text:
    A17A0519.
    LEE et al. v. PARK.
    (800 SE2d 29)
   Reese, Judge.

Keum Soon Lee and her attorney, Kennon Peebles, Jr. (collectively, “Lee”), appeal from the trial court’s order directing them to pay $9,570 in attorney fees to Ai Sook Park. Lee contends that the court abused its discretion in finding that her claims lacked substantial justification and, based upon that finding, awarding Park attorney fees under OCGA § 9-15-14 (b). For the reasons that follow infra, we agree and reverse.

The record shows that, in June 2012, Lee and Sok Sun Yun bought an existing Atlanta business known as “Spring Spa.” Although Lee and Yun had no formal agreement, they operated the business as an equal partnership, sharing management responsibilities. In February 2013, they executed a four-year lease for the premises that listed the tenant as “Spring Spa, L.L.C.” The lease was signed by the “tenants,” Yun and Anthony Parumal, who was Lee’s boyfriend; Parumal also initialed each page of the lease. On May 30, 2013, however, Yun sold 100 percent of the ownership of the business to Park for $55,000, without Lee’s knowledge or consent. Park immediately took possession of the premises.

A few days later, Lee learned about the sale and contacted Park to inform her of her (Lee’s) ownership interest in the spa. According to Parumal, Park told them that, on the day she purchased the spa, she had heard that Yun had a partner in the business, but when she asked Yun about it, Yun responded, “Oh, I will take care of it.”

In August 2014, Lee filed suit against Yun and Park. Against Yun, she asserted claims for breach of contract, fraud, and conversion. She also sought a declaratory judgment that Park’s purchase of the business was void and a permanent injunction barring Park from the premises. In addition, she asserted a claim for unjust enrichment against Park, seeking reimbursement for rent and insurance payments for the business that she had made after the sale, while she was still asserting her ownership interest in the spa.

During a bench trial, Yun testified that the first time she met or spoke with Park about selling the business was on May 30, 2013, the day the sale contracts were executed and the sale was closed. According to Yun, Lee never had an ownership interest in the spa, so Yun did not tell Park that Lee was a part-owner of the business. Yun also testified that she called the business’ landlord on the day of the sale to tell him that Park was purchasing the spa and would be assuming the lease for the premises. The landlord was out of town, however, and he told Yun that he would address the issue when he returned to Atlanta.

Park testified that she had wanted to purchase a spa in Atlanta and that a friend told her about Yun’s business. According to Park, Yun reduced the initial asking price for the spa because Yun wanted to have a “quick sale.” Park admitted that she first met Yun, signed the sales contract, and closed on the purchase of the spa in a single day, May 30,2013. When questioned about the lease, which contained the signatures of two tenants — Yun and Parumal — Park first testified that she did not see Parumal’s signature, adding that if she had seen his signature, then she would not have purchased the business. After her counsel showed her the lease, however, she admitted that she had seen the signature but assumed that Parumal was a landlord and ignored his signature. She explained that the first page of the lease identified the tenant as “Spring Spa” and that, because she was buying the business from a Korean person (Yun), she only paid attention to the Korean names on the contract. Park also admitted that she did not investigate to see if the business had any outstanding expenses or taxes due prior to buying the spa. And, although she was purchasing an established business, Park presented no evidence that she asked to see Yun’s purchase agreement to ensure that Yun was the spa’s sole owner, that she inquired about the business’ income and expense history, or that she asked to review the business’ past checking account statements or accounting records.

Regarding Lee’s unjust enrichment claim seeking reimbursement for rent and insurance payments she had made after Park purchased the business, Park asserted for the first time at trial that she had paid business expenses that had been incurred prior to her purchase of the spa. According to Park, these expenses included $5,880 in property taxes, “about maybe $2,000” for the water bill, $520 for telephone service, $600 for gas and electricity, $500 for landscaping, and “a little over $2,000” in payroll taxes.

The trial court subsequently entered judgment in favor of Lee on her claims against Yun based upon its conclusion that Lee had a 50 percent ownership interest in the spa, and it awarded her both damages and attorney fees. With respect to Lee’s claims against Park, however, the court ruled that Park was a bona fide purchaser for value who “did not have any reason to suspect that [Lee] or anyone else claimed an interest in the Spring Spa at the time she purchased the business.” The court further ruled that Park’s purchase of the spa was valid and binding. Finally, on Lee’s unjust enrichment claims, the court ruled that the rent and insurance payments that Lee made after the sale were voluntarily paid after she had notice of her potential claims and that Lee’s payments were “properly set off against payments made by Defendant Park for debts owed by the business prior to Park purchasing it.”

Following entry of the judgment, Park filed a motion for attorney fees under OCGA § 9-15-14. The court granted the motion, ruling that Park was entitled to fees under OCGA § 9-15-14 (b) because Lee’s claims against her “lacked substantial justification in that they were ‘substantially frivolous, substantially groundless, [and] substantially vexatious.’ ” The court found that “[n]o credible evidence was presented that would indicate Defendant Park was placed on notice of Lee’s claim of ownership or that Park failed to exercise due diligence regarding ownership of the business prior to purchasing Spring Spa.” In addition, the court reiterated its previous finding that Lee’s post-sale payments on behalf of the business were properly set off by Park’s payment of the business’pre-sale debts. Accordingly, the court awarded Park attorney fees in the amount of $9,570, jointly and severally against Lee and her trial counsel. This appeal followed.

OCGA § 9-15-14 (b) gives a trial court the discretion to award attorney fees in several circumstances, including where “an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification[.]” “ ‘[Ljacked substantial justification’ means substantially frivolous, substantially groundless, or substantially vexatious.” We review a trial court’s award of attorney fees under OCGA § 9-15-14 (b) for an abuse of discretion. With these guiding principles in mind, we turn now to Lee’s specific claims of error.

1. Lee argues that the trial court abused its discretion in awarding Park attorney fees based upon a finding that her equitable claims against Park lacked substantial justification. With respect to the claims for a declaratory judgment and injunctive relief, Lee maintains that she presented evidence that created a legitimate factual dispute as to whether Park was a bona fide purchaser for value. We agree.

Abona fide purchaser for value is protected against outstanding interests in a purchased property of which he or she had no notice. “To qualify as a bona fide purchaser for value without notice, a party must have neither actual nor constructive notice of the matter at issue.” “Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to knowledge in fixing the rights of parties.” Whether the circumstances were sufficient to put a party on notice of an alleged fraudulent transfer and the opposing party’s interest in the property at issue is a question of fact to be determined by the trier of fact. And an award of attorney fees under OCGA § 9-15-14 (b) is not warranted where the claim at issue is dependent upon the resolution of a factual or legal dispute.

To support her argument that there was a legitimate factual dispute as to whether Park was a bona fide purchaser for value, Lee points to the evidence she presented at trial (shown above) and to Park’s interrogatory responses, which support a finding that Park failed to conduct any investigation to confirm the ownership of the business or to perform other due diligence before purchasing the business. For example, in her interrogatory responses, Park conceded that she did not meet Yun until the day she purchased the business, she never had contact with the landlord before attempting to assume the lease the same day, and she never consulted an attorney or real estate agent prior to or during the closing.

Further, the evidence at trial showed that Park had the opportunity to read the lease agreement that she was going to be assuming. It is undisputed that the lease was initialed and signed by Parumal, and Park specifically testified that she saw his signature but disregarded it, instead of simply asking who Parumal was and why he had signed the lease. Parumal’s signature on the lease supports a finding that Park had at least constructive notice that someone else had an interest in the business, and her failure to inquire about it is sufficient to create an issue of fact as to whether Park exercised due diligence prior to the purchase.

In an effort to show that she exercised due diligence prior to the purchase, Park contended that Yun and two others present at the closing indicated to her that Yun was the sole owner of the business. Parumal testified, however, that Park told him shortly after the sale that, on the day of the closing, she learned that Yun had a partner in the business, but when she asked Yun about it, Yun told Park that she would take care of it. This conflicting evidence presented an issue of fact regarding Park’s constructive notice that had to be resolved at trial.

Park also apparently relies on the fact that Yun’s name was the only one on the business checking account for her conclusion that Yun was the sole owner of the business. Afactfinder could have concluded that such reliance demonstrated a lack of due diligence, however, given the absence of any evidence that Park reviewed past bank statements, income and expense reports, or other accounting records of the ongoing business enterprise that she was purchasing and was intending to continue operating under the same name.

Finally, although Park testified that she checked the Georgia Secretary of State’s records for the corporation, she later admitted that she did so after she had purchased the business. Moreover, there is no evidence that she contacted the registered agent for the corporation, who is identified as “Kenny S. K. Lee,” to confirm the ownership of the business.

Thus, the evidence presented several genuinely disputed factual issues that had to be resolved before the court could determine whether Park was a bona fide purchaser for value. The fact that the trial court ultimately ruled in favor of Park on that disputed issue does not mandate a finding that Lee’s equitable claims were substantially frivolous, groundless, or vexatious.

As previously stated, a court is not authorized to award attorney fees under OCGA § 9-15-14 (b) where a ruling on the claim at issue is dependent upon the resolution of a factual or legal dispute. Thus, we conclude that the trial court abused its discretion in concluding that Lee’s equitable claims were without substantial justification, and the award of attorney fees under OCGA § 9-15-14 (b) for defending against these claims must be reversed.

2. Lee also challenges the portion of attorney fees that were awarded to Park for defending against Lee’s unjust enrichment claim. The record shows that not only was there a legitimate factual dispute about the funds Lee paid, but the trial court set off the amount due to Lee with expenditures claimed by Park for expenses that were incurred prior to her purchase of the business. Because Park did not actually prevail on Lee’s unjust enrichment claim, the court abused its discretion in awarding Park attorney fees under OCGA § 9-15-14 (b) for defending against this claim.

Judgment reversed.

Doyle, C. J., and Miller, P. J., concur.

Decided May 9, 2017.

Kennon Peebles, Jr., for appellants.

Ragsdale, Beals, Seigler, Patterson & Gray, Edgar S. Mangiafico, Jr., Brian J. Morrissey; Kevin T. Moore, for appellee.

       This Court granted Lee’s application for discretionary review.

       The record shows that the landlord never approved a change to the lease to name Park as the tenant, nor did Park execute a new lease. According to the landlord, he had forgotten about the issue by the time he returned to Atlanta, and no one contacted him about changing the lease, so he believed that the situation had returned to the status quo.

       The record shows that Park did not assert a set-off defense in her answer, did not file a counterclaim for her payment of the expenses, and did not raise the issue of set off or claim any damages in the pre-trial order. In fact, during the hearing, the court specifically asked Park’s counsel whether he was asserting a counterclaim against Lee, and he replied that he was not.

       Although the record shows that the total of these payments equals $11,600, the total is actually $11,500. Notably, only the amount of the property tax payment was supported by any documentary evidence. Park’s testimony as to the amounts she paid on the remaining bills appears to be her approximations.

       OCGA § 9-15-14 (b).

        DeKalb County v. Adams, 263 Ga.App. 201, 203 (587 SE2d 302) (2003).

       See OCGA §§ 23-1-19 (“If one with notice sells to one without notice, the latter shall be protected.”); 23-1-20 (“Abona fide purchaser for value without notice of an equity will not be interfered with by equity.”); 23-2-34 (“Equity will grant relief as between the original parties or their privies in law, in fact, or in estate, except bona fide purchasers for value without notice.”); see also Montgomery v. Barrow, 286 Ga. 896, 897 (1) (692 SE2d 351) (2010).

        Virginia Highland Civic Assn. v. Paces Properties, 250 Ga. App. 72, 74 (550 SE2d 128) (2001). Accord Rolan v. Glass, 305 Ga. App. 217, 218 (1) (699 SE2d 428) (2010).

        Whiten v. Murray, 267 Ga. App. 417, 421 (2) (599 SE2d 346) (2004) (citation and punctuation omitted). See Montgomery, 286 Ga. at 897 (1) (holding that “any circumstance which would place a man of ordinary prudence fully upon his guard, and induce serious inquiry, is sufficient to constitute notice of a prior unrecorded deed”) (citation and punctuation omitted).

        R. W. Holdco, Inc. v. SCI/RW Holdco, Inc., 250 Ga. App. 414, 415 (1) (551 SE2d 825) (2001).

       See Brown v. Gadson, 298 Ga.App. 660, 661-662 (680 SE2d 682) (2009); DeKalb County, 263 Ga.App. at 203-204; see also Exec. Excellence v. Martin Bros. Investments, 309 Ga.App. 279, 286-288 (2) (710 SE2d 169) (2011) (award of attorney fees under OCGA § 9-15-14 was not authorized because the plaintiffs made an evidentiary showing which, if accepted by the factfinder, would have authorized a judgment in their favor); see generally Marino v. Clary Lakes Homeowners Assn., 331 Ga.App. 204, 211 (3) (770 SE2d 289) (2015) (when genuine issues of fact remain that preclude summary judgment, an award of attorney fees under OCGA § 9-15-14 (b) is not warranted except in unusual cases).

       In fact, Park admitted that the handwritten sales contract executed by the parties was based upon a generic sales contract obtained by her boyfriend from the Internet, which he then transcribed into the Korean language.

       See footnotes 9 and 10, supra, regarding constructive notice and due diligence.

       See Campbell v. The Landings Assn., 311 Ga. App. 476, 483 (6) (716 SE2d 543) (2011) (“A prevailing party is not perforce entitled to an award of attorney fees” under OCGA § 9-15-14 (b).) (punctuation and footnote omitted); see also Rescigno v. Vesali, 306 Ga. App. 610, 616 (4) (703 SE2d 65) (2010) (finding that the trial court did not abuse its discretion in denying the defendant an award of attorney fees under OCGA § 9-15-14 (b) because there was some evidence to support the plaintiff’s case, even though the jury ultimately found in favor of the defendant); see generally Brown v. Kinser, 218 Ga. App. 385, 387 (1) (461 SE2d 564) (1995) (Even when a trial court grants summary judgment to a party prior to trial, the prevailing party is not automatically entitled to attorney fees under OCGA § 9-15-14.).

       See Sierra-Corral Homes v. Pourreza, 308 Ga. App. 543, 548 (7) (708 SE2d 17) (2011) (OCGA § 9-15-14 (b) “only permits attorney fees to be awarded for claims that are successful.” Because the defendant did not prevail on any claim, it was not entitled to attorney fees.).


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A17A0049.
    ROSSELL v. THE STATE.
    (799 SE2d 34)
   Rickman, Judge.

Taboris Rossell was tried by a jury and convicted of two counts of aggravated battery, armed robbery, possession ofafirearm during the commission of a felony (armed robbery), and possession of a firearm by a convicted felon. On appeal, Rossell contends that the trial court erred by denying his motion to sever the offenses charged in the indictment. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Hall v. State, 335 Ga. App. 895 (783 SE2d 400) (2016).

So viewed, the evidence showed that on June 2,2013, Rossell was at an apartment in the Spalding Heights neighborhood. Rossell and his girlfriend were arguing in the bathroom. The victim went into the bathroom to ask the couple to leave, and Rossell hit her. After the victim was hit, she “blacked out” and fell down. When the victim woke up she noticed that her lip was “busted all up,” and she had a chipped tooth. The victim received five stitches. Based upon the extent of the victim’s injuries, an investigator with the Spalding County Sheriff’s Office obtained an arrest warrant for Rossell for the offense of aggravated battery

Rossell was arrested on the aggravated battery warrant on June 16, 2013, and brought to the Spalding County detention center. Rossell was placed in a holding cell, and, at some point, a corporal with the Spalding County Sheriff’s Office observed a commotion and saw Rossell striking another inmate. The inmate testified that he was sitting on the floor of the cell when he felt Rossell approach him. The inmate asked Rossell to “back up” and Rossell “clocked” him right in the face. The inmate suffered a fractured nose as a result of this altercation. This incident was recorded and published to the jury.

On June 27, 2013, it was alleged that Rossell was involved in a fight, again in the Spalding Heights neighborhood, in which a separate victim sustained facial contusions, abrasions, swelling, and a concussion. However, Rossell was acquitted of the charges pertaining to this incident.

The final charged offense took place on July 6, 2013, again in the Spalding Heights neighborhood. A deputy with the Spalding County Sheriff’s Office responded to a call in reference to an armed robbery When the deputy responded to Spalding Heights, he spoke with the armed robbery victim who stated that Rossell pulled a gun out of the waistband of his pants and robbed him of $20. At some point, the deputy observed Rossell open an apartment door and then suddenly close it. The deputy knocked on the door of the apartment and spoke to the renter of the apartment who indicated that Rossell was inside. Rossell was located inside the apartment, and a gun was found in the room that Rossell was inhabiting. The renter of the apartment denied ownership of the gun. Twenty dollars was located on Rossell’s person in the same denominations as the money stolen from the victim.

Rossell was charged with the crimes relating to all four incidents in the same indictment. On September 26, 2013, Rossell’s trial counsel filed a speedy trial demand pursuant to OCGA § 17-7-170. On the same date, his trial counsel also filed a lengthy motions packet which included a one-sentence motion to sever offenses and parties. On February 6, 2014, Rossell’s trial counsel filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b), and a hearing was held on that motion three days prior to trial. After the trial court indicated that it would take the motion for discharge and acquittal under advisement, Rossell’s trial counsel filed, in open court, an amended, particularized, motion to sever offenses. A hearing was held on Rossell’s motion to sever offenses, and the trial court also took that motion under advisement.

On the date of trial, the trial court denied both motions. The trial court expressed its displeasure with inaccuracies in Rossell’s trial counsel’s motion for discharge and acquittal and noted that because it was the last week of the term, it could not sever the offenses and also protect Rossell’s right to a speedy trial. Following his conviction, Rossell filed a motion for new trial, which was denied. This appeal follows.

Rossell contends that the trial court erred by denying his motion to sever the offenses charged in the indictment.

Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court. When exercising this discretion, the trial court should consider whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense.

(Citations and punctuation omitted.) Evans v. State, 266 Ga. App. 405, 409 (2) (597 SE2d 505) (2004). “We evaluate the trial court’s decision on severance under an abuse of discretion standard.” Harmon v. State, 281 Ga. App. 35, 37 (2) (635 SE2d 348) (2006).

Applying those principles to the facts of this case, all of the charged offenses occurred within a five-week period and, with the exception of the aggravated battery that took place at the detention center, the offenses took place at the same location, the Spalding Heights neighborhood. Three of the offenses share common witnesses. The investigator with the Spalding County Sheriff’s Office who was “assigned most all of these cases” received multiple affidavits that Rossell was not involved in the June 27 fight that he was ultimately acquitted of. One of the affidavits was from the renter of the apartment in Spalding Heights that Rossell was found in after he committed the armed robbery. Another affidavit was from Rossell’s girlfriend who was also involved in the June 2 aggravated battery Additionally, with the exception of the armed robbery, all of the offenses share the same modus operandi and the victims suffered similar injuries. In each of those offenses, Rossell was alleged to have hit the victim with his fists causing, among other things, broken bones, swelling, and bruising.

Decided April 20, 2017

Reconsideration denied May 10, 2017

Miller & Key, J. Scott Key, for appellant.

Scott L. Ballard, District Attorney, B. Ashton Fallin, Assistant District Attorney, for appellee.

Our review of the evidence shows that the number of offenses charged and the complexity of the evidence were not such that the jury would be unable to distinguish the evidence of each charge. And since the jury acquitted [Rossell] of [aggravated battery, aggravated assault, and battery], it is clear that the jury was able to distinguish the evidence and apply the law intelligently as to each offense.

(Citation and punctuation omitted.) Harmon, 281 Ga. App. at 38 (2). See Fielding v. State, 299 Ga. App. 341, 342-343 (1) (682 SE2d 675) (2009); see also Langston v. State, 195 Ga. App. 873 (1) (395 SE2d 74) (1990).

Accordingly, based on the facts and circumstances of this case, including Rossell’s demand that all counts be tried in accordance with OCGA § 17-7-170, the trial court did not abuse its discretion in denying Rossell’s motion to sever offenses.

Judgment affirmed.

Ellington, P. J., and Andrews, J., concur.

       Rossell was also found guilty of two counts of aggravated assault and two counts of battery, but those convictions merged into his convictions for aggravated battery for the purposes of sentencing. Rossell was acquitted of one count of aggravated battery, aggravated assault, and battery.

       Any defendant against whom a true bill of indictment... is filed with the clerk for an offense not affecting the defendant’s life may enter a demand for speedy trial at the court term at which the indictment... is filed or at the next succeeding regular court term thereafter; or, by special permission of the court, the defendant may at any subsequent court term thereafter demand a speedy trial. . . .
      OCGA §17-7-170 (a).

       If the defendant is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation. . . .
      OCGA § 17-7-170 (b).

       Rossell also argues that his speedy trial demand was not properly served upon the trial court and was thus defective and, in the alternative, that if the demand was valid the alleged misrepresentations in his motion for discharge and acquittal had no bearing on the trial court’s scheduling problem. “However, this argument was not raised below and was not preserved for appellate review.” Watkins v. State, 212 Ga. App. 296, 297 (1) (441 SE2d 801) (1994).


author: DOYLE, Chief Judge.

text:
    A17A0087.
    CAFFEE v. THE STATE.
    (801 SE2d 71)
   DOYLE, Chief Judge.

Richard Caffee was charged with possession of less than one ounce of marijuana and driving with an expired tag after a police officer found a small baggie of marijuana in his shirt pocket during a traffic stop. The trial court denied Caffee’s motion to suppress but granted a certificate of immediate review, and we granted interlocutory review. We affirm for the reasons that follow.

When reviewing a trial court’s ruling on a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. This means that the reviewing court generally must accept the trial court’s findings as to disputed facts unless they are clearly erroneous, although the reviewing court may also consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility such as facts indisputably discernible from a videotape.

So viewed, the record shows that on November 1, 2015, Deputy Mark Patterson observed an expired tag on Caffee’s truck and pulled him over. While speaking with him, Patterson “smelled green marijuana” coming from Caffee’s truck and observed that Caffee’s eyes were “bloodshot and glassy” At the suppression hearing, Patterson testified that he was familiar, based upon his training and experience, with the smell of burned and raw marijuana, as well as the signs and indications of recent marijuana use.

At Patterson’s request, Caffee exited the vehicle and showed him his tongue; Caffee’s taste buds were “white and risen,” which condition Patterson testified was consistent with recent marijuana use. Patterson asked Caffee whether he had marijuana in his truck, and Caffee responded that he did not. Patterson then decided to search Caffee’s truck for drugs. While waiting for back-up to arrive, Patterson conducted a pat-down of Caffee for weapons. After back-up arrived approximately ten minutes later, Patterson searched the truck and found two small bottles that smelled of green marijuana but contained no contraband. No marijuana was found in Caffee’s vehicle. According to Patterson, the odor of green marijuana dissipated from the truck during the search, while the doors were open.

When Patterson approached Caffee to discuss the two containers he found in the truck, Patterson began “smelling marijuana again pretty strongly.” Patterson searched Caffee’s outer clothing, “feeling the pockets and looking in them” as he did so, and he discovered a small plastic bag containing less than an ounce of marijuana. The entirety of the encounter was approximately 30 minutes.

Caffee was charged with possession of marijuana less than one ounce and driving with an expired tag. He filed a motion to suppress, and the trial court held a hearing, at which Patterson testified as the sole witness, and the State played the videotape of the traffic stop and encounter. After the hearing, the trial court denied the motion, concluding that Patterson had reasonable articulable suspicion to justify the traffic stop; the warrantless search of Caffee’s truck was justified based on the odor of marijuana; and there was no unreasonable delay or unconstitutional expansion of the initial traffic stop. The court rejected the State’s contention that Patterson’s search of Caffee’s shirt pocket containing the baggie of marijuana was a lawful Terry pat-down but nevertheless concluded that based upon “the totality of the circumstances,” Patterson had sufficient probable cause to search Caffee’s shirt pocket. This interlocutory appeal followed.

1. Caffee argues that the trial court erred by denying his motion to suppress because Patterson was not authorized to search Caffee’s shirt pocket without a warrant. We disagree.

In State u. Kazmierczak, which involved the sufficiency of an application for a warrant to search a home based upon an officer’s detection of the odor of marijuana, this Court held: “[I]f the affidavit for the search warrant contains sufficient information for a magistrate to determine that the officer who detected the odor of marijuana emanating from a specified location is qualified to recognize the odor, the presence of such an odor may be the sole basis for the issuance of a search warrant.”

Kazmierczak overruled contrary authority and recognized that the presence of an odor coming from a particular place may be “evidence of [the] most persuasive character” in support of probable cause to issue a search warrant. Accordingly, a police officer qualified by training or experience to recognize the distinctive odor of raw marijuana may reasonably infer from the officer’s detection of that odor coming from a particular place that marijuana will be found in that place.

Here, based upon his testimony regarding his experience and training, Patterson’s detection of the smell of raw marijuana alone would have supported a search warrant. The issue in this case, however, is whether there was probable cause for the warrantless search of Caffee’s shirt.

For probable cause to search a person without a warrant, we must look to the parameters of police knowledge at the time the search occurred to determine if that knowledge was such as would justify a man of reasonable caution in believing that an offense has been or is being committed, and this requires merely a probability — less than a certainty but more than a mere suspicion or possibility. The reviewing court must determine under the totality of the circumstances whether the evidence in this case showed a fair probability that contraband or evidence of a crime would be found in a particular place.

In this case, there was evidence that Patterson, who had training and experience in detecting the odor of raw marijuana and physical manifestations of recent marijuana use, (1) noticed that Caffee’s eyes were bloodshot and glassy, and his taste buds were “white and risen”; (2) smelled raw marijuana when he approached Caffee’s truck; (3) noticed that the odor dissipated during the search of the truck while the doors were open and while Caffee was not in the vehicle; (4) did not find marijuana in the truck; and (5) smelled marijuana “pretty strongly” again when he approached Caffee after the vehicle search. Given this evidence, we find no error in the trial court’s conclusion that “under the totality of the circumstances in this case . . . Deputy Patterson had sufficient probable cause to search [Caffee] a second time to seek the raw marijuana he smelled coming from [Caffee’s] person.”

2. Caffee also contends that Patterson exceeded the scope of the initial traffic stop and unnecessarily prolonged it to conduct the search of Caffee’s shirt pocket. This enumeration presents no basis for reversal.

The law generally provides that an investigatory traffic stop should be limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.

In this case, Patterson detected the odor of green marijuana immediately upon approaching Caffee’s vehicle. After speaking to Caffee briefly and observing physical symptoms consistent with recent marijuana use, Patterson decided to search the truck, and he patted Caffee down for weapons while they waited for back-up, which arrived ten minutes after the traffic stop. The search of Caffee’s truck took approximately ten to fifteen minutes. Once Patterson returned to Caffee after the search, he again recognized the strong smell of marijuana emanating from Caffee and immediately searched his clothing. Approximately 30 minutes elapsed from the time of the initial traffic stop until Caffee’s arrest.

Decided May 10, 2017

Amanda Speights, Gregory A. Hicks, for appellant.

Jessica K. Moss, Solicitor-General, David M. McElyea, Assistant Solicitor-General, for appellee.

Under these circumstances, we conclude that Patterson’s investigation did not exceed the permissible scope of the stop nor unnecessarily prolong it.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       OCGA § 16-13-2 (b).

       OCGA § 40-2-8 (a).

       (Punctuation omitted.) State v. Clark, 301 Ga. 7, 8 (1) (799 SE2d 192) (2017), quoting State v. Allen, 298 Ga. 1 (1) (a) (779 SE2d 248) (2015).

       When Patterson saw Caffee’s face as he approached his truck, Patterson realized that he had pulled him over earlier that same year for an expired tag.

       Caffee is visible during a portion of the videotape, but the search of his pockets takes place off camera.

        Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968).
      A Terry pat-down, unlike a full search, is conducted for the purpose of ensuring the safety of the officer and of others nearby, not to obtain evidence for use at trial. It is a minimal intrusion reasonably designed to discover guns, knives, clubs, or other weapons that could prove dangerous to a police officer. Under Terry, an officer is authorized to pat down a suspect’s outer clothing. He may intrude beneath the surface in only two instances: (1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent, i.e., the “plain feel” doctrine.

        Johnson v. State, 297 Ga. App. 847, 848 (678 SE2d 539) (2009) (punctuation omitted).

       On appeal, Caffee does not challenge the basis for the traffic stop, the initial Terry pat-down, or the search of his truck.

       331 Ga. App. 817 (771 SE2d 473) (2015).

       Id. at 823.

       (Citations and punctuation omitted.) State v. Edwards, 332 Ga.App. 342, 345 (772 SE2d 430) (2015), quoting Kazmierczak, 331 Ga.App. at 822-823.

       (Citations and punctuation omitted.) Brooks v. State, 208 Ga.App. 680, 681 (1) (431 SE2d 466) (1993).

        See State v. Cannon, 253 Ga.App. 445, 447-448 (559 SE2d 76) (2002) (reversing the grant of motion to suppress because the totality of the circumstances — the odor of marijuana, admission of recent marijuana use, furtive movements and attempts to avoid a pat-down, nervousness, and police knowledge of defendant’s prior drug arrests — established probable cause to search the defendant’s pants); Patman v. State, 244 Ga.App. 833, 835-836 (537 SE2d 118) (2000), disapproved by Kazmierczak, 331 Ga.App. at 823 (holding that “[t]o the extent that our holdings in Pat man [and other listed cases] could be interpreted as support for the premise that the odor of raw marijuana emanating from a particular location cannot be the sole basis for the issuance of a search warrant for that location, such interpretations are hereby disapproved”); Brooks, 208 Ga.App. at 681 (1); Williams v. State, 187 Ga.App. 409, 412 (2) (370 SE2d 497) (1988). See also United States v. Hyppolite, 609 Fed. Appx. 597, 605 (II) (A) (1) (11th Cir. 2015) (unpublished).

       (Punctuation omitted.) Barraco v. State, 244 Ga.App. 849, 850 (1) (537 SE2d 114) (2000), quoting Smith v. State, 216 Ga.App. 453, 454-455 (2) (454 SE2d 635) (1995).

       Caffee had two large dogs in his truck, which Patterson had him remove and hold while the truck was searched.

        See Davis v. State, 322 Ga. App. 217, 218-220 (744 SE2d 393) (2013); Barraco, 244 Ga. App. at 850 (1); Pollack v. State, 294 Ga. App. 400, 403-404 (3) (b) (670 SE2d 165) (2008).


author: McFADDEN, Presiding Judge.

text:
    A17A0116.
    BIHLEAR v. THE STATE.
    (801 SE2d 68)
   McFADDEN, Presiding Judge.

In 2007, Christopher Bihlear was convicted of armed robbery and sentenced as a recidivist to life in prison without parole. He directly appealed from his conviction, and we affirmed that judgment in Bihlear v. State, 295 Ga. App. 486 (672 SE2d 459) (2009). In 2015, he filed a pro se “Motion to Correct Void Sentence,” which the trial court denied. Bihlear now appeals from that ruling, and the state moves to dismiss the appeal. We deny the state’s motion to dismiss because Bihlear has stated a colorable claim for void sentence over which we have appellate jurisdiction, and the state has not supported its assertion that a non-lawyer other than Bihlear drafted the motion and filed the notice of appeal. However, we affirm the judgment because the trial court correctly determined that Bihlear’s sentence was not void.

1. Motion to dismiss appeal.

The state moves to dismiss Bihlear’s appeal on two grounds: because we lack jurisdiction over the appeal and because a non-lawyer other than Bihlear drafted the motion and filed the appeal. Because neither argument has merit, we deny the state’s motion to dismiss.

(a) Appellate jurisdiction.

The state argues that we lack jurisdiction over this appeal from the trial court’s ruling on Bihlear’s “Motion to Correct Void Sentence” because Bihlear did not raise a colorable claim of voidness in that motion. While the denial of a motion to correct a void sentence is directly appealable, “in determining whether a purported motion to correct ... a void sentence is in fact such a motion, we look to the substance of the motion rather than its nomenclature.” Coleman v. State, 305 Ga. App. 680 (700 SE2d 668) (2010) (citations and punctuation omitted). If an appellant’s claims of error do not present a colorable claim of voidness, he is not entitled to a direct appeal from the trial court’s denial of his motion to correct a void sentence, even if he characterizes his sentence as “void.” Id. at 681; Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009).

“A sentence is void if the court imposes punishment that the law does not allow.” Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991) (citation omitted).

Motions to vacate [or correct] a void sentence generally are limited to claims that — even assuming the existence and validity of the conviction for which the sentence was imposed — the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute applies.

von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013).

In his motion, Bihlear claimed that the law did not allow his recidivist sentence of life without parole because the state and the trial court had not satisfied certain statutory prerequisites for such a sentence. While Bihlear’s motion is without merit for the reasons described below, it nevertheless presented a colorable claim for a void sentence. See Dempsey v. State, 279 Ga. 546, 549 (4) (615 SE2d 522) (2005) (sentence for life without parole is void if not in conformity with statute governing recidivist sentencing); State v. Willis, 218 Ga. App. 402, 404 (5) (461 SE2d 576) (1995) (same); see also Kimbrough v. State, 300 Ga. 516, 518-520 (3) (796 SE2d 694) (2017) (considering but rejecting on the merits, rather than dismissing, appellant’s claim that recidivist sentence of life without parole for murder conviction was void because state did not meet statutory requirement of giving notice of intent to seek death penalty). Consequently, Bihlear was entitled to a direct appeal from the trial court’s order denying his motion.

(b) Involvement of non-lawyer.

The state argues that we should dismiss Bihlear’s appeal because a non-lawyer was involved in drafting his motion and filing his notice of appeal. Assuming without deciding that this would be a ground for dismissal, the appellate record does not support the state’s assertion that any such involvement occurred. Bihlear signed both pleadings as a pro se litigant, and the appellate record has not been developed to show that any other person was acting on Bihlear’s behalf. We therefore decline to dismiss the appeal on this ground.

2. Motion to correct void sentence.

Bihlear argues that the law did not authorize his sentence of life without parole for armed robbery, and thus his sentence was void and the trial court erred in denying his motion to correct void sentence. We disagree.

The trial court imposed Bihlear’s sentence for armed robbery pursuant to the recidivist sentencing provisions of OCGA § 17-10-7 (a) and (c). The Code section setting forth the offense of armed robbery, OCGA § 16-8-41, authorizes life imprisonment as a punishment. See Lester v. State, 309 Ga. App. 1, 5 (2) (710 SE2d 161) (2011). And OCGA § 16-8-41 permits a recidivist sentence requiring a person to serve a sentence of life imprisonment without parole. As we explained in Wynn v. State, 332 Ga. App. 429, 437 (5) (773 SE2d 393) (2015):

OCGA § 16-8-41 (b) provides that a person convicted of the offense of armed robbery shall be punished by imprisonment for life or for not less than 10 nor more than 20 years. [And] OCGA § 16-8-41 (d) provides that a person convicted of armed robbery is subject to the recidivist provisions of OCGA §§ 17-10-6.1 and 17-10-7. OCGA § 17-10-7 (a) provides that, upon a second felony conviction, a person shall be sentenced to the longest period of time prescribed for punishment of the second offense, although the sentencing court may probate or suspend the maximum sentence. Under OCGA § 17-10-7 (c), upon a fourth felony conviction, a person must serve the maximum time sentenced “and shall not be eligible for parole until the maximum sentence has been served.”

For the purpose of this appeal, the versions of these statutes in effect at the time of Bihlear’s 2007 conviction are not meaningfully different than the versions in effect today. Although in 2007 former OCGA § 17-10-7 (c) did not apply to sentencing for a capital felony, an exception that the General Assembly removed from that statute in 2010, see Kimbrough, supra, 300 Ga. at 517 (2) n. 2, armed robbery is not considered a capital felony for the purpose of recidivist sentencing under former OCGA § 17-10-7 (c). Dempsey, supra, 279 Ga. at 549 (4).

Decided May 10, 2017.

Christopher Bihlear, pro se.

Meg E. Heap, District Attorney, Gregory M. McConnell, Lyndsey H. Rudder, Assistant District Attorneys, for appellee.

Bihlear does not dispute that he had three prior felony convictions. These prior convictions supported the sentence of life without parole imposed by the trial court under OCGA § 17-10-7 (a) and (c). Consequently, Bihlear’s sentence did not “exceed[ ] the most severe punishment for which the applicable penal statute provides.” von Thomas, supra, 293 Ga. at 572 (2); see Wynn, supra, 332 Ga. App. at 437 (5).

Bihlear argues that the law does not allow his sentence of life without parole because the state did not give notice of its intent to seek the death penalty, citing State v. Ingram, 266 Ga. 324 (467 SE2d 523) (1996), and its progeny, and because the trial court did not follow certain statutory procedures for involving the jury in sentencing in a death penalty case. Our Supreme Court rejected these arguments in Kimbrough, supra, 300 Ga. at 520 (3), in connection with sentencing for a murder conviction. These arguments also fail because they rest on the erroneous premise that the death penalty was a possible sentence for his armed robbery conviction. Despite statutory language providing that a person convicted of armed robbery may be punished by death, see OCGA § 16-8-41 (b), our Supreme Court “has held that armed robbery alone does not warrant the death penalty” and that the death penalty may not be imposed for that offense. Collins v. State, 239 Ga. 400, 402 (2) (236 SE2d 759) (1977) (citation omitted). Consequently, there is no merit to Bihlear’s arguments that the law did not allow a sentence for life without parole for his armed robbery conviction because the state or the trial court failed to follow procedures required for a death penalty case.

Judgment affirmed.

Branch and Bethel, JJ., concur.


author: Andrews, Judge.

text:
    A17A1059.
    DARDEN v. THE STATE.
    (800 SE2d 36)
   Andrews, Judge.

The State charged Tamichael Darden with sale of cocaine and possession of cocaine with intent to distribute. Following a trial, the jury found him guilty of the lesser included offense of possession, resulting in his conviction on that offense. Darden appeals, and for reasons that follow, we affirm.

Viewed favorably to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that on December 12, 2013, undercover narcotics officers with the Athens-Clarke County Police Department saw Darden enter a local billiards hall. One of the officers, William Parker, was familiar with Darden and his vehicle from past encounters and prior surveillance activity Parker and his partner continued to observe the area from their unmarked SUV, noting the arrival of a disheveled individual that Parker thought was “somebody, at that point, to watch.” The individual, who was later identified as William Watson, went into the billiards hall, then exited a few minutes later, followed closely by Darden.

The two men got into Darden’s vehicle, and Parker could see Darden maneuvering “objects in [his] lap.” Believing that they were witnessing a drug transaction, the officers approached Darden’s vehicle in their unmarked SUV, “pull[ing] at an angle to the rear of Mr. Darden’s vehicle.” Watson got out of the car, and Parker walked towards him, identifying himself as a police officer and asking whether they could speak. Watson immediately “slump[ed] his body,” and Parker inquired whether he had just purchased drugs. Indicating that he had bought $40 worth of crack cocaine from Darden, Watson handed Parker a piece of cocaine.

Parker detained Watson and signaled to his partner that he should detain Darden. The officers subsequently searched Darden’s car, discovering additional cocaine, $40 in cash, a digital scale, and razor blades. The officers also recovered $822 in cash from Darden’s person.

At trial, Watson testified for the defense, asserting that he had met with Darden to repay a debt, not to purchase cocaine. According to Watson, he only stated that Darden had sold him cocaine because the officers told him they would let him go if he implicated Darden.

Based on the evidence presented, the jury found Darden not guilty of selling or intending to distribute cocaine but guilty of possessing the cocaine found in the car. Darden now challenges his possession conviction, asserting that he received ineffective assistance of counsel at trial. To prevail on this claim, Darden must show “both that his counsel’s performance was deficient and that his defense was prejudiced to the extent that, but for that deficient performance, a reasonable probability exists that the outcome of the trial would have been different.” Ross v. State, 313 Ga. App. 695, 696 (1) (722 SE2d 411) (2012).As discussed below, Darden has not met his burden of proof.

1. Darden argues that defense counsel deficiently failed to move to suppress the evidence seized by the officers after they improperly detained him without reasonable suspicion. We disagree.

Our case law establishes three tiers of police-citizen encounters: (1) communications involving no coercion or detention, which fall outside of the Fourth Amendment; (2) brief seizures that must be supported by reasonable suspicion of criminal activity; and (3) full-scale arrests that require probable cause. See Minor v. State, 298 Ga. App. 391, 394 (1) (a) (680 SE2d 459) (2009). During a first-tier encounter, police officers

may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.

Id. (citation and punctuation omitted).

Darden claims that the officers’ initial approach of his vehicle was a second-tier encounter requiring reasonable suspicion of criminal activity. To support this claim, Darden testified at the hearing on his motion for new trial that the officers parked their unmarked SUV “[djirectly behind” his car, blocking him in and preventing him from leaving the parking lot. A photograph admitted at trial that “accurately depict[ed] the way [Darden’s] car looked” when the officers approached, however, does not show an SUV directly behind it. And when the officers pulled into the parking lot, Darden was sitting in his parked vehicle; there is no evidence that the vehicle was running or that he was attempting to leave the area.

“It is well established that an officer’s approach to a stopped vehicle and inquiry as to what is going on do not constitute a ‘stop’ or ‘seizure’ and clearly falls within the realm of the first type of police-citizen encounter.” In the Interest of A. A., 265 Ga. App. 369, 371 (1) (593 SE2d 891) (2004) (citation and punctuation omitted). The officers in this case approached an already-stopped vehicle in their unmarked SUV and encountered the occupants. Although Darden asserted at the new trial hearing that the officers prevented him from leaving the parking lot, the trial court was authorized to disbelieve this testimony in denying his motion for new trial. See Crankshaw v. State, 336 Ga.App. 700, 702 (3) (a) (786 SE2d 245) (2016) (trial court determines witness credibility at hearing on motion for new trial).

Simply put, “no ‘stop’ occurred within the meaning of the Fourth Amendment” when the officers initially approached Darden’s car. In the Interest of A. A., supra, 265 Ga.App. at 371 (1). The approach was a first-tier police-citizen encounter that did not require reasonable suspicion. See Minor, supra, 298 Ga. App. at 394 (1) (a) (first-tier encounter occurred when officer parked patrol car behind vehicle in driveway; although vehicle was occupied and “about to leave,” it was not moving as the officer made contact, and there was no evidence that the officer activated her patrol car’s blue lights); In the Interest of A. A., supra, 265 Ga. App. at 371 (1) (where officer pulled into driveway behind occupied vehicle that had already stopped, the fact that “the officer’s car was blocking or partially blocking the driveway [was] immaterial”). Compare Jones v. State, 291 Ga. 35, 38 (1) (727 SE2d 456) (2012) (seizure occurred when officer activated patrol car’s flashing lights and blocked defendant’s truck as it tried to exit parking lot). And once Watson stated that he had purchased cocaine from Darden, the officers were authorized to detain the two men for further investigation. See White v. State, 267 Ga. App. 200, 202 (2) (598 SE2d 904) (2004) (first-tier encounter properly escalated into second-tier stop after defendant told officer that he was in possession of marijuana).

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” Ross, supra, 313 Ga. App. at 697 (1) (b) (citation and punctuation omitted). Darden has not made the required showing here. Accordingly, “his ineffectiveness claim must fail.” Id.

2. Darden also argues that trial counsel deficiently opened the door to testimony regarding his refusal to speak with police. At trial, counsel asked Parker whether Darden had cooperated when the officers approached his vehicle. Parker agreed that Darden had not resisted the officers or fled, and he initially gave them an explanation for the cash found on his person. After establishing that Parker had questioned Darden further that day, counsel asked: “[D]id he cooperate and answer your questions or did he refuse to cooperate?” Parker responded: “[H]e did not wish to speak with us.”

According to Darden, defense counsel invited Parker to comment on his right to remain silent. Even if counsel’s performance was deficient in this regard, however, we find no reasonable probability that such deficiency impacted the trial outcome. As noted above, the jury found Darden not guilty of selling or intending to distribute cocaine. He was convicted only of possessing the cocaine found in his vehicle. Given the jury’s relatively favorable verdict, as well as the clear evidence of cocaine in the car, we find it highly unlikely that Parker’s response to defense counsel’s question prejudiced Darden. See Whitaker v. State, 291 Ga. 139, 142 (2) (728 SE2d 209) (2012) (trial counsel’s failure to object to comments on defendant’s pre-arrest silence did not constitute ineffective assistance where defendant failed to show that comments likely impacted verdict); Hines v. State, 277 Ga. App. 404, 408 (2) (626 SE2d 601) (2006) (“Improper reference to a defendant’s silence does not automatically require reversal or mandate a finding of ineffective assistance of counsel.”) (citation and punctuation omitted); see also McGlothlin v. State, 339 Ga. App. 371, 374 (2) (a) (791 SE2d 645) (2016) (verdict of acquittal on most serious charge undermined argument that detective’s improper testimony prejudiced jury against defendant).

Decided May 10, 2017.

Daniels & Rothman, Jeffrey A. Rothman, for appellant.

Kenneth W. Mauldin, District Attorney, Grace E. Conway, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, P. J., and Rickman, J., concur.


author: McMlLLIAN, Judge.

text:
    A17A0214.
    ZIGLAR v. ST. JOSEPH’S/CANDLER HEALTH SYSTEM, INC.
    (800 SE2d 395)
   McMlLLIAN, Judge.

Appellant Jason Keith Ziglar appeals following dismissal of his complaint for failure to file a sufficient expert affidavit pursuant to OCGA § 9-11-9.1. As more fully set forth below, we now affirm.

“A motion to dismiss based upon the lack of [a sufficient] expert affidavit is a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6).” (Citation and punctuation omitted.) Brown v. Tift Health Care, Inc., 279 Ga.App. 164, 165 (630 SE2d 788) (2006). “We review a trial court’s ruling on a motion to dismiss de novo, viewing all well-pled allegations in the complaint as true.” (Citation omitted.) Hobbs v. Great Expressions Dental Centers of Ga., 337 Ga.App. 248, 248 (786 SE2d 897) (2016). So viewed, the sixteen-paragraph complaint alleges that Ziglar was admitted to St. Joseph’s/Candler Health System, Inc. (“Hospital”) in December 2013. Ziglar, who was unconscious at the time of his admission, developed a Stage IV sacral ulcer during his stay. Ziglar filed a negligence action, contending that the Hospital, nurses and support staff, for whose negligence the Hospital was vicariously liable through theories of agency and respon-deat superior, had failed to properly assess and treat the ulcer and had failed to appropriately advocate for his care while he was unconscious. As required by OCGA § 9-11-9.1 in professional negligence actions, Ziglar attached the affidavit of nurse Sandra D. Copeland to his complaint. The Hospital answered and filed a motion to dismiss on the basis that Copeland’s affidavit did not meet the requirements of OCGA § 9-11-9.1. The trial court granted the Hospital’s motion based solely on the failure to file a sufficient OCGA § 9-11-9.1 affidavit, and Ziglar filed this appeal.

Pursuant to OCGA § 9-11-9.1 (a), plaintiffs who file professional negligence claims against “(1) [a] professional licensed by the State of Georgia and listed in subsection (g) of this Code section; [or] (3) [a]ny licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (g) of this Code section,” must file an expert affidavit with their complaint. Further, the statute also plainly provides that the expert’s “affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis supplied.) OCGA § 9-11-9.1 (a) (3).

In pertinent parts, Copeland’s affidavit contained the following averments:

Based on my review of the above-described medical records, it is my opinion within a reasonable degree of medical probability that the staff of St. Joseph’s Hospital failed to exercise the standard of care and degree of skill possessed, exercised and employed by the medical profession generally and nurses and support staff with regard to nursing care of patients in medical facilities especially, under similar conditions and like circumstances, by negligently failing to: (1) properly assess and treat Jason Keith Ziglar’s wounds; and (2) appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required.

The Hospital contends this affidavit was fatally defective because: 1) it fails to set forth at least one negligent act or omission claimed to exist; 2) it fails to set forth any factual basis for such a claim against the defendant; and 3) even assuming plaintiff’s expert, a nurse, was competent to testify as to the standard of care of the Hospital’s nurses, she is not competent to testify about the standard of care of the Hospital’s unidentified “support staff” under OCGA § 24-7-702.

Our law is clear that “[a]n affidavit under OCGA § 9-11-9.1 which does not state specifically at least one negligent act or omission is fatally defective.” (Citation omitted.) Edwards v. Vanstrom, 206 Ga.App. 21, 22 (1) (424 SE2d 326) (1992). Here, the affidavit recites only generally that the nurses and staff at the Hospital failed to appropriately treat, assess, and advocate for Ziglar while he was a patient there, and does not contain any specific instances of any of those alleged failures. Moreover, even assuming the general assertions of “failure to assess or treat” were sufficient to state an act or omission of negligence, the affidavit also failed to set out a sufficient factual basis to support such a negligent act or omission. Cf. Crook v. Funk, 214 Ga. App. 213, 214 (1) (447 SE2d 60) (1994) (doctor’s affidavit sufficient under facts set out in the affidavit). In this regard, the affidavit referred to the medical records but did not attach them, and as to facts otherwise recited only that “[b]eginning in December of 2013, . . . Ziglar was an unconscious patient that was at high risk for the development of pressure ulcers” and “[d]espite the fact that the staff of [the Hospital] knew or should have known of the high risk of pressure ulcers,... Ziglar developed a Stage IV sacral ulcer.” These are not the type of underlying facts sufficient to support claims of professional negligence for purposes of the OCGA § 9-11-9.1 affidavit. Accordingly, even construing the affidavit in Ziglar’s favor, we find that the affidavit here was insufficient on its face to satisfy the requirements of OCGA § 9-11-9.1.

Ziglar argues, however, that his complaint also set out a claim for simple negligence acts by the nonprofessional Hospital support staff for which he did not need an OCGA § 9-11-9.1 affidavit. Carter v. VistaCare, LLC, 335 Ga. App. 616, 621 (3) (782 SE2d 678) (2016) (requirement of attaching an OCGA § 9-11-9.1 affidavit does not apply to claims of ordinary negligence); Padgett v. Baxley and Appling County Hosp. Auth., 321 Ga. App. 66, 71 (2) (741 SE2d 193) (2013) (physical precedent only) (CNA is not one of the professionals listed in OCGA § 9-11-9.1 or similar Code sections, and expert affidavit not required). It is true that Ziglar’s complaint recites that “[t]his action is one for professional negligence, simple negligence and malpractice.” But, as Ziglar acknowledges, we are not bound by his characterization of his claims, and instead must review the complaint de novo to discover the nature of Ziglar’s claims. “Whether a complaint alleges ordinary negligence or professional malpractice is a question of law for the court.” (Citation and punctuation omitted.) Carter, 335 Ga. App. at 621 (3).

When assessing whether the complaint alleges ordinary negligence, we must liberally construe the allegations of the complaint and only conclude that ordinary negligence has not been alleged if it is foreclosed by the complaint itself [.] In determining, as a matter of law, whether the complaint alleged claims based on ordinary negligence, professional negligence, or both,... we look solely to the allegations of the complaint and liberally construe the allegations to state a claim if, within the framework of the complaint, the plaintiff may introduce evidence which will sustain a grant of relief based on the claim. We will conclude that the complaint does not allege a claim only if the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief on the claim under any state of provable facts. (Citations and punctuation omitted.) Health Mgmt. Assoc. v. Bazemore, 286 Ga. App. 285 (648 SE2d 749) (2007).

Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 146-47 (1) (682 SE2d 165) (2009).

Ziglar set out two basic claims in the complaint — that the Hospital and its employees, specifically its nurses and support staff, failed to properly treat and assess Ziglar’s wounds and the Hospital failed to ensure that, as an unconscious patient, he received the required level of monitoring and treatment, which would logically include detecting the development of ulcers caused by a prolonged bed stay

“Failure to adequately monitor for injuries and failure to assure proper medical care are analogous to claims previously held to fall within the realm of professional medical decisionmaking.” Brown, 279 Ga. App. at 167. Ziglar alleged negligence based on the failure of the Hospital’s nurses and unspecified staff to take the appropriate steps to ensure that he, as an unconscious patient, did not develop a pressure ulcer while confined to his hospital bed and to appropriately treat it once they discovered it. Clearly, just what these steps are and what should have been done to prevent the development of the ulcer would require “highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.” (Citation and punctuation omitted.) Brown, 279 Ga. App. at 166-67; see also Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833 (769 SE2d 575) (2015) (physical precedent only) (medical malpractice case involving pressure sores). Likewise, a “medical judgment” clearly would be involved in assessing the severity of the ulcer and prescribing a course of treatment. “ ‘Medical judgments’ are ‘decisions which normally require the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience. Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998).” James v. Hosp. Auth. of the City of Bainbridge, 278 Ga. App. 657, 659 (629 SE2d 472) (2006). Here, Ziglar alleged his claims in terms of medical negligence, referring to a failure to exercise or a deviation from acceptable standards of medical care. Thus, even construing the allegations of his complaint broadly in his favor, we conclude that the entirety of Ziglar’s claims fall within the realm of professional negligence and therefore were properly dismissed for want of a sufficient OCGA § 9-11-9.1 affidavit.

Decided May 12, 2017.

The Bowen Law Group, Charles J. Bowen, Jr., for appellant.

Brennan, Wasden & Painter, Wiley A. Wasden III, Sandra V. Foster, for appellee.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

       The Hospital sought dismissal only on the basis that the OCGA § 9-11-9.1 affidavit was insufficient.


text:
    A17A0310.
    BADICHI v. ALBION TRADING, INC. et al.
    (801 SE2d 75)
   McMlLLIAN, Judge.

Boaz Yaheil Badichi appeals from the trial court’s grant of partial summary judgment to Albion Trading, Inc. (“Albion”); SBS 384, LLC; SBS 276, LLC; and SBS Holdings at Tall Pines Apartments, LLC (collectively the “plaintiffs”), asserting that the trial court erred in finding he had failed to respond to the plaintiffs’ request for admissions, thereby conclusively admitting the allegations in those requests. For the reasons that follow, we vacate the trial court’s order and remand for further proceedings.

The limited record shows that the plaintiffs filed suit against Badichi, an Israeli citizen and resident, in November 2014. The complaint alleged that Albion is the sole member of SBS 384, LLC; SBS 276, LLC; and SBS Holdings at Tall Pines Apartments, LLC (collectively the “Apartments”), corporate entities that own apartment complexes operating in Decatur and Atlanta, Georgia. The complaint further alleged that Badichi owns a 50 percent “beneficial or equitable but not legal interest” in the Apartments. Since their acquisition, the Apartments’ value has purportedly decreased and Badichi has ceased paying his 50 percent share of their negative cash flow. As a result, the plaintiffs asserted claims for equitable partition, accounting, and attorney fees.

In June 2015, the plaintiffs amended their complaint to add Ori Nesher, who allegedly represents Badichi’s interests with respect to the Apartments, as a defendant, and to assert a count for declaratory judgment regarding the true ownership of the Apartments. According to this complaint, when the Apartments were purchased in 2011, Nesher arranged for the closings, and shortly after the sale, Nesher and Albion’s representative, Ori Peretz, became the sole members of the Apartments. The plaintiffs allege that Badichi did not want his name to appear as a member, so in August 2013, when Albion and Badichi caused Nesher and Peretz to transfer their interests in satisfaction of the acquisition loans, Albion became the sole member of each Apartment. Nesher and Peretz remained involved as corporate managers of the Apartments. The plaintiffs also allege that Badichi thereafter declined to execute a new operating agreement or otherwise become a member of the Apartments.

However, in July 2015, the plaintiffs withdrew the amended complaint and reinstated their original complaint. On August 26, 2015, Badichi simultaneously filed an answer, by special appearance, and a motion to dismiss, asserting insufficient service of process, lack of personal jurisdiction, failure to state a claim, and failure to join an indispensable party The plaintiffs then filed another amended complaint, this time asserting claims for declaratory judgment, accounting, damages, and attorney fees. On December 2, 2015 — more than 90 days after Badichi filed his motion to dismiss — the plaintiffs served Badichi with discovery requests, including a request for admissions. Badichi timely respondedby objecting to each discovery request on the grounds that he had not been served with process, he had made only a special appearance, and he had filed a motion to stay discovery pending the trial court’s ruling on his motion to dismiss.

The trial court ultimately denied Badichi’s motion to dismiss and motion to stay in January 2016. The plaintiffs thereafter filed yet another amended complaint, this time withdrawing their accounting claim, and moved for partial summary judgment. In their motion, the plaintiffs argued that, because Badichi failed to respond to their request for admissions, “Badichi has admitted that he owns a 50% beneficial or equitable, but not legal, interest in the [Apartments] and that he holds a 50% share in all ‘Rights and Liabilities’ of the [Apartments,]” thereby entitling the plaintiffs to summary judgment on their claim for declaratory judgment.

Although there is no indication in the record that the plaintiffs ever moved the trial court to find Badichi’s objections to their request for admissions insufficient, it appears that at a status conference held by the trial court on March 1, 2016, Badichi announced he would be serving supplemental discovery responses, including substantive responses to Albion’s request for admissions. And on March 4, 2016, Badichi served the supplemental responses, denying the requests relied upon by the plaintiffs in their motion for partial summary judgment. Thereafter, there is no evidence in the record that the plaintiffs moved the trial court to determine the sufficiency of Badi-chi’s substantive responses. However, in April 2016, the trial court granted the plaintiffs’ motion in a three-sentence order, noting only that it was granting the motion for the reasons stated in the plaintiffs’ brief. This appeal followed.

1. Requests for admission are governed by OCGA § 9-11-36, which provides in pertinent part:

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of subsection (b) of Code Section 9-11-26 which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.

OCGA § 9-ll-36(a) (1). The statute further provides that each matter requested “is admitted unless, within 30 days after service of the request..., the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter[.]” OCGA § 9-11-36 (a) (2). When a requesting party is unsatisfied with a response, he may file a motion to determine the sufficiency of the answers or objections. OCGA § 9-11-36 (a) (3). Then, if the court determines that an objection is not justified, “it shall order that an answer be served.” Id. And “[i]f the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served.” Id.

Here, although it does not appear that the plaintiffs expressly moved the trial court to determine the sufficiency of Badichi’s initial objections and there is no order compelling Badichi to respond, there is some indication that the discovery dispute was addressed at the status conference, and Badichi did ultimately supplement his initial objections with substantive responses. However, following the service of these supplemental responses, the plaintiffs did not move the trial court to determine that Badichi’s objections were somehow insufficient. Thus, there is no order finding either that Badichi’s objections did not comply with the requirements of OCGA § 9-11-36 and the requests should therefore either be deemed admitted or that Badichi should further supplement his responses.

Instead, it appears that the plaintiffs argued below and on appeal that Badichi’s initial objections were improper and therefore amount to the failure to respond at all, such that the requests should be deemed admitted as a matter of law pursuant to OCGA § 9-11-36 (a) (2). But this argument ignores the statutory framework governing requests for admission, which clearly permits the responding party to either provide “a written answer or objection.” (Emphasis supplied.) OCGA § 9-11-36 (a) (2). It is well established that “[ujnder OCGA § 9-11-36, the ultimate sanction (deeming a matter admitted) is available when a party completely fails to respond or after the requesting party has moved to determine the sufficiency of the answer and the trial court finds the answer fails to comply with statutory requirements.” (Citations omitted.) Tavakolian v. Agio Corp., 304 Ga. App. 660, 666 (5) (697 SE2d 233) (2010). See also G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 331 (2) (486 SE2d 810) (1997) (where responding party did not respond, assert objections, request deferment, or seek a protective order, it “did not avail itself of any of the variety of responses available under OCGA § 9-11-36 and chose not to seek the liberal remedies afforded to parties under the statute to avoid the consequences of a failure to respond, we hold that the subject matter of [the] requests for admission stood admitted”).

Here, Badichi timely objected to the requests and then supplemented his responses, but nothing in the record shows that the trial court explicitly overruled the objections or found the supplemental responses to be inadequate. Moreover, even if we were to assume that the trial court impliedly overruled Badichi’s objections after it denied his motion to dismiss, it does not follow that Badichi admitted the requests by then failing to submit substantive responses within 30 days. See Contract Mgmt. Consultants, Inc. v. Huddle House, Inc., 134 Ga. App. 566, 569 (1) (215 SE2d 326) (1975). “Where a court determines that an objection to a request is unjustified, it must then order the responding party to answer the request[.]” Id. Cf. Monolith Companies, LLC v. Hunter Douglas Hospitality, Inc., 333 Ga. App. 898, 900-01 (777 SE2d 726) (2015) (responding party’s failure to object or respond to requests for admission results in conclusive admission of the matters requested); Neal v. State Farm Fire & Cas. Co., 300 Ga. App. 68, 69 (684 SE2d 132) (2009) (where responding party’s response was served six days after the due date, allegations in the requests for admissions deemed admitted as a matter of law). Plaintiffs point to nothing in the record showing that the trial court ordered that Badichi file supplemental responses.

In addition, where the responding party has made some timely response, such as Badichi did here, “a motion to determine in a hearing the sufficiency of answers is necessary before responses to request for admissions may be deemed insufficient and deemed admitted.” (Citation and punctuation omitted.) Tavakolian, 304 Ga. App. at 666 (5). See also Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 652 (1) (334 SE2d 188) (1985) (“we conclude that an insufficient answer may be deemed an admission by the court only after the requesting party has questioned by motion the sufficiency of the answers and a hearing on the motion has been held”). Here, while the record is unclear on this issue, it appears that the trial court, in adopting the plaintiffs’ reasoning in its order, either improperly found that Badichi failed to timely respond at all or, without a hearing, improperly found that his supplemental responses were insufficient. Under either scenario, we must vacate the trial court’s judgment granting summary judgment to plaintiffs and remand for further proceedings consistent with this opinion. See McClarty v. Trigild, Inc., 333 Ga. App. 112, 115-16 (2) (775 SE2d 597) (2015).

2. Badichi also asserts that the trial court erred in concluding that no issues of material fact remained when it granted summary judgment to the plaintiffs. Summary judgment is appropriate when the moving party can “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). “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.” (Citation omitted.) Examination Mgmt. Svcs. v. Steed, 340 Ga. App. 51, 51-52 (794 SE2d 678) (2016). “We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” (Citation omitted.) Matson v. Bayview Loan Servicing, LLC, 339 Ga. App. 890, 890 (795 SE2d 195) (2016).

Here, the plaintiffs seek a declaratory judgment that Albion holds a 100 percent legal interest in the Apartments; that Badichi owns a 50 percent beneficial or equitable, but not legal, interest in the Apartments; and a final determination as to the amount owed by the parties to each other. However, absent the improper finding regarding Badichi’s responses to the request for admissions, factual issues remain on Badichi’s defenses of estoppel and unclean hands and his allegations that his legal interest in the Apartments was fraudulently conveyed to Albion. Thus, summary judgment is improper at this stage. See Tavakolian, 304 Ga.App. at 666 (5) (where responding party did not “completely” fail to respond and requesting party did not move to determine sufficiency of the answers, requesting party did not demonstrate they were entitled to judgment as a matter of law).

Accordingly, we vacate the trial court’s grant of summary judgment based on its conclusion that Badichi completely failed to respond to the requests and remand for further proceedings consistent with this opinion. See Robinson v. Global Resources, Inc., 300 Ga.App. 139, 143 (684 SE2d 104) (2009).

Judgment vacated and case remanded.

Branch and Bethel, JJ., concur.

Decided May 12, 2017.

Costyn Law, Joseph M. Costyn, for appellant.

Cohen Pollock Merlin & Small, Gus H. Small, Jr., Gregory K. Morgan, Elizabeth B. Hodges, for appellees.

       The plaintiffs explained they had recently learned that service had been perfected on Badichi in Israel and therefore no longer needed to add Nesher as a party to the action.

       See OCGA § 9-11-12 (j) (1) (“If a party files a motion to dismiss before or at the time of filing an answer ... discovery shall be stayed for 90 days after the filing of such motion or until the ruling of the court .... whichever is sooner. The court shall decide the motion to dismiss within ... 90 days.”).

       Albion seeks declaratory judgment that (1) Albion holds a 100 percent legal interest and a 50 percent equitable interest in the Apartments; (2) Badichi holds a 50 percent beneficial or equitable ownership interest in the Apartments; (3) Badichi holds no legal interest in the Apartments; and (4) Badichi holds a 50 percent share in the rights and liabilities of the Apartments.

       There is no transcript of these proceedings in the record.

       Badichi had previously denied identical allegations in his answer to Albion’s amended complaint. According to Badichi, this matter originates as a dispute between him and his business partner, Shlomo Elia, who facilitated his original investment in the Apartments. Badichi asserts that the transfer of his interest in the Apartments to Albion was fraudulent and that he is currently litigating claims against Elia in Israel.

       This case was originally transferred to the Supreme Court for jurisdictional reasons; however, the Supreme Court returned the case to this Court.

       Although the plaintiffs’ motion for partial summary judgment was dependent upon their assertion that Badichi had admitted the allegations contained in their request for admissions, in their reply brief they later asserted that the affidavits submitted by the parties also established that they were entitled to summary judgment. Because it is unclear from the trial court’s order whether it relied upon the arguments presented in the plaintiffs’ reply brief, we will also address the grant of summary judgment without the alleged admissions.


author: MILLER, Presiding Judge.

text:
    A17A0213.
    YP, LLC et al. v. RISTICH.
    (801 SE2d 80)
   MILLER, Presiding Judge.

Plaintiffs YP, LLC, and YP Advertising & Publishing, LLC (collectively “YP”), filed suit against Peter Ristich d/b/a Top Seal Coating (“Ristich”), in this contract dispute arising from advertisements Ristich placed in the Yellow Pages directories. Ristich did not answer the complaint or respond to discovery requests. Nevertheless, the trial court sua sponte dismissed the complaint without prejudice for lack of personal jurisdiction under the Georgia Long Arm Statute, OCGA § 9-10-91, and for insufficient service of process. YP now appeals. Ristich has not appeared in this appeal. After a thorough review of the record, we conclude that the trial court erred in dismissing the complaint for lack of personal jurisdiction under the Long Arm Statute. Accordingly, we reverse the trial court’s order of dismissal and remand for further proceedings consistent with this opinion.

“We review a trial court’s sua sponte order of dismissal de novo.” Haygood v. Head, 305 Ga. App. 375, 377 (1) (699 SE2d 588) (2010).

1. YP first argues that the trial court erred in dismissing the complaint sua sponte for lack of personal jurisdiction. We agree.

“Jurisdiction of the person is the power of a court to render a personal judgment, or to subject the parties in a particular case to the decisions and rulings made by it in such a case[.]” (Citations and punctuation omitted.) Williams v. Fuller, 244 Ga. 846, 849 (3) (262 SE2d 135) (1979). “[A] court has a duty to inquire into its jurisdiction, upon its own motion where there is doubt, and is authorized to dismiss a case against a defendant where personal jurisdiction is lacking.” B & D Fabricators v. D. H. Blair Investment Banking Corp., 220 Ga. App. 373, 375-376 (2) (469 SE2d 683) (1996).

It is well settled, however, that parties may waive challenges to personal jurisdiction by contract. OCGA § 9-11-12 (h) (1); C & S Capital Corp. v. Sweetwater Homes, 191 Ga.App. 571 (382 SE2d 399) (1989) (trial court erred in sua sponte dismissing breach-of-contract complaint for lack of personal jurisdiction where parties agreed in the very contract at issue to submit to jurisdiction of the court). Such provisions in contracts are valid and enforceable unless “shown by the resisting party to be unreasonable under the circumstances.” (Emphasis supplied.) Lease Finance Group v. Delphi, Inc., 266 Ga. App. 173, 174 (596 SE2d 691) (2004); see also Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795, 797-798 (1) (b) (692 SE2d 61) (2010) (enforcing forum selection clause in contract where opposing party had not shown enforcement would be unreasonable).

The trial court here concluded that YP had not established the court’s personal jurisdiction over Ristich under the Georgia Long Arm Statute. Personal jurisdiction in this case, however, is not based on the Long Arm Statute but rather is premised on Ristich’s waiver of personal jurisdiction in his contract with YP In particular, in the forum selection clause in the contract, Ristich specifically consented to personal jurisdiction in the Superior Court of DeKalb County or the United States District Court for the Northern District of Georgia for any disputes arising out of his contract with YP See C & S Capital Corp., supra, 191 Ga. App. at 571-572; cf. Apparel Resources Intl. v. Amersig Southeast, 215 Ga. App. 483, 484-485 (1) (451 SE2d 113) (1994) (nonresident customer waived its challenge to personal jurisdiction through unambiguous forum selection clause in contract, but waiver did not extend to nonresident guarantor whose contract did not contain a forum selection clause and who otherwise lacked minimum contacts with state to confer jurisdiction).

The trial court did not consider whether the forum selection clause in Ristich’s contract was reasonable — presumably because Ristich has not yet appeared in this action — and it is Ristich’s burden to show that the forum selection clause is unreasonable. Absent such a showing, we presume the clause is valid. See Equity Trust Co. v. Jones, 339 Ga. App. 11 (792 SE2d 458) (2016) (“[Fjorum selection clauses are prima facie valid and should be enforced unless the opposing party shows that enforcement would be unreasonable under the circumstances.”) (citation and punctuation omitted; emphasis supplied). Accordingly, because Ristich did not raise an affirmative defense to jurisdiction, the trial court lacked authority to assert it on his behalf by sua sponte dismissing the complaint for lack of personal jurisdiction under the Long Arm Statute. See Focus Healthcare Med. Center v. O’Neal, 253 Ga. App. 298, 299 (a) (558 SE2d 818) (2002) (“The trial court lacks authority to assert on behalf of a party affirmative defenses that can be waived.”).

Decided May 15, 2017.

Schwartz & Stafford, Leslie Ann Dunn, for appellants.

2. YP next argues that the trial court erred by dismissing the complaint for insufficient service of process because YP served Ris-tich in accordance with Georgia law. We agree.

OCGA § 9-11-4 (e) (7) provides for personal service on a defendant. The record contains a return of service, which shows that Ristich was personally served with a copy of the complaint and requests to admit. This return of service is a prima facie showing of personal service. Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995).

The trial court based its decision on the requirements for service under the LongArm Statute. As discussed above, however, the Long Arm Statute was not the basis for the trial court’s personal jurisdiction over Ristich in this case. Moreover, insufficient service of process is a defense to jurisdiction that also can be waived. See OCGA § 9-11-12 (h) (1); Merry v. Robinson, 313 Ga. App. 321, 322 (1) (721 SE2d 567) (2011) (defendant waived challenge to service by deputy sheriff by failing to timely raise the issue); Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 642-643 (3) (507 SE2d 823) (1998) (same).

In this case, Ristich did not appear before the trial court and has not challenged service of process. YP submitted unrebutted evidence that service was effected on Ristich personally in Ohio. Thus, YP has made a prima facie showing of service, and the trial court erred by sua sponte dismissing the complaint for insufficient service. In reaching this conclusion, we express no opinion as to the merits of any later challenge that Ristich may raise to the sufficiency of service.

For the foregoing reasons, we reverse the trial court’s order dismissing YP’s complaint and remand the case for further proceedings.

Judgment reversed and case remanded.

Doyle, C. J., and Reese, J., concur.

       Ristich’s last name also appears as “Rastich” in the record.

       OCGA § 9-11 -4 (e) sets out the methods for personal service . After listing specific methods for service that are not applicable here, it states, “[i]n all other cases to the defendant personally . . . .” OCGA § 9-11-4 (e) (7).

       Even if service were effected under the LongArm Statute, OCGA § 9-10-94, out of state service is proper under the same provisions for service inside the state, which include personal service. See OCGA §§ 9-10-94; 9-11-4 (e).