text:
    A13A0280.
    THOMAS v. THE STATE.
    (741 SE2d 298)
   Ellington, Chief Judge.

A Fulton County jury found Joe Thomas guilty of possession of cocaine with the intent to distribute, OCGA § 16-13-30 (b), and the trial court sentenced him to ten years in prison without parole pursuant to OCGA § 17-10-7 (c). Thomas appeals from the denial of his motion for a new trial, contending that the evidence was insufficient to support his conviction, that the trial court erred in admitting expert testimony, and that the trial court erred in concluding that it lacked discretion to probate or suspend any portion of his sentence. Finding no error, we affirm.

1. Thomas contends that the evidence was insufficient to “sustain a conviction for anything more than simple possession of cocaine.” Viewed in the light most favorable to the jury’s verdict, the evidence shows that, near midnight on October 13, 2010, a narcotics officer responded to an anonymous tip concerning suspicious activity outside a home in Fulton County. The officer testified that the house was located in a “high drug [crime] area” and that he had made several drug arrests within a few blocks of it. When the officer arrived at the address, he saw Thomas on the porch of the house and two other men near the street. Thomas did not live in the house. When the officer asked Thomas what he was doing there, he said that he was “looking for girls.” The officer asked Thomas for consent to search his person, and Thomas gave it. The officer found a plastic box concealed in the lining of Thomas’ jacket. The box contained 12 small plastic bags containing individual “hits” of crack cocaine. The officer testified that, in his experience as a narcotics officer, the amount of crack cocaine found on Thomas and the way it was packaged was more consistent with drug sales than with individual drug use. The way Thomas concealed the box was also typical of street level drug dealers. Moreover, Thomas did not have on his person any device for smoking crack cocaine.

Although the State is required to show more than mere possession to prove that [the defendant] intended to distribute the cocaine, no bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute. Rather, the State may show intent to distribute in many ways, including expert testimony that the amount of contraband possessed was inconsistent with personal use, evidence showing the manner of packaging, and the possession of certain amounts or denominations of currency. The issue of intent is peculiarly a question of fact for jury determination.

(Punctuation and footnotes omitted.) Barber v. State, 317 Ga. App. 600, 605 (3) (732 SE2d 125) (2012). In this case, the jury could infer from the officer’s expert opinion testimony that Thomas possessed the cocaine with the intent to distribute it given the way Thomas concealed the drugs, the way the drugs were packaged for street sale, the amount of drugs on Thomas’ person, and the fact that Thomas lacked a device for using the drugs. Moreover, the jury could infer that Thomas was selling drugs given that a citizen alerted the police to suspicious activity at the address where Thomas was found, and because Thomas was lingering around a house that was not his, late at night, in a high drug-sales area, without a credible explanation. Based upon this evidence, the jury was authorized to find that Thomas possessed the cocaine with the intent to distribute it beyond a reasonable doubt. See, e.g., Horne v. State, 318 Ga. App. 484, 487 (1) (733 SE2d 487) (2012) (An officer’s opinion that the amount of cocaine in defendant’s possession was greater than that normally kept for personal use and was separately packaged for distribution authorized the jury to find that the defendant possessed the cocaine with intent to distribute.); Burse v. State, 232 Ga. App. 729, 730 (1) (503 SE2d 638) (1998) (accord).

2. Thomas contends that the trial court erred in allowing the arresting officer to testify as an expert witness on the issue of Thomas’ intent to distribute crack cocaine.

An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like. An expert witness may render an opinion within his area of expertise after the proper qualifications have been proven to the trial court.

(Footnotes omitted.) Fielding v. State, 278 Ga. 309, 311 (3) (602 SE2d 597) (2004). The sale and use of street level drugs is a topic beyond the ken of an average juror. See Vaughan v. State, 251 Ga. App. 221, 223 (1) (b) (553 SE2d 335) (2001). Further, “[i]t is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle him to be deemed prima facie an expert.” (Punctuation and footnote omitted.) Yount v. State, 249 Ga. App. 563, 564-565 (1) (548 SE2d 674) (2001).

The trial court permitted the officer to testify as an expert after hearing the following evidence of the officer’s qualifications: he had over 900 hours of specialized training as a narcotics officer, he was familiar with how crack cocaine was typically packaged and sold, and he had made numerous drug-related arrests, at least 50 of which involved crack cocaine. Further, the officer’s testimony was relevant to the issue of whether Thomas possessed the cocaine with the intent to distribute it and within the scope of the officer’s expertise. Consequently, we find no abuse of discretion in the trial court’s admission of the officer’s expert testimony. See Vaughan v. State, 251 Ga. App. at 223 (1) (b).

Decided April 3, 2013

Kish & Lietz, Jessica K. Stern, for appellant.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

3. Thomas contends that the trial court erred in concluding that it lacked the discretion to suspend or probate any portion of Thomas’ mandatory ten-year minimum sentence.

At sentencing, the State presented evidence that Thomas had three prior felony convictions, including one for possession of cocaine with the intent to distribute. In such cases, we have held that OCGA § 17-10-7 (c) requires the court to impose a mandatory minimum ten-year sentence, no part of which may be probated. Fortson v. State, 283 Ga. App. 120, 121 (1) (640 SE2d 693) (2006) (“Because [the defendant] had three prior felony convictions, the operative sentencing provision was OCGA § 17-10-7 (c)[.]”) (footnote omitted); State v. Jones, 265 Ga. App. 493, 494 (2) (594 SE2d 706) (2004) (The plain language of OCGA § 16-13-30 (d) provides that a defendant must serve at least ten years in prison. OCGA § 17-10-7 (c), which applies to a second offense under OCGA § 16-13-30 (b), requires that the time be served without parole.). We find no error.

Judgment affirmed.

Phipps, P. J., and Branch, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 17-10-7 (c) provides, in relevant part:
      [A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A1928.
    CLOUD v. NORWOOD.
    (739 SE2d 93)
    Decided March 8, 2013
    Reconsideration denied April 4, 2013.

      Jacquelyn F. Luther, for appellant.
    Eddie Norwood, pro se.

   BARNES, Presiding Judge.

Dawn Cloud, the biological mother of C. N., appeals from the trial court’s order legitimating Eddie Norwood as the father, incorporating a parenting plan order, and continuing child support payments by Norwood from a previous order. Cloud contends on appeal that the trial court erred in not finding that Norwood had abandoned his opportunity interest in the child, and in finding that it was in C. N.’s best interest for the petition to be granted. She also contends that the trial court failed to set child support in accordance with the Child Support Guidelines.

It is always incumbent upon appellate courts to inquire into their own jurisdiction. See Todd v. Todd, 287 Ga. 250, 250 (1) (703 SE2d 597) (2010).

Where both OCGA § 5-6-34 (a) and [OCGA] § 5-6-35 (a) are involved, an application for appeal is required when “the underlying subject matter” of the appeal is listed in OCGA § 5-6-35 (a), even though the party may be appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a). Rebich v. Miles, 264 Ga. 467, 468 (448 SE2d 192) (1994).

Avren v. Garten, 289 Ga. 186, 192 (7) (710 SE2d 130) (2011).

Here, although the order appealed from expressly incorporates by reference an earlier parenting plan order, the “underlying subject matter” of the appeal — legitimation — must be brought by application under OCGA § 5-6-35(a)(2).See Brown v. Williams, 174 Ga. App. 604 (332 SE2d 48) (1985) (holding that a legitimation action is a domestic relations case subject to appeal by application under OCGA § 5-6-35 (a) (2)). Thus, as this Court does not have jurisdiction over the appeal, it must be dismissed. See Todd, 287 Ga. at 252 (1) (appeal of a divorce judgment in which child custody was an issue requires an application for interlocutory appeal).

Appeal dismissed.

McFadden and McMillian, JJ., concur.


text:
    A12A2404.
    TOENNIGES et al. v. STEED.
    (739 SE2d 94)
   BARNES, Presiding Judge.

Acting pro se, Donald Wayne Toenniges sued Donna Steed for fraud and misrepresentation related to a promissory note and a deed to secure debt. The trial court granted summary judgment to Steed, and Toenniges filed a direct appeal with this court. Because the record shows that Toenniges was a prisoner when he filed this civil action, however, he has no right to a direct appeal, and therefore this court has no jurisdiction to hear it.

“The disposition of this appeal is controlled by the Prison Litigation Reform Act of 1996, OCGA § 42-12-1 et seq.” Jones v. Townsend, 267 Ga. 489, 490 (480 SE2d 24) (1997). “[I]n appeals of civil cases filed by prisoners, there is no right of direct appeal. Instead, the party wishing to appeal must file an application directed to the appropriate appellate court. Failure to file an application when one is necessary requires that the appeal be dismissed.” Id. See also Prison Health Svcs. v. Dept. of Administrative Svcs., 265 Ga. 810 (1) (462 SE2d 601) (1995); OCGA § 42-12-8.

While the original complaint also names Grady Randall Tilson and Ida Mae Tilson as plaintiffs, who presumably are not incarcerated, only Toenniges signed the complaint. He later submitted an affidavit from the Tilsons purporting to grant “limited power of attorney to Donald W. Toenniges to represent our interests in this case and further authorize him to sign for us all pleadings . . . and related papers with the full force and effect as though we signed it ourselves. And that when Toenniges signs for us, he can simply put et al., to designate us.” Subsequent pleadings are signed “Donald Toenniges, et al., pro se.”

In arguing that the hearing on Steed’s motion for summary judgment was conducted ex parte, Toenniges notes that he “has completely represented the Tilsons as well, their affidavits granting him leave as such appear in the record below,” and that they had no legal experience that would have allowed them to navigate a summary judgment hearing “or even know how to prepare in the event that Toenniges was not made present.” Toenniges is not an attorney, however, and cannot “represent” other parties, which would constitute the unauthorized practice of law.

Decided March 8, 2013

Reconsideration denied April 4, 2013.

Donald W. Toenniges, pro se.

Smith, Welch, Webb & White, Larry S. Mayfield, for appellee.

The Tilsons never having been made proper party plaintiffs, Toenniges’ failure to comply with the requisite discretionary procedures deprives this court of the jurisdiction to consider the case. This appeal must be dismissed. Botts v. Givens, 223 Ga. App. 139 (476 SE2d 816) (1996).

Appeal dismissed.

McFadden and McMillian, JJ., concur.

       “Appeals of all actions filed by prisoners shall be as provided in Code Section 5-6-35.” OCGA § 42-12-8.


author: Ray, Judge.

text:
    A12A2571.
    DEAL et al. v. MILLER et al.
    (739 SE2d 487)
   Ray, Judge.

Governor Nathan Deal and other government officials (the “State”) appeal the trial court’s order certifying a class of indigent parents led by five named plaintiffs who allege that they were “denied” government-funded counsel while facing incarceration in civil child support contempt proceedings at which the State had legal representation. The State contends that the trial court erred in certifying the class because the claims in the named plaintiffs’ complaint are moot and therefore nonjusticiable, and because the named plaintiffs failed to meet the class-action certification requirements of OCGA § 9-11-23 (a) and (b) (2). For the reasons set forth below, we reverse.

On review of an order granting class certification, “we will consider the factual findings as adopted by the trial court and affirm them unless clearly erroneous, and we will review the conclusions of law for an abuse of discretion.”

To obtain class certification, the plaintiffs are required to satisfy all four prerequisites set forth in OCGA § 9-11-23 (a), and at least one factor in OCGA § 9-11-23 (b). Accordingly, to certify a class action, the trial court must find that the members of the class are so numerous that bringing them all before the court is impracticable; that questions of fact or law common to all class members exist; that the claims or defenses of the representative parties are typical of those of the class; and that the representative parties will fairly and adequately protect class interests. In the instant case, the trial court found that the proposed class met the OCGA § 9-11-23 (a) requirements and also satisfied OCGA § 9-11-23 (b) (2), which provides that a court may authorize certification where “[t]he party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

The record before us shows that the named plaintiffs are fathers who were held in civil contempt for wilfully violating child support orders. The named plaintiffs were incarcerated after proceedings at which they were not represented by counsel, but at which the opposing State agency had legal representation. The named plaintiffs filed a complaint alleging that they were deprived of due process of law because, despite their indigence and risk of incarceration, they were denied government-funded counsel at their contempt hearings. The complaint sought class certification, as well as declaratory and injunctive relief. The named plaintiffs did not appeal the contempt findings against them, nor did they request counsel at or prior to the contempt hearings that led to their incarceration. Further, they did not challenge their lack of appointed counsel below. However, approximately eight months after filing their complaint and moving for class certification, four of the five named plaintiffs, on November 8, 2011, sent letters to the courts that held them in contempt requesting appointed counsel at any future contempt proceedings. The record properly before us does not show that the named plaintiffs received any response from the trial courts. On December 30, 2011, just more than a month after those letters were sent, the trial court in the instant case certified a class of

all indigent parents who, without appointed counsel and without constitutionally mandated procedural protections to ensure fundamentally fair proceedings, face incarceration for nonpayment or underpayment of child support in child support contempt proceedings where the Georgia Department of Human Services (DHS) is represented by [S]tatefunded counsel. ■

1. The State contends that the trial court abused its discretion in certifying the class. The State argues that the plaintiffs failed to demonstrate that they met the numerosity, commonality, typicality, and adequacy requirements of OCGA § 9-11-23 (a) (1)-(4), as well as the appropriateness of declaratory or injunctive relief requirement of OCGA § 9-11-23 (b) (2). We find that the trial court erred in determining that the named plaintiffs met the commonality and typicality requirements of OCGA § 9-11-23 (a). Therefore, we reverse.

In determining whether a class action should proceed, the first issue a trial court must resolve is not whether the plaintiffs have stated a cause of action or ultimately may prevail on the merits, but whether the statutory requirements for class certification have been met.

A party seeking class certification must affirmatively demonstrate his compliance with [Federal Rule of Civil Procedure 23 (a)] — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We [have] recognized . . . that sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 (a) have been satisfied____Frequently that rigorous analysis will entail some overlap with the merits of the plaintiffs underlying claim.

Because there is a dearth of Georgia cases on the issue of class certification, when necessary, we will look for guidance to federal cases interpreting Rule 23 of the Federal Rules of Civil Procedure, upon which OCGA § 9-11-23 was based.

(a) Commonality and typicality. The commonality and typicality provisions of OCGA § 9-11-23 (a) are

distinct, but interrelated. Traditionally, commonality refers to the group characteristics of the class as a whole, while typicality refers to the individual characteristics of the named plaintiffs in relation to the class. Both prerequisites, however, share the common purpose of requiring that a sufficient nexus exists between the legal claims of the named class representatives and those of individual class members to warrant class certification.

(i) Commonality. “Common issues of fact and law predominate if they have a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive . . . relief.”

Here, the trial court in certifying the class identified the common question as “whether Plaintiffs are entitled to counsel in civil contempt proceedings where the State is represented by counsel.” However, as the United States Supreme Court has stated, “any competently crafted class complaint literally raises common questions.” Thus, plaintiffs seeking to represent a class “must do more than draft a complaint; instead, [they] must show that the class members ‘have suffered the same injury,’ which does not mean merely that they have all suffered a violation of the same provision of law.”

In the present case, the named plaintiffs allege that they were injured because they were “unconstitutionally denied counsel.” However, as stated above, it is undisputed that the plaintiffs did not request counsel at or prior to the civil contempt hearings that led to their incarceration. Nor did they appeal the trial courts’ findings of contempt, which means they never challenged their lack of appointed counsel below. Because the trial courts were not presented with requests to appoint counsel prior to the contempt hearings, and have never ruled on the later requests, plaintiffs have not been denied counsel in that context.

Pretermitting whether the United States Supreme Court’s recent decision in Turner v. Rogers is dispositive of the underlying issue of entitlement to counsel in the precise circumstances of the instant case, Turner makes clear as a threshold matter that, contrary to the plaintiffs’ assertions, “the Sixth Amendment [right to counsel] does not govern civil cases.” Plaintiffs in the instant case alleged that the State’s “policy of incarcerating indigent parents and denying them the right to counsel” deprived them of due process under the fundamental fairness doctrine of the Fourteenth Amendment. Turner further determined that “the Due Process Clause does not always require the provision of counsel in civil proceedings where incarceration is threatened.”

Thus, the next question in the instant case is whether the trial courts had a duty to inquire into the plaintiffs’ right to counsel, such that a failure to inquire amounted to a denial of counsel and, thus, to injury. The Supreme Court of Georgia already has answered that question, holding that in civil contempt proceedings regarding a failure to pay child support, the trial court did not err in “failing to inquire whether appellant was entitled to counsel.”

The recognition that the named plaintiffs may have had the right to counsel if they had requested and been denied counsel, and that in that instance they may have suffered a common injury, does not lead to the conclusion that the named plaintiffs in the present action have shown a common injury sufficient to satisfy the commonality requirement of OCGA § 9-11-23 (a). Here, whether the named plaintiffs actually were denied counsel is the essential question, because the answer determines whether they have shown the injury on which their theory of commonality depends. While it is true that to satisfy Federal Rule 23, and thus OCGA § 9-11-23, “even a single common question will do,” here the named plaintiffs have shown no common question in that they have provided no proof that either they or other class members were deemed qualified for or were denied access to appointed counsel. Given Turner’s confirmation that there is no per se right to appointed counsel in civil cases where incarceration is threatened, and Adkins’ determination that trial courts have no duty to inquire into the right to appointed counsel in civil proceedings, even “[a] common question is not enough when the answer may vary with each class member and is determinative of whether the member is properly part of the class.” Here, determining whether the other putative class members were financially eligible for appointed counsel, requested such counsel, and had their requests denied, would require a highly individualized inquiry.

The United States Supreme Court has repeatedly held that “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” In an action involving a class consisting of a trucking company’s African-American and Mexican-American drivers who alleged that they were denied transfers to more desirable jobs, the United States Supreme Court reversed certification where it was clear that the drivers were not qualified for the positions they sought, and thus “could have suffered no injury as a result of the allegedly discriminatory practices, and they were, therefore, simply not eligible to represent a class of persons who did allegedly suffer injury.” Here, the named plaintiffs have failed to show that they suffered any injury, because they did not request counsel, the trial courts had no duty to inquire into their right to appointed counsel, and they were not denied counsel. Thus, the named plaintiffs cannot show the commonality required to represent a class that may contain other members who actually requested, but were denied counsel.

Further, as we noted in Rite Aid v. Peacock, “Georgia appellate courts have refused to condone the certification of a class when the circumstances surrounding a member’s actual response to the defendant’s allegedly wrongful act could vary widely.” We found in Rite Aid that the named plaintiff’s contradictory response to the sale of his prescription information — he protested the wrongfulness of the sale, yet continued to fill his prescriptions at the pharmacy that bought his medical information — “highlights his failure to prove that any or most other class members share not only his apparent outrage... but also his tacit acceptance of that event.” Here, the named plaintiffs’ failure to request counsel, to appeal their contempt findings, or to raise the issue of appointed counsel below, exhibited a tacit acceptance of the lack of appointed counsel that they now protest. This tacit acceptance may not be similar to the claims of other, unnamed class members who may actually have requested and been denied counsel, or who may have appealed their contempt findings because counsel was not appointed for them. “A party cannot complain of a judgment, order, or ruling that his own conduct produced or aided in causing.” Further, to presume that the plaintiffs in the instant case were injured — in the absence of any request for and denial of counsel — would be mere speculation. We have reversed class certification in a case where, as here, regardless of what other plaintiffs may have suffered, the named plaintiff showed only speculation as to harm.

(ii) Typicality. “To be typical, a class representative must possess the same interest and suffer the same injury as the class members.” Here, the named plaintiffs have not shown typicality in that they have not shown injury.

We have held that where a named plaintiff shows no injury or has no valid claim, class certification is improper. Here, the named plaintiffs failed to request counsel or to assert their alleged right to counsel prior to or in challenges to their contempt hearings below. In an analogous case, where a named plaintiff failed to notify the defendant-company of any alleged defects covered by a warranty within the time specified as a condition precedent to recovery, the trial court properly denied class certification.

(b) Declaratory and injunctive relief. In addition to meeting all four requirements of OCGA § 9-11-23 (a), the named plaintiffs must meet at least one of the requirements set forth in OCGA § 9-11-23 (b). Here, the trial court ruled that certification was proper under OCGA § 9-11-23 (b) (2), which provides that certification is authorized only when the “party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

Decided March 20, 2013

Reconsideration denied April 4, 2013

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Jason S. Naunas, Mark J. Cicero, Assistant Attorneys General, for appellants.

However, the only alleged failure to act identified by the named plaintiffs was the “policy” of “denying” counsel to indigent child support obligors prior to their incarceration. The record contains no evidence of a policy of denial of requests for counsel. Nor does the record contain evidence that any of the plaintiffs asked the trial courts for counsel prior to their contempt hearings. Further, although four of the named plaintiffs sent letters requesting counsel for future proceedings to the courts that had previously held them in contempt, nothing in the record indicates that these requests ever have been denied. Nor does the record indicate whether other putative class members have requested and been denied counsel. Thus, given our determinations in Division 1 (a) (i) and (ii) that the class fails to meet the commonality and typicality requirements of OCGA § 9-11-23 (a) (2) and (3), we find that the trial court erred in finding that injunctive and declaratory relief was appropriate in this case.

To find otherwise — absent the actual request for and denial of counsel — would be to decide the ultimate issue in the case, which is whether indigent child support obligors are entitled to counsel in civil contempt proceedings where the State is a party and has representation. The ultimate issue, however, is not before us. The relief sought, albeit via the vehicle of class certification, would establish through its declaratory and injunctive posture a prophylactic “right” to appointed counsel. We decline to extend this relief. Accordingly, for the foregoing reasons, we reverse the trial court’s certification of the class.

2. Given our holding in Division 1, we need not reach the State’s remaining contentions.

Judgment reversed.

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

Sarah E. Geraghty, Gerald R. Weber, Jr., Atteeyah E. Hollie, for appellees.

Kilpatrick, Townsend & Stockton, Curtis A. Garrett, Jr., amicus curiae.

       The other officials are Clyde Reese III, commissioner of the Georgia Department of Human Services; Keith Horton, director of the Division of Child Support Services; Tammy Broome, manager of the Rome Child Support Office; Betty Smith, manager of the Alapaha Child Support Office; Patricia Gunn, manager of the Middle Swainsboro Child Support Office; and Cynthia Head, manager of the Alcovy Monroe Child Support Office, all in their official capacities.

       (Punctuation and footnote omitted.) American Debt Foundation v. Hodzic, 312 Ga. App. 806, 808 (720 SE2d 283) (2011).

       Id.; Diallo v. American InterContinental Univ., 301 Ga. App. 299, 300 (687 SE2d 278) (2009).

       OCGA § 9-11-23 (a) (1)-(4).

       Although enumerated as error, the State presents no argument regarding the typicality requirement of OCGA § 9-11-23 (a) (3). Nonetheless, we will consider this portion of the enumeration, as we are not required to deem it abandoned. See Court of Appeals Rule 25 (c) (2).

        Rite Aid of Ga. v. Peacock, 315 Ga. App. 573, 574 (1) (726 SE2d 577) (2012); OCGA § 9-11-23 (a).

       (Citations and punctuation omitted; emphasis in original.) Wal-Mart Stores v. Dukes, _ U. S. __ (II) (A) (131 SC 2541, 2551, 180 LE2d 374) (2011).

        American Debt Foundation, supra.

       (Citations and punctuation omitted.) In re Scientific-Atlanta, Inc. Securities Litigation, 571 FSupp.2d 1315, 1325 (I) (B) (2007).

       (Citation and footnote omitted.) Rollins, Inc. v. Warren, 288 Ga. App. 184, 187 (1) (653 SE2d 794) (2007).

       (Citation and punctuation omitted.) Dukes, supra.

       (Citation and punctuation omitted; emphasis in original.) Rite Aid, supra at 575 (1) (a), citing Dukes, supra.

       (Emphasis supplied.)

       _ U. S. _ (131 SC 2507, 180 LE2d 452) (2011).

        Turner, supra at 2516 (III) (A).

       (Citation omitted.) Id. at 2518 (III) (B).

       (Emphasis supplied.) Adkins v. Adkins, 242 Ga. 248, 248 (2) (248 SE2d 646) (1978), citing and distinguishing Argersinger v. Hamlin, 407 U. S. 25, 37 (92 SC 2006, 32 LE2d 530) (1972) (holding that an indigent defendant must be appointed counsel in a criminal proceeding leading to incarceration, regardless of whether that proceeding is a felony or a misdemeanor).

       (Citation and punctuation omitted.) Dukes, supra at 2556 (II) (C).

       (Citation and punctuation omitted; emphasis omitted.) Rite Aid, supra at 575 (1) (a).

       (Citations and punctuation omitted; emphasis supplied.) East Texas Motor Freight System v. Rodriguez, 431 U. S. 395, 403 (II) (97 SC 1891, 52 LE2d 453) (1977).

       Id. at 403-404 (II).

       (Citation omitted.) Supra at 577 (1) (a) (ii).

       (Citation omitted.) Id.

       One named plaintiff even deposed that, after the filing of the lawsuit from which this appeal springs, he appeared at a contempt hearing and again did not request appointed counsel.

       (Punctuation and footnote omitted.) Cornett’s, Inc. v. Hammond, 279 Ga. 125, 130 (6) (610 SE2d 529) (2005) (court declined to remand a class certification action for further discovery where the plaintiff never sought discovery on the issue of whether a business relationship existed between all parties, and instead relied upon her conclusory argument that the business relationship exemption did not exist).

        Rite Aid, supra at 576 (1) (a) (i).

       (Citation and punctuation omitted.) In re Scientific-Atlanta, Inc. Securities Litigation, supra at 1325 (I) (B) (2).

        Dryvit Systems v. Stein, 256 Ga. App. 327, 329 (1), (3) (568 SE2d 569) (2002). See also Life Ins. Co. of Ga. v. Meeks, 274 Ga. App. 212, 218 (3) (d) (617 SE2d 179) (2005) (when the named plaintiff has no valid claim against the defendant, he is not eligible to represent the class because he cannot meet adequacy requirement).

       See Davis v. Page, 714 F2d 512, 518 (IV) (1983).


author: Branch, Judge.

text:
    A12A1721.
    AMERIS BANK v. ALLIANCE INVESTMENT & MANAGEMENT COMPANY, LLC et al.
    (739 SE2d 481)
   Branch, Judge.

In this suit on a note and accompanying guarantees, the trial court determined that the defendants had raised issues of fact about certain defenses, and it therefore allowed the case to go to trial. A jury returned an award in favor of the bank but for significantly less than the total amount due. The jury also found in favor of one defendant on his counterclaim. The bank appeals and primarily contends the trial court erred by denying its motions for directed verdict on the note and guarantees. We agree and reverse.

The appellees do not dispute the basic facts regarding the loan and the related agreements set out in the appellant’s brief, many of which were stipulated at trial. In accordance with Rule 25 (b) (1) of this Court, we therefore accept them as true and reproduce an abbreviated and edited version below.

On October 31, 2007, four companies with common ownership — Alliance Investment and Management Company, LLC (“AIMCO”) and its three operating companies: Ameridoor Cabinetry Components, LLC; Classic Surrounds, LLC (collectively “Defendant Borrowers”); and Service Supply Distribution, LLC (collectively “Borrowers”) — signed a promissory note in the original principal amount of $5,900,000 (the “Note”) with a maturity date of October 1, 2008. With authority from all of the Borrowers (as is admitted by appellees), J. Wayne Roberts signed the Note on behalf of all four LLCs. At that time, Roberts was in charge of the financial side of the businesses, and he was the official liaison between the LLCs and the bank. On the same date and again on behalf of all four Borrowers, Roberts signed a related Commercial Loan Agreement and a Security Agreement. In addition, Defendants Roberts, Monroe Hunt, Jerry Hunt, and Brad Wilson (“Guarantors”), who collectively own approximately 80 percent of the companies, each signed a separate written Guaranty of the debt as evidenced by the Note.

The Note was renewed and the maturity date extended multiple times from October 1, 2008 through March 15, 2010. But the balance due on the Note was not paid in full on or after that day, and the parties did not agree to further renew the debt. In May 2010, Ameris Bank sent and Defendants each received a written notice and demand for payment of the debt, attorney fees and interest. The parties' stipulated that, as of the beginning of trial, the total amount of the indebtedness was $3,715,315.45, consisting of $2,388,000 in unpaid principal, $798,173.14 in accrued interest and $529,142.31 in statutory attorney fees, with interest accruing at $1,068 per day thereafter.

In addition to these undisputed facts and construed in favor of the verdict, the evidence shows that in late 2007 and early 2008, more than two years before the final maturity date of the loan, Roberts concluded that the long-term outlook for the Borrowers’ businesses (manufacturing and providing components for the manufactured housing industry) was not good, and he conceived a plan of liquidating the Borrowers’ assets to pay off the loan. But according to the Security Agreement, the Borrowers were not permitted to “sell, offer to sell, lease, or otherwise transfer or encumber” any assets without “prior written permission” of Ameris Bank, and the Loan Agreement has a similar provision.

Accordingly, in June 2008, three to four months prior to the original loan maturity date and almost two years prior to the final maturity date, Roberts met with officials of Ameris Bank, including a vice president, to propose liquidating or selling enough of the Borrowers’ ongoing businesses to pay off the indebtedness to the bank. Roberts hoped “to liquidate the debt, [and] keep jobs for the [employees] by selling the companies as a whole if possible.” Roberts had performed some research and concluded that he might be able to raise $6 million, which would be enough to pay the then-balance on the loan of $4.8 million, leaving $1.2 million for the companies. One bank representative who attended that meeting confirmed that Roberts “felt that at the time that he could liquidate the companies and pay the debt. And he was willing to help the Bank to do that and there would not be any type of shortfall or anything.” Within the following year, Ameris Bank prepared an internal report in which it concluded that it was sufficiently collateralized to cover the loan based on “orderly liquidation margins,” which a bank official explained means the collateral was sufficient to cover the debt.

Roberts expected to hear back from the bank on his proposal, and he called the bank three or four times over the next two months to follow up. The bank, however, never responded to the offer, and Roberts, in his own words, “just gave up. Gave up on asking.” Yet during a deposition, an executive vice president with the bank was surprised to learn that the bank had not responded or accepted the offer; he stated, “if a proposal had been presented where we would have been paid in full,... I don’t know why any bank would turn away a proposal to be paid in full.” Despite the bank’s failure to respond, as shown above the Borrowers thereafter agreed to renew the Note and extend the maturity date a number of times. These extensions of the Note were signed by Roberts, Jerry Hunt, and Monroe Hunt on behalf of all four borrowers.

Based on the bank’s failure to respond to the June 2008 proposal, the Defendant Borrowers and Guarantors raised as a defense to the bank’s claims under the Note and the Guarantees that the bank breached its covenant of good faith and fair dealing and that the bank failed to mitigate damages. At trial, the jury returned a verdict in favor of the Bank in the amount of $ 1,200,000, significantly less than the amount due, and returned a verdict in favor of Monroe Hunt on a counterclaim for invasion of privacy in the amount of $130,000. Judgment was entered in these amounts together with statutory attorney fees to the Bank.

1. The appellees argue that Ameris Bank failed to preserve any of its enumerated errors for appeal. The bank argues that the trial court erred (1) by denying its motion for summary judgment on the Guarantees because they are unconditional; (2) by denying its motion for summary judgment on the Note and Guarantees because the Defendant Borrowers and Guarantors failed to present evidence of a viable defense; (3) by denying its multiple motions for directed verdict for the same reasons stated in Enumeration No. 2; (4) by denying its motion for directed verdict because the defendants were estopped from raising any defenses; and (5) by denying its motion for summary judgment on Monroe Hunt’s counterclaim for invasion of privacy.

It is true that the bank asserts as error the denial of its motions for summary judgment on the Guarantees, the Note, and the counterclaim and that in general, “[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” (Citations and punctuation omitted.) Kicklighter v. Woodward, 267 Ga. 157, 162 (5) (476 SE2d 248) (1996). Accordingly, Enumerations No. 1 and No. 2 are moot. But the bank also moved for directed verdicts at the close of the appellees’ case on the Note and the Guarantees (and later renewed those motions at the close of all evidence), arguing that it had shown a prima facie case on both the Note and the Guarantees, established that the Guarantors had no viable defenses, and shown that all defendants were estopped from raising any defenses. The trial court denied the bank’s motions, and the bank raised essentially the same issues in its third and fourth enumerations of error. See generally OCGA § 5-6-48 (f). Therefore, the bank did not waive the issues raised in Enumerations No. 3 and No. 4.

With regard to Monroe Hunt’s counterclaim (Enumeration No. 5), however, the bank did not move for a directed verdict, and the defendants specifically brought that point to the attention of the court. The jury considered the counterclaim and returned a verdict. Although there are exceptions to the Kicklighter rule of waiver set forth above, none apply here. Compare Smith v. Saulsbury, 286 Ga. App. 322, 323 (1) (a) (649 SE2d 344) (2007) (no waiver if “the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial”) (punctuation and footnote omitted). Weir v. Kirby Constr. Co., 213 Ga. App. 832, 836 (4) (446 SE2d 186) (1994) (denial of summary judgment not moot when a verdict is reversed and the case is remanded for new trial). The denial of the bank’s motion for summary judgment on Monroe Hunt’s counterclaim is therefore moot.

2. In Enumeration No. 4, the bank contends the trial court erred by failing to direct a verdict in its favor on the ground that the Defendant Borrowers and Guarantors had waived any defenses given that the Note was renewed a number of times after the bank failed to respond to the June 2008 proposal.

This Court has held that under the doctrine of “estoppel by silence,” a debtor waives any defenses to payment of a promissory note, including fraud, by virtue of its renewal of the note after it has knowledge of those defenses. Nat. Duck Mills v. Catlin & Co., 10 Ga. App. 240, 245-246 (73 SE 418) (1912). The Supreme Court has extended that doctrine to individual guarantors of a corporate obligation who attempt to assert a defense as to which they had knowledge when they signed a renewal of the corporation’s obligation. Citizens & Southern Nat. Bank v. Yeager Enterprises, 247 Ga. 797, 799 (279 SE2d 674) (1981). See also NationsBank, N. A. v. Peavy, 227 Ga. App. 137, 139 (3) (488 SE2d 699) (1997) (“the renewal cuts off all defenses of which the maker then had knowledge”) (citation and punctuation omitted); Harris v. First Nat. Bank of Cartersville, 163 Ga. App. 49, 52 (3) (292 SE2d 725) (1982) (following Yeager Enterprises).

(a) Here, after the bank failed to respond to Roberts’ June 2008 proposal, Roberts signed several renewals of the Note on behalf of all Borrowers. He admitted that he did so without contacting the bank or having any discussion with anyone from the bank to the effect that he was still waiting to hear back from the bank on the proposal. And, as pointed out by the appellees themselves, he had the full authority of the other owners to represent them vis-á-vis the bank; indeed, he signed the Note, Loan Agreement, and Security Agreement on behalf of all the Borrowers. As stated in Nat. Duck Mills,

[i]t is unthinkable that the plaintiffs would have consented to this novation had the defendants in good faith put the plaintiffs on notice that they denied owing the plaintiffs one cent..., and that when the renewal note fell due, they would refuse its payment, force the plaintiffs to sue on the note, and then set up this defense.

Nat. Duck Mills, supra at 245. Accordingly, the Defendant Borrowers were estopped by silence from asserting any defenses to their obligation on the Note, and the trial court erred by not directing a verdict in favor of the bank on its claims under the Note.

(b) Similarly with regard to the Guarantees, because Roberts signed the Note renewals with full knowledge of the bank’s failure to respond to his June 2008 proposal, he was estopped by silence from raising any defenses to his guarantee arising out of that event. Yeager Enterprises, supra at 799. The trial court therefore erred by denying the bank’s motion for directed verdict on Roberts’ personal guarantee.

There is an issue of fact, however, as to whether the other Guarantors who signed renewals — Monroe Hunt and Jerry Hunt — had knowledge of the June 2008 proposal at the time they signed the renewals. Roberts testified that he told Monroe Hunt of his idea in December 2007 but that he did not tell any of the owners about the meeting in June 2008. We also find no evidence that Roberts told anyone that the bank failed to respond to the proposal. Although there is some evidence that Monroe Hunt and Jerry Hunt may have known some relevant information concerning the June 2008 proposal, that evidence is not clear and undisputed, and therefore Ameris Bank was not entitled to a directed verdict against these other Guarantors based on the theory of estoppel by silence.

3. In Enumeration No. 3, the remaining viable enumeration of error, the bank contends the trial court erred by not granting its motions for directed verdict on the Note and the Guarantees because the Defendant Borrowers and Guarantors were unable to establish their two defenses to the bank’s claims: that by refusing to respond to the June 2008 proposal, the bank breached a duty of good faith and fair dealing and failed to mitigate damages. Given we have already determined that the Defendant Borrowers were estopped from raising any defenses, we will only consider whether the Guarantors’ defenses were viable. We agree with the bank that they were not.

Once a plaintiff establishes a prima facie case by producing a guarantee and showing that it was executed, “the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.” (Punctuation and footnote omitted.) Trendmark Homes v. Bank of North Ga., 314 Ga. App. 886, 887 (726 SE2d 138) (2012); see also Big Sandy Partnership v. Branch Banking & Trust Co., 313 Ga. App. 871-872 (1) (723 SE2d 82) (2012). As shown above, the parties stipulated to the prima facie case on the Guarantees. We therefore turn to the defenses.

(a) Good Faith and Fair Dealing. “ ‘Every contract imposes upon each party a duty of good faith and fair dealing in its performance and [its] enforcement.’Restatement, Second, Contracts, § [205] .” (Citation omitted.) Brack v. Brownlee, 246 Ga. 818, 820 (273 SE2d 390) (1980). But the implied duty cannot be breached apart from the contractual provision to which it pertains:

Every contract implies a covenant of good faith and fair dealing in the contract’s performance and enforcement. The implied covenant modifies and becomes a part of the provisions of the contract, but the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability.

(Citations omitted.) Myung Sung Presbyterian Church v. North American Assn. of Slavic Churches & Ministries, 291 Ga. App. 808, 810 (2) (662 SE2d 745) (2008). See also Morrell v. Wellstar Health System, 280 Ga. App. 1, 5 (2) (633 SE2d 68) (2006) (“there is no independent cause of action for violation of the covenant apart from breach of an express term of the contract”) (citation omitted). Similarly, “[t]here can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do.” Automatic Sprinkler Corp. of America v. Anderson, 243 Ga. 867, 868 (257 SE2d 283) (1979).

The Guarantors argue that the bank breached its implied obligation of good faith and fair dealing, which, they assert, arose from the following language found in each Guarantee: “I waive all claims for loss or damage caused by your acts or omissions where you acted reasonably and in good faith.” We disagree.

First, contracts of guarantee should be construed strongly against the guarantor, and “if the construction is doubtful, that which goes most strongly against the party undertaking the obligation is generally to be preferred.” (Citations and punctuation omitted.) Town Center Assoc. v. Workman, 227 Ga. App. 55, 58 (1) (487 SE2d 624) (1997). Second, as shown above, the duty of good faith and fair dealing only operates in connection with specific promises given in the contract. More specifically, “where the manner of performance [of a contractual provision] is left more or less to the discretion of one of the parties to the contract, he is bound to the exercise of good faith.” (Citation and punctuation omitted.) Rogers v. Farmers & Merchants Bank, 247 Ga. App. 631, 633 (545 SE2d 51) (2001).

The duty of good faith and fair dealing has no application to the language of the Guarantee upon which the Guarantors rely. That language does not impose a duty on the bank; rather, it describes claims that are waived by the guarantor. Because the Guarantors have not established that Ameris Bank owed them a contractual obligation under the Guarantees related to the failure to respond to the June 2008 proposal, they have failed to raise a viable defense of breach of a duty of good faith and fair dealing. See, e.g., Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 630 (1) (b) (725 SE2d 336) (2012) (guarantor failed to establish that there was a contractual obligation in the guarantee related to his good faith claim).

(b) Failure to Mitigate Damages. Finally, the bank argues that the Guarantors have not raised a viable defense of failure to mitigate damages and that therefore the claim of such a defense was not an impediment to a directed verdict. We agree.

The rule requiring a party to mitigate damages “is not applicable where there is an absolute promise to pay.” (Citation omitted.) Reid v. Whisenant, 161 Ga. 503, 510 (131 SE 904) (1926). See siso American Express Travel Related Svcs. Co. v. Web, Inc., 261 Ga. 480, 483 (3) (405 SE2d 652) (1991) (following Reid). Compare OCGA § 13-6-5 (“Where by a breach of contract a party is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.”). And this Court has specifically held that where notes and guarantees contain an absolute promise to pay, the duty to mitigate does not apply. Big Sandy Partnership, 313 Ga. App. at 873 (2).

Here, the parties stipulated that the Guarantees were unconditional, and the fact that the Guarantees are absolute and unconditional is made plain in the Guarantees themselves. As shown, the Guarantees provide that the Guarantors consent to the bank releasing, substituting or impairing any collateral under the Note. And the Guarantees provide that the Guarantors’ liability is unaffected by any action by the bank that could make the Note unenforceable against the Borrowers. Because the Guarantees contain absolute promises to pay, the bank had no duty to mitigate. Accordingly, the defense of failure to mitigate damages was not a bar to a directed verdict in favor of the bank.

For the above reasons, the trial court erred by failing to grant a directed verdict in favor of Ameris Bank against the Defendant Borrowers and Guarantors. The judgment is therefore reversed in part and the case remanded for entry of judgment in favor of Ameris Bank on all claims; the judgment is affirmed with regard to Hunt’s counterclaim.

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

Miller, P. J., and Ray, J., concur.

Decided March 20, 2013

Reconsideration denied April 5, 2013

James, Bates, Brannan & Groover, Jo L. Meeks, David M. Wolf-son, for appellant.

Conner & Jackson, Neal L. Conner, Jr., David A. Cox, Charles B. Pekor, Jr., for appellees.

       Service Supply filed voluntary bankruptcy on December 30, 2009, and is not a named defendant in this action.

       Wilson also signed the Note, Loan Agreement and Security Agreement on behalf of AIMCO.

       The applicable section number of the Restatement was changed in the Official Draft. See Restatement, Second, Contracts, § 205.

       The federal case upon which the Guarantors rely, Gen. Elec. Capital Corp. v. Nucor Drilling, 551 FSupp.2d 1375 (M.D. Ga. 2008), is not binding upon us, and it failed to consider the language of the relevant agreement when determining whether there was an absolute promise to pay. See id. at 1380; REL Dev. v. Branch Banking & Trust Co., 305 Ga. App. 429, 432 (1), n. 8 (699 SE2d 779) (2010).

       Each identical Guaranty states:
      I absolutely and unconditionally... guaranty to [the Bank] the payment... of each and every Debt... that the Borrower... may now or at any time in the future owe you.
      I am unconditionally liable under this Guaranty, regardless of whether or not you pursue any of your remedies against the Borrower ... or against any Property [securing debt]. My obligation to pay according to the terms of this Guaranty shall not be affected by the illegality, invalidity or unenforceability of any notes or agreements evidencing the Debt... or any other circumstances which make the indebtedness unenforceable against the Borrower. I will remain obligated to pay on this Guaranty even if any other person who is obligated to pay the Debt, including the Borrower, has such obligation discharged in bankruptcy ... or otherwise discharged by law.
      I agree that this is an absolute and unconditional Guaranty.
      My obligation is absolute and . . . any act or omission by you which impairs the Property will not relieve me or my liability under this Guaranty.


author: Dillard, Judge.

text:
    A12A1830.
    THE STATE v. MOSLEY.
    (739 SE2d 106)
   Dillard, Judge.

The State of Georgia appeals from the trial court’s order granting Sean L. Mosley’s motion to suppress evidence obtained on the night of his arrest for driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1). Because we conclude that the trial court erred in suppressing the evidence, we reverse.

We begin by noting that, on appeal from a ruling on a motion to suppress, we defer to the trial court’s factual findings and credibility determinations, but review de novo the court’s application of the law to the undisputed facts. And significantly, to the extent that the controlling facts “are undisputed because they are plainly discern-able from the patrol car-mounted video recording,” as they are in this case, we review those facts de novo.

The record shows that on the night in question, a deputy from the Fayette County Sheriff’s Office was dispatched to a convenience store after the store’s clerk called law enforcement because she witnessed a dispute in the parking lot involving a male and female arguing loudly. Upon his arrival to the scene, the deputy observed Mosley and a female standing beside Mosley’s car, which appeared to have been involved in a recent accident — i.e., the rear tire was flat, the rim was cracked, and the bumper was damaged. As the deputy approached the vehicle, Mosley attempted to leave, stating that he “just want[ed] to walk home.” The deputy requested that Mosley return to the vehicle so that he could investigate the reason for the clerk’s call. And as Mosley was walking toward him, the deputy observed that he was staggering and detected a strong odor of alcohol coming from his person. Then, in response to questions from the deputy, Mosley stated that he had been driving with his female companion — whom he had just encountered at a nightclub — when his vehicle got a flat tire and she became upset with him.

A second sheriff’s deputy then arrived on the scene. At this point, the first deputy asked Mosley to lean on the bumper of his patrol vehicle while he and the second deputy turned and walked a short distance away to engage in a private discussion. During the deputies’ brief conversation, Mosley began to walk away, and the first deputy directed him back to the bumper of his patrol car. The following conversation then ensued between Mosley and the first deputy:

Deputy: Hey, sir, would you mind voluntarily doing field sobriety for me?
Mosley: No.
Deputy: You said, no, you don’t want to do field sobriety?
Mosley: Why? I’m not driving.
Deputy: Listen, listen, listen to me — step back and lean on the bumper. Would you mind voluntarily doing field sobriety?
Mosley: Are you saying you are going to arrest me?
Deputy: No, I’m saying I’m going to conduct some field-sobriety test, test your impairment to see if you are safe enough to drive and/or walk away.
Mosley: I’m not going to drive.
Deputy: Listen to me, to drive and/or walk away.
Mosley: Okay. I’ll do it.

This conversation took place less than eight minutes into the encounter. The first deputy then conducted field-sobriety tests and arrested Mosley for DUI less safe, in violation of OCGA § 40-6-391 (a) (1).

Thereafter, Mosley filed a motion to suppress both the field-sobriety-test results and any subsequent testimonial evidence arguing, inter alia, that he was in custody at the time the tests were conducted and therefore should have been advised of his rights under Miranda v. Arizona prior to being subjected to the tests. And after holding a hearing and watching the videotaped evidence from the first deputy’s vehicle-mounted camera, the trial court granted Mosley’s motion to suppress the evidence. Specifically, the trial court held that Mosley was under arrest at the time he agreed to submit to the field-sobriety testing and, therefore, should have first been given his Miranda rights. This appeal by the State follows.

In Georgia, it is well established that during the course of an investigation, a law-enforcement officer may temporarily detain an individual and that such a detention does not normally trigger the protections of Miranda. And with respect to a DUI investigation in particular, Miranda warnings are not required “while an investigating officer conducts preliminary questioning or field sobriety tests.” Once a DUI suspect is in custody, however, Miranda warnings must “precede further field sobriety tests in order for evidence of the results to be admissible.” To that end, when analyzing whether a suspect is in custody, the relevant inquiry is “whether, under the circumstances, a reasonable person would conclude that his or her freedom of action was only temporarily curtailed and that a final determination of his or her status was merely delayed.” A reasonable person is “one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” And a detained individual is not under arrest simply because, by leaving, “he could be arrested for violating state law.” Finally, the subjective belief of an officer that he or she may have probable cause to arrest a suspect is wholly irrelevant in the absence of an overt step to communicate that belief. Indeed, in the absence of an officer making a statement that would cause a reasonable person to believe that he was under arrest — as opposed to being temporarily detained — -during an investigation, the officer’s subjective “belief” that probable cause exists to make an arrest “does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe he was under arrest.”

Applying the foregoing principles to the case sub judice, we conclude that the trial court erred in holding that Mosley was in custody for purposes of Miranda at the time the field-sobriety tests were conducted. The first deputy was responding to a call from a concerned convenience-store clerk. And during his investigation into the reason for the clerk’s call, the deputy observed that Mosley’s car appeared to have been in a recent accident and that Mosley was possibly under the influence of alcohol, which naturally caused the deputy to expand the nature of his investigation.

Additionally, while it is certainly true that Mosley was not permitted to leave the scene during the course of the first deputy’s questioning, there is nothing in the deputy’s words or actions that would cause a reasonable person to conclude that Mosley’s freedom of action was more than temporarily curtailed pending the outcome of the investigation. Indeed, at no time did the deputy tell Mosley that he was under arrest. To the contrary, when Mosley asked the deputy during his investigation whether he was under arrest, the deputy explicitly answered this question in the negative (as noted supra). Moreover, the deputy never placed Mosley in handcuffs or in the back of the patrol car during his questioning. In fact, the deputy even turned his back on Mosley at one point in his investigation (i.e., when he stepped away to engage in a private conversation with the second deputy), walking in the opposite direction of Mosley and leaving him standing alone at the back of the vehicle. In sum, our examination of the video convinces us that a reasonable person would conclude that the first deputy was conducting-field-sobriety testing for the very purpose of determining whether to take Mosley into custody. Thus, when all of the surrounding circumstances are taken into consideration, we conclude that treatment of this nature cannot fairly be characterized as “the functional equivalent of [a] formal arrest.”

Decided March 19, 2013

Reconsideration denied April 5, 2013

JamieK. Inagawa, Solicitor-General, JosephB. Myers, Jr., Assistant Solicitor-General, for appellant.

George C. Creal, Jr., for appellee.

And for all of the foregoing reasons, we conclude that the trial court erred in suppressing the results of the field-sobriety tests and any subsequent statements on the basis of a Miranda violation.

Judgment reversed.

Ellington, C. J., and Phipps, P. J., concur.

        Johnson v. State, 299 Ga. App. 474, 474 (682 SE2d 601) (2009).

        Id. at 474-75; see Boyd v. State, 315 Ga. App. 256, 257 (1) (726 SE2d 746) (2012) (“[W]here controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo.” (punctuation omitted)).

       The deputy confirmed with the female companion that the vehicle belonged to Mosley.

       An officer is permitted to attempt to persuade an individual to submit to a field-sobriety test, so long as in doing so the officer makes no “threat of criminal sanction or any show of force” that would “improperly compel a suspect into submitting to the tests.” Rowell v. State, 312 Ga. App. 559, 563 (718 SE2d 890) (2011).

       384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       This appeal is authorized by OCGA § 5-7-1 (a) (4), which provides that
      [a]n appeal may be taken by and on behalf of the State of Georgia from the superior courts ... in criminal cases ... [f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first....

        See Tolliver v. State, 273 Ga. 785, 786 (546 SE2d 525) (2001) (“[A] law enforcement officer coming upon the scene of suspected criminal activity will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene. Such detentions do not trigger the requirements of Miranda v. Arizona.” (punctuation omitted)); see also Berkemer v. McCarty, 468 U. S. 420, 435-42 (III) (104 SC 3138, 82 LE2d 317) (1984); Crider v. State, 319 Ga. App. 567, 568 (737 SE2d 344) (2013).

        Crider, 319 Ga. App. at 568 (punctuation omitted); accord Polizzotto v. State, 248 Ga. App. 814, 816 (1) (547 SE2d 390) (2001).

        Crider, 319 Ga. App. at 568 (punctuation omitted); accord Polizzotto, 248 Ga. App. at 816 (1).

        Hale v. State, 310 Ga. App. 363, 366 (1) (714 SE2d 19) (2011); see Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998) (“The test of ‘in custody’ is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary.” (punctuation omitted)); State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996) (“[Ajlthough an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights.”); see also Berkemer, 468 U. S. at 442 (III).

        Crider, 319 Ga. App. at 569 (punctuation omitted).

        Smith v. State, 236 Ga. App. 548, 550 (2) (512 SE2d 19) (1999), rev’d on other grounds, 272 Ga. 83 (526 SE2d 59) (2000).

        State v. Pierce, 266 Ga. App. 233, 235 (1) (596 SE2d 725) (2004) (punctuation omitted; emphasis supplied); see Smith, 236 Ga. App. at 551 (2) (“The fact that [appellant) had become the focus of an investigation, even to the point where the officer had probable cause for an arrest, did not constitute a formal arrest for Miranda purposes.”).

        Tolliver, 273 Ga. at 786 (punctuation omitted).

        See State v. Hammond, 313 Ga. App. 882, 888 (723 SE2d 89) (2012) (holding that the trial court erred in finding a Miranda violation in part because “[n]o reasonable person, having been told that he or she would not be arrested (denoting a future occurrence), could believe that he or she was currently in custody”); Pierce, 266 Ga. App. at 234-36 (1) (holding that the trial court erred in concluding that appellant was under arrest for the purposes of Miranda, even though the officer made reference to “some other drunk,” when the officer left appellant standing alone at police car while he temporarily left to speak to a second officer); Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000) (affirming trial court’s holding that appellant was not in custody, despite the fact that he was detained while waiting for the arrival of a DUI task force officer, because he was allowed to walk around, was not placed in the back of the police car, and was not handcuffed); Pastorini, 222 Ga. App. at 317-18 (1) (reversing the trial court’s finding of a Miranda violation because defendant had been involved in a car accident and, even though the appellant told the officer that he “should be at home” and not driving, the officer only posed questions relevant to the accident investigation); see also Crider, 319 Ga. App. at 568. Compare State v. O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313) (1997) (appellant — who was involved in a car accident, left the scene, and was almost immediately involved in a second accident — was in custody at the time that the officer brought him in the patrol car from the scene of the second accident to the scene of the first accident and requested that he perform field-sobriety tests).


text:
    A12A2350.
    RICH v. FORD MOTOR CREDIT COMPANY, LLC.
    (741 SE2d 163)
   Branch, Judge.

Wayne Rich appeals an order of the Superior Court of Dougherty County granting summary judgment in favor of Ford Motor Credit Company, LLC (FMCC) in FMCC’s suit to recover the deficiency on a retail installment contract. We find no error and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

In support of its motion for summary judgment, FMCC submitted the affidavit of Lorrie Rowe, an employee with personal knowledge of the underlying facts and the business records maintained by FMCC pertaining to Rich’s contract. The documents referenced in the affidavit are attached thereto. This evidence shows that on March 28, 2006, Rich entered into a retail installment contract with Team Ford Northpoint to purchase a 2006 Ford F-250. Thereafter, the seller transferred the contract to FMCC. As of September 2, 2011, Rich was in default under the contract because of a failure to pay, and, in accordance with the contract, FMCC repossessed the truck that day. On September 7, 2011, FMCC prepared and mailed to Rich by certified mail, with sufficient postage thereon, a “Notice Of Our Plan To Sell Property And Intention To Pursue A Deficiency Claim.” FMCC never received a response from Rich, and it thereafter took the vehicle to a private auction for sale. The truck had been driven 170,862 miles, and it sold at auction for $11,000. FMCC determined that based on the contract, the deficiency was $14,238.20, and it brought suit for that amount plus attorney fees, costs and interest.

Based on the above evidence, FMCC moved for summary judgment. In response, Rich argued only that FMCC failed to send the notice required by OCGA § 10-1-36 within ten days of the repossession. Rich sought summary judgment on the same ground. The trial court granted summary judgment in favor of FMCC. On appeal, Rich raises the same argument.

OCGA § 10-1-36 (a) requires a creditor to give notice of intent to pursue a deficiency judgment “within ten days after the repossession”:

When any motor vehicle has been repossessed after default in accordance with Part 6 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer. . . .

Decided March 13, 2013

Reconsideration denied April 5, 2013.

Wayne R. Rich, pro se.

Ashley F. Campbell, Charles F. MacDowell, for appellee.

Citing Sikes & Swanson Pontiac-GMC Truck v. Cantrell, 194 Ga. App. 818 (392 SE2d 36) (1990), Rich contends the date of repossession should be the date the creditor placed the account in “repo status.” But Cantrell is not controlling because in that case, the debtor surrendered the vehicle to the dealership for the purpose of allowing repossession by the secured party. Id. And “a voluntary surrender of an automobile will trigger the ten-day notice requirement so long as, at the time the debtor surrendered the vehicle, the debtor was in default and the creditor had the right to repossess the vehicle.” (Citations and punctuation omitted.) Welch v. Ford Motor Credit Co., 227 Ga. App. 904, 905 (490 SE2d 206) (1997).

In the present case, the undisputed facts show that FMCC forwarded the required notice on the fifth day following the physical repossession of the truck. There is no evidence in the record that Rich surrendered his truck voluntarily, and Rich’s attempt to introduce evidence by way of his brief is not authorized. “[E]xhibits attached to appellate briefs are not evidence, nor are they considered part of the record.” (Footnote omitted.) Cox v. Southern Guar. Ins. Co., 254 Ga. App. 776, 778 (2) (563 SE2d 882) (2002). See also Court of Appeals Rule 25 (c) (2) (i). Here, based on the evidence of record, FMCC provided timely notice under OCGA § 10-1-36 (a). See, e.g., Branch v. Charlie Pike Chevrolet-Buick, 198 Ga. App. 672, 673 (1) (402 SE2d 544) (1991). Accordingly, the trial court did not err by granting summary judgment in favor of FMCC.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Rich contends the exhibit attached to his brief was in the record. But the document attached to his brief contains handwritten annotations not found on the document in the record, and therefore he is incorrect. More importantly, the document does not raise an issue of fact regarding when FMCC placed the account in “repo status,” as Rich contends.

Motion for reconsideration denied.


author: McFadden, Judge.

text:
    A12A2491.
    SEIBERT v. THE STATE.
    (739 SE2d 91)
   McFadden, Judge.

Steven Seibert appeals his conviction of aggravated stalking. He argues that the evidence does not support the conviction. We agree and therefore reverse.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Cordy v. State, 315 Ga. App. 849 (1) (729 SE2d 13) (2012).

So viewed, the record shows that Leslie Swords and Seibert were married for fourteen and one-half years before they divorced in 1998. In 1999, Swords was granted a permanent restraining order against Seibert because of his harassing behavior, which included repeated phone calls, unannounced visits, parking outside her house and watching the house, leaving items on the doorstep, and entering her house without permission. The restraining order prohibited Seibert from having any contact whatsoever with Swords. Nonetheless, Seibert continued to contact Swords, so she moved to another county without telling Seibert. Within a couple of months, he began contacting Swords at her new address. Eventually, Swords moved back to Gwinnett County, again not telling Seibert. He began contacting her. Swords contacted the district attorney’s office, the police and the sheriff’s office. In 2007, the court sentenced Seibert for certain crimes, and as part of his sentence, Seibert again was ordered to have no contact whatsoever, either directly or indirectly, with Swords, their children, and Swords’ family.

In 2010, Seibert filed a pro se, civil action against Swords. She took the complaint to the Gwinnett County District Attorney’s office. John Warr, an assistant district attorney, filed a motion to intervene in the civil action, not as Swords’ attorney, but as a representative of the state, which, Warr believed, had an interest in the civil action.

In October 2010, Seibert sent Warr several documents, which Warr received at his office. Included in the documents was a letter from Seibert to Swords in care of Warr. Seibert also included a letter to Warr, asking him to deliver the letter to Swords “in accordance with the law, via fax or otherwise, as her representative counsel.” Warr reported his receipt of the letter to the chief assistant district attorney because he thought it was a violation of prior court orders. The state presented no evidence that Swords ever received the letter.

The state indicted Seibert for committing two counts of aggravated stalking by contacting Swords “by mailing a letter to a third party with a specific request to deliver said letter” to her for the purpose of harassing and intimidating her, in violation of the permanent restraining order and a probation condition in the 2007 sentence. The jury returned guilty verdicts on both counts, and the court entered a judgment of conviction, merging the counts and sentencing Seibert to ten years in prison. After the court denied his motion for new trial, Seibert filed this appeal.

OCGA § 16-5-91 (a) provides that a person commits aggravated stalking when that person,

in violation of a . . . permanent restraining order . . . or . . . condition of probation... contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

Although the aggravated stalking statute does not define the terms “contact” or “place or places,” the simple stalking statute does. See OCGA § 16-5-90 (a) (1). The definitions contained in the simple stalking statute are applicable here, because the legislature has made clear that the simple stalking statute defines terms “[f]or the purposes of [the entire] article [on stalking in the Georgia Code].” OCGA § 16-5-90 (a) (1). See State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010).

OCGA § 16-5-90 (a) (1) defines the term “contact” to mean “any communication including without being limited to communication... by mail. . . .” It defines the terms “place or places” to “include any public or private property occupied by the victim other than the residence of the defendant.” Id. The statute also provides that “the place or places that contact... is deemed to occur shall be the place or places where such communication is received.”

Based on the plain terms of the stalking statutes, aggravated stalking can be committed when a person, in violation of a permanent restraining order or a condition of probation, contacts the victim by mail at any public or private property occupied by the victim. “To ‘contact’ is readily understood by people of ordinary intelligence as meaning to get in touch with; communicate with.” (Citation and punctuation omitted.) Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94) (1994). The state presented no evidence that Seibert “got in touch with” or “communicated with” Swords; the state presented no evidence that she even was aware of the letter.

Decided March 8, 2013

Reconsideration denied April 5, 2013.

Lynn M. Kleinrock, for appellant.

The state argues that contact through a third party can be a violation of the aggravated stalking statute. But in the cases it cites, actual contact was made with the victim, whether directly by the defendant or indirectly by the defendant through a third party. See Louisyr v. State, 307 Ga. App. 724 (706 SE2d 114) (2011) (in violation of protective order prohibiting defendant from having any contact with his wife or from coming within 500 feet of her residence, defendant went to the hotel where his wife and children were staying, went to their room, called his daughter’s name, used a key to try to enter the room, was thwarted by the safety chain and his wife and daughter’s pushing against the door, so reached his hand inside and attempted to remove it); Davidson v. State, 295 Ga. App. 702 (673 SE2d 91) (2009) (defendant convinced victim’s friend to use the three-way feature of her telephone service to connect him with the victim, who spoke with defendant); Holmes v. State, 291 Ga. App. 196 (661 SE2d 603) (2008) (in addition to leaving mail for his wife at his mother-in-law’s house and having a fellow inmate send letters to his three-year-old daughter, defendant made numerous phone calls to his wife, sent her e-mails and followed her and her family in his car, in violation of order prohibiting contact with wife and family).

Here, however, the state failed to prove that there was actual contact with Swords, whether through a third party or otherwise. Indeed, the Supreme Court of Georgia has held that an attempt to contact another person, precisely the conduct with which the state charged Seibert, is to attempt to stalk. State v. Rooks, 266 Ga. 528, 529 (2) (468 SE2d 354) (1996).

The state also failed to prove that Seibert’s communication was made at a “public or private property occupied by the victim.” Under the statutes, the contact was deemed to have occurred at the district attorney’s office, where Warr received the letter; there was no evidence that Seibert contacted Swords at a place occupied by Swords, as the plain terms of the statutes require.

Judgment reversed.

Barnes, R J., and McMillian, J., concur.

Daniel J. Porter, District Attorney, Jon W. Setzer, Assistant District Attorney, for appellee.


author: Ellington, Chief Judge.

text:
    A13A0116.
    WALDRON v. THE STATE.
    (741 SE2d 301)
   Ellington, Chief Judge.

We granted Tracy Waldron’s application for an interlocutory appeal to consider whether the trial court erred in denying his motion to suppress evidence. Waldron contends that his arresting officer lacked articulable suspicion to stop his vehicle. We disagree and affirm.

We follow three principles when reviewing a trial court’s order concerning a motion to suppress evidence:

First, the judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation and punctuation omitted.) LeRoux v. State, 300 Ga. App. 310, 311 (684 SE2d 424) (2009).

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Punctuation omitted.) State v. Underwood, 283 Ga. 498, 500 (1) (661 SE2d 529) (2008).

Viewed in light of these principles, the evidence shows that, on December 31,2011, a real estate agent, who was preparing to show an empty commercial property in Doraville, discovered that the property had been burglarized and that several air-conditioning units had been taken from the building and stacked together near an open door, seemingly in preparation for transport away from the building. The agent called the police. The responding officer testified that the building that had been burglarized was located on a hill, behind two other closed businesses, at the end of a 45-yard-long driveway. The area was dark, given the evening hour, and it was secluded behind a tree-line.

As the officer was talking with the real estate agent, he observed a pick-up truck moving along the driveway toward them. Although there were several places where the driver could have turned the truck around, the driver continued toward the crime scene until the truck’s lights illuminated the officer’s patrol car. The driver stopped abruptly, backed up, and drove away. Given that the burglary under investigation appeared to be in progress, and given that there was no other apparent reason for the driver to be behind closed businesses, the officer followed the pick-up truck and pulled the driver over. The officer asked the driver what he was doing in the area, and the driver said that he and his friend were looking for scrap metal. The officer smelled an alcoholic beverage coming from the driver, and Waldron was arrested and charged with DUI.

At least three types of police-citizen encounters exist: verbal communications involving no coercion or detention; brief “stops” or “seizures” that require reasonable suspicion; and “arrests,” which can only be supported by probable cause. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity.

(Citations and punctuation omitted.) Brittian v. State, 257 Ga. App. 729, 731 (572 SE2d 76) (2002).

Although an investigative stop cannot be based on an officer’s mere hunch that criminal activity is afoot, an officer may draw on his or her own experience and specialized training when making inferences and deductions. Rolfe v. State, 278 Ga. App. 605, 606-607 (630 SE2d 438) (2006). The inquiry is whether, given the totality of the circumstances, the officer has a particularized and objective basis for suspecting that a person is, or is about to be, engaged in criminal activity. Hughes v. State, 269 Ga. 258, 259-260 (497 SE2d 790) (1998).

Decided April 5, 2013.

Shannon L. Kyle, Gerard B. Kleinrock, for appellant.

In considering the totality of the circumstances in each case, a court must avoid evaluating the facts in isolation. Even where each in a series of acts may be susceptible to an innocent explanation, taken together they may collectively amount to reasonable suspicion justifying an officer’s investigative stop. Moreover, a determination that reasonable suspicion exists need not rule out the possibility of innocent conduct.

(Citations and punctuation omitted.) Rolfe v. State, 278 Ga. App. at 607.

Given the totality of the circumstances, the trial court did not err in concluding that the officer had a reasonable suspicion that the driver of the vehicle he stopped was, or was about to be, engaged in criminal activity for these reasons: The burglary to which the officer responded appeared to be in progress. Someone had apparently intended to come back for the air-conditioning units stacked by the open door into the premises. The hour was late, the businesses were closed, and there was no reason for anyone to be driving to them or to the empty properties. The driver, nevertheless, continued down a 45-yard-long driveway toward the crime scene, although there were several places to turn around. The driver was in a pick-up truck, a vehicle capable of transporting several air-conditioning units. Finally, the driver quickly retreated when he saw the police car.

Taken together, the above factors were sufficient to give the officer a particularized and objective basis for a reasonable suspicion to stop the vehicle and to investigate. See Rolfe v. State, 278 Ga. App. at 607 (reasonable suspicion existed for a traffic stop when a vehicle drove past a closed store that had been recently targeted by burglars, continued down a dead-end road in the early hours of the morning, and appeared to attempt to elude the police once spotted by them). See also LeRoux v. State, 300 Ga. App. at 311-312 (reasonable suspicion existed for a traffic stop when driver entered upon private golf course driveway at 2:30 a.m., the property had experienced past criminal activity, and the driver drove around in circles). Consequently, we find no error.

Judgment affirmed.

Phipps, P. J., and Branch, J., concur.

Sherry Boston, Solicitor-General, Steven R. Johnston, Assistant Solicitor-General, for appellee.