text:
    A16A1233.
    THE STATE v. CLAY.
    (793 SE2d 636)
   McMlLLIAN, Judge.

The State appeals the trial court’s order granting Henry Franklin Clay’s motion to suppress the results of a state-administered chemical blood test, arguing that the trial court erred in finding that Clay did not voluntarily consent to the test. For the reasons that follow, we agree and reverse.

“On appeal from a ruling on a motion to suppress, we construe the evidence most favorably to affirming the trial court’s factual findings and judgment.” (Citation and punctuation omitted.) Jacobs v. State, 338 Ga. App. 743 (791 SE2d 844) (2016). “[T]he trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” (Citation and punctuation omitted.) Id. However, “[t]he trial court’s application of the law to undisputed facts is subject to de novo review.” (Citations and punctuation omitted.) Id.

So viewed, the record shows that between 2:00 and 3:00 a.m. on March 14, 2015, a Savannah-Chatham Metropolitan police officer responded to a call regarding a motor vehicle accident. Upon arrival at the scene of the accident, the officer discovered that a vehicle driven by Clay had apparently “t-boned” a stalled vehicle that had run out of gas while attempting to make a left-hand turn onto Old Montgomery Road from East Montgomery Crossroads. The officer located Clay inside his vehicle, and when Clay complained of pain in his shoulder, the officer called for EMS assistance.

While waiting on EMS to arrive, the officer observed that Clay smelled very strongly of an alcoholic beverage, that his words were slurred, and that his eyes were glassy. Clay admitted that he had been drinking that evening, although his answers regarding when and how much he had consumed changed throughout the conversation. When EMS arrived, the officer noticed that Clay was unsteady on his feet as he climbed into the back of the ambulance. Once Clay was seated in the ambulance, he declined to have EMS treat him for any injuries.

Based on her observations, the officer determined that she should administer field sobriety testing on Clay to determine if he was intoxicated. Clay consented to the testing, but due to the weather and road conditions, the officer decided to forego the one-leg stand and walk-and-turn tests and only conducted the horizontal gaze nystagmus test. Because she noted that Clay had a lack of smooth pursuit in both eyes, nystagmus at maximum deviation in both eyes, and the onset of nystagmus prior to 45 degrees, the officer believed that Clay was under the influence of alcohol to the point that he was unsafe to operate a motor vehicle. She then asked Clay if he would consent to a preliminary breath test on scene, and he agreed. Based on those results, Clay was placed under arrest.

After his arrest, the officer immediately read Clay the Georgia implied consent warning for suspects over the age of 21 — based on the date of birth provided on his driver’s license. In response, Clay stated, “so you’re going to draw my blood, all right, I’ll submit.” Before drawing his blood, EMS personnel asked Clay if he consented, and he said yes. Clay then signed an electronic consent form provided by EMS. The EMS personnel proceeded to withdraw Clay’s blood without incident. Clay was later charged with driving under the influence of alcohol (per se) and driving under the influence of alcohol (less safe).

Prior to trial, Clay moved to suppress the results of the state-administered chemical blood test. At the motion hearing, the State presented the testimony of the arresting officer, who testified that throughout the encounter with Clay, she spoke in a calm tone of voice and was not threatening or violent. She did not observe anything that led her to believe that Clay was unable to make a decision on his own. The officer also testified that Clay never attempted to withdraw his consent, that Clay orally consented to the EMS personnel’s request to take his blood, and that he signed a separate consent form.

In its December 31, 2015 order granting Clay’s motion to suppress, the trial court noted that Clay agreed to submit to the blood test and that he was not threatened in any way and did not show any physical resistance. Nonetheless, the trial court determined that there is “nothing in the totality of circumstances, and taking into consideration that a suspect could feel concerned about refusing because of the possibility of losing a limited permit, among other reasons, to suggest that the defendant did anything more than acquiesce to the blood draw.” The trial court further found that “there was no apparent additional conversation or interaction with regard to the test to indicate that actual consent was sought or given,” such that Clay’s consent was insufficient pursuant to Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). This appeal followed.

The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution protect an individual’s right to be free from unreasonable searches and seizures, including the compelled withdrawal of blood. See Williams, 296 Ga. at 819. Thus, the warrantless extraction of blood is presumed to be invalid, subject only to a few specifically established exceptions. Id. Here, the State invokes the consent exception to the warrant requirement. “Historically, we considered a defendant’s affirmative response to the reading of the implied consent notice as sufficient to allow a search of his or her bodily fluids without further inquiry into the validity of the defendant’s consent.” (Citations omitted.) Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016). However, in Williams, our Supreme Court rejected a rule automatically equating an affirmative response to Georgia’s implied consent notice with actual consent to a search within the meaning of the Fourth Amendment. 296 Ga. at 819. “Instead, courts must now conduct a case-by-case analysis, considering the totality of the circumstances.” (Citation omitted.) Kendrick, 335 Ga. App. at 769.

In conducting a totality of the circumstances analysis, Georgia courts have considered a variety of factors. “A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” (Citation and punctuation omitted.) Jacobs, 338 Ga. App. at 748 (2). And a “defendant’s affirmative response to the implied consent notice may itself be sufficient evidence of actual and voluntary consent, absent reason to believe the response was involuntary.” (Citation and footnote omitted.) Id. (defendant’s failure to express an objection to the test or change his mind is also evidence of actual consent).

In this case, the trial court found that Clay “was not threatened in any[ way] and did not show any physical resistance,” and we find ample evidence in the record to support this conclusion. However, the trial court further found that “a suspect could feel concerned about refusing [the test] because of the possibility of losing a limited permit” to support its conclusion that Clay only acquiesced to the blood draw. (Emphasis supplied.) But nothing in the record supports that Clay ever expressed any concern or even considered the possibility of losing his driving privileges during this encounter. Although it is appropriate for the trial court to consider “whether a reasonable person would feel free to decline the officer [’s] request,” nothing in our jurisprudence allows the trial court to speculate about how a hypothetical (and possibly unreasonable) suspect might feel under the circumstances. (Citation and punctuation omitted.) State v. Williams, 337 Ga. App. 791, 796 (788 SE2d 860) (2016).

Moreover, our Court has recently declined to find that the reading of the implied consent notice is coercive in and of itself because “there is no unlawful coercion where, as here, the officer merely informs the arrestee of the permissible range of sanctions that the State may ultimately be authorized to impose.” (Citation and punctuation omitted.) State v. Young, 339 Ga. App. 306, 310-311 (793 SE2d 186) (2016). See also Gutierrez v. State, 228 Ga. App. 458, 460 (2) (491 SE2d 898) (1997). This is consistent with the United States Supreme Court’s recent pronouncement in this area in Birchfield v. North Dakota, 579 U.S._(VI) (136 SCt 2160, 195 LE2d 560) (2016), which struck down state statutes making it a crime to refuse to submit to a blood test. Birchfield made it clear that the Court is approving of “the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply” Id. See also Missouri v. McNeely, 569 U.S._(133 SCt 1552, 185 LE2d 696) (2013). Accordingly, the trial court erred as a matter of law in placing any weight on what a hypothetical suspect might feel about how a refusal could affect his driving privileges.

And with respect to the trial court’s finding that “there was no apparent additional conversation or interaction with regard to the test to indicate that actual consent was sought or given,” not only is this finding questionable in light of the officer’s testimony that EMS personnel obtained Clay’s consent, both orally and in writing, we find no support in our case law that requires the State to provide evidence of any such additional conversation or interaction to demonstrate actual consent. As this Court has recently explained, “[w]e do not read Williams’ rejection of a per se rule of consent under the implied consent statute as authorizing us to replace it with its opposite — that is, a per se rule that the State must always show more than consent under the implied consent statute.” (Citation and punctuation omitted.) State v. Reid, 337 Ga. App. 77, 78 (786 SE2d 694) (2016) (reversing trial court’s grant of motion to suppress where there was no evidence defendant’s consent was anything but free and voluntary). Accordingly, where there is no evidence that Clay’s consent was anything but free and voluntary, the trial court erred in granting the motion to suppress. See Young, 339 Ga. App. at 312 (reversing grant of motion to suppress because State met its burden of proving defendant voluntarily consented to test where she immediately verbally agreed to submit, and there is no evidence of coercive circumstances that would undercut voluntariness of her consent). See also State v. Domenge-Delhoyo, 338 Ga. App. 439, 447 (1) (790 SE2d 139) (2016) (physical precedent only).

Decided November 15, 2016.

MegE. Heap, District Attorney, Andre Pretorius, Burt A. Burton, Assistant District Attorneys, for appellant.

Justin D. Maines, for appellee.

Judgment reversed.

Miller, R J., and McFadden, J., concur.

       There is no video recording of the encounter between the officer and Clay.

       Clay was not placed in handcuffs at this time.

       Georgia’s implied consent notice for suspects over 21 is found in OCGA § 40-5-67.1 (b) (2) and states:
      Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

       On appeal, Clay argues that the trial court excluded evidence that the EMS personnel also obtained his consent. However, the record shows that the trial court excluded a printout of the electronically-signed consent form, but also stated, “but I have heard [the officer’s] testimony about what she saw and what she heard, so I will take that into consideration.”

       See OCGA § 40-6-391 (a) (5).

       See OCGA § 40-6-391 (a) (1).

       We are unpersuaded by Clay’s argument on appeal that because he responded to the officer’s implied consent notice with “I’ll submit” and did not use the word “consent,” he merely acquiesced to the request. We specifically note that Georgia’s implied consent statute ends with the question, “Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (2). That Clay listened to the statutory advisement and responded using the same verbiage does not dispose of the issue of whether Clay voluntarily consented or acquiesced; under Williams, we must consider the totality of the circumstances.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A16A1455.
    HALL et al. v. B. H. TRANSFER COMPANY.
    (793 SE2d 612)
   McFadden, Judge.

Bobby Hall III, John B. King, and Russell S. Sheppard appeal the trial court’s grant of summary judgment to B. H. Transfer Company (“B. H.”) on the plaintiffs’ claim for violations of the disclosure requirements of the Truth-in-Leasing regulations, 49 CFR § 376.1 et seq., promulgated under the federal Motor Carrier Act, 49 USC § 14101 et seq. The plaintiffs argue that the trial court erred by finding that they had presented no evidence of actual damages due to B. H.’s violations of the regulations. We agree with the trial court that the plaintiffs have failed to point to any evidence that they have sustained actual damages because of B. H.’s violations of the regulations. We therefore affirm the trial court.

The plaintiffs are independent motor vehicle owner-operators who entered contracts with B. H. to transport goods. At some point, the plaintiffs believed that B. H. was underpaying them. They filed this action in 2003, alleging, among other things, breach of contract and violation of the disclosure requirements of the Truth-in-Leasing regulations. The trial court granted B. H. summary judgment on the breach of contract claim, and we affirmed the judgment without opinion. Gay v. B. H. Transfer Company, 316 Ga. App. XXIV (Case No. A12A0181) (July 2, 2012) (unpublished).

Upon remittitur, the trial court granted the plaintiffs partial summary judgment, finding that their contracts with B. H. violated certain provisions of the Truth-in-Leasing regulations, but then granted B. H.’s motion for summary judgment on the ground that the plaintiffs had not presented any evidence to create an issue of material fact on the question of whether they had sustained actual damages because of the violations. The plaintiffs filed this appeal. The damages they claim are allegedly unauthorized deductions from their compensation for drayage fees.

Prior to 2002, the parties’ contracts stated that B. H. “reserves the right to withhold $200.00 on settlement date if the Contractor has failed to perform and complete any trips...Beginning some time in 2002, the contracts stated that B. H.

may make deductions from payments otherwise due to Independent Contractor hereunder for amounts which Independent Contractor is indebted to [B. H.] by virtue of the following:. .. Cost to [B. H.] of actual expenses incurred due [to] Independent Contractor’s failure to complete service as dispatched.

The cost to complete the trip (i.e., to dray the load) is $36, and B. H. only deducted $25 when a driver failed to complete a delivery and the company had to pay for a dray

As pertinent to this appeal, the trial court found that these contractual provisions violated 49 CFR § 376.12 (d) because they allowed B. H. “to withhold any amount sufficient to protect [it] from loss or to withhold actual expenses incurred, including ‘drayage fees.’ ” (This regulation is reproduced in full below.) The court found that the contracts’ failure to state how drayage charges would be calculated violated 49 CFR § 376.12 (h). (This regulation is reproduced in full below.) But, the trial court found, because B. H. never deducted more than $25 — less than the amount allowed by the contracts — the plaintiffs were not damaged. On appeal, the plaintiffs argue that the regulatory violations rendered the contractual provision invalid, and therefore every time drayage fees were deducted from their compensation, they were damaged.

The Motor Carrier Act at 49 USC § 14704 (a) (2) authorizes a private right of action for civil damages from violations of the federal Truth-in-Leasing regulations. The plain language of the statute requires that the plaintiffs prove actual damages. Owner-Operator Independent Drivers Assn. v. Landstar System, 622 F3d 1307, 1325 (VII) (11th Cir. 2010). Under the Act, a carrier “is liable for damages sustained by a person as a result of an act or omission of that carrier or broker in violation of [the regulations].” 49 USC § 14704 (a) (2) (emphasis supplied). “This standard requires proof that the [plaintiffs] sustained an injury as a result of [B. H.’s] failure to comply with [49 CFR] § 376.12. Such proof... requires [the plaintiffs] to show how they sustained damages because of the violations.” Landstar, 622 F3d at 1325 (VII) (citation omitted).

The plaintiffs argue that because the contractual provisions under which B. H. made deductions for drayage fees from the plaintiffs’ compensation violated the Truth-in-Leasing regulations, those contractual provisions were invalid, the deductions made under those provisions were improper, and the amount of the deductions constitute their damages. They cite no authority, and we have found none, that supports the position that a Truth-in-Leasing violation per se invalidates a contractual provision.

Decided November 15, 2016.

Savage, Turner & Pinckney, Robert B. Turner, for appellants.

Alston & Bird, Charles H. Morgan, J. Thomas Kilpatrick; Balch & Bingham, Hugh B. McNatt, for appellee.

“[F]or the [p]laintiffs in this case to recover actual damages, each [p]laintiff must show that he suffered a loss because he relied on an inaccurate or incomplete disclosure, in regards to [49 CFR] section 376.12(d)[ or (h)], by [B. H.].” Owner-Operator Independent Drivers Assn. v. Landstar System, No. 3:02-CV-1005-J-25MCR, 2012 U.S. Dist. LEXIS 184418, 2012 WL 6827463, at *24 (II) (M.D. Fla. Aug. 30, 2012) (citations omitted). The plaintiffs have not pointed to evidence to create a question of fact on the issue of whether they suffered a loss because they relied on an inaccurate or incomplete disclosure. They point to no evidence that had the deductions for drayage fees been disclosed more fully, they would not have taken jobs under the contracts. They point to no evidence that had the deductions been disclosed more fully, the amount deducted would have been less than the $25 that was deducted. The plaintiffs’ argument that they were damaged from the deduction of drayage fees simply because of disclosure violations regarding the fees “is akin to statutory or presumed damages, rather than sustained damages as required by [49 USC] § 14704 (a) (2).” Landstar, 622 F3d at 1325 (VII). Accordingly, we affirm the trial court’s grant of summary judgment to B. H.

Judgment affirmed.

Miller, P. J., concurs. McMillian, J., concurs in judgment only.

       The trial court defined “drayage” in the order that was previously affirmed on appeal.
      The term “drayage” is used when a container is moved from a trucking company’s yard [to] the port. Drays are often required when a truck driver arrived too late and the port is closed. The truck driver will leave the container at the trucking company’s yard rather than wait until the port opens the following day. The next day a different driver will deliver the container to the port. It is the industry [-] wide practice for the original truck driver who was unable to deliver the container to the port to pay a share of the expenses associated with the dray.

       49 CFR § 376.12 (d) provides:
      Compensation to be specified — The amount to be paid by the authorized carrier for equipment and driver’s services shall be clearly stated on the face of the lease or in an addendum which is attached to the lease. Such lease or addendum shall be delivered to the lessor prior to the commencement of any trip in the service of the authorized carrier. An authorized representative of the lessor may accept these documents. The amount to be paid may be expressed as a percentage of gross revenue, a flat rate per mile, a variable rate depending on the direction traveled or the type of commodity transported, or by any other method of compensation mutually agreed upon by the parties to the lease. The compensation stated on the lease or in the attached addendum may apply to equipment and driver’s services either separately or as a combined amount.

       49 CFR § 376.12 (h) provides:
      Charge-back items. The lease shall clearly specify all items that may be initially paid for by the authorized carrier, but ultimately deducted from the lessor’s compensation at the time of payment or settlement, together with a recitation as to how the amount of each item is to be computed. The lessor shall be afforded copies of those documents which are necessary to determine the validity of the charge.


author: Rickman, Judge.

text:
    A16A1096.
    MOSLEY v. THE STATE.
    (793 SE2d 647)
   Rickman, Judge.

Demetrius Mosley was convicted of rape and of two counts of aggravated sodomy. He appeals from the denial of his motion for a new trial, contending that the trial court committed reversible error because it had unduly coercive communications with the jury, and ruled on his ineffective assistance of counsel claim without first allowing him to question his trial counsel or present argument on the claim of error. Mosley further contends that his trial attorney rendered ineffective assistance. For the following reasons, we affirm.

The evidence showed that on November 5, 2010, Mosley met L. F. at a bar and took her back to his apartment early the next morning where he did, forcibly and against the will of L. F, insert his penis in her vagina, mouth, and anus. Mosley did not testify at trial, and his defense was that L. F. consented to the acts committed.

1. On appeal, Mosley contends that the trial court erred by having “unduly coercive” communications with the jury.

The record reveals that on the first day of deliberations, the jurors deliberated for at least four and a half hours, maybe more. The next morning, the jurors deliberated for approximately two hours before informing the trial court that regarding three of the four counts, they were at an impasse of nine to three; they had reached a verdict on one count. The court queried: “And you don’t think if I gave you a further charge on the law called an Allen[] charge it would make a difference? Basically an Allen charge en courages you strongly to reach a unan imous verdict.” - The prosecutor interrupted, and both the prosecutor and defense counsel expressed the opinion that it was too early to give an Allen charge. The court then further instructed the jury that “[w]hen the jury is hung, we generally give what’s called an Allen charge.” The court stated, however, that it would not give such a charge and would instead send the jurors to lunch, and ask that when they returned they “talk about everybody’s views and see if the questions of the three can be answered ” The record does not reflect when the jury returned from lunch, but it shows that the jury returned a unanimous verdict on all counts approximately two and a half hours after the court’s last communication.

Mosley challenges the foregoing italicized language, contending that the statements were “tantamount to charging that even in the event of any conscientious and irreconcilable difference of opinion between the jurors, one or more jurors would be required to surrender his view in order to reach a verdict.” We disagree.

“The jury should be free to act and free from any seeming or real coercion on the part of the court.” (Citation omitted.) Riggins v. State, 226 Ga. 381, 384 (3) (174 SE2d 908) (1970). Jury instructions should not put pressure on the jurors “one way or the other,” nor should they “exhort the minority to reexamine its views in deference to the majority, or to suggest that the majority’s position is correct.” (Citations and punctuation omitted.) Honester v. State, 336 Ga. App. 166, 172 (784 SE2d30) (2016). “The question to be considered on appeal... is whether the trial court’s remarks or instructions were coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” (Citation and punctuation omitted.) Porter v. State, 218 Ga. 694, 696 (2) (606 SE2d 240) (2004). The answer here is no.

Before the jury began its deliberations, the court instructed, inter alia, as follows.

One of your first duties in the jury room will be to select one of your number to act as foreperson who will preside over your deliberations and who will sign the verdict to which all 12 of you freely and voluntarily agree. You should start your deliberations with an open mind, consult with one another and consider each other’s views. Each of you must decide this case for yourself, but you should do so only after a discussion and consideration of the case with your fellow jurors.
Do not hesitate to change an opinion if you are convinced that it is wrong. However, you should never surrender an honest opinion in order to be congenial or to reach a verdict solely because of the opinions of the other jurors. Whatever your verdict is, it must be unanimous. That is, agreed to by all.

The trial court’s challenged statement that unanimous verdicts are encouraged was a correct statement of the law. See Allen, 164 U. S. at 501 (9); Drayton v. State, 297 Ga. 743, 748 (2) (b) (778 SE2d 179) (2015) (“while a court should not instruct a jury that it is absolutely required to reach a verdict, it is permissible to instruct a jury that any verdict that it does agree on must be unanimous”) (citation and punctuation omitted). And Mosley’s reliance on Moore v. State, 222 Ga. 748 (152 SE2d 570) (1966) is misplaced. In that case, unlike the instant case, the trial court unduly urged or pressed the jury by instructing it to reach a “speedy verdict.” Id. at 753 (5). That was not the case here; nor does Mosley so allege. Moreover, nothing in the court’s further correct statement — that at times it is authorized to give a charge which strongly encourages jurors to reach a unanimous verdict — undid the court’s prior instructions or either stated or implied that any juror in the instant case should abandon his/her honest convictions about the case. See Honester, 336 Ga. App. at 172 (“even in the absence of the pattern charge [urging allegedly deadlocked jurors to further deliberate], the judge [can] give[ ] any charge urging the jury to reach a consensus”) (citation and punctuation omitted).

Likewise, we discern no reversible error from the trial court’s comment to the jurors that they continue to deliberate to see whether the questions of the minority could be answered. “Whether a verdict was reached as the result of coercion depends upon the totality of the circumstances.” (Citation omitted.) Sears v. State, 270 Ga. 834, 837 (1) (514 SE2d 426) (1999). The length of deliberation and reaffirmation in polling play an important role in determining coerciveness when there is a possibility the charge could be coercive. See Lowery v. State, 282 Ga. 68, 72 (4) (a) (646 SE2d 67) (2007). Here, the trial court’s remarks did not pressure the jury. Compare Moore, 222 Ga. at 753 (5).

[T]he trial court made no statements that couldbe construed as attempting to force any juror to give up his or her honest opinion[,] [and] [t]he fact that the court did not reiterate that a juror should not surrender his or her convictions merely in order to reach a verdict did not render its treatment of the situation coercive.

(Citations omitted.) Mayfield v. State, 276 Ga. 324, 330 (2) (a) (578 SE2d 438) (2003).

And even assuming that the remarks could be construed as an intimation regarding the propriety of a particular verdict, the circumstances of this case do not warrant reversal. The court prefaced its comment by first stating that it would ask the jury to “talk about everybody⅛[] views”; the jury returned its verdict more than two hours after the court’s comments; and when the jury was polled, each juror affirmed that the verdict was his/hers in the jury room, that it was freely and voluntarily made by him/her, and that it was still his/her verdict. See Sharpe v. State, 288 Ga. 565, 567-568 (5) (707 SE2d 338) (2011) (record did not support a finding that the trial court’s disapproved remarks improperly coerced the jury, as the jurors deliberated for a considerable time after the instruction was given and reaffirmed their verdict when polled); Burchette v. State, 278 Ga. 1-3 (596 SE2d 162) (2004) (polling of jury helped demonstrate that charge given during deliberations which contained disapproved language was not coercive); see also Smith v. State, 275 Ga. App. 60, 65 (6) (619 SE2d 694) (2005) (deliberations for approximately one hour after charge which contained disapproved language was given demonstrated thatjury did not rush to a conclusion); Graham v. State, 273 Ga. App. 187, 189 (2) (614 SE2d 815) (2005) (same).

There was no demonstration that the trial court’s remarks affected the outcome of the trial court proceedings or otherwise constituted plain error. See generally Aikens v. State, 297 Ga. 229, 231 (2) (773 SE2d 229) (2015) (applying plain error review to trial court’s response to jury’s question during deliberations). See also State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011); OCGA § 17-8-58 (b). Accordingly, this enumerated error presents no ground for reversal.

2. Mosley’s remaining enumerated errors concern a claim of ineffective assistance of counsel. In the trial court’s written order, issued approximately two weeks after the motion for new trial hearing, the court ruled that Mosley failed to meet his burden of showing either deficient performance or harm.

(a) Mosley contends that the trial court erred by ruling on his ineffective assistance of counsel claim without first allowing him to question his trial counsel or present argument on the claim of error at the motion for new trial hearing. We have reviewed the record, and Mosley’s ineffective assistance claim, although timely raised in his written amended motion for new trial, was not addressed at the motion for new trial hearing, and Mosley presented no evidence or argument thereon at the hearing. We decline, however, to do as Mosley asks this Court and lay blame for such failure upon the trial court. Instead, the omission appears to have occurred inadvertently

(b) Mosley contends that his trial counsel rendered ineffective assistance when he elicited from the State’s expert witness, a forensic psychologist who had conducted an assessment of the victim, testimony that the witness believed the victim, which testimony he claims went to the “ultimate issue” in the case.

Decided November 16, 2016.

Kevin A. Anderson, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, DavidK. Getachew-Smith, Sr., Assistant District Attorney s, for appel-lee.

“In Georgia, the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness. Thus, a witness may not give an opinion as to whether the victim is telling the truth.” (Punctuation and footnotes omitted.) Stillwell v. State, 294 Ga. App. 805, 806-807 (2) (a) (670 SE2d 452) (2008).

Mosley’s challenge is to statements which amount to the witness testifying that during her interview with the victim, the witness did not feel “tricked” by the victim. But trial counsel did not elicit the challenged testimony Mosley points out. The record reflects, as Mosley himself acknowledges in his appeal brief, that when trial counsel asked the witness general questions about whether the witness had ever been tricked during a forensic interview, “instead of simply responding to the question, [the witness] went on to say” the challenged testimony Accordingly, Mosley failed to show that his trial counsel performed deficiently by eliciting alleged harmful testimony

Moreover, the witness never stated that she believed the victim, and in our view, the challenged statements amount to testimony that the witness did not see any signs of deception during the interview. “[S]uch testimony does not impermissibly address the ultimate issue before the jury or bolster the [victim’s] credibility.” (Punctuation and footnote omitted.) Stillwell, 294 Ga. App. at 807 (2) (a); Anthony v. State, 282 Ga. App. 457, 459 (2) (638 SE2d 877) (2006). And in any event, any harm in the testimony was cured by the trial court’s instruction for the jury to “disregard any testimony from [the witness] that could possibly be conceived as vouching for the credibility of the victim.” See generally Pack v. State, 335 Ga. App. 783, 786-787 (3) (783 SE2d 146) (2016); Gooden v. State, 316 Ga. App. 12, 14-15 (1) (728 SE2d 693) (2012). Accordingly, Mosley failed to meet his burden, and the trial court did not err in denying his motion on this ground.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       See Washington v. State, 333 Ga. App. 236, 239 (1), n. 14 (775 SE2d 719) (2015) (“An Allen charge is given by the trial court when the jury in a criminal trial indicates that it is deadlocked, encouraging the jurors to reexamine their opinions in continued deliberations and to attempt to reach a unanimous verdict.”) (citations omitted). See Allen v. United States, 164 U. S. 492, 501 (9) (17 SCt 154, 41 LE 528) (1896).

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.)

       See Riggins, 226 Ga. at 384-385 (3) (where foreman informed trial court that the jury stood split 10 to 2, court’s response that “somebody is being a little unreasonable, stubborn” was error and demanded the grant of a new trial, as remarks “intimated that one or more members of the jury should surrender his or their conviction rather than cause a mistrial”). Compare McMillan v. State, 253 Ga. 520, 523 (4) (322 SE2d 278) (1984) (“This court has approved the use of the ‘Allen charge,’ in which a deadlocked jury is instructed to listen to the arguments of others, to consider the opinions of the majority and reminded that absolute certainty is not required.”) (citations and punctuation omitted; emphasis supplied).

       (Emphasis supplied.)

       Trial counsel did not object to the challenged remarks.

       See Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004) (“To prevail on a claim of ineffective assistance of trial counsel, [a defendant] bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency.”) (footnote omitted).


author: BARNES, Presiding Judge.

text:
    A16A1147.
    STOICA v. THE STATE.
    (793 SE2d 651)
   BARNES, Presiding Judge.

A Hall County jury found Gheorghe Stoica guilty of driving under the influence (per se), driving under the influence (less safe), and failure to maintain lane. Thereafter, the trial court granted his motion for new trial on the DUI (per se) conviction, but denied the motion for new trial on the DUI (less safe) and failure to maintain lane convictions. Stoica now appeals and contends that the trial court erred by failing to grant his motion to suppress, failing to exclude his blood test, and by partially denying his motion for new trial. For the reasons that follow, we affirm.

On November 27, 2013, a state trooper stopped Stoica on the highway after receiving a 911 dispatch concerning a car that was driving erratically When the trooper initially observed Stoica’s vehicle, Stoica was being followed by a line of cars traveling slowly with their hazard lights flashing. The trooper stopped Stoica, who was “lethargic” getting out of the car, had bloodshot and watery eyes, and slow and slurred speech. Stoica also spoke with a foreign accent. Stoica was so unsteady on his feet that the trooper had to grab him to keep him from “stumbling . . . into the travel lane.” Stoica initially was unresponsive when asked if he had consumed any alcohol, but later acknowledged that he had consumed “two beers.”

The trooper was unable to complete the horizontal gaze nystag-mus evaluation because Stoica could not follow the instructions, and did not attempt the “one-leg-stand and walk-and-turn evaluation” because of Stoica’s unsteadiness. The alco-sensor test revealed that Stoica’s breath sample was positive for alcohol. Based on his observation of the driver and the results of attempted field sobriety tests, the trooper arrested Stoica, read him the implied consent notice, and asked if he consented to having his blood drawn. While no response is audible on the recording of the stop, the trooper testified that Stoica gave verbal consent as well as a physical indication of assent. At the jail, Stoica’s blood was drawn and tested, and Stoica was charged with DUI (per se), DUI (less safe), failure to maintain lane, and possession of an open container.

Stoica moved to suppress evidence regarding the field sobriety tests, his responses to the implied consent warning, any statements he made, his blood test results, and any other evidence obtained after he was stopped. He argued that his alleged consent to the blood test was not voluntary and therefore the blood draw was an illegal search and seizure under Missouri v. McNeely, 569 U. S. _ (133 SCt 1552, 185 LE2d 696) (2013). The United States Supreme Court held in McNeely that “the natural metabolization of alcohol in the bloodstream [does not present] a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases,” but the “exigency in this context must be determined case by case based on the totality of the circumstances.” Id. at 1556. Following a hearing conducted with the assistance of a Romanian interpreter, the trial court denied the motion to suppress up to and including the implied consent warning and response, but granted it as to any further questions and answers after that point.

During the subsequent trial, Stoica objected to the admission of his blood test results. The State introduced into evidence a video recording of the traffic stop, testimony from the arresting trooper, testimony from a driver who contacted 911 after observing Stoica driving erratically on the highway, the jail nurse who supervised the nurse who drew Stoica’s blood, and the forensic toxicologist who tested the blood sample for alcohol. The trial court denied Stoica’s motion for a directed verdict of acquittal on all counts, and the jury found Stoica not guilty of possession of an open container and guilty of both DUI counts and the moving violation.

Stoica filed a motion for new trial after his conviction, arguing that under Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015), which adopted the voluntary consent analysis in McNeely, the trial court erred in admitting evidence of the blood test. The trial court first found that the State presented sufficient evidence of both DUI counts and the moving violation to meet the standards of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). After noting that it did not previously consider whether Stoica gave actual consent to the state-administered blood test, as Williams had not then been decided, the trial court held:

Due to the Defendant’s extreme intoxication and the possibility that he did not fully understand the nature of implied consent warnings due to the possibility of a language barrier, this Court cannot find that the State has shown that [the] Defendant gave actual consent to the state-administered test. Williams v. State, 296 Ga. 817 (2015); Davis v. State, 332 Ga. App. 488 [(773 SE2d 442)] (2015).

Based on that finding, the trial court granted Stoica’s motion for a new trial on the DUI (per se) count, but denied it on the DUI (less safe) and failure to maintain lane counts. Stoica timely filed this appeal.

1. Although the State argues that the analysis in Williams, 296 Ga. 817, is inapplicable because the opinion was issued after Stoica was convicted, “[u]nder the pipeline rule, ... a new rule of criminal procedure will be applied to pending cases, so long as the issue was preserved for appellate review.” Bailey v. State, 338 Ga. App. 428, 432 (2) (a) (790 SE2d 98) (2016). Stoica’s motion to suppress citedMcNeely, 133 SCt 1552, upon which Williams relied, and “was sufficient to put the [S]tate on notice that the seizure of his blood . . . was at issue and that it was necessary to present evidence to justify the warrantless search.” Bailey, 338 Ga. App. at 432 (2) (a). See also Davis, 332 Ga. App. at 489-490 (vacating conviction and remanding for reconsideration of motion to suppress in light of Williams). Stoica thus preserved the consent issue and is entitled to rely on Williams.

2. While Stoica enumerates five errors, he does not address them individually, but instead argues that the errors “are not necessarily fully distinct, as they all end up calling into question the sufficiency of the evidence,” because the three counts “are too intertwined not to be retried together.” See Court of Appeals Rule 25 (c) (“The sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.”); Salazar v. State, 256 Ga. App. 50, 51 (2) (567 SE2d 706) (2002). Nevertheless, we exercise our discretion to reach the merits of this case, and we address Stoica’s arguments to the extent they are apparent from the notice of appeal, the record and the parties’ briefs. See State v. Madison, 311 Ga. App. 31, 32 (1) (714 SE2d 714) (2011).

3. So considered, Stoica essentially contends that the trial court erred by granting his motion for new trial only on the DUI (per se) count and denying his motion for new trial on the DUI (less safe) and failure to maintain lane counts. He argues that the evidence regarding the per se and less safe violations was intertwined to such a degree that the erroneous admission of the blood test required a retrial of the other charges too.

The State does not dispute the trial court’s finding that Stoica’s consent was not voluntary, nor does it dispute that Stoica is entitled to a new trial on the DUI (per se) charge, but instead argues only that the admission of the blood test evidence was harmless error as to the remaining counts of DUI (less safe) and failure to maintain lane. We agree.

“Error of constitutional dimension is harmless only if it can be determined beyond a reasonable doubt that it did not contribute to the jury’s guilty verdict.” Threatt v. State, 240 Ga. App. 592, 597 (1) (524 SE2d 276) (1999).

The stringency of the beyond a reasonable doubt standard bespeaks the weight and gravity of the private interest affected, society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that society impose almost the entire risk of error upon itself.

Little v. State, 230 Ga. App. 803, 807-808 (2) (498 SE2d 284) (1998). However, even “[a]n error of constitutional magnitude can be harmless when [as here] . . . the evidence against the defendant is overwhelming.” (Punctuation and footnotes omitted.) Yarber v. State, 337 Ga. App. 40, 44-45 (785 SE2d 677) (2016).

Here, before the jurors heard any evidence regarding the blood test results, they heard testimony about Stoica’s erratic, dangerous, and concerning driving, the odor of alcohol emanating from his person, his slurred speech and bloodshot eyes, his unsteadiness, his inability to comply with the field sobriety tests, his admission to drinking, the open container of a liquid that smelled like alcohol in his car, and his positive alco-sensor result. The jury also viewed the dash-cam video of the trooper’s interaction with Stoica.

Accordingly, because the evidence that Stoica was a less safe driver was overwhelming, even in the absence of his blood test results, the erroneous admission of that evidence was harmless beyond a reasonable doubt. See Shields v. State, 223 Ga. App. 169, 171 (477 SE2d 342) (1996) (“the error in the admission of appellant’s statement was harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt” in his DUI (less safe) trial) (punctuation and footnote omitted).

Thus, the trial court did not err in denying Stoica’s motion for new trial on the DUI less safe conviction.

4. The trial court also did not err in denying Stoica’s motion for new trial on the failure to maintain lane conviction. Stoica was charged with “failing] to drive his vehicle as nearly as practicable entirely within a single traffic lane.” See OCGA § 40-6-48 (1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”). The arresting trooper testified that he observed Stoica “completely travel off the right side of the roadway across the fog line and into the concrete median area, failing to maintain his lane.” Stoica’s failure to maintain lane conviction was based on the trooper’s observation rather than on the admission of the blood alcohol evidence or any other evidence related to the DUI charges. One can be guilty of failure to maintain lane without being impaired by alcohol.

Decided November 16, 2016.

Andrew T. Mosley II, for appellant.

Stephanie D. Woodard, Solicitor-General, Daniel P. Sanmiguel, Assistant Solicitor-General, for appellee.

5. Stoica argues that the trial court erred in failing to exclude evidence of the blood test, video, and testimonial evidence about his purported consent to the blood test. Even assuming without deciding that this issue is not moot given the grant of Stoica’s motion for a new trial, Stoica fails to express exactly what testimonial or video evidence was improperly admitted related to his consent.

In its order partially granting Stoica’s motion for new trial, the trial court noted that it had suppressed all of Stoica’s custodial statements and that no “improper custodial statements were admitted” at trial. Stoica’s vague argument, without more, presents nothing for this Court to review. See generally Brittain v. State, 329 Ga. App. 689, 693 (2) (766 SE2d 106) (2014) (nothing to review where appellant provided only “vague reference to alleged hearsay statements by various witnesses . . . [and] little detail or specific record citations to the statements he contends were admitted in error by the trial court”).

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       Stoica does not argue that the exclusion of the blood test would render the evidence insufficient to sustain a conviction of DUI (per se), and therefore we do not reach that issue. But see Bailey, 338 Ga. App. at 432 (2) (a); Cuyuch v. State, 284 Ga. 290, 295 (3) (667 SE2d 85) (2008) (reversal required when inadmissible evidence is the sole basis for conviction).


author: McFADDEN, Judge.

text:
    A16A1244.
    RAY MASHBURN HOMES, LLC et al. v. CHARTERBANK.
    (793 SE2d 655)
   McFADDEN, Judge.

Ray Mashburn Homes, LLC, Ray M. Mashburn, and Jan O. Mashburn appeal the grant of summary judgment to CharterBank in this suit on two promissory notes and a guaranty. They argue that the correct interest rate on the business’s loan is a disputed issue of fact, but we find that the promissory note unambiguously set forth the interest rate. The appellants argue that the proper amount of damages is in dispute due to discrepancies in the bank’s evidence. We are constrained to agree. But the discrepancy in the evidence of damages on the Mashburns’ loan works to their favor, so they have no legal right to complain. The discrepancy in the evidence of damages on the business’s loan, on the other hand, means that material issues of fact exist as to the amount of damages. We therefore affirm the grant of summary judgment to the bank on the issue of liability on both notes and the guaranty, affirm the grant of summary judgment to the bank on the issue of its damages on the Mashburns’ loan, reverse the grant of summary judgment to the bank on the issue of its damages on the business’s loan and the guaranty, and remand the case for proceedings not inconsistent with this opinion.

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

Nelson v. Hamilton State Bank, 331 Ga. App. 419 (771 SE2d 113) (2015) (citation omitted). So construed, the record shows that on June 27, 2007, Ray Mashburn Homes, LLC executed a promissory note to CharterBank’s predecessor-in-interest in the amount of $327,702.99. The note provided a variable rate of interest, defined as 0.5 percent above “Lender’s Prime, the base rate used by Lender to set interest rates at which loans are made to various borrowers.” On July 8, 2008, Ray and Jan Mashburn executed a promissory note to CharterBank’s predecessor-in-interest in the amount of $296,359 with a 5.5 percent interest rate. Both notes were secured by real property, and Ray Mashburn guaranteed the business’s obligation.

The appellants defaulted on their obligations, and the bank foreclosed on the property securing the promissory notes. It then filed this action for the balance due. The trial court granted the bank’s motion for summary judgment.

1. Interest rate.

On appeal, the appellants argue that the trial court erred in granting summary judgment because the evidence created a disputed issue of fact regarding the interest rate on the business’s loan. Therefore, they argue, the amount owed on the note — and the amount of the bank’s damages — is in dispute. We disagree because the note itself unambiguously sets forth the interest rate as the bank’s base lending rate plus 0.5 percent:

INTEREST: I agree to pay interest on the outstanding principal balance from 06/27/2007 at the rate of 8.750 % per year until INDEX RATE CHANGES.
Variable Rate: This rate may then change as stated below.
Index Rate: The future rate will be 0.50 % ABOVE the following index rate: Lender’s Prime, the base rate used by Lender to set interest rates at which loans are made to various borrowers.
Frequency and Timing: The rate on this note may change as often as daily A change in the interest rate will take effect the day the index rate changes.

The appellants argue that the affidavit of William H. Gafford, Jr., creates a question of fact as to what is meant by Lender’s Prime. Gafford served as the predecessor bank’s president and chief executive officer, and was a director from November 2002 until August 2008. In his affidavit, he testified that the bank used the term “Lender’s Prime” to refer to the United States prime interest rate as published by the Wall Street Journal, and that the United States prime interest rate changed to 3.25 percent on December 16, 2008, and has remained at 3.25 percent since that time.

Gafford’s testimony, however, simply contradicts the unambiguous definition of Lender’s Prime in the note itself: “the base rate used by Lender to set interest rates at which loans are made to various borrowers.” “A promissory note is an unconditional contract to pay, and parol evidence cannot be admitted to alter its terms.” Kothari v. Patel, 262 Ga. App. 168, 175 (4) (585 SE2d 97) (2003) (citation omitted). Here, the rate of interest was clearly set out in the note as 0.5 percent above the bank’s base lending rate. And the bank presented evidence of the base lending rate during the life of the loan, including the affidavit of Nicholas Clark, who was the chief financial officer of the bank’s predecessor from November 2002 until March 26, 2010, and is now a senior vice president of the bank. Clark testified that the bank’s Lender’s Prime was the same as the Wall Street Journal prime rate until December 2008, when the executive committee of the bank voted to hold “Lender’s Prime at 4.00 percent while WSJ Prime declined to 3.25 percent.” According to Clark, in February 2009, the executive committee of the bank increased Lender’s Prime to 6 percent. Clark testified that Gafford was not privy to the rates the bank set for Lender’s Prime following his August 2008 departure from the bank.

Clark attached to his affidavit the minutes of a December 16, 2008, executive committee meeting, which reflected the decision to hold the rate at 4 percent; the minutes of a December 30, 2008, executive committee meeting, which reflected a proposal to increase Lender’s Prime from 4 percent to 6 percent; the minutes of a January 6, 2009, executive committee meeting, which reflected the decision to increase Lender’s Prime to 6 percent; and the minutes of a January 13, 2009, executive committee meeting, which reflected that the change in Lender’s Prime became effective January 12. Clark also attached a January 14, 2009, schedule of interest rates that reflected the Wall Street Journal Prime Lending Rate of 3.25 percent and the Lender’s Prime Rate of 6 percent.

“Although [at the time they entered the note] the future monthly-determined rate could not be known in advance, the parties agreed that it be this particular rate, for which there was an established mechanism for its determination.” 1600 Capital Co. v. Bankers First Federal Sav. & Loan Assn., 187 Ga. App. 504, 506 (370 SE2d 668) (1988).

[W]here a written contract is plain and unambiguous, it is the only evidence of what the parties intended and understood by it. In the absence of fraud, accident or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note. .. . The promissory note at issue here is not ambiguous, and [Gafford’s] representations regarding [the interest rate] are inadmissible to vary its terms.

Parker v. Cook, 248 Ga. App. 621, 622 (548 SE2d 387) (2001) (citations and punctuation omitted).

2. Damages calculations.

The appellants argue that the trial court erred in granting summary judgment because there are conflicts in the evidence regarding the calculation of damages. We affirm the grant of summary judgment on the Mashburns’ loan because the conflict in the evidence works to their favor. We reverse the grant of summary judgment on the business’s loan and the guaranty because the discrepancy in the bank’s evidence creates a material issue of fact.

(a) The Mashburns’ loan.

The Mashburns argue that there is a question of fact about the bank’s calculation of damages on their loan. They point to a conflict between two exhibits attached to the affidavits of James Chandler, a special assets manager of the bank. Chandler describes one of the two exhibits as the payment history for the note since May 24, 2004. The payment history includes a “loan history card,” dated July 25, 2008, which reflects a payoff amount of $297,264.53.

The second of the two exhibits to which the Mashburns point is a spreadsheet that shows Chandler’s calculations to determine the amount owed. For July 25, 2008, the date of the loan history card, the spreadsheet reflects a remaining balance of $297,173.99, $90.54 less than the amount shown on the loan history card.

Decided November 16, 2016

The bank has provided no explanation for this discrepancy in its records. Nonetheless, the discrepancy works to the appellants’ favor: the trial court awarded damages based on Chandler’s affidavit and his calculations in the spreadsheet, which included the lower principal balance. “[A] party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint.” Hurt v. Norwest Mtg., 260 Ga. App. 651, 654 (1) (580 SE2d 580) (2003) (citation and punctuation omitted).

(b) Business’s loan.

The appellants argue that, even assuming that Lender’s Prime is not tied to the Wall Street Journal rate, there is a conflict in the evidence regarding the calculation of damages on the business’s loan. They contrast the affidavit of bank executive Nicholas Clark, in which he testifies that the bank increased Lender’s Prime to 6 percent in February 2009, with the bank’s calculation of damages which shows an increase in the interest rate to 6.5 percent (Lender’s Prime of 6 percent plus 0.5 percent) on January 12,2009, which is consistent with the minutes of the January 13, 2009, executive committee meeting. We agree that there is a question of fact regarding the proper rate of interest from January 12, 2009, until February 1, 2009.

While there maybe an explanation for [this discrepancy, the bank] does not offer one, even though it bears the burden of proving its damages in a definite and certain amount. And because the [discrepancy is] material to the amount of unpaid principal [since foreclosure proceeds were applied to interest first], interest, and contractual attorney fees (which are calculated as a percentage of the principal and interest) owed by the appellants, we conclude that material issues of fact exist as to the amount of damages.

Patrick Malloy Communities, LLC v. Community & Southern Bank, 334 Ga. App. 76, 83 (2) (778 SE2d 242) (2015) (citation omitted). Accordingly, we reverse the grant of summary judgment to the bank as to the amount of damages owed under this note and guaranty, and remand the case for proceedings not inconsistent with this opinion.

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

Miller, P. J., and McMillian, J., concur.

Smith Conerly, Charles S. Conerly, David A. Luzum, for appellants.

Hartley, Rowe & Fowler, Kenneth B. Crawford, for appellee.


text:
    A16A1249.
    SAXON v. STARR INDEMNITY & LIABILITY COMPANY et al.
    (793 SE2d 659)
   Rickman, Judge.

In this declaratory judgment action, Gregory Saxon appeals from three trial court orders granting summary judgment in favor of three insurance companies — Starr Indemnity & Liability Company (“Starr Indemnity”), First Acceptance Insurance Company of Georgia, Inc. (“First Acceptance”), and Knightbrook Insurance Company (“Knight-brook”). We affirm.

The material facts of this case are undisputed. Talmadge Royal d/b/a Sno Frost was involved in the business of selling ice cream freezers and ice cream to convenience stores. Royal’s ice cream truck usually went on deliveries with one employee driver and one employee helper, and the two often switched duties from day to day. On November 9, 2012, Saxon and Arron Meyers were employed by Royal as delivery drivers, and rode together to make deliveries — Meyers as driver and Saxon as helper. As they were en route to make some final deliveries, Meyers struck the rear of a vehicle which was stopped at a red traffic light, and he was cited for following too closely. At the time of the accident, Saxon and Meyers were employees of Royal and were performing duties in the course and scope of and/or related to their employment with Royal. At the time of the accident, although Royal had three or more employees and was subject to the Georgia Workers’ Compensation Act (the “Act”), he had not procured workers’ compensation coverage. Saxon did not file a claim for workers’ compensation benefits with the State Board of Workers’ Compensation, and he received no workers’ compensation benefits.

On November 21, 2013, Saxon filed a complaint for damages (“tort action”) against Meyers and Royal. He asserted a claim for negligence against Meyers, and claims for imputed liability and for negligent hiring, training, and supervision, and negligent entrustment against Royal. In January 2014, Starr Indemnity, which company provided liability insurance to Royal for Royal’s truck that was involved in the accident, filed the instant petition for declaratory judgment. Starr Indemnity sought a judgment declaring that under its liability policy, there were no coverage benefits available for damages in the tort action. In February 2015, the trial court granted First Acceptance’s motion to intervene in the declaratory judgment action; First Acceptance provided liability insurance to Meyers for Meyers’s personal automobile. In March 2015, the trial court granted Knightbrook’s motion to intervene in the declaratory judgment action; Knightbrook had issued an insurance policy to Saxon for Saxon’s personal vehicles, and that policy provided uninsured motorist (“UM”) coverage. Saxon sought indemnity or liability coverage benefits under the policies issued by Starr Indemnity and First Acceptance. Saxon sought uninsured motorist benefits from Knightbrook.

All three insurance companies moved for summary judgment, arguing that certain provisions in their respective policies excluded coverage for damages Saxon sought in the tort action, and that the Act provided Saxon’s exclusive remedy. Saxon did not dispute the plain language of the policies’ exclusion provisions, or of the Act. Rather, he argued that if the Act and the policies’ exclusion provisions were enforced, he would be left without a remedy and such a result would be against public policy. This is also Saxon’s argument on appeal.

In well-reasoned and detailed orders, the trial court granted summary judgment in favor of all three insurance companies. With regard to Starr Indemnity and First Acceptance, the trial court correctly ruled that the Act provided Saxon’s exclusive remedy, that there was no applicable exception to the exclusive remedy provision of the Act, and that in this case enforcement of the Act and of the policies’ exclusion provisions did not violate public policy. With regard to Knightbrook, the trial court reiterated that the Act provided Saxon’s exclusive remedy, and concluded that given that Saxon could not recover in the tort action as a matter of law because the Act provided his exclusive remedy, he could not recover UM benefits from Knightbrook.

1. On appeal, Saxon contends that the trial court erred in granting summary judgment in favor of the insurance companies when enforcement of the Act in this case violates public policy because “injured parties would be unfairly punished just because they were employed by someone who breached his or her duty to purchase worker’s compensation insurance.”

Saxon had one year after his injury to file a claim for workers’ compensation benefits with the State Board of Workers’ Compensation. See OCGA § 34-9-82 (a) (2012). But Saxon failed to do so in this case. And despite Royal’s failure to procure workers’ compensation coverage, relief under the Act was Saxon’s only available remedy

OCGA § 34-9-11 (a) pertinently provided in 2012:

The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer ....

(Emphasis supplied.) “[I]t has been held repeatedly that [OCGA § 34-9-11] grants the injured employee’s employer statutory immunity from suit by the employee to recover damages other than workers’ compensation benefits,” and it has also been made clear that this “statutory immunity from suit includes the statutory employer regardless whether that statutory employer had actually paid the workers’ compensation benefits.” (Citations omitted; emphasis supplied.) Modlin v. Swift Textiles, 180 Ga. App. 726, 731 (2) (350 SE2d 273) (1986).

The Act requires that employers insure the payment of workers’ compensation benefits to injured workers, either by procuring insurance or by qualifying as a self-insurer. If no insurance is obtained, the employer remains liable for payment of benefits. If the employer becomes insolvent, then the agent of the employer responsible for procuring workers’ compensation benefits may be held personally liable for payment of such benefits [awarded by the State Board of Workers’ Compensation].

(Citations omitted.) Sheehan v. Delaney, 238 Ga. App. 662 (1) (521 SE2d 585) (1999); see Samuel v. Baitcher, 247 Ga. 71-72, 74 (274 SE2d 327) (1981).

Therefore, contrary to Saxon’s contention, an injured party would not be unfairly punished, because an employer (or employer’s agent) who failed to obtain insurance would remain liable for payment of benefits awarded by the Board.

2. Saxon also contends that the trial court erred in granting summary judgment in favor of the insurance companies when enforcement of the policies’ exclusion provisions violates public policy because such enforcement would “not protect [him] as to his actual losses.” In Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987), the Supreme Court of Georgia held:

If the compensation of victims were the overriding consideration in every case, we would conclude that no exclusion is possible in automobile liability policies. However, since Georgia law does not require liability insurance in every case, we have concluded that exclusions are not per se prohibited but must be individually evaluated to determine whether they are against public policy

(Citation omitted.) Such an evaluation requires that we determine “whether in the context of [each] case the exclusion either unfairly penalizes innocent victims or unfairly exposes the insured to liability.” Id. “This results in a basic rule that if either of the interests dealt with is left unprotected, the exclusionary clause in the insurance contract offends public policy This rule, of course, does not apply when neither the injured party nor the unsuspecting insured is left unprotected.” (Citation and punctuation omitted.) Federated Mut. Ins. Co. v. Dunton, 213 Ga. App. 148, 149 (1) (444 SE2d 123) (1994).

Given that in the instant case, the remedy of the Act was available to Saxon, he was not left unprotected. Indeed, Saxon’s complaints about the Act are not about being left unprotected; he complains about not being “adequately compensate[d] . . . for his injuries,” about not being protected as to his “actual losses,” and about the lack of a “realistic remedy at law,” particularly because, as he claims, the procedures of the Act are cumbersome and enforcing any judgment obtained by the Board “can be extremely difficult or impossible due to extenuating circumstances such as businesses closing, bankruptcy, or corporate shell games.” Saxon’s complaints about the Act are for the General Assembly’s determination, not this Court. Even assuming that any of the foregoing allegedly difficult or impossible circumstances could work to bar enforcement of the policies’ exclusion provisions, Saxon did not assert or show, either below or on appeal, that any of those circumstances existed in this case, and his guesses or speculation about them are insufficient on summary judgment. See Heath v. Rush, 259 Ga. App. 887, 888 (578 SE2d 564) (2003) (“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”) (citation and punctuation omitted). As the trial court recognized, “the [pjolicy exclusions ‘dovetail’ with the statutory immunity provided . . . under the Act” and are not against public policy. Compare generally Govt. Employees Ins. Co. v. Dickey, 255 Ga. 661 (340 SE2d 595) (1986) (family-purpose exclusion in automobile insurance policy purchased in Georgia was against public policy where it was broader than the tort immunity of North Carolina, the state in which the insured was sued).

3. Saxon argues that enforcement of the policies’ exclusion provisions would violate federal and Georgia public policy of requiring statutory compulsory minimum automobile limits coverage.

Saxon cites Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499) (1983), wherein the Supreme Court of Georgia iterated “the public policy of our state, enunciated in the advent of compulsory motor vehicle liability insurance[ ] [is] that innocent persons who are injured should have an adequate recourse for the recovery of their damages.” (Citations omitted.) As previously addressed, Saxon did not point to any evidence showing that in this case the remedy available to him (the Act) was inadequate. Additionally, Saxon did not cite any federal public policy that was violated by enforcing the policies’ exclusion provisions. The policies’ exclusion provisions are consistent with Georgia’s liability and workers’ compensation statutes, and are enforceable. See generally Williams v. Lumbermens Mut. Cas. Co., 164 Ga. App. 435 (297 SE2d 345) (1982).

4. Saxon relies on Hudson v. Whited, 250 Ga. App. 451 (552 SE2d 447) (2001), as support that UM coverage is available in this case. But Saxon’s reliance on Hudson is misplaced. A third party as tortfeasor was not specifically pointed out in Hudson; but given the reference in Hudson to “the discovery process and trial of this case,” id. at 454, and given the Act’s grant of tort immunity for employers and co-employees, see OCGA § 34-9-11 (a) (2001), the discussion in Hudson regarding UM coverage necessarily presumed the existence of a third-party tortfeasor, which is not present in the instant case. See, e.g., Lewis v. Cherokee Ins. Co., 258 Ga. 839 (375 SE2d 850) (1989). Accordingly, the discussion in Hudson , about the enforceability of a clause that could thwart an insured’s ability to recover all sums to which he could be legally entitled, does not apply to the instant case. Hudson, 250 Ga. App. at 452-454.

Decided November 16, 2016.

The Brown Firm, Harry W. Brown, Jr., Charles L. Rauton, for appellant.

Taylor, Odachowski, Schmidt & Crossland, Edward R. Stabell III; Jenkins & Bowen, Frank E. Jenkins III, Robert L. Walker, Erik J. Pirozzi;Brannen, Searcy & Smith, DavidR. Smith; Goodman, McGuffey, Lindsey & Johnson, James F. Cook, Jr., for appellees.

Saxon failed to meet his burden on summary judgment, see generally Canaan Land Properties v. Herrington, 330 Ga. App. 17 (766 SE2d 493) (2014) (nonmovant must point to specific evidence giving rise to a triable issue), and the trial court did not err in granting summary judgment in favor of the insurance companies.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       See OCGA § 34-9-2 (a) (2), as it provided in 2012 (“This chapter shall not apply to ... any person, firm, or private corporation .. . that has regularly in service less than three employees in the same business within this state . . . .”). In addition to the accident occurring in 2012, the policies of all three insurance companies involved were issued in 2012.

       See OCGA § 34-9-1 et seq.

       Starr Indemnity’s policy contained provisions excluding coverage for workers’ compensation obligations for which Royal may be liable, and for bodily injury to Royal’s employees or fellow employees, arising out of and in the course of employment. First Acceptance’s policy contained a provision similarly excluding coverage for the insured’s employee and fellow employee; it additionally contained a business-use exclusion provision. The policy issued by Knightbrook contained a workers’ compensation obligation exclusion provision and a business-use exclusion provision.

       Saxon’s further argument that Georgia should mirror other states and provide an exception to the Act’s exclusive remedy provision was not made below, and therefore, we will not consider it on appeal. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (”[A]n appellate court need not consider arguments raised for the first time on appeal.”) (footnote omitted).

       (Emphasis supplied.)

       Although Saxon claims that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether he properly notified Knightbrook of the car collision, we deem this claim abandoned, as Saxon did not present any argument or citation of authority on that issue in his brief. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”); see also Johnson v. State, 290 Ga. App. 255, 259 (1) (d) (659 SE2d 638) (2008) (deeming abandoned an argument that was unsupported by citation to authority).


text:
    A16A1276.
    DICKSON v. THE STATE.
    (793 SE2d 663)
   McFADDEN, Judge.

James Dickson appeals his convictions for first degree vehicular homicide, serious injury by vehicle, possession of a schedule IV controlled substance, driving under the influence of a controlled substance, and driving on the wrong side of the road. He argues that the evidence is insufficient to support the vehicular homicide, serious injury by vehicle, and DUI convictions. We find that the evidence was sufficient to support the vehicular homicide and serious injury by vehicle convictions. But because a lesser included DUI predicate offense may not stand as a separate conviction when the defendant has been convicted of vehicular homicide, we vacate Dickson’s DUI conviction and remand for resentencing.

Dickson also argues that the trial court erred by denying his motion for a mental examination, but Dickson has not shown that the trial court abused his discretion in finding no reasonable doubt as to Dickson’s competency and therefore no need for further proceedings on the matter. Finally, Dickson argues that trial counsel was ineffective, but he has not met his burden of showing deficient performance. Accordingly, we affirm in part, vacate in part, and remand for resentencing.

1. Facts.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the [defendant] is no longer entitled to the presumption of innocence.” Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013) (citation omitted). “We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.” Byrd v. State, 325 Ga. App. 24 (752 SE2d 84) (2013) (citation omitted).

So viewed, the evidence showed that Julia Sikes Powell was driving a pickup truck and trailer southbound on State Route 17 near Canon, Georgia. Her husband, Bobby Bland, was sitting in the passenger seat. Billy Joey Hart was driving a pickup truck behind Powell. Dickson, who was driving a Buick sedan north on State Route 17, crossed the centerline and collided with Powell’s and Hart’s trucks. Bland and Hart were killed in the wreck. Powell ruptured her spleen, which had to be surgically removed. Dickson was taken to the hospital, and his blood and urine were tested and indicated the presence of diazepam, nordiazepam, alprazolam, methadone, morphine, THC metabolites, and alcohol.

The state charged Dickson with two counts of homicide by vehicle in the first degree, in that he caused the deaths of Bland and Hart by operating a motor vehicle while under the influence of diazepam, nordiazepam, alprazolam, methadone, and marijuana to the extent that he was a less safe driver (Counts 1 and 2; OCGA § 40-6-393 (a)); two counts of homicide by vehicle in the first degree, in that he caused the deaths of Bland and Hart by operating a motor vehicle while his blood-alcohol concentration was 0.08 or greater (Counts 3 and 4; OCGA § 40-6-393 (a)); one count of serious injury by vehicle for causing bodily harm to Powell by rupturing her spleen while driving under the influence of diazepam, nordiazepam, alprazolam, methadone, and marijuana to the extent that he was a less safe driver (Count 5; OCGA § 40-6-394); one count of serious injury by vehicle for causing bodily harm to Powell by rupturing her spleen while operating a motor vehicle while his blood-alcohol concentration was 0.08 or greater (Count 6; OCGA § 40-6-394); one count of possession of a schedule IV controlled substance, alprazolam (Count 7; OCGA § 16-13-30 (a)); one count of driving under the influence of a controlled substance (Count 8; OCGA § 40-6-391 (a) (6)); one count of driving under the influence of drugs to the extent that he was a less safe driver (Count 9; OCGA § 40-6-391 (a) (2)); one count of driving under the influence of alcohol while his blood-alcohol concentration was 0.08 grams or more (Count 10; OCGA § 40-6-391 (a) (5)); one count of driving under the influence of alcohol to the extent he was a less safe driver (Count 11; OCGA § 40-6-391 (a) (1)); and one count of driving on the wrong side of the roadway (Count 12; OCGA § 40-6-40 (a)).

The jury found Dickson guilty of all counts. The trial court merged Counts 3 and 4 (vehicular homicide based on DUI alcohol, per se) into the convictions on Counts 1 and 2 (vehicular homicide based on DUI drugs, less safe); Count 6 (serious injury by vehicle based on DUI alcohol, per se) into the conviction on Count 5 (serious injury by vehicle based on drugs, less safe); and DUI Counts 9,10, and 11 (DUI drugs, less safe; DUI alcohol, per se; DUI alcohol, less safe) into the DUI conviction on Count 8 (DUI, drugs per se). Consequently, the court sentenced Dickson on his convictions on vehicular homicide based on DUI drugs, less safe; serious injury by vehicle based on drugs, less safe; DUI drugs, per se; possession of a controlled substance; and driving on the wrong side of the roadway. The court sentenced Dickson to consecutive fifteen-year terms on the vehicular homicide convictions; a consecutive fifteen-year term on the serious injury by vehicle conviction; a consecutive five-year term on the possession of a controlled substance conviction; a twelve-month term on the DUI conviction; and a twelve-month term on the driving on the wrong side of the roadway conviction.

2. Sufficiency of the evidence.

Dickson challenges the sufficiency of the evidence to support all but his convictions of possession of a controlled substance and driving on the wrong side of the roadway. We find the evidence sufficient to support the vehicular homicide and serious injury by vehicle convictions. We do not reach his challenge to the sufficiency of the evidence to support the DUI conviction because that conviction must be vacated. As for the counts that were merged, we reject Dickson’s evidentiary challenge as moot.

(a) Vehicular homicide and serious injury by vehicle.

As noted, Dickson was convicted of two counts of homicide by vehicle in the first degree under OCGA § 40-6-393 (a), in that he caused the deaths of Bland and Hart through a violation of OCGA § 40-6-391 by operating a motor vehicle while under the influence of diazepam, nordiazepam, alprazolam, methadone, and marijuana to the extent that he was a less safe driver. He was convicted of serious injury by vehicle under OCGA § 40-6-394 for causing bodily harm to Powell by rupturing her spleen through a violation of OCGA § 40-6-391 by operating a motor vehicle while under the influence of diazepam, nordiazepam, alprazolam, methadone, and marijuana to the extent that he was a less safe driver. Dickson argues that the evidence did not show that he was a less safe driver.

As this [c] ourt previously has explained, mere presence of an intoxicant is not the issue. In a less safe case, the [sjtate must prove that the defendant had impaired driving ability as a result of ingesting an intoxicant. It is not necessary for an officer to give his opinion or state specifically that a defendant was a less safe driver because the trier of fact may form its own opinion based on the indicia pointing to impaired driving ability

Kar v. State, 318 Ga. App. 379, 381 (2) (733 SE2d 387) (2012) (citation and punctuation omitted). Here, the state presented testimony of an expert in pharmacology and toxicology that the drugs in Dickson’s system would have made him a hazardous driver and that he was severely impaired. This testimony, in conjunction with the other evidence, amply supported the vehicular homicide and serious injury by vehicle convictions. See Wright v. State, 304 Ga. App. 651, 652-653 (1) (697 SE2d 296) (2010) (holding evidence that appellant admitted to taking drugs, lab tests confirming the presence of drugs in his blood, and evidence that his vehicle crossed the centerline and caused a collision was sufficient to establish appellant’s impairment).

(b) Driving under the influence.

We do not reach Dickson’s evidentiary challenge to his DUI conviction because that conviction merges with the vehicular homicide convictions as a lesser included offense. Leachman v. State, 286 Ga. App. 708, 710 (649 SE2d 886) (2007). Accordingly, “we vacate [Dickson’s DUI] conviction and his sentence and remand the case to the trial court for resentencing, which moots his challenges to his [DUI] conviction.” Mack v. State, 338 Ga. App. 854 (792 SE2d 120) (2016).

(c) Merged counts.

To the extent Dickson challenges the sufficiency of the evidence to support the counts that were merged into others, those counts were vacated by operation of law, and his challenge to the sufficiency of the evidence to support them is moot. Anderson v. State, 299 Ga. 193, 196 (1), n. 4 (787 SE2d 202) (2016).

3. Denial of motion for competency evaluation.

Dickson argues that the trial court erred by denying his motion for an evaluation of his competency. We disagree.

The trial court conducted a hearing on the motion, at which he heard testimony from the jail administrator about his interactions with Dickson, including that Dickson had written coherent letters to the editor of a newspaper about jail conditions, and the nurse at the jail, who testified about her daily interactions with Dickson. The trial court denied the motion based on the testimony of the witnesses and his own observations of Dickson.

“The question on appeal... is whether the trial court abused [his] discretion in finding no reasonable doubt as to [Dickson’s] competency and therefore no need to conduct further proceedings,” such as ordering a mental examination. Wadley v. State, 295 Ga. App. 556, 557-558 (672 SE2d 504) (2009) (citation omitted). The record shows that there was sufficient evidence to support the trial court’s conclusion that Dickson was competent to stand trial. Id. at 558. Dickson has not shown trial court error. See Jackson v. State, 294 Ga. 431, 434 (4) (754 SE2d 322) (2014).

4. Assistance of counsel.

Dickson argues that he received ineffective assistance of trial counsel in four ways: (1) trial counsel failed to move for a mental examination until four days before trial; (2) trial counsel informed the jury that Dickson had a lifelong drug and alcohol problem and had more than twenty criminal charges; (3) trial counsel failed to object to the admission of evidence of Dickson’s arrests that had not resulted in convictions; and (4) trial counsel failed to file a general demurrer to the charge of driving under the influence of a controlled substance.

To prevail on his claim of ineffective assistance, Dickson must prove

both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different, if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (citations and punctuation omitted).

Initially we observe that Dickson failed to call trial counsel to testify at the motion for new trial hearing. Without trial counsel’s testimony, “it is difficult [for Dickson] to overcome the strong presumption that counsel’s conduct was professional.” Hall v. State, 286 Ga. 358, 360 (2) (687 SE2d 819) (2010) (citations omitted).

Dickson argues that trial counsel’s failure to move for a mental examination until four days before trial amounted to deficient performance. As noted in Division 3, however, the trial court heard evidence and based his denial of the motion on that evidence as well as his own observations. And nothing in the record indicates that the court would have granted the motion had counsel made it earlier.

Dickson argues that trial counsel performed deficiently by informing the jury that Dickson had a lifelong drug and alcohol problem and had more than 20 criminal charges, and by failing to object to the admission of evidence of Dickson’s arrests that had not resulted in convictions. But the trial court had granted the state’s motion to introduce other acts evidence under OCGA § 24-4-404 (b). Given that the introduction of such evidence was likely, we cannot say that any attempt trial counsel may have made to short-circuit its impact was deficient, particularly without trial counsel’s testimony on this issue. Moreover, nothing in OCGA § 24-4-404 (b) limits the admission of such evidence to other convictions, so any objection to the evidence on the ground that the arrests had not resulted in convictions would have been without merit. OCGA § 24-4-404 (b) (concerns “prior crimes, wrongs, or acts”). “[T]rial counsel cannot be deemed ineffective for failing to make a meritless objection.” Hernandez v. State, 299 Ga. 796, 800 (4) (792 SE2d 373) (2016) (citation omitted).

Finally, Dickson argues that trial counsel was ineffective for failing to file a general demurrer to the count of the indictment alleging DUI drugs, per se. Dickson cannot show any prejudice in this regard because, as directed in Division 2 (b), upon remand, this charge will be merged into the vehicular homicide convictions.

Dickson has not met his burden of showing “both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” Wright, 291 Ga. at 870 (2). Thus, he “cannot sustain his claim of ineffective assistance of counsel.” Hall, 286 Ga. at 360 (2).

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

Miller, P. J., and McMillian, J., concur.

Decided November 16, 2016.

Connor L. Magill, Harvey S. Wasserman, for appellant.

D. Parks White, District Attorney, Brian J. Atkinson, Assistant District Attorney, for appellee.


author: Boggs, Judge.

text:
    A16A1313.
    CAZIER et al. v. GEORGIA POWER COMPANY.
    (793 SE2d 668)
   Boggs, Judge.

This litigation first appeared before us in Ga. Power Co. v. Cazier, 321 Ga. App. 576 (740 SE2d 458) (2013) (“Cazier I”). Electric power customers brought an action against Georgia Power seeking certification as a class action and refunds for alleged overpayment of sales taxes and improper calculation of municipal franchise fees. The trial court denied Georgia Power’s motion to dismiss the action, and Georgia Power appealed. We held that petitioners could not pursue a direct action against Georgia Power for refund of sales taxes under OCGA § 48-2-35.1 (d) (“Refund of sales and use taxes; expedited refunds”) or OCGA § 48-8-72 (“Over-collected sales or use tax”), and reversed the trial court’s denial of Georgia Power’s motion to dismiss with reference to those claims. Cazier I, supra, 321 Ga.App. at581 (1), 582 (2). We concluded, however, that petitioners’ claim regarding the municipal franchise fees remained pending, as it was not a

challenge to the validity or reasonableness of any utility rate set by the commission, and instead there is simply a challenge to the method of calcula ting and collecting the said fee. As the trial court correctly found, the parties agree that the commission has exclusive authority to set just and reasonable rates and the complaint raises a wholly different, issue.

(Punctuation omitted.) Id. at 583 (4). In addition, we declined to consider “whether the appellees’ complaint may be amended to assert a claim founded on OCGA § 46-2-90 or as to the merits of such a claim.” Id. at 583 (3).

The litigation returned to the superior court, and petitioners amended their complaint, retaining the claim regarding the franchise fee and adding a claim under OCGA § 46-2-90 (“Liability of companies subject to jurisdiction of commission generally . . Georgia Power renewed and amended its earlier motion for summary judgment, asserting that petitioners failed to exhaust their administrative remedies before the Public Service Commission (“PSC”). The trial court dismissed the action in its entirety in a one-page order, stating that it lacked authority to rule on the merits because petitioners had failed to exhaust their administrative remedies before the PSC. It also denied the motion for class certification. For the reasons stated below, this was error, and we vacate the trial court’s order and remand for further proceedings consistent with this opinion and our earlier opinion in Cazier I.

1. We first address the trial court’s conclusion that petitioners failed to exhaust their administrative remedies. Our Supreme Court “has consistently held that as long as there is an effective and available administrative remedy, a party is required to pursue that remedy before seeking equitable relief in superior court.” (Citations and punctuation omitted.) Fulton County Taxpayers Foundation v. Ga. Pub. Svc. Comm., 287 Ga. 876, 878-879 (2) (700 SE2d 554) (2010). In order to determine whether an “effective and available administrative remedy” exists, therefore, we must look at both the nature of petitioners’ claim and the law under which they seek to proceed.

Petitioners contend that the relevant PSC orders require Georgia Power to calculate municipal franchise fees as a stated percentage of “electricity usage revenue,” “usage revenue,” or “revenue.” They do not complain of any PSC ruling or seek review of any commission action. Rather, they assert that Georgia Power has inflated the basis for calculating the franchise fees by including in its declaration of “revenue” certain “cost recovery items” which were not contemplated by the PSC orders. They further contend that this accounting practice by Georgia Power violates the applicable PSC orders and unlawfully overcharges customers for amounts not authorized by the PSC.

The Administrative Procedure Act governs judicial review of agency decisions, including those of the PSC. Ga. Power Co. v. Campaign for a Prosperous Ga., 255 Ga. 253, 254, n. 2 (336 SE2d 790) (1985). The relevant provision is OCGA § 50-13-19. Id. Subsection (a) states:

Any person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. This Code section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy

Id. Subsection (c) further provides that “no objection to any order or decision of any agency shall be considered by the court upon petition for review unless such objection has been urged before the agency” This Code section, and the cases construing it, by their terms apply to persons who are “aggrieved by a final decision in a contested case” or who have an “objection to any order or decision” of the relevant agency See Ga. Power Co., supra, 255 Ga. at 257 (1) (OCGA § 50-13-19 (a) “requires] that all persons seeking review of a PSC or other agency decision must demonstrate their ‘aggrieved’ status in order to have standing to do so.”); Fulton County Taxpayers, supra, 287 Ga. at 878 (2) (OCGA § 50-13-19 (a) requires that “a person must have exhausted all administrative remedies available within the agency and must be aggrieved by a final decision in a contested case.” (Punctuation omitted.) In other words, the administrative remedies contemplate an order or decision by the PSC in a contested case.

Here, in contrast, petitioners do not claim to be aggrieved by any action of the PSC, nor do they object to any decision or order of the commission. Instead, they contend that Georgia Power has violated the relevant orders of the PSC by failing to use the basis prescribed by the commission to calculate municipal franchise fees. As we noted in Cazier I, “there is no challenge to the validity or reasonableness of any utility rate set by the commission, and instead there is simply a challenge to the method of calculating and collecting the said fee.” 321 Ga. App. at 583 (4).

In this appeal, petitioners assert that they are proceeding against Georgia Power under OCGA § 46-2-90, which authorizes legal action against companies under the jurisdiction of the PSC:

If any company under the jurisdiction of the commission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act which is required either by a law of this state or by an order of the commission, such company shall be liable to the persons affected thereby for all loss, damage, or injury caused thereby or resulting therefrom. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any such person. In case of recovery, if the jury finds that such act or failure to act was willful, it may fix a reasonable attorney’s fee, which shall be taxed and collected as part of the costs of the case.

Id.

This Code section stands in contrast to other provisions of Title 46, which expressly provide for administrative petitions or hearings. See, e.g., OCGA § 46-2-91 (PSC may impose penalties upon “[a]ny person, firm, or corporation” subject to its jurisdiction; judicial review only after commission holds hearing and renders decision.); OCGA § 46-3-8 (PSC has “authority and jurisdiction” to approve transfer of service under Georgia Territorial Electric Service Act, see City of LaGrange v. Ga. Pub. Svc. Comm., 296 Ga. App. 615 (675 SE2d 525) (2009).); cf. OCGA § 49-4-153 (providing for administrative review of Board of Community Health decisions regarding Medicaid services, see Ga. Dept. of Behavioral Health & Developmental Disabilities v. United Cerebral Palsy of Ga., 298 Ga. 779, 783 (1) (b) (784 SE2d 781) (2016)).

OCGA § 46-2-90 does not contemplate any administrative proceedings before the PSC or the challenge of any order or decision by the commission, but rather authorizes an action to recover damages “in any court of competent jurisdiction” from a company under the PSC’s jurisdiction that has violated a PSC order by act or omission. This is consistent with our observation in Cazier/that this count does not challenge a rate set by the commission, but instead “raises a wholly different issue.” (Punctuation omitted.) 321 Ga. App. at 583 (4). We conclude, therefore, that petitioners are not required to exhaust any administrative remedy before proceeding under OCGA § 46-2-90.

2. The trial court, in its oral ruling from the bench, further supported its decision by stating that the meanings of “usage revenue,” “total revenue,” and “revenue” were unclear in the PSC’s rulings, and thus “ambiguous.” It reasoned that, in order to resolve the apparent ambiguity, petitioners were required to make application to the PSC for that body to further explain the details of its order and their meaning, and having failed to do so had not exhausted their administrative remedies. This was likewise error.

Decided November 16, 2016

Barnes Law Group, Roy E. Barnes, John F. Salter, Jr.; Talley, Richardson & Cable, J. Glenn Richardson, for appellants.

Troutman Sanders, William M. Droze, Robert P. Edwards, Jr., Roger S. Reigner, Jr., Lindsey B. Mann, for appellee.

The rate making power of the PSC “lies in the legislative domain,” Ga. Power Co. v. Ga. Public Svc. Comm., 196 Ga. App. 572, 576 (3) (396 SE2d 562) (1990), and is “an exercise of quasi-legislative functions by an administrative body” Id. at 577 (3). “Regulatory plan construction is consistent with general rules of contract construction.” Ga. Public Svc. Comm. v. ALLTEL Ga. Communications Corp., 227 Ga. App. 382, 387 (2) (489 SE2d 350) (1997). And “[o]ne of the traditional functions of courts is to interpret and construe legislative enactments. Determining the intent of the legislative body by defining the ordinary or technical meaning of the terms it has used is commonplace. [Cit.]” Bell v. Barrett, 241 Ga. 103, 104 (243 SE2d 40) (1978) (construing meaning of “commercial” and “noncommercial” in county zoning ordinance). The courts of Georgia have also applied the rules of statutory construction to municipal ordinances, Columbus Ga. Consolidated Govt. v. Schmidt, 269 Ga. 723, 723-724 (507 SE2d 435) (1998), as well as agency standards and administrative regulations. Rice v. Six Flags Over Ga., 257 Ga.App. 864, 869 (572 SE2d 322) (2002). Petitioners were not obligated to petition the PSC for an interpretation or construction of the language in its orders before bringing this action.

For these reasons, the trial court erred in concluding that petitioners failed to exhaust their administrative remedies and in dismissing the petition and denying the motion for class certification on that basis. We therefore vacate the judgment of the trial court and remand for proceedings consistent with this opinion and our opinion in Cazier I.

Judgment vacated and case remanded.

Barnes, P. J., and Rick-man, J., concur.

       Municipal franchise fees are established by contracts between Georgia Power and municipalities, in exchange for access to municipal rights-of-way. See generally Unified Govt. of Athens-Clarke County v. Ga. Pub. Svc. Comm., 293 Ga.App. 786 (668 SE2d 296) (2008).

       One judge concurred in the judgment only as to Divisions 3 and 4 of Cazier I, and therefore those portions of the opinion have no precedential value generally. See Court of Appeals Rule 33 (a). However, the opinion remains the law of the case with respect to those matters raised and ruled upon therein. See generally Choate Constr. Co. v. Auto-Owners Ins. Co., 335 Ga. App. 331, 336-339 (1) (779 SE2d 465) (2015).

       We do not address the merits of petitioners’ allegations, as we consider here only the propriety of the trial court’s dismissal of the petition, which we review de novo. Miller County Bd. of Ed. v. McIntosh, 326 Ga. App. 408, 411 (1) (756 SE2d 641) (2014).