author: Andrews, Judge. PHIPPS, Presiding Judge,

text:
    A11A1405.
    SMITH v. THE STATE.
    (721 SE2d 165)
   Andrews, Judge.

Jamie Barron Smith appeals from the judgment of conviction entered on jury verdicts finding him guilty of attempted rape; aggravated assault with intent to rape; aggravated assault with a knife; kidnapping; and misdemeanor battery. Smith contends that there was insufficient evidence of asportation to support the kidnapping conviction; that the trial court erred by failing to merge the aggravated assault convictions into one another and into the attempted rape conviction; and that the trial court erroneously instructed the jury with respect to the battery offense. For the reasons that follow: (1) we find the evidence of asportation was sufficient and affirm the kidnapping conviction; (2) we vacate the conviction for aggravated assault with intent to rape because it merged into the attempted rape conviction; and (3) we find no other error and affirm the remaining convictions.

1. Contrary to Smith’s contention, the evidence of asportation was sufficient to support the jury’s verdict finding him guilty of kidnapping.

The evidence showed that the female victim, who had her two-year-old child with her, was working alone at the front office of a storage unit rental business. Smith came into the business and rented a five-foot by ten-foot enclosed storage unit with a roll-up door. After the victim showed Smith where the unit was located, Smith parked his car near the unit and started unloading items from his car into the unit through the unit’s open door. The victim briefly stood outside the unit and watched as Smith put trash bags of items and a blue box into the unit, at which point she started to walk away from the unit and back to the office. In explanation of what happened next, the victim gave the following testimony on direct examination by the prosecutor:

Q: When did this situation become something that was not normal?
A: He put the blue box in [the unit], and as I was walking away, he got me from the back and jumped on me. . . . And I remember a couple of punches in the face and my neck from behind. And by that time, we were in the unit. . . .
Q: How far did you get from the unit before he grabbed you?
A: Apparently not very far. I just remember that all of a sudden, just, “Oh, he’s hitting me.” And we were already in the unit. . . .
Q: Were you standing inside the unit when you turned to leave?
A: No.
Q: You were outside the unit on the ground?
A: Yes. He jumped on me from behind and I think we fell in. Because we fell forward onto the trash bags. . . .
Q: Can you give us a better idea of where you were standing when he jumped on you?
A: I was just... on the outside of the door. . . .
Q: How fast would you say that this — the grabbing, hitting, falling happened?
A: I was on the floor before I realized what had happened. . . .
Q: What position was your body and his body on the floor at this time?
A: We went from facing the back [of the unit] and the trash bags to turning to where we were cross-ways in the unit. And then we turned to where my head was at the door. . . .
Q: What is the next part of that struggle?
A: When he jumped on me, he was choking me. And he told me if I screamed, he would kill me and [my child] both. . . . He said he had a knife, and he held it to my face. And then I had my eyes closed. And when I opened my eyes, I realized my head was at the door. . . . And the door was closed. ... I remember trying to open the door. And I got the door open a little. . . . And I remember grabbing onto the outside of the door, hoping that he wouldn’t pull me back in. And that way he couldn’t close the door because my hand would be in the way. And I was able to get my left hand and push the door up some more. . . .
Q: And at this point, you’re laying on your stomach with him laying on top of you?
A: Right. . . .
Q: Did he at some point during this period release your neck?
A: Yes. He was at my waist.
Q: What happened, more specifically, when he released your neck?
A: He was trying to — he was piddling with my belt. . . .
Q: What other statements were made by the defendant regarding what he intended to do?
A: When he first pulled me in, he told me to take my pants off. . . .
Q: About how far did you get the door pushed up?
A: I remember just being able to push it up just a little. And the sunshine came in, and I saw the knife. And then I got my left hand free and pushed it up a little more, maybe two, two and a half feet or so. . . .
Q: Were you able to prevent being pulled back into the unit?
A: Yes. When I got the door open, I was able to crawl out from there.

At that point, the victim ran back to the office and called for help and Smith fled the scene. As a result of the struggle, the victim suffered various bruises and scratches. Based on the above evidence, the jury found Smith guilty of kidnapping, attempted rape, aggravated assault with intent to rape, aggravated assault with a knife, and battery.

Smith contends that his conviction for kidnapping should be reversed because there was insufficient evidence to prove an essential element of the offense — asportation of the victim. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such other person against his will.” OCGA § 16-5-40 (a). An essential element of the offense of kidnapping is the abduction or stealing away of the victim, also referred to as asportation or movement of the victim. Garza v. State, 284 Ga. 696, 697 (670 SE2d 73) (2008). In Garza, the Supreme Court adopted a four-factor test to differentiate movement that satisfies the asportation element from movement that is “merely a ‘criminologically insignificant circumstance’ attendant to some other crime.” (Citation omitted.) Id. at 702; Brown v. State, 288 Ga. 902, 905 (708 SE2d 294) (2011). The factors are:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Garza, 284 Ga. at 702. Smith argues that the movement of the victim was merely an incidental or insignificant circumstance attendant to the other offenses.

The first Garza factor supports Smith’s contention because the evidence shows that the movement of the victim from outside the storage unit to inside the unit was of brief duration. As to the second factor, although there was evidence that Smith punched the victim and committed battery during the movement, there was also evidence from which the jury could have concluded that the battery occurred inside the unit after the movement. Similarly, the evidence showed that Smith assaulted the victim and attempted to rape her inside the storage unit after the movement. As to the third factor, the movement of the victim was not an inherent part of the other offenses; it was not necessary to move the victim to attempt to rape her, assault her with a knife, or commit a battery on her. See Brown, 288 Ga. at 905; Scales v. State, 310 Ga. App. 48, 56 (712 SE2d 555) (2011). Moreover, there was evidence from which the jury could have found that all three of these offenses occurred inside the storage unit after the movement. Considering the fourth factor, the movement itself clearly presented a significant danger to the victim independent of the danger posed by any of the other offenses because Smith’s obvious purpose was to conceal the victim behind the closed door of the storage unit to isolate her from protection or rescue. As noted in Garza, “the nature of the evil the kidnapping statute was originally intended to address [is] movement serving to substantially isolate the victim from protection or rescue. . . .” Garza, 284 Ga. at 702. Satisfaction of all four Garza factors is not required to establish that asportation has occurred under the kidnapping statute. Hammond v. State, 289 Ga. 142, 144 (710 SE2d 124) (2011). The evidence showed movement of the victim that was not merely an incidental or “criminologically insignificant circumstance” attendant to the other crimes; rather the evidence was sufficient for the jury to find that the asportation element of kidnapping was proven under the Garza standard beyond a reasonable doubt. Tate v. State, 287 Ga. 364, 366 (695 SE2d 591) (2010) (finding asportation where only two of the Garza factors were present).

The evidence was sufficient for the jury to find beyond a reasonable doubt that all the elements of kidnapping, attempted rape, aggravated assault with intent to rape, aggravated assault with a knife, and battery were proved beyond a reasonable doubt. OCGA §§ 16-5-40; 16-4-1; 16-6-1; 16-5-21 (a) (1); 16-5-21 (a) (2); 16-5-23.1 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We agree with Smith that, because his conviction for aggravated assault with intent to rape merged into his conviction for attempted rape, the conviction for aggravated assault with intent to rape must be vacated.

Smith’s conviction for attempted rape was supported by evidence that, with the intent to commit rape by having forcible and nonconsensual carnal knowledge of the victim, he took a substantial step toward committing the rape, but failed to consummate it. Hollis v. State, 225 Ga. App. 370 (484 SE2d 54) (1997); see OCGA §§ 16-4-1 (criminal attempt); 16-6-1 (rape). As alleged in the indictment and shown by the evidence produced at trial, Smith took a substantial step toward committing the rape by assaulting the victim, forcing her into the storage unit, and threatening her if she did not remove her clothes. Smith’s conviction for aggravated assault with intent to rape was supported by the same evidence that he assaulted the victim with the intent to rape. Butler v. State, 194 Ga. App. 895, 897 (392 SE2d 324) (1990); see OCGA § 16-5-21 (a) (1).

The double jeopardy clause of the Fifth Amendment to the United States Constitution prohibits multiple convictions or punishments arising from the same conduct. Drinkard v. Walker, 281 Ga. 211, 212 (636 SE2d 530) (2006). As set forth in OCGA § 16-1-7 (a), “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if. . . [o]ne crime is included in the other. . . .” Under OCGA § 16-1-6 (1), one crime is “included in” another crime where “ ‘(i)t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of (the other crime).’ ” Drinkard, 281 Ga. at 213. To determine under OCGA § 16-1-6 (1) whether convictions under two criminal provisions merge because one is included in the other, the “required evidence” test is used to determine “whether each provision requires proof of a fact which the other does not.” (Citation and punctuation omitted.) Id. at 215.

[T]he important question is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.

Id. at 216. Because Smith’s conviction for aggravated assault with intent to rape was established by proof of the same or less than all the facts required to establish his conviction for attempted rape, the former merged into the latter under the required evidence test. By contrast, even if the same conduct established Smith’s convictions for aggravated assault with a knife and attempted rape, the convictions did not merge because each offense required proof of an additional fact which the other did not. Id. at 215. Aggravated assault, but not attempted rape, required proof that Smith assaulted the victim with a knife, an object when used offensively against a person is likely to result in serious bodily injury. OCGA § 16-5-21 (a) (2). Attempted rape, but not aggravated assault with a knife, required proof of intent to commit rape. OCGA §§ 16-4-1; 16-6-1. Moreover, these two offenses are not so closely related that multiple convictions are prohibited under other provisions of OCGA §§ 16-1-6 and 16-1-7. Waits v. State, 282 Ga. 1, 5 (644 SE2d 127) (2007); Drinkard, 281 Ga. at 216, n. 32.

3. Smith contends that the trial court’s jury instruction erroneously authorized the jury to find him guilty of committing battery by intentionally causing substantial physical harm while the indictment specifically alleged that he committed battery by the alternate method of causing visible bodily harm. OCGA § 16-5-23.1 (a).

[A] due process violation may occur when an indictment charges the defendant with committing a crime in a specific manner, but the trial court instructs the jury that the crime may be committed in a different manner. If there was evidence at trial to support a conviction on the manner of committing the crime not stated in the indictment, and the trial court did not instruct the jury to limit its consideration to the manner alleged in the indictment, then the defendant’s conviction must be reversed.

Walls v. State, 283 Ga. App. 560, 562 (642 SE2d 195) (2007). Here, the trial court read the indictment to the jurors and instructed that the state had the burden of proving every material allegation of each count and every essential element of the crimes charged beyond a reasonable doubt. Because this constituted a limiting instruction which informed the jury that the state had the burden to prove that Smith committed battery by intentionally causing visible bodily harm, as alleged in the indictment, it cured any alleged due process violation with the battery charge. Id. at 563; Reed v. State, 285 Ga. 64, 65 (673 SE2d 246) (2009).

Judgment affirmed in part and vacated in part.

Mikell, C. J., Smith, P. J., Dillard and McFadden, JJ., concur. Barnes, P. J., and Phipps, P J., concur in part and dissent in part.

PHIPPS, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 2 and 3. Because the evidence of asportation was insufficient to support Smith’s kidnapping conviction, I respectfully dissent from the judgment in Division 1.

The evidence shows that on March 11, 2005 an office manager was working alone at a warehouse facility. The facility was located near a road which received light traffic. The manager testified that Smith entered the office at about 1:30 and asked her for the prices of the storage units. The manager wrote the prices on a piece of paper for Smith, and Smith left.

About an hour later, a man called the facility on the phone and asked whether there was anybody at the office who could help him unload items into a unit. Smith’s name and phone number displayed on the caller I.D. device, and the manager recognized his voice from when he had come into the office. The manager told Smith that nobody was there to help him unload items and that she was there alone. At 4:30 Smith entered the office again, this time stating that he was going to rent a storage unit. The manager asked Smith for his license, filled out a contract, and received a check from Smith. Smith asked the manager to show him to the unit, which was located near the entrance gate. No other customers entered the office either during or after the transaction, which incidentally, was the only business that day.

Smith left the rental office and walked to his vehicle. He then drove through a gate and met the manager who had walked to the unit. Smith began to unload items into the unit. As the manager started to walk away, Smith grabbed her from behind and “jumped on” her. The manager “remember [ed] a couple of punches in the face and my neck from behind. And by that time, we were in the unit.” When she turned to leave before Smith grabbed her, she was standing “just on the outside” of the unit, “just... on the outside of the door.” The manager testified that “[h]e jumped on me from behind and I think we fell in. Because we fell forward onto the trash bags.” When asked how quickly the “grabbing, hitting, [and] falling happened,” the manager testified that she was “on the floor before [she] realized what had happened.”

The manager was struck on her head, neck and shoulder. They both fell on the floor, and they “went from facing the back ... to turning to where we were cross-ways in the unit. And then we turned to where my head was at the door.” Smith told the manager that he had a knife, and he held it to her cheek. Smith told her to remove her pants and threatened to kill her and her child (who was in an office asleep) if she screamed. Smith was on top of her.

At this point, the manager’s head was next to the door, which was closed. She opened the door, saw the knife next to her head, and pushed the knife outside of the unit. Smith had released his hold on the manager’s neck and began “piddling” with the belt on her waist. The manager crawled out of the unit, and as she was running she looked back and saw Smith get into his car and drive away. The manager suffered bruising on her face, neck, and shoulders, and scratches on her back.

Smith testified on his own behalf, admitting that he went to the warehouse facility more than once that day, rented a unit, and unloaded items into the unit, but denying that he attacked or attempted to rape the manager.

Smith was indicted for kidnapping in that he “did abduct, a person, without lawful authority and hold this victim against her will. ...” “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” The elements of kidnapping are: (1) an illegal holding, (2) an overmastering of the victim’s will; and (3) an asportation of the victim.

In Garza v. State, the Supreme Court of Georgia adopted a four-factor test for determining whether a victim’s movement constitutes the asportation necessary for kidnapping or is merely incidental to other criminal activity. The four factors are: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

The Garza factors are intended to assist Georgia prosecutors and courts in

determining whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection or rescue — or merely a “criminologically insignificant circumstance” attendant to some other crime.

In deriving the factors, the Supreme Court of Georgia, citing Leppla v. State and Woodson v. State, recognized that the “definition of asportation ha[d] evolved to the point where it seem[ed] that the only type of movement considered insufficient as evidence of asportation [was] movement immediately resulting from a physical struggle.” Indeed, in Leppla we held that a struggle which began at the driver’s side door of a vehicle and ended at the rear of the vehicle was insufficient evidence of asportation. In Woodson, the Supreme Court determined that asportation was shown because the victim “went from one room to another in response to [the defendant’s] threatening command.” The Court noted however that the act of merely “shoving the victim, without moving her to a different location, was not the evidence that satisfied the requirement of asportation, nor was pulling her to the floor at a single location.”

I believe that the description of the attack in this case demonstrates that Smith and the victim struggled and fell to the ground. The fall across the threshold into the storage unit, from just outside the warehouse unit to inside the unit, was of minimal duration. The victim testified that as she had turned to leave, she was standing just on the outside of the door and that Smith jumped on her from behind and they “fell in” the unit, onto trash bags. The movement occurred during the commission of the attempted rape, as the evidence showed that Smith was seeking to gain control of the victim. Smith tried to further subdue the victim by striking her and threatening to kill her and her child if she screamed. In my opinion, this attack — grabbing, striking, and threatening her — was incidental to Smith’s attempt to rape her. For the same reasons, I believe the movement was also an inherent part of the other crimes charged. Given that the victim had left the rental office, which was located on an isolated road, and was at the storage unit alone with Smith, the movement itself did not significantly increase the danger to the victim independent of the danger posed by the separate offenses of attempted rape, aggravated assault, or battery.

Decided December 1, 2011.

Jimmonique R. S. Rodgers, for appellant.

Robert E. Brooks, Jr., District Attorney, Carmen T. Bolden, Assistant District Attorney, for appellee.

Here, I believe an assessment of all the Garza factors shows the movement was more accurately characterized as a criminologically insignificant circumstance attendant to the other crimes charged — attempted rape, aggravated assault, and battery. The movement was not “in the nature of the evil the kidnapping statute was originally intended to address.”1 would therefore conclude that the evidence was insufficient for the jury to find that the asportation element, as interpreted in Garza, was proven in this case to support Smith’s conviction for kidnapping. Therefore, I would reverse Smith’s conviction for kidnapping.

I am authorized to state that Presiding Judge Barnes joins in this dissent.

       The kidnapping statute was significantly revised in 2009, but the revised version, which applies only to crimes committed on or after July 1, 2009, does not apply in this case to the crimes occurring in 2005. Goolsby v. State, 311 Ga. App. 650 (718 SE2d 9) (2011).

       The 2008 decision in Garza applies retroactively in this case to crimes committed and tried in 2005. Hammond v. State, 289 Ga. 142, 143-144 (710 SE2d 124) (2011).

       OCGA § 16-5-40 (a) (2005). See Widner v. State, 280 Ga. 675, 677 (2) (631 SE2d 675) (2006) (generally, a crime is to be construed according to the provisions of the law existing at the time of its commission); see Garza v. State, 284 Ga. 696, 697 (1) (670 SE2d 73) (2008).

        Leppla v. State, 277 Ga. App. 804, 806 (1) (627 SE2d 794) (2006).

       Supra at 702 (1). See Dixon v. State, 300 Ga. App. 183, 184 (1), n. 3 (684 SE2d 679) (2009) (“Subsequent to Garza, the legislature amended the kidnapping statute; because the amendment applies to crimes committed on or after the revision’s effective date of July 1,2009, it is inapplicable here, and Garza’s standard applies.”).

        Garza, supra.

       Id.

       Supra.

       273 Ga. 557 (544 SE2d 431) (2001).

        Garza, supra at 698 (1).

        Leppla, supra at 809-810 (1).

       Supra at 558.

       Id. (footnote omitted).

       See Leppla, supra at 810 (1).

       See Ham v. State, 303 Ga. App. 232, 237 (1) (a) (692 SE2d 828) (2010) (victim’s movement from living room to bedroom was of minimal duration); Crawford v. State, 297 Ga. App. 187, 188, 190 (1) (b) (676 SE2d 843) (2009) (victim’s movement from restaurant’s oven room to cash register in another room was brief); Brashier v. State, 299 Ga. App. 107, 110 (2) (681 SE2d 750) (2009) (movement of victim from the middle of the basement to the front of the basement was of minimal duration).

       See generally Thomas v. State, 310 Ga. App. 404, 407-408 (2) (714 SE2d 37) (2011).

       See generally id.

       See Moore v. State, 301 Ga. App. 220, 229 (7) (687 SE2d 259) (2Q09) (conviction for kidnapping reversed due to lack of evidence of asporation, where the defendant forced the victim’s car off the road and pulled the victim out of her car, then dragged her into a ditch on the side of a road to commit a sexual offense).

        Garza, supra at 702 (1).

        Leverette v. State, 303 Ga. App. 849 (696 SE2d 62) (2010).

        Ham, supra; Crawford, supra; Leppla, supra; Woodson, supra.


source: Caselaw Access Project

author: BARNES, Presiding Judge. ADAMS, Judge,

license: Public Domain

text:
    A11A1454.
    GREAT WEST CASUALTY COMPANY et al. v. BLOOMFIELD et al.
    (721 SE2d 173)
   BARNES, Presiding Judge.

Following a defense verdict, the trial court denied a defendant’s motion for more than $69,000 in attorney fees under Georgia’s “offer of settlement” statute, OCGA § 9-11-68, in this wrongful death action against two tractor-trailer truck drivers, their employers, and their insurers. The trial court found that the defendant was not entitled to attorney fees because its initial offer to settle for $25,000 was not made in good faith. The defendant appeals, arguing that the trial court erred in denying its motion made after the jury returned a verdict against only the other truck driver. Because the trial court did not abuse its discretion in finding that the settlement offer was not made in good faith and declining to award attorney fees to the defendant, we affirm.

This is the second appearance of this case before this Court. As recited in Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26 (693 SE2d 99) (2010), the underlying procedural posture of the case on the first appeal was as follows:

On June 23, 2006, Nola Rowe Bloomfield was fatally injured in a vehicular accident. Her husband, Gerald Bloomfield, and her estate, through its administrator Roger Kirschen-baum (collectively, “Bloomfield”), brought an action alleging that the accident was caused by the actions of two separate truck drivers and naming as defendants the drivers, the companies that owned the drivers’ trucks, and those companies’ liability insurers. On June 12, 2007, one of the drivers, his trucking company, and that company’s insurer, Great West Casualty Company (collectively, “Great West”), made an offer of settlement pursuant to OCGA § 9-11-68. Bloomfield rejected the offer in writing on July 16, 2007. A jury subsequently returned a verdict of no liability as to Great West, and the court entered a judgment on that verdict. Great West then requested attorney fees and expenses of litigation pursuant to OCGA § 9-11-68.

The trial court initially denied the attorney fee request without explanation, but this Court vacated the order and remanded the case for the trial court to set forth the basis for its ruling, as required by OCGA § 9-11-68 (d) (2). Great West Cas. Co., 303 Ga. App. at 30 (3).

On remand, the trial court made specific findings of fact to support its determination that Great West’s initial $25,000 settlement offer was not made in good faith, and thus that Great West was not entitled to attorney fees under OCGA § 9-11-68. The trial court found that the initial settlement offer of $25,000 “was not a reasonable offer or a realistic assessment of liability in a wrongful death case,” that Great West’s driver paid the traffic ticket fine, and that Great West never deposed or even interviewed the first police officer on the scene who testified at trial for the plaintiff. It also found that, absent evidence that Great West obtained “new discovery or factual evidence,” its offer during trial to settle for the policy limits of $1 million “showed the bad faith intent of the defendant’s initial offer.”

The offer of settlement statute provides that either party may serve upon the other party a written demand or offer to settle a tort claim for a specified amount of money. OCGA § 9-11-68 (a). “Moreover, if either party’s settlement demand or offer is rejected, that party may be entitled to recover attorney[ ] fees” if the final judgment varies sufficiently from the offer or demand. Smith v. Baptiste, 287 Ga. 23, 24 (1) (694 SE2d 83) (2010).

If a party is entitled to recover attorney fees and expenses of litigation because the judgment meets the requirements of OCGA § 9-11-68 (b), “the court may determine that [a settlement] offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney! ] fees and costs.” OCGA § 9-11-68 (d). We review for abuse of discretion the trial court’s decision on whether a settlement offer was made in good or bad faith. Cohen v. Alfred and Adele Davis Academy, 310 Ga. App. 761, 763 (1) (714 SE2d 350) (2011) (affirming trial court’s finding that settlement offer was made in good faith and granting motion for fees).

Great West argues that the trial court erred in denying its motion for fees and costs because its $25,000 settlement offer was made in good faith (1) as a matter of law, as determined by the jury verdict in its favor, and (2) because it had a reasonable basis for making the offer.

1. First, the defense verdict alone is not sufficient under the statute to determine that Great West’s initial offer was made in good faith. If it were, the statute would simply stop after providing in OCGA § 9-11-68 (d) (1) that the trial court “shall” award fees if the judgment meets the numerical requirements of OCGA § 9-11-68 (b). But instead, if the judgment meets that requirement, the trial court then has the discretion under OCGA § 9-11-68 (d) (2) to determine whether or not the offer was made in good faith and whether to disallow the fee award. Thus, while the defense verdict is relevant to the issue of good faith, it is not conclusive evidence that Great West acted in good faith. Instead, that determination is left to the trial court’s discretion under OCGA § 9-11-68 (d) (2), and the defense verdict alone is insufficient to establish the good faith of the $25,000 settlement offer as a matter of law.

2. Great West also argues that it had a reasonable basis for offering to settle the wrongful death claim against it for $25,000, based on the underlying facts of the case as proven by the verdict, and that the offer was accordingly made in good faith. To explain its offer, Great West notes that this accident was in reality two collisions, and that Nora Bloomfield’s death was due entirely to the negligence of the second driver who caused the second wreck. Great West’s driver clipped another car while changing lanes, causing that first car to wreck. The car in which Nora Bloomfield was a passenger slowed while approaching the first wreck and was rear-ended by the second driver, against whom the jury ultimately assessed 100 percent liability.

When Bloomfield rejected Great West’s offer to settle and release all claims against it for $25,000, he noted that the offer could not be construed in good faith because “no one disputes the damages grossly exceed the value of [the] offer.” The jury apparently agreed that the damages grossly exceeded the value of the offer, awarding $10.42 million in damages and $44 million in punitive damages against Great West’s co-defendant. While Great West now asserts that it offered a nominal amount in settlement because it never thought its insured was responsible in any way for the fatal collision, without that first collision, there would not have been a second one. Moreover, a sufficient possibility remained that the jury might return a large verdict against both truckers to induce Great West to offer a $1 million settlement during the trial, and while Great West argues that it was simply responding to the events as they unfolded during trial, its second offer was a factor that the trial court properly considered in reviewing Great West’s motion for attorney fees and costs.

Just as the jury determines the reasonableness of an insurer’s response to a request to settle within policy limits, see Cotton States Mut. Ins. Co. v. Brightman, 276 Ga. 683, 686-687 (1) (580 SE2d 519) (2003), the trial court determines the reasonableness of an insurer’s offer to settle. It is a factual determination, based on the trial court’s assessment of the case, the parties, the lawyers, and all of the other factors that go into such a determination, which the trial court has gathered during the progress of the case.

In explaining that appellate courts defer to trial courts’ rulings on the admissibility of evidence, our Supreme Court has stated, “This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding.” Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 456-457 (2) (543 SE2d 21) (2001). Further, “[o]n appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion.” Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (5) (481 SE2d 541) (1997) (affirming trial court’s decision not to award attorney fees under OCGA § 13-6-11).

Similarly, a trial court’s consideration of an offer of settlement is made within the context of an entire proceeding. In this case, while it is possible to quarrel with each element of the trial court’s reasons for declining to award attorney fees to Great West, this Court cannot conclude that the trial court abused its discretion in deciding not to award attorney fees to Great West.

Judgment affirmed.

Miller, P. J., Phipps, P. J., Ellington and Doyle, JJ., concur. Adams and Blackwell, JJ., dissent.

ADAMS, Judge,

dissenting.

I must respectfully dissent. Although this Court generally owes great deference to a trial court’s ruling under the abuse of discretion standard, in this case I believe that the trial court abused that discretion, and I would reverse.

The first time this case was on appeal, this Court held that because the trial court had denied Great West’s request for attorney fees, “the court must set forth in its order the basis for finding that the offer was not a good faith offer.” (Footnote omitted.) Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 30 (3) (693 SE2d 99) (2010). This Court based this holding on the fact that the statute explicitly requires the trial court to give the basis for its denial of attorney fees. OCGA § 9-11-68 (d) (2). Accordingly, this Court remanded the case to the trial court, the parties fully briefed the issues and the trial court held a hearing before issuing its order listing the reasons for denying Great West’s request for attorney fees. Yet, the majority completely ignores the trial court’s findings and affirms based upon the standard of review. Deference to the trial court’s discretion does not require that this Court accept its decisions even if the findings supporting those decisions are without merit. Because I find that the reasons provided by the trial court do not support its determination, I believe that the trial court abused its discretion.

As indicated in the majority opinion, this case actually involves two collisions: Great West’s driver’s truck first collided with a car driven by nonparty Marco Roero-Zaragoza (the “First Collision”). According to police reports, the second accident occurred “moments” later when Maril Buress, driving a truck for Performance Food Group of Georgia, Inc. (“PFG”), rear-ended the car in which Nora Bloomfield was a passenger (the “Second Collision”).

Great West made its $25,000 offer on June 12, 2007, six months after Bloomfield filed the complaint and approximately one year after the collisions occurred. Although the offer was made before the parties began taking depositions, Great West’s attorney filed an affidavit stating that her firm had been involved in the case within days of the collisions and by the time she tendered the offer on behalf of Great West, she had filed an answer denying liability, sent and responded to discovery, met with a consulting accident reconstruction expert, interviewed Great West’s driver, James Young, and “otherwise investigated” the two collisions. Great West asserts that the $25,000 offer was based upon a reasonable assessment placing their potential liability in the case at 0% under the principle of proximate intervening cause. See, e.g., Little Rapids Corp. v. McCamy, 218 Ga. App. Ill, 114-115 (2) (460 SE2d 800) (1995) (“It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.”) (citations and punctuation omitted).

The trial court concluded, however, that Great West’s offer was not made in good faith based upon the following factors:

(1) [Great West’s driver], James Young, elected to pay the traffic ticket fine, which in the State of Georgia is an admission of guilt pursuant to OCGA § 40-13-58; (2) [Great West] failed to depose and[/]or interview the investigating officer who was a key witness at trial prior to the actual trial; [and] (3) . . . the [trial court] was not presented with evidence that the defendants conducted or obtained any new discovery or factual evidence between the time the initial offer was made and when the subsequent offer [in the amount of the $1 million policy limits] was made that justified the increase in the offer further indicating a showing of bad faith.

These factors do not support the trial court’s determination.

Payment of the Fine — The record indicates that Young was charged with improper lane change in connection with the First Collision and that he subsequently paid the fine for that traffic violation. But “payment of a traffic fine is not, by itself, an admission of guilt.” (Footnote omitted.) Eubanks v. Waldron, 263 Ga. App. 75 (587 SE2d 253) (2003). See also Hite v. Anderson, 284 Ga. App. 156, 157-158 (643 SE2d 550) (2007) (paying a fine after pleading not guilty to traffic violation is not a voluntary admission of guilt); Waszczak v. City of Warner Robins, 221 Ga. App. 528, 529-530 (1) (471 SE2d 572) (1996) (the fact that, after pleading not guilty to failure to yield, defendant chose to pay a fine rather than appear in court did not constitute a voluntary admission of guilt). The statute cited by the trial court, OCGA § 40-13-58, provides that “[w]here a defendant cited for a traffic violation posts a cash bond . . . and fails to appear in court... on the day set in the original citation[,] . . . such failure shall be construed as an admission of guilt and the cash bond may be forfeited.” Such an admission “constitutes a prima facie showing of negligence and is conclusive if not rebutted.” (Footnote omitted.) Eubanks v. Waldron, 263 Ga. App. at 75. But Bloomfield has not pointed to any evidence that Young forfeited a bond, and thus it is unclear whether OCGA § 40-13-58 even applies.

Regardless of whether the statute applies or whether Young otherwise pled guilty to the traffic violation, however, he clearly admitted at trial that he made an improper lane change and that his actions resulted in the First Collision. But Young’s admissions in connection with the First Collision, whether made by operation of law, by plea or in court, were not determinative of Great West’s liability in this case. In fact, Great West consistently denied that Young’s actions proximately caused the Second Collision that resulted in Nora Bloomfield’s death. Accordingly, Young’s payment of his fine was in no way inconsistent with Great West’s determination that Bloomfield’s claims had a $0 value or with a defense of intervening proximate cause. Thus, the trial court erred in concluding that Young’s payment of the fine in connection with the First Collision supported a finding that Great West lacked good faith in making the $25,000 offer in connection with any alleged liability in the Second Collision.

Witness Interview — The trial court also noted that prior to trial, Great West did not depose or otherwise interview Gwinnett Police Officer Lenay Shemp, who investigated the First Collision and who the trial court described as a “key witness.” Shemp prepared the accident report on the First Collision, in which she stated that the First Collision occurred three minutes before the time listed on the accident report for the Second Collision. She testified at trial that she arrived on the scene just after the Second Collision occurred, and observed the condition of the affected passengers, including Nora Bloomfield, who was pinned in the car and who, tragically, appeared to suffer “a great deal of pain” as she was trapped in the car for “quite some time.” Shemp also testified that the two collisions must have happened “almost instantaneously” and that the Second Collision would not have happened but for the First Collision. On cross-examination, when asked why she had set the time of the First Collision on her accident report at three minutes prior to the Second Collision, she stated that she estimated that time based upon the time of her arrival on the scene, which was after the Second Collision occurred. She also conceded that she only saw the vehicles involved after the two collisions occurred and that she did not know their positions before the second impact because she did not investigate the Second Collision.

Although the trial court, with the benefit of hindsight, faults Great West for not interviewing Shemp before trial, that decision does not reflect upon Great West’s decision to make the $25,000 offer approximately one year earlier. Nothing in OCGA § 9-11-68 requires that a party complete discovery before making an offer of settlement. Viewing the situation at the time of the offer, Great West had access to Shemp’s accident report, which appeared consistent with Young’s version of the timing between the two accidents. Young estimated at trial that the Second Collision occurred approximately five minutes after the First Collision because he had time to walk back up a hill to check on the people inside the Roero-Zaragoza car and to call his employer to report the accident. Moreover, Shemp admittedly did not investigate the Second Collision — another officer prepared the report on that accident; therefore, Great West could not have anticipated that she would proffer an opinion as to how the Second Collision occurred. Nor could they have anticipated that her testimony would contradict her accident report. Thus, Great West reasonably could have believed that no further investigation of Shemp was required before making the initial offer.

Although the trial judge apparently disapproved of Great West’s trial preparation, the failure to interview Shemp does not equate with a lack of good faith. Even if Great West had known Shemp’s testimony prior to trial, it would not have compelled a conclusion that its initial assessment of the case was in error. Even though Shemp testified as to the timing of the accidents, she had no direct evidence of when the First Collision occurred because she arrived only after the Second Collision. And although her testimony regarding Nora Bloomfield’s pain and suffering was undoubtedly moving, Great West disclaimed any liability for those damages. Indeed, the jury heard Shemp’s evidence and still determined that Great West had no liability.

Lack of New Discovery — The trial court also based its decision on Great West’s failure to cite any new discovery after the first offer that would have justified the $1 million offer at trial. But it is apparent that Great West’s offer was a result of the unfolding evidence at trial, something that the discovery process cannot always predict. It would be reasonable for Great West to have assumed that Shemp’s testimony about Nora Bloomfield’s pain and suffering as she struggled to get out of the car could have a profound effect on the jury. Thus, it would have been reasonable for Great West to anticipate that if the jurors found liability, their damage award could be quite large. Such an assumption is borne out by the jury’s verdict awarding $10.42 million in compensatory damages and $44 million in punitive damages against the PFG defendants, who admitted liability for the Second Collision.

Such a concern is not inherently inconsistent with a good faith belief by Great West that it was not liable for such damages. As any litigator knows, no guarantee exists that a jury will follow the law urged upon them, especially when a plaintiff appears to be deserving of a recovery. Under such circumstances, it would not be unreasonable for an attorney to recommend making an offer of up to an insurance policy’s limits in an effort to cap any potential downside. Such a decision in the heat of battle does not mean that the prior offer was unreasonable or not made in good faith. A litigant’s perspective one year before trial can be quite different from his or her perspective when facing an imminent jury verdict. Moreover, even with the $1 million offer behind the scenes, Great West maintained its defense that it was not liable for Nora Bloomfield’s death throughout the litigation until the end of the trial. In fact, Great West called Young as its only witness at trial and presented no evidence on damages. Under these circumstances, Great West was not required to present evidence of new discovery to justify its second offer. Even if the trial judge or another attorney may have pursued a different litigation strategy, the record does not support a finding that Great West’s strategy was unreasonable, as demonstrated by the jury’s verdict. Accordingly, the trial court erred in finding that the $1 million trial offer meant that the $25,000 initial offer was not made in good faith.

Decided December 1, 2011

Dennis, Corry, Porter & Smith, Stephanie C. Patel, for appellants.

Law & Moran, Peter A. Law, Ernest M. Moran, Kelly A. Christian, Roseman & Citron, Barry L. Roseman, Mickiel D. Pete, Audrey M. Tolson, for appellees.

And although Great West’s initial offer was far less than the damages claimed, damages were only one element of Bloomfield’s case. Bloomfield first had to prove that Great West was liable for damages. Thus, the trial court and the majority’s focus on damages is misplaced. Great West believed, and the jury agreed, that it had no liability. While it may have been a somewhat risky strategy on Great West’s part to make a relatively low offer based upon its analysis of the case, it was no more risky than Bloomfield’s decision to turn down the $1 million offer at trial. But nothing in either decision alone reflects a lack of good faith. Accordingly, I would reverse the trial court’s order denying Great West’s motion for attorney fees.

I am authorized to state that Judge Blackwell joins in this dissent.

       Specifically, OCGA § 9-11-68 (b) provides that if the plaintiff receives 75 percent or less of the defendant’s rejected settlement offer, the defendant may seek attorney fees, and if the plaintiff receives 125 percent or more of the plaintiffs rejected settlement demand, the plaintiff may seek attorney fees.

       Great West relies on dicta in a concurring opinion in Smith, 287 Ga. at 38 (4) (Nahmias, J., concurring), to argue that the defense verdict in this case establishes its good faith as a matter of law. The concurring justice discussed the plaintiffs’ failure to raise a constitutional challenge to OCGA § 9-11-68 before the trial court entered summary judgment against them and noted in a parenthetical aside, “That final judgment, by the way, determines as a matter of fact and law that the value of appellees’ claims was zero, so that appellants’ settlement offer of $6,000 was reasonable.”

       The trial court reduced the punitive damages award to the statutory cap of $250,000, per OCGA § 51-12-5.1 (g).

       Young’s deposition is not a part of the appellate record, and although the traffic citation was admitted as an exhibit at trial, the trial exhibits were not included in the record on appeal. A review of the record did not reveal a copy of the ticket and the parties have not pointed us to any such copy.

       The trial court reduced the punitive damage award to the statutory cap of $250,000. OCGA § 51-12-5.1 (g).

       Bloomfield argues that Great West’s counsel admitted that the initial offer was not made in good faith based on a conversation in which Bloomfield’s representatives allege that the attorney stated that she did not know anything about the case at the time she made the offer. Great West’s counsel denies that she made any such statement. The trial judge made no findings of fact on this issue and, in fact, indicated at the motion hearing that she would not make such a factual determination. Rather she stated that she would “take . . . both [counsel] at your word.” Certainly the trial judge did not cite any such alleged discussion as a basis for disallowing the attorney fee award. Accordingly, this Court need not address this argument on appeal. See generally Perdue v. O’Kelley, 280 Ga. 732, 733 (632 SE2d 110) (2006) (appellate courts are courts for the correction of errors of law made by the trial courts, and an error of law has as its basis a specific ruling made by the trial court). Additionally, Bloomfield continues to argue that Great West withdrew its offer of judgment at trial and thus cannot rely upon it to seek attorney fees. But this Court has already decided that issue against Bloomfield in its earlier opinion, and the parties are bound by that determination. Great West Cas. Co. v. Bloomfield, 303 Ga. App. at 29 (2). This Court determined that the offer was not withdrawn; rather, Bloomfield rejected it. Id.


author: BARNES, Presiding Judge.

text:
    A11A1207.
    JORDAN v. JORDAN et al.
    (721 SE2d 119)
   BARNES, Presiding Judge.

John Jordan sued his ex-wife, Mildred Jordan, and her divorce lawyer, Charles Joyner, contending that they fraudulently induced him to sign an unfair settlement agreement by promising to reallocate the marital assets after the divorce became final. After the settlement was incorporated into the final judgment and decree of divorce, he claimed, the defendants reneged on the deal. Mr. Jordan also sued Joyner for breach of fiduciary duty, contending Joyner’s prior representation of Jordan constituted a conflict of interest. In a detailed, thoughtful 15-page opinion, the trial court granted summary judgment to the defendants, and Mr. Jordan appeals. For the reasons that follow, we affirm.

On appeal we review the trial court’s grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Ford v. Bank of America Corp., 277 Ga. App. 708 (627 SE2d 376) (2006). Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Wachovia Bank v. Moody Bible Institute &c., 283 Ga. App. 488, 489 (642 SE2d 118) (2007).

So viewed, the record shows that the Jordans were married in 1978, and divorced in 2007. Joyner represented Mr. Jordan from 2002 to 2004 in unsuccessful litigation against a bankrupt debtor, and was also a neighbor. According to Joyner’s affidavit, Mr. Jordan approached him and asked him to represent Mrs. Jordan and handle the Jordans’ uncontested divorce. Joyner said he initially refused to represent Mrs. Jordan because of his professional relationship with Mr. Jordan, but ultimately agreed to do so on the condition that the divorce remain uncontested. According to Joyner, the Jordans had agreed on the terms of their settlement before he became involved. They came to his office, told him their terms, and he drafted the documents, he said. He saw them once more, when they returned to sign the paperwork. After the divorce complaint was filed, the Superior Court of Dawson County granted Mrs. Jordan’s motion for a judgment on the pleadings and issued a final judgment and decree incorporating the settlement agreement.

Mr. Jordan remembers his interactions with Joyner differently. According to Mr. Jordan, he learned of the settlement terms when Joyner presented him with a draft of an agreement, and he initially protested that it was not a fair division of marital assets. Under the terms of the agreement, which was ultimately incorporated into the divorce decree and executed, the Jordans divided their personalty, including cars and furniture. Mr. Jordan quitclaimed his interest in three vacant lots and gave Mrs. Jordan his interest in “Bad Bob’s Bar-B-Q” restaurant. Mrs. Jordan, who had never earned any income during the 30-year marriage, received no alimony but obtained $560,000 from the couple’s joint brokerage account, the amount remaining after each party removed $120,000. She also quitclaimed her interest in the marital residence, which was 11,600 square feet large and had been on the market for six years. The property was appraised at one point for nearly $2.9 million, and was mortgaged for almost $2 million. After the final divorce decree, the bank foreclosed on the property and bought it for $1 million. It sent Mr. Jordan a Form 1099 imputing a capital gain to him of almost $1 million, based on the difference between the amount mortgaged and the amount obtained in the foreclosure.

Mr. Jordan contends that Joyner told him the settlement agreement was just a “formality” necessary to prevent the lender from seizing marital assets for any deficiency due after the imminent foreclosure, and made an oral “side agreement” dividing the assets more equitably. When he asked if he should obtain his own lawyer, Mr. Jordan says, Joyner assured him he did not need to, so he signed the agreement. The lawyer obtained the final decree. When Mr. Jordan sent Joyner a fax outlining some terms of the oral “side agreement,” both Joyner and Mrs. Jordan denied ever discussing it.

Mr. Jordan sued Mrs. Jordan and Joyner for conspiracy and fraud, and also sued Joyner for breach of fiduciary duty, in the State Court of Forsyth County. Mrs. Jordan counterclaimed, contending that Mr. Jordan had failed to make the monthly payments due on a line of credit secured by the vacant lots to which she now holds title, forcing her to make monthly payments totaling $93,500 so the bank would not foreclose on the lots. Joyner and Mrs. Jordan both moved for summary judgment on Mr. Jordan’s claims against them, and Mrs. Jordan moved for summary judgment on her counterclaim.

The trial court denied summary judgment to Mrs. Jordan on her counterclaim for $95,000, holding that her affidavit alone was insufficient to establish the amount she had paid. Mrs. Jordan did not cross-appeal this ruling. The trial court also granted judgment to both defendants on Mr. Jordan’s claims, holding that the settlement agreement had been incorporated into a final divorce decree in another court, and thus could not be attacked separately. The trial court held that it, the State Court of Forsyth County, could not vacate a judgment of the Superior Court of Dawson County, which is the only court with jurisdiction to void the divorce decree.

The trial court also held that, even if it could consider the merits of the fraud claim against Joyner and Mrs. Jordan, the evidence showed that Mr. Jordan entered into the divorce settlement agreement for his own fraudulent purposes, and thus could not challenge it under the principle of in pari delicto.

1. Mr. Jordan contends the state court erred in holding that he could not rescind the settlement agreement and sue in tort for fraud or breach of fiduciary duty without first having the final divorce decree set aside. He argues that because the “settlement agreement was not contingent on any divorce decree, . . . the divorce decree was irrelevant to the validity or invalidity of this purported agreement.” Our law is clear, however, that a party cannot collaterally attack the validity of a settlement agreement that has been incorporated into a final divorce decree. While Mr. Jordan is correct that a settlement agreement is a contract, that contract was incorporated into a final judgment and decree, and its merits can only be addressed by setting aside the final decree. Mahan v. Jackson, 147 Ga. App. 495, 498 (249 SE2d 311) (1978) (ex-spouse estopped from attacking on grounds of fraud an agreement incorporated into final decree until decree is set aside). “The obligations and rights created by an incorporated settlement agreement can be affected only by means of an action addressing the underlying divorce decree itself.” (Citation and punctuation omitted.) Walker v. Estate of Mays, 279 Ga. 652,653 (1) (619 SE2d 679) (2005). See Mehdikarimi v. Emaddazfuli, 268 Ga. 428, 429 (2) (490 SE2d 368) (1997). This is so because “the rights of the parties after a divorce is granted are based not on the settlement agreement, but on the judgment itself.” White v. White, 274 Ga. 884, 885 (2) (561 SE2d 801) (2002). In White, the ex-husband argued that the trial court could not rely on the disclosure provision of the settlement agreement to set aside the decree, as the parties’ rights were based on the final judgment and not the agreement. In affirming, the Supreme Court noted that the trial court had properly relied on OCGA § 9-11-60 (d) (2), which provides that a judgment procured by fraud may be set aside. A “complaint to void settlement agreement incorporated into final judgment and decree of divorce” is the equivalent of a motion to set aside the final judgment under OCGA § 9-11-60. Mehdikarimi, 268 Ga. at 428-429. “Thus, whatever claim Appellant[ ] ha[s] is founded on the final decree, and not on the underlying agreement.” Walker, 279 Ga. at 653 (1) (claim by ex-spouse against estate of deceased ex-spouse, while denominated as breach of contract, was “domestic relations” case and thus not directly appealable).

Mr. Jordan’s cites to the contrary all involve settlement agreements that were not incorporated into final judgments of divorce, and therefore the usual rules of contract construction applied. See, e.g., Guthrie v. Guthrie, 277 Ga. 700, 702-703 (1) (594 SE2d 356) (2004) (agreement with spouse who died before divorce finalized should be analyzed under usual contract rules, not under discretionary rules applicable in divorce cases); Eickhoff v. Eickhoff, 263 Ga. 498, 499 (1) (435 SE2d 914) (1993), overruled on other grounds, Lee v. Green Land Co., 272 Ga. 107, 108 (527 SE2d 204) (2000) (suit on unincorporated settlement agreement “is simply a contract action in which the parties thereto happen to be former spouses”).

Decided November 15, 2011

Reconsideration denied December 2, 2011

England & England, J. Melvin England, for appellant.

Carlock, Copeland & Stair, Johannes S. Kingma, Shannon M. Sprinkle, Andrew W Eaton, Banks & Stubbs, Daisy D. Weeks, for appellees.

The trial court did not err in holding that Mr. Jordan cannot attack the validity of the settlement agreement without having the final decree set aside, and granting summary judgment on his claims of fraud and breach of fiduciary duty.

2. Mr. Jordan further asserts that the trial court erred in finding that his claims are also barred because he entered into the settlement agreement with the purpose of defrauding his creditors. Mr. Jordan stated in an affidavit that Joyner told him “it was very important for me to transfer all of my assets to Mrs. Jordan” or the mortgage holder would take them, and further stated that he signed the settlement agreement because he thought “it was a mere formality” and would not be binding. An executed contract made for the purpose of defrauding creditors, however, “is valid and binding between parties.” Wofford v. Chambers Lumber Co., 226 Ga. 213, 215 (173 SE2d 698) (1970). “So far as such contracts have been executed, the court will not disturb them, but leave the parties as we find them; and so far as they are not executed, will afford no aid whatever to enforce them.” Camp v. Aetna Ins. Co., 170 Ga. 46, 51 (152 SE 41) (1930). “This is so, not because the law is disposed to aid one of the wrongdoers in retaining the fruits of the unlawful transaction, but because it denies the benefit of its remedies to the other.” (Citation and punctuation omitted.) Langan v. Langan, 224 Ga. 399, 402 (2) (162 SE2d 405) (1968).

Pretermitting whether the court erred in finding that Mr. Jordan’s fraud claim was barred because he entered into a contract to defraud his creditors, however, we find no ground for reversal, because the grant of summary judgment was otherwise proper for the reasons addressed in Division 1. See DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 57 (12) (668 SE2d 737) (2008) (trial court’s exclusion of evidence will be affirmed if right for any reason).

Judgment affirmed.

Adams and Blackwell, JJ., concur.


text:
    A11A1558.
    MIDDLETON v. THE STATE.
    (721 SE2d 111)
   BARNES, Presiding Judge.

Christopher Terrance Middleton appeals from the trial court’s order denying his motion to correct a void sentence. He contends that his sentence was void as a matter of law because it violated the Eighth Amendment prohibition against cruel and unusual punishment. For the reasons discussed below, we affirm.

The record reflects that in August 1998, Middleton pled guilty to one count of armed robbery, two counts of aggravated assault, one count of kidnapping, and one count of theft by taking. The charges arose after Middleton physically and sexually attacked a 54-year-old female victim and stole her car and money from her purse on September 14, 1997. Middleton was 14 years old when he attacked and robbed the victim.

Following Middleton’s guilty plea, the trial court sentenced him to a twenty-year prison term for kidnapping and to a consecutive ten-year prison term for armed robbery, for a total of thirty years imprisonment. The court sentenced him to concurrent prison terms on the remaining counts. Pursuant to OCGA § 17-10-6.1, Middleton’s 30-year sentence was without parole.

In November 2010, Middleton filed his motion to correct a void sentence, contending that his sentencing as a juvenile to 30 years imprisonment without the possibility of parole violated the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution. He argued that his sentence was void under the reasoning of the United States Supreme Court’s recent decision of Graham v. Florida,_U. S._(130 SC 2011, 176 LE2d 825) (2010). The trial court denied the motion, concluding that Graham was inapposite because Middleton was not sentenced to a term of life imprisonment without the possibility of parole. This appeal followed.

The Eighth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” “The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to the offense.” (Citation and punctuation omitted.) Graham,_U. S. at_(II), 130 SC at 2021. Significantly, however, “[a] presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment.” (Citation omitted.) Cuvas v. State, 306 Ga. App. 679, 683 (2) (703 SE2d 116) (2010).

For a court to find a punishment so disproportionate as to be cruel and unusual under the Eighth Amendment, the punishment must fall within one of two classifications. See Graham,_U. S. at_(II), 130 SC at 2021-2022. First, a punishment may be unconstitutionally cruel and unusual in the rare circumstance where the defendant’s sentence is “grossly disproportionate” to the underlying crime. Id. at_(II), 130 SC at 2022. Second, a punishment is unconstitutionally cruel and unusual if it violates certain narrow “categorical restrictions” enunciated by the United States Supreme Court. Graham,_U. S. at_ (II), 130 SC at 2021-2022. See, e.g., Kennedy v. Louisiana, 554 U. S. 407, 413 (128 SC 2641, 171 LE2d 525) (2008) (Eighth Amendment prohibits imposing death penalty upon defendants “where the crime did not result, and was not intended to result, in death of the victim”); Roper v. Simmons, 543 U. S. 551, 568 (III) (B) (125 SC 1183,161 LE2d 1) (2005) (Eighth Amendment prohibits imposing death penalty upon a juvenile offender); Atkins v. Virginia, 536 U. S. 304, 321 (IV) (122 SC 2242, 153 LE2d 335) (2002) (Eighth Amendment prohibits imposing death penalty upon mentally retarded defendants).

Most recently, in Graham, the United States adopted a categorical restriction against “the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Graham, _ U. S. at _ (III) (D), 130 SC at 2034. The Court explained that “[a] State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Id.

Middleton’s sole argument before the trial court was that his sentence violated the categorical restriction imposed in Graham. But the juvenile offender in Graham was sentenced to life imprisonment without the possibility of parole, whereas Middleton was sentenced to a definite term of years without the possibility of parole. And as our own Supreme Court recently emphasized, “nothing in [Graham] affects the imposition of a sentence to a term of years without the possibility of parole.” (Citation and punctuation omitted.) Adams v. State, 288 Ga. 695, 701 (4) (707 SE2d 359) (2011). Thus, the categorical restriction imposed in Graham is inapplicable to the present case, and the trial court committed no error in denying Middleton’s motion to correct a void sentence.

Decided November 14, 2011

Reconsideration denied December 2, 2011

McNeill Stokes, for appellant.

Robert D. James, Jr., District Attorney, Matthew J. McCoyd, Deborah D. Wellborn, Assistant District Attorneys, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Middleton also argues that the statute under which he was sentenced, OCGA § 17-10-6.1, violates the separation of powers clause of the Georgia Constitution. See Ga. Const, of 1983, Art. I, Sec. II, Par. III. While Middleton raised a challenge to the constitutionality of the statute in the trial court, that court did not specifically or distinctly rule on the challenge. Thus, his constitutional challenge to OCGA § 17-10-6.1 is not properly before this Court and cannot be reviewed on appeal. See City of Decatur v. DeKalb County, 284 Ga. 434, 437-438 (2) (668 SE2d 247) (2008); Scott v. State, 305 Ga. App. 595, 596 (699 SE2d 897) (2010).

       The trial court also denied Middleton’s separate motion to reduce his sentence on the ground that the time for filing that type of motion had long since expired. Middleton does not challenge the trial court’s ruling on that separate motion.


author: Ellington, Judge.

text:
    A11A1671.
    FULTON COUNTY BOARD OF TAX ASSESSORS v. GREENFIELD INVESTMENT GROUP, LLC.
    (721 SE2d 128)
   Ellington, Judge.

Greenfield Investment Group, LLC (“the taxpayer”) appealed the 2010 tax valuation assessment for a parcel of real property, elected to have the appeal submitted to binding arbitration, and provided the Fulton County Board of Tax Assessors (“the Board”) (a copy of a certified appraisal of the property, as required by statute. The taxpayer then filed a motion to stay the arbitration and to have $28,000, the value set out in the taxpayer’s appraisal, recognized as the final value, arguing that the Board failed to reject the taxpayer’s appraisal within 45 days after receiving it and, therefore, that the appraised value became the final value by operation of law. After a hearing, the Superior Court of Fulton County granted the motion and ordered the Board to promptly reflect upon its records that the 2010 valuation for tax purposes was determined to be $28,000. The Board appeals, challenging the court’s finding that the Board failed to reject the taxpayer’s appraisal within the time allowed. For the reasons explained below, we reverse.

The record shows the following undisputed facts. By letter to the Board dated May 26, 2010, the taxpayer appealed the 2010 assessment. On July 11, 2010, the taxpayer provided a certified copy of an appraisal to the Board and requested that the matter be submitted to binding arbitration pursuant to OCGA § 48-5-311 (f). The Board’s appraisal staff reaffirmed its valuation and recommended that the Board certify the appeal to binding arbitration, rather than accepting the taxpayer’s appraised value. At a regular meeting of the Board held on August 19, 2010 (39 days after receiving the appraisal), the Board voted to adopt the staff recommendation and reject the taxpayer’s appraisal. On September 2, 2010 (53 days after receiving the appraisal), the Board filed in the superior court its Certification of Record in reference to the binding arbitration. On September 7, 2010, the Board notified the taxpayer that it had certified the appeal.

OCGA § 48-5-311 (f) provides that an appeal from an assessment by the county board of tax assessors shall, at the option of the taxpayer, be submitted to binding arbitration. As amended in 2010, the statute requires the taxpayer to provide to the board of assessors a copy of a certified appraisal, among other procedural requirements. OCGA § 48-5-311 (f) (3) (A). On the issue of a board of assessors’ response to a taxpayer’s demand for arbitration, the statute provides, in pertinent part, as follows:

. . . Within 45 days of receiving the taxpayer’s certified appraisal, the [county] board of [tax] assessors shall either accept the taxpayer’s appraisal, in which case that value shall become final[,] or the county board of tax assessors shall reject the taxpayer’s appraisal, in which case the county board of tax assessors shall certify within 45 days the appeal to the clerk of the superior court of the county in which the property is located along with any other papers specified by the person seeking arbitration under this subsection, including, but not limited to, the staff information from the file used by the county board of tax assessors. In the event that the county board of tax assessors neither accepts nor rejects the value set out in the [taxpayer’s] certified appraisal within such 45 day period, then the [value set out in the taxpayer’s] certified appraisal shall become the final value. ... At the time of certification of the appeal, the county board of tax assessors shall serve the taxpayer and the taxpayer’s attorney of record, if any, or employee with a copy of the certification along with any other papers specified by the person seeking arbitration along with the civil action file number assigned to the appeal. Within 15 days of filing the certification to the clerk of the superior court, the chief judge of the superior court of the circuit in which the property is located shall issue an order authorizing the arbitration.

OCGA § 48-5-311 (f) (3) (A).

The Board contends that it rejected the value set out in the taxpayer’s certified appraisal within 45 days of receiving the appraisal when, on August 19, 2010, it voted to adopt the staff recommendation. Further, the Board contends that OCGA § 48-5-311 (f) (3) (A) does not require a board that rejects a taxpayer’s appraisal to certify the appeal to the clerk of the superior court within 45 days of receiving the appraisal. Rather, the Board contends that OCGA § 48-5-311 (f) (3) (A) allows a board 45 days to accept or reject a taxpayer’s appraisal and, if the board rejects the appraised value, an additional 45 days after rejecting the appraised value to certify the appeal to the superior court.

As an initial matter, we note that, as to other time limitations imposed on tax authorities under OCGA § 48-5-311, we have held that the limitations are directory rather than mandatory. Jasper County Bd. of Tax Assessors v. Thomas, 289 Ga. App. 38, 41 (1) (656 SE2d 188) (2007) (The requirement under OCGA § 48-5-311 (g) (4) (A) that a nonjury trial in an appeal from a board of equalization to the superior court “shall be held within 40 days” of filing is directory rather than mandatory.) (citation omitted); Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405, 406 (523 SE2d 600) (1999) (The requirement under OCGA § 48-5-311 (e) (6) that, within 15 days of receiving notice of an appeal, a board of equalization shall set a hearing date to determine the questions presented and shall conduct the hearing not more than 30 days and not less than 20 days from notification is directory rather than mandatory). In this case, the Board’s certification of the taxpayer’s appeal 53 days after receiving the appraisal represents, at least, substantial compliance with OCGA § 48-5-311 (f) (3) (A). Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. at 407 (The failure of a county board of equalization to timely hear a taxpayer’s appeal did not nullify the assessment where there was substantial compliance with the statute.).

Even directory requirements, however, should be conscientiously observed. Because the Board’s arguments on appeal involve the meaning of the statute, the threshold issue is whether the language is plain and unequivocal, in which case judicial construetion is not permitted, or whether it is ambiguous, in which case judicial construction is appropriate. City of Atlanta v. City of College Park, 311 Ga. App. 65, 68-69 (2) (715 SE2d 158) (2011) (“[W]hen a statute is plain and susceptible of but one natural and reasonable construction, a court must simply follow the literal language of the statute, unless doing so would lead to absurd or wholly impracticable consequences.”) (citation and punctuation omitted). A statute is ambiguous when it is susceptible of more than one natural and reasonable interpretation. State Revenue Comm. v. Nat. Biscuit Co., 179 Ga. 90, 99-100 (2) (175 SE 368) (1934); City of Atlanta v. City of College Park, 311 Ga. App. at 68 (2).

In considering the language employed in OCGA § 48-5-311 (f) (3) (A), we conclude that it is unclear which event triggers the 45-day period in which the board of tax assessors is required to certify an appeal to the clerk of the superior court for arbitration — the board’s receipt of the taxpayer’s certified appraisal or the board’s rejection of the appraisal. We conclude, therefore, that the statute is ambiguous in this respect.

Where the language of a statute is capable of more than one meaning, we construe the statute so as to carry out the legislative intent. The “cardinal rule” of statutory construction is to ascertain the legislative intent and purpose in enacting the law and then to give it that construction which will effectuate the legislative intent and purpose. See also OCGA § 1-3-1 (a) (“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”). . . . [I]n construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.

(Citations and punctuation omitted.) City of Atlanta v. City of College Park, 311 Ga. App. at 69-70 (2).

Considering the statute as amended in 2010 as a whole, and comparing it to the statute before the 2010 amendment, we conclude that, as the Board contends, there are two 45-day periods specified in OCGA § 48-5-311 (f) (3) (A): (1) the period following a board’s receipt of the taxpayer’s appraisal, within which the board must formally decide to accept or reject the appraised value; and (2) the period following a board’s decision to reject the appraised value, if it so decides, within which the board must certify the taxpayer’s appeal to the superior court so that the arbitration process can begin. Thus, if a board rejects a taxpayer’s appraisal, even if the board acts on the last day, the appeal will be certified to the superior court within 90 days after receiving a taxpayer’s appraisal. Such an interval is not inherently unreasonable. If, on the other hand, there were only a single 45-day period under OCGA § 48-5-311 (f) (3) (A), a board which formally decided whether to accept or reject a taxpayer’s appraisal on the last day (the 45th day after receiving the appraisal) would be required to prepare the record “along with any other papers specified by the person seeking arbitration under this subsection, including, but not limited to, the staff information from the file used by the county board of tax assessors!,]” and file it instantly, in order to certify the appeal within that same 45-day window, an unreasonable requirement.

Decided November 17, 2011

Reconsideration denied December 2, 2011

Carothers & Mitchell, Peter C. Brown, for appellant.

Dietrick, Evans, Scholz & Williams, Robert W. Scholz, John F. Woodham, for appellee.

In this case, the undisputed evidence established that, within 45 days of receiving the taxpayer’s certified appraisal, the Board decided, in the manner in which it was authorized to act, that is, by a vote of the members at a properly convened meeting, to reject the value set out in the appraisal. In addition, the undisputed evidence established that, within 45 days after voting to reject the taxpayer’s appraisal, the Board certified the taxpayer’s appeal to the superior court, in compliance with OCGA § 48-5-311 (f) (3) (A).

Based on the foregoing, we conclude that the trial court erred in ruling that, for 2010 taxes, the value of the subject property is $28,000. Jasper County Bd. of Tax Assessors v. Thomas, 289 Ga. App. at 39-41 (1). The value remains to be determined by an arbitrator in accordance with the procedures set out in OCGA § 48-5-311 (f).

Judgment reversed.

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

       The Board contends that the date it received the appraisal is unknown but, for purposes of its appeal, concedes that it received the appraisal at least by July 11, 2010. Although there is some evidence in the record that the Board actually received the appraisal on July 9 or 10, 2010, the difference among these dates does not affect the result in this appeal.

       See Ga. L. 2010, p. 1104, § 6-1 (effective June 4, 2010).


author: McFADDEN, Judge.

text:
    A11A2172.
    SHELLEY v. THE STATE.
    (721 SE2d 113)
   McFADDEN, Judge.

After a bench trial, Ronald Shelley was convicted of driving under the influence of alcohol. He appeals, arguing that the trial court erred in denying his motion to suppress because there is no evidence that the police roadblock at which he was stopped had been established by an authorized supervisor for a legitimate primary purpose. The argument is without merit because there is sufficient evidence from which the trial court was authorized to find that a supervisory officer made the decision to implement the roadblock for the legitimate purpose of checking driver sobriety. Accordingly, we affirm.

As to the trial court’s application of the law to undisputed facts, our review is de novo. St. Fleur v. State, 296 Ga. App. 849, 850 (676 SE2d 243) (2009). But as to the facts,

the trial court sits as the trier of fact, and the court’s findings are analogous to a jury verdict and will not be disturbed when the record contains any evidence to support those findings. When reviewing a trial court’s ruling on a motion to suppress, the evidence must be construed most favorably toward the court’s findings unless those findings are clearly erroneous. Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.

(Citation and punctuation omitted.) Park v. State, 308 Ga. App. 648, 651 (1) (708 SE2d 614) (2011).

Construed in favor of the trial court’s findings, the testimony introduced at the motion to suppress hearing and the stipulated facts introduced at the bench trial show that near midnight on March 27, 2010, the Douglas County Sheriffs Office conducted a roadblock at Douglas Boulevard and Bright Star Road in Douglas County. The roadblock was approved by Chief Deputy Stan Copeland, who is second in command to the sheriff and whose duties include authorizing such checkpoints. Chief Deputy Copeland approved the roadblock for the primary purpose of checking driver sobriety, and appointed Sergeant Brett Dever to act as the checkpoint supervisor. Sergeant Dever was on the scene supervising the roadblock when Shelley was stopped by Deputy Edward Englett, who smelled alcohol on Shelley’s breath and noticed that his eyes were bloodshot and his speech was slurred. Shelley admitted that he had drunk about six beers, failed a field sobriety test and consented to a breath test, which showed that his blood-alcohol level was above the legal limit.

Five factors must be considered in determining if a roadblock is lawful: (1) the decision to implement the roadblock was made by supervisory personnel for a proper primary purpose; (2) all vehicles are stopped as opposed to random vehicle stops; (3) the delay to motorists is minimal; (4) the roadblock is well identified as a police checkpoint; and (5) the screening officer’s training and experience are sufficient to qualify him to initially determine which motorists should be given field sobriety tests.

Decided November 14, 2011

Reconsideration denied December 2, 2011

Allen M. Trapp, Jr., for appellant.

Brian K. Fortner, Solicitor-General, Sherrill N. Britt, Assistant Solicitor-General, for appellee.

(Citation and punctuation omitted.) Gamble v. State, 283 Ga. App. 326, 327 (3) (641 SE2d 556) (2007).

Shelley concedes the last four factors have been satisfied, and contends only that the first requirement has not been met. “The purpose of this [first] requirement is to prevent roving patrols in which field officers exercise unfettered discretion to stop drivers in contravention of constitutional protections against unreasonable seizures. [Cits.]” (Punctuation omitted.) Rappley v. State, 306 Ga. App. 531, 533 (a) (702 SE2d 763) (2010). Contrary to Shelley’s claim, there is ample evidence that the roadblock in this case was not implemented by a roving patrol of field officers exercising unfettered discretion. Rather, as recounted above, the motion hearing testimony of Chief Deputy Copeland and Deputy Englett, coupled with the stipulated facts introduced at the bench trial, plainly show that Chief Deputy Copeland is a supervisor in the sheriffs office, that his duties include authorizing roadblocks, and that he made the decision to implement the roadblock for the primary purpose of checking driver sobriety. “Based upon this testimony, the trial court was authorized to find that the roadblock had been authorized by [a] supervisory officer[ ] at the programmatic level. [Cits.]” Id. at 534 (a). Likewise, checking for driver sobriety “has long been considered a valid purpose for a traffic roadblock.” (Citations and punctuation omitted.) Id. at 535 (b). See also Britt v. State, 294 Ga. App. 142, 143 (1) (a) (i) (668 SE2d 461) (2008). Accordingly, the trial court did not err in denying the motion to suppress.

Judgment affirmed.

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