author: Branch, Judge.

text:
    A16A2094.
    BIBLER MASONRY CONTRACTORS, INC. v. J. T. TURNER CONSTRUCTION COMPANY, INC. et al.
    (798 SE2d 19)
   Branch, Judge.

After Bibler Masonry Contractors, Inc., finished its work as a subcontractor on a project to renovate the Savannah Law School, it signed — and contends it backdated — a lien waiver in anticipation of final payment from the general contractor. The contractor, however, failed to pay Bibler, and Bibler filed an affidavit of nonpayment with the clerk of court but did so more than 60 days past the date shown on the lien waiver. When Bibler attempted to enforce the lien against the project owner, the trial court granted summary judgment in favor of the owner, holding that the affidavit was untimely under the relevant 60-day deadline. On appeal, Bibler argues that the 60 days should run from the day it actually signed the lien waiver, not from the backdated date. We disagree and affirm the trial court’s ruling.

A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

On appeal from the grant of summary judgment, we construe the evidence most favorably toward the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.

Ansley v. Raczka-Long, 293 Ga. 138, 140 (2) (744 SE2d 55) (2013) (citations omitted); see also Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). Our review is de novo. Ansley, 293 Ga. at 140 (2).

The material facts are not in dispute. Appellee JMLS 1422, LLC, purchased property to house the Savannah Law School and hired J. T. Turner Construction Company (“JTT”) as the general contractor to renovate the property On May 23, 2013, JTT hired Bibler as a subcontractor to perform masonry work on the project. By the end of the project, although Bibler had been paid for most of its work, Bibler asserted that JTT had failed to pay Bibler $105,141.37. In exchange for a statutorily-required “Waiver and Release Upon Final Payment,” JTT promised that the full and final payment would be made. Bibler signed the waiver and release and dated it December 22, 2014; a witness also signed it. On February 17, 2015, Bibler forwarded the signed waiver to JTT, again demanding that Bibler be paid in full; JTT appears to have received the document that same day as evidenced by a stamp on its face. Payment never came, however, and on February 27, 2015, Bibler filed an affidavit of nonpayment with the applicable clerk of court, which, as shown below, is required by statute to suspend the effect of the waiver and release. On March 5, 2015, Bibler then recorded its claim of lien in the amount of $105,141.37 against the project real estate owned by JMLS, but no payment was ever received.

In May 2015, Bibler filed suit against JTT and JMLS, raising several claims against JTT and asserting a right to an accounting and to foreclose on the lien against JMLS. Bibler also recorded a notice of its action to foreclose. Eventually Bibler settled its claims against JTT and entered into a consent judgment in the amount of $105,141.37, thereby leaving only the lien and accounting claim pending against JMLS. Bibler and JMLS then filed cross-motions for summary judgment on those claims.

Although the trial court agreed that Bibler had established a prima facie case that it complied with its subcontract but was not paid in full, the trial court found that Bibler’s affidavit of nonpayment was untimely in that it was not filed within 60 days of execution of the waiver and release as required by OCGA § 44-14-366 (f) (2). In so doing, the court found

that the only evidence in the record as to the date of execution of the Waiver and Release is the date contained on the face of the document, that being December 22, 2014. At best, Bibler has produced an affidavit indicating that Bibler submitted an executed Waiver to [JTT] on February 17, 2015. This submission date, however, sheds no additional light on the question of when the document was actually executed.

(Footnote omitted.) The court therefore granted summary judgment in favor of JMLS. On motion for reconsideration, Bibler filed an additional affidavit in which the person who signed the waiver and release on behalf of Bibler averred that she actually signed it on February 17, 2015, but backdated it to December 22, 2014, the date of substantial completion of the project, at the request of JTT. After the trial court denied Bibler’s motion for reconsideration, Bibler filed this appeal, which requires us to construe the applicable statute.

When construing a statute, “we must presume that the General Assembly meant what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted). Thus if the language of the statute “is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (citation omitted). Where terms of art are not involved, we look to the common and customary usages of the words and their context. Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 SE2d 688) (2015). “For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.” Id. (citation and punctuation omitted). Finally, in this State “lien statutes in derogation of the common law must be strictly construed in favor of the property owner and against the materialman.” Few v. Capitol Materials, 274 Ga. 784, 785 (1) (559 SE2d 429) (2002) (citation omitted).

The rationale is that there is usually no contract between the owner and supplier. Instead, a materialman’s lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used in improving real estate to the owner of the improved property.

Id. (citation and punctuation omitted).

The lien statute, among other things, allows that once the labor, services, or materials have been furnished by a materialman such as Bibler, a contractor may ask the materialman “to execute a waiver and release in exchange for or in order to induce making of final payment.” OCGA § 44-14-366 (d). The waiver and release must substantially follow a form provided for that purpose in the statute, and it must include certain notice language. Id. The statutory form, in relevant part, provides:

UPON THE RECEIPT OF THE SUM OF $_, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY. GIVEN UNDER HAND AND SEAL THIS_DAY OF _(SEAL) (WITNESS) NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. SECTION 44-14-366.

(Emphasis supplied.) Thus, the materialman must sign and date the document, and a witness must sign it. Here, Bibler signed and dated the waiver and release, and a witness signed. The mandatory statutory notice, which Bibler’s waiver and release includes, requires that any affidavit of nonpayment must be filed within 60 days of the date given on the form.

A subsequent subsection of OCGA § 44-14-366 undergirds the required notice language found in the statutory form. Subsection (f) provides that once a waiver and release has been signed, “it shall be binding against the claimant for all purposes, subject only to payment in full of the amount set forth in the waiver and release.” OCGA § 44-14-366 (f) (1). The subsection continues:

Such amounts shall conclusively be deemed paid in full upon the earliest to occur of: (A) Actual receipt of funds; (B) Execution by the claimant of a separate written acknowledgment of payment in full; or (C) Sixty days after the date of the execution of the waiver and release, unless prior to the expiration of said 60 day period the claimant files a claim of lien or files in the county in which the property is located an affidavit of nonpayment^]

OCGA § 44-14-366 (f) (2). As shown, this subsection provides that any affidavit of nonpayment must be made prior to the expiration of the 60-day period “after the date of the execution of the waiver and release.” Id. And normally, to “execute” a written agreement means “[t]o make (a legal document) valid by signing; to bring (a legal document) into its final, legally enforceable form.” See Black’s Law Dictionary (10th ed. 2014).

Bibler contends that the statute contains an ambiguity regarding whether an affidavit of nonpayment must be filed within 60 days after the date shown on the waiver and release or within 60 days after the date on which the materialman actually signed the waiver and release. In that regard, Bibler contends that summary judgment was not appropriate because there is an issue of fact as to when it actually signed the waiver and release. Bibler also argues that the words “and submit” found in the required notice language in the required statutory form of the waiver and release indicate that the 60-day period does not begin to run until it is delivered to the contractor, which Bibler allegedly did on the same day that it signed and allegedly backdated the document.

Decided March 6, 2017.

We hold that taken in context and construing the lien statute in favor of the property owner, the statutory language, which includes the mandatory notice language in the form, see Ga. L. 2008, pp. 1063, 1068, § 5, shows that the materialman must file any notice of nonpayment within 60 days of the date shown on the waiver and release. The plain language of the statute, including the form, shows that the materialman is required to sign and date a lien waiver and release before a witness to that signature. The most clearly written phrase of the statute is found in the form, and it provides that the period in which the affidavit of nonpayment must be filed is within “60 DAYS AFTER THE DATE STATED ABOVE,” i.e., the date the material-man wrote on the waiver and release when he or she signed the document before a witness. To read the statute as proposed by Bibler would allow the materialman and the contractor to create an issue of fact where none exists on the face of the lien waiver itself and give the materialman a way to alter the dictated deadlines found in the statute to the detriment of the property owner. Although the definition of execution can mean the day a document is signed, we find no basis for reading this statute to authorize backdating a document to control a time deadline, and we will not assume that the legislature so intended. The same clear language and above reasoning controls Bibler’s second argument, that based on the wording of the notice language in the form, the date Bibler mailed the waiver to JTT should establish the beginning of the 60-day period.

In sum, the trial court correctly held that the 60-day period at issue in this case begins to run from the date shown on the waiver and release and that, therefore, Bibler failed to file the affidavit of nonpayment necessary to pursue its lien against JMLS within the statutorily-required time period.

Judgment affirmed.

Ellington, P. J., and Mercier, J., concur.

Weissman Zucker Euster Morochnik, Scott I. Zucker, J. Ashley Oblinger; Brannen, Searcy & Smith, Ashlee H. Vaught, for appellant.

McCorkle & Johnson, David H. Johnson; Bouhan Falligant, Margaret W. S. Puccini, Andrew H. Dekle, for appellees.


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A16A1668.
    COURTNEY v. THE STATE.
    (797 SE2d 496)
   DOYLE, Chief Judge.

Christopher Courtney was charged with sexual exploitation of children by distributing child pornography from his computer. We granted Courtney’s application for interlocutory appeal to consider whether the trial court erred by denying his motion to suppress identifying Internet subscriber information obtained by police pursuant to an administrative subpoena issued under OCGA § 16-9-108 (a). Because Courtney lacks standing to challenge the search of his Internet provider (“IP”) for identifying information, we affirm.

“ ‘On appellate review of a ruling on a motion to suppress, the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.’ ”

Here, the relevant facts are undisputed. A detective with the Liberty County Sheriff’s Office monitors the Internet for child pornography activity. After noticing an increase in activity from a certain IP address, the detective used an “administrative subpoena,” issued by the district attorney’s office, to obtain identifying information from the IP — CenturyTel/CenturyLink (“Century”) —including the physical address associated with the IP address. Once Century provided the physical address, the detective obtained a subpoena from the magistrate court and searched computers at the residence. That search led to Courtney’s arrest.

Courtney moved to suppress the information obtained from Century, arguing that the detective’s use of an administrative subpoena pursuant to OCGA § 16-9-108 (a), rather than a search warrant or court order pursuant to OCGA § 16-9-109 (b), was illegal because the latter statute provides the exclusive mechanism through which an IP may be compelled to disclose subscriber information. The trial court denied the motion but certified its ruling for immediate review. This application and appeal followed.

Before we can consider Courtney’s challenge to the legality of the search of his subscriber information from Century, we must consider whether Courtney has standing to challenge that search. “[D]emon-strating standing is a threshold burden for suppression of the evidence.” “In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.”

This Court previously has held that an Internet service customer has no reasonable expectation of privacy in subscriber information that he voluntarily conveys to an IP, noting “that the United States Supreme Court and Georgia appellate courts have held that a person has no reasonable expectation of privacy in information voluntarily conveyed to another.” Accordingly, under Ensley, Courtney lacked standing to bring a Fourth Amendment challenge to the search of Century for his subscriber information.

Here, however, Courtney contends that OCGA § 16-9-109 (b) grants him a reasonable expectation of privacy in the information listed therein, including his name and address, because it defines the circumstances under which an IP may be compelled to disclose that information to a law enforcement agency This argument is without merit because, as explained below, OCGA § 16-9-109 (b) addresses the disclosure obligations of third-party IPs, not individual criminal defendants.

Title 16, Chapter 9, Article 6 is the “Georgia Computer Systems Protection Act” (the “Act”). Part 3 of the Act is entitled “Investigation of Violations.” OCGA § 16-9-108 (a) provides that in any investigation of certain statutory violations, including the one Courtney is charged with violating — OCGA § 16-12-100 —

. . . the Attorney General or any district attorney shall have the power to administer oaths; to call any party to testify under oath at such investigation; to require the attendance of witnesses and the production of books, records, and papers; and to take the depositions of witnesses. The Attorney General or any such district attorney is authorized to issue a subpoena for any witness or a subpoena to compel the production of any books, records, or papers.

OCGA § 16-9-109, which is more narrow, addresses only disclosures by IPs. Subsection (a) of that Code section provides that law enforcement units and prosecutors may require IPs to disclose the contents of electronic communications if they obtain a search warrant from an appropriate court. Subsection (b) provides:

(1) Any law enforcement unit [or prosecutor] may require [an IP] to disclose a record or other information pertaining to a subscriber to or customer of such service, exclusive of the contents of communications, only when any law enforcement unit, the Attorney General, or any district attorney:
(A) Obtains a search warrant as provided in Article 2 of Chapter 5 of Title 17;
(B) Obtains a court order for such disclosure under subsection (c) of this Code section; or
(C) Has the consent of the subscriber or customer to such disclosure.
(2) [An IP] shall disclose to any law enforcement unit, the Attorney General, or any district attorney the:
(A) Name;
(B) Address;
(C) Local and long distance telephone connection records, or records of session times and durations;
(D) Length of service, including the start date, and types of service utilized;
(E) Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(F) Means and source of payment for such service, including any credit card or bank account number of a subscriber to or customer of such service when any law enforcement unit [or prosecutor] uses a subpoena authorized by Code Section 16-9-108, 35-3-4.1, 45-15-17 or a grand jury or trial subpoena when any law enforcement unit [or prosecutor] complies with paragraph (1) of this subsection.

Decided February 17, 2017

Reconsideration denied March 7, 2017

The Schneider Law Firm, Cris E. Schneider; Jason R. Clark, for appellant.

Tom Durden, District Attorney, Melissa L. Poole, Assistant District Attorney, for appellee.

Thus, OCGA § 16-9-109 (b) sets forth the process by which a district attorney “may require [an IP] to disclose [certain subscriber information].” Nothing in this Code section prohibits the IP from disclosing the information to the district attorney, law enforcement, the Attorney General, or for that matter, anyone else. OCGA § 16-9-109 (b) does not grant Courtney a reasonable expectation of privacy in subscriber information he voluntarily conveyed to the IP Accordingly, he does not have standing to challenge the search, and we affirm the trial court’s denial of his motion to suppress.

Judgment affirmed.

Andrews and Ray, JJ., concur.

       OCGA § 16-12-100 (b) (1), (5).

        State v. Walker, 295 Ga. 888, n. 1 (764 SE2d 804) (2014), quoting Registe v. State, 292 Ga. 154, 155-156 (734 SE2d 19) (2012).

       The subpoena specifically references OCGA §§ 16-9-108, 45-15-10, and 45-15-17. OCGA §§ 45-15-10 and 45-15-70, which grant the Attorney General authority to prosecute and investigate matters involving State affairs, do not apply to this case, which involves an alleged violation of OCGA § 16-12-100 (b) and a subpoena issued by an assistant district attorney, not the Attorney General.

        Hampton v. State, 295 Ga. 665, 669 (2) (763 SE2d 467) (2014), citing Rakas v. Illinois, 439 U. S. 128, 130, n. 1 (99 SCt 421, 58 LE2d 387) (1978).

       (Punctuation omitted.) Ensley v. State, 330 Ga. App. 258 (765 SE2d 374) (2014), quoting Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008).

        Ensley, 330 Ga. App. at 258-259 (collecting cases), citing Hatcher v. State, 314 Ga. App. 836, 837-839 (1) (726 SE2d 117) (2012) (physical precedent only).

       OCGA § 16-9-90.

       (Emphasis supplied.)


author: MERCIER, Judge.

text:
    A16A1557.
    A16A1558.
    THE MEDICAL CENTER OF CENTRAL GEORGIA, INC. v. HOSPITAL AUTHORITY OF MONROE COUNTY. GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. HOSPITAL AUTHORITY OF MONROE COUNTY.
    (798 SE2d 42)
   MERCIER, Judge.

In these related discretionary appeals, The Medical Center of Central Georgia, Inc. (“MCCG”) and the Georgia Department of Community Health (the “Department”) (collectively, “Appellants”) appeal the judgment of the Superior Court of Monroe County (the “Superior Court”) reversing the Department’s grant of a letter of nonreviewability (“LNR”) to MCCG for the acquisition of diagnostic equipment to be installed in a medical office building.

1. As a threshold matter, we address the Department’s Motion to Vacate Judgment Under Review and Remand For Dismissal in Case No. A16A1558. Appellee, the Hospital Authority of Monroe County (d/b/a Monroe County Hospital) (“MCH”), filed in both cases a supplemental brief stating that “MCH and MCCG have negotiated a business and clinical affiliation that would include shared use of the imaging center at the core of this appeal. MCH and MCCG reached an agreement. . . that will, when finally executed, resolve the matter at issue in this appeal.” Thus, MCH stated that it “will no longer defend the Superior Court Order overturning the [Department’s] decision.” The supplemental briefs were submitted concurrently with motions to withdraw MCH’s requests for oral argument in these cases.

The Department contends that its appeal from the Superior Court’s judgment is thereby rendered moot, but because the mootness was created by circumstances outside of the Department’s control, we should vacate the judgment and remand the cases. See Pimper v. State of Ga., 274 Ga. 624, 626-627 (555 SE2d 459) (2001); Babies Right Start v. Ga. Dept. of Public Health, 293 Ga. 553, 555 (2) (a) (748 SE2d 404) (2013).

Contrary to the Department’s contention, a ruling by this Court in this case would not constitute an advisory opinion or a determination of only abstract questions. MCH’s briefs indicate that there is an anticipated resolution of the issues between MCH and MCCG, but the record does not demonstrate that a final resolution has been achieved, or that the Superior Court’s reversal of the Department’s grant of the LNR to MCCG has been rendered moot from the perspective of MCCG. See In the Interest of M. D. H., 334 Ga. App. 394, 395 (1) (779 SE2d 433) (2015); compare Pimper, supra; Babies Right Start, supra. The motion to vacate and remand is therefore denied, and we consider herein the contentions raised by Appellants.

MCCG contends that the Superior Court erred in (1) determining that the Department’s interpretation of the phrase “offered in a hospital” violates the equipment threshold provision in OCGA § 31-6-40 (a) (3); (2) concluding that the Department exceeded its statutory authority by applying said provision to a hospital-based outpatient imaging center that is not located on a hospital’s main campus; (3) ordering the Department to investigate certain expenditures related to the purchase and renovation of the medical office building intended to house the equipment that is the subject of the LNR; and (4) concluding that the exemption provisions of the Certificate of Need Act are subject to the capital expenditure threshold. The Department contends that the Superior Court erred in (1) finding that the Department’s final decision was contrary to the equipment threshold provision in OCGA § 31-6-40 (a) (3); (2) finding that the

Department enacted a “hospital-based rule”; (3) finding that the Department abused its discretion by not conducting an investigation of the Monroe Regional Medical Complex; (4) ordering the Department to conduct an investigation of the costs of the Monroe Regional Medical Complex; and (5) reversing the Department’s final decision where there was no genuine issue of material fact as to either prong of the equipment threshold provision analysis. For the reasons that follow, we reverse the judgment of the Superior Court.

2. The Department is authorized to administer Georgia’s certificate of need (“CON”) program, codified at OCGA § 31-6-40 et seq. See OCGA § 31-6-21. The Department is authorized to “adopt, promulgate, and implement rules and regulations sufficient to administer” the program. OCGA § 31-6-21 (b) (4). Generally, when a party seeks to establish a “new institutional health service,” it must obtain a CON. OCGA § 31-6-40 (a). A party seeking approval for an activity that is believed not to be subject to the CON requirement based on the equipment threshold must provide prior notice to the Department of such activity and obtain an LNR. OCGA § 31-6-47.1; Ga. Comp. R. & Regs., r. 111-2-2-. 10; see OCGA § 31-6-40 (a) (3).

MCCG is a not-for-profit hospital, and its main campus is located in Macon, Bibb County, Georgia. MCH is a political subdivision of the State of Georgia, organized under the Georgia Hospital Authorities Law, OCGA § 31-7-70 et seq., and operates a hospital in Forsyth, Monroe County, Georgia. In 2013, MCCG proposed to establish a diagnostic suite at a medical office complex in Forsyth, Georgia, located in Monroe County, approximately 25 miles from MCCG’s main campus. MCCG submitted an LNR request to the Department in August 2013, seeking a determination that its acquisition of a CT scanner, mammography equipment, and an x-ray machine did not require a CON. The application stated that the total value of the equipment and related items to be purchased was $701,032.30. Of that amount, the total value of the CT scanner and related items was $419,669.20.

MCCG’s LNR request was based on OCGA § 31-6-40 (a) (3) (referred to herein as the “equipment threshold provision”), which provides that “new institutional health services” requiring a CON include

[t]he purchase or lease by or on behalf of a health care facility or a diagnostic, treatment, or rehabilitation center of diagnostic or therapeutic equipment with a value in excess of $1 million [adjusted annually based on the consumer price index]; provided, however, that diagnostic or other imaging services that are not offered in a hospital or in the offices of an individual private physician or single group practice of physicians exclusively for use on patients of that physician or group practice shall be deemed to be a new institutional health service regardless of the cost of equipment; and provided, further, that this shall not include build out costs, as defined by the department, but shall include all functionally related equipment, software, and any warranty and services contract costs for the first five years.

MCH filed a written objection to MCCG’s LNR request, arguing that the diagnostic equipment would not be offered in a hospital, and that even if the purchases were for hospital-based equipment, they would exceed the capital expenditure threshold underOCGA § 31-6-40 (a) (2) (any expenditure in excess of $2.5 million), and thus were subject to CON review. MCH argued that the expenses purportedly incurred in connection with the medical complex should be examined to determine whether they were necessary to the installation of the equipment at issue but not identified in the LNR request, and that the purchase of the equipment was part of a larger project whose aggregate cost exceeded the capital expenditure threshold in OCGA § 31-6-40 (a) (2).

The Department granted the LNR to MCCG, finding that the equipment was for use “in a hospital.” It found that mammography and x-ray equipment were not subject to CON review or the diagnostic imaging equipment threshold, and that the CT scanner and related costs were below the then-current equipment threshold of $1,126,874 for diagnostic imaging services offered in a hospital. Further, the Department found that the costs of the medical office building were not simultaneously developed and associated with the purchase of the equipment, based on MCCG having “confirmed” that the costs associated with the building were incurred approximately three years prior, citing Ga. Comp. R. & Regs., r. 111-2-2-.01 (8) (a), (b) (which provide that activities, services, expenditures and items are associated and simultaneously developed or planned if they occur within a six-month period), andnotingthatpursuanttoOCGA § 31-6-40 (a) (3), build-out costs related to diagnostic and therapeutic equipment are excluded from the calculation of the equipment threshold.

MCH requested a fair hearing under the Georgia Administrative Procedure Act (“APA”). MCCG moved for summary adjudication. A hearing was held on September 4, 2014. The Department-appointed hearing officer granted summary adjudication to MCCG on November 5, 2014, concluding that there was no genuine dispute of material fact as to the issue of whether the proposed equipment purchase was for use in a hospital and that the value of the equipment was below the equipment threshold. In addition to the statutory and regulatory grounds cited in the LNR, the hearing officer noted that the medical office building was not purchased or renovated by MCCG and the costs associated with it should not be included in the equipment threshold calculation.

MCH requested a review of the hearing officer’s decision by the Department’s Commissioner. On December 30, 2014, the Commissioner issued a final decision affirming the hearing officer’s decision and the grant of the LNR (the “Final Decision”). MCH then filed a petition for judicial review in the Superior Court of Monroe County, contending that the Department’s interpretation of the statutory phrase “offered in a hospital” in OCGA § 31-6-40 (a) (3) violated the plain language of the statute and exceeded the Department’s statutory authority, and further arguing that the Department abused its discretion by not investigating expenditures related to the purchase and renovation of the medical office complex. The Superior Court reversed the Final Decision on the following grounds: (1) the Final Decision was contrary to the equipment threshold provision; (2) The Department exceeded its authority in enacting a “hospital-based rule”; and (3) the Department abused its discretion in failing to investigate MCCG’s expenditures on the medical office complex. The Superior Court reversed the Final Order, ordered MCCG to apply for a CON for the diagnostic equipment, and ordered the Department to conduct an investigation into the costs of the medical office complex.

3. We agree with Appellants that the Superior Court erred in determining that the Department’s interpretation of the phrase “offered in a hospital” violates the equipment threshold provision in OCGA § 31-6-40, in concluding that the Department exceeded its statutory authority by applying said provision to a hospital-based outpatient imaging center, and in finding that the Department enacted a “hospital-based rule.”

The Georgia APA, OCGA § 50-13-1 et seq., provides for the review by the superior courts of final agency decisions.

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

OCGA § 50-13-19 (h). “Pursuant to this Code section, courts review agency findings of fact to determine whether they are supported by any evidence. And in considering agency conclusions of law, courts conduct a de novo review.” Infinite Energy v. Ga. Public Svc. Comm., 257 Ga. App. 757, 758 (1) (572 SE2d 91) (2002) (footnotes omitted).

While reviewing courts defer to agency interpretations of the statutes they are charged with administering, that deference applies only as far as the agency interpretation is consistent with the statute. Administrative agencies may not change a statute by interpretation, or establish different standards within a statute that are not established by a legislative body [The Department] is authorized only to adopt and implement rules sufficient to administer the Act’s provisions, including the CON program. The judicial branch determines independently whether the agency’s interpretation correctly reflects the plain language of the statute and comports with the legislative intent. If reviewing courts find that [the Department] has acted within the authority granted the agency by statute, they defer to [the Department’s] interpretation and application of the CON statute and the rules and regulations it has enacted to fulfill the function given it by the legislative branch.

Palmyra Park Hosp. v. Phoebe Sumter Med. Center, 310 Ga. App. 487, 491 (1) (714 SE2d 71) (2011) (citations and punctuation omitted).

The Superior Court found that the Department’s interpretation of the phrase “in a hospital” in OCGA § 31-6-40 (a) (3) was contrary to that statute’s plain meaning. We disagree. Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). The Superior Court acknowledged this principle, but found that “[n]o ordinary understanding of this term would include services offered in a medical mall nearly 25 miles from the sponsoring hospital.” The Superior Court’s interpretation is contrary to the definition given by the legislature to the term “hospital”; the latter defines “hospital” as:

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its “plain and ordinary meaning,” we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.
an institution which is primarily engaged in providing to inpatients, by or under the supervision of physicians, diagnostic services and therapeutic services for medical diagnosis, treatment, and care of injured, disabled or sick persons or rehabilitation services for the rehabilitation of injured, disabled, or sick persons. Such term includes public, private, psychiatric, rehabilitative, geriatric, osteopathic, and other specialty hospitals.

(Emphasis supplied.) OCGA § 31-6-2 (21). This definition is not limited to a particular location, and nothing in OCGA § 31-6-40 indicates that a different definition is to be used therein, or that this applicable definition is to be limited in the context of the equipment threshold provision.

We disagree with MCH and the Superior Court that the use of the phrase “part of a hospital” elsewhere in the Health Planning Act requires that the phrase “in a hospital” be interpreted to include a geographical limitation. MCH points to Ga. Comp. R. & Regs., r. 111-2-2-.40, regarding ambulatory surgery service, as an example, and the Superior Court referenced that rule as a comparison as well. This rule provides that if the ambulatory surgery service is or will be provided as “part of a hospital,” the hospital’s provision of such service is not subject to CON review; it further provides that such services are always considered to be “part of a hospital” if (1) the service is located within the hospital, or (2) if the service is located in a building on the hospital’s primary campus and that building, or relevant portion thereof, is included in the hospital’s permit; and the Department will make determinations of reviewability on a case-by-case basis in other situations involving hospitals. Ga. Comp. R. & Regs., r. 111-2-2-.40 (1). MCH contends, and the Superior Court held, that the Department’s interpretation of “in a hospital” is inconsistent with this rule because if “hospital” includes an entire institution, without geographical limits, then the second part of the definition of “part of a hospital” in this rule would be unnecessary.

It is true that we must “avoid constructions that make some language mere surplusage or meaningless,” construe a statute “in relation to other statutes of which it is a part,” and construe together and harmonize “all statutes relating to the same subject-matter” wherever possible. Aimwell, Inc. v. McLendon Enterprises, Inc., 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012). But it would be improper to overlook the statutory definition of a term and assume that a different meaning applies based on this limited definition of a similar phrase in an inapplicable Department rule. The definition of “part of a hospital” in the ambulatory surgery service rule is limited to that specific rule and does not conflict with the legislature’s definition of the term “hospital” used in OCGA § 31-6-40. See Ga. Comp. R. & Regs., r. 111-2-2-.40 (1) (a).

MCH contends that an institution-wide interpretation of “in a hospital” is contrary to the importance of geography in the context of the Health Planning Act and the Department’s rules, citing several examples throughout the Health Planning Act and the related Department rules in which the scope of CONs or exceptions thereto are geographically limited. However, no such restriction or condition was provided in the portion of the equipment threshold provision at issue here, and we can assume that the legislature would have provided such a restriction or condition if it intended to do so, as it did elsewhere in the statute. See Deal, supra.

The Superior Court erred in holding that the Department’s interpretation of the phrase “offered in a hospital” is contrary to the equipment threshold provision in OCGA § 31-6-40, and in holding that the Department exceeded its statutory authority in finding that a hospital-based outpatient imaging center is included in services that are offered “in a hospital.” Further, the Superior Court was incorrect in holding that the Department had created a hospital-based rule, where the Department was applying the statutory provision. We therefore reverse the trial court’s reversal of the Final Decision as to the grant of the LNR.

4. We agree with the Department and with MCCG that the Superior Court exceeded its jurisdiction in ordering the Department to investigate certain expenditures related to the purchase and renovation of the medical office complex. Whether the Superior Court had jurisdiction to do so is a question of law that we review de novo. Walker v. Dept. of Transp., 279 Ga. App. 287, 288 (1) (630 SE2d 878) (2006).

Ga. Comp. R. & Regs., r. 111-2-2-.10 (6) authorizes a party who opposes the Department’s determination approving a request for an exemption to obtain “judicial review of a final decision in the same manner and under the same provisions as in OCGA § 31-6-44.1 and Rule 274-1 et seq.” The reviewing court may affirm the decision of the agency, remand the case for further proceedings or, under certain circumstances, reverse or modify the decision. OCGA §§ 50-13-19 (h); 31-6-44.1 (a); see Ga. Comp. R. & Regs., r. 274-1-.20.

Here, the Superior Court stated:

Having concluded that the [diagnostic [ejquipment should have undergone CON review, this [cjourt turns its attention to the Monroe Regional Medical Complex as a whole. MCH does not contend in this appeal that MCCG’s past spending on the Monroe Regional Medical Mall Complex was reviewable as part of the instant LNR application, but rather that its opposition to the LNR put [the Department] on notice of spending that likely would have required a CON under OCGA § 31-6-40 (a) (2) . . . , and [the Department] abused its discretion in failing to investigate such spending.

By the Superior Court’s own description, this issue was outside the scope of its review of the Department’s Final Decision regarding the grant of the LNR for specific equipment, and MCH cites no authority for a superior court to order the Department to conduct investigations. The Department has the authority to make public or private investigations or examinations to determine whether the provisions of Chapter 6 of Title 31 have been violated, and interested persons may bring an action for injunctive relief to enforce the provisions of the chapter. OCGA § 31-6-45 (d) and (e); compare Diversified Health Mgmt. Svcs., Inc. v. Visiting Nurses Assn. of Cordele, Inc., 254 Ga. 500, 502 (4) (330 SE2d 885) (1985). However, the Department was under no obligation to conduct an investigation, and the initiation of such an investigation is “in the discretion of the [Department.” OCGA § 31-6-45 (e); Ga. Comp. R. & Regs., r. 111-2-2-.05 (3). Therefore, insofar as the Superior Court’s judgment orders the Department to investigate spending related to the medical complex, it is reversed.

Having reversed the Superior Court’s judgment which (a) reversed the Final Decision as to the grant of the LNR, and (b) ordered the Department to conduct an investigation, we need not address Appellants’ remaining contentions.

Decided March 7, 2017.

Parker, Hudson, Rainer & Dobbs, Armando L Basarrate II, Elizabeth C. Murphy, for appellant (case no. A16A1557).

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney Gen eral, Daniel S. Walsh, Senior Assistant Attorney Gen eral, Mon ica A. Sullivan, Forrest G. Pearce, Assistant Attorneys General; Clyde L. Reese III, Rachel L. King, Roxana D. Tatman, for appellant (case no. A16A1558).

William H. Boling, Jr., Mason E. Felton-Reid, for appellee.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.

       “Institution” is pertinently defined as “an established organization or corporation (as a bank oruniversity) especially of a public character.” https://www.merriam-webster.com/dictionary/ institution. Other definitions include “a significant practice, relationship, or organization in a society or culture”; “something or someone firmly associated with a place or thing”; and “a facility or establishment in which people (such as the sick or needy) live and receive care typically in a confined setting and often without individual consent.” Id.


author: McFADDEN, Presiding Judge.

text:
    A16A1610.
    In the Interest of D. W. et al., children.
    (798 SE2d 49)
   McFADDEN, Presiding Judge.

We granted discretionary appellate review of the juvenile court’s order terminating the parental rights of a mother to four of her minor children — eight-year-old D. W., six-year-old E. W., five-year-old T. W., and four-year-old A. W. The mother argues on appeal that there was not clear and convincing evidence to support the juvenile court’s conclusion that the cause of the children’s dependency was likely to continue. Because the juvenile court’s order does not specify which of its many detailed findings support her conclusion that the cause of the children’s dependency was likely to continue, it is insufficient to enable appellate review of this issue. So we vacate the judgment below and remand the case for entry of a properly supported order based on the evidence in the case.

1. Facts and procedural posture.

The evidence, viewed in the light most favorable to the juvenile court’s decision, see In the Interest of C. S., 319 Ga. App. 138, 139 (735 SE2d 140) (2012), shows that the children experienced a very chaotic, traumatic, and violent home life. Their father physically abused their mother, and their mother — a methamphetamine addict — made repeated allegations that their father physically and sexually abused the children. The children were removed from the mother’s custody due to her addiction, and for several years, as their mother spent time in domestic violence shelters and rehabilitation facilities, the children alternated between the custody of the Department of Family and Children Services (“DFCS”) and the custody of their father. Ultimately the father and mother reunited and later married.

This proceeding commenced in June 2014 when the mother made a new allegation against the father — that he was sexually abusing the oldest child, D. W. — and DFCS filed a complaint that led the juvenile court to remove all of the children from the parents’ home and place them in foster care. The psychologist who initially evaluated the children at DFCS’s request testified that the dysfunction in their household “was having a very negative impact on the children. The children were all significantly disturbed, having severe problems.” This psychologist believed that the children’s behavior was consistent with sexual abuse or exposure.

When they entered foster care, the four children all displayed significant emotional and behavioral problems. DFCS initially attempted to place the children in the same foster home, but that placement was unsuccessful due to the children’s disruptive behavior. At the foster parent’s request, the four children were removed from that home. DFCS then placed D. W., T. W., andA. W. in one new foster home and E. W. in a different new foster home. The children received counseling, and all but A. W. showed emotional and behavioral progress in their new foster homes. A. W.’s behavior declined in the foster home with her two brothers, and shortly before the termination hearing she was removed from that home because of her aggressive and sexual behavior toward them. Her behavior improved when she was placed in a different, foster home by herself. The two boys who remained in the same foster home — D. W. and T. W. — could not be in each other’s presence unsupervised because of acts of aggression and sexual behavior between them, and at the time of the termination hearing T. W.’s behavior was beginning to decline. At the time of the termination hearing, only A. W. had a potential adoptive family

The juvenile court adjudicated the children dependent as to both parents. As to the mother, the juvenile court found that she had stipulated to the following causes of the children’s dependency: inadequate or unstable housing; unstable employment or income; methamphetamine abuse; neglect or lack of supervision; and domestic violence. The juvenile court found that the mother had also stipulated to the following as a cause of dependency: “Counseling needed to address mental health and behavioral needs of children. Children exhibit aggressive behaviors and sexually acting out on each other. Clearly, they have been exposed to inappropriate sexual content or witnessed sexual situations.” The juvenile court initially directed DFCS to prepare a reunification case plan for the mother requiring her to become and remain drug- and alcohol-free; complete a substance abuse program and follow any recommendations made; submit to random drug screens; complete a psychological evaluation and follow any recommendations made; receive treatment for domestic violence; refrain from exposing the children to domestic violence; obtain and maintain safe, stable housing; maintain a stable, legal income; complete parenting classes and demonstrate skills learned; and maintain a bond with the children through regular visitation. Based on evidence presented at the termination hearing, the juvenile court found that the mother had “actively worked, and completed, the requirements of her case plan.”

Nevertheless, on May 22, 2015, DFCS petitioned to terminate the mother’s parental rights to the children. DFCS alleged, among other things, that the children remained dependent due to the mother’s inability to meet their mental health and behavioral needs. DFCS stated that

there exists parental misconduct or inability relative to the . . . children within the meaning of OCGA § 15-11-311 (a) (1) due to a medically verified deficiency of such children’s mother’s physical, mental, or emotional health that is of such duration or nature so as to render the mother unable to provide adequately for her children.

After receiving evidence at the termination hearing, the juvenile court entered an order terminating the mother’s parental rights to the four children. (The juvenile court also terminated the father’s parental rights, and the father has not challenged that order in this appeal. At the time of the termination hearing, the mother was attempting to serve the father with a complaint for divorce.)

2. Applicable law.

Georgia’s new Juvenile Code applies to this case, because it concerns a juvenile proceeding commenced in 2014. See Ga. L. 2013, pp. 294, 514, § 5-1; In the Interest of M. F. 298 Ga. 138, 140 (1), n. 4 (780 SE2d 291) (2015). Like Georgia’s former Juvenile Code, the new Juvenile Code provides a two-step process for determining whether to terminate parental rights. A juvenile court must strictly follow this statutory process. In the In terest of T. Z. L., 325 Ga. App. 84, 100 (1) (b) (751 SE2d 854) (2013). In considering whether to terminate parental rights, the juvenile court must “first determine whether one of [five specified] statutory grounds for termination of parental rights has been met[.]” OCGA § 15-11-310 (a). The ground pertinent to this appeal requires the juvenile court to examine the circumstances and causes of a child’s dependency, which is defined as the child’s “abuse [ or neglect[ ] and . . . need of the protection of the court[.]” OCGA § 15-11-2 (22). Under this ground, the juvenile court must determine whether the child’s dependency is

due to lack of proper parental care or control by his or her parent, [whether] reasonable efforts to remedy the circumstances have been unsuccessful or were not required, [whether] such cause of dependency is likely to continue or will not likely be remedied, and [whether] the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.

OCGA § 15-11-310 (a) (5).

“If any of the statutory grounds for termination has been met, the [juvenile] court shall then consider whether termination is in a child’s best interest[ ] after considering [several specified] factors[.]” OCGA § 15-11-310 (b). “In all proceedings under this article, the standard of proof to be adduced to terminate parental rights shall be by clear and convincing evidence.” OCGA § 15-11-303. Consequently,

[o]n appeal from a juvenile court’s decision to terminate parental rights, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found clear and convincing evidence that the parental rights should be terminated.

In the In terest of C. S., supra, 319 Ga. App. at 139 (citation omitted).

We cannot review a termination decision, however, if the juvenile court’s order does not clearly identify the specific factual findings that support the determination that the statutory requirements for termination have been met. In the Interest of D. M., 339 Ga. App. 46, 55 (2) (a) (793 SE2d 422) (2016); In the Interest of J. A. B., 336 Ga. App. 367, 370 (785 SE2d 43) (2016); In the Interest of D. T. A., 312 Ga. App. 26, 33 (1) (d) (717 SE2d 536) (2011); In the Interest of G. K. J., 187 Ga. App. 443, 445 (3) (370 SE2d 490) (1988). “The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached.” In the Interest of J. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001) (citation and punctuation omitted; emphasis supplied). A recitation that a legal requirement was met will not suffice. In the Interest of D. M., supra; In the Interest of D. T. A., supra.

3. The juvenile court’s order.

While the juvenile court’s order in this difficult and troubling case clearly reflects diligent and careful consideration, it does not provide us with the findings necessary for our appellate review. The juvenile court set forth many detailed factual findings, but she did not identify specific factual findings that authorized her conclusion that the cause of the children’s dependency was likely to continue.

To review the evidence supporting the juvenile court’s conclusion that the cause of dependency was likely to continue, we must first determine what the juvenile court found to be the cause of the children’s dependency. See In the Interest of N. T., 334 Ga. App. 732, 742 (3) (780 SE2d 416) (2015) (question is whether there is clear and convincing evidence that specified causes of dependency are likely to continue). Consequently, although on appeal the mother challenges only the juvenile court’s conclusion that the cause of the children’s dependency was likely to continue, this conclusion is intertwined with the conclusion regarding the existence of present dependency, and we therefore set forth all of those conclusions to provide context for our analysis:

Based upon [the detailed factual findings set forth earlier in the order], the Court finds that [the four children who are the subject of this appeal] are dependent children as to their mother due to her lack of proper parental care or control. ... In addition to the findings of fact made throughout this Order, court orders have been entered finding these children to be dependent and those orders stand today The children are dependent now due to the horrific emotional and behavioral instability of each of the . . . four children.
Reasonable efforts to remedy the circumstances of dependency have been made but were unsuccessful. Truthfully, given the history of three prior sojourns in foster care, DFCS could have elected to file for termination of parental rights immediately. The prior Court orders document the efforts made. Despite the children being in highly structured and nurturing environments, they continue to struggle with their emotional and behavioral challenges. [A. W.] is only just now beginning to see the light but could revert quickly with a return with her siblings.
The cause of dependency is likely to continue and will not likely be remedied. [The father] is gone. [The mother] is new in her recovery The behaviors of all four children could not be managed by the very best of parents. If they are together, their traumatic memories are triggered and they attack each other. [The mother] would be part of those traumatic memories even for those children who say they want to go home to her.

In these paragraphs, the juvenile court attempted in several ways to support her conclusion that the cause of the children’s present dependency is likely to continue. She referred generally to the numerous pages of factual findings set forth in other places throughout the order, but this reference did not satisfy the requirement that she state the process by which she reached her conclusion by setting forth the facts upon which she relied for that conclusion. See In the Interest of D.T.A., supra, 312 Ga. App. at 33 (1) (d) (juvenile court’s citation to general findings regarding mother’s unfitness and conduct insufficient); In the Interest of J. M., supra, 251 Ga. App. at 383 (4) (juvenile court failed to set forth facts supporting conclusion on one of the statutory requirements for termination).

The juvenile court referred to the children’s past dependency, stating that the grounds established in earlier orders would have supported termination and that those grounds “stand today,” but her finding that the mother subsequently completed her case plan is not consistent with the implication that those earlier grounds of dependency persisted. See In the Interest of J. E. E., 235 Ga. App. 247, 249-250 (509 SE2d 147) (1998) (evidence that parent completed case plan is relevant to determination of whether cause of child’s deprivation was likely to continue). Similarly, she cited the mother’s recent recovery from past drug addiction, but she made no finding as to whether the mother’s past drug use had “the effect of rendering [her] incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of [the] children].” OCGA § 15-11-311 (a) (2). While past drug use is a factor in determining whether the cause of the children’s dependency is likely to continue, it cannot alone support a conclusion that that statutory requirement for termination has been met. See In the Interest of J. V. J., 329 Ga. App. 421, 426 (765 SE2d 389) (2014).

The juvenile court did expressly state that the children’s “horrific emotional and behavioral instability” was the cause of their present dependency, and it is clear from her order that she concluded this instability was likely to continue if the four children were returned to live in the same household. There certainly was evidence to show that the children’s past dependency caused them to be severely unstable and that, because of this instability, they might not ever be able to live together again. But the children’s instability is a result of their past dependency, not a cause of their present dependency that would support a termination of parental rights. Under the Juvenile Code, to support the termination of parental rights, the cause of a child’s dependency must be the “lack of proper parental care or control by [the child’s] parent[.]”OCGA § 15-11-310 (a) (5). Notably, the juvenile court made no finding as to whether the mother had a “medically verified deficiency of [her] physical, mental, or emotional health that is of such duration or nature so as to render [her] unable to provide adequately for [the] children].” OCGA § 15-11-311 (a) (1). See In the Interest of C. J. V., 323 Ga. App. 283, 287 (746 SE2d 783) (2013) (concluding that there was not clear and convincing evidence to show cause of deprivation was likely to continue, in part because there was no evidence that mother had a verified mental or physical condition indicating she was incapable of caring for her children). To the contrary, the juvenile court expressly stated that no parent — not even the best parent — could manage the four children in a single household.

In summary, the juvenile court in her order set forth many detailed facts and stated the conclusion that the cause of the children’s present dependency was likely to continue. But in attempting to state the process by which that conclusion was reached, the juvenile court failed to point to specific facts that supported the conclusion. While she referred generally to all of her factual findings, she emphasized specific facts that were contradicted by some of her other factual findings or were insufficient to support her conclusion. “Acorrection of the[se] error[s] may or may not alter other findings of fact made by the juvenile court and thus may or may not affect the ultimate judgment.” In the Interest of E. R. D., 172 Ga. App. 590 (323 SE2d 723) (1984) (citations and punctuation omitted). For that reason, we must vacate the judgment and remand for a properly supported order. See In the Interest of D. M., supra, 339 Ga. App. at 56 (2) (a) (vacating judgment and remanding case for “more appropriate and explicit findings of fact and conclusions of law” and a “new judgment based on these findings and conclusions” where failure of order to make specific factual findings on particular statutory requirement for termination left appellate court with no basis to evaluate whether conclusion was properly supported by clear and convincing evidence); In the Interest of J. A. B., supra, 336 Ga. App. at 372 (vacating termination order and remanding case to more fully develop statutory ground for termination and factual findings supporting decision where deficiencies in order preclude intelligent review of merits of appeal).

Judgment vacated and case remanded.

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

Decided March 7, 2017.

Stahl & Stahl, A. Christina Stahl, for appellant.

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Richard W. Tangum, Hope M. Pereira, Assistant Attorneys General, for appellee.

       The order on appeal expressly does not address the mother’s parental rights to a fifth child, who also was the subject of the termination petition. Accordingly, this appeal does not concern that fifth child.


author: Ray, Judge.

text:
    A16A1749.
    WELLS FARGO BANK, N.A. v. LaTOUCHE.
    (798 SE2d 54)
   Ray, Judge.

In the instant case, Michael LaTouche sued Wells Fargo Bank, N.A., d/b/a Wells Fargo Home Mortgage (“Wells Fargo”), in the Superior Court of Clayton County for several causes of action arising from the 2010 nonjudicial foreclosure of his property that was financed by a Veterans Affairs Administration (“VA”) guaranteed loan. This Court granted Wells Fargo’s application for interlocutory review of the trial court’s denial of its motion for summary judgment on LaTouche’s claims for breach of contract, wrongful foreclosure, and surprise. For the following reasons, we reverse.

Summary judgment is proper

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. OCGA § 9-11-56 (c). Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this either by presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623-624 (1) (a) (697 SE2d 779) (2010). We review a trial court’s denial of summary judgment de novo. Id. at 624 (1) (a).

The facts are as follows. In 2002, LaTouche obtained a VA guaranteed loan in the amount of $113,851 from Wells Fargo Home Mortgage, Inc., which is now a division of Wells Fargo Bank, N.A., evidenced by a promissory note. The loan was secured by a security deed using a standard form issued by the VA. The security deed was guaranteed by the VAand serviced by Wells Fargo. The security deed also contained an acceleration/power of sale provision.

In 2010, LaTouche defaulted on the loan by failing to make the required monthly payments. On March 7, 2010, Wells Fargo sent LaTouche a notice of default. After a lawsuit by LaTouche, a lawsuit by Wells Fargo to reform the deed necessitated by LaTouche’s filing of frivolous documents in the Clayton County deed records office, and the resolution of LaTouche’s bankruptcy proceeding, Wells Fargo offered LaTouche a loan modification agreement, which LaTouche did not accept. Wells Fargo then sent LaTouche a letter declining a subsequent offer to modify the mortgage on the ground that he refused an escrow requirement. LaTouche never cured the default on the loan, and on November 6, 2012, the property was sold at a nonjudicial foreclosure sale.

LaTouche filed the instant action against Wells Fargo for, inter alia, breach of contract, wrongful foreclosure, negligence per se and surprise. In his complaint, LaTouche asserted that Wells Fargo failed to comply with pertinent VA regulations, including the requirement of a “face-to-face interview” prior to the sale of the property under 38 CFR § 36.4350 (g) (1) (iii) before foreclosing on the property. Wells Fargo filed a motion for summary judgment. The trial court granted the motion as to LaTouche’s claims for negligence per se and breach of contract arising from § 22 of the security deed, but denied the motion as to the claims for breach of contract arising from Wells Fargo’s alleged failure to comply with VA regulations, wrongful foreclosure, and surprise. After the trial court certified its ruling for immediate review, Wells Fargo filed a timely application for an interlocutory appeal, which this Court granted.

1. Wells Fargo argues that the trial court erroneously denied its motion for summary judgment as to LaTouche’s claims that Wells Fargo is liable for breach of contract for failure to strictly comply with certain regulations promulgated by the VA. We agree.

LaTouche’s complaint argues that the loan was secured by the VA and was thus subject to certain pre-foreclosure requirements provided by the VA, including “a face to face meeting . . . and [a requirement that Wells Fargo] notify the Secretary of HUD of such default so that both [LaTouche] and VA would have been given the chance to cure the default” as summarized in 38 CFR § 36.4350 (g).

LaTouche does not argue that a private right of action exists to enforce the VA regulations set forth in 38 CFR § 36.4350 (g). Rather, LaTouche argues that the VA regulations were incorporated into the loan documents and, thus, a claim can arise for breach of contract. See, e.g., Bright v. Nimmo, 756 F2d 1513, 1515-1516 (II) (B) (11th Cir. 1985) (rejecting the plaintiff’s argument that he has an implied cause of action against the VA or lender based upon the VA’s manual and guidelines). Georgia courts and courts in the Eleventh Circuit have not addressed directly the question of whether a mortgagor has a cause of action under state law for breach of contract where the contract expressly conditions nonjudicial foreclosure on compliance with VA regulations. However, in Corbin v. U. S. Bank, N.A., 2014 WL 12480502, *5 (III) (A) (1) (N.D. Ga. 2014) (adopted by Corbin v. U. S. Bank, N.A., 2014 WL 12482618 (N.D. Ga. 2014)), the United States District Court in the Northern District of Georgia denied the foreclosing bank’s motion to dismiss the homeowner’s breach of contract claim arising out of the bank’s failure to comply with the VA regulation requiring a face-to-face meeting prior to foreclosing. Id.

Further, in an analogous case, Bates v. JP Morgan Chase Bank, 768 F3d 1126 (11th Cir. 2014), the Eleventh Circuit found the regulations promulgated by the Department of Housing and Urban Development (“HUD”) were incorporated into the mortgage contract with similar language as in this case. Id. The Bates court noted that, in view of Georgia’s general rule that powers of sale in deeds are to be strictly construed, see OCGA § 23-2-114, the “HUD regulations clearly referenced in a deed as conditions precedent to the power to accelerate and the power of sale could form the basis of a breach of contract action.” Id. at 1132 (I). However, the Bates court ultimately found that the trial court correctly granted summary judgment against the plaintiff on her breach of contract claim because she failed to put forward any evidence of damages caused by the purported breach of these terms. Id. at 1133 (I).

However, we need not determine whether the VA regulations incorporated into the mortgage documents in the instant case give rise to a breach of contract claim. Even if we assume that they do give rise to a breach of contract claim, we find that summary judgment was warranted. The VA’s servicing regulation, 38 CFR § 36.4350, prescribes a “loan servicing program” that should be applied to VA-guaranteed loans. 38 CFR § 36.4350 (g), which governs collection actions by the lender, provides the following:

(1) Holders shall employ collection techniques which provide flexibility to adapt to the individual needs and circumstances of each borrower. A variety of collection techniques may be used based on the holder’s determination of the most effective means of contact with borrowers during various stages of delinquency. However, at a minimum the holder’s collection procedures must include the following actions:
(i) An effort, concurrent with the initial late payment notice to establish contact with the borrower(s) by telephone. When talking with the borrower(s), the holder should attempt to determine why payment was not made and emphasize the importance of remitting loan installments as they come due.
(ii) A letter to the borrower(s) ¿/payment has not been received within 30 days after it is due and telephone con tact could not be made. This letter should emphasize the seriousness of the delinquency and the importance of taking prompt action to resolve the default. It should also notify the borrower(s) that the loan is in default, state the total amount due and advise the borrower(s) how to contact the holder to make arrangements for curing the default.
(iii) In the event the holder has not established contact with the borrower(s) and has not determined the financial circumstances of the borrower(s) or established a reason for the default or obtained agreement to a repayment plan from the borrower(s), then a face-to-face interview with the borrower^) or a reasonable effort to arrange such a meeting is required.

(Emphasis supplied.)

Abreach of contract claim has the following elements: “(1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Punctuation and footnote omitted.) Norton v. Budget Rent A Car System, 307 Ga. App. 501, 502 (705 SE2d 305) (2010). In its motion for summary judgment, Wells Fargo pointed to a lack of evidence as to an essential element of the breach of contract claim — breach of a duty — and the burden then shifted to LaTouche to point to specific evidence giving rise to a triable issue. This it did not do.

Here, a close reading of 38 CFR § 36.4350 (g) (1) (iii) reveals that Wells Fargo did not breach a duty to hold a face-to-face meeting with LaTouche prior to foreclosing on the property. Subsection (g) (1) (iii) provides that a face-to-face interview with a borrower is required only “[i]n the event the holder has not established contact with the borrower(s) and has not determined the financial circumstances of the borrower(s) or established a reason for the default or obtained agreement to a repayment plan from the borrower(s)[.]”

In the instant case, it was clear that Wells Fargo and LaTouche engaged in substantive communication during the years preceding the foreclosure. Wells Fargo provided evidence that LaTouche defaulted under the loan in January 2010. On March 7, 2010, Wells Fargo sent a notice of default to LaTouche that complied with the requirements of 38 CFR § 36.4350 (g) (1) (ii). Immediately after receiving the letter, LaTouche filed suit in the United States District Court for the Northern District of Georgia on March 26, 2010, seeking, inter alia, injunctive relief, but the action was dismissed for failure to state a claim. While that suit was pending, LaTouche filed an “Affidavit of Notice of Revocation of Power of Attorney” in the county records related to the property, necessitating Wells Fargo to file a suit for declaratory relief from the frivolous filing. The superior court ordered that the filings had no legal effect upon the property. On August 20, 2010, LaTouche then filed a voluntary Chapter 7 bankruptcy. Once that bankruptcy was discharged, Wells Fargo placed a hold on the foreclosure sale to explore possible loss mitigation options.

On July 6, 2011, Wells Fargo sent LaTouche a letter confirming that the parties had discussed and come to an agreement to modify the loan, and requesting certain documents to complete the modification. Wells Fargo contends that LaTouche declined that modification offer by failing to respond to it. In contrast, LaTouche argues in his affidavit submitted as an exhibit to his response to Wells Fargo’s motion for summary judgment that he did not receive notice of the acceptance of the loan modification agreement. Wells Fargo rejected LaTouche’s subsequent efforts to obtain a loan modification agreement in a letter dated February 25, 2012, citing LaTouche’s failure to agree to an escrow requirement imposed by the owner of the Note. On April 23, 2012, LaTouche filed yet another lawsuit in the United States District Court, seeking, inter alia, an injunction against foreclosure, which was dismissed for failure to serve Wells Fargo. Wells Fargo retained a law firm to conduct a nonjudicial foreclosure sale on the property and sent notice to LaTouche. LaTouche and his counsel then engaged in a series of communications with Wells Fargo and submitted additional information regarding his finances in yet another effort to work out a loan modification. Wells Fargo then sent LaTouche a letter stating that Wells Fargo had not received the necessary documentation to determine his eligibility for mortgage assistance, and the property foreclosure went forth.

Although there is no evidence as to whether Wells Fargo conducted a face-to-face meeting with LaTouche under 38 CFR § 36.4350 (g) (1) (iii), a close reading of that regulation shows that such a meeting was not required under these circumstances. Wells Fargo sent a letter complying with subsection (g) (1) (ii) in March 2010 and had a conversation regarding a loan modification. Subsection (g) (1) (iii) specifically provides that a face-to-face meeting is required only when the bank has been unable to effectively communicate with the borrower or determine the borrower’s financial circumstances by other means. See, e.g., Wells Fargo Bank, N.A. v. Sowell, 2012 WL 2523843, *3-*4 (Ct. App. Ohio 2012) (trial court correctly granted summary judgment in favor of bank on borrower’s breach of contract claims based upon the bank’s alleged failure to comply with 38 CFR § 36.4350 (g) prior to foreclosure when the record contained “extensive contact and correspondence” between the bank and borrower prior to foreclosure). Here, there is ample evidence that LaTouche and Wells Fargo engaged in such communication. Accordingly, we find that the trial court erred in concluding that an issue of material fact existed as to whether Wells Fargo failed to comply with 38 CFR § 36.4350 (g) (1) (iii) prior to foreclosing.

2. As a result of our holding in Division 1 that Wells Fargo did not breach its duty to comply with 38 CFR § 36.4350 (g) as a condition precedent to foreclosure, we conclude that the trial court erred in denying Wells Fargo’s motion for summary judgment as to LaTouche’s claims for wrongful foreclosure that hinge upon the same VA regulations.

3. Wells Fargo argues that the trial court erred in denying its motion for summary judgment as to LaTouche’s claim for surprise. We agree.

LaTouche’s complaint asserted a claim of surprise pursuant to OCGA § 23-2-54, arguing that Wells Fargo

published] multiple Notices of Sale Under Power and proceeded with a foreclosure sale of [LaTouche’s] Property on November 5, 2012, while [LaTouche’s] application for a new loan modification offer . . . was still pending. By its conduct, Wells Fargo intentionally and maliciously acted to disturb and confuse [LaTouche’s] judgment and to mislead [LaTou-che] in order to gain an undue advantage without the agency or fault of [LaTouche].

The trial court denied Wells Fargo’s summary judgment motion on this issue, concluding that an issue of material fact existed as to whether LaTouche was informed that his loan modification application was no longer being considered.

OCGA § 23-2-54 provides: “Anything which happens without the agency or fault of the party affected by it, tending to disturb and confuse his judgment or to mislead him, of which the opposition party takes an undue advantage, is in equity a surprise and is a form of fraud for which relief is granted.” In Georgia, a plaintiff alleging fraud must prove the following: a false representation by defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. Ledford v. Smith, 274 Ga. App. 714, 721 (1) (b) (618 SE2d 627) (2005). “For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.” (Citation and punctuation omitted.) Cobb County School Dist. v. MAT Factory, Inc., 215 Ga. App. 697, 701 (2) (a) (452 SE2d 140) (1994).

We consider the element of justifiable reliance, and in so doing, LaTouche’s “claim tumbles like a house of cards.” (Punctuation omitted.) Cobb County School Dist., supra at 701 (2) (a). In his response to Wells Fargo’s motion for summary judgment and in his appellate brief, LaTouche has failed to allege any action that he took or refrained from taking in response to an allegedly false representation by Wells Fargo. See, e.g., Neal v. Nationstar Mortgage, 2015 WL 5174047, *5 (II) (B) (3) (N.D. Ga. 2015) (granting motion to dismiss borrower’s surprise claim arising from foreclosure of borrower’s property when borrower’s complaint did not allege any action that he took or refrained from taking in response to an allegedly false representation by bank regarding foreclosure). See also Lanier Home Center v. Underwood, 252 Ga. App. 745, 748 (5) (557 SE2d 76) (2001) (to survive a summary judgment motion on a fraud count, some evidence must support each of the five elements of fraud — including justifiable reliance).

Decided March 7, 2017.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper, Dylan W. Howard, Daniel P. Moore, for appellant.

Natalie R. Rowland, for appellee.

Based upon the above, we reverse the trial court’s denial of Wells Fargo’s summary judgment motion.

Judgment reversed.

Doyle, C. J., and Andrews, J., concur.

       LaTouche’s appellate brief has failed to provide a single citation to the appellate record. Court of Appeals Rule 25 (b) (1) provides that the brief of appellee
      shall point out any material inaccuracy or incompleteness of appellant’s statement of facts and any additional statement of facts deemed necessary, plus citations to addit ional parts of the record or transcript deemed material. Failure to do so shall constitute consent to a decision based on the appellant’s statement of facts. Except as controverted, appellant’s statement of facts may be accepted by this Court as true.
      (Emphasis supplied.) See Smith v. Ga. Asset Properties, 251 Ga. App. 595, 596 (1) (554 SE2d 561) (2001) (“Statements of fact in the briefs of the parties unsupported by evidence in the record cannot be considered on appeal”) (citation and punctuation omitted); Ron Eason Enterprises, Inc. v. McColgan, 151 Ga. App. 106, 106 (1) (258 SE2d 761) (1979) (“In the absence of any citation by appellee to the transcript which would controvert appellant’s claims, appellant’s assertions regarding the evidence are deemed true, accurate, and complete”) (citations omitted). Nevertheless, to the extent we can, we review the record on summary judgment de novo. Jackson v. Waffle House, 245 Ga. App. 371, 372, n. 1 (537 SE2d 188) (2000).

       Other jurisdictions have also found that the failure to comply with the VA regulations as a condition precedent to foreclosure gives rise to a breach of contract claim. See, e.g., Ranson v. Bank of America, 2013 WL 1077093, *3-*5 (III) (A) (S.D. W.Va. 2013) (the trial court held that the VA requirements were incorporated into the loan contract and, thus, could form the basis of a breach of contract claim when defendant failed to comply with the VA regulations prior to foreclosure).


text:
    A16A1893.
    AGUILAR v. THE STATE.
    (798 SE2d 60)
   DOYLE, Chief Judge.

After a jury trial, Jose Luis Aguilar, Jr., was convicted of one count of cruelty to a child in the first degree and two counts of sexual battery as lesser included charges of aggravated child molestation. Aguilar appeals, arguing that the trial court erred by (1) failing to instruct the jury that lack of consent was an essential element of sexual battery; (2) allowing the State to present evidence of prior bad acts; (3) denying his request for a continuance; (4) prohibiting him from presenting good character evidence; (5) permitting the State to present cumulative bolstering evidence in support of the victim; and (6) denying his request to sever the trial for the charge of cruelty to a child in the first degree. For the reasons that follow, we affirm in part and reverse in part.

Viewed in the light most favorable to the verdict, the record shows that in June 2011, A. A., Aguilar’s daughter who was then 13 years old, made an outcry of sexual molestation against him. A. A. alleged that Aguilar began sexually abusing her when she was nine years old, and he had committed various acts of sexual abuse against her, including rape and sodomy

Aguilar testified at trial, denying any allegation of sexual conduct with A. A. On cross-examination, Aguilar admitted that he met A. A.’s mother when he was 24 and she was 14, but he testified that he believed she was 18. The couple became sexually active, and he testified that he learned she was 14 only after she became pregnant with A. A.’s oldest brother.

1. Aguilar first argues that the trial court erred by failing to instruct the jury that lack of consent was an element of sexual battery We agree.

Because Aguilar

raised no objection to this charge, we review this enumeration only for plain error. Viewing the jury charges as a whole under the plain error standard, the correct inquiry is whether the instruction at issue was erroneous, whether it was obviously so, and whether the charge likely affected the outcome of the proceeding.

In Watson u. State, our Supreme Court reversed a conviction for sexual battery of a victim under the age of 16 on the basis that the trial court erroneously instructed the jury that lack of consent is presumed when the victim is under 16. The jury instruction at issue here did not inform the jury that lack of consent is presumed when the victim is under 16; instead, the trial court instructed that “[a] person commits sexual battery when that person intentionally makes physical contact with the anus or buttocks of a child under the age of 16.” This jury instruction wholly failed to charge the essential element of the crime of sexual battery — lack of consent to the touching. Moreover, because this crime was a lesser included charge to the indicted crimes of aggravated child molestation, the trial court’s earlier reading of the indictment to the jury could not save this instruction as to this essential element.

Citing Shepherd v. State, the State contends that this was invited error because Aguilar requested the lesser included charge and because defense counsel responded “no” to the trial court’s inquiry as to whether “consent was an issue.” As explained by this Court in Laster, however, with regard to an under-16-year-old victim, courts in this State did not require the State to prove lack of consent as an element of the crime of sexual battery prior to the Supreme Court’s decision in Watson, and thus, the State’s argument is without merit. Accordingly, because the instruction as given constituted plain error, we reverse the judgment as it relates to the two counts of sexual battery.

2. Next, Aguilar argues that the trial court erred by failing to sever the charge of cruelty to a child in the first degree from the remainder of the charges.

Count 9 charged Aguilar with committing cruelty to a child in the first degree by maliciously causing A. A. cruel and excessive physical and mental pain by physically and sexually abusing her in violation of OCGA § 16-5-70 (b). Aguilar filed a pre-trial motion to sever the charge, arguing that a risk of prejudice existed by presenting the law and evidence of this charge with the remaining eight counts. Nevertheless, “[wjhen in the sound discretion of the trial court, the number of offenses charged and the complexity of the evidence do not reasonably impinge upon a fair determination of the defendant’s guilt or innocence as to each offense charged, a severance need not be granted.” Here, the allegation of cruelty to a child was predicated on the alleged sexual abuse perpetrated by Aguilar against A. A. over the course of multiple encounters. The same evidence supported the remaining eight counts in the indictment and would have been admissible in both trials had the trial court severed Count 9. Accordingly, the trial court did not abuse its discretion in denying the motion to sever.

3. Next, Aguilar enumerates errors related to the State’s evidence of prior bad acts regarding his relationship with A. A.’s mother that began when the mother was 14 years old.

Specifically, during trial, the State presented evidence of Aguilar’s age in relation to A. A.’s mother’s age at the time she became pregnant with A. A.’s oldest brother; the evidence was elicited without objection from Aguilar. At the close of Aguilar’s case, the State moved for leave from the court to argue motive and intent based on evidence presented about Aguilar’s and the mother’s relationship.

(a) First, Aguilar argues that the trial court erred by allowing the State to argue to the jury that this evidence constituted a prior act of child molestation because it was not admissible as to the cruelty to a child charge. Aguilar presents no citation of authority to support this contention. The indicted crime in Count 9 was predicated upon intentional sexual abuse resulting in mental and physical suffering, and therefore, for the same reason that the prior act would be admissible as to the other eight charges, the evidence also would be relevant to Count 9.

(b) Aguilar also argues that the trial court erred by denying his request for a continuance after granting the motion to allow the State to present the evidence. We disagree, however, because the State notified Aguilar prior to trial that it intended to present similar transaction evidence vis-á-vis his relationship with A. A.’s mother, and although it initially denied the State’s motion, the court concluded that it would leave the matter open for later argument during trial. Accordingly, there was no surprise to Aguilar, nor does he proffer any factual evidence in opposition to the similar transaction that he was prevented from presenting based solely on the denial of the continuance.

4. Next, Aguilar argues that the trial court erred by prohibiting him from presenting good character evidence in defense of the maliciousness element of the charge of cruelty to a child. We disagree. Aguilar fails to proffer specific evidence he was prevented from presenting to the jury or how any testimony as to general good parenting would have countered the underlying allegations of sexual abuse of A. A. that were the predicate acts supporting this count.

5. Finally, Aguilar contends that the trial court erred by permitting the State to present cumulative bolstering evidence from expert witnesses. Aguilar concedes that such testimony is permitted. Moreover, Aguilar fails to identify any specific expert testimony that should have been excluded, citing instead to all of his objections to all of the experts. Aguilar presents no citation to authority supporting a claim that the sheer number of experts results in error. In any event, the testimony was not cumulative because the various experts were called to testify as to the different roles they played in diagnosing or treating A. A. Accordingly, this enumeration is without merit.

Judgment affirmed in part and reversed in part.

Andrews and Ray, JJ., concur.

Decided March 7, 2017.

H. Bradford Morris, Jr., DawnM. Seibert, Travis A. Williams, for appellant.

Lee Darragh, District Attorney, for appellee.

       OCGA § 16-5-70 (b).

       OCGA § 16-6-22.1 (b). The jury acquitted Aguilar of two counts of rape, three counts of incest, two counts of aggravated child molestation, aggravated sodomy, and a separate count of cruelty to a child in the first degree. Preceding this appeal, Aguilar filed a motion for out-of-time appeal, which the trial court granted.

       See Hunt v. State, 336 Ga. App. 821, 821-822 (783 SE2d 456) (2016) (“On appeal, we do not assess the weight of the evidence or the credibility of witnesses. Instead, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”) (emphasis in original), quoting Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       A. A.’s mother left her family when A. A. was very young, has no contact with the family, and her rights were subsequently terminated after A. A.’s outcry.

       (Citation omitted.) Fitzpatrick v. State, 339 Ga. App. 135, 139-140 (2) (793 SE2d 446) (2016). See also OCGA § 17-8-58 (b).

       297 Ga. 718 (777 SE2d 677) (2015).

       See id. at 720 (2). See also Lasterv. State, 340 Ga. App. 96, 100 (2) (796 SE2d 484) (2017).

       See Laster, 340 Ga. App. at 100 (2) (“the crime of sexual battery 'require(s) actual proof of the victim’s lack of consent, regardless of the victim’s age’ ” (citation omitted)).

       Compare with Miller v. State, 289 Ga. 854, 861 (8) (717 SE2d 179) (2011) (holding that trial court’s failure to charge on an essential element of the crime was saved by reading to the jury the language of the indictment, which contained all the essential elements of the crime).

       217 Ga. App. 893 (459 SE2d 608) (1995) (physical precedent only).

       See, e.g., Engle v. State, 290 Ga. App. 396, 398 (2) (659 SE2d 795) (2008), overruled in part by Watson, 297 Ga. at 721 (2).

       See Laster, 340 Ga. App. at 100 (2).

       (Punctuation omitted.) Machiavello v. State, 308 Ga. App. 772, 774 (2) (709 SE2d 28) (2011).

       See id.

       See OCGA §§ 24-4-404; 24-4-414 (a), (d)(1). Although not argued at trial or here, we note that at the time that Aguilar is alleged to have entered into a sexual relationship with A. A.’s mother, the age of consent in Georgia (the couple was in Mexico) was 14 years old. See OCGA § 16-6-4 (1994). It was not raised to 16 until passage of the Child Protection Act of 1995. See Ga. L. 1995, p. 957, § 3/HB 377.

       See OCGA § 24-4-414 (a) (“In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant.”) (emphasis supplied). Cf. Hunt, 336 Ga. App. at 823-824 (1) (a) (actions including child molestation resulting in mental distress of the victim support a guilty verdict for cruelty to children in the first degree); McGarity v. State, 212 Ga. App. 17, 21 (6) (440 SE2d 695) (1994) (same).

       Specifically, at trial Aguilar testified that he believed A. A.’s mother was 18 when he began a sexual relationship with her, and he later discovered that she was 14 years old when she became pregnant. Aguilar proffered no evidence in support of his motion to continue that would have supported his mistake about her age or supported a finding that the mother was over 16 years old.

       See, e.g., Goggins v. State, 330 Ga. App. 350, 357 (3) (767 SE2d 753) (2014). In his brief, Aguilar cites to the record of his argument before the trial court on this issue. Those pages contain references to unnamed witnesses who he claimed would testify to having allowed Aguilar watch their children. During the argument, he gives the first name of one witness “Yolanda,” who he claims was on his witness list, but the State contended that no witness by that name appeared on his witness list. Aguilar presents no additional information on appeal about what the excluded testimony would have been, thereby failing to support his claim of error.
      Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this [CJourt.

        Bearfield v. State, 305 Ga. App. 37, 41 (2) (699 SE2d 363) (2010), quoting State v. Winther, 282 Ga. App. 289, 291 (638 SE2d 428) (2006).

       See, e.g., Reinhard v. State, 331 Ga. App. 235, 238 (2) (770 SE2d 314) (2015) (explaining that “the testimony of experts that certain medical or scientific tests resulted in findings consistent with molestation is admissible and proper. The fact that such testimony may also indirectly, though necessarily, involve the child’s credibility does not render it inadmissible.”); Alford v. State, 320 Ga. App. 523, 529 (3) (738 SE2d 124) (2013) (collecting cases).

       See Hunt, 336 Ga. App. at 828-829 (2) (b) (“ ‘It is not this Court’s job to cull the record on behalf of the [appellant] to find alleged errors.’ ”), quoting Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012).