author: Miller, Judge.

text:
    A12A0019.
    MOUNTAIN HERITAGE BANK v. ROGERS.
    (728 SE2d 914)
   Miller, Judge.

In this breach of contract action, Jerry Rogers sued Mountain Heritage Bank (“the Bank”) to recover full severance pay under the provisions of his employment contract. Rogers and the Bank filed cross-motions for summary judgment regarding the enforceability of the severance pay provisions. The trial court granted Rogers’s motion and denied the Bank’s motion, finding that Rogers was entitled to the payment of full severance pay as provided under the employment contract. The Bank appeals, contending that the trial court’s decisions were erroneous since the severance pay amounted to a “golden parachute payment” barred by federal banking regulations. For the reasons that follow, we agree and reverse the trial court’s decision. (Citations and punctuation omitted.) World Championship Wrestling v. City of Macon, 229 Ga. App. 248, 248-249 (493 SE2d 629) (1997).

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the evidence shows that on February 3, 2004, Rogers became employed as the Bank’s senior vice president. The employment agreement entered into between the Bank and Rogers pertinently provided that if Rogers’s employment was terminated without cause, “[Rogers] shall be paid severance compensation in an amount equal to his annual [b]ase [s] alary ... then in effect [,] which shall be paid over a twelve (12)-month period[.]”

In June 2009, the Federal Deposit Insurance Corporation (“FDIC”) issued a cease and desist order against the Bank in accordance with 12 USC § 1818 (b) (1), based upon certain “unsafe or unsound banking practices and violations of law and/or regulations alleged to have been committed by the Bank” pertaining to its operations, loans, and assets. The cease and desist order designated the duties required of the Bank’s board of directors and management to bring the Bank into compliance with banking regulations.

On or about June 21, 2010, Rogers’s employment with the Bank was terminated without cause due to a “[Reduction in staffing[.]” The Bank’s president informed Rogers that in light of the Bank’s troubled status, Rogers would be paid severance only through the end of the next month. The Bank claimed that the severance pay provided in Rogers’s employment contract amounted to a golden parachute payment, which the Bank was prohibited from making under the FDIC regulations set forth in 12 CFR § 359.0 et seq.

The Bank’s president nevertheless agreed to make inquiry as to whether the Bank could pay a greater severance as contemplated under the employment contract. The Bank submitted an application to the FDIC regional director, requesting consent for payment of the golden parachute payment in accordance with 12 CFR § 303.244 (b), (c). The FDIC regional director returned the Bank’s application, finding that it failed to meet the minimum regulatory requirements for consent to be given.

Rogers filed suit against the Bank to recover the full amount of severance pay provided under the employment contract. The trial court granted summary judgment in Rogers’s favor, finding that Rogers was entitled to recover based upon the clear terms of the employment contract and the absence of evidence that the severance payment was barred by the federal regulations.

The Bank contends that the trial court erred in ruling in Rogers’s favor since the severance pay provided under the terms of the employment contract amounted to a prohibited golden parachute payment. We agree that the severance pay at issue was prohibited as a golden parachute payment as defined under the federal banking regulations.

The evidence establishes that the Bank was subject to a cease- and-desist order issued by the FDIC, and thus, was considered to be in troubled condition. See 12 CFR § 303.101 (c) (3). Troubled banks are generally prohibited from making golden parachute payments without the consent of the appropriate federal banking agency and the written concurrence of the FDIC. See 12 CFR § 359.0; 12 CFR § 303.244 (a); see also 12 USC § 1828 (k); Howell v. Fed. Deposit Ins. Corp., 986 F2d 569, 574, n. 4 (1st Cir. 1993) (noting that the FDIC “may prohibit or limit, by regulation or order, any golden parachute payment”) (punctuation omitted). The term “golden parachute payment” is pertinently defined in 12 CFR § 359.1 (f) (1) as

any payment (or any agreement to make any payment) in the nature of compensation by any insured depository institution [hereinafter “bank”] . . . that:
(i) Is contingent on, or by its terms is payable on or after, the termination of such party’s primary employment or affiliation with the [bank]; and
(ii) Is received on or after, or is made in contemplation of. . .
(C) A determination by the [bank’s] appropriate federal banking agency, respectively, that the [bank] is in a troubled condition, as defined in the applicable regulations of the appropriate federal banking agency (§ 303.101 (c) of this chapter); . . . and
(iii) . . . (B) Is payable to an IAP whose employment by or affiliation with [a bank] is terminated at a time when the [bank] by which the IAP is employed or with which the IAP is affiliated satisfies . . . the condition[ ] enumerated in paragraph^ ] (f) (1) (ii) [(C)] of this section, or in contemplation of. . . [this] condition [ ].

(Punctuation omitted.) See also 12 CFR § 359.0 (b) (“A‘golden parachute payment’ is generally considered to be any payment to an IAP which is contingent on the termination of that person’s employment and is received when the [bank] making the payment is troubled[.]”). In turn, 12 CFR § 359.1 (h) (1) defines “IAP,” or institution-affiliated party, as “[a]ny director, officer, employee, or controlling stockholder (other than a depository institution holding company) of, or agent for, [a bank].”

Here, the undisputed evidence established that Rogers was the Bank’s senior vice president. As such, Rogers met the definition of an LAP under 12 CFR § 359.1 (h) (1) and as referred to in the golden parachute payment definition set forth in 12 CFR § 359.1 (f) (1) (iii) (B). The undisputed evidence further established that the severance pay was payable after Rogers’s employment terminated and would be received when the Bank was in a troubled status. As such, the severance pay contemplated under Rogers’s employment agreement fell within the definition of a prohibited golden parachute payment. See 12 CFR § 359.1 (f) (1) (i), (ii) (C), (iii) (B); see also Harrison v. Ocean Bank, Case No. 10-23138-CIV-MORENO, 2011 U. S. Dist. LEXIS 70831, at *2-7 (I), (II), *14-15 (VI) (S.D. Fla. June 29, 2011) (upholding the FDIC’s determination that the troubled bank’s agreement to pay a terminated bank officer settlement money was a prohibited golden parachute payment).

While golden parachute payments are generally prohibited, 12 CFR § 303.244 (a) allows such payments when consent is obtained from the appropriate federal banking agency and the FDIC. See, e.g., McCarron v. Fed. Deposit Ins. Corp., 111 F3d 1089,1096 (III) (3d Cir. 1997) (an applicant must meet the requirement that the appropriate federal banking agency and the FDIC consent in writing to the amount and terms of the golden parachute payment pursuant to 12 CFR § 359.4). To obtain consent, an application must be submitted to the FDIC regional director with certain designated information, including “[t]he cost of the proposed payment and its impact on the institution’s capital and earnings; [t]he reasons why the consent to the payment should be granted; and [c]ertification and documentation as to each of the points cited in [12 CFR] § 359.4 (a) (4).” (Punctuation omitted.) 12 CFR § 303.244 (b), (c) (4)-(6). In turn, 12 CFR § 359.4 (a) (4) (ii) requires the applicant to demonstrate that there is no reasonable basis to believe that the IAP or bank officer is substantially responsible for the bank’s troubled condition.

Although the Bank filed an application to the FDIC regional director seeking consent for payment of the severance, its application stated that it could not advocate for consent to make the payment or make the certifications required under 12 CFR § 359.4 (a) (4) since it believed that “[Rogers’s] performance as a loan officer did cause him to be substantially responsible for the Bank’s troubled condition.” In light of the Bank’s position, the FDIC regional director returned the application for failure to meet the minimum regulatory requirements.

Decided June 21, 2012.

R. Bruce Russell, for appellant.

Cummings & Dillard, Michael H. Cummings II, for appellee.

Based upon the foregoing, the evidence of record establishes that the severance pay fell within the definition of a prohibited golden parachute payment and that the FDIC did not consent to the golden parachute payment. Under these circumstances, the Bank was prohibited from paying the severance pursuant to the federal regulations. See, e.g., McCarron, supra, 111 F3d at 1096 (III) (since the bank executive never obtained the requisite consent from the FDIC, there was no factual or legal basis to permit payment of the bank executive’s severance claims under the FDIC rules governing golden parachute payments); Clark v. Carver Fed. Sav. Bank, 297 AD2d 599 (N.Y. App. Div. 2002) (concluding that the bank president could not recover severance benefits provided by his employment agreement following his termination since the troubled bank was unable to make the certification required under 12 CFR § 359.4 (a) (4) to obtain the supervising bank agency’s consent for the golden parachute payment). The trial court therefore erred in granting summary judgment in favor of Rogers and denying summary judgment to the Bank. Since the evidence established that the Bank was entitled to summary judgment in this case, we remand for the trial court’s entry of a summary judgment order in the Bank’s favor.

Judgment reversed and case remanded with instruction.

Mikell, P. J., and Blackwell, J., concur.

       The Bank also contends that the trial court erred in failing to find that a jury question existed on the issue of accord and satisfaction since Rogers had accepted one month of severance pay. In light of our conclusion that the Bank was entitled to summary judgment in its favor based upon the evidence establishing that the severance pay fell within the federal regulatory definition of a “golden parachute payment,” we need not reach this alternative ground.
      We further note that Rogers’s breach of contract claim was a state-law claim. Although the Bank’s defense involved a determination of the applicability of the federal regulatory scheme set forth in 12 CFR § 359.0 et seq., removal of the case to federal court was not required and jurisdiction in the state trial court was proper. See Hester v. Fla. Capital Group, Case No. 8:ll-cv-791-T-24-TGW, 2011 U. S. Dist. LEXIS 69661, at *6-15 (II) (A), (B) (M.D. Fla. June 29, 2011) (ruling that “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction”; the federal regulations governing golden parachute payments do not completely preempt state law claims and do not prohibit bank employees from seeking assistance in state courts to resolve disputes underlying their employment contracts) (punctuation omitted).


source: Caselaw Access Project

license: Public Domain

text:
    A12A0404.
    THE STATE v. CASH.
    (728 SE2d 918)
   Miller, Judge.

The State appeals from the trial court’s decision granting the defendant Melissa Sara Cash’s motion to suppress evidence seized during the execution of a “no-knock” search warrant. The State contends that the trial court erred in finding that the information in the affidavit was insufficient to justify the “no-knock” provision. We discern no error and affirm.

In reviewing a trial court’s ruling on a motion to suppress, we construe the evidence most favorably to the findings and the judgment. However, the application of the law to undisputed facts is subject to de novo appellate review. In this case, there is no factual dispute. Accordingly, we will conduct a de novo review of the trial court’s ruling.

(Punctuation and footnotes omitted.) Poole v. State, 266 Ga. App. 113, 113-114 (596 SE2d 420) (2004).

The evidence shows that on January 5, 2010, a narcotics agent with the Fayette County Sheriff’s Office applied for and obtained a “no-knock” search warrant to search the premises, vehicles, and curtilage of a residence in Peachtree City, Georgia. The affidavit in support of the warrant stated that on July 29, 2009, the agents had received information from an anonymous source that an individual was engaging in illegal drug sales at the residence. The agents launched an investigation. On July 31, 2009, the agents received another report from an anonymous source that the individual “appeared to be busy” and that some vehicular traffic was occurring at the residence. Surveillance was established at the residence shortly after receiving the report, but “it met with negative results” and no drug activity was observed. On January 4, 2010, the agents searched the trash receptacle on the curb at the front of the residence and found marijuana. In support of the “no-knock” provisions of the warrant, the affidavit averred:

It has been the experience of this affiant that subjects package the illegal narcotics in ways to be easily destroyed. Based on the affiant’s knowledge, training, and experience that persons involved with illegal narcotic activity commonly have in their possession that is on their person, at their residence, firearms and ammunition, including but not limited to handguns, pistols, rifles, shotguns, and other weapons to protect and secure the proceeds from illegal narcotics and the illegal narcotics. The trash pull also revealed that [the drug suspect] is possibly in the military and therefore has knowledge on firearms and [their] use. In order to save the illegal narcotics from being destroyed and for the safety of the officers involved[,] the affiant would ask for a [n]o-[k]nock [provision to be added to the search warrant.

A magistrate issued the search warrant with the “no-knock” provision in accordance with the agent’s request. The agents executed the search warrant at the residence without announcing their presence, consistent with the “no-knock” provision. Upon searching the residence, the agents found a small amount of marijuana in the bedroom that belonged to Cash. The return on the warrant does not reflect that any firearm was discovered at the residence.

Cash was charged with misdemeanor possession of marijuana (OCGA §§ 16-13-2 (b), 16-13-30 © (1)). She filed a motion to suppress the evidence seized during the search. Cash’s motion argued that the averments in the search warrant affidavit were insufficient to justify the “no-knock” provision. Following an evidentiary hearing, the trial court agreed with Cash and entered an order granting her motion to suppress. We likewise agree.

Generally, [under OCGA § 17-5-27,] police must make a good faith attempt to verbally announce their authority and purpose before entering a building to execute a search warrant. However, a warrant can authorize a “no-knock” entry where police seeking the warrant demonstrate a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
But a [“]no-knock[”] provision is permissible only when based on a neutral evaluation of each case’s particular facts and circumstances, not on blanket provisions based on generalized experience. The fact that the warrant is issued in a felony drug investigation, standing alone, is insufficient to support a [“] no-knock[”] provision. And an affidavit based on the general ease of destruction of drug evidence and an officer’s prior experience is insufficient to support a [“] no-knock [”] provision. An invalid [“] no-knock [”] provision will render the execution of the warrant illegal and support the trial court’s grant of a motion to suppress.

(Citations and punctuation omitted.) State v. Barnett, 314 Ga. App. 17,18-19 (722 SE2d 865) (2012). See also Richards v. Wisconsin, 520 U. S. 385, 393-394 (II) (117 SC 1416, 137 LE2d 615) (1997) (holding that the Fourth Amendment does not permit a blanket exception for felony drug investigations to the knock-and-announce requirement; rather, in each case, the court must determine whether the particular facts and circumstances justified a “no-knock” entry).

The affidavit and evidence presented in this case are remarkably similar to that presented in our recent decision in Barnett, supra, 314 Ga.App. at 17-20, where we held that the blanket provisions based on the agent’s generalized experience in drug investigations were insufficient to justify a “no-knock” provision in a search warrant. Here, as in Barnett, the affidavit requested a “no-knock” search warrant based upon the agent’s general experience that drug evidence can be easily destroyed and that drug suspects commonly possess firearms. See Barnett, supra, 314 Ga. App. at 19. While the affidavit stated that the drug suspect had been in the military and likely had “knowledge” regarding firearms, there was no indication that the drug suspect or any occupant of the residence possessed a firearm. The affidavit also failed to set forth any information indicating that the drug suspect had packaged or located the drugs in the residence for quick disposal. In sum, the affidavit and evidence in this case failed to present any particular facts and circumstances justifying a “no-knock” provision, and instead, was based entirely upon generalizations. Consequently, the “no-knock” provision was invalid, which rendered the execution of the warrant without knocking and announcing illegal and supported the trial court’s decision granting the motion to suppress. See Barnett, supra, 314 Ga. App. at 20; Poole, supra, 266 Ga. App. at 114-119 (1).

The State’s reliance upon Felix v. State, 241 Ga.App. 323, 326 (4) (526 SE2d 637) (1999), for the proposition that firearms are tools of the drug trade is unavailing. As an initial matter, the affiant in Felix did not request a “no-knock” provision in the search warrant, and the officers had knocked and announced their presence before entering the residence to execute the search warrant. Id. at 325-326 (4). Moreover, as stated above, binding precedent rejects the premise that “no-knock” provisions can be exclusively based upon generalizations regarding felony drug investigations. See Richards, supra, 520 U. S. at 393-394 (II). But even considering the general legal proposition, the evidence in this case did not give rise to a reasonable belief that the drug suspect had been engaged in the felony drug trade. Although the averments in the affidavit were sufficient to indicate that the drug suspect was involved in personal drug use, they were insufficient to indicate that the drug suspect had been selling, distributing, or trafficking drugs. See, e.g., Clark v. State, 245 Ga. App. 267, 268-269 (537 SE2d 742) (2000) (recognizing the distinction between possession of marijuana for personal use and possession with intent to distribute, and concluding that the evidence was insufficient to show drug sales or distribution when the State produced no evidence that the defendant had scales, guns, cash, drug packaging materials, a large quantity of marijuana, or had conducted prior drug sales). Significantly, there had been no corroboration of the anonymous source’s tip that drug sales were occurring at the residence. The affidavit failed to provide any information regarding the reliability of the anonymous source, and indeed, the agents failed to obtain any evidence that the drug suspect had conducted drug sales during their investigation and surveillance of the residence. More importantly, there was no report that a weapon was present in the residence. Cf. Hunter v. State, 198 Ga. App. 41, 44 (2) (400 SE2d 641) (1990) (“no-knock” provision in search warrant was authorized where the informant had indicated that automatic weapons were present in the house). Consequently, the information conveyed in this case failed to present a reasonable ground to authorize the “no-knock” provision, and the motion to suppress was properly granted.

Decided June 21, 2012.

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

Marcus G. Howell, Sr., Walker L. Chandler, for appellee.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       We further note that the State neither asserts nor points to evidence of any. exigent circumstances justifying a “no-knock” entry.


author: BARNES, Presiding Judge.

text:
    A10A2021.
    HOLOWIAK v. THE STATE.
    (729 SE2d 486)
   BARNES, Presiding Judge.

In Holowiak v. State, 308 Ga. App. 887 (709 SE2d 39) (2011), we affirmed the trial court’s denial of Nicholas Holowiak’s motion for new trial following his jury conviction for driving under the influence of alcohol (per se) in violation of OCGA § 40-6-391 (a) (5). In Holowiak v. State (Case No. S11C1190 decided by Order September 6,2011), the Supreme Court granted Holowiak’s petition for certiorari and remanded the case to this Court “for reconsideration in light of this Court’s decision in Davenport v. State, 289 Ga. 399 (711 SE2d 699) (2011).” Holowiak had sought an out-of-state subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State for a representative of CMI, Inc., the supplier of the Intoxilyzer 5000, to produce the software source code of the Intoxilyzer 5000 for inspection. Holowiak, 308 Ga. App. at 890 (2). The trial court denied the request, finding that Holowiak did not carry his burden of showing that the subpoena was “material and necessary” to the case, and we affirmed on that basis. Id. at 891 (2).

Decided June 22, 2012.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

David L. Cannon, Jr., Solicitor-General, for appellee.

In Davenport, the Supreme Court held that “necessary and material” is not the standard that a trial court should apply when it considers whether to issue a certificate under the Uniform Act. Davenport, 289 Ga. at 401. The trial court must first determine whether a witness is “material,” and if a witness is material, the trial court “may issue a certificate under seal that is then presented to a judge of a court of record in the out-of-state county in which the witness is found.” (Punctuation omitted.) Id. The out-of-state judge then determines whether to issue a summons directing the out-of-state witness to testify in Georgia. Id.

Thus, we vacate Division 2 of Holowiak, and remand for the court to apply the standard under Davenport in reviewing Holowiak’s motion for the issuance of the out-of-state subpoena.

If the court below determines that the witness for whom a certificate was requested is a “material” witness, it then must consider whether it ought to have issued a certificate in this case, and if so, whether [Holowiak] is entitled to a new trial or a new trial conditioned on the issuance by the appropriate out-of-state court of a subpoena to compel the appearance of the witness in Georgia. If the court below determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that [Holowiak] may file a timely appeal of that determination.

DiMauro v. State, 310 Ga. App. 526, 530 (714 SE2d 105) (2011); Spann v. State, 310 Ga. App. 575, 576 (713 SE2d 722) (2011).

Judgment affirmed on condition and case remanded with direction.

Blackwell and Dillard, JJ., concur.


author: McFadden, Judge.

text:
    A12A0097.
    WEST v. DOOLY COUNTY SCHOOL DISTRICT et al.
    (729 SE2d 469)
   McFadden, Judge.

Bobby West filed this action under 42 USC § 1983, seeking damages for the defendants’ failure to comply with the Georgia Fair Dismissal Act, OCGA § 20-2-940 et seq., when they did not renew his employment contract. He argues that he was a tenured employee of the Dooly County School District and therefore was entitled to due process and the protections of the Fair Dismissal Act before the superintendent decided not to renew his contract. We find that West had not obtained tenure before the legislature abolished it for administrators such as West. We therefore affirm the trial court’s grant of summary judgment to the defendants.

West worked for the Twiggs County School District from 1989 until 1994, first as a teacher for six months and then as an assistant principal. In 1994, he began working as a principal in the Dooly County School District for the 1994-1995 school year. West eventually became the assistant superintendent for facilities, transportation and student services, and management. In April 2007, the then-superintendent, John Bembry, informed West that his contract as assistant superintendent would not be renewed. West filed this action against Bembry, the school district, the members of the board of education and others. He now appeals the trial court’s grant of summary judgment to the defendants.

We conduct a de novo review of the trial court’s ruling on summary judgment, viewing the evidence and all reasonable inferences and conclusions drawn from it in a light favorable to the nonmoving party. Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant is entitled to summary judgment if it can demonstrate that there is no evidence to create a jury issue on at least one essential element of the plaintiff’s case. A defendant need not affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must' point to specific evidence that gives rise to a triable issue of fact.

(Citations and punctuation omitted.) Latimore v. City of Atlanta, 289 Ga. App. 85 (656 SE2d 222) (2008).

1. West’s due process claims fail unless he has a protected property interest in his employment. See Thomas v. Lee, 286 Ga. 860, 861 (691 SE2d 845) (2010); Dixon v. MARTA, 242 Ga. App. 262, 264 (1) (529 SE2d 398) (2000). “A party is not entitled to procedural due process where the interest which would be impaired by governmental action does not involve that party’s protectible interest in life, liberty, or property.” Atkinson v. City of Roswell, 203 Ga. App. 192, 196 (4) (416 SE2d 550) (1992). “State law determines whether a public employee has a property interest in his or her job,” (citation omitted) Thomas, 286 Ga. at 861, and defines the dimensions of such interest. Dixon, 242 Ga. App. at 264 (1). Consequently, we must look to Georgia law to determine whether West had a property interest in his job.

The state law applicable to West’s claims is the Fair Dismissal Act, OCGA §§ 20-2-940 through 20-2-947. Under the Act,

certain professional employees of a school district are afforded special procedural rights, commonly referred to as “tenure rights,” when the school district decides not to renew their annual employment contract for a subsequent school year. These procedural rights include the right, upon timely written request by the school employee, to receive written notice of the reasons for the nonrenewal, and the right to a hearing before the local board of education to contest those reasons. OCGA §§ 20-2-940 (b), (e); 20-2-942 (b) (2). The written notice received by the school employee also must contain specific information informing the employee of his or her procedural rights. OCGA § 20-2-942 (b) (2).

(Citation omitted.) Patrick v. Huff, 296 Ga. App. 343, 345 (1) (674 SE2d 398) (2009).

The case involves the application of the 1995 amendments to the Act.

Prior to April 7,1995, a “teacher” was defined broadly under the [Fair Dismissal Act] to include school administrators like high school principals. See OCGA § 20-2-942 (a) (4) (1994). Significantly, however, the General Assembly amended the [Fair Dismissal Act] as of that date to exclude school administrators from the definition of “teacher.” See Ga. L. 1995, p. 304, §§ 1-2. Hence, the general rule under the current version of the [Fair Dismissal Act] is that school employees who became school administrators on or after April 7, 1995 are not entitled to the procedural rights afforded teachers with respect to the nonrenewal of their employment contracts. See OCGA § 20-2-942 (c) (1).

Patrick, 296 Ga. App. at 345-346 (1). However, “the General Assembly sought to preserve the expectations of school employees who had obtained procedural rights under the [Act] before the statutory scheme excluded school administrators. Accordingly, the General Assembly included a ‘grandfather’ clause in the [Act].” Id. at 346 (1). With some conditions, administrators who had obtained such Fair Dismissal Act procedural rights before April 7, 1995, would retain them. See Ga. L. 1995, pp. 304-305, § 3. OCGA § 20-2-942 (c) (1) provides:

A person who first becomes a school administrator on or after April 7, 1995, shall not acquire any rights under this Code section to continued employment with respect to any position of school administrator. A school administrator who had acquired any rights to continued employment under this Code section prior to April 7, 1995, shall retain such rights: (A) In that administrative position which such administrator held immediately prior to such date; and (B) In any other administrative position to which such administrator has been involuntarily transferred or assigned, and only in such positions shall such administrator be deemed to be a teacher for the purpose of retaining those rights to continued employment in such administrative positions.

The key, then, to determining whether West had a property interest in his employment is to determine whether West obtained “any rights to continued employment. . . prior to April 7, 1995.”

(a) West did not obtain tenure rights before April 7, 1995. Although he may have acquired tenure rights when he worked as an administrator in Twiggs County by virtue of the length of his employment there, he left that county to begin working in Dooly County, another school system. OCGA § 20-2-942 (b) (4) provides that a teacher (or pre-April 7,1995 administrator) who had obtained rights under the Act by working for a particular school system, who was subsequently employed by another school system, and “who accept[ed] a second consecutive school year contract from the local board at which the teacher [was] subsequently employed” is entitled to retain those rights. See also Dorsey v. Atlanta Bd. of Ed., 255 Ga. App. 104, 105 (1) (564 SE2d 509) (2002). Consequently, the exact date that West accepted his second contract of employment as an administrator with the Dooly County School District, the contract for the 1995-1996 school year, is important. West, an administrator, was considered a teacher under the Act until April 7, 1995, and obtained rights under the Act by working for the Twiggs County school system. He was subsequently employed by the Dooly County school system and had accepted his second-year contract in the spring of 1995. If he had accepted that contract before April 7, 1995, he would have been entitled to retain those rights, with some conditions. OCGA § 20-2-942 (c) (1).

West testified that he was not sure of the date he accepted the second contract with Dooly County. He does not have a copy of the contract. The school district does not have a copy of the contract, either, because it shredded the 1979 through 1998 personnel records in its possession. However, Bembry testified that West did not accept the contract prior to April 7, 1995. He testified that the board recognized that West had not signed the contract in time because it attempted to grant him tenure at a board meeting in 1996, albeit unsuccessfully as discussed in Division 6 below.

The defendants presented contracts of three other administrators from the 1995-1996 school year, copies of which they obtained from the school district’s attorney or the administrators themselves, and all showed that these administrators were offered their contracts on April 28, 1995. The defendants also presented the affidavit of the school district’s business manager from the period, who testified that in the normal course of her business, she would print and offer the employment contracts to all administrators on the same date. She testified that, based on the date of the three other administrators’ contracts, she could “state with reasonable certainty” that West was not offered his contract before April 7,1995. Although West presented evidence that in past years contracts had been issued before April 7, he did not rebut the testimony that contracts were issued to all administrators on the same day each year.

Because West came forward with no specific evidence showing that he accepted his second-year contract prior to April 7,1995, he has not shown that he obtained tenure rights and he does not fall within the grandfather clause. The trial court properly granted the defendants summary judgment on this ground. Latimore, 289 Ga. App. at 85.

(b) Nor did West have a protected expectation interest in prospective tenure. In Board of Regents of State Colleges v. Roth, 408 U. S. 564 (92 SC 2701, 33 LE2d 548) (1972), the United States Supreme Court held that a nontenured teacher did not have a property interest in his job sufficient to have reasons stated for his nonrenewal. The court explained that “ [t] o have a property interest in a benefit, a person clearly must have more than an abstract need or desire” and “more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. at 577 (III). And, as discussed above, state law determines the dimensions of any property interest in a public job. Dixon, 242 Ga. App. at 264 (1). See also Roth, 408 U. S. at 577 (III) (holding that property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits”).

The grandfather clause in the Fair Dismissal Act provides that a school administrator who had acquired any rights to continued employment under the Act prior to April 7, 1995, shall retain them. OCGA § 20-2-942 (c) (1). But it does not define the meaning of the phrase “any rights to continued employment.” Indeed, the only rights defined by the Act are the procedural rights to which a tenured employee is entitled: limited grounds for termination, notice and a hearing. OCGA § 20-2-940. Since the only rights described by the Act are the rights incident to tenure, we conclude that the only rights West could possibly claim under the Act are tenure rights. And, as discussed above, West has not obtained tenure rights. “[West] surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the [defendant] authorities to give him a hearing when they declined to renew his contract of employment.” (Emphasis in original.) Roth, 408 U. S. at 578 (III).

Although we have never addressed before whether a school employee has a property right in prospective tenure, the United States District Court for the Middle District of Georgia has addressed the issue. In Johnson v. Bibb County Bd. of Ed., 2009 U. S. Dist. LEXIS 54759 (III) (B) (M.D. Ga. June 29, 2009), the court held that because an administrator had not obtained tenure, she had no property interest in her employment protected by due process and thus no right to the renewal of her employment contract or to a hearing before the nonrenewal. See Lawyer v. Bd. of Trustees at Univ. of South Alabama, 1991 U. S. Dist. LEXIS 7662 (S.D. Ala. June 6, 1991) (holding that plaintiff who had “at most a prospective interest in a tenured appointment which he did not receive” did not have the right to “a legitimate opportunity to contest the deprivation of any property rights as the result of [his] termination by a university”). See also Dorsey, 255 Ga. App. at 106 (1) (finding that plaintiff was not entitled to notice and a hearing prior to the nonrenewal of his contract because he had not obtained tenure); Ellison v. DeKalb County, 236 Ga. App. 185, 187 (2) (511 SE2d 284) (1999) (holding there is no property right to be considered for promotion); Cohilas v. Clayton County Bd. of Commrs., 206 Ga. App. 134, 136 (3) (424 SE2d 651) (1992) (holding there is no property right in a prospective promotion).

In Patrick, 296 Ga. App. 343, we construed one provision of the Fair Dismissal Act’s grandfather clause that is analogous to the provision at issue here. There, we were concerned with OCGA § 20-2-942 (c) (2), which grandfathers in tenured teachers who become administrators after April 7, 1995, and provides:

A teacher who had acquired any rights to continued employment under this Code section prior to April 7, 1995, and who is or becomes a school administrator without any break in employment with the local board for which the person had been a teacher shall retain those rights under this Code section to continued employment in the position as teacher with such local board.

(Emphasis supplied.) Here we are concerned with OCGA § 20-2-942 (c) (1), which grandfathers in tenured administrators and utilizes the same language, providing in part that, “[a] school administrator who had acquired any rights to continued employment under this Code section prior to April 7,1995, shall retain such rights____” (Emphasis supplied.)

In Patrick, we construed the phrase, “teacher who had acquired any rights to continued employment under this Code section prior to April 7, 1995, and who is or becomes a school administrator without any break in employment,” to preserve, “[b]y its plain and unambiguous terms,” the rights of “a teacher who obtained tenure rights prior to April 7, 1995 and after that date accepted a school administrator position with the same local board of education. . . .” (Emphasis supplied.) Patrick, 296 Ga. App. at 346 (1). Although we did not address in isolation the phrase “any rights to continued employment,” we assumed the phrase meant tenure. Under these authorities, the phrase in the Fair Dismissal Act that “[a] school administrator who had acquired any rights to continued employment... prior to April 7, 1995,” retains those rights means a school administrator who had acquired tenure rights before April 7, 1995.

2. West cites Hall v. Nelson, 282 Ga. 441 (651 SE2d 72) (2007), for the proposition that because he was an administrator prior to April 7, 1995, and because he had obtained administrative tenure in Twiggs County, he retained the right to continued employment in Dooly County as a principal or assistant principal. Hall is factually distinguishable; it did not involve the issue of whether an educator who transferred from one school system to another is entitled to protection under the Fair Dismissal Act.

3. West’s argument that he is entitled to Fair Dismissal Act rights under OCGA § 20-2-942 (c) (2), the provision at issue in Patrick, supra, 296 Ga. App. 343, is also unavailing. That provision does not apply to West because he obtained his tenure with Twiggs County and then moved to the Dooly County school system, so, like the plaintiff in Patrick, he had a break in employment with the local board of education with which he obtained tenure rights. “[T]here can be no break in employment with the local board with which the teacher originally obtained tenure rights prior to April 7,1995.” Id. at 347 (1).

4. West argues that regardless of when he accepted his second-year contract, upon its acceptance he obtained tenure as a teacher, even if the acceptance was too late to obtain tenure as an administrator. This argument ignores the fact that the General Assembly amended the Fair Dismissal Act as of April 7, 1995, to expressly distinguish between school administrators and teachers. Patrick, 296 Ga. App. at 345-346 (1). It is undisputed that West was an administrator in April 1995 at the time he accepted his second-year contract. Because under the amended Fair Dismissal Act teachers and administrators no longer acquire the same rights, West’s acceptance of the second-year contract — when he was an administrator — did not gain him teacher tenure.

5. West argues that he obtained tenure under a district policy that provides, “[t]enured teachers who accept promotion to administrative positions retain tenure as a teacher as provided by Georgia law.” Because, as discussed above, West did not have teacher tenure in Dooly County, this policy does not apply to him.

6. West argues that even if he did not obtain Fair Dismissal Act rights by accepting his second-year contract prior to April 7,1995, he obtained them when the school board voted to grant him tenure on March 14, 1996. But the board’s vote to grant him tenure was insufficient under the controlling statute.

When the General Assembly removed administrators from the protections of the tenure law, it added a provision to allow local boards of education to adopt tenure policies for administrators. Ga. L. 1995, p. 304, § 3. It also repealed all conflicting law. Id. at § 6. OCGA § 20-2-942 (c) (4), which became effective April 7, 1995, provides:

Notwithstanding the other provisions of this subsection, a local board of education may, as part of its personnel policies, adopt or modify a tenure policy which may include the same policies and procedures for the nonrenewal of contracts for any class or category of school administrators that exist for the nonrenewal of contracts for teachers as set forth in this Code section. Before any adoption or modification of a tenure policy, the local board shall hold a public hearing after at least 30 days’ notice published in the local legal organ.

“[A] county board of education is a political body and has no power other than that conferred by statutory authority.” Dodd v. Bd. of Ed. &c., 46 Ga. App. 235 (167 SE 319) (1933). See generally Davis v. Griffin-Spalding County Bd. of Ed., 445 FSupp. 1048, 1051 (N.D. Ga. 1975). “Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.” OCGA § 45-6-5. At the time the board voted to grant West tenure, OCGA § 20-2-942 (c) (4) established the procedures the board had to follow to do so, as any previous law granting such authority had been repealed.

The defendants presented the affidavit of Verlin Jones, a defendant who has been a member of the Dooly County Board of Education continuously since December 1994, and was its counsel from 1977 until 1990. Jones testified that at no time from January 1995 until October 31, 2000, did the board adopt or modify a policy to grant tenure to administrators on a case-by-case basis. Jones also testified that his review of the county’s legal organ from January 1995 through March 1996, when the vote to grant tenure to West was taken, showed there had been no publication of notice of a public hearing to adopt such a policy. This evidence demonstrated that the board did not follow the law that conferred upon it the power to establish tenure policies for administrators. West presented no evidence to the contrary. Consequently, because the only evidence is that the board did not follow the statutory procedure to grant West tenure, the vote of the board was not effective, and the trial court did not err in granting the defendants summary judgment on this ground.

The cardinal rule of statutory construction requires this Court to look diligently for the intention of the General Assembly, and the golden rule of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to insure that the legislature meant something else.

(Citation and punctuation omitted.) Judicial Council &c. v. Brown & Gallo, LLC, 288 Ga. 294, 296-297 (702 SE2d 894) (2010). “The presumption is that [an act fixing the term or tenure of a public officer or an employee of a state agency] is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” Dodge v. Bd. of Ed. &c., 302 U. S. 74, 79 (58 SC 98, 82 LE 57) (1937). The clear intention of the General Assembly in amending the Fair Dismissal Act to exclude school administrators from the definition of teacher, was to end school administrators’ entitlement to the procedural protections of the Act, except in certain, specifically defined circumstances. See Ga. L. 1995, p. 304, §§ 1-2. West does not fall within those specifically defined circumstances, and the trial court properly granted the defendants summary judgment.

Decided June 22, 2012.

John T. Croley, Jr., LaKesha T. Sawyer, for appellant.

Jones, Cork & Miller, W. Warren Plowden, Jr., Callie D. Bryan, John W. Sherrer, Jr., for appellees.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: BARNES, Presiding Judge. MCFADDEN, Judge,

text:
    A12A0290.
    MORGAN v. BUNZENDAHL.
    (729 SE2d 476)
   BARNES, Presiding Judge.

We granted James Morgan’s application for discretionary review to consider whether the pre-existing child support obligations of a parent who ultimately wins a downward modification due to involuntary adversity continue to accrue while that parent’s modification action is pending. We conclude that, when calculating back child support related to a contempt citation, that portion of the obligation attributable to lost income did not continue to accrue after Morgan served his modification petition on the custodial parent. Accordingly, we vacate the trial court’s order and judgment and remand for further proceedings.

Morgan and Georgia Bunzendahl, who were never married, have a child who was born in January 1993. In 1998, Morgan was ordered to pay Bunzendahl child support in the amount of $217.41 per month, and in 2006 the parties agreed to a temporary modification of $500 per month. In 2007, the trial court granted Bunzendahl’s petition for increased child support and ordered Morgan to pay $632 per month. In October 2009, the trial court found Morgan in wilful contempt for failing to pay child support and $6,364 in arrears. The court awarded Bunzendahl $750 in attorney fees.

In February 2010, the trial court again found Morgan in contempt for failing to make any payments on his obligation since the previous contempt and found that he owed Bunzendahl $10,392, which included another attorney fee award of $750. The court ordered Morgan incarcerated until he purged himself by paying $5,000, $4,500 to be allocated to back support and $500 to attorney fees, with the remaining arrearage to be paid at a monthly rate.

In April 2010, Morgan filed a petition to modify his visitation rights and child support obligation, citing recent financial setbacks in his construction business. In April 2011, the trial court granted the petition, finding that Morgan had experienced a substantial involuntary reduction in his income. Accordingly, the court modified its 2007 order and reduced Morgan’s support obligation to $223 per month, beginning May 1, 2011 and continuing until the child became 18 and graduated high school. The court denied Morgan’s request to make this reduction retroactive to the date Morgan served his modification petition on Bunzendahl, noting that while OCGA § 19-6-15 (j) appears to allow a retroactive modification, the Supreme Court’s decision in Galvin v. Galvin, 288 Ga. 125, 126 (1) (702 SE2d 155) (2010), appeared to foreclose it. The trial court also found Morgan in contempt for failing to pay accrued obligations, but found mitigating circumstances. The court held that Morgan’s total arrearage was $14,140 as of April 19, 2011, and ordered him to pay $250 per month beginning June 2011 and continuing each month until the debt was paid in full.

1. Morgan argues that the court in Galvin misapplied the law and should be overruled. This court, of course, cannot overrule a decision of the Supreme Court of Georgia.

2. Morgan also contends that the trial court erred in its application of Galvin to these facts, and we agree. OCGA § 19-6-15 (j) (1) provides:

In the event a parent suffers an involuntary termination of employment, has an extended involuntary loss of average weekly hours, is involved in an organized strike, incurs a loss of health, or similar involuntary adversity resulting in a loss of income of 25 percent or more, then the portion of the child support attributable to lost income shall not accrue from the date of the service of the petition for modification, provided that service is made on the other parent. . . .

(Emphasis supplied.) In Galvin, the Supreme Court interpreted this provision as follows:

Contrary to [the] father’s assertion, OCGA § 19-6-15 (j) does not make a downward modification of child support retroactive. The statute is not applicable to an action in which nothing but modification of child support is sought. Rather, the statute provides that child support due before entry of the modification order (and presumably not paid in full due to the obligor spouse’s “involuntary adversity”) does not accrue, to the extent the child support obligation is based upon the parent’s income from employment from which the parent has been involuntarily terminated.

288 Ga. at 126 (1).

Consistent with the Supreme Court’s ruling, the statute does not provide that the modification itself is “retroactive,” and if the trial court only determines that the support payment should be modified, OCGA § 19-6-15 (j) is inapplicable because the trial court determines only how much the petitioner will owe each month from that day forward. The court does not determine in a modification petition whether and how much the petitioner is in arrears on his child support payments.

In contrast, the trial court calculates past-due child support when it considers a contempt petition, and under OCGA § 19-6-15 (j), the child support obligation of a parent facing involuntary adversity “shall not accrue” from the date of service of the modification petition.

The court in Galvin did not address the amount of arrearage a noncustodial parent would accrue under the statute after having beenfoundto suffer an involuntary loss ofincome. OCGA § 19-6-15 (j) thus applies in this case to foreclose the accrual of that portion of child support attributable to his involuntary loss of income. We conclude, therefore, that the trial court erred in holding that Morgan’s child support obligation continued to accrue at the same rate after Bun-zendahl was served with his petition.

Because the trial court’s modification of support from $632 to $223 per month was based on its financial calculations as of its order date, the court did not specifically determine what portion of the support was attributable to involuntarily lost income between the date of service and the entry of the order. Accordingly, we vacate the order and judgment and remand this case to the trial court for further proceedings consistent with this opinion.

Judgment vacated and case remanded for further proceedings.

Adams, J., concurs. McFadden, J., concurs in judgment only.

MCFADDEN, Judge,

concurring in judgment only.

I am inclined to read our Supreme Court’s decision in Galvin v. Galvin, 288 Ga. 125 (702 SE2d 155) (2010) to hold that OCGA § 19-6-15 (j) is applicable only to modification actions in which the movant has made the showing and sought the relief specified in that subsection and to find that the appellant had not done so. But I am in doubt.

Decided June 22, 2012.

Singleton & Singleton, Dwayne C. Singleton, Nicholas S. Granade, for appellant.

Thacker & Thacker, Louis C. Thacker, for appellee.

Because I concur in the judgment only, our decision today is not binding on the trial courts. Court of Appeals Rule 33 (a). I respectfully suggest that this issue merits further consideration by our Supreme Court.

       The child is now an adult, and Morgan is no longer obliged to pay child support.


author: Blackwell, Judge.

text:
    A12A0624.
    SCOTT v. THE STATE.
    (729 SE2d 481)
   Blackwell, Judge.

Following a stipulated bench trial in Walton County, Shelli Scott was convicted of possession of methamphetamine and possession of drug-related objects. She appeals, asserting that the trial court erred when it denied her motion to suppress evidence that was recovered during a search of her car. Scott contends that the search of her car was unlawful because police did not have probable cause to search the car for contraband, and she argues that the search cannot be justified as an inventory search because it was not necessary to impound her car. We see no error and affirm the judgment of conviction.

When we review the denial of a motion to suppress, we owe no deference to the way in which the court below resolved questions of law, Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011), but we accept its findings about questions of fact and credibility unless clearly erroneous, and we view the evidence in the light most favorable to its findings and judgment. Culpepper v. State, 312 Ga. App. 115, 115-116 (717 SE2d 698) (2011). So viewed, the evidence in this case shows that a Monroe police officer activated his lights to pull over Scott’s car, which Tomas Wright was driving, and in which Scott was a passenger, because it had a broken taillight. Wright, however, did not pull over immediately and instead turned onto a highway and then took an exit off the highway, where he finally stopped. Although Wright stopped the car on the shoulder of the exit ramp, it was parked close enough to the road that it would have impeded a large truck from exiting the highway.

When the officer learned that Wright had a suspended license, the officer brought him to the back of the car and announced an intent to arrest him. But as the officer attempted to handcuff Wright, he ran from the scene. The officer chased him through the woods, eventually apprehended him with pepper spray, and flagged down another officer to help put Wright in custody. When the officer finally returned to the stopped car, he attempted to question Scott about her license and any outstanding warrants. As a certified drug recognition expert, the officer concluded that Scott was under the influence of narcotics. She was hypervigilant, her pupils were dilated, and her muscle tone appeared rigid. The officer noticed a small jewelry bag on the ground just outside the car, and based on his training and experience, he concluded that Scott had attempted to dispose of an item containing narcotics. Before the officer searched the jewelry bag, however, he learned that Scott had a pending warrant for a probation violation involving a conviction for possession of methamphetamine, so the officer arrested Scott and placed her in the back of his patrol car.

Because both Scott and Wright had been arrested, the officer called a tow truck to remove the car from the scene, and pursuant to standard policy, a vehicle inventory search was conducted prior to impounding the car. During the search, police found syringes, needles, and a glass pipe containing methamphetamine residue in Scott’s purse. They also found a glass pipe and drug paraphernalia containing methamphetamine residue in a backpack located in the trunk, though it was stipulated at trial that the backpack did not belong to Scott.

Scott first argues that the trial court erred in denying her motion to suppress because the police did not have probable cause to search her car for evidence of contraband. Pretermitting whether probable cause was present under the circumstances in this case, however, the trial court correctly denied Scott’s motion to suppress because the evidence was lawfully seized during an inventory search prior to impounding the car. Officers are sometimes permitted to impound a car, and when they do so, they may inventory its contents to protect the property of the owner and to protect the officers from potential danger and against claims for lost or stolen property. See Grizzle v. State, 310 Ga. App. 577, 579 (1) (713 SE2d 701) (2011); State v. Lowe, 224 Ga. App. 228, 229 (480 SE2d 611) (1997). While officers cannot impound a car merely as a pretext to search for contraband, they may impound a car if they must take charge of it for some legitimate reason. See Lewis v. State, 294 Ga. App. 607, 611 (2) (669 SE2d 558) (2008). So, to determine whether an inventory search was authorized, we must first determine whether the impoundment was reasonably necessary under the circumstances:

Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. In each instance, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.

Lowe, 224 Ga. App. at 229-230 (citations and punctuation omitted). “[T]he test is whether the impoundment was reasonably necessary under the circumstances, not whether it was absolutely necessary.” Grizzle, 310 Ga. App. at 579 (1) (citation and punctuation omitted).

Scott argues that the officer’s decision to impound her car was unreasonable under the circumstances because the officer did not ask her first if she had a preference as to the disposition of her car. We disagree. We have said before that an officer is not required to ask the owner what she would like to do with her car when the owner has been arrested and there is no one present at the scene to take custody of the car and safely remove it:

In this case, the owner of the vehicle was under arrest, she had implicated her companion in criminal activity, and no one else remained to take custody of the car and remove it from the shopping center premises. [Cit.] Although the officer did not inquire whether [the appellant] could make other arrangements for the retrieval of her car, he was not required to do so. [Cit.]

State v. King, 237 Ga. App. 729, 730 (1) (516 SE2d 580) (1999). See also Carlisle v. State, 278 Ga. App. 528, 530 (629 SE2d 512) (2006) (“Police officers are not required to ask whether an arrestee desires to have someone come and get the car, nor are they required to accede to an arrestee’s request that they do so.”) (citation and punctuation omitted). This is especially true when the vehicle impedes or poses a potential danger to traffic. See generally Evans v. State, 216 Ga. App. 21, 24 (2) (453 SE2d 100) (1995) (“[T]he impoundment of the vehicle was necessary because all three of its occupants had been arrested; no one remained to take custody of the car and remove it from the side of the interstate.”); Williams v. State, 204 Ga. App. 372, 374 (419 SE2d 351) (1992).

The cases cited by Scott do not require a different result. While many of those cases mention that officers may attempt to ascertain the preference of the owner, our decisions in those cases hinged on the fact that impoundment was unnecessary — or at least that some competent evidence supported a finding that impoundment was unnecessary — because the car was legally and safely parked on private property, a reliable friend was present, authorized, and capable of safely removing the car, or the owner of the car (who was not present at the scene) was not contacted to ask about its removal. See State v. Carter, 305 Ga. App. 814, 818 (2) (701 SE2d 209) (2010); State v. Bell, 259 Ga. App. 328, 330 (577 SE2d 39) (2003); Whisnant v. State, 185 Ga. App. 51, 53 (2) (363 SE2d 341) (1987); Mitchell v. State, 178 Ga. App. 244, 245-246 (3) (342 SE2d 738) (1986); Strobhert v. State, 165 Ga. App. 515, 515-516 (301 SE2d 681) (1983); State v. Ludvicek, 147 Ga. App. 784, 786-787 (250 SE2d 503) (1978). Here, Scott was arrested, as was her companion, and no one remained to take custody of the car and remove it from the shoulder of the exit ramp. In addition, the officer testified that, although the car was off the roadway, it would have impeded a large truck attempting to exit the highway, and the trial court found that Scott’s car was not legally parked on the side of the exit ramp. Moreover, there is no evidence in the record that Scott even requested alternative arrangements for removing her car. Because competent evidence supports the trial court’s conclusion that the impoundment of the car was reasonable, the resulting inventory search of the car was valid, and the trial court did not err in denying Scott’s motion to suppress evidence discovered during the inventory search that followed the impoundment. See Carlisle, 278 Ga. App. at 530; King, 237 Ga. App. at 730 (1).

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

Decided June 22, 2012.

Charles E. W. Barrow, for appellant.

Layla H. Zon, District Attorney, Marie E. Greene, Assistant District Attorney, for appellee.

       OCGA§ 16-13-30 (a).

       OCGA§ 16-13-32.2 (a).

       The State concedes that the search was not lawful as incident to her arrest on the probation violation.

       Scott does cite one case in which this Court has suggested that police officers are required to seek instruction from an owner who has been arrested regarding disposition of her car. See State v. Darabaris, 159 Ga. App. 121 (282 SE2d 744) (1981). Darabaris, however, involved a unique factual situation, where mall security seized the defendant after he exposed himself to a mall patron, and mall security subsequently asked police officers to tow his car from the mall parking lot. That case, we think, is limited to its peculiar facts, which are not present here. In Darabaris, the police did not cause the car to be abandoned where it was, on private mall property.

       We are bound to accept the trial court’s findings on questions of fact and credibility unless they are clearly erroneous. See Williams, 204 Ga. App. at 374.


author: McFADDEN, Judge.

text:
    A12A0788.
    HOOKER v. ROBERSON et al.
    (729 SE2d 484)
   McFADDEN, Judge.

Corey Hooker obtained a default judgment against Korey Roberson, Big Oomp Records, Inc., and Top Quality Productions, Inc., in his action for breach of contract, quantum meruit and fraud. After a bench trial on damages, however, the trial court entered an order of final judgment in the defendants’ favor in which it held, inter alia, that Hooker had presented no evidence demonstrating the defendants’ liability on any of his asserted causes of action. The court denied Hooker’s motion for new trial, and he appeals. We find that the trial court erred in concluding that Hooker had not demonstrated the defendants’ liability in light of the earlier default judgment entered against them. We further find that the court erred in failing to consider, in its role as factfinder, whether Hooker was entitled to nominal damages for the breach of contract. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.

1. Hooker argues that the trial court improperly admitted evidence on the issue of the defendants’ liability, notwithstanding that, because of the default judgment, their liability was no longer at issue. The defendants respond that the evidence was relevant to the issue of damages. From the trial court’s order, however, it is clear that the court considered whether Hooker had proved liability and held that he had not. This holding constituted error, because, through their default, the defendants admitted each and every well-pled material factual allegation of Hooker’s complaint, except as to the amount of damages alleged. Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985); Northpoint Group Holdings v. Morris, 300 Ga. App. 491, 495 (2) (685 SE2d 436) (2009); Grand v. Hope, 274 Ga. App. 626, 629-630 (1) (617 SE2d 593) (2005). See also Flanders v. Hill Aircraft & Leasing Corp., 137 Ga. App. 286, 289 (223 SE2d 482) (1976) (holding it was error for trial court to allow defendant to dispute that which it had admitted through default, or, given the defendant’s default, to require plaintiff to prove by a preponderance of the evidence elements of its claims against the defendant, other than damages). Hooker was not required at the bench trial to present any evidence that the contract was breached, but only was required to establish the amount of his damages. OCGA § 9-11-55 (a).

2. Hooker argues that the trial court erred in awarding him no damages. The record supports the court’s finding that Hooker presented no evidence of actual damages in connection with any of his claims. Hooker contends, however, that he was entitled to nominal damages under OCGA § 13-6-6. That Code section provides: “In every case of breach of contract the injured party has a right to damages, but if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.” See King v. Brock, 282 Ga. 56, 57 (646 SE2d 206) (2007) (“Nominal damages come into play when an injured party establishes a breach of contract, but is unable to prove actual damages.”); see also Flanders, 137 Ga. App. at 289 (concerning nominal damages in contract case where plaintiff received default judgment).

The record shows that, during the bench trial, Hooker requested nominal damages for breach of contract. See Bishop v. Intl. Paper Co., 174 Ga. App. 863, 864 (1) (332 SE2d 12) (1985). It appears, however, that the court did not consider the question of Hooker’s entitlement to nominal damages, having instead erroneously found that Hooker had not proved the existence of a breach. Citing Corrosion Control v. William Armstrong Smith Co., 157 Ga. App. 291 (277 SE2d 287) (1981), the defendants contend that this error does not require reversal because the failure to award nominal damages was attributable to the verdict of the trial court, as finder of fact. See id. at 293. In Corrosion Control, however, the trial court, as finder of fact, had determined that the defendant was liable for breach of contract but had found that the plaintiff, nevertheless, was not entitled to damages. Id. at 292. Here, in contrast, the trial court found that Hooker had not demonstrated a breach of contract. Thus, unlike in Corrosion Control, we cannot say that the trial court’s judgment in favor of the defendants represents its verdict, as the trier of fact, that Hooker should not be awarded nominal damages even though the default judgment established that the defendants had breached their contract with him. Under the circumstances of this case, we reverse the trial court’s judgment in favor of the defendants, see Flanders, 137 Ga. App. at 289, and remand the case for the court to consider whether the evidence authorized nominal damages or for other proceedings not inconsistent with this opinion.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Adams, J., concur.

Decided June 22, 2012.

William E. Fields, for appellant.

Ephraim L. Michael, for appellees.


text:
    A11A1876. A12A0283.
    COPENY v. THE STATE. WAKE v. THE STATE.
    (729 SE2d 487)
   Blackwell, Judge.

James Kennedy Copeny, Jr., Jaryn Ware, and Kenneth George Hinton were tried together and each convicted of armed robbery, hijacking a motor vehicle, and two counts of possession of a firearm during the commission of a crime. Copeny and Ware appeal, each contending that the evidence adduced at trial is insufficient to sustain his conviction. In addition, Copeny asserts that the court below improperly commented upon the evidence when it charged the jury, and Ware contends that the court should have merged his convictions for armed robbery and hijacking a motor vehicle. We find no merit in these contentions, and we affirm the judgments of conviction.

1. We turn first to the sufficiency of the evidence. When we consider whether the evidence is sufficient to sustain a conviction, we ask whether any rational jury could have found proof beyond a reasonable doubt of the guilt of the defendant in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to weigh the evidence, pass upon the credibility of witnesses, and resolve conflicts in the evidence. See id. So, if the record contains some competent evidence sufficient to prove beyond a reasonable doubt each element of the crime of which the defendant was convicted, we must uphold the conviction, even if the evidence is contradicted. Id.

Viewed in the light most favorable to the verdict, the evidence in this case shows that the victim met Tinisha Henry when, while driving down a street in Riverdale, the victim saw her walking along the road, stopped to talk with her, and gave his telephone number to her. One evening, Henry called the victim and asked him to meet at a house after he finished work, ostensibly to have a drink. Afew hours later, the victim drove to the place to which Henry had directed him, and when he arrived, he saw Henry standing in the street. After he parked and exited his car, the victim was approached by four men. The men were armed, their faces were concealed, and they informed the victim of their intent to rob him. At trial, the victim testified that one of these men was taller than the others, and the tall one wore a white shirt, while the others wore dark clothing. One of the men took cash and a cell phone from the victim, and Henry took the keys to his car. Henry then drove away in the victim’s car, a Monte Carlo, and the four men drove away in a Lincoln Town Car.

The victim promptly contacted law enforcement, and officers were instructed to be on the lookout for both the Monte Carlo and the Town Car. Officers soon located the Monte Carlo and apprehended Henry. Later, officers also located a Town Car and stopped it. Inside the Town Car, the officers found Copeny, Ware, Hinton, and a fourth man, Malcolm Arnold. The victim was taken to the scene of the stop, and he confirmed that the Town Car that officers had stopped was, in fact, the Town Car in which his assailants had driven away. The victim also viewed the occupants of the Town Car. He was unable to definitively identify any of the occupants as one of his assailants, inasmuch as they had covered their faces during the robbery, but the victim told officers that the height, weight, and attire of the occupants of the Town Car was consistent with that of his assailants. An officer testified at trial that, when the Town Car was stopped, Hinton was wearing a white shirt and was taller than the other occupants, including Copeny and Ware. The officers frisked Arnold, and they found a handgun and the cell phone of the victim on his person. The officers also searched the Town Car, where they found a handgun wrapped in a black face mask, a black hat, black shorts, a black shirt, a black glove, and two hooded sweatshirts.

Officers arrested the men and interviewed Copeny and Ware. In his interview, Copeny said that he had been riding in the Town Car with several others, including Henry and someone known as “Donnio.” Copeny admitted that, when he got into the Town Car, he knew that there were guns in the car. Copeny also admitted that he rode in the Town Car to a vacant house, where, he said, he sat in the car and smoked cigarettes until someone told him to go around to the back of the house. He did so, he said, and from the back of the house, he heard someone say, “Just take it, take what you want.” According to Copeny, he then walked back to the front of the house, saw a man holding up his hands, and observed Henry get into that man’s car and drive it away. By his account, Copeny then returned to the Town Car, in which he rode away.

In a separate interview, Ware admitted that Donnio told him of a plan that involved a woman calling a man and leading the man to believe that she was romantically interested in the man. Then, Donnio told Ware, “they were going to take [the man’s] car.” Ware said that he later traveled with Henry and the others in the Town Car to a vacant house, where Ware went to the rear of the house, while Henry waited in the front. A man arrived, and Ware walked to the front of the house, he admitted, and took money from the pockets of the man. Ware also admitted that he saw two guns during the incident.

(a) As to Copeny, the evidence is sufficient to prove beyond a reasonable doubt that he was a party to the crimes charged. “[A] person who does not directly commit a crime may be convicted upon proof that a crime was committed and that person was a party to it.” Walsh v. State, 269 Ga. 427, 429 (1) (499 SE2d 332) (1998) (citation omitted). Moreover, “whether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.” Id. (citation omitted). And as we have explained before, “[i]f the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor.” McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60) (1991) (citation and punctuation omitted; emphasis in original). See OCGA § 16-2-20 (b) (a person is concerned in the commission of a crime only if, among other things, he directly commits the crime or “[i]ntentionally aids or abets in the commission of the crime”).

Here, the jury readily could conclude that Copeny had knowledge of the crime and shared in the criminal intent of the perpetrators. Copeny accompanied Henry and Donnio to a vacant house after Donnio agreed to help Henry steal a car. The men waited with Henry at the house until, after the victim was contacted, they hid from view. According to Henry, when the victim pulled up, Donnio was positioned behind her so that, when the victim got out of the car, the only person he saw was Henry. The victim testified that four gunmen then appeared “out of nowhere.” Further, Copeny knew guns were in the Town Car before the robbery, he followed instructions to move behind the house before the victim arrived, and he left with the others after the robbery was completed. Whether Copeny was one of the four masked assailants described by the victim or whether, as Copeny claimed, he emerged from behind the house only just before Henry took the victim’s car, any rational jury could conclude that Copeny was not simply an innocent bystander, but one who aided and abetted Henry and the others in effecting the plan to steal the victim’s car. See Williams v. State, 236 Ga. App. 790, 792 (513 SE2d 757) (1999) (evidence sufficient to show defendant was a party to hijacking where defendant made no effort to distance himself from his cohorts as vehicle was being stolen, never offered the victim any help, and drove the stolen vehicle during the month following the hijacking); Lewis v. State, 199 Ga. App. 97, 98 (1) (403 SE2d 814) (1991) (where defendant arrived at crime scene with co-defendant, and did nothing to assist the victim or deter the co-defendant while the co-defendant strangled and robbed the victim, evidence was sufficient to find defendant guilty beyond a reasonable doubt of armed robbery); Lunz v. State, 174 Ga. App. 893, 895 (1) (332 SE2d 37) (1985) (where evidence showed the two co-defendants arrived at the crime scene with the gunman, the three were present at the robbery and shooting, and the two co-defendants left but rejoined the gunman afterward, when he disposed of the gun, evidence was sufficient to show co-defendants were parties to crimes of armed robbery and aggravated assault).

(b) The evidence also is sufficient to sustain Ware’s convictions. Ware admitted that he took money from the victim’s pocket, but he argues that he never admitted to advance knowledge of an armed robbery or a hijacking. Therefore, he contends, Henry’s testimony was the only evidence that he was a party to crimes involving the taking of the victim’s car by use of a handgun, and because Henry was an accomplice, her testimony alone is insufficient. See generally In the Interest of D. J., 253 Ga. App. 265, 266 (558 SE2d 806) (2002) (“[t]he testimony of an accomplice cannot, by itself, establish the guilt of the accused in a felony case”) (footnote omitted). But even slight evidence from an extraneous source is sufficient corroboration to support accomplice testimony, and that evidence may be circumstantial so long as it tends to connect the accused to the crime. See Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010). In this case, the circumstances of the robbery were established by various sources, including the victim, who testified that a gunman took money and a cell phone from his pockets. A rational jury could conclude that Ware knowingly participated in the crimes against the victim and that he was guilty beyond a reasonable doubt of the crimes of which he was convicted. See Norris v. State, 220 Ga. App. 87, 89 (2) (469 SE2d 214) (1996) (where the defendant arrived at the scene with the co-defendants, entered the victim’s house and robbed the victim after he was shot by a co-defendant, and he then left the scene with his co-defendants, the evidence was sufficient to show he was a party to the armed robbery and aggravated assault).

2. Copeny also contends that the trial court improperly commented on the evidence while instructing the jury. During deliberations, the jury sent two notes contemporaneously to the trial court. In the first, the jury asked: “Where is Donn[i]o? Was he indicted?” The second note stated: “Ask the judge the guideline for co[-] conspiracy.” The trial court responded to the first note by informing the jury that “those are facts. I cannot go into the facts. The facts are closed.” The judge added, “That’s immaterial to your consideration of the case anyway, as it would be explained by the re-charge that you have asked for.” The trial court then recharged the jury on party to a crime. Copeny joined in Ware’s objection that the trial court commented on the evidence by informing the jury that it was “immaterial that [Donnio] wasn’t here.”

On appeal, Copeny contends that the trial court violated OCGA § 17-8-57, which provides that “[i]t is error for any judge in any criminal case ... to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” But, “[t]he statute is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.” Jones v. State, 268 Ga. 12, 15 (5) (483 SE2d 871) (1997) (citation and punctuation omitted). Here, the trial judge made it clear to the jury that he would not address the facts of the case. The trial judge’s comment “that’s immaterial” was made, as he said, in contemplation of giving “the re-charge that you have asked for.” In the ensuing instruction, the trial court informed the jury that a party to the crime may be tried, convicted, and punished, “even though the person alleged to have directly committed the crime has not been prosecuted----’’Accordingly, and in context, the record does not show that the trial court expressed any opinion as to what had been proven at trial, and the court did not breach the limitations of OCGA § 17-8-57. SeeBuffington v. State, 171 Ga. App. 919, 923 (8) (321 SE2d 418) (1984) (charge considered as a whole in considering whether trial court improperly expressed an opinion as to the facts). No new trial is required.

3. Ware contends that the trial court erred in denying his motion to merge the offense of armed robbery into the offense of hijacking a motor vehicle for purposes of sentencing. But as Ware acknowledged below, the hijacking statute itself precludes a merger of these offenses. “The offense of hijacking a motor vehicle shall be considered a separate offense and shall not merge with any other offense; and the punishment prescribed by subsection (c) of this Code section shall not be deferred, suspended, or probated.” OCGA § 16-5-44.1 (d). Although Ware apparently questions the wisdom of the legislative choice to punish his crimes in this way, we have found previously “that OCGA § 16-5-44.1 (d) supersedes the double jeopardy provision contained in OCGA § 16-1-7 (a).” Boykin v. State, 264 Ga. App. 836, 842 (6) (592 SE2d 426) (2003). See also Mathis v. State, 273 Ga. 508, 509-510 (1) (543 SE2d 712) (2001) (“OCGA § 16-5-44.1 (d) expresses the clear legislative intent to impose double punishment for conduct which violates both OCGA § 16-5-44.1 (b) and other criminal statutes.”). Accordingly, Ware’s claim is without merit.

Decided June 25, 2012

R. Kipling Jones, for appellant (case no. A11A1876).

Benjamin A. Davis, Jr., for appellant (case no. A12A0283).

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgments affirmed.

Mikell, P. J., and Miller, J., concur.

       OCGA§ 16-8-41 (a).

       OCGA§ 16-5-44.1

       OCGA§ 16-11-106.

       Copeny appeals in Case No. A11A1876, and Ware appeals in Case No. A12A0283. We decide both appeals with this opinion.

       Henry testified at trial and confirmed the role that Donnio, whom she knew as “Dee,” played in the robbery. Henry said that she asked Donnio for his help to steal a car, and he agreed. On the evening of the robbery, she went in the Town Car to a vacant house with Donnio and four other men. According to Henry, Donnio instructed her to call the victim, which she did, and she asked the victim to come see her. When the victim arrived at the vacant house, he was robbed with guns.