author: MCMILLIAN, Judge.

text:
    A13A0212.
    THE STATE v. PRICE et al.
    (746 SE2d 258)
   MCMILLIAN, Judge.

Appellees Mykell Price and Jonathan Anderson were indicted with the offense of trafficking in cocaine (OCGA § 16-13-31 (a) (1) (A)), and Anderson was also charged with the offense of operating a motor vehicle with an illegal window tint (OCGA § 40-8-73.1). Each appellee filed a motion to suppress, asserting that the traffic stop giving rise to these charges was pretextual and that the traffic stop was unreasonably prolonged. In addition, Price asserted that he was placed under arrest and questioned without being advised of his Miranda rights. Following a hearing, the motions to suppress were granted, and the State appeals.

Generally, on appeal from a trial court’s ruling on a motion to suppress, the trial court’s finding as to disputed facts will be sustained unless clearly erroneous. But, as here, where the State’s evidence presented at the motion to suppress hearing was uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to the undisputed facts is subject to de novo appellate review. Jones v. State, 314 Ga. App. 107 (722 SE2d 918) (2012); Walker v. State, 314 Ga. App. 67, 67 (1) (722 SE2d 887) (2012). Following our review pursuant to this standard, we reverse.

On November 3, 2011, at approximately 2:00 p.m., Price and Anderson were traveling on 1-16 when a patrolling Bulloch County deputy sheriff, Deputy Ray Rodriguez, observed that the windows of their vehicle appeared to be illegally tinted. The deputy conducted a traffic stop, checked the windows, and determined the tinted windows were in violation of the law. The deputy also noted that the driver, Anderson, was extremely nervous, his eyes were glazed, and there was an odor of burnt marijuana coming from the vehicle. Based on these observations, the deputy summoned a Statesboro police officer accompanied by a drug dog. Sergeant Jason Kearney with the Bulloch County Sheriff’s Department also responded. The Statesboro K-9 unit was nearby and arrived approximately five or six minutes after the traffic stop was initiated. The dog was deployed to execute a free air sniff around appellees’ vehicle and within less than a minute gave a positive response to the odor of one of the substances he was trained to detect.

When Sergeant Kearney arrived at the scene, he began an attempt to identify the passenger, Price. This process was still underway when the K-9 unit arrived. Kearney had observed that upon his initial approach Price was very nervous and seemed to be shaking. After the dog alerted, Kearney got Price out of the vehicle to continue his investigation. Price continued to be nervous and shaking, and the sergeant placed him in handcuffs due to concerns that he was about to flee or fight the officers. As Price was being handcuffed, Kearney told him that he was not under arrest, but was being detained. After Price was handcuffed, Kearney asked him whether he had anything illegal on his person. Price responded that he had “a little bit of. . . weed, in his pocket” that is marijuana, and indicated where he had the contraband which the sergeant described as “half of a joint of marijuana.” The sergeant testified that upon finding the contraband, Price was placed under arrest and was further searched. The search disclosed two ounces of cocaine in Price’s shoe.

Because the trial court did not explain the reason for granting the motions to suppress, we will address each of the potential grounds asserted by the appellees in their motions to suppress, which the State contends do not support the granting of the motions. To begin with, we find that the traffic stop of the vehicle was not pretextual because the undisputed evidence was that the officer observed what he believed to be a window tint violation, and upon testing the window, the officer testified that its tint was in violation of OCGA § 40-8-73.1. “If an officer witnesses a traffic violation, the ensuing stop is never pretextual, regardless of the officer’s subjective intentions.” Cuaresma v. State, 292 Ga. App. 43, 45-46 (1) (663 SE2d 396) (2008). See also Walker v. State, 322 Ga. App. 821 (744 SE2d 385) (2013); Berry v. State, 318 Ga. App. 806, 808 (1), n. 3 (734 SE2d 768) (2012).

Appellees also maintain that the traffic stop was unduly prolonged by the attempt to identify the passenger, Price. Based upon concerns for officer safety, we have held that “a police officer may check for outstanding warrants or criminal histories on the occupants of a vehicle at a valid traffic stop ... as long as under the circumstances they do not unreasonably prolong the stop.” (Citation and punctuation omitted.) Matthews v. State, 294 Ga. App. 836, 840 (1) (d) (670 SE2d 520) (2008). In this instance, the Sheriff’s Department sergeant arrived and began the identification check on Price while the deputy who had made the traffic stop was still talking to Anderson. The sergeant had not finished when the dog arrived and alerted. The time reasonably necessary to accomplish the purpose of a traffic stop includes the time necessary to run a computer check on the driver and on any passengers. See Davis v. State, 322 Ga. App. 217 (744 SE2d 393) (2013) (stop not unreasonably prolonged to run warrant search on passengers); Young v. State, 310 Ga. App. 270, 272-273 (712 SE2d 652) (2011) (K-9 unit arrived while officers still in process of obtaining criminal histories of driver and passenger). Thus, appellees’ theory that time is allowed for a computer check of only the driver, but not the passengers, is incorrect.

And this Court has upheld on numerous occasions traffic stops that were less than ten minutes to allow officers to run criminal histories and to complete any paperwork for issuing the citation. See, e.g., Young, 310 Ga. App. at 270 (ten-minute wait); Wilson v. State, 318 Ga. App. 59 (733 SE2d 365) (2012) (K-9 requested while officer was issuing citations for the alleged traffic violations and arrived in ten minutes); Hardaway v. State, 309 Ga. App. 432 (710 SE2d 634) (2011) (search not unreasonably prolonged when drug dog arrived five minutes after request and while officer was still writing the ticket).

Furthermore, unlike Nunnally v. State, 310 Ga. App. 183, 187 (713 SE2d 408) (2011), the evidence in this case shows no abandonment or deviation by the officers from the proper purposes of a traffic stop prior to the dog alerting on the vehicle. Thus, we find that there was no extension of the stop before officers received a basis independent of the traffic stop to investigate a reasonable suspicion that appellees were in possession of contraband. The traffic stop was properly conducted, and appellees’ detention was not improperly extended.

Finally, Price asserts that he was placed under arrest when he stepped out of the vehicle and placed in handcuffs, and that incriminating statements he made without being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), should be suppressed.

Georgia law recognizes three tiers of police-citizen encounters: consensual encounters; brief investigatory stops that require reasonable suspicion; and arrests that require probable cause. The determination as to which type of encounter is occurring is a mixed question of law and fact with the legal test being whether the individual was formally arrested or restrained to a degree associated with a formal arrest, not whether the police had probable cause to arrest. Specifically, the test is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary.

(Citations and punctuation omitted.) Christy v. State, 315 Ga. App. 647, 652 (2) (727 SE2d 269) (2012). “A reasonable person has been defined as one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” (Citation and punctuation omitted.) Crider v. State, 319 Ga. App. 567, 569 (737 SE2d 344) (2013).

Applying this standard, we find that the second-tier traffic stop was not elevated into an arrest by removing Price from the vehicle and handcuffing him while the sergeant was continuing his investigation. It is undisputed from the video recording that the sergeant told Price at the time he was handcuffed that he was being detained, but was not under arrest. The sergeant also testified without contradiction that he handcuffed Price because of Price’s excessive nervousness and because the sergeant feared that Price was going to flee or fight. Under these circumstances, a reasonable person would have recognized that he was not under formal arrest so Price’s statement shortly thereafter divulging his possession of marijuana was admissible even in the absence of Miranda warnings. Smith v. State, 281 Ga. 185, 187 (640 SE2d 1) (2006) (“This Court has recognized that officers may handcuff a suspect during an investigatory stop when such action is either reasonable under the circumstances to protect themselves or the public, or to maintain the status quo.”); State v. Austin, 310 Ga. App. 814, 821 (2) (714 SE2d 671) (2011) (“[Defendant] was handcuffed for purposes of officer safety after he took on what appeared to be a fighting stance while being questioned by an officer, but he was explicitly told at that time that he was not under arrest and that the handcuffs were for both the officers’ safety and his own.”) (emphasis in original).

Decided July 10, 2013.

Richard A. Mallard, District Attorney, Joseph B. Black, Assistant District Attorney, for appellant.

Gillen, Withers & Lake, Thomas A. Withers, Kimberly L. Copeland, for appellees.

Price also contends that the search of his person was improperly initiated after the drug dog alerted and that a drug dog’s alert cannot justify the search of a person. But the record is clear that the marijuana was discovered upon inquiry by the sergeant as to whether Price had any illegal substances on his person and that the possession of marijuana provided probable cause for his arrest. The cocaine that was then found was in the course of a lawful search incident to arrest.

For the foregoing reasons, appellees’ motions to suppress evidence should have been denied.

Judgment reversed.

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


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A0370.
    ADAMS v. THE STATE.
    (746 SE2d 261)
   Ray, Judge.

After a jury trial, Robert Louis Adams was convicted of burglary (OCGA § 16-7-1). He appeals from the denial of his motion for new trial, arguing that he received ineffective assistance of counsel. Finding no reversible error, we affirm.

On appeal from a criminal conviction, we construe the evidence in a light most favorable to the jury’s verdict, and the defendant no longer enjoys a presumption of the innocence. Bryan v. State, 271 Ga. App. 60 (1) (608 SE2d 648) (2004). We do not weigh the evidence or determine witness credibility, but determine only whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Bryan, supra. So viewed, the record reveals the following relevant facts:

On November 10, 2010, Jessica Bentley arrived in the parking lot in front of her apartment at the Wesley St. Claire Apartments. Bentley stated that when she arrived, she waited for another neighbor to arrive before exiting her car because she “saw a strange guy lingering in the parking lot.” Once inside her apartment, Bentley told her boyfriend, Christopher Gillings, about the man in the parking lot.

Soon after, Bentley and Gillings heard a loud bang outside their apartment door. Gillings testified that he grabbed his handgun because the apartment was located in a “bad area” and he had been the victim of a break-in in the past. While holding the gun, he looked out his door and noticed that the door to the apartment located across the hall from his apartment had been kicked in. When he exited his apartment, Gillings saw two men whom he knew did not live in the apartment come through the broken door, carrying bags away. Gillings ordered the men to stop. The men did not stop, and Gillings noticed the heavier-set of the two men reach into his pocket and pull out something Gillings believed was a gun. Gillings then fired one shot, which struck the thinner of the two men, Adams, in the left leg. The heavier-set man fled downstairs.

After calling 911, Gillings brought Adams some water and a towel while waiting for the police to arrive. During that time, Adams told Gillings that the apartment he had fled from was his “baby mother’s house.” Bentley testified at trial that Adams was the man that she had noticed lingering in the parking lot. She further testified that she had later spoken to the residents of the burglarized apartment, Kisma Burton and Latoya Robinson, and confirmed that no children nor mothers of any children lived in their apartment. Both Burton and Robinson testified at the trial that they were not home at the time of the burglary, that they did not know Adams or his companion, that they had never invited either of the men to their home, and that they did not have children or a relationship with Adams and his companion. Robinson testified that when she returned to the apartment, she discovered that she was missing a piggy bank, a duffle bag with other bags inside it, some jewelry, and a school backpack.

Adams’ recorded statement to the police was played to the jury. However, Adams did not testify at trial and presented no evidence in support of his defense.

1. As an initial matter, we note that Adams has propounded compound enumerations of error, and in some instances, has failed to provide citations to the record or to relevant legal authority. Our requirements for appellate briefs

were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.

(Footnote omitted.) Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 706 (1) (618 SE2d 621) (2005). Further, “this Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.” Burrowes v. State, 296 Ga. App. 629, 631 (1) (675 SE2d 518) (2009).

2. Adams contends that his trial counsel was ineffective for a number of reasons.

When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

(Citations, punctuation and emphasis omitted.) Johnson v. State, 214 Ga. App. 77-78 (1) (447 SE2d 74) (1994). “The likelihood of a different result must be substantial, not just conceivable.” (Citation and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). Further “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations and punctuation omitted.) Boynton v. State, 317 Ga. App. 446, 450 (2) (730 SE2d 738) (2012).

(a) At the outset, we note that Adams has made assertions regarding his trial counsel’s ability to provide adequate representation: namely, that his trial counsel was 91 years old, that he drank an alcoholic beverage during lunch each day of his three-day trial, and that he was so ill and hard of hearing that he could not effectively advocate for him at trial. However, Adams did not specifically enumerate these issues as error, and he cites to no legal authority supporting his argument in his brief. Thus any claim of error arising from these issues has been deemed abandoned. See Court of Appeals Rule 25 (c). Further, we note that even if properly enumerated, we would be constrained to find that the trial court did not abuse its discretion in denying the motion for new trial on this ground. The trial court noted in its order denying Adams’ motion for new trial that

[a] t first blush, this case seems destined for a new trial. . .. However, upon consideration, the [c]ourt does not find that a new trial is warranted in this case. Defendant’s trial attorney vigorously and thoroughly cross-examined the State’s witnesses and numerous photographs were placed in evidence during the trial. Defendant’s trial attorney never appeared to be impaired during or not participating in the proceedings. While Defendant’s trial attorney was certainly hard of hearing, [he] never hesitated to advise the [c]ourt when he could not hear and, with the [c]ourt’s permission, spent much of the trial standing next to the witness stand to make sure that he did not miss any of the proceedings.

This Court gives deference to the factual findings of the trial court, which are to be upheld unless they are clearly erroneous. Dulcio v. State, 292 Ga. 645, 650 (3) (740 SE2d 574) (2013). Because Adams did not properly enumerate these issues as error, and because there is some evidence in the record to support the trial court’s finding, we find that no reversible error exists on these grounds.

(b) Without citing to any pertinent legal authority, Adams contends that his trial counsel was ineffective for failing to properly cross-examine Gillings. We discern no error.

Adams first argues that his trial counsel did not adequately cross-examine Gillings with regard to supposedly inconsistent statements he made regarding the crime scene. Specifically, Adams notes that Gillings explained that his apartment was “directly across” from the burglarized apartment, when his apartment was really diagonally across from the apartment. Adams further contends that his trial counsel should have cross-examined Gillings regarding his testimony that he shot at the men because he saw the heavier-set man reach for his gun as he descended the back staircase of the apartment breezeway. Adams argues that because of the layout of the apartment’s breezeway, it would be impossible for Gillings, who was positioned at the front stairway, to see the waist of anyone located on the rear stairway when he noticed the gun being drawn, unless that person were walking backwards. Adams speculates that additional cross-examination as to these issues would have tended to make Gillings less credible to the jury.

Adams further argues that his trial counsel was ineffective for failing to cross-examine Gillings regarding statements he made during his taped police interview that were inconsistent with his testimony at trial, namely his description of the attire of the two perpetrators and Adams’ explanation to him regarding his presence in the breezeway.

At the motion for new trial hearing, trial counsel testified that his primary focus in the trial was to attack Gillings’ credibility and his perception of the events. Although at the motion for new trial hearing trial counsel consistently stated that he did not remember what questions he asked Gillings or why he chose to ask the questions he did, a thorough review of the trial transcript reveals that Adams’ attorney conducted an adequate cross-examination of Gillings. During his cross-examination of Gillings, Adams’ trial counsel brought out several statements that Gillings had made during his taped police interview that were inconsistent with his trial testimony. “The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” (Footnote omitted.) Simpson v. State, 277 Ga. 356, 359 (4) (b) (589 SE2d 90) (2003). Although Adams contends that a more thorough cross-examination of Gillings would have revealed more inconsistencies in his testimony that would tend to make him, as the sole witness to the shooting, less credible, “[t]he test regarding effective assistance of counsel is to be not errorless counsel, and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance.” (Citation and punctuation omitted.) Smith v. State, 309 Ga. App. 241, 247 (3) (b) (709 SE2d 823) (2011). Applying this test, we cannot say that the trial court abused its discretion in denying a new trial on this ground.

(c) Adams next contends, in the same compound enumeration of error, that his trial counsel rendered ineffective assistance by failing to conduct an adequate cross-examination of Burton and Robinson, the occupants of the apartment. Adams argues that a more thorough cross-examination of the women would have revealed “helpful” information regarding the size and weight of items stolen from their home that could have demonstrated that it would have been difficult for the second perpetrator to carry away the stolen items and to reach for a gun at the same time. Although trial counsel did not cross-examine Burton, her testimony at trial revealed that she never reported any missing belongings to the police. Despite Adams’ contentions, his trial counsel did elect to cross-examine Robinson about the items stolen and why she failed to make an immediate report of stolen items to the police. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Lawrence v. State, 274 Ga. 794, 795 (3) (560 SE2d 17) (2002). Furthermore, “[decisions about what questions to ask on cross-examination are quintessential trial strategy.” (Citation omitted.) Payne v. State, 289 Ga. 691, 697 (3) (b) (715 SE2d 104) (2011). In light of the fact that trial counsel did, in fact, cross-examine Robinson regarding the items stolen, and that Burton testified that nothing of hers had been stolen, we find no error.

(d) Without providing any citations to any relevant legal authority, Adams argues that his trial counsel was ineffective because “he delegated the responsibility of choosing the jurors during jury selection” to Adams. Voir dire in this case was not transcribed, such that the only evidence of what transpired came from testimony at the hearing on Adams’ motion for new trial. At the motion hearing, Adams’ trial counsel testified that he conferred with Adams when deciding whether to strike each juror. He testified that he did so because Adams “has a higher right to determine which ones should stay and which ones should go, and I delegate that responsibility to him, and if he is neutral, then I step in.”

Even if we assume that trial counsel’s conduct in this regard constitutes ineffective assistance of counsel, Adams has not shown by the record that “but for such deficiency, there is a reasonable probability that the outcome of [his] trial would have been different.” (Citation omitted.) Waits v. State, 282 Ga. 1, 5 (4) (644 SE2d 127) (2007). See Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012) (“The likelihood of a different result must be substantial, not just conceivable”) (citation omitted). Adams does not assert that anything harmful or prejudicial transpired during voir dire, and he does not claim that, had he been fully assisted by his trial counsel in striking jurors, the outcome of his trial would have been different. Accordingly, Adams’ “speculation that error may have occurred [during jury selection] is insufficient to show any . . . prejudice . . . and is insufficient to show any reversible error.” (Citation and punctuation omitted.) Brinkley v. State, 320 Ga. App. 275, 280 (4) (739 SE2d 703) (2013). Further, because there is no transcript of the voir dire or the jury selection process in the appellate record, “we must assume that the ruling of the trial court is supported by the evidence.” (Punctuation and footnote omitted.) Code v. State, 255 Ga. App. 432, 433 (2) (565 SE2d 477) (2002). Accordingly, we find no error.

Decided July 10, 2013.

Lawrence Lewis, for appellant.

Daniel J. Porter, District Attorney, Justin D. Unger, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       We note that failing to request that voir dire be reported is not error. Although objections and rulings thereon made during jury selection are required to be reported and made part of the trial record, there is no requirement that the entire jury selection be reported and made part of the record in a non-death-penalty felony case. State v. Graham, 246 Ga. 341, 342-343 (271 SE2d 627) (1980). See OCGA § 5-6-41 (d). Trial counsel may request that the entire jury selection process be reported and made part of the record, but it is within the broad range of professional conduct and no basis for an ineffective assistance claim if counsel does not do so in a non-death-penalty case. Dunlap v. State, 291 Ga. 51, 53 (3) (727 SE2d 468) (2012).


author: MCFADDEN, Judge.

text:
    A13A0718, A13A0719.
    REYNOLDS et al. v. CLARK; and vice versa.
    (746 SE2d 266)
   MCFADDEN, Judge.

This appeal and cross-appeal are from a trial court’s award of attorney fees pursuant to OCGA § 9-15-14. But because the trial court’s order fails to specify whether the award was made under subsection (a) or (b) of the statute and the specific conduct upon which the award was based, and because the evidence as to the actual costs and reasonableness of those costs was lacking, we vacate the order and remand the case for reconsideration.

The final judgment in the underlying case was affirmed by this court in an unpublished opinion, Clark v. Reynolds, 316 Ga. App. XXVI (July 2, 2012), which set forth the following facts.

This litigation arose out of a dispute between H. J. Clark and Theron Reynolds (“Reynolds”), who had a business arrangement reselling equipment, vehicles, and scrap metal. Clark brought claims against Reynolds . . . for conversion, intentional interference with property rights, and replevin. He sought injunctive relief, damages, attorney fees, and punitive damages. Reynolds answered and counterclaimed, alleging breach of contracts for the purchase of land, conversion, and identity theft. Any & All Metal Recycling, LLC filed an unopposed motion to intervene and asserted claims against Clark for conversion, a partnership accounting, and unauthorized use of its sales tax number. The case was tried to a jury; the trial court directed a verdict as to Clark’s claims for interference with property rights, conversion, attorney fees, punitive damages, and most of his claims for replevin. The jury returned a verdict in favor of Clark and against Reynolds and Any & All Metal Recycling on all remaining claims, but it declined to award attorney fees to any party, and judgment was entered by the trial court.

(Punctuation and footnote omitted.)

Clark appealed from the final judgment, and while that appeal was pending in this court, the trial court ruled on Clark’s motion for OCGA § 9-15-14 attorney fees, granting it in part and denying it in part. Clark filed an application for discretionary review of that order, and we granted the application because a post-judgment award of attorney fees may be appealed directly without regard to the discretionary appeal procedures where there is a pending appeal taken from the underlying judgment. See Rolleston v. Huie, 198 Ga. App. 49, 51-52 (4) (400 SE2d 349) (1990). However, Clark’s appeal on the attorney fees issue, as well as a cross-appeal by Reynolds and Any & All Metal Recycling on that issue, were subsequently remanded to the trial court because, while the trial judge had signed the attorney fees order prior to his resignation from the bench, the order was not filed until after the resignation became effective and was therefore void. On remand, another judge ruled on Clark’s motion and entered an order that was essentially a verbatim copy of the prior judge’s order, awarding Clark $44,320 in attorney fees, “applicable jointly to Defendant Theron Reynolds and the Intervenor [Any & All Metal Recycling] only.” The new judge also found in his order that defense counsel had not been omitted from the prior judge’s order by oversight or scrivener error. Reynolds and Any & All Metal Recycling appeal, challenging the trial court’s award of attorney fees under OCGA § 9-15-14; and Clark cross-appeals, arguing that defense counsel should have been included in the prior attorney fees award.

1. OCGA § 9-15-14.

Pursuant to OCGA § 9-15-14 (a), the trial court shall award attorney fees when a party asserted a claim, defense or other position with “such a complete absence of any justiciable issue of law or fact” that the party could not reasonably have believed that the court would accept it. We affirm an award under subsection (a) if there is any evidence to support it. Bankhead v. Moss, 210 Ga. App. 508, 509 (1) (436 SE2d 723) (1993). Pursuant to OCGA § 9-15-14 (b), the court may award attorney fees if a party brought or defended an action that “lacked substantial justification” or “was interposed for delay or harassment, or if [the court] finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct.” We review a subsection (b) fee award for abuse of discretion. Bankhead, supra.

[W]hen a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA § 9-15-14, it is incumbent upon the court to specify the conduct upon which the award is made. ... [A] judgment devoid of such findings must be vacated and the case must be remanded for reconsideration. Furthermore, an order awarding attorney fees pursuant to this statute must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).

Woods v. Hall, 315 Ga. App. 93, 97 (2) (726 SE2d 596) (2012) (citation, punctuation and emphasis omitted).

In this case, although the trial court concluded that a fee award was proper under OCGA § 9-15-14, the court failed to state specifically whether the award was made under subsection (a) or (b). Moreover, the trial court’s order, primarily a verbatim copy of the prior judge’s untimely-filed order, refers to deficiencies in the defense evidence at trial, but it fails to specify the conduct upon which the award was based. At best, the trial court’s “purported finding[s are] entirely too vague and conclusory to permit any meaningful appellate review of the award of attorney fees and expenses of litigation under OCGA § 9-15-14.” Ga. Dept. of Transp. v. Douglas Asphalt Co., 295 Ga. App. 421, 424 (1) (671 SE2d 899) (2009) (citation and punctuation omitted).

Furthermore, “an award of attorney fees and costs under Georgia law can only be authorized if there is sufficient proof of the actual costs and the reasonableness of those costs.” Dave Lucas Co. v. Lewis, 293 Ga. App. 288, 293 (5) (666 SE2d 576) (2008) (citation omitted). In this case, Clark’s attorney stated that he did not file the lawsuit and “only came into this case about three weeks before it was tried.” He filed an exhibit showing the hours he had spent on the case and other expenses totaling $48,424.88. However, it is apparent from the time sheet, and counsel in fact acknowledged, that he failed to separate the portion of his time spent preparing and presenting Clark’s claims and the time spent defending against the claims of Reynolds and Any & All Metal Recycling. Counsel further admitted that the time sheet included time spent on an unsuccessful motion for new trial. In fact, the exhibit merely summarized time spent on such things as “meeting] with client,” conducting “legal research” and “trial prep.” Such a “summary is particularly inadequate in view of [the directed verdicts as to a number of Clark’s] claims at the trial.” Dave Lucas Co., supra. Evidence must be presented from which the trial court can determine what portion of the total amount of attorney time and litigation expenses was attributable to the pursuit or defense of claims for which attorney fees are recoverable and what portion of the attorney’s time was spent on matters that are not recoverable. Id. at 293-294 (5); Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 738-739 (1) (458 SE2d 711) (1995).

Decided July 10, 2013.

William S. Hardman, for appellants.

Gary C. Harris, for appellee.

Based on the trial court’s deficient order and the inadequate evidence of attorney fees incurred, the trial court’s fee award must be vacated and the case remanded for further findings.

2. In light of our holding above in Division 1, “it is unnecessary to address the remaining issues in the appeal and the cross-appeal.” Citadel Corp., supra at 739 (2).

Judgment vacated and case remanded with direction.

Doyle, P. J., and Boggs, J., concur.


author: McFADDEN, Judge.

text:
    A11A0719.
    AMERICAN HOME SERVICES, INC. v. A FAST SIGN COMPANY, INC.
    (747 SE2d 205)
   McFADDEN, Judge.

This is an appeal from the judgment entered in class action litigation involving the Telephone Consumer Protection Act of 1991, 47 USC § 227 (“TCPA”). In October 2003, A Fast Sign Company, Inc. d/b/a Fastsigns (“Fastsigns”) filed a class action complaint against American Home Services, Inc. (“AHS”), alleging that AHS had violated the TCPA by sending unsolicited facsimile advertisements to fax machines. The trial court certified the proposed class, and we affirmed that certification. American Home Svcs. v. A Fast Sign Co., 287 Ga. App. 161 (651 SE2d 119) (2007).

The trial court then granted partial summary judgment to Fastsigns. The court found that the evidence was undisputed that AHS contracted with Sunbelt Communications, Inc. to send 318,000 fax advertisements to fax machines belonging to businesses and individuals throughout metro Atlanta. The court found that AHS sent six particular faxes that were actually received, but that whether AHS sent other faxes was an issue of fact. It held that AHS’s violation of the TCPA was wilful and knowing. It also held that the businesses with which AHS had an established business relationship, which can be a defense to allegations of a TCPA violation, had been removed from the class, so that the established business relationship defense was not in issue. Finally, the court held that the class was entitled to an award of attorney fees, the amount of which would be determined later.

The court then conducted a bench trial to determine the number of faxes sent, ultimately determining that AHS had sent 306,000 unsolicited fax advertisements to fax machines. Based on that finding, the court entered judgment against AHS for $459 million, calculating the award by multiplying 306,000 by $1,500, the statutory amount of damages per knowing or wilful violation of the TCPA. AHS appealed, and in American Home Svcs. v. A Fast Sign Co., 310 Ga. App. 315 (713 SE2d 396) (2011), we vacated the judgment and remanded, holding that the trial court erroneously entered judgment based on the number of fax advertisements sent, rather than the number received. Id. at 317-318 (1). The Supreme Court granted Fastsigns’ petition for certiorari and reversed our judgment, holding that under the TCPA, “a sender is liable for the unsolicited advertisements it attempts to send to fax machines, whether or not the transmission is completed or received by the targeted recipient.” A Fast Sign Co. v. American Home Svcs., 291 Ga. 844, 847 (734 SE2d 31) (2012). The Supreme Court remanded the case for our consideration of AHS’s remaining enumerations of error, which we had not addressed given our ruling vacating and remanding the judgment. Id. at 847-848. We now vacate our opinion, adopt the Supreme Court’s opinion as our own, and address AHS’s remaining enumerations of error.

AHS argues that the evidence does not support the judgment. We find that some evidence supports the judgment. Nonetheless, the judgment must be vacated and the case remanded because the judgment does not exclude fax recipients who were excluded from the class, and it does not comply with OCGA § 9-11-23 (c) because it does not describe the class. Since the evidence presented at the bench trial is sufficient to support the judgment, we conclude that any trial court error regarding an alleged admission in judicio and the application of a negative spoliation inference was harmless. We also hold that “willful or knowing” as used in the TCPA means that the violator knew that he was doing the act in question, even if he did not know his act was a violation of the statute. We hold that the trial court did not err by requiring AHS to prove any established business relationships in order to invoke the established business relationship defense. We reject AHS’s argument that the trial court granted the claimants a windfall recovery in excess of the statutory maximum amount of damages. Finally, we decline to address AHS’s argument that the judgment violates the common law and constitutional due process.

1. Evidence supports the judgment, but the judgment does not exclude fax recipients who were excluded from the class, and it does not comply with OCGA § 9-11-23 (c) (3).

(a) Some evidence supports the trial court’s judgment regarding the sending of faxes.

In a bench trial, as here, the trial court sits as the trier of fact and the court’s findings will not be set aside unless clearly erroneous. Since the clearly erroneous test is the same as the any evidence rule, an appellate court will not disturb the factual findings of the trial court when there is any evidence to sustain such findings. .

Brandenburg v. All-Fleet Refinishing, 252 Ga. App. 40, 41 (555 SE2d 508) (2001) (citation omitted). “[T]his holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them.” Roscoe v. State, 286 Ga. 325, 327 (687 SE2d 455) (2009) (citation omitted).

Fastsigns introduced into evidence the five contracts AHS entered with Sunbelt for Sunbelt to send 318,000 fax advertisements over the course of ten months. It introduced the testimony of Wendell Driver, the founder of AHS, who said that he assumed the faxes had been sent and that he had no reason to think otherwise. Driver testified that AHS received business because of the fax advertisements and that he thought the faxes were effective. Driver also testified that AHS paid Sunbelt in accordance with the contracts. Driver testified that AHS never provided Sunbelt with anything in writing from any potential recipients authorizing the sending of the fax advertisements and that he did not deny that all faxes sent on behalf of AHS were unsolicited by the recipients.

Fastsigns’ computer expert testified that he was familiar with Sunbelt’s operations from his work in a number of cases involving Sunbelt. He had examined the hard drives from Sunbelt’s computers in Atlanta, and determined that the fax log files intentionally had been deleted and purged. But he was able to retrieve from the hard drives Sunbelt’s database of fax numbers, and based on his experience with Sunbelt, he was confident that those were the numbers to which Sunbelt sent faxes on behalf of AHS. The expert testified that Sunbelt had the capacity and capability to fulfill the contracts it had entered with AHS. He also testified that Sunbelt’s standard business practice was not to obtain permission from potential recipients before sending faxes. Finally, he testified that based on his experience with Sunbelt, in his opinion it was “much more likely than not” that Sunbelt had fulfilled its contracts with AHS. Fastsigns previously had introduced at the summary judgment stage the affidavits of six class members, who testified that they had received AHS faxes. This is some evidence to support the trial court’s judgment.

(b) Any trial court error regarding an alleged admission in judicio and the application of a spoliation negative inference was harmless.

AHS argues that the trial court erred in relying on what it found to be an admission in judicio in reaching its judgment. It argues that the trial court also erred in relying on a negative inference because of Sunbelt’s spoliation of evidence. We conclude that any error was harmless.

In the “statement of material facts” section of its brief to this court in the class certification appeal, AHS wrote that, “On behalf of AHS, Sunbelt sent approximately 306,000 fax advertisements to potential customers in the Atlanta area.” AHS argues that the trial court erred in treating this statement as an admission in judicio and in relying on it in making its factual finding that AHS sent 306,000 faxes. It argues that the trial court also erred in applying to it a negative inference because of Sunbelt’s spoliation of evidence, the fax logs. But given the trial court’s explicit finding that the evidence admitted at trial showed that it was more likely than not the unsolicited faxes had been sent to fax machines, any error in its reference to the alleged admission in judicio and the spoliation inference is harmless. “An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.” In the Interest of S. N. H., 300 Ga. App. 321, 329 (4) (685 SE2d 290) (2009) (citation and punctuation omitted).

(c) Nonetheless, the judgment must be vacated because it does not take into account those recipients excluded from the class and it does not comply with OCGA § 9-11-23.

As noted above, Fastsigns introduced evidence that AHS sent 318,000 faxes. The trial court found that the evidence showed AHS sent 306,000 faxes. (AHS does not complain about this discrepancy, which is in its favor.) But the trial court’s judgment does not appear to take into account those fax recipients who were excluded from the class: 375 persons with whom AHS had established business relationships, the judges of all trial and appellate courts in the state of Georgia and an undetermined number of AHS and Sunbelt employees and agents. No evidence was presented at the bench trial on these numbers.

Further, OCGA § 9-11-23 (c) (3) required the trial court to describe in the judgment the members of the class, but it did not. Accordingly, as Fastsigns concedes, the judgment does not comply with OCGA § 9-11-23 (c).

For these reasons, the judgment must be vacated. The trial court must determine and then exclude from its calculation those fax recipients who were excluded from the class. It then must re-enter the judgment in accordance with OCGA § 9-11-23 (c) (3). Jones v. Forest Lake Village Homeowners Assn., 304 Ga. App. 495, 500-501 (1) (c) (696 SE2d 453) (2010).

2. The meaning of “willful or knowing” in the TCPA.

The TCPA provides for recovery of either actual damages or $500 per violation, but allows a court “in its discretion” to increase the award up to a maximum of treble damages if the defendant “willfully or knowingly violated” the statute. 47 USC § 227 (b) (3). “Willfully’ and “knowingly’ are not defined in the TCPA.

AHS argues that, in order to impose treble damages, the trial court was required to find that it knew that its actions violated the TCPA, not simply that it wilfully or knowingly sent the faxes. The FCC, in interpreting another provision of the TCPA, has held that “ ‘[wjillful’ in this context means that the violator knew that he was doing the act in question.... A violator need not know that his action or inaction constitutes a violation; ignorance of the law is not a defense or mitigating circumstance.” In re Dynasty Mortgage, 22 FCC Rcd 9453, 9470, n. 86 (citations omitted). “[T]he interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.” Center for a Sustainable Coast v. Coastal Marshlands Protection Comm., 284 Ga. 736, 741 (2) (670 SE2d 429) (2008) (citation and punctuation omitted).

Other courts have held the same. See Stewart v. Regent Asset Mgmt. Solutions, 2011 U. S. Dist. LEXIS 50046 (N.D. Ga. 2011); Sengenberger v. Credit Control Svcs., 2010 U. S. Dist. LEXIS 43874 (N.D. Ill. 2010); Charvat v. Ryan, 879 NE2d 765, 770-771 (Ohio 2007) (concluding that knowledge of the TCPA is not required to find either a wilful or knowing violation in support of treble damages). See also Cox v. Garvin, 278 Ga. 903, 906 (607 SE2d 549) (2005) (ininterpreting the term “willfully’ in the context of securities statutes, Supreme Court of Georgia declined “to adopt a requirement that the person intended to violate the law; the key is that the person intended to do the act prohibited by statute”; court found that its interpretation was in accordance with agency’s interpretation, the interpretations of other state courts, and the remedial purpose of the statutes).

We conclude that a plaintiff “need not prove that the defendant had knowledge of the TCPA’s provisions in order to establish that the defendant willfully or knowingly violated the TCPA.” Stewart, 2011 U. S. Dist. LEXIS 50046 at *19. AHS admitted that it hired Sunbelt to send advertising faxes on its behalf. This is sufficient to make the violation “willful” within the meaning of the statute. See Sengenberger, 2010 U. S. Dist. LEXIS 43874 at *17.

3. The burden of proving an established business relationship.

AHS argues that the trial court erred by requiring it to prove that it had an established business relationship with the fax recipients instead of requiring Fastsigns to prove that AHS did not have an established business relationship with the fax recipients. In its order granting Fastsigns partial summary judgment, the trial court found that AHS had not provided any evidence establishing a triable issue on the established business relationship defense, noting that all entities for whom AHS had records or knowledge of an established business relationship had been excluded from the class.

In its brief to this court in the class certification appeal, AHS argued that class certification was inappropriate because Fastsigns had not excluded all proposed class members who had an established business relationship with AHS, but only those with a documented established business relationship. AHS asserted in its brief that this argument did not go to the burden of proof on the issue, but rather only to the issue of class certification. But the issue regarding the burden of proof was encompassed within AHS’s argument: it essentially argued that Fastsigns had the burden of proving with whom AHS had established business relationships, so that those individuals could be excluded from the class. Absent such proof, AHS argued, the proposed class lacked commonality and it was error to certify it.

In our opinion affirming the class certification, we rejected that argument. American Home Svcs., 287 Ga. App. 161. Relying on a recent clarification of the Federal Communications Commission, we held “that an advertiser seeking to invoke the established business relationship exemption to TCPA liability bears the burden of demonstrating the existence of any such established business relationship.” Id. at 163 (citing Rules and Regulations Implementing the Telephone Consumer ProtectionAct of 1991, 71 FR 25967-01 (May 3, 2006)). We affirmed the certification of the class, which excluded those with whom AHS had shown an established business relationship, implicitly rejecting the argument that AHS makes here. This is the law of the case, and we are bound by it. OCGA § 9-11-60 (h) (“[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case maybe.”). We observe that the holding is consistent with the principle that “the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits.” Fed. Trade Comm. v. Morton Salt Co., 334 U. S. 37, 44-45 (I) (68 SCt 822, 92 LE 1196) (1948).

4. The judgment did not grant a windfall recovery in excess of the statutory maximum amount of damages.

AHS argues that the judgment must be reversed because it awards damages exceeding the statutory maximum of $1,500 per knowing or wilful violation. 47 USC § 227 (b) (3). We agree that 47 USC § 227 (b) (3) permits a person or entity to recover no more than $1,500 in damages for each wilful and knowing violation. But we do not agree that the judgment, as entered, awards persons or entities, other than the class representative, more than that amount. The trial court awarded $45,000 to the class representative and then held that, after fees and expenses had been deducted, “[a]ll remaining sums shall be distributed equally to the remaining class members of the certified class.” Contrary to AHS’s argument, the court did not “award[ ] claimants equal shares in a $459,000,000 fund”; it awarded class members an equal share in the class fund after the distribution to the class representative and the payment of attorney fees and costs. In other words, the court did not order that all the remaining sums would be distributed equally among those class members who made a claim, simply that it would be distributed among all members of the class. It is of course likely that not all class members will make a claim, thereby leaving undistributed amounts in the class fund. The trial court’s judgment did not address this contingency — which has not yet occurred — and therefore it is not before us in this appeal.

5. Common law and due process.

AHS argues that the judgment is excessive and violates the common law. But this is a statutory proceeding, and AHS does not explain how the common law overrides the statute. It also argues that the judgment violates due process. We will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point. Atlanta Independent School System v. Lane, 266 Ga. 657 (1) (469 SE2d 22) (1996); Ogletree v. State, 211 Ga. App. 845, 846 (1) (440 SE2d 732) (1994). AHS does not point to any trial court ruling on this issue.

Judgment vacated and case remanded.

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

Decided July 11, 2013

Taylor, Fell, Harper, Lumsden & Hess, Otto F. Fell III, Celeste McCollough, for appellant.

Weissman, Nowack, Curry & Wilco, Ned Blumenthal, Roy E. Barnes, Marc B. Hershovitz, Michael K. Jablonski, for appellee.


author: ANDREWS, Presiding Judge.

text:
    A13A0355.
    THE STATE v. GRAVES.
    (746 SE2d 269)
   ANDREWS, Presiding Judge.

The State appeals from the trial court’s grant of a new trial to Levi David Graves after he was convicted of one misdemeanor count of “loitering or prowling” in violation of OCGA § 16-11-36. For the following reasons, we vacate the court’s order granting a new trial and remand.

Graves was charged with two counts of violating OCGA § 16-11-36 arising out of the same conduct. After a bench trial, Graves was found guilty of (Count 1) “loitering or prowling” in violation of OCGA § 16-11-36 by engaging in the following conduct: “masturbating while driving a motor vehicle in a residential area.” In the same trial, Graves was found not guilty of (Count 2) “loitering or prowling” in violation of OCGA § 16-11-36 by engaging in the following conduct: “masturbat [ing] in the presence of another while driving in a residential area.” In both counts, the State alleged that Graves’s conduct violated the “loitering or prowling” statute because, as set forth in the statute, he was “in a place ... in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons... in the vicinity.” OCGA § 16-11-36 (a).

In support of the allegations, the State produced the following evidence: Graves was seen by an adult female jogger driving his car slowly through a residential area while using one hand to apparently masturbate underneath his pants without exposing himself. The jogger testified that, as a man drove slowly alongside and then past her, she saw his hand moving up and down inside his pants in his private area in a manner that looked like he was masturbating; that he had “an expression of pleasure” on his face; and that she thought he might be propositioning her. The jogger said that, when the man saw her disgusted facial expression, he drove past her, then turned around in a cul-de-sac and drove past her again out of the area as she took note of his tag number. The jogger testified that seeing the man engage in this conduct left her scared and afraid to run in the neighborhood, and caused her to be alarmed and concerned for the safety of people in the vicinity, especially teenagers and children.

About an hour after the incident, the jogger reported it in a 911 call, got no response from police, and later reported the incident to the district attorney’s office. Three days after the jogger reported the incident, a sheriff’s deputy used the reported tag number to locate Graves and interview him. Graves initially denied driving in the area of the incident, but then admitted to the officer that he had been masturbating under his pants while driving in the area of the reported incident. But Graves claimed he was doing so in the privacy of his car and was not masturbating at the jogger.

Sitting as the trier of fact, the trial court found that Graves did not intend to follow the jogger — finding rather that “they were both in the wrong place at the wrong time.” Accordingly, the trial court found Graves not guilty of the charge in Count 2 that he was “loitering or prowling” in violation of OCGA § 16-11-36 by “masturbat[ing] in the presence of another while driving in a residential area.” Nevertheless, the court found that Graves’s conduct was alarming to the jogger, and found him guilty of the charge in Count 1 that he was “loitering or prowling” in violation of OCGA § 16-11-36 by “masturbating while driving a motor vehicle in a residential area.”

After the trial court entered a judgment of conviction on the guilty verdict, Graves filed an “amended motion for new trial” in which he sought a new trial on three grounds:

(1) the State’s failure to show that Defendant’s conduct of “masturbating while driving in a residential area” rises to the level of Loitering or Prowling as defined in [OCGA § 16-11-36]; (2) the Code section [OCGA § 16-11-36], as applied to Defendant’s conduct, is [unconstitutionally] vague; and (3) the State’s failure to show that law enforcement complied with subsection (b) of [OCGA § 16-11-36] requiring that Defendant be given the opportunity to dispel any alarm or immediate concern.

The trial court denied the motion for new trial on the asserted grounds that OCGA § 16-11-36 was unconstitutionally vague and that the State failed to show compliance with subsection (b) of the statute. But the court entered an order granting the motion, vacating the j udgment of conviction, and granting a new trial on the ground that the State failed to show that “Defendant’s conduct of driving while masturbating in a residential area rises to the level of Loitering or Prowling as defined in OCGA § 16-11-36 (a).”

The portion of Graves’s “amended motion for new trial” granted by the trial court was, in substance, a claim that the accusation was fatally defective because Graves could admit the allegation that he was “masturbating while driving a motor vehicle in a residential area” and still be innocent of the charge that, by this conduct, he violated the loitering or prowling statute set forth in OCGA § 16-11-36. State v. Eubanks, 239 Ga. 483, 485-486 (238 SE2d 38) (1977). This was a claim that could only be made by a pre-trial general demurrer or by a motion in arrest of judgment after conviction. Parks v. State, 246 Ga.App. 888, 889 (543 SE2d 39) (2000); Eubanks, 239 Ga. at 485. A motion for a new trial is not a viable procedural substitute for a motion in arrest of judgment. Abreu v. State, 206 Ga. App. 361, 363 (425 SE2d 331) (1992); Frady v. State, 212 Ga. 84, 85 (90 SE2d 664) (1955). In Abreu, we found that the issue of whether an indictment was defective could not be considered in the trial court by motion for new trial, and that, because the issue was not properly raised in the trial court, it presented nothing for this Court to review on appeal. Id. at 363. Accordingly, we do not reach the issue of whether the accusation on which Graves was convicted was fatally defective. Because the trial court lacked authority to consider or grant a claim seeking to arrest the judgment of conviction brought before the court in the motion for new trial, we find that the portion of the court’s order granting Graves’s motion was void and must be vacated. We remand the case to the trial court with directions to: (1) vacate the portion of its order granting Graves’s amended motion for new trial; (2) dismiss the portion of Graves’s amended motion for new trial which, in substance, seeks an order arresting the judgment of conviction; and (3) reinstate the judgment of conviction. See Foskey v. State, 229 Ga. App. 209 (493 SE2d 595) (1997).

Decided July 11, 2013.

Sandra N. Wisenbáker, Solicitor-General, Amy B. Godfrey, Assistant Solicitor-General, for appellant.

Miller & Brown, John B. Miller, Christopher D. Brown, for appellee.

Judgment vacated and case remanded.

Dillard and McMillian, JJ., concur.

       OCGA § 16-11-36, captioned “Loitering or prowling,” provides in relevant part:
      (a) A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
      (b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise he warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

       Graves took no appeal from the denial of his motion on these grounds.

       In the absence of a pre-trial general demurrer or a timely filed post-conviction motion in arrest of judgment, habeas corpus is the only post-conviction method to assert that the accusation was defective. Harris v. State, 258 Ga. App. 669, 671 (574 SE2d 871) (2002).

       The State purports to appeal pursuant to OCGA § 5-7-1 (a) (7) from the trial court’s order granting Graves’s amended motion for new trial. In substance, the court’s order granting the motion arrested the judgment of conviction, but it did so by improperly considering that claim for relief as part of the motion for new trial. The State’s appeal was not pursuant to OCGA § 5-7-1, but pursuant to its right to appeal directly from a void or illegal judgment. State v. James, 211 Ga. App. 149 (438 SE2d 399) (1993).


author: Ellington, Presiding Judge.

text:
    A13A0633.
    BROOKS PEANUT COMPANY, INC. v. GREAT SOUTHERN PEANUT, LLC.
    (746 SE2d 272)
   Ellington, Presiding Judge.

Brooks Peanut Company, Inc. (“Brooks Peanut”) appeals from an order of the Superior Court of Lee County granting summary judgment to Great Southern Peanut Company, LLC (“GSP”) on Brooks Peanut’s claims for breach of contract, promissory estoppel, negligent misrepresentation, fraud, and attorney fees arising out of a commodities transaction. The superior court found that GSP’s alleged promise to sell peanuts to Brooks Peanut was unenforceable under the Statute of Frauds, OCGA § 11-2-201. Brooks Peanut also appeals from the order denying its motion to compel arbitration. For the following reasons, we reverse the court’s grant of summary judgment to GSP; however, we affirm the court’s order denying Brooks Peanut’s motion to compel arbitration.

1. Brooks Peanut contends that it produced evidence showing that a writing sufficient to satisfy the Statute of Frauds exists; therefore the trial court erred in concluding that GSP’s Statute of Frauds defense bars Brooks Peanut’s claims as a matter of law. We agree.

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. On appeal from the grant or denial of summary judgment, we conduct a de novo review, construing the evidence and all reasonable inferences most favorably to the nonmoving party.

(Citation and punctuation omitted.) Daniel Mill, LLC v. Lyons, 283 Ga. App. 604, 605 (642 SE2d 226) (2007). So viewed, the record reveals the following relevant facts.

Brooks Peanut is a peanut shelling company operating in Samson, Alabama. GSP is a competing peanut sheller located in Lee County, Georgia. Because there is no established peanut commodities market, peanut shellers and other businesses handling peanut products often use brokers to buy and sell peanuts. Typically, the broker’s fee is paid by the seller. The commodities transaction at issue in this case was brokered by Mazur & Hockman, Inc. (“M & H”). Brooks Peanut and GSP have both used M & H, as well as other brokers, to buy and sell peanut products on their behalf.

In mid-September 2010, Barrett Brooks, president of Brooks Peanut, called Richard Barnhill and Jay Strother, peanut brokers with M & H, and asked them to find peanuts for his company to buy and to have delivered to his shelling facility. Brooks requested that Brooks Peanut not be identified as the buyer when M & H contacted potential sellers. According to Brooks and Strother, that is not an unusual practice. M & H solicited offers from several peanut shellers, including GSP, and conveyed them to Brooks. After reviewing the offers, on September 20, Brooks asked Strother to communicate a counteroffer to GSP’s manager, Doug Wingate. Specifically, the counteroffer was an offer to buy 3,168,000 pounds of 2010 crop medium runner shelled peanuts for $.4675 per pound, to be delivered monthly throughout 2011.

According to Strother, Wingate accepted the counteroffer that same day, September 20. After Wingate accepted these terms, Strother revealed that Brooks Peanut was the buyer. According to Strother, Wingate “sighed” upon learning that a competitor was involved in the transaction; however, he did not reject the deal. Wingate testified that, although he initially accepted the deal, he declined to consummate it when he learned that Brooks Peanut was the buyer.

On the same day, M & H prepared and then faxed to GSP and Brooks Peanut a written confirmation of the sale of peanuts. The confirmation stated: “We confirm a Sale and Purchase Transaction as described below[.]” The confirmation was printed on M & H letterhead and listed the names and addresses of the seller and the buyer, as well as terms covering price, quantity, quality, crop year, delivery schedule, and payment method. Spaces for the seller’s contract number and the buyer’s purchase order number were left blank. The confirmation stated: “This confirmation is subject to the following condition [ ]: Seller’s contract and Buyer’s purchase order to follow [.]” Next to the term “Quality,” the confirmation noted that the “American Peanut Shellers Association Trading Rules” applied to the transaction. The confirmation was signed by M & H’s Strother.

GSP and Brooks Peanut each received the faxed confirmation from M & H. It is undisputed that GSP did not issue a contract and that Brooks Peanut did not issue a purchase order. After Strother sent the confirmation to GSP and Brooks Peanut, he continued communicating with the parties to finalize the logistics of the deliveries. For example, on September 21, he told Brooks that GSP had offered to haul the peanut loads. They also discussed increasing the monthly shipments, but Wingate stated that he wanted “to stay at 6 loads a month on the [B]rooks [Peanut] contract for right now[.]”

GSP did not raise any objection to the fax confirmation until late January 2011, almost four months after M & H sent it. Wingate testified that he “did not see the need” to object to the confirmation. Beginning in January 2011, GSP took the position that, despite the confirmation, GSP and Brooks Peanut had not entered into that particular transaction because Wingate had rejected the sale when he learned that it involved his company’s competitor, that M & H was not authorized to confirm the sale or to send the confirmation, and that a condition precedent had not occurred because GSP had not issued a written contract.

The evidence adduced shows that M & H had routinely brokered thousands of peanut sales between other peanut companies, shellers, and manufacturers using the same form of trade confirmation at issue here. Further, it is undisputed that GSP agreed to sell peanuts to Brooks Peanut in June 2009 and April 2010 and that such agreements were memorialized solely by M & H sending the parties confirmations that were substantially similar to the one at issue in this case.

The formal requirements of the Statute of Frauds in the context of Georgia’s Commercial Code appear in OCGA § 11-2-201, which corresponds to Section 2-201 of the Uniform Commercial Code. That Code section provides, in relevant part:

(1) Except as otherwise provided in this Code section a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) of this Code section against such party unless written notice of objection to its contents is given within ten days after it is received.

Section 2-201 (1) is the UCC’s general Statute of Frauds provision. Section 2-201 (2), sometimes referred to as the “merchant confirmation rule,” “the reply doctrine,” or the “merchant’s exception,” has somewhat modified requirements concerning oral agreements between merchants, primarily dispensing with the necessity of the confirmation recipient’s signature. As one treatise explains:

While § 2-201 (2) stands as an exception to the UCC’s general statute of frauds, § 2-201 (1), it is not entirely separate from that provision. The courts have generally held that the language in § 2-201 (1) to the effect that a writing relied upon to satisfy the statute of frauds must be “sufficient to indicate” a contract is equally applicable to § 2-201 (2), although there is authority to the contrary. Similarly, the condition stated in § 2-201 (1) to the effect that a contract is not enforceable under the code beyond the quantity stated in the writing used to overcome the statute of frauds has been expressly held applicable to § 2-201 (2), as well as by implication.

The record demonstrates that Brooks Peanut and GSP are merchants within the meaning of the UCC and that the transaction at issue is one “between merchants.” Thus, we resolve this claim of error with reference to both subsections (1) and (2) of OCGA § 11-2-201.

The confirmation in this case indicates that the parties entered into a transaction for the sale of a specific quantity of goods for a price exceeding $500 as required by OCGA § 11-2-201 (1). As the Supreme Court of Georgia has explained:

The required writing need not contain all the material terms of the contract and such material terms as are stated need not be precisely stated. All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction. . . . Only three definite and invariable requirements as to the memorandum are made by this subsection. First it must evidence a contract for the sale of goods; second, it must be “signed,” a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.

(Citation and punctuation omitted.) Harris v. Hine, 232 Ga. 183, 186 (1) (205 SE2d 847) (1974). The confirmation at issue also puts the recipient on notice that it confirms a prior oral agreement concerning the sale of goods sufficient to trigger a response by the recipient and, thus, is sufficient under OCGA § 11-2-201 (2).

GSP argues, however, that the confirmation is insufficient to show that the parties had reached a final agreement because it contains a condition that was not fulfilled, that is, that a seller’s contract was “to follow.” A formal, written agreement may be a condition precedent to the formation of a binding contract, when the parties so intend. When the parties intend to memorialize with a formal document an agreement that they have already reached, on the other hand, the execution of the document is not an act necessary to the creation of an enforceable contract. Johnson v. DeKalb County, 314 Ga. App. 790, 794-795 (1) (726 SE2d 102) (2012); Pourreza v. Teel Appraisals & Advisory, 273 Ga. App. 880, 883 (616 SE2d 108) (2005). In this case, there is no evidence that the parties intended the execution of the seller’s contract to be a condition precedent, especially since the parties had previously consummated deals using broker confirmations only.

The record also contains evidence showing the applicability of OCGA § 11-2-201 (2) in that GSP received the written confirmation within a reasonable time, given that the record shows that it was sent by fax and received on the same day that the oral agreement was allegedly reached. Further, GSP had reason to know of the confirmation’s contents, given that Wingate had been a party to the negotiations. And it is undisputed that GSP failed to object to the confirmation in writing within days.

GSP argues, however, that the confirmation was not “signed” by GSP or by its authorized agent or broker, and thus fails to satisfy the requirements of OCGA § 11-2-201 (1). It also argues that the confirmation was not “sufficient against the sender” within the meaning of OCGA § 11-2-201 (2) because it was not signed by Brooks Peanut or its authorized agent or broker. GSP argues that, because Brooks Peanut had taken the position at the outset of the litigation that M & H was GSP’s agent, not Brooks Peanut’s, then M & H could not have signed or sent the confirmation on behalf of Brooks Peanut. We disagree. There is at least a jury issue regarding whether M & H acted as Brooks Peanut’s agent, as GSP’s agent, or as an agent for both in brokering the sale and in signing and sending the confirmation.

OCGA § 10-6-1 provides: “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.”

Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. The existence of agency and the extent of the agent’s authority are questions of fact. A claim of agency may be proved, as any other fact, by circumstantial evidence. The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties. Direct evidence of an agency relationship is not required.

(Punctuation and footnotes omitted.) Southern Exposition Mgmt. Co. v. Genmar Indus., 250 Ga. App. 702, 704-705 (551 SE2d 830) (2001). Further, an agent may be a dual agent, serving two principals. See Merry Bros. Brick & Tile Co. v. Jackson, 120 Ga. App. 716, 719 (171 SE2d 924) (1969) (“[O]ne may be the servant of two masters and subject to the demands of both or either”) (citations omitted).

GSP argues that, under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), Brooks Peanut is bound to its initial position regarding M & H’s agency status. Under Prophecy, a trial court construing a party’s self-contradictory sworn testimony on a material fact should disregard the portions of that testimony that favor the party when deciding a motion for summary judgment, unless the party offers a reasonable explanation for the contradiction. Id. at 30 (2). The Prophecy rule, however, is inapplicable under these circumstances. First, there is no contradiction inherent in Brooks’ testimony that M & H was GSP’s agent and his testimony that M & H was Brooks Peanut’s agent, because an agent may be a dual agent. Further, the rule “applies only to self-contradictions in a party’s sworn testimony. It does not apply to unsworn statements, non-party witness testimony, or contradictions between a party’s testimony and another person’s testimony.” (Footnotes omitted.) CSX Transp., Inc. v. Belcher, 276 Ga. 522, 523 (1) (579 SE2d 737) (2003). In this case, the record contains documentary evidence as well as testimony from nonparty witnesses (M & H’s brokers) from which a jury may infer that M & H acted as GSP’s agent, Brooks Peanut’s agent, or as an agent for both in this transaction. Given these circumstances, the record contains evidence from which the factfinder could infer that the writing was signed by both, parties to the transaction through their agent and that the confirmation was signed by the sender’s agent such that it was sufficient against the sender. Consequently, GSP is not entitled to summary judgment based upon its Statute of Frauds defense, and the trial court’s order must be reversed.

2. Brooks Peanut contends that the trial court erred in entering judgment in GSP’s favor on its claims for promissory estoppel, negligent misrepresentation, fraud, and attorney fees. Because GSP is not entitled to summary judgment on the basis of the Statute of Frauds, for the reasons stated in Division 1, supra, the trial court’s order with respect to these claims must also be reversed.

3. Finally, Brooks Peanut contends that the trial court erred in denying its motion to compel arbitration. It argues that, because the M & H confirmation contains a reference to the American Peanut Shelters Association Trading Rules next to the term “Quality,” Brooks and GSP are bound by the arbitration provisions contained within those rules. We disagree.

“Arbitration is a matter of contract, meaning that arbitrators derive their authority to resolve disputes only from the parties’ agreement.” (Citation, punctuation and footnote omitted.) Doman v. Stapleton, 256 Ga. App. 383, 388 (1) (568 SE2d 509) (2002). Thus, “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” (Citation and punctuation omitted.) Krut v. Whitecap Housing Group, 268 Ga. App. 436, 442 (2) (c) (602 SE2d 201) (2004). “The question of arbitrability, i.e., whether an agreement creates a duty for the parties to arbitrate the particular grievance, is undeniably an issue for judicial determination.” (Citation, punctuation and footnote omitted.) Helms v. Franklin Builders, 305 Ga. App. 863, 864 (700 SE2d 609) (2010). Thus, we review the trial court’s order de novo, applying the ordinary rules of contract construction. SCSJ Enterprises v. Hansen & Hansen Enterprises, 319 Ga. App. 210, 212 (1) (734 SE2d 214) (2012).

In order to find merit in Brooks Peanut’s argument, we would have to hold not only that the confirmation at issue is a writing that satisfies the Statute of Frauds under OCGA § 11-2-201, but that the confirmation also constitutes, as a matter of law, an enforceable contract that contains an arbitration clause. See Dixie Aluminum Products Co. v. Mitsubishi Intl. Corp., 785 FSupp. 157, 160-161 (N.D. Ga. 1992) (Having found that a confirming document was the contract between the parties, the court concluded that all of the terms contained therein, including an arbitration provision, were binding and could not be contradicted by parol evidence.). We need not address whether the confirmation at issue constitutes an enforceable contract for the sale of goods under these circumstances to resolve this claim of error. Rather, because it is clear from the face of the confirmation that it does not contain or incorporate by reference an arbitration clause or provision, Brooks Peanut’s argument must fail.

First, the word “arbitration” does not appear on the M & H confirmation, nor is there any other word, phrase, clause, or condition referencing dispute resolution generally. Further, the confirmation references the American Peanut Shellers Association Trading Rules only on the line provided for defining the “quality” of the commodity being sold, that is, in this case, a “medium runner shelled peanut” of “U. S. Grade.”

Decided July 11, 2013.

Alston & Bird, Nowell D. Berreth, R. Edgar Campbell, for appellant.

Flynn, Peeler & Phillips, Charles E. Peeler, for appellee.

Where a writing refers to another document, that other document, or as much of it as is referred to, is to be interpreted as part of the writing____Asa matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where .. . the provision to which reference is made has a reasonably clear and ascertainable meaning.

(Citations and punctuation omitted; emphasis supplied.) Consolidated Freightways Corp. v. Syncroflo, Inc., 164 Ga. App. 275, 277 (1) (294 SE2d 643) (1982). A review of the trading rules confirms that they contain sections specifically addressing standards, grades, and classifications for peanut stock. The reference to the trading rules in this context has only one reasonably clear and ascertainable meaning: that the trading rules were meant to govern how peanut “quality” was defined for purposes of the instant transaction and not to provide for the remedy of arbitration. See Williams Tile & Marble Co. v. Ra-Lin & Assocs., 206 Ga. App. 750 (1) (426 SE2d 598) (1992) (The “ ‘reasonably clear and ascertainable meaning’ [of an incorporated provision] was only to specify the material and manner of installation of the terrazzo flooring, and not to provide for the remedy of arbitration which did not otherwise exist in the general contract.”) (citation omitted). Consequently, the trial court did not err in denying Brooks Peanut’s motion to compel arbitration.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Branch, J., concur.

       See Annotation, “Sales: Construction of Statute of Frauds Exception under UCC § 2-201 (2) for Confirmatory Writing Between Merchants,” 82 ALR4th 709, § 2 [a] (2013). See also 4-21 Corbin on Contracts § 21.3 (2013).

       See Edwards v. Wilbur-Ellis Co., 379 FSupp. 1404, 1406 (N.D. Ga. 1974) (“Under UCC § 2-201 (2), a written confirmation of an oral contract, signed by the sender, satisfies the statute of frauds and permits enforcement of the prior oral contract even though the confirmation was not signed by the recipient.”). See also Perdue Farms, Inc. v. Motts, Inc., 459 FSupp. 7, 13 (N.D. Miss. 1978) (“UCC § 2-201 (2) was drafted to correct an unfair condition which developed under other statutes of frauds when one contracting party sent a letter to the other contracting party to confirm an oral contract made by them. The party sending the confirmatory letter often could not invoke the statute of frauds as a defense because he had signed a writing which satisfied the statute. The party receiving the confirmatory writing had not signed the confirmatory writing. If the contract proved to he advantageous for the receiving party, he was able to enforce it against the sending merchant. But if the contract was not to the receiving party’s advantage, he could refuse to perform, assert the statute of frauds as a defense and prevent the sending party from enforcing the oral contract. UCC § 2-201 (2) attempts to remove this inequity and thereby encourage the sending of writings to confirm oral contracts.”) (footnotes omitted).

       82 ALR4th 709 § 2 [a].

       OCGA § 11-2-104 (1) provides:
      “Merchant” means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.
      “[A] purchaser can be considered a merchant where the purchaser is a business professional as opposed to a casual or inexperienced seller or buyer, and the purchase involves a type of goods related and necessary to the business or occupation of the purchaser.” (Citations and punctuation omitted.) Ready Trucking v. BP Exploration & Oil Co., 248 Ga. App. 701, 704 (2) (548 SE2d 420) (2001). Ordinarily, whether a party is a “merchant” under the UCC is a question of law for the court. Id. Here there is no dispute that GSP and Brooks Peanut are merchants, and this Court will treat them as such.

       OCGA § 11-2-104 (3) provides: “ ‘Between merchants’ means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.”

       Although peanuts are a farm commodity, they are also goods for purposes of applying OCGA § 11-2-201 (1). OCGA § 11-2-105 (1) (“ ‘Goods’ means all things... which are movable at the time of identification to the contract for sale[.]... ‘Goods’also includes... growing crops and other identified things attached to realty as described in... Code Section 11-2-107.”); Harris v. Hine, 232 Ga. 183, 186 (1) (205 SE2d 847) (1974) (“Growing crops, including cotton, are ‘goods’ within the contemplation of [OCGA § 11-2-201 (1)].”).

       See also Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 897-898 (2) (328 SE2d 564) (1985) (An invoice for the sale of goods from one merchant to another satisfied the requirements of the Statute of Frauds.); Dalesso v. Reliable-Triple Cee, 167 Ga. App. 372, 373 (1) (306 SE2d 415) (1983) (Invoices sent from one merchant to another constituted written confirmation of the contract between them within the meaning of OCGA § 11-2-201 (2).).

       See also Lambert Corp. v. Evans, 575 F2d 132, 135 (7th Cir. 1978) (“Even if parties agree, point by point, on all the terms of a contract, if they understand that the execution of a formal document shall be a prerequisite to their being bound there is no contract until the document is executed. On the other hand, if it is agreed that a formal document will be prepared to memorialize a bargain the parties have already made, the bargain is enforceable even though the document has not been executed.”).

       We have held that, in order for a confirmation to be “sufficient against the sender” within the meaning of OCGA § 11-2-201 (2), it also must be “signed” by the sender, as set forth in OCGA § 11-2-201 (1). Jackson v. Meadows, 153 Ga. App. 1, 2 (1) (264 SE2d 503) (1980) (“An unsigned invoice is not a writing in confirmation of the contract”) (citation omitted); Evans Implement Co. v. Thomas Indus., 117 Ga. App. 279, 280 (160 SE2d 462) (1968). A signature sufficient to satisfy the Statute of Frauds, however, does not have to be the handwritten signature of a person. An invoice on a printed form that bears the seller’s name and address is “sufficient against the sender” and may constitute a written confirmation of a contract within the meaning of OCGA § 11-2-201 (2). Jem Patents, Inc. v. Frost, 147 Ga. App. 839, 839-840 (1) (250 SE2d 547) (1978). Additionally, OCGA § 11-2-201 (1) provides that the signature on the confirmation may be that of the sender’s authorized agent or broker.

       In its initial complaint, Brooks Peanut averred that M & H acted as agent for the seller, GSP. Brooks, Barnhill, and Strother each gave affidavits contending that M & H acts as the seller’s agent. Brooks Peanut later contended that M & H was also an agent of Brooks Peanut, or a dual agent, acting for both the seller and the buyer in every transaction.

       There is no evidence in the record that M & H acted as the exclusive agent for any peanut sheller, nor is there any written agency agreement of record establishing that M & H acted as agent for either Brooks Peanut or for GSP in the transaction at issue in this case.

       Although a writing may be sufficient as evidence of a contract and satisfy either OCGA § 11-2-201 (1) or (2), the Statute of Frauds does not require the writing to resolve whether a contract exists or to establish all of the contract’s terms and conditions. “The party asserting the contract still must hear the burden of proving its existence and the terms.” (Citation omitted.) Jinright v. Russell, 123 Ga. App. 706, 708 (1) (182 SE2d 328) (1971). Thus, our holding that the evidence adduced was sufficient to defeat GSP’s motion for summary judgment on Statute of Frauds grounds is not tantamount to a finding that Brooks Peanut has proven the existence of an oral contract for the sale of goods.