014.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellant.

Lee W. Fitzpatrick, for appellee.

       The trial court also concluded that the State failed to prove the necessary elements of one of the aggravated sodomy counts, Count IV, which alleged that Robertson “did unlawfully and forcibly perform a sexual act involving accused’s male sex organ and the anus of [the victim] against the will of the said [victim].” That portion of the trial court’s order is not at issue in this appeal.

       Georgia’s new Evidence Code, which became effective on January 1,2013, applies “to any motion made or hearing or trial commenced on or after such date.” Ga. L. 2011, p. 99, § 101. Robertson’s trial took place in May 2009, and our analysis of evidentiary issues at trial is therefore governed by pre-existing law.