author: MILLER, Presiding Judge.

text:
    A12A1694.
    HAMPTON ISLAND, LLC et al. v. ASSET HOLDING COMPANY 5, LLC. WALLACE v. ASSET HOLDING COMPANY 5, LLC. MASON v. ASSET HOLDING COMPANY 5, LLC.
    A12A1695.
    A12A1696.
    (740 SE2d 859)
   MILLER, Presiding Judge.

All three of these appeals arise from a suit originally brought by United Community Bank (UCB) to recover on two promissory notes executed by Hampton Island, LLC (the Borrower) and guaranties of all or portions of that indebtedness signed by Liberty Capital, LLC, Cumberland Creek Properties, Inc., Wayne Mason, James Wallace, Sr., and John A. Williams. The trial court granted UCB’s motion to substitute Asset Holding Company 5, LLC (AHC5) as plaintiff based on the transfer of UCB’s interest in the notes and guaranties to AHC5; denied the motions of the appellants/defendants to file a counterclaim based on the anti-tying statute (12 USC § 1972) and common law fraud; and granted AHC5’s motion for summary judgment on the underlying claims. All three appeals involve common facts and argue similar enumerations of error. They are consolidated for our consideration.

The following facts are not disputed. On March 31, 2008, the Borrower signed two one-year promissory notes payable to UCB, one in the amount of $3,461,250 and one in the amount of $1,338,750. The notes were guaranteed in various amounts by the remaining appellants/defendants, and both notes matured on March 31, 2009.

Following maturity of the 2008 notes, on May 27, 2009, the Borrower signed two new promissory notes payable to UCB in the same amounts. Both notes were guaranteed in various amounts by the remaining appellants/defendants and were to mature on November 27, 2010.

Suit was commenced by UCB against Borrower and guarantors on February 5, 2010, based on several alleged acts of default under the 2009 notes, including the failure to make required payments reducing the principal due and failure to maintain insurance and pay taxes.

Substitution of Party

1. On September 29, 2010, UCB filed its Motion for Substitution of Party Plaintiff, which was granted by the trial court on January 12, 2011. In Case No. A12A1694, in their first enumeration, appellants Borrower and guarantors Liberty Capital, LLC, Cumberland Creek Properties, Inc., and John Williams contend this was error. In Case No. A12A1695, in his fourth enumeration, guarantor Wallace contends that AHC5, an outsider to the loan, “was not entitled to enforce the notes and guaranties when it stepped into the litigation.” In Case No. A12A1696, guarantor Mason, in his first enumeration, argues that the trial court’s grant of summary judgment to AHC5 was error because AHC5 is not the holder of the 2009 notes or the Mason guaranties. All of these appellants cite common authority and make similar arguments, and they are considered together.

Borrower and guarantors contend the trial court erred in granting UCB’s motion to substitute. We disagree.

OCGA § 9-11-25 (c) provides for the automatic continuation of an action where an interest in the subject of the action is transferred, as occurred here. However, this Court has determined that this statute “does not determine what actions shall survive the transfer of interest by a party; it deals only with the mechanics of substitution in an action which does survive under the applicable substantive law.” (Punctuation omitted; emphasis supplied.) Goodyear v. Trust Co, Bank, 248 Ga. 407, 408 (284 SE2d 6) (1981), quoting 3B Moore’s Federal Practice 25.04[3] (1980).

“[Wjhether a party should be added to a lawsuit lies within the discretion of the trial court, and that determination will not be disturbed on appeal absent a showing of abuse.” (Footnote omitted.) Deleo v. Mid-Towne Home Infusion, 244 Ga. App. 683, 684 (536 SE2d 569) (2000).

UCB filed its motion to substitute on September 29, 2010, attaching a copy of an April 1, 2010 Asset Purchase and Sale Agreement between UCB and Fletcher International, Inc. andits affiliates. Although the incorrect property description was included as an exhibit to the Agreement, UCB filed a Supplement to Reply Brief in Support of Motion for Substitution of Party Plaintiff and attached thereto copies of the April 30, 2010 Bill of Sale by which UCB transferred to AHC5 ownership of certain “Mortgage Note[s], Mortgage [s], Deed[s] and the contents of the Loan Files, Property Files and Servicing File[s]” including those for parcels of property at Liberty Point, Hampton Island, which is the property involved here. Also attached are two assignments dated July 30, 2010, of deeds to secure debt from UCB to AHC5 regarding the same property.

Appellants argue that AHC5 did not have standing and was, therefore, not a proper party to be substituted because UCB did not “negotiate” the promissory notes to AHC5, but merely “assigned” them.

The promissory notes are negotiable instruments as defined in OCGA § 11-3-104 (a), which can be transferred “when... delivered by a person other than its issuer [Hampton Island, LLC] for the purpose of giving to the person receiving delivery the right to enforce the instrument.” OCGA § 11-3-203 (a). Such a transfer, “whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course . . . .” OCGA § 11-3-203 (b).

During the hearing on the motion to substitute, the primary argument made was that “because UCB is not the real party in interest and there is no admissible evidence that has been offered to show who, if anyone, is the real party in interest, this Court should deny the motion for substitution . . . .” (Emphasis supplied.) It was also argued that there had been no proper endorsement of the promissory notes.

(a) First, we note that the record is replete with depositions, affidavits, and copies of the various documents reflecting the sale of assets of UCB to Fletcher International and its subsidiaries, including AHC5, and, specifically, the transfer of the Hampton Island promissory notes and accompanying documents to AHC5. See Williams v. Universal Decorators, 161 Ga. App. 165, 166 (288 SE2d 115) (1982) (uncontroverted affidavit showed note transferred to corporation, thereby giving corporation title to the note and the right to collect it).

That appellants contest the “authenticity” of these documents is of no import.

A statement that has legal consequences independent of its truth or falsity is considered a “verbal act” and is not hearsay when those legal consequences are relevant or material to the case. The simplest example is an out-of-court statement establishing or defining the terms of a contract.

Milich, Georgia Rules of Evidence (2nd ed.), § 17:6, pp. 352-353), cited in Stubbs v. Dubois, 306 Ga. App. 171, 174, n. 5 (702 SE2d 32) (2010). Copies of all the contract documents at issue here are contained, some repeatedly, in the record before us and are properly considered by us.

We find that the terms of the transaction between UCB and AHC5 are fully and adequately set out in the record and not subject to the lack of authentication argument made by appellants.

(b) Appellants rely on Bank of Danielsville v. Seagraves, 167 Ga. App. 135, 139 (305 SE2d 790) (1983) (physical precedent) for their argument that the placement of the endorsement of the promissory notes to AHC5 in January 2011 by David Shearrow of UCB was ineffective to establish AHC5 as a holder in due course. We note, however, that this case is physical precedent only and, therefore, not binding on this Court. Court of Appeals Rule 33 (a). Further, we note that the case is factually distinguishable because no reference was made in that case to the promissory notes in the assignment. Id. Here, the specific documents subject to transfer were specified in the assignment.

Also, when an instrument is transferred for value and the transferor does not endorse the instrument, the transferee has a specifically enforceable right to have the endorsement of the transferor. OCGA § 11-3-203 (c). That the documents were transferred before the endorsements were added, therefore, does not benefit appellants.

As for the guarantors, the record contains assignments of these guaranties by UCB to AHC5 dated January 31, 2011. Even in the absence of specific assignments, however, the “transfer of the underlying principal obligation operates as an assignment of the guarantees].” (Footnote omitted.) 685 Penn, LLC v. Stabilis Fund I, L.P., 316 Ga. App. 210, 212 (1) (728 SE2d 840) (2012).

Therefore, we find that UCB effectively transferred its interest in the promissory notes, deeds to secure debt, guaranties, and other accompanying documents to AHC5 so that, whether AHC5 was a holder in due course or not, it was the real party in interest here and the trial court properly granted the motion to substitute party.

Refusal to Allow Filing of Counterclaim

2. All appellants also enumerate as error the trial court’s denial of their motion to file a counterclaim, and they are considered together. We find no error.

Suit was commenced by UCB on February 5, 2010. On January 22, 2011, a joint motion for leave of court to file a counterclaim was filed on behalf of all appellants. The proposed counterclaim alleged violations of the federal anti-tying statute, 12 USC § 1972, common law fraud, and a claim for attorney fees and costs.

OCGA § 9-11-13 (a) provides in pertinent part: “Apleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim . . . .”

Here, appellants relied upon two bases for being allowed to file their counterclaim two weeks short of a year after the filing of the complaint, that they had learned of the facts supporting their counterclaim after the filing of the complaint, OCGA § 9-11-13 (e), and that justice required such a belated counterclaim, OCGA § 9-11-13 (f).

A cursory glance at the proposed counterclaim and the argument made by appellants at the hearing on their motion to add it reveal that the acts alleged were committed by or on behalf of UCB and all occurred in 2008 prior to the issuance of the first set of promissory notes from Borrower. Therefore, OCGA § 9-11-13 (e) is inapplicable. Further, the decision of whether to grant or deny a motion pursuant to that section is totally within the trial court’s discretion and no abuse of that discretion has been shown. Feifer v. Reliance Kitchens USA, 189 Ga. App. 653, 655 (4) (377 SE2d 28) (1988).

Acknowledging that they failed to include the counterclaim in their initial answers, appellants contend that they should be allowed to add the counterclaim under OCGA § 9-11-13 (f) which states: “When a pleader fails to set up a counterclaim [] through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” The determination of

[wjhether justice requires the grant of leave to set up an omitted counterclaim is a matter which addresses itself to the sound discretion of the trial court. Leave to amend may be denied where, as here, a party’s motion for leave to add a counterclaim comes long after the initial pleading is filed. We find no abuse of discretion in the trial court’s decision.

(Footnotes omitted.) Earthlink, Inc. v. Eaves, 293 Ga. App. 75, 78-79 (4) (666 SE2d 420) (2008).

Grant of Motion for Summary Judgment

3. All of the appellants also enumerate as error the trial court’s grant of summary judgment to AHC5. We find no error.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). 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. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

Although appellant Wallace asserts that the grant of summary judgment should be reversed because the trial court did not open and consider all the depositions, we will not reverse a grant of summary judgment solely on this ground. Taylor v. Schander, 207 Ga.App. 627, 628 (2) (428 SE2d 806) (1993). Instead, we will examine the depositions and decide whether the evidence contained in them creates a material issue of fact. Miller Grading Contractors v. Ga. Fed. Sav. & Loan Assn., 247 Ga. 730, 733-734 (3) (279 SE2d 442) (1981); Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 527 (2) (484 SE2d 249) (1997).

(a) Again, all of the facts presented by appellants which are contended to create material issues of fact precluding the grant of summary judgment relate to acts committed in 2008 in connection with the 2008 transaction. As far as they are contended to create a cause of action pursuant to the federal anti-tying statute, 12 USC § 1972, they are all acts committed by or allegedly on behalf of UCB, which is no longer a party to this case. Also, AHC5 is not a “bank” subject to that act.

Further, even assuming, without deciding, that such an act of “tying” had been committed by UCB, that is no defense to the underlying obligation on the promissory notes at issue here even if UCB were still party to the litigation. The anti-tying statute enables an injured party to bring an action for treble damages to recover its losses due to the violation. “[A]n obligation to pay back a loan[, however,] is not an injury.” Exchange Nat. Bank of Chicago v. Daniels, 768 F2d 140, 144 (7th Cir. 1985). See also The Chase Manhattan Bank v. Remington Products, 865 FSupp. 194, 199-200 (IV) (S.D. N.Y. 1984).

(b) To the extent that appellant guarantors argue that fraud was committed by UCB in paying an inflated price for Lot 2 7 in foreclosure and thereafter obtaining an inflated appraisal of the property upon which appellants relied in signing the guaranties, such a claim is of no avail to them. There is no confidential relationship between a bank and its borrower, and the bank has no duty to advise one contemplating the signing of a guaranty about problems with the viability of the business venture financed by the loan. Baxter v. Fairfield Financial Svcs., 307 Ga.App. 286,293-294 (4) (704 SE2d 423) (2010). Nor is one entitled to rely upon the appraised value of property because “an appraisal is simply an opinion of the value of real estate, upon which a buyer is not entitled to rely.” (Footnote omitted.) Id. See also Coote v. Branch Banking and Trust Co., 292 Ga. App. 164, 166 (2) (664 SE2d 554) (2008).

Decided March 28, 2013

Ratcliffe & Smith, James W. Smith, Merritt & Fletcher, James R. Fletcher II, Lee M. Bagel, for appellant (case no. A12A1694).

Holt, Ney, Zatcoff & Wasserman, Joseph S. Jacobson, Melissa J. Perignat, for appellant (case no. A12A1695).

Mahaffey, Pickens & Tucker, Gerald Davidson, Jr., for appellant (case no. A12A1696).

James, Bates, Brannan & Groover, William J. Sheppard, for appellee.

(c) Finally, we note that in signing the guaranties for the 2009 promissory notes, all of the guarantors waived “legal or equitable defenses whatsoever to which Guarantor might otherwise be entitled, to the extent permitted by law, other than payment in full of all of the obligations of Borrower to Lender under the Loan Documents.” Such waivers are enforceable. Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 795 (1) (b) (709 SE2d 336) (2011); FielbonDev. Co. v. Colony Bank of Houston County, 290 Ga. App. 847, 854 (2) (b) (660 SE2d 801) (2008).

Having made its prima facie case for recovery under the promissory notes by producing the notes, AHC5 was entitled to summary judgment when Borrower and guarantors failed to establish a defense, which, as discussed supra, appellants failed to do. Core LaVista, LLC, supra, 308 Ga. App. at 795. Accordingly, the trial court did not err in granting summary judgment to AHC5 on the appellants’ claims.

Judgments affirmed.

Andrews, P. J., and Doyle, P. J., concur.

       “In case of any transfer of interest, the action may be continued by or against the original party unless the court, upon motion, directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.”

       “Essentially, a compulsory counterclaim is one which: 1) arises out of the same transaction or occurrence as the main claim; and 2) has matured at the time the answer is filed.” Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 31 (1) (410 SE2d 154) (1991).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A12A1905.
    HAITHCOCK v. THE STATE.
    (740 SE2d 806)
   Ray, Judge.

Following a jury trial, Michael Ray Haithcock was found guilty beyond a reasonable doubt of child molestation. He appeals from his conviction and the denial of his motion for new trial, contending that the trial court erred (1) in denying his motion for directed verdict; (2) in failing to exclude witness testimony about child abuse accommodation syndrome; (3) in allowing a witness to testify despite the State’s violation of reciprocal discovery; (4) in commenting on the evidence; (5) in failing to give a jury charge on accident; and (6) in excluding a hospital report from the evidence. Haithcock also contends that he had ineffective assistance of counsel. Finding no error, we affirm.

1. Haithcock contends that he was entitled to a directed verdict of acquittal because the State failed to prove the element of intent beyond a reasonable doubt. We disagree.

Amotion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.

Viewed in this light, the evidence shows that Haithcock is the adoptive stepfather of the victim, G. H. At trial, G. H. testified that, in several incidents occurring between November 2006 and October 2007, Haithcock would come into her bedroom at night and ask her if she wanted to sleep with him. He would then molest her by reaching underneath her clothes, fondling her breasts and vagina, nibbling on her earlobes, and kissing her breasts. Although the molestation began when G. H. was six years old, the incidents at issue here occurred when G. H. was between the ages of eleven and twelve years old.

Although Haithcock acknowledges that G. H. provided detailed testimony of the incidents at trial, he contends that G. H.’s testimony does not reveal that he had any sexual intent and that no other witnesses testified to any inappropriate contact between him and G. H.

Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this. While a person is not presumed to act with criminal intention, intent is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

Even when a finding by the jury that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak, the verdict will not be set aside on that ground. Furthermore, we have held that the testimony of a child molestation victim alone is sufficient to authorize the jury to find that the defendant committed the acts claimed and to infer that the defendant acted with the intent to arouse or satisfy his or her sexual desires.

Here, G. H.’s testimony provided direct evidence that Haithcock touched her inappropriately, and the jury was entitled to infer from this evidence that Haithcock acted with the intent to arouse or satisfy his own sexual desires. The evidence was sufficient to convict him, and the trial court did not err in denying his motion for a directed verdict.

2. Haithcock contends that the trial court erred in failing to exclude the testimony of Dr. Elizabeth Hudson, a licensed psychologist, regarding child abuse accommodation syndrome. Haithcock argues that such testimony was not relevant and improperly bolstered G. H.’s testimony. We discern no error.

Under Georgia law, it is well established that “an expert may express an opinion as to whether medical or other objective evidence in the case is consistent with the victim’s story.” However, an expert may not express an opinion as to whether the victim is telling the truth.

The evidence shows that G. H.’s behavior changed as a result of the molestation. She became more withdrawn, preferring to stay in her bedroom rather than spending time with the rest of the family. She began locking her bedroom door, stuffing towels beneath her door, sleeping with her clothes on, wrapping a towel tightly around her before going to sleep, and asking her siblings to sleep in the room with her.

In this case, Dr. Hudson testified that G. H.’s demeanor, disclosure, and behavior were consistent with that of a child who has been sexually abused, testimony that is permissible under our law. Accordingly, the trial court did not err in allowing Dr. Hudson’s testimony.

3. Haithcock contends that the trial court erred in allowing Dr. Hudson to testify despite the State’s failure to timely provide him with a copy of Dr. Hudson’s report as required by the statute governing reciprocal discovery. However, the record shows that the trial court offered Haithcock a continuance, and after discussing the matter with his counsel, Haithcock chose to proceed with trial. Accordingly, Haithcock has waived his right to assert this as error on appeal.

4. Haithcock contends that the trial court erred by commenting on the evidence in reading G. H.’s letter to the jury. We discern no error.

While G. H. was on the witness stand, Haithcock’s counsel moved to tender into evidence a letter that G. H. had written to the newspaper in response to an article it published about Haithcock’s arrest. The State did not obj ect to the admission of the letter, but it did object to the letter being sent out with the jury because of the continuing witness rule. As G. H. was upset when she wrote the letter, the letter contained profanity and some “pretty harsh language.” Near the end of G. H.’s testimony, the jury was excused from the courtroom, and the trial court addressed the admission of the letter into evidence and the application of the continuing witness rule with counsel. The trial court gave counsel the option of sending the letter out with the jury during deliberations or having the letter read to the jury and excluding it from the jury room. Counsel for both sides agreed that the court could read the letter to the jury. The trial court indicated that it would read the letter to the jury and then ask G. H. if that was what she wrote. When the jury returned to the courtroom, the trial court read the letter to the jury, and G. H. confirmed the accuracy of the content of her letter.

Haithcock argues that the trial court’s reading of the letter violated the rule that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” This argument is misplaced. Although the trial judge’s reading of the letter to the jury was highly unorthodox and, in our view, not recommended, it did not constitute an impermissible expression of opinion or a comment on the evidence. G. H. testified that it was an accurate recitation of the content of her letter. We have specifically held that “a correct statement by the court as to the testimony of a witness is not error in the absence of special circumstances tending to show such an unwarranted emphasis upon certain testimony as might confuse or prejudice the jurors.” Here, the trial court’s reading of the letter was a correct statement as to the contents of G. H.’s letter. Under these circumstances, we find no error.

5. Haithcock contends that the trial court committed error when it failed to charge the jury on accident. We disagree.

Haithcock’s counsel did not request a jury charge on accident, and he did not preserve any objection to the content of the jury instructions because he did not voice an objection to the charge as given. Nevertheless, pursuant to OCGA § 17-8-58, which is applicable to trials taking place after July 1,2007, we review for plain error an alleged error injury instructions properly enumerated and argued on appeal that was not raised by trial counsel before the jury retired to deliberate.

The “plain error” test adopted by our Supreme Court in State v. Kelly gives the appellate court discretion to reverse a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

Even if we assume that trial counsel’s statement to the trial court that the defense had no objection to the charge as given was not an affirmative waiver, there is no plain error because the evidence did not warrant a charge on accident.

A jury charge on accident is required “only if there is evidence to support a finding that the defendant committed the acts which were the basis of the charge, but without any criminal scheme or undertaking, intention, or criminal negligence.” Thus, the evidence must show that Haithcock admits to having committed the acts that would constitute the crimes for which he was charged, but claims that his acts were done unintentionally.

Haithcock contends that G. H.’s testimony provided the basis for the defense of accident, but he failed to provide any citation to the record to support this argument. Nevertheless, we reviewed the record in its entirety, and the only evidence of unintentional touching occurred in the context of typical family play wholly unrelated to the incidents for which Haithcock was convicted.

Furthermore, Haithcock’s primary, if not sole, defense was that no inappropriate touching or kissing occurred and that G. H.’s accusations were prompted or coached by her mother, who had just initiated divorce proceedings against him. He did not admit to committing the alleged acts or claim that he committed these acts unintentionally.

For the above reasons, the trial court did not err in failing to charge on accident.

6. Haithcock contends that the trial court erred in refusing to allow the Scottish Rite Hospital records to be admitted into evidence. We discern no error.

Haithcock argues that the records were exculpatory because the results of G. H.’s medical examination contained therein indicated that there was no physical evidence of molestation or intercourse. Although the records were properly authenticated by Scottish Rite Hospital’s custodian of records, such authentication does not eliminate the rule against hearsay. Here, Haithcock did not call as a witness the physician or nurse who performed the examination to testify as to their findings. Therefore, the trial court properly excluded the records from the evidence on the basis of hearsay.

Decided March 28, 2013

Albert C. Palmour, Jr., for appellant.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.

Haithcock also argues that the records should have been admitted into evidence because the records were offered for impeachment purposes. However, the record shows that trial counsel was permitted to use the records for this purpose through oral testimony.

Accordingly, the trial court did not err in refusing to allow the records to be admitted into evidence.

7. Haithcock contends, for the first time on appeal, that he received ineffective assistance of trial counsel.

It is axiomatic that a claim of ineffectiveness of trial counsel must be asserted at the earliest practicable moment. The rule that an ineffectiveness claim must be raised at' the earliest practicable moment requires that [the] claim be raised before appeal if the opportunity to do so is available. If the claim is not raised at the earliest practicable moment, it is waived.

In this case, appellate counsel filed an amended motion for new trial on behalf of Haithcock, but failed to raise an ineffective assistance of counsel claim. As a result, this claim has been waived.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”).

       (Citation omitted.) Walker v. State, 310 Ga. App. 223, 223 (1) (713 SE2d 413) (2011).

       (Punctuation andfootnotes omitted.) Parrott v. State, 318 Ga. App. 545, 552 (3) (736 SE2d 436) (2012).

       Id. at 553 (3).

        Malone v. State, 277 Ga. App. 694,696 (1) (627 SE2d 378) (2006); Ferrell v. State, 256 Ga. App. 692, 694 (1) (569 SE2d 899) (2002).

       (Citation and punctuation omitted.) Ledford v. State, 313 Ga. App. 389, 392 (3) (721 SE2d 585) (2011).

        Harris v. State, 279 Ga. App. 570, 571 (1) (631 SE2d 772) (2006).

        Hart v. State, 314 Ga. App. 685, 689 (4) (725 SE2d 816) (2012).

       OCGA § 17-16-4 (a) (4).

        Thompson v. State, 262 Ga. App. 17, 21 (4) (585 SE2d 125) (2003) (defendants’ failure to request a continuance to cure any prejudice which may have resulted from the State’s failure to comply with requirements of reciprocal discovery waived their right to assert error on appeal).

       OCGA § 17-8-57.

       The record is unclear as to why G. H. or counsel did not read the letter to the jury.

       (Citation and punctuation omitted.) Bolden v. State, 281 Ga. App. 258,260 (2) (636 SE2d 29) (2006). Accord Armour v. State, 315 Ga. App. 745, 748 (2) (728 SE2d 270) (2012).

        Bolden, supra; Armour, supra.

        Guajardo v. State, 290 Ga. 172, 175 (3) (718 SE2d 292) (2011).

       Id. at 175 (4).

       290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

        Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669) (2012).

       Kelly, supra at 34 (2) (b), n. 5.

       (Citation and punctuation omitted.) Griffin v. State, 262 Ga. App. 87, 89 (3) (585 SE2d 145) (2003).

        Haynes v. State, 281 Ga. App. 81, 82 (2) (b) (635 SE2d 370) (2006); Maxey v. State, 272 Ga. App. 800, 802 (1) (613 SE2d 236) (2005) (“In order to assert a statutory affirmative defense,. . . the defendant must admit all of the elements of the crime except intent.. ..”).

        Opio v. State, 283 Ga. App. 894, 899 (1) (d) (iii) (642 SE2d 906) (2007) (duly certified medical records did not need to be authenticated at trial).

        Fuller v. Flash Foods, 298 Ga. App. 217, 220 (2) (679 SE2d 775) (2009).

       (Citation omitted.) Green v. State, 301 Ga. App. 866, 869 (2) (689 SE2d 132) (2010). Accord Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987) (“Any ineffective counsel challenge will he deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can he heard at the earliest practicable moment, i.e., during the hearing on the amended motion”).

        Green, supra; Thompson, supra, 257 Ga. at 388 (2).


text:
    A12A1920.
    CENTRAL GEORGIA DEVELOPMENT GROUP, INC. et al. v. SYNOVUS BANK.
    (740 SE2d 812)
   Ray, Judge.

Central Georgia Development Group, Inc., Thomas Mark Willett and David Willett (collectively, the “Appellants”) appeal from an order of the Walton County Superior Court dismissing their notice of appeal for failure to pay timely the costs of the appeal. In several related enumerations of error, Appellants contend that the trial court abused its discretion in dismissing the appeal, arguing that the trial court erroneously determined that their delay in paying the bill of costs was prima facie unreasonable and that it was not authorized to exercise its discretion to deny Synovus Bank’s (the “Bank”) motion to dismiss. Appellants also contend that any delay in the payment of the bill of costs was not unreasonable because it did not delay their appeal or prejudice the Bank. We disagree and affirm.

The Bank sued Appellants seeking to collect on three promissory notes and guaranties. After discovery, the Bank filed a motion for partial summary judgment seeking recovery of the amounts owed. The trial court granted summary judgment in favor of the Bank, and the Appellants filed a notice of appeal on November 14, 2011.

The Clerk of the Walton County Superior Court mailed the bill of costs associated with the appeal to Appellants on December 12, 2011. The return receipt filed in the court’s clerk’s office shows that Appellants’ law firm received the bill of costs on December 14, 2011. On January 20, 2012, the Bank filed its motion to dismiss the appeal due to Appellants’ failure to pay timely the bill of costs. Appellants responded by admitting that their counsel’s law firm received the bill of costs on December 14, 2011, but asserting that Appellants’ counsel was unaware of the bill of costs until the first week of January. After receiving the motion to dismiss, Appellants paid the costs on January 20, 2012, which was 37 calendar days after receipt of the bill of costs.

The trial court held a hearing on the Bank’s motion to dismiss and considered evidence submitted by both parties. The trial court granted the Bank’s motion to dismiss, finding that Appellants’ delay in paying the costs was prima facie unreasonable and inexcusable, and that Appellants failed to rebut this prima facie presumption. Appellants then filed a notice of appeal with this Court seeking review of that order.

A trial court may dismiss an appeal, after notice and an opportunity for a hearing,

where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by a failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays, and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail or statutory overnight delivery, of the amount of costs.

Thus, OCGA § 5-6-48 (c) “requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then to exercise discretion in deciding whether to dismiss the appeal.” Atrial court’s decision to grant or deny a motion to dismiss an appeal under this. Code section is reviewed under an abuse of discretion standard.

1. In two enumerations of error, the Appellants argue that the trial court abused its discretion in calculating the number of days that Appellants were delayed in paying the bill of costs and in determining that Appellants did not present sufficient evidence to rebut the presumption that such delay was prima facie unreasonable. We disagree.

The period for determining the delays begins on the day notice is received from the trial court. “This Court has held that a delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable.” Here, the trial court measured the delay in calendar days between December 14,2011, when Appellants’ law firm received the bill of costs, and January 20, 2012, when the costs were paid, and found that the delay exceeded 30 days, and thus, was prima facie unreasonable.

Appellants contend that the exclusion of weekends and holidays applicable to the 20-day safe harbor provision provided by OCGA § 5-6-48 (c) should also apply to the trial court’s calculation of the 30-day period an appealing party has to pay the bill of costs, and thus, that their delay in paying the costs was shorter than 30 days. However, Appellants have cited no case law indicating that the 30-day period is to be calculated in any manner other than by calendar days. This Court has routinely calculated the delays in payment of costs by calendar days, not by business days. Further, this Court in Leonard v. Ognio held:

The exclusion of weekends and holidays applicable to the 20 day safe harbor provision has not been mentioned in the case law in connection with the calculation of time for the over 30 day period. Indeed in Continental Investment Corporation v. Cherry,[] this Court appears to have stated . . . that the exclusion of weekends and holidays is not applicable to a determination of the over 30 day period. Furthermore, a review of a calendar does not reveal any instances when the two rules so construed will be in conflict.

Applying these principles to the facts of the case sub judice, it is apparent that the Appellants delayed 37 days in paying costs and that such delay is prima facie unreasonable and inexcusable. However, “the inference arising from the more than the 30 day delay in paying costs is not conclusive and may be rebutted by evidence presented by an opposing party.” “When making factual determinations based upon evidence presented at a hearing on the question of dismissal, the trial court is vested with a broad discretion to decide whether the appeal shouldbe dismissed.” Absent an abuse of discretion, the trial court’s decision will not be disturbed on appeal.

Decided March 28, 2013.

Bloom, Sugarman & Everett, Troy R. Covington, for appellants.

Blasingame, Burch, Garrard & Ashley, E. Davison Burch, Thomas F. Hollingsworth III, for appellee.

At the hearing on the motion to dismiss, Appellants’ counsel attempted to rebut the prima facie presumption that the delay was unreasonable. He stated that although he had confirmed that his law firm did receive the bill of costs on December 14, 2011, neither he nor the counsel for other defendants were “aware of it until the first week of January of 2012. Where it was in the meantime, I honestly can’t provide you with an explanation today.” Appellants’ counsel further noted that he did not pay the bill of costs until a few weeks later when his firm received the motion to dismiss on January 20, 2012. On appeal, Appellants argue that the trial court misinterpreted the law as requiring “a ‘really good reason’ for any delay in order for the prima facie case of unreasonableness to be rebutted.” However, this Court has held in a number of cases with facts similar to these that where the delay was attributable to a law firm’s oversight or miscommunication, the trial court did not abuse its discretion in dismissing the appeal.

2. Based on our holding in Division 1, we need not address the Appellants’ remaining enumerations of error.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       We note that the trial court, in ruling that it “cannot exercise its discretion to deny the motion to dismiss the appeal,” stated that even if it were to exercise its discretion, that “the motion to dismiss would [still] be granted.”

       The Bank’s claims for attorney fees were still pending before the trial court, but were dismissed after the grant of its motion for partial summary judgment, thereby rendering the grant of the motion for partial summary judgment a final order.

       OCGA § 5-6-48 (c).

        Propst v. Morgan, 288 Ga. 862, 863 (708 SE2d 291) (2011).

       Id.

        Fun Fit Enterprises v. Halpern Enterprises, 273 Ga. App. 685, 686 (616 SE2d 466) (2005).

       (Citations and punctuation omitted.) Id.

       See Fun Fit Enterprises, supra (calculating delay as “57 calendar days from receipt of the trial court’s notice”); Hooper v. Southern Bell Telephone & Telegraph Co., 195 Ga. App. 629, 630 (2) (394 SE2d 798) (1990) (calculating delay of 54 calendar days from receipt of bill of costs); The Langdale Co. v. Langdale, 295 Ga. App. 372, 373 (671 SE2d 863) (2008) (calculating delay of 64 calendar days from receipt of bill of costs).

       201 Ga. App. 260 (410 SE2d 814) (1991).

       124 Ga. App. 863, 865 (1) (186 SE2d 301) (1971).

        Leonard, supra at 261. Appellants claim that the facts of the present case establish that the conflict contemplated by this Court in Leonard can exist. Appellants argue that when properly excluding weekends and legal holidays in calculating the 20-day statutory safe harbor period, the statutory deadline for payment of the bill of costs was January 13, 2012, the same date the bill of costs would be required to be filed under the 30-day period as calculated in calendar days. However, we see no conflict because it does not present a situation in which the 30-day period expired before the 20-day statutory safe harbor period.

       (Citation omitted.) Leonard, supra.

       (Punctuation and footnote omitted.) Park Regency Partners v. Gruber, 271 Ga. App. 66, 70 (1) (608 SE2d 667) (2004).

       Id.

       See, e.g., The Langdale Co., supra at 374 (finding that counsel’s explanation that the delay was a result of miscommunication between attorney and his secretary as to which company would pay the bill did not rebut the presumption that a 64-day delay was prima facie unreasonable); Park Regency Partners, supra at 70-71 (although a 47-day delay in paying was caused by law firm’s malfunctioning internal procedures, dismissal was upheld); McDonald v. Garden Svcs., 163 Ga. App. 851, 851-853 (295 SE2d 551) (1982) (dismissal upheld when payment of costs was delayed by four days and delay was attributed to a firm’s clerical error).


author: Branch, Judge.

text:
    A12A1972.
    HALL v. TOWN CREEK NEIGHBORHOOD ASSOCIATION.
    (740 SE2d 816)
   Branch, Judge.

The Town Creek Neighborhood Association filed this action against Danielle Hall in the State Court of Fulton County, seeking to recover amounts allegedly owed by Hall as special assessments levied by the Association against all homeowners in 2009 and 2010. Additionally, pursuant to the Association’s Declaration of Covenants, the Association also sought reasonable attorney fees. In her answer, Hall asserted that the power to levy assessments was vested in the Association’s board of directors, that either no such board was ever appointed or that it was otherwise illegally constituted, and that in the absence of a properly constituted board, the property developer was without authority to impose the assessments at issue. The trial court disagreed and entered an order granting summary judgment against Hall and in favor of the Association, and awarding the Association damages and attorney fees. Finding that the trial court erred in holding that the developer of the property was entitled to function as and in lieu of the Association’s board of directors, we reverse.

To be entitled to summary judgment, the moving party “must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law.” (Citation and punctuation omitted.) Beale v. O’Shea, 319 Ga. App. 1, 2 (735 SE2d 29) (2012). ‘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.) Samuels v. CBOCS, Inc., 319 Ga. App. 421 (734 SE2d 758) (2012).

The evidence in this case is undisputed and shows that the Association came into existence on September 28, 2006, when the developer of the property (the “Declarant”) filed a “Declaration of Covenants, Conditions and Restrictions for Town Creek.” The Covenants defined “Association” as the “Town Creek Neighborhood Association, Inc.”; defined “Board or Board of Directors” as “the elected body responsible for management and operation of the Association”; and defined “Bylaws” as “[t]he Bylaws of Town Creek Neighborhood Association, Inc., attached [hereto] as Exhibit ‘C’ and incorporated herein by this reference.” The Declarations also provided that “the Board of Directors shall have the power to make specific special assessments... in its discretion, as it shall deem appropriate.” Article III, § 2 of the Association’s Bylaws provides:

Declarant shall have exclusive authority to appoint and remove directors and officers until the earlier of: (1) seven (7) years after the recording of the Declaration, (2) [the] date as of which one hundred percent (100%) of the Lots shall have been conveyed by the Declarant to Owners other than a Person constituting the Declarant[,] unless Declarant at that time has an unexpired option to add Additional Property, or (3) the surrender in writing by Declarant of the authority to appoint and remove officers and directors of the Association.

After Hall filed her answer, the Association moved for summary judgment; in so doing, it conceded that no board of directors had ever been appointed. It argued, however, that the Declarant was entitled to act as the board of directors for the first seven years of the Association’s existence and therefore that the assessments were legal even in the absence of a board. In support of this argument, the Association relied on the above-quoted language from the Association’s Bylaws, as well as the affidavit of R. C. Shanks, an employee of Declarant who claims to serve as the property manager for the Association. Shanks averred that “[f]rom 2006 through the filing of this [affidavit], the Declarant, as authorized by the Declaration, acted as the Board of Directors,” and that “[i]n new homeowners [’] associations, it is very common for the Declarant to act as the Board of Directors.”

Following a hearing, the court below granted summary judgment in favor of the Association and against Hall, finding that Hall did not dispute that the Declaration of Covenants governing the Association was properly recorded with her title; that those Covenants authorized the imposition of special assessments by the Association’s board of directors; that under the Bylaws of the Association, the Declarant was entitled to appoint the board of directors for the first seven years of the Association’s existence; that in light of this provision granting the Declarant control of the board, the Declarant was not obligated to appoint a board; and that the assessments imposed by the Declarant, acting in lieu of the board, were legal.

Despite the arguments relied upon by both the Association and the trial court, the question in this case is not whether the Declarant had the authority to control the board or whether it is a “common practice,” in situations such as this, for the Declarant to act as and in lieu of the board. Rather, the question is whether, under these circumstances, the covenants permitted the Declarant to forego appointing a board and simply act in place of that board. We find that they do not.

The Declaration of Covenants states that its filing “does not and is not intended to submit the Property to the terms of the Georgia Property Owners’Association Act, OCGA § 44-3-220, et seq.” Accordingly, in construing those Covenants we apply the common law of covenants. See Georgia Jurisprudence, Property, § 6:80; Country Greens Village One Owner’s Assn. v. Meyers, 158 Ga. App. 609, 610 (281 SE2d 346) (1981). And under that law, the Declaration of Covenants is viewed as a contract; in interpreting that document, therefore, we apply the usual rules of contract construction. Southland Dev. Corp. v. Battle, 272 Ga. App. 211, 213-214 (612 SE2d 12) (2005). See also Sassafras Mountain Estates Property Owners Assn, v. Gould, 302 Ga. App. 690, 691 (1) (691 SE2d 600) (2010). Thus, if the language at issue is clear and unambiguous, our job is simply to apply that language as written. Southland Dev. Corp., supra at 213. Such is the case here.

As noted supra, the Association’s Bylaws, which are made a part of the Covenants, grant the Declarant the power to appoint and remove members of the board of directors for the first seven years of the Association’s existence. Neither the Declaration nor the Bylaws, however, state that the Declarant is not obligated to appoint a board or that the Declarant may act in lieu of the board. Thus, it is clear that the Declaration contemplated the creation of a board of directors, as well as the legal and procedural safeguards the creation of such a board would provide to the property owners. See Saunders v. Thorn Woode Partnership, 265 Ga. 703, 704 (2) (462 SE2d 135) (1995) (recognizing that the board of directors of a homeowners’ association is legally required to exercise its authority in a way that is “procedurally fair and reasonable,” to make its “substantive decision[s] ... in good faith,” and to make decisions that are “reasonable and not arbitrary [or] capricious”) (citation omitted); Bailey v. Stonecrest Condo. Assn., 304 Ga. App. 484, 494 (3) (696 SE2d 462) (2010) (recognizing that members of a homeowners’ association’s board of directors may be held liable for breach of fiduciary duty).

Decided March 28, 2013.

Michael C. Jones, for appellant.

Lazega & Johanson, Karen L. Smiley, for appellee.

Given that no board of directors was ever appointed, there was no body that had the authority to levy the assessments at issue. Under the terms of the Declaration of Covenants, therefore, Hall was not required to pay those assessments. The order of the trial court granting summary judgment against Hall and awarding the Association monetary damages and attorney fees is reversed. On remand, judgment should be entered in favor of Hall on the Association’s complaint. We leave it for the trial court to determine whether Hall is entitled to an award of attorney fees.

Judgment reversed and case remanded with direction.

Miller, P. J., and Ray, J., concur.

       The Association also named Jejuan Hall as a co-defendant in this action, hut it subsequently dismissed its claim against Mr. Hall, and he is not a party to this appeal.

       The original developer of the property was Bethlehem Road, LLC, which later transferred its rights in and title to the development to Atrias Homes and Communities.

       No copy of the Association’s Bylaws appears in the appellate record. We are therefore relying on the language quoted in the trial court’s order and upon which it relied in granting the Association’s motion for summary judgment. The trial court order identifies that language as being Article III, § 2 of the Bylaws. Hall does not dispute the accuracy of this language or the fact that it is found in Article III, § 2 of the Bylaws. The Association declined to file a brief in this case.


author: BAKNES, Presiding Judge.

text:
    A12A2041.
    SIMON v. THE STATE.
    (740 SE2d 819)
   BAKNES, Presiding Judge.

Following a jury trial, Christopher Simon was found guilty but mentally ill of two counts of aggravated assault, two counts of aggravated battery, three counts of obstruction of an officer, and two counts of theft by shoplifting. Following the denial of his motion for new trial, he appeals, contending that the trial court erred in failing to direct a verdict of not guilty by reason of insanity pursuant to OCGA § 16-3-3 (delusional compulsion) and in failing to accurately respond to a jury note about his level of burden to establish insanity. He further contends that his trial counsel was ineffective. For the reasons presented below, we affirm.

[Simon] may be found “not guilty by reason of insanity at the time of the crime” if he meets the criteria of... [OCGA §] 16-3-3 (acted because of a delusional compulsion which overmastered [Simon’s] will to resist committing the crime) at the time of the commission of the crime. OCGA § 17-7-131 (c) (1). The appropriate standard of appellate review is whether the evidence, when construed most favorably for the State, would be sufficient to authorize a rational trier of fact to find that [Simon] failed to prove by a preponderance of the evidence that he was insane at the time of the crimes.

(Citations and punctuation omitted.) Rodriguez v. State, 271 Ga. 40, 42 (1) (518 SE2d 131) (1999).

So viewed, the evidence shows that on September 14, 2008, a clerk at a Quick Thrift convenience store observed Simon enter the store, take two packages of gum from the candy aisle, put them in his pocket, and walk out. Simon did not respond when the clerk asked if he was going to pay; instead, he continued walking out of the store. The clerk followed Simon outside and was able to get his tag number. As the clerk walked back into the store, Simon suddenly drove forward and struck her with the front of his car, then “put the car in reverse and backed out [of the parking lot].” The clerk’s back was injured.

A short time later, Simon entered a BP gas station, took a package of cigars from the counter and walked toward the door. When the store owner told him to pay for the cigars, Simon cursed him, told him that he did not have to pay, and walked out of the store. The owner followed Simon out of the store with pen and paper to write down his tag number. As the owner stood near the front of the store, Simon drove his car toward the owner, struck him with the car, and drove away. The owner suffered multiple fractures in both legs.

Police responded to the incidents, and a vehicle pursuit involving Simon and the police ensued through Cobb County, which was finally resolved when Simon’s car was disabled by a police “ramming” maneuver. After his car was disabled, Simon got out of his car, approached the nearest police vehicle, and started punching the officer through the open car window. The officer suffered a fractured facial bone and cracked orbital socket. Simon struggled with several officers until he was finally subdued by pepper spray. While in custody, Simon apologized and told the police that a friend gave him “laced” marijuana.

1. Simon contends that the evidence was overwhelming that he was insane pursuant to OCGA § 16-3-3, acting under a delusional compulsion, and therefore the trial court erred in not directing a verdict of not guilty by reason of insanity. Simon’s defense at trial was that he was insane and not responsible for his actions because he was acting upon a delusional compulsion.

In Georgia, a person is not legally insane simply because he suffers from schizophrenia or a psychosis. Rather, a defendant is not guilty by reason of insanity if, at the time of the criminal act, the defendant did not have the mental capacity to distinguish between right and wrong in relation to such act or a mental disease caused a delusional compulsion that overmastered his will to resist committing the crime. OCGA §§ 16-3-2, 16-3-3.

(Citations and punctuation omitted.) Alvelo v. State, 290 Ga. 609, 612 (3) (724 SE2d 377) (2012). Furthermore, “[a] finding of insanity based upon OCGA § 16-3-3 requires proof that (1) the accused acted under a delusional compulsion; (2) the criminal act was connected with the delusion; and (3) the delusion related to a fact which, if true, would have justified the act.” Appling v. State, 222 Ga. App. 327, 329 (3) (474 SE2d 237) (1996).

When a delusional compulsion is the basis of an insanity defense, the delusion must be one that, if it had been true, would have justified the defendant’s actions. Defendants are presumed sane, and a defendant claiming insanity bears the burden to prove his insanity by a preponderance of the evidence.

(Citation and punctuation omitted.) Alvelo, 290 Ga. at 612 (3).

At the trial, Simon’s mother testified that Simon was 20 years old, lived at home, and had started exhibiting disturbing behavior a couple of weeks before the incident. Simon had not had any treatments for mental health issues before 2008, but, according to the mother’s testimony, in high school he was an introvert, never went to school activities, did not have a girlfriend, and “stayed at home . . . always on the computer.” The mother testified that Simon’s behavior changed dramatically in September 2008, including excessive spending sprees, not sleeping or eating, referring to his mother as the devil, and feeling that people were after him. She further testified that as his bizarre behavior increased, she became increasingly afraid of Simon, and believed that he might be “possessed” or that he was under “spiritual attack.”

The mother testified that on September 12,2008, two days before Simon’s arrest, he banged on his parents’ bedroom door, proclaiming that “he was Jesus, that he had been hiding inside [Simon’s] body until now.” The police were called, and Simon was later transported by ambulance to the hospital for observation. The mother further testified that, although she believed that Simon would be admitted, later that evening she found him in the hospital parking lot and he told her that he had been released, so she took him home. She recalled that her husband was fearful for her because Simon continued to refer to her as Lucifer, and that she spent the night before the incident away from home. When she talked to Simon the morning of the incident, he told her he was at a friend’s house, that he had a very bad headache, and that he wanted to be baptized and “saved.” She did not hear from Simon again until police called her after his arrest.

Simon’s expert forensic psychologist diagnosed him with schizophrenia, schizoaffective disorder — a disorder that manifests symptoms of both bipolar disorder and schizophrenia — and cannabis dependency. He testified that he believed Simon

did suffer from a delusional compulsion. I believe that he — his delusional belief was so strongthatit over[-]masteredhis will to resist . . . doing the things that he did because the delusions so impacted on his ability to see things accurately, so impacted on his reality that he was behaving as though all the things he believed were real.

He further testified that although Simon told him that he had smoked marijuana heavily since he was 17 years old, the marijuana use was incidental to the schizophrenia diagnosis, “[s]o if a person has schizophrenia and then smokes marijuana, they don’t have cannabis-induced psychotic disorder. They have schizophrenia smoking marijuana.” He opined that Simon’s delusional compulsions were evident in his crimes in that he attacked the police rather than attempting to evade arrest because “[h]is goal was to get to a church to thwart these evil demons.”

The State’s expert testified that he was unable to conclude that Simon was insane because Simon confessed that he had smoked marijuana and “even if there was a psychotic feature, it’s masked by the fact that he voluntarily altered his state of mind.” He further testified:

[I]f there was a delusional compulsion that overmasters his will to resist committing any offense, then I am able to render an opinion and advise the court that, from a psychological standpoint he was insane at the time of the act or he was not mentally competent at the time of the crime for which he’s charged. But in view of the fact that he had voluntarily ingested a mind-altering substance, I’m precluded from saying that.

Although the evidence shows Simon suffered from a mental illness, this is insufficient to establish legal insanity under Georgia law. Rogers v. State, 195 Ga. App. 446, 447-448 (2) (394 SE2d 116) (1990). In this case, there were circumstances which would have authorized a rational trier of fact to reject the testimony of Simon’s expert to the effect that Simon was acting under the influences of a delusional compulsion that if true would have justified his actions.

Jurors are not bound by the opinions of expert witnesses regarding a defendant’s sanity; instead, they may rely on the rebuttable presumption of sanity, unless the proof of insanity is overwhelming. Keener v. State, 254 Ga. 699, 701 (1) (334 SE2d 175) (1985). The evidence did not clearly establish a delusion “as to a fact which, if true, would justify the act.” Brown v. State, 228 Ga. 215, 217-218 (2) (184 SE2d 655) (1971); see Rodriguez, 271 Ga. at 43 (1) (evidence supported finding that shooting was not connected to the defendant’s delusions). Moreover, that Simon apologized to police when he was in custody and said that he was acting under the effects of “laced” marijuana suggested a guilty conscience and a rational awareness of actions rather than actions driven by a delusional compulsion. See, e.g., Collins v. State, 283 Ga. App. 188, 191 (1) (a) (641 SE2d 208) (2007) (flight “can serve as circumstantial evidence of guilt”); Johnson v. State, 255 Ga. App. 721, 722 (2) (566 SE2d 440) (2002) (“a defendant’s attempt to influence a witness ... is evidence of consciousness of guilt”).

Considering the evidence in the light most favorable to the verdict, we are constrained to hold that Simon was not entitled to a directed verdict of acquittal on the basis of his insanity defense.

2. Simon next contends that the trial court deprived him of due process of law in that it failed to accurately respond to a note from the jury during its deliberation that demonstrated that the jury misunderstood Simon’s burden of proof to establish insanity by delusional compulsion. We do not agree.

During the second day of deliberations, the jury sent the following note to the trial court:

We are all mostly of an accord, but 2 people are seeing things differently. I am thinking that if you could instruct us on the legal definition of insanity and reiterate that everyone is presumed sane, this would help us to focus on this key issue. The defense has the burden of proving beyond a reasonable doubt that the defendant was (legally) insane at the time the events happened — this burden should revolve around presenting evidence not just theorizing. (Correct?) I am very concerned that most of us are of the same mind, but several are not. I intend to take the various precise aspects of insanity and go through those — I want us to come to a unified, clear decision.

The trial court refused to verbally recharge the jury on the insanity defense as requested by Simon. Instead it advised the parties:

[W]hat I’m going to essentially say is, all I can do is reread the charge, and you have it, but the charge sets out the procedure where you start, what the defendant’s burden is if he raises a certain issue and what his level he has [sic] to raise it, preponderance, and then what the State’s burden is to either overcome that, to prove it or disprove it.

After instructing the jury that it would not “reread [the jury charge] because it’s there,” and that it could not emphasize one part of the charge as opposed to another part, the trial court then referred the jury to the written charge and instructed the jury:

[T]he charge itself lays out where you start and what the burdens are on each party, if there are any burdens. And you need to just chart it out like a flow chart, where do you start, what’s the State’s burden. If the defense raises an issue, what is its burden, and then what’s the State’s burden to overcome it.

Although Simon contends on appeal that the trial court should have reread the charge to correct the jury’s statement about his burden of proof, we find no error with the trial court’s action in instructing the jury as it did. The trial court instructed the jury to reference and apply the burden as outlined in the charge. It also advised that a flow chart outlining the various burdens might prove helpful. The written charge provided to the jury clearly indicated that Simon’s burden of proof required to establish his defense of insanity was a preponderance of the evidence. Accordingly, we discern no error by the trial court. Accord Cotton v. State, 279 Ga. 358, 359 (3) (613 SE2d 628) (2005) (“because of the jurors’ difficulty in distinguishing between felony murder and voluntary manslaughter, providing them with written instructions was particularly appropriate”).

3. In two enumerations of error, Simon contends that his trial counsel was ineffective. He argues that trial counsel was ineffective for requesting only the general pattern instructions on insanity, which included both forms of insanity — mental incapacity to distinguish between right and wrong and delusional compulsion. And, in a related enumeration, he contends that his trial counsel was ineffective for failing to request a jury charge specifically addressing the burden of proof required to establish his defense of insanity by delusional compulsion.

Decided March 28, 2013

FI. Maddox Kilgore, for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, D. Victor Reynolds, Assistant District Attorneys, for appellee.

[I]n order to prevail on a claim of ineffective assistance of counsel, [Simon] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of that test, he must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of the proceeding would have been different. We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Woods v. State, 291 Ga. 804, 805-806 (2) (733 SE2d 730) (2012).

We discern no error. Contrary to Simon’s assertions, the trial court’s charge specifically explained that “the defendant has the burden of proving insanity by a preponderance of the evidence,” and defined preponderance of the evidence as “evidence on the issues involved that, while not enough to free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” Where, as here, “the jury was properly instructed on the law of insanity, counsel cannot be deemed ineffective for failing to seek alternative instructions.” Rodriguez, 271 Ga. at 45 (5) (a).

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       Pursuant to OCGA § 16-3-3:
      A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.

       Marijuana was found in Simon’s blood samples, but no other drugs.


text:
    A12A2182.
    ALTMAN et al. v. PILCHER et al.
    (740 SE2d 866)
   MILLER, Presiding Judge.

James W. Pilcher, Jr., and F. Barry Hodges III (Pilcher and Hodges) filed suit against Charles B. Altman, Jr.; the Estate of Charles B. Altman, Sr.; Charles B. Altman, Jr., Executor; and Altman Pontiac Buick Co., Inc. (the Altman parties) to enforce a settlement agreement. Following discovery, Pilcher and Hodges filed a motion seeking specific performance of their claim to convey real estate and damages provided for under the settlement agreement. After conducting a hearing, the trial court ordered the Altman parties to convey real estate and to pay damages, including interest and attorney fees. In its order, the trial court acknowledged that it had not disposed of all pending claims, but certified its order as final under OCGA § 9-11-54 (b). The Altman parties appeal, claiming that the trial court erred by requiring them to convey property to Pilcher and Hodges by warranty deed, finding that the settlement agreement required them to pay certain amounts, including interest and attorney fees, and concluding that the Estate of Charles B. Altman, Sr. (the Altman Estate) had made distributions during the pendency of the underlying action. For reasons that follow, we affirm in part and reverse in part and remand the case to the trial court for further proceedings consistent with this opinion.

The settlement agreement was designed to settle all disputes between the parties and to resolve prior protracted litigation. The agreement showed that Altman Pontiac Buick was the owner of certain real property against which Pilcher and Hodges held a lien. The agreement provided that the parties would try to sell that property and that Pilcher and Hodges would be paid the first $347,170 from the sale, with the remaining proceeds to be divided equally among the parties. If the property did not sell after four months, Charles B. Altman, Jr., and the Altman Estate (the Altmans) would be required to pay $2,300 a month, with the payments applied to a bank loan taken out by Pilcher and Hodges. If the property did not sell within 12 months, the Altmans had the first option to purchase the property by paying $500,000 to Pilcher and Hodges. If the Altmans did not exercise that option, they were to convey all of their interests in the property to Pilcher and Hodges and to sign all documents necessary to cause Altman Pontiac Buick to convey its interest in the property to Pilcher and Hodges. The $2,300 monthly payments were to begin on March 5, 2010 and continue until the property was either sold to a third party, purchased by the Altmans, or conveyed to Pilcher and Hodges. The parties also agreed that they would each pay 50 percent of all ad valorem taxes now due and future ad valorem taxes when they became due.

The property did not sell within 12 months, and the Altman parties did not exercise their option to purchase the property. Pilcher and Hodges brought suit, seeking to require the Altman parties to convey their interests in the property. They also alleged that the Altman parties had not paid the 2010 or 2011 ad valorem taxes or made the $2,300 monthly payments since October 2010, and sought to recover those amounts, with interest, and attorney fees. The Altman parties denied that Pilcher and Hodges were entitled to any relief sought in the complaint.

1. The Altman parties contend that the trial court erred by requiring them to convey the property to Pilcher and Hodges by warranty deed because the settlement agreement only requires them to convey the property and does not designate the specific method of conveyance. They argue that they cannot convey the property by warranty deed because liens remain on the property, including liens placed by Pilcher and Hodges after the trial court issued its order. They also contend that they attempted to convey the property after the trial court issued its order with a quitclaim deed from Altman Pontiac Buick to Pilcher and Hodges.

Settlement agreements “are highly favored under the law and will be upheld whenever possible as a means of resolving uncertainties and preventing lawsuits.” (Punctuation and footnote omitted.) Triple Eagle Assoc. v. PBK, Inc., 307 Ga. App. 17, 20 (2) (704 SE2d 189) (2010). A settlement agreement is deemed to be “sufficiently definite and certain if it contains matters which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves.” (Punctuation and footnote omitted.) Id.

Here, the settlement agreement required the Altmans to convey all of their interest in the property to Pilcher and Hodges. The trial court ordered them to do whatever was necessary to convey the property by warranty deed within 30 days of its order. The settlement agreement also required the Altmans to sign all documents necessary to cause Altman Pontiac Buick to convey its interest in the property to Pilcher and Hodges, and the trial court ordered them to comply with this provision within 30 days of its order. Although the Altman parties argue that they attempted to convey the property by quitclaim deed after the trial court had entered its order,

we cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court. Appellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal.

(Citation and punctuation omitted.) Paul v. Joseph, 212 Ga. App. 122, 125 (2) (441 SE2d 762) (1994).

Based on the clear terms of the settlement agreement, we affirm the trial court’s order requiring the Altman parties to convey the property to Pilcher and Hodges. The settlement agreement does not, however, require the Altman parties to convey the property by warranty deed. It requires that they convey all of their interests in the property, and this can be accomplished by a quitclaim deed, which releases “to the grantee without warranty all the right, title or interest of the grantor in the land described,” and when “properly drawn and executed, it is fully as effective to pass title as a warranty deed.” (Emphasis supplied.) 2 Pindar’s Ga. Real Estate Law & Procedure § 19-5 (6th ed. 2004); see also Horn v. Gilley, 263 Ga. 104, 105 (428 SE2d 568) (1993) (“If the grantor has title to or an interest in land, a deed of quitclaim is just as effective to pass that title as a deed with covenants of warranty.”).

2. The Altman parties contend that the trial court erred by determining that the settlement agreement required them to make the $2,300 monthly payments for more than 12 months after the property was first listed for sale. This contention is contrary to the plain language of the settlement agreement, which provides that the payments are to begin on March 5, 2010 and continue every month until either the property is sold to a third party, purchased by the Altmans’ exercise of their option to purchase, or conveyed by the Altman parties to Pilcher and Hodges. We therefore affirm the trial court’s order requiring the Altman parties to continue the $2,300 monthly payments until the property is transferred.

3. The Altman parties claim that the trial court erred by requiring them to pay ad valorem taxes for 2011 because the settlement agreement only required them to pay taxes that accrued within 12 months after the property was first listed for sale. Again, this is contrary to the language of the settlement agreement, which requires the parties to pay 50 percent of “all ad valorem taxes now due and future ad valorem taxes as and when due.” Adopting the Altman parties’ argument would require us to ignore the words “and future ad valorem taxes as and when due.” “It is a cardinal rule of contract construction that a court should, if possible, construe a contract so as not to render any of its provisions meaningless and in a manner that gives effect to all of the contractual terms.” (Punctuation and footnote omitted.) NW Parkway, LLC v. Lemser, 309 Ga. App. 172, 176 (2) (709 SE2d 858) (2011). Thus, we affirm the trial court’s order requiring the Altman parties to pay ad valorem taxes for 2010 and 2011.

4. The trial court awarded interest on the $2,300 monthly payments and the ad valorem taxes at a rate of 7 percent. The Altman parties do not challenge the award of interest itself, but claim that to the extent this Court reduces or eliminates the damages awards, any prejudgment interest must also be reduced or eliminated. Given our determination that those damages awards should be upheld, we need not address this claim.

5. The Altman parties contend that the trial court erred in awarding attorney fees and expenses pursuant to a provision of the settlement agreement. They argue that the provision is not enforceable, and that even if it is deemed enforceable, the trial court improperly calculated the amounts due.

(a) The trial court properly determined that attorney fees are recoverable under the settlement agreement. “Generally an award of attorney fees is not available unless supported by statute or contract.” Cason v. Cason, 281 Ga. 296, 299 (3) (637 SE2d 716) (2006). Here, the settlement agreement specifically provides that “[attorney fees shall be assessed against any party defaulting under this contract in the amount of fifteen percent (15%) of all principal] and interest then due and owing. Any default shall authorize an acceleration of all obligations to pay and perform hereunder.” There is no dispute that the Altman parties defaulted under the agreement. They are therefore obligated to pay attorney fees as provided in the agreement. See Haley v. Haley, 282 Ga. 204, 205 (647 SE2d 10) (2007).

(b) Although the settlement agreement provided for attorney fees, the trial court erred in determining the amount of attorney fees owed. The amount “then due and owing” included the $2,300 monthly payments and 50 percent of the ad valorem taxes, but did not include the $347,170 set forth on Exhibit B to the settlement agreement. Specifically, the agreement provided that if the property had been sold to a third party, the first $347,170.64 was to be paid to Pilcher and Hodges from the sales proceeds. Any remaining proceeds were to be divided equally among all parties to the agreement. The $347,170 amount was not “then due and owing” under the agreement until the property sold. Thus, it should not have been included in the calculation of attorney fees. We therefore reverse the trial court’s award of attorney fees and remand for the court to recalculate the amount of fees owed in a manner consistent with this opinion.

Decided March 28, 2013.

H. Lehman Franklin, Jr., for appellants.

Coppedge & Evans, Warren N. Coppedge, Jr., W. Scott Brannen, for appellees.

6. The Altman parties contend that the trial court erred in finding that the Altman Estate had made distributions during the pendency of this action. They do not contest that the distributions were made, but argue that they were made prior to the filing of the complaint in this action. Pilcher and Hodges agree that the trial court inaccurately set forth the timing of these distributions and have no objection to the correction of this error. Although the challenged finding was not necessary to any of the trial court’s rulings addressed here, we instruct the trial court to correct this date on remand for purposes of any future proceedings.

Judgment affirmed in part and reversed in part, and case remanded.

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

       On remand, the trial court may update the amounts owed to account for any conveyance that took place after its order was issued.

       The parties agreed not to make any claim for attorney fees under OCGA § 9-15-14forany act occurring prior to the date of closing.

       The trial court included more than one basis for its determination that attorney fees are owed, but we need not address each one because a judgment right for any reason must be affirmed. Sugarloaf Mills Ltd. Partnership v. Record Town, 306 Ga. App. 263, 267 (3) (701 SE2d 881) (2010).


author: McEadden, Judge.

text:
    A12A2217.
    CLAYTON COUNTY et al. v. AUSTIN-POWELL. McCOBB et al. v. CLAYTON COUNTY.
    A13A0034.
    (740 SE2d 831)
   McEadden, Judge.

Sherri McCobb and Rollie Austin-Powell brought separate wrongful death actions against Clayton County, alleging that the improper conduct of a county police officer during a high-speed chase of a car caused the deaths of their sons who were passengers in the car. McCobb and Austin-Powell, represented by the same attorneys, filed identical motions for discovery sanctions based on alleged spoliation of evidence. The motions were ruled upon by different trial court judges. The trial court in McCobb’s case denied the motion for sanctions due to spoliation and also granted summary judgment to the county. The trial court in Austin-Powell’s case granted the motion for sanctions due to spoliation and also granted partial summary judgment to Austin-Powell on the issue of liability. Because the appeals from these rulings arise from the same underlying incident and involve similar issues, we consider them together.

In Case No. A13A0034, McCobb appeals from the order denying her spoliation motion and granting summary judgment to the county. We affirm the denial of the spoliation motion since there was no spoliation of evidence. However, we reverse the grant of summary judgment to the county because the trial court’s conclusion that there existed no genuine issue of material fact was founded on an erroneous analysis of OCGA § 40-6-6, the statute granting certain driving privileges to police officers in emergency situations. In Case No. A12A2217, the county appeals from the trial court order granting Austin-Powell’s spoliation motion and granting partial summary judgment to her. Because, as in McCobb’s case, there was no spoliation of evidence, we reverse the spoliation ruling. We also reverse the summary judgment ruling because no proper summary judgment motion was before the trial court.

Case No. A13A0034

1. Grant of summary judgment to the county.

McCobb contends that the trial court improperly granted summary judgment to the county based on its erroneous finding that an innocent passenger in a fleeing vehicle is a “fleeing suspect” whose claim is not afforded the protections of OCGA § 40-6-6 (d) (2). We agree and therefore reverse that ruling.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). On appeal, we conduct a “de novo review of the grant of a motion for summary judgment [and] must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant. [Cit.]” (Punctuation omitted.) Id. at 624 (1) (a).

So viewed, the evidence shows that on the night of February 25, 2007, several teenagers, including McCobb’s son Larry Smith, Jr., got into a car driven by Obi Bailey for a ride to a nearby movie theater. Smith did not know Bailey, but one of Smith’s friends knew him and convinced Smith to get in the car. Thereafter, Clayton County police lieutenant Scott’ Stubbs pulled over the car for allegedly being operated without its headlights. Using his public address system, Lieutenant Stubbs told the driver to get out of the vehicle with his driver’s license and insurance card, but Bailey did not comply and instead drove away from the scene. Lieutenant Stubbs pursued the car, during which he learned from a police dispatcher that it had been reported stolen. During the pursuit the passengers, including Smith, pleaded with Bailey to pull over. The high-speed chase ended when the car crashed into a tree in a residential neighborhood. Smith was seriously injured and later died as a result of the collision.

OCGA § 40-6-6 (a) and (b) provide that a police officer pursuing a suspected violator of the law may exercise certain driving privileges, such as proceeding past a stop light or exceeding the speed limit so long as he does not endanger life or property. OCGA § 40-6-6 (d) (2) further provides:

When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. . . .

In City of Winder v. McDougald, 276 Ga. 866 (583 SE2d 879) (2003), our Supreme Court held that this Code section provides some protection for innocent parties.

By imposing a reckless disregard standard in place of [a] negligence standard . . . , the legislature narrowed the circumstances in which an innocent party injured by a fleeing suspect could recover from the [local government]. Because the legislature enacted subsection (d) (2) to limit liability when a fleeing suspect injures an innocent person, we conclude that the legislature did not intend simultaneously to expand liability to cover injuries to the fleeing suspect.

Id. at 867. The Court went on to explain that this holding was consistent with interpretations of a prior version of the statute, which

emphasized the public policy of protecting innocent third parties, stating that while it is desirable that the officer overtake and apprehend the criminal, it is equally as important that innocent persons, whether or not connected with the emergency to be met, not be maimed or killed in the operation.

(Citation, punctuation and emphasis omitted.) Id. Thus, while an innocent person may recover for injuries by showing an officer acted with reckless disregard pursuant to OCGA § 40-6-6 (d) (2), a fleeing suspect may recover only by showing “an officer act[ed] with an actual intent to cause injury.” (Citation omitted.) Id. at 868.

In granting summary judgment to the county, the trial court found that Smith was a fleeing suspect not entitled to the protections of OCGA § 40-6-6 (d) (2) and that McCobb had failed to show that there is an issue of fact as to whether Lieutenant Stubbs acted with malice or actual intent to harm. However, contrary to the triabcourt’s ruling, there is no evidence that Smith fled or in any way encouraged Bailey’s decision to flee. Rather, the evidence shows that Smith did not know Bailey, that he merely got in the car to join his friends for a ride to a movie, that he did not know Bailey would flee from the officer, and that during the high-speed chase he and other passengers pleaded with Bailey to stop. Thus, construed in favor of the nonmoving party, the evidence shows, at the very least, that there exists a question of fact as to whether Smith was an innocent passenger trapped in the vehicle driven by fleeing suspect Bailey. In holding otherwise, the trial court improperly relied on the concept of reasonable suspicion authorizing an officer to stop a vehicle, rather than the plain language of OCGA § 40-6-6 (d) (2) and the holding in City of Winder that the Code section applies to innocent parties. Regardless of any reasonable suspicion authorizing the stop of Bailey, there is no evidence in the record that Smith was anything more than an innocent passenger trapped in the vehicle driven by the fleeing suspect Bailey. And the fact that the car was reportedly stolen did not transform Smith into a fleeing suspect for purposes of OCGA § 40-6-6 (d) (2). On the contrary, as explained in City of Winder, the public policy embodied by this Code section is the protection of innocent parties, and such protection applies “whether or not [such innocent parties are] connected with the emergency to be met[.]” (Emphasis supplied.) Id. at 867. Thus, even though Smith was connected with the emergency as a passenger in the car, there is a genuine issue of material fact as to whether he was an innocent party as contemplated by OCGA § 40-6-6 (d) (2).

We note further that although there apparently is no Georgia case directly on point concerning innocent passengers, courts in other jurisdictions have reached the same conclusion in similar cases. For example, in Chambers v. City of Lancaster, 843 SW2d 143 (Tex. App. 1992), reversed in part on other grounds, City of Lancaster v. Chambers, 883 SW2d 650 (Tex. 1994), the Texas Court of Appeals denied summary judgment to a municipality while holding that a passenger on a fleeing motorcycle, like innocent bystanders in other cases, had “the misfortune of having been in the wrong place at the wrong time.” Id. at 147. Similarly, the Supreme Court of Michigan has

conclude [d] that it is irrelevant whether a wrongdoer is a driver or a passenger or whether an innocent person is inside or outside the vehicle.... [W] hat ever their location, there is a duty to innocent persons, but not to wrongdoers. In other words, the police owe a duty to innocent persons whether those persons are inside or outside the vehicle.

Robinson v. City of Detroit, 613 NW2d 307, 314 (III) (Mich. 2000). The court in Robinson further noted that its conclusion was consistent with a state statute which, like OCGA § 40-6-6 (d) (2), “does not exempt the police from the consequences of a reckless disregard of the safety of others.” (Punctuation omitted.) Id.

We likewise conclude that the protection afforded innocent persons pursuant to OCGA § 40-6-6 (d) (2) applies whether the innocent person is outside the vehicle or is an innocent passenger in it. Because there exist issues of fact as to whether Smith was an innocent person killed during the officer’s pursuit of a fleeing suspect, the trial court’s summary judgment ruling to the contrary was erroneous and must be reversed.

2. Denial of motion for sanctions due to spoliation of evidence. “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Such conduct creates the presumption that the evidence would have been harmful to the spoliator.” (Citations and punctuation omitted.) Baxley v. Hakiel Indus., 282 Ga. 312, 313 (647 SE2d 29) (2007). McCobb claims that Lieutenant Stubbs’ failure to have a working videotape in his police vehicle and failure to record the chase constituted spoliation. However, “[i]t is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party. [Cits.]” Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 847 (2) (c) (734 SE2d 818) (2012). Thus, as the trial court correctly recognized, the evidence in question never “existed as the pursuit was not recorded,” and therefore it could not have been spoliated.

The trial court further noted that, in McCobb’s reply brief to the county’s response to the motion, she advanced an alternative theory that a tape may have existed but the officer destroyed it. However, the trial court found that this theory was “unsubstantiated in the record, and in fact, [McCobb] had previously asserted that it is ‘undisputed that Lt. Stubbs did not record the encounter with the . . . vehicle on tape.’ ”

Regardless, as recited above, spoliation refers to the destruction of or failure to preserve evidence that is necessary to contemplated or pending litigation. Baxley, supra.

But notice of potential liability is not the same as notice of potential litigation. To meet the standard for proving spoliation, the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation. The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.

(Citations and punctuation omitted; emphasis in original.) Craig v. Bailey Brothers Realty, 304 Ga. App. 794, 796-797 (1) (697 SE2d 888) (2010). Here, McCobb states in her brief that the “critical video evidence was spoliated within two days” of the incident. At that point, it is undisputed that there was no pending litigation or notice that McCobb was contemplating litigation, and instead there was only the fact that Smith was injured in the accident. “The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse. [Cit.]” Powers v. Southern Family Markets of Eastman, 320 Ga. App. 478, 479 (1) (740 SE2d 214) (2013). Here, because the county had no notice that litigation was pending or contemplated at the time the video evidence allegedly was destroyed or not preserved, the trial court did not abuse its discretion in finding that no spoliation occurred. Id.

3. Partial summary judgment.

McCobb enumerates that the trial court should have granted her motion for partial summary judgment on the merits as to the issue of liability. However, she did not file a motion for partial summary judgment on the merits. Rather, she filed a motion for sanctions based on alleged spoliation of evidence, and in that motion she requested partial summary judgment as the sanction to be imposed for the alleged discovery abuse. But nowhere in that spoliation motion did she also move for summary judgment on the merits. There is no magic in nomenclature, and we judge motions not by their name, but by their function and substance. Nelson & Hill v. Wood, 245 Ga. App. 60, 64 (1) (537 SE2d 670) (2000). Here, regardless of nomenclature, the clear function and substance of McCobb’s motion was to seek imposition of sanctions for spoliation, not summary judgment on the merits.

McCobb did not attempt to inject summary judgment on the merits into her spoliation motion until after the county had filed its response to the motion. McCobb then filed a reply brief in which she primarily reiterated her spoliation arguments, but also claimed, for the first time, that she was entitled to partial summary judgment on the merits as to liability. But such an argument set forth for the first time in a reply brief does not constitute a proper motion for summary judgment. Rather, a motion for summary judgment must “be served at least 30 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.” OCGA § 9-11-56 (c).

[A] n argument advanced in a reply brief is not one made with specificity, by motion... . [B]riefs and motions are different creatures, and we do not think it appropriate to construe the reply brief here ... as a brand new motion [for summary judgment], the filing of which would have triggered the running of a period of [at least] 30 days [before a hearing and] in which [the county] might have [filed] affidavits. To require [a defendant] to treat a [reply] brief filed in support of a [plaintiff’s] motion [for spoliation sanctions] as a brand new motion [for summary judgment] would lead to tremendous inefficiencies, and in any event, would be inconsistent with the statutory requirement that “[a]n application to the court for an order shall be by motion,” OCGA § 9-11-7 (b) (1), a requirement that suggests . . . that motions and other papers filed with a court are different in kind.

Ndlovu v. Pham, 314 Ga. App. 337, 343, n. 9 (723 SE2d 729) (2012). Accordingly, because there was no motion for partial summary judgment on the merits, we find no error.

Case No. A12A2217

4. Grant of motion for sanctions due to alleged spoliation of evidence.

The trial court granted Austin-Powell’s spoliation of evidence motion, which was identical to the motion filed by McCobb, and imposed the sanction that the county was “precluded from presenting expert witnesses to testify in any respect about the evidence.” The county argues that the trial court abused its discretion in granting the motion and imposing discovery sanctions because there was no video of the pursuit to spoliate and the county had no notice that Austin-Powell was contemplating litigation at the time of the alleged spoliation. We agree, and for the reasons discussed above in Division 2, we conclude that the trial court did abuse its discretion in granting the spoliation motion. Accordingly, that ruling is hereby reversed.

Decided March 28, 2013

Freeman, Mathis & Gary, Joshua B. Portnoy, Sun S. Choy, Jack R. Hancock, Coleen D. Hosack, for appellants.

Gillen, Withers & Lake, Craig A. Gillen, Finch McCranie, Richard W. Hendrix, for appellee.

5. Partial summary judgment as to liability.

The county asserts that the trial court also erred in granting partial summary judgment on the merits to Austin-Powell as to the issue of liability because there was no such motion for summary judgment on the merits. We agree.

As with McCobb, Austin-Powell filed a motion only for imposition of discovery sanctions due to alleged spoliation, and did not move for partial summary judgment on the merits. And like McCobb, she did not make such a request for summary judgment on the merits until after the county’s response to the spoliation motion, when she filed the identical reply brief filed by McCobb. For the reasons discussed above in Division 3, such a request made for the first time in a reply brief did not constitute a proper motion for summary judgment on the merits.

Moreover, “[w]hile in most cases it is better practice to await a motion for summary judgment before entering it for a party, it may not be erroneous under the circumstances of a given case, where the issues are the same as those involved in the movant’s motion.” (Citation, punctuation and emphasis omitted.) Covington v. Countryside Investment Co., 263 Ga. 125, 127 (3) (428 SE2d 562) (1993). Here, the motion for sanctions due to alleged spoliation of evidence did not involve the same issues as a request for summary judgment on the merits. Because the existence of genuine issues of material fact as to liability were not “within the ambit of appellee’s motion for [discovery sanctions due to spoliation,] the trial court erred in granting summary judgment in favor of appellee as to that issue.” (Citations omitted.) Id.

Judgment reversed in Case No. A12A2217.

Judgment affirmed in part and reversed in part in Case No. A13A0034. Doyle, P. J., and Boggs, J., concur.

Gillen, Withers & Lake, Craig A. Gillen, Finch McCranie, Richard W. Hendrix, for appellants.

Freeman, Mathis & Gary, Joshua B. Portnoy, Sun S. Choy, Jack R. Hancock, Coleen D. Hosack, for appellee.