text:
    A12A1445.
    COLLINS v. DAVIS.
    (733 SE2d 798)
   Ray, Judge.

In 2007, Brian Lamar Collins filed a petition to legitimate his nine-year-old daughter, and a Walton County Superior Court judge issued final orders regarding child custody and visitation and requiring Collins to pay child support. Approximately four years later, the mother, De Anna Davis, filed a petition for modification of custody, visitation, and child support, as well as a motion for contempt and a demand for attorney fees. Collins counterclaimed, requesting a downward modification of child support. On December 30, 2011, the trial judge issued a final order, establishing a new visitation schedule and ordering a reduction in Collins’ child support payment.

Collins filed an application for discretionary review, specifically challenging the court’s order with respect to child support, claiming the trial court should have further decreased his child support payment. He does not appeal the new visitation schedule. We granted Collins’ application for discretionary review for the sole purpose of determining whether Collins properly applied for discretionary review or whether he was, in fact, entitled to a direct appeal. After a thorough review of the case, we find that Collins was entitled to a direct appeal in this case. However, because Collins’ enumerations of error lack merit, we affirm the trial court’s order.

1. It is incumbent upon appellate courts to inquire into their own jurisdiction. We, therefore, must address whether Collins’ appeal, which he made by way of application for discretionary review under OCGA § 5-6-35, was proper. Two Code sections determine the method for pursuing appeals to this Court: OCGA § 5-6-34, which describes the trial court’s judgments and orders that may be appealed directly, and OCGA § 5-6-35, which lists cases in which an application for appeal is required. Prior to 2007, there was no right to a direct appeal in any domestic relations or child custody case, and the present case clearly would have fallen under the ambit of former OCGA § 5-6-35 (a) (2), which provided that applications for discretionary review were to be filed from “[ajppeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases. . . .”

In 2007, however, the GeneralAssembly amendedboth OCGA §§ 5-6-34 and 5-6-35, removing all references to child custody cases in OCGA § 5-6-35 (a) (2), and enacting subsection (11) in OCGA § 5-6-34 (a) to provide that direct appeals may be taken from “[ajll judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.” Appellate courts have subsequently found that the effect of this broad language is that a party seeking to appeal any order in a child custody case is no longer required to comply with the interlocutory appeal procedures of OCGA § 5-6-34 (b) or OCGA § 5-6-35 (a) (2). These cases, however, dealt with appeals of actual child custody issues and do not address the issue presented in this case.

OCGA § 5-6-35 (a) (2), on the other hand, still mandates that “judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgment or orders” require an application for appeal. It is well established that matters concerning child support fall into the category of “other domestic relations” and, therefore, require an application for discretionary appeal. In fact, we have said before that “[r] egardless how this case was couched or pursued, it involves collection of child support moneys [sic] and it is a domestic relations matter.”

Consequently, this case raises the issue of whether the right to a direct appeal in child custody/visitation cases, set forth in OCGA § 5-6-34 (a) (11), applies when a party strictly appeals the child support awarded in an order that also involves child custody or visitation. This is not an easy question to answer. In a recent case, this Court granted discretionary review to rule on child support issues that arose from an order providing for the legitimation, custody, and support of a minor child. We did not address whether the case was properly brought as an application or whether it should have been directly appealable. This Court also has held that interlocutory, temporary custody orders are directly appealable, even though the orders are entered in divorce actions. The Supreme Court of Georgia, on the other hand, recently held that an appeal of a divorce judgment or deprivation proceeding in which child custody was an issue must come by way of an application because the child custody issues in those cases are merely ancillary to the divorce action or deprivation proceeding. According to the Supreme Court,

[b]oth OCGA §§ 5-6-34 (a) and 5-6-35 (a) are involved when, as here, a trial court issues a judgment listed in the direct appeal statute in a case whose subject matter is covered under the discretionary appeal statute. In resolving similar conflicts, this court has ruled that an application for appeal is required when the “underlying subject matter” is listed in OCGA § 5-6-35 (a). Therefore, the discretionary application procedure must be followed, even when the party is appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a).

“Were our precedent to hold otherwise, litigants could avoid OCGA § 5-6-35’s discretionary application requirements by seeking relief in the trial court that triggers the right to direct appeal, regardless of the underlying subject matter at issue.”

In this case, Collins appeals the modified child support award that was rendered in an order that also modified visitation. Both of these modifications stem from a prior legitimation case. If Collins had appealed the modification of visitation portion of the order, there is no doubt that the case would be directly appealable as a child custody proceeding. If the case below simply dealt with child support and not visitation, there is no doubt that Collins would be required to file an application for discretionary review in the domestic relations case. The question remains: Is Collins entitled to directly appeal the child support portion of the trial court’s order in this case? We believe he is.

“In resolving this issue, we look to the literal language of the statute[s], the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute [s] so as to give effect to the legislature’s intent.” But as our Supreme Court has instructed, the search for legislative intent must begin with the words of the statute, and if those words are clear and unambiguous, the search also must end there. Put another way, when we consider the meaning of a statute, we must presume that the legislature meant what it said and said what it meant. We cannot “substitute by judicial interpretation language of [our] own for the clear, unambiguous language of the statute, so as to change the meaning.”

With these principles in mind, we turn to OCGA § 5-6-34 (a) (11). The clear and unambiguous words of the statute quite plainly permit a direct appeal from “[a]ll judgments or orders in child custody cases,” and the legislature has defined a “child custody proceeding” as “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue.” Accordingly, while the appeal in this case strictly deals with the child support award, this award was rendered in a child custody case and was directly appealable. “We reiterate that the underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal.” Collins was entitled to a direct appeal in this case.

2. Turning to Collins’ actual enumerations of error, we find that they lack merit. The trial court reduced Collins’ child support obligation from $920 per month to $713.25 per month, but Collins contends that the reduction was not enough and that the trial court made several erroneous factual findings, particularly with respect to the extent of his recent decrease in income and the credibility of his testimony. However, we review any findings based on disputed facts or witness credibility under the clearly erroneous standard, and we review a trial court’s decision to modify a child support award for an abuse of discretion. If there is some evidence to support the trial court’s decision on whether a substantial change in the parent’s income authorizes an upward or downward revision of child support, we will áffirm.

Collins has failed to show that the trial court abused its discretion in the present case. Notably, he has not submitted the petition for modification, nor much, if any, documentation pertaining to the original 2007 order the parties sought to modify. Further, he cites no authority in support of his claims that the trial court erred in making its findings, thereby emphasizing the fact that such findings were completely within the discretion of the trial court. The trial court specifically noted that Collins’ testimony and evidence raised “significant credibility questions as to [his] testimony on his finances,” and the record supports this finding. Under these circumstances, Collins has not met his burden of showing that the trial court’s findings were clearly erroneous and that its slight downward modification of child support was an abuse of discretion.

Decided October 30, 2012.

Jones & Duff, Don M. Jones, for appellant.

De Anna Davis, pro se.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       See Todd v. Todd, 287 Ga. 250, 250 (1) (703 SE2d 597) (2010).

       See Lurry v. McCants, 302 Ga. App. 184, 184, n. 1 (690 SE2d 496) (2010) (direct appeal authorized where appeal stemmed from a petition to modify child custody); Cohen v. Cohen, 300 Ga. App. 7, 8 (1) (684 SE2d 94) (2009) (direct appeal authorized where appeal involved whether trial court had jurisdiction in a divorce and child custody case); Taylor v. Curl, 298 Ga.App. 45, 45 (679 SE2d 80) (2009) (direct appeal authorized in a case where child custody was the sole issue).

       See Booker v. Ga. Dept. of Human Resources, 317 Ga. App. 426 (731 SE2d 110) (2012); Davis v. Welch, 205 Ga.App. 462, 463 (422 SE2d 323) (1992); Graves v. Graves, 186 Ga.App. 140, 142 (3) (366 SE2d 809) (1988). We note that these cases specifically dealt with awards of child support; custody and visitation issues were not raised in the trial courts.

        Davis, supra at 463.

       It is well settled that an action seeking to change visitation qualifies for treatment as a child custody case and is directly appealable. See Edge v. Edge, 290 Ga. 551, 552-553 (1) (722 SE2d 749) (2012); Moore v. Moore-McKinney, 297 Ga. App. 703, 705 (1) (678 SE2d 152) (2009).

       See Jackson v. Irvin, 316 Ga. App. 560 (730 SE2d 48) (2012).

       See Long v. Long, 303 Ga. App. 215, 217 (1) (692 SE2d 811) (2010); Croft v. Croft, 298 Ga. App. 303, 303, n. 1 (680 SE2d 150) (2009).

       See Todd, supra at 251 (1).

       (Citation and punctuation omitted.) Id.

       (Citation and punctuation omitted.) Walker v. Estate of Mays, 279 Ga. 652, 653 (1) (619 SE2d 679) (2005).

       (Citation and punctuation omitted.) Moore, supra at 706 (1).

       See Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (“Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.”) (citation omitted); see also Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010) (when the words of a statute are clear and unambiguous, we must give those words their plain meaning).

        Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011).

        Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946). See also Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 450 (1) (a) (697 SE2d 166) (2010) (“It is not the place of this Court to rewrite statutes. . . .”).

       OCGA § 19-9-41 (4). We note that this statute also declares that the term “child custody proceeding” includes proceedings for divorce, and the Supreme Court, following the mandates of OCGA § 5-6-35 (a) (2), has held that a party appealing a divorce action must file an application for discretionary review, even if it includes a child custody issue, because child custody is ancillary to the divorce proceeding. See Todd, supra at 251 (1). We do not have that issue before us today.

        Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994).

       This Court sympathizes with those who believe that the General Assembly really intended that only the custody or visitation terms in a child custody case should be directly appealable. However, given the wording used by the General Assembly in enacting its 2007 amendments to OCGÁ § 5-6-34, it is incumbent upon the legislature to further refine this language if this Code section opened up too broadly those orders and judgments which could be directly appealable.

       See Jackson, supra at 562 (1).

       See Messaadi v. Messaadi, 282 Ga. 126, 129 (2) (646 SE2d 230) (2007).

       See Sharpe v. Perkins, 284 Ga. App. 376, 379 (2) (644 SE2d 178) (2007).

       See Messaadi, supra at 128 (1) (husband failed to carry his burden of proving error in the trial court’s award).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A1277.
    CRAWFORD v. THE STATE.
    (732 SE2d 794)
   BARNES, Presiding Judge.

Based on allegations that he threatened to kill his ex-girlfriend and knowingly set fire to a residence and vehicle, Anthony Dwight Crawford was indicted on charges of making terroristic threats, arson in the first degree, and arson in the second degree. A Newton County jury subsequently found him guilty of the charged offenses, and he filed a motion for new trial that was denied. On appeal, Crawford challenges the sufficiency of the evidence and contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the verdict. Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). So viewed, the evidence showed that the victim had an >]ff and on” romantic relationship with Crawford from 2005 until she ended the relationship with him in February 2010. During their relationship, Crawford and the victim lived together with her three children at the victim’s home in Newton County. When the victim ended the relationship, Crawford moved out of her home and went to live with his brother in Auburn, Alabama.

Crawford became “upset [and] very angry” over the breakup and was “very persistent” in his efforts to reconcile with the victim. He continued to call the victim “[d]aily, multiple times a day.” Crawford often became angry when speaking with the victim, including telling her that he had no reason to live and stating that she should “get ready to die as well.”

By April 2010, the victim had become involved in a relationship with someone else, and she told Crawford that she had a new boyfriend. Crawford became angry and screamed at her in a face-to-face confrontation in front of her children. In an effort to end the unwanted contact, the victim asked Crawford to stop calling her.

During the early morning hours of April 15, 2010, the victim and her new boyfriend were in bed together in her home in Newton County. The bedroom window was open because it was nice outside that night. They awoke upon hearing something strike the back side of the house under the bedroom window. The victim’s boyfriend looked out the open window and saw Crawford running from the back of the house and get into a car that drove from the scene. The victim got out of bed, checked on her children, and went downstairs. She heard someone knocking on the front door, and she opened it to find her neighbor telling her that her van was on fire. The van was in the driveway, about six feet from the home.

Seeing the front interior of the van in flames, the victim and her boyfriend gathered her three children and fled from the home. The victim dialed 911, and the fire department and police arrived at the scene.

The fire destroyed the van. The victim’s home also caught on fire, resulting in significant damage to the front portion near where the victim’s ten-year-old son had been sleeping. Because of the fire, the victim’s home became unliveable and required several months of repairs.

Approximately one hour after the fire, Crawford began calling the victim on her cell phone. It was unusual for him to call her in the middle of the night, and the phone number that Crawford was calling from had an Atlanta area code, even though he normally called her from a number with an Alabama area code. Crawford called the victim more than ten times during the early morning hours after the fire. The victim was able to record some of the calls on her cell phone. At times during the calls, Crawford claimed that he was in Alabama, while at other times he claimed to be in Georgia. In one of the calls, Crawford told the victim, “I’m not gonna rest till it’s over with,” and “You done played with my heart. I’m ready to die tonight. I think you need to be ready too.” Later during the call, Crawford said, ‘You got what you deserved,” “[B]elieve me it’s not over yet,” and “When I die, you die with me.”

The victim made arrangements for her sister to drive her three children to a hotel to stay the rest of the night, and the deputy chief with the Newton County Fire Department agreed to drive the victim and her boyfriend to the hotel. On the way to the hotel, Crawford called the victim again on her cell phone, and she activated the speaker on her phone so that the deputy fire chief and her boyfriend could overhear the conversation. During the call, Crawford, who seemed very agitated, told the victim that he had come to her house that night, had seen the window open from the back yard, had heard music from the bedroom, and had known that the victim and her boyfriend were having sex. Crawford’s description of what he had seen and heard leading up to the fire was consistent with the victim’s recollection of that night. Crawford admitted that he set the van on fire, and he told the victim that if he had possessed a key to the house, he would have come inside and killed her.

Early the same morning, an officer with the City of Auburn Police Department attempted to locate Crawford at his residence in Auburn. Crawford’s brother informed the officer that Crawford had gone to Georgia.

Subsequent investigation revealed a large rock beneath the victim’s' bedroom window and a plastic jug containing a heavy petroleum distillate similar to diesel fuel near the air conditioner unit in the rear of the house. Neither the rock nor the jug had been there before. There also was a hole in the vinyl siding beneath the victim’s bedroom window where something had struck it. Before the fire, there were no mechanical or other problems with the van, which was “in good working” condition, except that the driver’s side window would not stay up.

Crawford was indicted for making terroristic threats, first degree arson for the burning of the victim’s home, and second degree arson for the burning of the van used by the victim and owned by her mother. At trial, the victim testified to the events as set out above, and the State also presented the testimony of the victim’s boyfriend, her mother, the deputy fire chief, and Crawford’s brother, among other witnesses. The State also introduced into evidence photographs of the damage to the van and home, as well as audio recordings of several of the victim’s cell phone calls with Crawford. The jury was provided with transcripts of the calls to assist them in listening to the recordings. Crawford elected not to testify and chose not to present any witnesses on his behalf.

After hearing all of the testimony, viewing the photographs, and hearing the audio recordings, the jury found Crawford guilty of the charged offenses. Crawford moved for a new trial, asserting the general grounds and contending that his trial counsel was ineffective. After conducting an evidentiary hearing in which Crawford’s trial counsel testified, the trial court denied the motion in a detailed order. This appeal followed.

1. Crawford challenges the sufficiency of the evidence with respect to his convictions on all three counts of the indictment.

In reviewing the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we ask whether the evidence, when viewed in the light most favorable to the verdict, authorized a rational jury to have found the essential elements of the charged offense beyond a reasonable doubt. We do not weigh the evidence or determine witness credibility, but only determine whether the evidence was sufficient under the Jackson standard.

(Citations omitted.) Smoot v. State, 316 Ga. App. 102, 111 (5) (729 SE2d 416) (2012).

(a) Crawford first contends that there was insufficient evidence to convict him of making a terroristic threat because the only competent evidence of the threat was the victim’s uncorroborated testimony. We disagree.

“A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another.” (Citation and punctuation omitted.) Maskivish v. State, 276 Ga. App. 701, 703 (2) (624 SE2d 160) (2005). See OCGA § 16-11-37 (a). “The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.” (Citation and punctuation omitted.) Clement v. State, 309 Ga.App. 376, 379 (1) (710 SE2d 590) (2011). The indictment alleged that Crawford committed the offense of making a terroristic threat in that on or about April 15, 2010, he threatened to commit murder with the purpose of terrorizing the victim.

At trial, the State introduced into evidence and played for the jury, without objection, recorded phone conversations between Crawford and the victim. The victim testified that the recordings were a true and accurate representation of the conversations she had with Crawford on the morning of April 15,2010, after the fire hadbeenset. As previously noted, in one of the recorded conversations, Crawford told the victim, “I’m not gonna rest till it’s over with,” and ‘You done played with my heart. I’m ready to die tonight. I think you need to be ready too.” He also told the victim that ‘You got what you deserved,” “[B]elieve me it’s not over yet,” and “When I die, you die with me.”

The recorded phone conversation, properly authenticated by the victim and introduced without objection, was sufficient to authorize Crawford’s conviction for making a terroristic threat as alleged in the indictment. See Rhames v. State, 193 Ga. App. 199, 200 (2) (387 SE2d 353) (1989) (telephone calls recorded on victim’s answering machine that contained defendant’s threats to sexually assault and kill the victim was sufficient to authorize terroristic threats convictions).

It is true, as Crawford maintains, that a terroristic threat conviction cannot be predicated solely on the uncorroborated testimony of the victim. See OCGA § 16-11-37 (a) (“No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.”). But, in the instant case, Crawford’s threat was established through the recorded phone conversation introduced into evidence and played for the jury. Hence, corroboration was not required. See Worthington v. State, 257 Ga. App. 10, 11 (570 SE2d 85) (2002) (noting that corroboration is required only if the State relies solely upon the testimony of the party to whom the threat was communicated). Cf. Warnock v. State, 195 Ga. App. 537, 540 (4) (394 SE2d 382) (1990) (“Corroboration of the younger daughter’s testimony [regarding the threat she overheard] was not required because she was not the person to whom the threat was communicated.”).

In any event, even if corroboration of the threat had been required, a defendant’s “conduct leading up to the terrorist threat may constitute corroboration.” Maskivish, 276 Ga. App. at 703 (2). See Hobby v. State, 298 Ga. App. 52, 54 (1) (679 SE2d 72) (2009) (“[C] orroborating circumstances may include [a] defendant’s aggressive and hostile conduct leading up to and during the threat.”). Crawford’s conduct in throwing a rock at the victim’s bedroom window and setting her van on fire sufficiently corroborated his threat to kill the victim, had it been necessary for the State to show corroboration.

(b) Crawford next asserts that there was insufficient evidence to support his conviction for arson in the second degree because there was no competent expert testimony regarding the cause and origin of the fire that destroyed the van. We do not agree.

“A person commits second degree arson of a vehicle when, by means of a fire or explosive, he or she knowingly damages any vehicle of another without his or her consent.” Senior v. State, 273 Ga. App. 383, 385 (2) (615 SE2d 220) (2005). See OCGA § 16-7-61 (a). The indictment alleged that Crawford committed arson in the second degree on or about April 15, 2010, by knowingly causing damage, by means of fire, to the vehicle owned by the victim’s mother.

The victim testified that she awoke to find the interior of the parked van on fire in the middle of the night, despite the van having no prior significant mechanical problems, and that she did not give anyone permission to burn the van. The victim’s mother likewise testified that she did not give anyone permission to burn the van.

Significantly, the victim further testified that, while talking on speaker phone on the way to the hotel after the fire, Crawford confessed to her that he had set fire to the van.

It is axiomatic that a confession alone, uncorroborated by any other evidence, does not justify a conviction. See OCGA § 24-3-53. However, afree and voluntary confession of guilt by the accused is direct evidence of the highest character and is sufficient to authorize a conviction when corroborated by proof of the corpus delicti. The evidence corroborating a confession, however, need not definitely connect the defendant to the crime; corroboration in any material particular satisfies the legal requirement.

(Citations and punctuation omitted.) Martinez v. State, 314 Ga. App. 551, 553 (1) (724 SE2d 851) (2012). See Robinson v. State, 276 Ga. App. 502, 503 (1) (623 SE2d 711) (2005) (defendant’s confession to arson in the second degree “corroborated by additional evidence that gasoline had been poured inside the stolen car, that a gas can was left in the vehicle and that the car had been set on fire”).

Crawford’s confession to the arson was corroborated by the testimony of the victim’s boyfriend that he saw Crawford fleeing from the back yard of the victim’s home immediately before he and the victim became aware that the van was ablaze. Crawford’s confession was further corroborated by witness testimony that a plastic jug containing a heavy petroleum distillate similar to diesel fuel was found outside the victim’s home after the fire. In light of this testimony, Crawford’s confession was sufficiently corroborated to support his conviction for arson in the second degree, and, therefore, there was no need for the State to introduce expert testimony as to the cause and origin of the fire to sustain the conviction.

(c) Crawford also argues that there was insufficient evidence to convict him of arson in the first degree because there was no evidence that he knowingly set the victim’s house on fire. We are unpersuaded.

Pursuant to OCGA § 16-7-60 (a) (1), “[a] person commits the offense of arson in the first degree when, by means of fire or explosive, he or she knowingly damages . . . [a]ny dwelling house of another without his or her consent[.]” To prove arson in the first degree under OCGA § 16-7-60 (a) (1), there must be evidence of three fundamental facts: “First, a burning [of a dwelling house of another without consent]; second, that a criminal agency was the cause of the burning; and, third, that the defendant was the criminal agency.” (Citation and punctuation omitted.) Collins v. State, 202 Ga. App. 291, 295-296 (1) (414 SE2d 297) (1991). The indictment alleged that Crawford committed arson in the first degree in that on or about April 15, 2010, he knowingly damaged, by means of fire, the dwelling house of the victim without her consent.

Here, there was testimony that Crawford confessed to setting fire to the van, which was parked in the driveway only six feet from the victim’s home, that the house also caught on fire, and that the victim did not consent to the burning of the house. There also was evidence that in the months after the victim broke up with Crawford and up to the time of the fire, Crawford had persistently refused to accept that their relationship was over, had become extremely upset upon learning that the victim had a new boyfriend, had continued to harass the victim with multiple phone calls on a daily basis, and had threatened to kill the victim and himself. Furthermore, the victim testified that during her conversation with Crawford on speaker phone after the fire, he told her that he would have come inside and killed her, if he had possessed a key to her house.

Contrary to Crawford’s assertion, this combined evidence was sufficient to authorize a rational jury to find that he knowingly set the victim’s house on fire. Guilty knowledge can be inferred from the circumstances, see Cobb v. State, 125 Ga.App. 556 (1) (188 SE2d 260) (1972), including from the conduct of the defendant before, during, and after the crime, as well as from the defendant’s words, demeanor, and motive. See Bishop v. State, 266 Ga. App. 129, 132 (2) (596 SE2d 674) (2004); Guzman v. State, 262 Ga. App. 564, 567 (1) (a) (586 SE2d 59) (2003). Moreover, the trier of fact may infer that a person of sound mind and discretion intends the natural and probable consequences of his conduct, “particularly if that conduct be unlawful and dangerous to the safety or lives of others.” (Citation and punctuation omitted.) Guzman, 262 Ga. App. at 568 (1) (a). See Bishop, 266 Ga. App. at 132 (2). In light of the spatial proximity of the van to the house, the threats Crawford had made to the victim, and his admission that he would have killed the victim if he had been able to do so, the jury was authorized to find that Crawford acted with guilty knowledge and intended for the victim’s house to also catch on fire when he set her van on fire. Cf. Plemons v. State, 194 Ga. App. 554, 555-556 (2) (a) (390 SE2d 916) (1990) (jury entitled to find that by setting fire to clothing inside house and leaving it there, defendant also intended for the house to catch on fire).

Crawford also contends that the State failed to establish the cause of the house fire because there was no competent expert testimony establishing that the heat from the van fire caused the fire to spread to the victim’s home. Even absent expert testimony, however, the jury was free to conclude that the house fire was a natural and probable consequence of setting the van on fire a mere six feet from the house. Jurors in their common experience would be able to reach that conclusion, which did not require specialized knowledge or skill, and which was not beyond the ken of the average juror. See, e.g., Turner v. State, 246 Ga. App. 49, 55 (5) (a) (539 SE2d 553) (2000) (“The determination that a bomb is a destructive device is not beyond the ken of the jury.”).

Lastly, we note that in challenging the sufficiency of the evidence, Crawford relies upon Altman v. State, 156 Ga. App. 185, 186 (1) (273 SE2d 923) (1980), for the proposition that he could not be separately convicted for arson relating to the victim’s home because only one incendiary act was committed in this case, namely, the setting of the van on fire. Altman should not be construed so broadly. That case addressed whether the defendant’s one incendiary act of setting fire to a structure that then spread to another structure could result in two convictions under the same arson statute. See id. See also Stinski v. State, 286 Ga. 839, 841 (1) (691 SE2d 854) (2010); O’Kelley v. State, 284 Ga. 758, 760-761 (1) (670 SE2d 388) (2008). Because the present case involves convictions under two separate and distinct arson statutes, Altman is inapposite.

Instead, where two different statutory provisions are involved, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not,” i.e., the “required evidence” test. (Punctuation and footnote omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006). See Smith v. State, 290 Ga. 768, 772-773 (3) & n. 4 (723 SE2d 915) (2012). The first-degree and second-degree arson statutes at issue here each require proof of fire damage to a category of property that the other does not. Compare OCGA § 16-7-60 (a) (1) (applying to “[a]ny dwelling house of another ... or in which another has a security interest, including but not limited to a mortgage, a lien, or a conveyance to secure debt... whether it is occupied, unoccupied, or vacant”), to OCGA § 16-7-61 (a) (applying “to any building, vehicle, railroad car, watercraft, aircraft, or other structure not included or described in Code Section 16-7-60”). Therefore, Crawford’s separate convictions for arson in the first and second degrees did not merge under the “required evidence” test. See Drinkard, 281 Ga. at 215. It follows that, unlike the defendant in Altman, Crawford could be convicted of more than one arson-related offense.

(d) For the combined reasons set forth in Divisions 1 (a)-(c), we conclude that a rational trier of fact was entitled to find Crawford guilty beyond a reasonable doubt of terroristic threats and arson in the first and second degrees. Jackson, 443 U. S. 307. The evidence thus was sufficient to support his convictions, and the trial court committed no error in denying his motion for new trial on the general grounds.

2. At trial, the deputy fire chief and the victim’s boyfriend testified about the cell phone conversation between Crawford and the victim that they overheard on speaker phone on the way to the hotel after the fire. According to Crawford, his trial counsel was ineffective for failing to obj ect to their testimony in which they (a) described what was said by the caller during the phone call and (b) referred to Crawford as the caller, given that neither witness had personal knowledge of Crawford’s voice.

To substantiate a claim of ineffective assistance of counsel under the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), “[Crawford] 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.” Johnson v. State, 281 Ga. 770, 771 (2) (642 SE2d 827) (2007). If Crawford is unable to establish one of the prongs of the Strickland test, he cannot succeed on his claim of ineffective assistance, and we need not examine the other prong. Id. at 771-772 (2).

(a) In claiming ineffective assistance, Crawford maintains that neither the deputy fire chief nor the victim’s boyfriend was entitled to testify about what the caller said during the cell phone conversation which he overheard on the way to the hotel. As previously noted, during that phone conversation, the caller (identified by the victim as Crawford), made several incriminating statements, including his admission that he set the van on fire and that he would have killed the victim if he had possessed a key to her house. We conclude that while the two witnesses did not have personal knowledge of Crawford’s voice, they nevertheless were entitled to testify about what was said by the caller during the phone call that they overheard, given that the victim was able to identify Crawford as the caller.

When the contents of a telephone conversation are sought to be used against a particular person, the rule governing admissibility requires that (a) the other party to the conversation be identified by competent evidence when identity is relevant; and (b) the contents of the phone conversation be admissible (e.g., qualify under some exception to the hearsay rule before admission).

(Citation and punctuation omitted.) Jackson v. State, 256 Ga. 536, 537 (2) (350 SE2d 428) (1986). See Cannady v. Lamb, 146 Ga. App. 850 (1) (247 SE2d 500) (1978). The issue is whether prong (a) of the test for admissibility was met in this case, and we conclude that it was met through the testimony of the victim.

Before the testimony of the deputy fire chief and the victim’s boyfriend, the jury heard the testimony of the victim. She testified that she had been involved in a romantic relationship with Crawford for over four years, and thus obviously knew the sound of his voice. She identified Crawford as the caller in each telephone conversation she had with him after the fire, including the conversation on speaker phone that she had with him while riding to the hotel with the deputy fire chief and her boyfriend. After the victim testified to the contents of the phone conversation that occurred on speaker phone and identified Crawford as the caller, the deputy fire chief and the victim’s boyfriend testified about what they had similarly overheard on the way to the hotel.

Under these circumstances, the testimony of the deputy fire chief and the victim’s boyfriend about what the caller said during the phone conversation that they overheard was admissible. The identity of the caller, Crawford, was established through the competent testimony of the victim. See Cannady, 146 Ga. App. at 850 (1) (identity of speaker can be established through “direct testimony of voice recognition”). And a witness can testify to what was said by the caller in a phone conversation, even if the witness cannot himself identify the caller, where identity can be established through the competent testimony of a different witness. See Corsini v. State, 238 Ga. App. 383, 384 (1) (519 SE2d 39) (1999) (witness could testify to threat made over the phone even though she could not identify the caller, where the victim testified that she recognized the defendant’s voice before dropping the phone, which was then picked up by the witness who heard the threat).

Accordingly, in light of the victim’s identification of the caller as Crawford, the deputy fire chief and the boyfriend were authorized to subsequently testify about what they overheard the caller say during the phone conversation. See Corsini, 238 Ga. App. at 384 (1). And because their testimony was admissible, Crawford’s trial counsel was not deficient, and thus not ineffective, for failing to object to their testimony in this respect. See Hammock v. State, 311 Ga. App. 344, 346 (2) (a) (715 SE2d 709) (2011).

(b) In a related argument, Crawford contends that his trial counsel was ineffective for failing to object to the testimony of the deputy fire chief and the victim’s boyfriend to the extent that they referred to Crawford as the caller when describing what was said during the phone conversation. According to Crawford, they should not have referred to him as being the caller because they lacked personal knowledge of his voice and instead relied upon hearsay statements made to them by the victim identifying him as the caller.

Even if an objection to the deputy fire chief and the victim’s boyfriend making reference to Crawford as the caller would have been sustained because they lacked personal knowledge of his voice, Crawford cannot establish prejudice resulting from the failure to object. As already noted, the victim provided competent testimony identifying Crawford as the caller, and the references to Crawford as the caller made by the deputy fire chief and the victim’s boyfriend were merely cumulative of that properly admitted testimony, and thus were not prejudicial. See Johnson v. State, 277 Ga. App. 499, 508 (4), n. 3 (627 SE2d 116) (2006) (witness testimony, even if improper for lack of personal knowledge, was harmless because merely cumulative of another witness’s admissible testimony).

Furthermore, the deputy fire chief testified that he did not know Crawford and that his information about the identity of the caller came from the victim, and the victim’s boyfriend likewise testified that he had never met Crawford and had only seen photographs of him. Hence, the jury would not have been confused into thinking that either witness had personal knowledge of the caller’s identity, and would have been aware that the only person who could competently identify Crawford as the caller was the victim. Consequently, Crawford cannot show that there is a reasonable probability that, but for his trial counsel’s failure to object, the outcome of the trial would have been different, and thus cannot establish ineffective assistance of counsel. See generally Johnson, 281 Ga. at 771-772 (2).

Decided October 1, 2012

Reconsideration denied October 31, 2012

Frances C. Kuo, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Randal M. McGinley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Although the victim’s boyfriend had never met Crawford, he had seen photographs of him.

       The victim drove the van, but it was owned by her mother.

       In arguing that there was insufficient evidence to prove the making of a terroristic threat, Crawford focuses on the testimony at trial about his unrecorded conversation with the victim on speaker phone while she was riding in the car to the hotel with the deputy fire chief and her boyfriend. Yet, the language of the indictment was broad enough to authorize a conviction for terroristic threats predicated on the recorded phone conversation between Crawford and the victim earlier that same night. Moreover, opening statements and closing arguments were not transcribed, and there is nothing in the record to suggest that the State intended to restrict the terroristic threat count of the indictment to the unrecorded phone conversation.

       Prong (b) of the test for admitting a telephone conversation clearly was met because Crawford’s statements to the victim during the conversation were admissible as voluntary, incriminating admissions. See Escobar v. State, 296 Ga. App. 898, 902(3) (676 SE2d 291) (2009). See also OCGA § 24-3-34; Teal v. State, 282 Ga. 319, 327 (3) (647 SE2d 15) (2007). (“A defendant’s incriminating statement is admissible when it constitutes an admission against the defendant’s penal interest because [it] is the admission of a party-opponent.”) (citations and punctuation omitted).

       The potential problem could have been avoided if the deputy fire chief and the victim’s boyfriend had referred to the person whom they overheard speaking on the phone simply as the “caller” or the “speaker.” As explained in Division 2 (a), their testimony in that regard would have been admissible in light of the victim’s competent testimony identifying the caller as Crawford.


text:
    A12A0905.
    FORUM GROUP AT MORAN LAKE NURSING AND REHABILITATION CENTER, LLC et al. v. TERHUNE.
    (733 SE2d 808)
   BARNES, Presiding Judge.

In her capacity as executrix and individually, Loretta Terhune sued the nursing home where her father lived before he died, contending that his death resulted from complications after he suffered an untreated broken hip, among other injuries. Terhune also sued George D. Houser, who owned the nursing home, and ten additional corporate entities owned and operated by Houser, asserting theories of joint enterprise, violation of federal and state statutes and regulations, breach of contract, medical malpractice, and negligence per se, among other things. After the trial court struck Houser’s answer for discovery violations and granted Terhune a default judgment as to liability, a jury awarded her $2,842,180.11 in compensatory damages, which were trebled by operation of law due to Houser’s intentional violation of the Fair Business Practices Act, and $35 million in punitive damages. Houser appeals, contending that the trial court erred in striking his answer, in failing to remove a juror, and in making various evidentiary rulings during the trial. For the reasons that follow, we find no error and affirm.

Terhune’s 80-year-old father, Morris Ellison, became a long-term resident of Forum Group at Moran Lake Nursing and Rehabilitation Center, LLC, in September 2006. He was diagnosed with an untreated hip fracture in April 2007 and died in hospice care ten days later. Terhune sued Moran Lake and its owner, Houser, alleging that Ellison died as a result of long-term abuse and neglect, which was caused in part by Houser’s systemic underfunding of the facility that led to substandard care. Terhune also sued ten other businesses Houser owned, alleging that Houser had dissolved the Moran Lake and Mt. Berry nursing homes, transferred their assets to different corporate entities, and commingled all of his business and personal assets.

None of the defendants answered within thirty days of being served. Thirty-nine days after the last defendant was served and forty-eight days after the first, Houser, who is an attorney, filed an answer on behalf of “DEFENDANTS Forum Group at Moran Lake Nursing and Rehabilitation Center, LLC, Et. AL [sic].” He also paid costs of $107 at that time.

Terhune moved for default judgment on June 11,2009 against all of the defendants. Under OCGA § 9-11-55 (a), a defendant may open a default as a matter of right within forty-five days of service by paying costs, but Terhune argued that Houser only paid costs to open the default against one defendant, not all twelve. Further, while the court may in its discretion allow a defendant to open a default before judgment is entered under certain grounds, Houser did not assert any of those grounds in his answer.

Houser did not respond to the motion for default judgment, and Terhune filed a second motion for default judgment on July 28, 2009. Houser did not respond to that motion either. Following a hearing in August 2009, the trial court granted Terhune’s motions for default judgment on September 2, 2009. The court found that, without a timely answer from any of the defendants, the complaint stood admitted, the allegations within it established the defendants’ liability, and the case would proceed to trial on the issue of damages only.

Later in September 2009, Terhune moved the court to compel Houser to respond to the requests for production and interrogatories she had served on the defendants with the complaint five months earlier. While Houser did not respond to the motion to compel, on November 6, 2009, he filed a belated response to Terhune’s already-granted motion for default judgment and a motion to set aside the default judgment under OCGA § 9-11-60.

After a hearing, on November 11, 2009, the trial court granted Terhune’s motion to compel and ordered Houser to respond to discovery within seven days. It further ordered that if Houser failed to comply, the court would impose sanctions and attorney fees against the defendants. The court did not rule on Houser’s motion to open the default judgment. Two months later, in January 2010, Terhune moved for sanctions against Houser for his continued failure to respond to discovery. Houser did not respond to the motion for sanctions.

On April 30, 2010, the trial court granted Terhune’s motion for sanctions and struck the defendants’ answer, finding that Houser had “completely failed to respond to the Court’s Order on Plaintiffs’ Motion to Compel” entered more than five months earlier. The court further found that, regardless of whether Houser’s motion to set aside the default judgment had merit, it was moot.

Terhune filed her portion of the pre-trial order and a motion in limine on August 27,2010, and the four-day trial began on August 30, 2010. Before trial began, the court granted most of Terhune’s motion in limine, excluding matters primarily related to liability. Before calling her first witness, Terhune read to the jury the facts set out in her complaint which were deemed admitted. During the trial, however, Houser repeatedly attempted to violate the trial court’s rulings on Terhune’s motion in limine, to the point that the trial court found him in contempt and ordered him arrested and held for 48 hours.

In the middle of the trial, Houser presented the court with a suggestion of bankruptcy involving himself, Moran Lake Convalescent Center, LLC, and Moran Lake Convalescent Company, LLC. The trial court stopped the proceedings for a day until Terhune obtained an order from the bankruptcy court granting relief from the stay, and the trial continued to verdict.

Houser enumerates eight arguments on appeal, contending that the $43.3 million verdict is unsupportable because his facility gave Ellison “excellent care and [was] not responsible for his death.” To the contrary, however, the admitted facts as pled in Terhune’s lengthy complaint and further confirmed by evidence at trial establish that Ellison’s “care” at Moran Lake was far from “excellent.”

The evidence established that Ellison had health issues which placed him at risk for falls when he was admitted to Moran Lake in September 2006, but nursing home personnel failed to implement fall risk precautions. As a result, Ellison fell numerous times, suffering bruises and skin tears, until he was finally taken to the emergency room on April 7, 2007 and diagnosed with a badly broken hip of undetermined age and a severe systemic infection. He was admitted to the hospital for six days, then discharged to hospice care, where he was unresponsive except for crying out in pain when health care personnel shifted him. He died four days later.

Terhune and a close friend testified about Ellison’s physical and mental state while he was at Moran Lake. Ellison was always hungry so his daughter would fill his drawer with snacks, but residents wandered in and out at will and took Ellison’s food. He was often thirsty but he never had water in his glass or water bucket. He would spit his medications out onto the wall by his bed, which also had fecal matter on it. His daughter cleaned the wall, but when she returned it was filthy again and, despite repeated requests, no one cleaned it. His bathroom never functioned, although residents kept using it, and his diaper was always soiled. His daughter tried to find another facility, but there were no beds available elsewhere.

Ellison’s wheelchair had no footrests so his feet dragged along the floor. When his daughter asked staff for a solution, they told her to “look out back” for a better chair, but there was no better chair available. His bed rail was broken, and after he fell out of bed twice, the staff turned the bed around and pushed the broken side against the wall. He fell from his wheelchair and laid on the floor for 45 minutes with bruises and head trauma before being attended. He fell again several more times before he was taken to the emergency room shortly before he died.

The chief medical examiner for Cobb County testified about the results of the autopsy he performed on Ellison’s body. Ellison had multiple bruises and bedsores, and his hip fracture had been untreated for some indeterminate amount of time. He was malnourished and dehydrated, his muscles had wasted away, and the soles of his feet were damaged from dragging on the ground. The medical examiner agreed with the conclusion on Ellison’s death certificate that he died from complications arising from the fractured hip. Many more gruesome details about the living conditions at Moran Lake in general and Ellison’s circumstances in particular were introduced into evidence during the trial.

The evidence also established that problems at the nursing home were systemic. An ombudsman who worked at Georgia Legal Services during the time Houser owned the facility testified about the violations she observed, including sanitation problems with food preparation and laundry. A registered nurse who served as a nursing director at Moran Lake from 2003 to 2007 described the facility as being in “chaos,” with the employees worried about having enough food to feed the residents or supplies for bathing them. In late 2006, the nurse testified, the chaos worsened. Employees were paid late, and the facility was understaffed. Employees bought soap, powder, medications, and vitamins for the residents out of their own pockets, while garbage piled up. At times the maintenance man had no funds to buy replacement light bulbs so the residents could see to use their bathrooms. Residents were wearing cloth diapers because they were less expensive than disposable ones, but the laundry facilities did not always work properly. At times the employees hauled the soiled laundry to a commercial laundromat, and the nursing home smelled strongly of urine and feces. Local banks stopped honoring Moran Lake paychecks, so “money trucks” came to the facility for the employees to cash their checks. When the truck pulled up, all the staff left their patients and ran into the parking lot before the money ran out.

Shortly after Ellison died, the State gave Houser notice that it was going to revoke the facility’s certificate to operate in 30 days because the violations of state and federal nursing home and health regulations put residents in immediate jeopardy. All the residents had to be relocated, some who had lived at Moran Lake for many years, and bed space was in such short supply that some of the residents had to be placed in Tennessee and Alabama, far from family and friends. Disrupting the residents’ normal routine was very traumatic for them. The facility was closed in June 2008, along with Houser’s other nursing homes.

Houser admitted on the stand that he bought two new Mercedes Benz automobiles in 2004, using money the federal government was paying to the nursing home for the residents’ care. He also bought five pieces of real property in 2004 and 2005 with funds from this account, including one he gave to his ex-wife that cost $1,355 million. He explained that the government funds were repayment for money he had already spent on resident care. He also testified, “I didn’t have any personal funds. I didn’t have a personal checking account. I just used my company.” Finally, he explained that he had acted “like a kid in a candy store” when the government began paying the nursing home bills regularly in 2004 after an unspecified period of delay, and if the government had continued making payments as expected, he would have encountered no financial difficulties. Houser disputed that the nursing home was in terrible shape, contending that the constant inspections uncovered only minor issues and that his three nursing homes were closed by the state due to “an extreme mistake.”

The jury returned a verdict of $800,000 for the value of Ellison’s life, $16,636.70 medical expenses, $19,879.00 contract damages, $5,664.41 funeral expenses, $2 million pain and suffering, and $35 million punitive damages. The trial court trebled the compensatory damages by operation of law due to the defendants’ violation of the Fair Business Practices Act, and entered judgment against Houser and the other defendants for $43,526,540.33, with interest at the rate of 6.25 percent as provided by law. After the trial court denied Houser’s motion for new trial, he filed this appeal.

1. Houser contends that the trial court erred in refusing to allow him to “prove or disprove [his] relative degree of wrongdoing” to the jury regarding the punitive damages issue, arguing that the defendants “worked hard to cure Mr. Ellison’s many ills,” but were unable to present evidence to the jury.

Houser neither identifies any specific rulings nor cites to the trial transcript, citing only to affidavits from his wife and an orthopedic specialist he allegedly submitted during the hearing on his motion for new trial. These affidavits do not appear in the appellate record, but even if they did, Houser did not call either of these witnesses to testify at trial. “This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. Moreover, parties cannot supplement the record merely by attaching matters to or reciting matters in their briefs.” (Citations and punctuation omitted.) Leatherwood v. State, 212 Ga. App. 342 (1) (a) (441 SE2d 813) (1994).

“As the appellant, [Houser] had the burden to affirmatively show error by the record.” (Citation and punctuation omitted.) Fisher v. One Stop Mtg., 258 Ga. App. 479, 480 (574 SE2d 605) (2002). Houser has failed to establish that the trial court excluded admissible evidence from his trial, and therefore we find no abuse of discretion in the court’s evidentiary rulings related to punitive damages.

2. Houser asserts that the trial court erred in refusing to allow him to introduce Ellison’s medical records in evidence, which he claims would have shown that Ellison was extremely ill before he came to Moran Lake, that he probably broke his hip before he got there, that the hip fracture “was neither new nor mortal,” and that the defendants “provided appropriate medical care to each of Mr. Ellison’s many problems.” This evidence, Houser contends, “would have made a fundamental difference in the jury’s understanding of... how conscientiously Defendants cared for [Ellison].”

Instead of citing to the excluded medical records to make his point, however, Houser cites again to his wife’s affidavit, which is not in the record. He then argues that his failure to timely respond to discovery was accidental, and that even though he never answered any of Terhune’s interrogatories, she obtained most of the information she sought during his 16 hours of deposition, attendance at hearings, and “well written briefs.” Finally, Houser cites OCGA § 5-5-22, which provides that courts may grant new trials “when any material evidence may be illegally... withheld from the jury over the objection of the movant.”

Again, it is the appellant’s burden to establish error by citations to the record, which Houser has not done, nor are Ellison’s medical records included in the appellate record. Whether to admit evidence objected to on the ground of relevancy is “within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citation and punctuation omitted.) Zaimis v. Sharis, 275 Ga. 532, 534 (3) (570 SE2d 313) (2002).

3. While Houser argues that the trial court erred by admitting Ellison’s initial admission assessment into evidence, he admits that he did not object when it was first introduced. “A defendant cannot acquiesce in a trial court’s ruling below and then complain about that ruling on appeal.” (Citation and punctuation omitted.) Lummus v. State, 274 Ga. App. 636, 637 (1) (618 SE2d 692) (2005). Accordingly, Houser has not established that the trial court erred in admitting this evidence.

4. Houser argues that he was denied his right to a thorough and sifting cross-examination, as set forth in OCGA § 24-9-64. That Code section, however, applies to criminal cases, and the criminal cases the. defendants cite for the proposition that the trial court cannot restrict a defendant’s right to cross-examination are inapplicable in this civil case. On the other hand, while OCGA § 24-9-81 provides generally that either the plaintiff or the defendant may call an opposing party as a witness for “a thorough and sifting examination,” in this case liability was not an issue. Thus, the trial court was entitled to limit the defendants’ cross-examination as it related to liability, and we review such evidentiary rulings only for abuse of discretion. Further, Houser again has not cited to the record to support his claim that the trial court improperly abridged his questioning. Accordingly, we find no error.

5. Houser argues that he was denied his right to submit a pre-trial order and that the court improperly enforced plaintiffs portion of the unsigned order. Contrary to his assertion, the entry of a pre-trial order is not mandatory unless requested by a party, OCGA § 9-11-16, and he has not argued that he requested the entry of a pretrial order. Further, he has not argued specifically how he was harmed. As in Division 4, OCGA § 24-9-64 does not support Houser’s argument, as that Code section applies only to criminal trials.

6. Houser argues that the court improperly offered its own opinion regarding what had or had not been proven when it made certain evidentiary rulings, and that those rulings constitute grounds for a new trial under OCGA § 9-10-7. That Code section provides, “[i]t is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved____” OCGA § 9-10-7. Again, however, Houser fails to cite to the record to support this claim, and given the vague parameters of his argument, this court cannot determine exactly which rulings Houser objects to, much less determine the context within which the rulings were made.

7. Houser contends that the trial court erred in denying his request to remove a juror or grant a mistrial after Houser’s wife recognized the juror as the relative of an unhappy terminated employee. After the jury had been deliberating for more than an hour and a half, Houser moved for a mistrial because, he said, his wife had just recognized the juror as a relative of a former employee with whom the Housers had experienced a “violent confrontation.” The trial court noted that Houser did not ask the panel if any of the jurors knew him and denied the motion. Houser argues on appeal that, absent a “counter-showing that the juror was not biased,” the trial court abused its discretion in failing to remove the juror or grant a mistrial. He also argues that the juror appeared hostile and exhibited “public animus” during the trial, but these factual assertions are not supported by the record.

While “[a] juror shall not act on his private knowledge respecting the facts, witnesses, or parties unless sworn and examined as a witness in the case,” OCGA § 9-10-6, Houser has not established that the juror in this case acted on private knowledge. His argument contains only baseless factual assertions that are not supported by the record; accordingly, we find no abuse of discretion in the trial court’s denial of his motion for mistrial.

8. Finally, Houser contends that he was unable to make timely answers to interrogatories because the relevant information was unavailable. He also asserts that he cooperated with discovery by sitting for depositions, during which Terhune must have obtained the most important information she sought because she scheduled no follow-up depositions, and argues that his “cooperative conduct [in attending depositions] factually eliminated [his] non-response to the interrogatories.” He further argues that his discovery failures are excused because he thought his opposing counsel’s six-month continuance gave Houser six months to respond to discovery, but the trial court granted sanctions two months before opposing counsel’s leave expired.

Decided October 31, 2012.

George D. Houser, for appellants.

Perrotta, Cahn & Prieto, Michael A. Prieto, Robert W. Lamb, for appellee.

The record establishes that Houser did not even respond to the motion for sanctions, however, and thus did not make this argument to the trial court. “Issues which have not been ruled on by the trial court may not he raised on appeal.” Ga. Dept. of Natural Resources v. Coweta County, 261 Ga. 484 (405 SE2d 470) (1991). We therefore find no error in this regard.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       In addition to Houser, Moran Lake, and Mt. Berry, the defendants included Forum Group at Wildwood Park Nursing and Rehabilitation Center, LLC; Moran Lake Convalescent Center, LLC; Moran Lake Convalescent Company LLC; Forum Healthcare Group, Inc.; Forum Group Corporation; Forum Group Management Services, Inc.; Three Rivers Health Care Company; The Nepenthe Group, Inc.; and The Property Company, Ltd., LP.

       The three grounds for opening default before judgment is entered are providential cause, excusable neglect, and a “proper case,” and the defendant must pay costs, make a showing under oath, offer to plead instanter, announce ready for trial, and present a meritorious defense. OCGA § 9-11-55 (b).

       A motion to set aside may be brought to set aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings. ...
      OCGA § 9-11-60 (d).


author: Ellington, Chief Judge.

text:
    A12A1106.
    KOTHARI et al. v. TESSFAYE et al.
    (733 SE2d 815)
   Ellington, Chief Judge.

In an attempt to settle protracted litigation arising from the sale of real property, the plaintiffs, Santosh and Sarala Kothari, and the defendants, Tassew Tessfaye and Oladayo Osinuga, entered into a settlement agreement, which became a consent judgment following the trial court’s approval on April 28, 2008. In November 2010, the defendants filed a motion for contempt and a motion to set aside the consent judgment, asserting that it was unenforceable because it lacked mutuality and was impossible to perform. The trial court denied the contempt motion, but granted the motion to set aside. The plaintiffs appeal, contending that the trial court erred in setting aside the consent judgment instead of entering judgment in their favor instanter pursuant to the undisputed, express, and unambiguous terms of the original judgment. In addition, they contend that the court erred in issuing prior rulings that altered material terms of the consent judgment and that the consent judgment should now be enforced pursuant to its original terms. For the following reasons, we reverse the court’s grant of the motion to set aside the consent judgment and reverse the court’s prior orders to the extent that they materially altered the original deadlines in the consent judgment. We also remand this case to the trial court with direction to enter judgment instanter in favor of the plaintiffs pursuant to the original terms of the consent judgment.

The record shows the following undisputed, relevant facts. In 2003 and 2004, the defendants purchased real property in DeKalb County from the plaintiffs and executed two promissory notes totaling $300,500 and a deed to secure debt. The deed to secure debt provided that the defendants would construct an access road that would connect nearby Panola Road to their property and to adjoining property owned by the plaintiffs (hereinafter, “the road”). The road was to be built and dedicated to DeKalb County as a public road by November 2004. In 2005, the plaintiffs filed a verified complaint for injunctive relief, claiming that the defendants had failed to build the road in compliance with the agreement and deed and asking the court to order the defendants to do so. Over the next three years, the litigation expanded to include a variety of claims, counterclaims and motions between the parties. The parties ultimately settled all of their claims, however, and the trial court approved the settlement agreement in April 2008 and made it an order of the court (hereinafter, “the consent judgment”). The consent judgment states, in relevant part, as follows:

The parties have represented to the Court that they have settled and resolved all of the issues set forth in the [pending litigation] and],] after a review of the entire record and the representations of the partiesf,] the following is made an order of the Court: . . .
1. Defendants will pay to the Plaintiffs the sum of $200,000.00 (two hundred thousand dollars and zero cents) which represents payment of the two notes referenced [in the Plaintiffs’ complaint], $84,500.00 (eighty four thousand five hundred dollars and zero cent[s]) which was previously deposited into the registry of the Superior Court of DeKalb County shall be paid [to the Plaintiffs] instanter.... The remaining $115,500.00 (one hundred and fifteen thousand five hundred dollars and zero cents) will be paid to Plaintiffs within 120 days from the date of this Order [.] . . .
2. In consideration of the full payment of the $200,000.00 ... and the placement of $100,000.00 into an escrow account as detailed in paragraph 5 below, Plaintiffs will cause all deeds to secure debt that were filed by Plaintiffs to be cancelled.
3. If any amount set forth above is not paid when due then Plaintiff shall have a judgment instanter for $200,000.00 minus any amounts paid prior to the expiration of 120 days from the date of this Order. Upon payment of the $200,000.00 and deposit of the $100,000.00 into the escrow account[,] as set forth in paragraph 5 below[,] the Plaintiffs will cause the deeds to secure debt to be cancelled.
4. Within two years from the date of this Order, but in no event later than April 28, 2010[,] Defendants shall, at their sole cost and expense, construct and dedicate to DeKalb County a public access road (“Public Access Road”) with a cul de sac to be located on Plaintiff’s Property in compliance with [the attached exhibits]. . . .
5. . . . [N]o later than 150 days from the date of this Order, Defendants shall deposit the sum of $100,000.00 (one hundred thousand dollars and zero cents) into an escrow account [.] . . .
6. If the Public Access Road is not completed and dedicated within two years from the date of this Order, but in no event later [than] April 28, 2010, Defendants shall be considered in default and be liable to the Plaintiffs in the sum of $300,000.00 (three hundred thousand dollars and zero cents).
7. The Defendants have 10 business days from April 28, 2010[,] to notify the Plaintiffs in writing, sent via certified mail or statutory overnight mail[,] that they do not consider themselves to be in default (“Default Objection”) under paragraph 6 above. At that time, any issues regarding completion and acceptance and compliance with the obligations as they relate to the Public Access Road shall be resolved in the Superior Court of DeKalb County. The only issue to be determined is whether the Defendants have met the deadlines set forth in this order. No other defenses or legal excuses shall be offered by the Defendants in defense of the failure to complete and dedicate the Public Access Road within . . . the time frame set forth therein.
8. If Defendants do not send the Default Objection within the time frame set forth in Paragraph 7 abovef,] Plaintiffs shall have an immediate right to make demand upon and receive the $100,000.00 in escrow and shall be entitled to a Judgment in the amount of $200,000.00 instanter upon request made to this Court. All escrow agents shall comply with this order.
9. If at any time the Defendants wish to declare themselves in default of the obligation to construct the Public Access Road, they may do so. In that event, Plaintiffs will be entitled to demand and receive the $100,000.00 in escrow instanter and the judgment shall be in the amount of $200,000.00[,] less $1,000.00 per month for each month prior to April 2010.
10. Except for the rights and claims specifically set forth herein, Plaintiffs and Defendants herein release all rights, claims, and actions, known or unknown, suspected or unsuspected, which they now have against each other arising out of any alleged act, omission, service, circumstance, occurrence or transaction from the beginning of time to the date hereof, including, but not limited to, all claims relating to the above listed lawsuit[.]

(Emphasis supplied.)

Three months after the court entered the consent judgment, the defendants filed a motion for contempt, asserting that the plaintiffs had improperly refused to cancel the deed to secure debt pursuant to Paragraph 2 of the consent judgment, and they requested an emergency hearing on the motion. In August 2008, the trial court ruled that the emergency hearing could not be conducted in a timely manner because of the court’s busy calendar, so it suspended the running of the time periods in the consent judgment (thereby indefinitely extending the deadlines for the defendants’ compliance with the judgment) until the contempt motion could be heard and ruled upon.

In July 2010, after all of the original deadlines in the consent judgment had passed, the plaintiffs filed a motion for judgment instanter on the consent judgment. The plaintiffs argued that the defendants had failed to timely comply with any of their obligations under the consent judgment; that the defendants had expressly waived all defenses for their failure to comply; that the defendants were automatically in default under the express terms of the judgment; that the defendants had failed to timely object to a finding that they were in default; and, therefore, that they (the plaintiffs) were entitled to judgment instanter for the dollar amounts specified in the consent judgment, plus interest. Before the trial court ruled on the motion, however, the defendants filed a second motion for contempt and a motion to set aside the consent judgment. Their motion to set aside was based, inter alia, upon their contention that the consent judgment was “nullified by the failure of the condition of DeKalb County to accept the road for public dedication as required under the [o]rder”; they relied solely on traditional contract defenses found in OCGA §§ 13-5-4; 13-5-8; and 13-5-10.

Following a hearing, the trial court issued an order in June 2011 in which it denied the defendants’ motion for contempt and established new deadlines for the defendants’ compliance with the consent judgment. Then, in July 2011, after the defendants filed a motion to reconsider the trial court’s ruling because the court had failed to rule on their motion to set aside the consent judgment, the court entered a separate order granting the defendants’ motion to set aside the consent judgment, ruling that it was void due to lack of mutuality and because it was impossible for the defendants to build a road that would meet the requirements of the consent judgment when DeKalb County would not accept dedication of the road. In so ruling, however, the court did not address the effect of the defendants’ express waiver of all defenses and legal excuses for their failure to timely complete and dedicate the road, pursuant to Paragraph 7 of the consent judgment.

1. As an initial matter, it is important to note that this case involves more than a mere settlement agreement between the parties, because, at the parties’ own request, the agreement was adopted by and decreed to be an order of the trial court.

[I]t is generally accepted that a consent judgment differs from a judgment rendered on the merits in that it results from an affirmative act of the parties rather than the considered judgment of the court following litigation of the issues. Aconsent judgment is one entered into by stipulation of the parties with the intention of resolving a dispute, and generally is brought to the court by the parties so that it may be entered by the court, thereby compromising and settling an action. Although a consent judgment is brought about by agreement of the parties, it is accorded the weight and finality of a judgment. Thus, a consent decree is an enforceable judgment and can be accorded preclusive effect.

(Citations and punctuation omitted.) Brown &c. Corp. v. Gault, 280 Ga. 420, 423-424 (3) (627 SE2d 549) (2006). Consequently, the defendants’ motion to set aside the consent judgment was subject to the provisions of OCGA §§ 9-12-16 and 9-11-60 (d). See Leventhal v. Citizens &c. Bank, 249 Ga. 390, 391-393 (1), (2) (291 SE2d 222) (1982).

(a) Under OCGA § 9-12-16, a “judgment of a court having no jurisdiction of the person or the subj ect matter or which is void for any other cause is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.”

Avoid judgment is one that has a defect apparent on its face. Where jurisdiction exists both of the subject matter and of the parties, as well as jurisdiction to make the particular order in question, an order is not void, but voidable, however erroneous or irregular it may be.

(Footnotes omitted.) State Auto Mut. Ins. Co. v. Relocation &c. Svcs., 287 Ga. App. 575, 578 (4) (651 SE2d 829) (2007). In this case, there is no issue regarding the trial court’s original jurisdiction, nor have the defendants pointed to any other defect on the face of the consent judgment that would render it void, instead of merely voidable upon motion by one of the parties.

(i) Further, although the trial court ruled that the consent judgment was void because it was impossible for the defendants to comply with the judgment’s requirement that they complete and dedicate the road, the Supreme Court of Georgia has held that “[ijmpossibility of performance is a defense relating to contracts, not to judgments [,]” and is therefore inapplicable to a motion to set aside a consent judgment. Leventhal v. Citizens &c. Bank, 249 Ga. at 393 (3). The Court explained that

[wjhere A sues B on a contract, B may defend on the basis of impossibility of A’s performance, but where A sues B [on the contract] and obtains a judgment, B may not later set aside that judgment on the basis of an impossibility of performance [that] B [had] overlooked in defending the suit. Similarly, where A sues B on a contract and they [settle the suit by entering] into a consent judgment, B cannot later set that judgment aside on the basis of an impossibility of performance [that B had] overlooked [before agreeing to the consent judgment].

(Citation omitted; emphasis supplied.) Id. at 393 (3). In this case, the defendants admit that, when the parties agreed to the consent judgment, they knew that DeKalb County might not accept the road for dedication. Yet, the defendants voluntarily agreed to the unambiguous provision that the plaintiffs would be entitled to a judgment instanter for $300,000 if they (the defendants) failed to complete and dedicate the road by April 2010, and they also agreed to waive every defense and excuse for such failure. Consequently, the defendants accepted the risk that they would be unable to complete and dedicate the road for any reason (including the county’s refusal to accept the dedication) and would, therefore, be liable to the plaintiffs for $300,000. For this reason, the defendants cannot now argue that the consent judgment should be set aside based upon impossibility of performance of the road provision when they admittedly knew that they might be unable to comply with the provision and when they agreed to a consent judgment that specifically addressed that possibility by providing an alternative method of compliance, i.e., the payment of $300,000 to the plaintiffs. Leventhal v. Citizens &c. Bank, 249 Ga. at 393 (3).

(ii) The trial court also concluded that the consent judgment was void due to the lack of mutuality of the parties’ obligations, ruling that the consent judgment contains a “discretionary contingency by a nonparty,” specifically DeKalb County’s acceptance of the road for dedication, so “no contract can be formed until the contingency is met.” According to the court, because the county will not accept the road, “there is no contract.” In so ruling, the court relied upon Stone Mountain Properties v. Helmer, 139 Ga. App. 865, 867 (1) (229 SE2d 779) (1976), a contract case in which this Court held that “contracts conditioned upon discretionary contingencies lack mutuality” and are unenforceable until that contingency has occurred. That case is clearly distinguishable from the instant case, however, because the county’s acceptance of the road was only one aspect of one of the provisions of the consent judgment, and nothing in the consent judgment suggests that the county’s acceptance of the road was a condition precedent to the existence of the consent judgment or the underlying settlement agreement. See Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. 772, 773-774 (1) (364 SE2d 556) (1988) (A contract provision requiring one party’s membership in the other’s organization was not a condition precedent to the existence of the contract, but was, instead, a condition precedent to the enforcement of one of the contract’s provisions.). Further, the Supreme Court has clarified that “[t]he supposed requirement of mutuality of obligation is merely one of mutuality of consideration.” (Citation, punctuation and emphasis omitted.) Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. at 774 (1), n. 2. Thus, as with the defense of impossibility of performance, an assertion that a contract lacks mutuality of obligations is only a defense to enforcing the provisions of the contract and is not a basis for finding that a consent judgment is void.

Accordingly, we conclude that the trial court erred in finding that the consent judgment was void due to impossibility of performance or lack of mutuality. As a result, OCGA § 9-12-16 does not apply in this case and cannot serve as a basis to set aside the consent judgment,

(b) As for OCGA § 9-11-60 (d), it provides that a

motion to set aside may be brought to set aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings. . . .

The defendants failed to argue in the court below that the consent judgment should be set aside under this statute, nor have they cited to anything in the appellate record that would support such a ruling. Accordingly, OCGA § 9-11-60 (d) provides no basis for setting aside the consent judgment in this case. See Leventhal v. Citizens &c. Bank, 249 Ga. at 392-393 (1)-(2) (holding that Leventhal’s failure to show that the bank committed actual fraud in procuring the court’s judgment, as well as his failure to search the title of the property at issue before entering the settlement agreement, were fatal to his argument that the court’s judgment should be set aside on the basis of fraud or mistake).

Thus, we conclude that the trial court erred in setting aside the consent judgment. We reverse the court’s order and remand this case back to the trial court for reinstatement of the consent judgment and for consideration of the plaintiffs’ pending motion for judgment instanter, which is based upon the defendants’ failure to fulfill its obligations under the consent judgment. Before doing so, however, we must address the plaintiffs’ contention that the defendants expressly, voluntarily and unambiguously waived all defenses and legal excuses for its failure to complete and dedicate the road. In addition, we must address the plaintiffs’ contention that the trial court abused its discretion by suspending the running of the time periods leading to the original deadlines in the consent judgment.

2. As shown above, Paragraph 7 of the consent judgment contains the following provision: “No other defenses or legal excuses shall be offered by the Defendants in defense of the failure to complete and dedicate the Public Access Road within . . . the time frame set forth therein.”

“[I]t is the paramount public policy of this State that courts will not lightly interfere with the freedom of parties to contract on any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears.” (Footnote omitted.) Bryan v. MBC Partners, 246 Ga. App. 549, 552 (3) (541 SE2d 124) (2000). In fact, “settlement agreements are highly favored under the law and will be upheld whenever possible as a means of resolving uncertainties and preventing [or settling] lawsuits.” (Citation omitted.) Schafer Properties v. Tara State Bank, 220 Ga. App. 378, 380-381 (1) (469 SE2d 743) (1996). See also Bradley v. Bradley, 225 Ga. App. 530, 533 (484 SE2d 280) (1997) (“A contract of compromise is binding on the parties, and neither party to a compromise has power to disregard it if it was full and final between them.”) (citation and punctuation omitted).

Moreover, in most circumstances, a party’s broad freedom to contract includes the right to waive his or her defenses to the enforcement of that contract.

Waiver is a voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the party otherwise would have enjoyed. Laws made for the preservation of public order or good morals cannot be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest. [] As a general premise, waiver need not be supported by consideration, is unilateral in character, must be made with knowledge and intent, and can be established by a certain course of conduct. [Moreover,] [o]nce the incidental right or contractual benefit has been waived or relinquished, it cannot he reclaimed.

(Citations and punctuation omitted.) Aaron Rents v. Corr, 133 Ga. App. 296, 302-303 (211 SE2d 156) (1974). It follows that a party to a contract may waive all defenses to the enforcement of the contract that otherwise would have been available to him or her, as long as the contract is otherwise valid and such waiver does not adversely affect others or the public interest. Tedesco v. CDC Federal Credit Union, 167 Ga. App. 337, 340 (2) (306 SE2d 397) (1983) (physical precedent only); see Young v. John Deere Plow Co., 102 Ga. App. 132, 135 (115 SE2d 770) (1960) (Provisions in a note and a sales contract in which the defendant expressly waived the right to assert the defense of failure of consideration in an action on the contracts were valid and enforceable as there did not appear to be any danger of injury to others or any affect to the public interest by the waiver.).

In this case, the defendants have failed to demonstrate any basis to support a finding that their express, voluntary waiver of all of their defenses and legal excuses for failing to complete and dedicate the road is invalid or unenforceable; in fact, they failed to even address the waiver issue in their appellate briefs. Accordingly, we conclude that the waiver is plain and unambiguous and, absent any evidence that the waiver constitutes a danger to others or to the public interest, we conclude that it is valid and enforceable. Young v. John Deere Plow Co., 102 Ga. App. at 135.

Consequently, when considering the plaintiffs’ motion for judgment instanter upon remand, the trial court shall limit such consideration as required in Paragraph 7 of the consent judgment, as follows: “The only issue to be determined is whether the Defendants have met the deadlines set forth in this order.”

3. The final issue to be resolved, then, is whether the trial court abused its discretion in suspending the running of the time periods leading to the original deadlines in the consent judgment. Under Paragraphs 1, 4, 5 and 6 of the April 28, 2008 consent judgment, the defendants were required to do the following: pay the plaintiffs $115,500 within 120 days from the date of the judgment (August 26, 2008); deposit $100,000 into an escrow account within 150 days from the date of the judgment (September 25, 2008); and complete and dedicate the road within two years “but in no event later [than] April 28, 2010.” On August 8, 2008, however, the trial court suspended the running of the time periods until it could conduct a hearing and rule upon the defendants’ motion for contempt. Although the court twice restarted the running of the time periods, it eventually issued an order on June 13, 2011, that superseded those rulings and officially restarted the running of the time periods, designating that date as day 102 for purposes of determining the revised deadlines. As a result, the court effectively reset the deadlines as follows: the 120 day deadline for paying the plaintiffs $115,500 became July 1, 2011; the 150 day deadline for depositing $100,000 into an escrow account became August 1, 2011; and the deadline for the defendants’ completion and dedication of the road became March 4, 2013.

Under the circumstances presented in this case, and as explained below, we conclude that it is unnecessary to decide whether the trial court abused its discretion in resetting the deadlines in this case and that, upon remand, the plaintiffs will be entitled to judgment instanter, regardless which deadlines are in effect.

As for the defendants’ obligation to pay the plaintiffs $115,500, the new July 1, 2011 deadline had already passed before the trial court set aside the consent judgment on July 13, 2011. Therefore, because the consent judgment was still a valid order of the court on July 1, 2011, the defendants’ failure to pay the plaintiffs $115,500 by that date entitles the plaintiffs to a judgment instanter for that amount, pursuant to Paragraph 3 of the judgment.

As for the new August 1, 2011 deadline for depositing $100,000 into an escrow account, the deposit was a condition the defendants had to meet (in addition to the $115,500 payment, above) before the plaintiffs would be required to cancel the security deeds, pursuant to Paragraphs 2 and 3 of the consent judgment. More importantly, however, the deposit was then to be held in escrow until the defendants either timely completed and dedicated the road, at which time the money would be returned to the defendants, or defaulted on the road provision, at which time the plaintiffs would be entitled to a judgment instanter for $300,000 (the $100,000 in escrow plus $200,000), pursuant to Paragraphs 6 and 8 of the consent judgment. Thus, the determination of the appropriate deadline for requiring the defendants to make the $100,000 escrow deposit is basically dependent on whether the defendants have defaulted on the road provision.

Decided October 31, 2012

Fine & Block, J. Bertram Levy, for appellants.

Jones Martin, Samira J. Martin, Mills & Hoopes, Steven M. Mills, Timothy S. Walls, Justyn D. Alioto, for appellees.

On that issue, regardless whether the trial court had the authority to reset the deadline for completing and dedicating the road for March 4, 2013, the defendants concede that they are unable to fulfill that obligation and, as a result, they are unable to avoid defaulting on that provision of the consent judgment. Consequently, we conclude that the plaintiffs are entitled to judgment in the amount of $300,000 instanter, pursuant to Paragraph 8 of the consent judgment.

In sum, we hereby direct the trial court, upon remand, to enter judgment instanter in favor of the plaintiffs for $415,500 ($115,500 pursuant to Paragraph 3 and $300,000 pursuant to Paragraph 8 of the consent judgment). In addition, the trial court shall direct the plaintiffs to cancel the security deeds, pursuant to Paragraphs 2 and 3 of the consent judgment.

Judgment reversed and case remanded with direction.

Phipps, P. J., and Dillard, J., concur.

       This Court granted the plaintiffs’ application for interlocutory appeal.

       See OCGA §§ 13-5-4 (“If the consideration upon which a contract is based was given as a result of a mutual mistake of fact or of law, the contract cannot be enforced.”); 13-5-8 (“A condition, precedent or subsequent, not complied with, insufficiency or failure of consideration, or any act of the opposite party, by which the obligation of the contract has ceased, may he pleaded as a defense.”); 13-5-10 (“Where covenants are dependent, the failure of performance by the opposing party may be a good defense.”).

       See Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367, 378 (II) (112 SC 748, 116 LE2d 867) (1992) (A consent judgment is an agreement that the parties desire and expect will he enforceable as a judicial decree, subject to the rules applicable to other judgments and decrees.).

       In Leventhal, a bank and Leventhal, a guarantor on a note held by thebank, entered into an agreement in which the bank promised to assign three deeds to secure debt to him if he paid the amount due on the note. Leventhal v. Citizens &c. Bank, 249 Ga. at 391. Before entering into the agreement, however, Leventhal failed to do a title search to ensure that the bank had title to the property it was promising to convey. Id. After executing the agreement, Leventhal learned that the bank had no recorded interest in the property, and he refused to pay the note. Id. The bank asserted that Leventhal had defaulted on the agreement and obtained a judgment for the amount of the note plus interest and attorney fees. Id. Leventhal then filed a complaint in equity to set aside the court’s judgment and the underlying consent agreement on the ground of fraud and mutual mistake, as well as on the fact that it was impossible for the bank to assign to him any interest in the property, as required by the agreement. Id. at 391-393 (l)-(3). The Supreme Court ruled that Leventhal had failed to show that the judgment was procured fraudulently or was the result of a mistake, as required by former Ga. Code Ann. § 81A-160 (e) (currently OCGA § 9-11-60 (d)). Id. at 391-393 (l)-(2). In addition, the Court ruled that the trial court’s judgment could not be set aside on the basis of impossibility of performance, because impossibility was a contract defense and was not applicable to a motion to set aside a judgment. Id. at 393 (3).

       See Division 2, infra, regarding the waiver of defenses.

       We note that the rule stated in Stone Mountain Properties and its progeny only applies when the entire contract is conditioned upon the contingency and, therefore, is not enforceable unless or until the contingency occurs. Stone Mountain Properties v. Helmer, 139 Ga. App. at 867 (1) (A contract provision that made the purchaser’s obligation to purchase real property “contingent upon Purchaser’s being able to obtain approval from the Seaboard Airline Railroad to run a spur rail line into the property at a location satisfactory to the Purchaser,” was a condition precedent to the entire contract; the condition deprived the contract of mutuality because the purchaser was the sole judge of whether he was satisfied.); see also Allen v. Sea Gardens Seafood, 290 Ga. 715 (723 SE2d 669) (2012) (The parties entered into a settlement agreement that was conditioned upon their obtaining any necessary permits, but when they asked the court to enter a consent judgment on the agreement, there was a disagreement on the specific language to be used or the nature of the contingency. The trial court eventually entered a “consent judgment” proposed by the appellee, hut the appellants refused to sign it because it was no longer conditioned upon obtaining the permits. The Supreme Court vacated the judgment because both parties had not consented to it and because the trial court, rather than entering a judgment that enforced the settlement agreement as written, impermissibly modified it by eliminating the condition precedent to the entire agreement.).

       See also Hall v. VNB Mtg. Corp., 170 Ga. App. 867 (318 SE2d 674) (1984) (In a consent order that resolved a dispossessory action, a tenant at sufferance agreed to timely pay rent and, if it failed to do so, the property owner would be entitled to an immediate writ of possession without further notice or hearing. Because there was no evidence that the consent order was executed as a result of fraud or mistake, the tenant was hound to the terms of the consent order, and the trial court properly granted the writ of possession upon the tenant’s failure to comply with the consent order.).

       See OCGA § 1-3-7 (formerly Ga. Code Ann. § 102-106) (“Laws made for the preservation of public order or good morals may not be dispensed with or abrogated by any agreement. However, a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.”); see also Bryan v. MBC Partners,
        246 Ga. App. at 552 (3) (“This ancient rule applies to all the private relations in which persons may place themselves toward each other and includes the waiver of constitutional rights.”) (footnotes omitted); see, e.g., Dept. of Transp. v. Smith, 210 Ga. App. 741, 746 (5) (437 SE2d 811) (1993) (In a consent order, the parties agreed to change the venue to Richmond County. Thus, by consenting to the change of venue, the defendants waived their right to have the case heard in the county where the cause of action arose.).

       See also Jones v. Universal C. I. T. Credit Corp., 88 Ga. App. 24, 26 (2) (75 SE2d 822) (1953) (A debtor under a conditional sales contract, by expressly agreeing not to set up as a defense to an action on the contract by an assignee thereof any claim he may have had against the assignor, waived his right to plead failure of consideration in an action on the contract by the assignee.).

       “The cardinal rule of contract construction is to determine the intention of the parties. But no construction is required or even permissible when the language employed hy the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.” (Citations and punctuation omitted.) Walker v. Virtual Packaging, 229 Ga. App. 124, 127-128 (3) (493 SE2d 551) (1997). See also Rivergate Corp. v. McIntosh, 205 Ga. App. 189, 192 (1) (421 SE2d 737) (1992) (“The construction of a contract is a matter of law for the court under OCGA§ 13-2-1, particularly where, as here, the terms are unambiguous”) (citations and punctuation omitted).