author: Barnes, Presiding Judge.

text:
    A11A1450.
    EARLE v. EARLE.
    (717 SE2d 720)
   Barnes, Presiding Judge.

Myrlin D. Earle, pro se, appeals from the order of the trial court denying his motion for contempt. Upon review, we affirm.

In 2005, a final judgment and decree of divorce was entered ending Earle’s marriage to Caroline Earle. Per the divorce decree, the couple was granted joint legal and physical custody of the two minor children, with the children residing with the “mother from August 1 through May 31 of each year.” The children stayed with the father “every first, third, and fifth weekend from Thursday after school. . . until Monday morning,” and from June 1 to August 1 each year. The decree also stipulated that the parties

shall consult and confer with each other regarding all decisions related to the children’s health, education (including extracurricular activities), and religious upbringing. In the event the parties are unable to reach a consensus on one of these types of issues, Mother shall have final decision making authority as to healthcare; Father shall have final decision making authority as to religious upbringing. As to decisions involving the education of the children and their extracurricular activities, in the event of a disagreement the parties shall go to a parenting counselor ... to determine whether after good faith discussion they can reach agreement. In the event a disagreement remains, Mother shall have final authority to make educational decisions including which school the children shall attend. Father shall have final authority to make decisions regarding extracurricular activities.

In 2009, the judgment was modified solely as to the parenting time under the joint physical arrangement because of the mother’s schedule as an emergency room physician. Under the modified decree, the children resided with the father from August 1 through May 31 of each year. The mother was given custody on the first, third, and fifth weekends of the month from Thursday after school until Monday morning, and from June 1 to August 1. Legal custody remained the same, as did “final decision making authority.”

On May 17, 2010, the father filed a motion for contempt in which he primarily alleged that the mother was in contempt for refusing to allow the daughter to participate in certain golf tournaments during her custodial time, and for continuing to use a golf instructor for the child that he previously fired. He maintained that her actions violated his final decision-making authority related to extracurricular activities per the divorce decree. After a hearing, the transcript of which is not included in the record, the trial court denied the father’s motion, but held that the golf instructor was “forbidden from having any contact” related to golf instruction with the daughter. It also held that the mother could utilize her custodial time with the children “in any way she deems appropriate.”

A trial court’s ruling on a motion for contempt will be affirmed on appeal if there is any evidence in the record to support it. Killingsworth v. Killingsworth, 286 Ga. 234, 237 (3) (686 SE2d 640) (2009).

1. The father first contends that the trial court erred because it found the mother violated the divorce decree but did not hold her in contempt. The father does not, however, provide any further argument related to this claim or cite any related authority to support his claim. He merely asserts that “[wjithout supporting evidence that Respondent’s conduct was not willful, failure to hold the Respondent in contempt violates Georgia Law.” Therefore, this enumeration is deemed abandoned. Mathis v. State, 299 Ga. App. 831, 839 (2) (c), n. 29 (684 SE2d 6) (2009) (unsupported enumeration of error abandoned under Court of Appeals Rule 25 (c) (2)). Moreover, “in the absence of a transcript of the [hearing on such motion for contempt], we must presume that the evidence supports the trial court’s findings.” Blue v. Blue, 279 Ga. 550 (1) (615 SE2d 540) (2005).

2. The father next contends that the trial court improperly modified the original divorce decree. He argues that the order denying his motion for contempt contains “new terms, conditions and language” which result in a material modification of the decree’s provision regarding his final decision-making authority concerning the children’s extracurricular activities.

The father asserts that the trial court’s provision that the mother “shall be permitted to utilize her custodial time with the party’s children in any way she deems appropriate and she shall not be required to follow the final decision making of the [father] with respect to the children’s extracurricular activities during her custodial time,” impermissibly modifies his final decision-making authority as to extracurricular activities.

Decided October 18, 2011.

Myrlin D. Earle, pro se.

Stern & Edlin, Shiel G. Edlin, for appellee.

A court may not modify a previous decree in a contempt order. However, a court may always interpret and clarify its own orders. The test to determine whether an order is clarified or modified is whether the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification. The trial court has the power to see that there be compliance with the intent and spirit of its decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party.

(Citations and punctuation omitted.) Cason v. Cason, 281 Ga. 296, 297 (1) (637 SE2d 716) (2006).

Here, the trial court did not impermissibly modify the earlier decree but instead clarified the extent as to which the father’s decision making as to children’s extracurricular activities could encroach upon the mother’s custodial time; and without the transcript of the hearing it is “presume [d] that the evidence supports the [trial court’s] findings.” Blue v. Blue, 279 Ga. at 550 (1).

Judgment affirmed.

Adams and Blackwell, JJ., concur.


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A11A0781.
    EDWARDS v. THE STATE.
    (717 SE2d 722)
   Miller, Presiding Judge.

Following a jury trial, Norris Edwards was convicted of two counts of armed robbery (OCGA § 16-8-41 (a)) and two counts of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)). Edwards filed a motion for new trial, which the trial court denied. On appeal, Edwards contends that the trial court erred in (i) failing to reconstitute the jury panel to ensure the random nature of the panel; (ii) admitting testimony regarding statements made by his co-defendant; (iii) admitting his “apology letter” to the victims into evidence; and (iv) charging the jury as to the law of conspiracy. We discern no error and affirm.

On appeal, this Court views the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Watson v. State, 308 Ga. App. 871 (708 SE2d 703) (2011).

So viewed, the trial evidence shows that on August 17, 2008, Edwards and his co-defendants, Philip Wyatt and Daniel Gines, met at the residence of their mutual friend, Antavius Barnes. While at the residence, Barnes heard Edwards and Wyatt discussing plans to “hit a lick,” meaning to commit a robbery. Later that evening, Barnes drove Edwards, Wyatt, and Gines to the Tara Apartment complex.

After arriving at the apartment complex, Edwards, Wyatt, and Gines approached a parked vehicle that was occupied by the female victim, her infant child, and her boyfriend. Edwards pointed a gun at the victims and demanded them “to give it up.” The female victim gave the men her cell phone, purse, and wallet, which contained her debit card. The male victim gave the men his cell phone and wallet, which contained his student identification card, bank card, social security card, and cash. After the robbers departed from the scene, the victims went inside the male victim’s apartment and called the police.

Later that evening, officers with the Athens-Clarke County Police Department received a report that four men in a green Honda vehicle with a flat tire had tried to use the female victim’s stolen debit card at a fast food restaurant. The individual making the report further informed the officers as to the direction where the vehicle traveled after leaving the restaurant. The officers responded to the area and located the suspect vehicle parked at a nearby duplex. As one of the responding officers approached the duplex, he heard the occupants engaged in a “very loud, very heated argument” about using the stolen debit card at the restaurant.

The officers surrounded the perimeter of the duplex. Thereafter, Edwards, Wyatt, Gines, and Barnes exited the duplex, and they were arrested.

Following his arrest, Edwards was advised of his constitutional rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Edwards agreed to participate in a custodial interview with the investigating officer. During the interview, Edwards confessed to committing the armed robbery of the victims, admitted that he possessed the gun during the robbery, and informed the investigating officer that he had hidden the gun in a trash can at the duplex. Edwards also wrote a statement and an apology letter to the victims expressing his remorse for his crimes.

The officers obtained a warrant to search the duplex and the vehicle. During the ensuing search of the vehicle, the officers recovered a receipt, reflecting that the female victim’s debit card had been used to make a purchase. During the search of the duplex, the officers recovered the bandana, pants, hat, and ski mask identified as the items worn by the robbers. The officers also recovered the male victim’s student identification card from the pocket of the pants. In addition, the officers discovered the gun in the trash can, where Edwards said that he had hidden it.

Edwards, Wyatt, and Gines were jointly charged with several offenses related to the armed robbery incident. Following a separate jury trial, Edwards was found guilty of the charged offenses.

1. Edwards contends that he is entitled to a reversal of his conviction since the trial court erred in denying his request to reconstitute the jury panel to ensure the random nature of the panel. We disagree.

At trial, Edwards objected to the trial court’s practice of placing deferred jurors at the top of the jury list. Edwards nevertheless acknowledged that the deferred jurors had previously been randomly selected, and he agreed with the trial court’s finding that the jurors had been deferred regardless of their race or gender. Edwards further confirmed that he was not challenging the array of the panel. The trial court overruled Edwards’s objection.

This issue has previously been decided adversely to Edwards’s claim of error in Morgan v. State, 271 Ga. 885, 886 (2) (525 SE2d 691) (2000). The decision in Morgan held that the trial court’s practice of placing jurors who had been excused during the previous term of court at the top of the jury list did not affect the randomness of the jury panel. Id. The trial court was authorized to find that there was no purposeful or systemic discrimination, because the jurors were deferred for various reasons unrelated to their race or gender and it was entirely random as to which jurors were going to be deferred from one week to a different week. See Singleton v. State, 229 Ga. App. 135, 136 (1) (493 SE2d 556) (1997) (ruling that practice of putting late jurors at end of jury list did not affect randomness of jury panel since it was entirely random as to which jurors would arrive late on a given day). As such, no error has been shown.

2. Edwards further argues that the trial court erred in admitting testimony as to statements made by his co-defendant, Wyatt. In this regard, Edwards complains that state’s witness, Antavius Barnes, was allowed to testify that he heard Wyatt and Edwards discussing plans to “hit a lick,” meaning to commit a robbery, and that Wyatt had told him details about their commission of the crimes after they returned from the Tara Apartment complex.

As an initial matter, Edwards failed to interpose a contemporaneous objection when the challenged testimony regarding the plans to “hit a lick” was presented at trial. Consequently, his objection to the testimony was waived. See Howard v. State, 279 Ga. 166, 168 (2) (611 SE2d 3) (2005) (“In the absence of a contemporaneous objection, defendants have waived the opportunity to raise this issue on appeal.”) (citations omitted); Henderson v. State, 300 Ga. App. 478, 482 (2) (685 SE2d 454) (2009) (“Under the contemporaneous objection rule, one must object to evidence when it is actually offered, and the failure to object waives any objection which might have been raised.”) (citation and punctuation omitted).

The challenged testimony was otherwise admissible under the conspiracy exception under OCGA § 24-3-5, which provides that “[ajfter the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” See Ramsey v. State, 165 Ga. App. 854, 857-858 (4) (303 SE2d 32) (1983). “The pendency of the criminal project” includes the accomplishment of the crime itself, as well as subsequent acts and declarations made during the concealment phase. (Punctuation omitted.) Crowder v. State, 237 Ga. 141, 152 (227 SE2d 230) (1976).

The State may prove a conspiracy by showing that two or more persons tacitly came to a mutual understanding to pursue a criminal objective. And the conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances.

(Citation omitted.) Williamson v. State, 285 Ga. App. 779, 783 (4) (648 SE2d 118) (2007). Here, the trial evidence, including Edwards’s written confession, showed that Edwards and his co-defendants, Wyatt and Gines, came to a mutual understanding to commit the armed robberies. Accordingly, the evidence established the existence of a conspiracy. See id.

Upon establishing a conspiracy, the “[vjoluntary, non-custodial, incriminating statements of defendants are admissible through the testimony of any one who heard the statements.” (Citations and punctuation omitted.) Ramsey, supra, 165 Ga. App. at 858 (4). Since Barnes heard the co-conspirators’ incriminating statements about the crimes during the pendency of the conspiracy, he could testify as to what they said. See id. See also Brooks v. State, 281 Ga. 14, 15-17 (2) (635 SE2d 723) (2006) (ruling that hearsay statements made by a conspirator to third parties during the course of a conspiracy, including the concealment phase, were admissible against all of the conspirators).

More importantly, Edwards’s own admissions and confessions introduced in evidence showed that he had committed the armed robberies and provided the details regarding his participation in the crimes. There also was evidence that corroborated Edwards’s admissions and confessions. Under these circumstances, no reversible error in the admission of Barnes’s testimony has been shown. See Morgan v. State, 231 Ga. 280, 281 (4) (201 SE2d 468) (1973).

3. Next, Edwards contends that the trial court erred in admitting his “apology letter” to the victims into evidence. Again, we discern no error.

Following a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the trial court determined that Edwards’s confession and apology letter to the victims had been voluntarily given, without hope of benefit or fear of injury. The investigating officer testified that he informed Edwards of his Miranda rights and that Edwards signed a written waiver form that acknowledged his- rights, expressed his willingness to answer questions and give a statement without the presence of a lawyer, and reflected that no promises or threats had been made to induce his cooperation. The investigating officer further testified that Edwards did not appear to be intoxicated, appeared to understand his questions, and never revoked the waiver of his rights. The investigating officer promised to advise the district attorney that Edwards had been honest, but never made any promises to get Edwards a reduced charge or sentence. After Edwards responded to the oral questioning, the investigating officer asked Edwards to write the apology letter, which was an investigative tool to obtain more facts and details about the crimes. Edwards agreed to give both a written statement and an apology letter to the victims, which admitted his participation in the crimes.

Edwards contends that his apology letter was improperly admitted at trial since it allegedly was obtained by the investigating officer’s “trickery.” “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50.

The use of trickery and deceit to obtain a confession does not render the confession inadmissible, as long as the means employed are not calculated to procure an untrue statement. And, absent any evidence that the police investigative techniques were designed to induce the slightest hope of benefit or fear of injury, the resulting statements are not rendered involuntary and inadmissible. A trial court’s findings as to factual determinations and credibility relating to the admissibility of a defendant’s statement will be upheld on appeal unless clearly erroneous.

(Punctuation and footnotes omitted.) Wright v. State, 279 Ga. App. 155, 157 (2) (630 SE2d 656) (2006). Here, the trial court was authorized to find that the investigative officer’s techniques were not impermissible and did not render the apology letter involuntary. “[A]n investigator does not make an offer of hope of benefit upon telling a defendant that his or her cooperation will be made known to the prosecution, or by offering help to the defendant.” (Citations and punctuation omitted.) Davis v. State, 245 Ga. App. 508, 509 (538 SE2d 159) (2000). The “slightest hope of benefit” under OCGA § 24-3-50 means the hope of a lighter sentence. Cooper v. State, 256 Ga. 234, 235 (2) (347 SE2d 553) (1986). The investigating officer stated that he did not promise Edwards a reduced charge or sentence in exchange for his cooperation. Moreover, the investigating officer testified that Edwards had already made a confession before he agreed to write the apology letter. Accordingly, it cannot be said that the investigating officer’s request for an apology letter induced Edwards’s confession. See State v. Lee, 295 Ga. App. 49, 51 (2) (670 SE2d 879) (2008) (noting that since the officer’s alleged misconduct occurred after defendant had already confessed to the crime, it could not be said that the misconduct induced the confession). Based upon the evidence presented, the trial court’s decision admitting Edwards’s apology letter was not erroneous. See Evans v. State, 248 Ga. App. 99, 101-102 (2) (545 SE2d 641) (2001).

Decided October 19, 2011

Benjamin A. Pearlman, for appellant.

Kenneth W. Mauldin, District Attorney, Raquel C. Stokes, Assistant District Attorney, for appellee.

4. Lastly, Edwards asserts that the trial court erred in charging the jury as to the law of conspiracy. His contention is without merit.

“It is not error to charge on the subject of conspiracy when the evidence tends to show a conspiracy, even if a conspiracy is not alleged in the indictment.” (Citation omitted.) Williamson, supra, 285 Ga. App. at 783 (4). As stated in Division 2 above, the trial evidence showed that Edwards and his co-defendants conspired to commit the armed robberies. Consequently, the charge on conspiracy was authorized. Id. at 783-784 (4).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Barnes testified that he was the owner of the green Honda vehicle.

       We note that at the motion for new trial hearing, Edwards presented testimony from a statistics expert in support of his claim. The trial court, however, was not required to reach a different conclusion based upon the expert testimony. Significantly, the expert agreed that juror deferments made for random reasons would not affect the randomness of the jury panel. Moreover, the expert conceded that he did not have any details regarding the dates, reasons, and jury pools pertaining to the jury deferments that would indicate that the deferments were not random.


author: Andrews, Judge.

text:
    A11A0851.
    BOATNER v. THE STATE.
    (717 SE2d 727)
   Andrews, Judge.

We granted Russell Boatner’s application for discretionary review of the superior court’s order revoking his probation. The court found that Boatner violated two conditions of his probation and also found that he committed the new felony of possession of a firearm by a convicted felon. Because we conclude that the evidence was insufficient to support the finding as to one of the probation violations and also insufficient to support the new felony charge, we reverse in part and remand this case to the trial court.

Viewed in the light most favorable to upholding the trial court’s findings, Marks v. State, 306 Ga. App. 824 (703 SE2d 379) (2010), the record shows that in 2003, Boatner pled guilty to one count of possession of marijuana with intent to distribute (OCGA § 16-13-30), one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106), and one count of possession of a firearm by a convicted felon (OCGA § 16-11-131). Boatner was sentenced to 15 years of probation. Among the general conditions of his probation were the requirements that Boatner not violate any laws, not receive, possess or transport any firearms, and avoid “persons ... of disreputable or harmful character.”

In 2010, Boatner’s probation officer stated that he was informed by someone in “Parole” that Boatner was associating with a wanted parolee. This person asked for help in finding Boatner, saying that Boatner had been seen driving around in a black truck with gold trim.

The probation officer and a law enforcement officer went to Boatner’s mobile home to investigate. They knocked on the door and heard movement in the trailer and a child crying, but no one came to the door. Eventually, Boatner’s wife came to the door followed by Boatner, carrying his infant daughter. Jeremy Allen, Boatner’s brother-in-law who was the wanted parolee, was also in the trailer.

An officer testified that they found a loaded rifle outside the front porch railing of Boatner’s trailer. No one admitted to owning the rifle, and no ammunition for the rifle was found in the trailer. A truck on the property was searched, and officers discovered a stun gun, a tire puncher, and a small pocketknife. Officers found a wallet in the truck, but could not remember if there was any identification in the wallet.

The State sought revocation of Boatner’s probation based upon the loaded rifle, the parolee’s presence in the trailer, and the knife, tire puncher, and stun gun found in the truck. At the revocation hearing, Boatner testified that the rifle was not his. He stated that he was asleep in the trailer when the probation officer came to the door and was unaware that his brother-in-law was in the trailer. Finally, he testified that the truck did not belong to him.

The trial court revoked five years of Boatner’s probation, finding that Boatner violated two of his probation conditions by possessing a firearm and being in the presence of a known parolee. The trial court also found Boatner guilty of a new felony offense, possession of a firearm by a convicted felon. Boatner now appeals pursuant to our grant of his application for discretionary appeal.

On appeal, violations of probation must be proved by a preponderance of the evidence. OCGA § 42-8-34.1 (b). This Court will not interfere with a revocation absent manifest abuse of discretion on the part of the trial court. Smith v. State, 283 Ga. App. 317, 318 (641 SE2d 296) (2007).

1. In his first enumeration of error, Boatner argues that there was insufficient evidence that he possessed the rifle found leaning against the front porch of his trailer. We agree.

In this case, the State’s only evidence of Boatner’s possession of the rifle is the rifle’s proximity to Boatner’s trailer. The rifle was found leaning against the outside railing of the porch on Boatner’s trailer. The probation officer acknowledged that the rifle could have belonged to any one of Boatner’s neighbors. Notably, the police did not find any ammunition inside Boatner’s trailer or on his property, and the bullet found inside the truck that was near his trailer did not match the rifle.

Although the State’s burden of proof is lower in a probation revocation case, a probationer’s mere presence in the area where [the prohibited item is] found will not justify a [probation] revocation based on possession of [the prohibited item], even under the more relaxed preponderance of the evidence standard.

Scott v. State, 305 Ga. App. 596, 599 (699 SE2d 894) (2010).

Because there must be something more than mere spatial proximity that links the probationer to the prohibited item, the State did not carry its burden of showing that Boatner was in possession of the rifle. See Smith v. State, 306 Ga. App. 54, 57 (701 SE2d 490) (2010) (reversing order of revocation where State presented no evidence other than spatial proximity to contraband).

2. Likewise, the evidence was insufficient to support a finding that Boatner possessed the stun gun and other items found in the truck. Boatner testified that the truck belonged to his brother-in-law, and his wife sometimes drove it. This evidence was undisputed. Boatner denied that it was his wallet that was found in the truck.

Therefore, although there is evidence that Boatner had driven the truck in the past, there is no evidence that Boatner owned the truck, had exclusive control over the truck, or drove the truck prior to the discovery of the stun gun. Thus, the State was unable to show that Boatner had exclusive access to or was in control of the truck in the time immediately preceding the recovery of the items. Therefore, there is no presumption that Boatner possessed the prohibited items. See Smith, supra at 57.

The wallet found in the truck does not change this conclusion. The probation officer could not remember if there was any identification in the wallet. The probation officer stated that he asked Boatner’s wife if the wallet belonged to Boatner and she said “yes.” Boatner’s counsel objected to this as hearsay, and the trial court sustained the objection. Nothing further regarding the wallet was admitted into evidence. “Hearsay evidence has no probative value and is inadmissible in a probation revocation proceeding.” Brown v. State, 294 Ga. App. I, 4 (668 SE2d 490) (2008).

3. Boatner argues that there is insufficient evidence to show that he violated his probation by being in the presence of Allen, a wanted parolee. We disagree.

Boatner’s third condition of probation stated that Boatner must avoid persons of disreputable or harmful character. Boatner admits that he knew Allen was on parole. The evidence also shows that Allen was inside Boatner’s trailer. Boatner, however, argues that he did not invite Allen over to his trailer, and was unaware of his presence. Boatner testified at the hearing that his brother-in-law lived right across the street from him and he would see him “every other day or so.” Boatner did not deny that he associated with Allen. He stated only that they “didn’t . . . hang out all the time.” When asked: “So if he [Allen] comes over, do you run him off or. . . .” Answer: “That’s my wife’s brother.” “Okay. She could invite him over if she wants to, I guess?” Answer: “I guess.”

Decided October 19, 2011.

Clarence R. Patton, for appellant.

Leigh E. Patterson, District Attorney, John A. Tully, Assistant District Attorney, for appellee.

In a probation revocation, issues of witness credibility are reserved for the trial court. Andrews v. State, 276 Ga. App. 428, 432 (623 SE2d 247) (2005). Here, there was sufficient evidence that Boatner did not avoid Allen, a wanted parolee, in violation of one of the conditions of his probation.

4. Under Georgia law, a trial court’s discretion as to the length of a probation revocation varies depending on whether the probationer’s violation is a new felony offense, a violation of a general condition of probation, or a violation of a special condition of probation. OCGA § 42-8-34.1. The trial court in this case found that Boatner committed the new felony offense of possession of a firearm by a convicted felon, and violated two conditions of probation by possessing an offensive weapon, and by not avoiding persons of disreputable or harmful character. Because we conclude that Boat-ner violated only one condition of his probation, we reverse in part the order of revocation and remand to the trial court for further action consistent with this opinion.

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

Phipps, P. J., and McFadden, J., concur.


text:
    A11A1101.
    NOWELL v. THE STATE.
    (717 SE2d 730)
   Andrews, Judge.

Derrick Donta Nowell appeals after a jury found him guilty of possession of cocaine with intent to distribute. Nowell contends that the statements he made to officers after his arrest were not voluntary because they were induced by a hope of benefit. Nowell also argues that the trial court erred in denying his motion in limine to redact from his statement references to previous drug transactions. After reviewing the record, we conclude there was no error and affirm.

Nowell was arrested during a Georgia Bureau of Investigation drug task force project involving undercover drug sales. After Nowell’s arrest for selling cocaine, he was taken to a local processing center where he was initially interviewed by a GBI agent and an Athens-Clarke County police detective. Nowell was read his Miranda rights and signed the waiver of rights form.

Nowell was then asked, “having all those [Miranda rights] in mind[,] are you willing to talk to us?” Nowell answered, “Um hum, if you all are willing to work with me!” The officer responded, “We’re willing to talk, we’re not gonna make you any promises. Let’s be clear on that, we can’t promise anything. But, we’re certainly willing to talk with you.” The officers later encouraged Nowell to “man up . . . own up to it if that’s what happened.” Nowell again asked officers to “help [him] out” and an officer again said, “I can’t make you any promises . . . but it would certainly go a long way for you to help us out.”

At a later point in the interview, a third GBI agent entered the room, and one of the officers told Nowell, “[y]ou wanted some help, this is who is gonna help you.” The agent questioned Nowell about his source for the drugs, stating “[a]ll I can do is tell the District Attorney anything you do to help us bring him in.”

Nowell then gave various incriminating statements involving himself, the source, and his previous transactions with the source. The agent promised Nowell that he would talk to the District Attorney about Nowell’s help with the investigation.

1. Nowell argues that the trial court erred in not excluding the statements made during this custodial interrogation because they were not voluntary. He contends the statements were made with the hope of benefit.

The standard for determining the admissibility of confessions is the preponderance of evidence. To determine whether the State has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. Turner v. State, 287 Ga. 793, 794 (700 SE2d 386) (2010).

“To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. However, “[w]hile OCGA § 24-3-50 prohibits the introduction of a statement induced ‘by the slightest hope of benefit,’ the hope contemplated must be induced by another.” Bryant v. State, 193 Ga. App. 840, 841 (389 SE2d 405) (1989). “A hope or fear which originates in the mind of the person making the confession and which originates from seeds of his own planting would not exclude a confession.” (Citation and punctuation omitted.) Id.

Here, upon beginning the interview, Nowell immediately told officers he was willing to work with them if they were willing to work with him. Officers responded by stating they had no authority to make promises but would listen. Later, an agent promised that he would talk to the District Attorney about the help Nowell provided. In each instance, Nowell asked for officers to work with him, and each time officers informed Nowell they did not have the power to make any promises regarding Nowell’s potential sentence.

We have construed the “slightest hope of benefit” as meaning the hope of a lighter sentence. Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the “hope of benefit” sufficient to render a statement inadmissible under OCGA § 24-3-50.

(Citation and punctuation omitted.) Leigh v. State, 223 Ga. App. 726, 727 (478 SE2d 905) (1996).

Likewise, the officers’ statements that Nowell should “man up” and “own up” to the charges and that his assistance would go a long way in helping him out also do not constitute promises of a lighter sentence. See Caldwell v. State, 249 Ga. App. 885, 888 (549 SE2d 449) (2001) (officer’s statement that defendant could “still help [him] self. . . by telling [officers] the truth” did not amount to a promise that defendant would be given a lighter sentence if he told the truth) (punctuation omitted). See also Samuels v. State, 288 Ga. 48, 50 (701 SE2d 172) (2010) (“Nor does it render a statement involuntary for the police to tell a suspect that the trial judge may consider her truthful cooperation with the police”) (citation and punctuation omitted); Lee v. State, 270 Ga. 798, 800 (514 SE2d 1) (1999) (telling a suspect that if he “talks” he will be “help[ing him]self out” is not a “hope of benefit” so as to render the statement involuntary); Gilliam v. State, 268 Ga. 690, 692 (492 SE2d 185) (1997) (encouraging a suspect to tell the truth is not a hope of benefit).

2. Nowell also argues that the trial court erred in not granting his motion in limine seeking to redact references in his statement to previous drug transactions. Nowell claims that this impermissibly put his character in issue.

The record shows that Nowell moved to redact from his statement a colloquy concerning Nowell’s ability to set up a drug buy from a certain drug dealer. The officers told Nowell that they wanted to know who was supplying him with the drugs. Nowell told investigators “I guarantee I can get you Nick.” Investigators then asked, “What’s the most you have ever ordered up from Nick?” Nowell replied, “About two ounces.” Nowell argued that the foregoing should have been redacted from his statement because it put his character in issue.

Decided October 19, 2011.

Thomas J. Killeen, for appellant.

It is the general rule that relevant and material evidence is not inadmissible because it incidentally puts the defendant’s character in issue. Robinson v. State, 192 Ga. App. 32, 33 (383 SE2d 593) (1989). “What is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.” (Emphasis supplied.) Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351) (1987). “[Sjtatements complained of were an integral part of a criminal confession, and such statements are not rendered inadmissible because the language used therein indicates that the accused had committed another and separate offense.” Dampier v. State, 245 Ga. 427, 434 (265 SE2d 565) (1980).

In Jinks v. State, 229 Ga. App. 18 (493 SE2d 214) (1997), relied on by Nowell, this Court reversed a conviction because the State was allowed to present evidence of a fingerprint card with the previous charge written on the card. Id. at 19. The court in Jinks lists several instances where the defendant’s character was impugned by references to previous crimes, all of which were unrelated to the crime charged. See id. at 20.

Similar to this case is Hill v. State, 176 Ga. App. 509 (336 SE2d 276) (1985), in which this Court held that the trial court did not err in allowing the witness to testify that he had previously sold marijuana for the defendant at some earlier time, holding that this testimony was “relevant to the issue of the defendant’s intention to distribute the marijuana which was the subject of the indictment for which he was on trial.” Id. at 510.

Further, any potential error caused by the inclusion of Nowell’s references to previous drug transactions amounts to harmless error in light of the overwhelming evidence against him, including his own statement admitting to drug dealing. See Lee v. State, 308 Ga. App. 711, 715 (708 SE2d 633) (2011) (erroneous admission of bad character evidence did not amount to harmful error in light of the overwhelming evidence against defendant).

Judgment affirmed.

McFadden, J., concurs. Phipps, P. J., concurs in the judgment only.

Kenneth W. Mauldin, District Attorney, David T. Lock, Assistant District Attorney, for appellee.


text:
    A11A1332.
    STALLING et al. v. STATE OF GEORGIA et al.
    (717 SE2d 733)
   Andrews, Judge.

Janet Stalling, Anna McClannahan, Polly Barron, Gwen Cheatham, and Janet Keller (collectively “teachers”) appeal from the trial court’s order dismissing their complaint against the State of Georgia, Cathy Cox, Superintendent of Schools, and the Georgia Department of Education (collectively “the State”) seeking a declaratory judgment, injunctive relief, and asserting a claim for detrimental reliance. The teachers filed the complaint after the General Assembly did not fund a ten percent pay increase to which the teachers claimed they were entitled.

The State filed a motion to dismiss, raising numerous grounds. The trial court granted the motion on the grounds that the named defendants were not the proper parties to the case. For the following reasons, we affirm.

OCGA § 20-2-212.2 (b), (c) provides in pertinent part:

(b) For initial national certification prior to July 1, 2006, and subsequent renewals anytime thereafter, (1) Any person who: (A) Is currently teaching full time in a Georgia public school and holds a valid Georgia teaching certificate; and (B) Has successfully completed the prerequisite portfolio of student work and examination and has received national certification shall receive not less than a 10 percent rate increase in state salary for each year he or she holds national certification. Such increase shall be awarded beginning on the date such certification is received. The 10 percent increase shall be computed based on the state salary for such individual when national certification is received and recomputed each subsequent year based on the individual’s state salary for that school year. In the case of a person who has received such national certification prior to July 1, 2000, and is receiving or is eligible to receive a 5 percent rate increase, the 5 percent rate increase shall be changed to a 10 percent rate increase effective with the commencement of the 2000-2001 school year. The increase in state salary provided by this Code section shall be in addition to any other increase for which the person is eligible. An individual receiving a salary increase pursuant to this subsection shall cease to receive such increase if he or she leaves a teaching position after March 1, 2009. This subsection shall be subject to appropriations by the General Assembly. . . .
(c) Except as provided for in subsections (b.l) and (c.l) of this Code section, for initial national certification between July 1, 2006, and March 1, 2009, and subsequent renewals anytime thereafter, (1) Any person who: (A) Is currently teaching full time in a high-needs school and holds a valid Georgia teaching certificate as defined by the Professional Standards Commission; and (B) Has successfully completed the prerequisite portfolio of student work and examination and has received national certification shall receive not less than a 10 percent rate increase in state salary for each year he or she holds national certification. Such increase shall be awarded beginning on the date such certification is received. The 10 percent increase shall be computed based on the state salary for such individual when national certification is received. A teacher who transfers to a high-needs school after such individual receives national certification shall receive such increase beginning on the effective date of transfer if the teacher meets the requirements of this subsection, and such increase shall be computed based on the state salary for such individual on the effective date of the transfer. Provided such individual remains employed in a high-needs school or in a school that was designated as a high-needs school at the time the individual received national certification or transferred to such school and otherwise continues to meet the requirements of this subsection, the 10 percent increase shall be recomputed each subsequent year based on such individual’s state salary for that school year. An individual receiving a salary increase pursuant to this subsection shall cease to receive such increase if he or she leaves a teaching position after March 1, 2009. This subsection shall be subject to appropriations by the General Assembly. . . .

The last sentence of both subsections stating that the raises “shall be subject to appropriations by the General Assembly” was added to the Code section in 2009. In the school year 2009-2010, the State failed to fully fund the ten percent salary increase mandated by the above Code section.

The teachers sued, requesting: a declaratory judgment that the 2009 amendment to the statute is unconstitutional in that it impairs a vested right in the ten percent salary increase by making it subject to appropriations by the General Assembly; an injunction preventing the State from withholding the ten percent pay raise; and damages for “detrimental reliance” on a promise.

The trial court granted the State’s motion to dismiss, which pointed out that the claims were not proper remedies against the named defendants because the contracts between the teachers and their employers, the local school boards, would determine whether the employer was required to pay the ten percent salary increase.

The teachers argue that they are not suing their local school boards for breach of contract, but rather are suing the State of Georgia for unconstitutionally interfering with a vested right by adding the language “subject to appropriations by the General Assembly” to the statute already in effect. But, even without this added language, subsequent General Assemblies are not required to fund these raises. Buskirk v. State of Ga., 267 Ga. 769 (482 SE2d 286) (1997).

For nearly 25 years, the state gave within-grade pay increases to employees in the classified service of the State Merit System who rated “satisfactory” or better in their job performance appraisal. Then, on April 25, 1991, responding to a budget crisis in fiscal year 1991, the governor called for an immediate freeze on such pay hikes. The General Assembly appropriated money for within-grade wage increases in fiscal year 1992. However, it met in August 1991 and removed that money from the budget. Thereafter, the legislature refused to fund within-grade pay increases in fiscal years 1993, 1994 and 1995.

Id. As a result, employees in the classified service sued, claiming that the State violated the State Merit System Act, OCGA § 45-20-1 et seq., by illegally withholding within-grade pay increases. Id. The employees brought claims of breach of contract, impairment of contractual rights, and violations of constitutional rights. The trial court granted summary judgment to defendants on the grounds that “any obligation on the part of the state to pay wage increases in the future would constitute an illegal pledge of credit.” Id. at 770.

The Court stated:

[ Ujnless the General Assembly authorized the expenditure of salary increases for a given fiscal year, see Busbee v. Ga. Conference, American Assn. of Univ. Professors, 235 Ga. 752, 760 (2) (221 SE2d 437) (1975), the state was not required to give them. Why? Because the General Assembly cannot pledge the good faith and credit of the state into the future. State Ports Auth. v. Arnall, 201 Ga. 713, 728 (41 SE2d 246) (1947). See also Ga. Const, of 1983, Art. Ill, Sec. IX, Par. I (“No money shall be drawn from the treasury except by appropriation made by law.”). As this Court has said: “No one legislature [can] tie the hands of its successors with reference to a subject upon which they have an equal power to legislate.

Decided October 19, 2011.

Adams, Hemingway & Wilson, F. Bradford Wilson, Jr., John P Fox, for appellants.

Id. at 770.

It follows then, as the trial court held, the teachers’ claims are against their local school boards because the contracts are between the teachers and the local boards. In Busbee v. Ga. Conference, American Assn. of Univ. Professors, 235 Ga. 752 (221 SE2d 437) (1975), overruled on other grounds, Self v. City of Atlanta, 259 Ga. 78, 80 (377 SE2d 674) (1989), university professors brought similar claims after their salary increase provision was removed from the budget by the General Assembly. Id. at 753. The Court held that the teachers’ only claim was against the Board of Regents because they entered into their employment contracts with that Board. Id. at 759.

In short, Regents’ faculty contracts are valid and binding and Regents may have the necessary money to meet its obligations. If it does not have the money, it may be able to find it, or raise it, or obtain it. Until these possibilities have been exhausted, the amended appropriations Act is not subject to constitutional attack on grounds of impairment.

Id. at 764.

Thus, the trial court correctly held that any claim the teachers might have of entitlement to the salary increase must be brought under their contracts with their employers, the local school boards. Accordingly, the trial court did not err in granting the State’s motion to dismiss the complaint.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Samuel S. Olens, Attorney General, DeBraé C. Kennedy, Assistant Attorney General, for appellees.


author: Doyle, Judge.

text:
    A11A0833.
    SOUTHEAST CULVERT, INC. v. HARDIN BROTHERS, LLC.
    (718 SE2d 28)
   Doyle, Judge.

In an action for foreclosure on a materialman’s lien, Southeast Culvert, Inc. (“Southeast”), a building materials supplier, appeals from the trial court’s grant of summary judgment to Hardin Brothers, LLC (“Hardin”), a property owner and general contractor. Specifically, Southeast contends that the trial court erred by (1) improperly applying OCGA § 44-14-361.5, and (2) overlooking a factual dispute in the record. Discerning no error, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that in April 2007, Hardin obtained a land disturbance permit for a construction project in Forsyth County. In May 2007, Hardin hired Sterling Concepts Grading, Inc. (“Sterling”), to perform clearing, grading, and underground pipe installation. At the same time, Sterling subcontracted with Cousins Excavation, LLC (“Cousins”), to complete the pipe installation.

Southeast supplied piping materials to Cousins, with its first delivery occurring on June 5, 2007, and Cousins began work at the site on or around that date. In June 2007, Southeast invoiced Cousins for $48,912.70 worth of material Southeast had delivered. On June 28, 2007, Hardin filed a Notice of Commencement pursuant to OCGA § 44-14-361.5 (b).

In October 2007, Southeast received its first payment of $10,000 from Cousins toward the June 2007 invoice. In December 2007, Southeast delivered more materials to the site and received additional partial payment from Cousins toward the June invoice. By March 2008, Cousins’s outstanding balance was $32,122.66, and on June 12, 2008, Southeast filed a materialman’s claim of lien beginning in March 2008 for the outstanding balance pursuant to OCGA § 44-14-361.5. Southeast never filed a Notice to Contractor.

Hardin, the property owner and general contractor, responded to the action and moved for summary judgment on the ground that Southeast had failed to provide a Notice to Contractor as required by the lien statute. The trial court granted the motion, and this appeal followed.

1. Southeast contends that the trial court misapplied OCGA § 44-14-361.5 by concluding that Southeast’s obligation to provide a Notice to Contractor was applicable despite the fact that Hardin’s Notice of Commencement was not filed within 15 days of commencing work, as required by the Code section. We disagree.

OCGA § 44-14-361.5 provides as follows, in relevant part:

(a) To make good [certain materialman] hens . . . , any person having a right to a lien who does not have privity of contract with the contractor and is providing . . . materials for the improvement of property shall, within 30 days from the filing of the Notice of Commencement or 30 days following the first delivery of labor, services, or materials to the property, whichever is later, give a written Notice to Contractor ... to the owner or the agent of the owner and to the contractor for a project on which there has been filed with the clerk of the superior court a Notice of Commencement. . . .
(b) Not later than 15 days after the contractor physically commences work on the property, a Notice of Commencement shall be filed by the owner, the agent of the owner, or by the contractor with the clerk of the superior court in the county in which the project is located. . . .
(d) The failure to file a Notice of Commencement shall render the provisions of this Code section inapplicable. . . .

The lien statute is in derogation of common law and must therefore “be strictly construed in favor of the property owner and against the materialman.”

Southeast relies on subsection (d) of OCGA § 44-14-361.5, which relieves it of its obligation to provide a Notice to Contractor if there has been a “failure to file a Notice of Commencement.” Here, the work began at the site on or around the time of Southeast’s first delivery on June 5, 2007, and the Notice of Commencement was filed on June 28, 2007, approximately eight days after the statutory fifteen-day filing period expired. This Court has held that “OCGA § 44-14-361.5 (a) and (d) do not require the filing of a Notice of Commencement within the 15-day deadline as a general condition to [the requirement to provide] a Notice to Contractor.” Accordingly, we agree with the trial court’s conclusion that the eight-day delay in filing the Notice of Commencement did not relieve Southeastern of its obligation to provide a Notice to Contractor. It is undisputed that this was “a project on which there ha[d] been filed with the clerk of the superior court a Notice of Commencement,” so the notice requirement in subsection (a) was applicable to Southeast. The reference in subsection (d) to the failure to file a Notice of Commencement “applies when there has been a total failure to file a Notice of Commencement at the time when a materialman must give a written Notice to Contractor to perfect its lien under subsection (a).” There was no such total failure to file a Notice of Commencement here, merely an untimely filing. Nothing in subsection (d) creates a timeliness component, and absent a clear legislative directive, we decline to do so here in light of the requirement to construe the Code section strictly.

2. Southeast also contends that the trial court erred by granting summary judgment despite a factual issue as to whether the Notice of Commencement contained a fatal defect, which would relieve Southeast’s obligation to provide a Notice to Contractor. We disagree.

OCGA § 44-14-361.5 (b) requires that a Notice of Commencement contain certain information, including the name of the contractor and the location of the project. Southeast correctly argues that this Court has held that if the contractor files a Notice of Commencement containing a fatal defect, such as omitting the legal description or failing to name the owner of the property, the lien claimant is relieved of its obligation to provide a Notice to Contractor. Here, Southeast argues that the record contains a factual dispute as to whether the Notice correctly listed the property location, which is required under OCGA § 44-14-361.5 (b) (2). The Notice of Commencement listed the property address as 795 Union Hill Road. Southeast points to two pre-construction forms filled out by Hardin — a notice of intent to proceed under a general storm water discharge permit and a general permit fee form — both of which list the property address as 905 Union Hill Road. This, Southeast argues, created an issue of fact as to whether the Notice of Commencement accurately described the property location.

In support of its motion for summary judgment, Hardin, which owns the property, filed two affidavits: one from its manager, Michael Hardin, and one from Scott Padis, the CEO of Sterling, the grading company that performed work at the site. Both affiants attest that the correct property address is 795 Union Hill Road, i.e., the same address listed in the Notice of Commencement and the same address listed in Southeast’s own lien claim.

We conclude that the trial court correctly ruled that Southeast failed to meet its burden on summary judgment. “Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the non-movant, who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact.” Hardin has established by reference to affidavits from the property owner and a subcontractor performing work at the site that the property address was 795 Union Hill Road, as listed in the Notice of Commencement. This is not a case where an actual dispute exists as to where Southeast delivered its materials or where the project site was located. Based on the record before us, Southeast failed to meet its burden to show that the site address listed in the Notice of Commencement was incorrect or otherwise fatally deficient. Accordingly, this enumeration is without merit.

Judgment affirmed.

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

Decided October 4, 2011

Reconsideration denied October 20,2011

Moskowitz & Martin, Neil A. Moskowitz, for appellant.

Neville & Cunat, John R. Neville, Barrickman, Allred & Young, Fredric S. Young, for appellee.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       It is undisputed for purposes of this appeal that Sterling fully paid Cousins for its work at the site.

       (Emphasis supplied.)

       (Punctuation omitted.) Beacon Med. Products v. Travelers Cas. &c. of America, 292 Ga. App. 617, 619 (665 SE2d 710) (2008).

       Id.

       (Emphasis in original.) Id.

       Compare OCGA § 44-14-361.5 (b) (“The contractor shall be required to give a copy of the Notice of Commencement to any . . . materialman . . . who makes a written request of the contractor. Failure to give a copy of the Notice of Commencement within ten calendar days of receipt of the written request. . . shall render the provision of this Code section inapplicable to the . . . materialman . . . making the request.”) (emphasis supplied).

       See Beacon Med. Products, 292 Ga. App. at 621. See also Rey Coliman Contractors, Inc. v. PCL Constr. Svcs., 296 Ga. App. 892 (1) (676 SE2d 298) (2009) (strictly construing the statute and concluding that a technical violation of the Notice of Commencement requirement did not render the statute inapplicable under subsection (d) because there was not a failure to file the Notice). Dicta in Beacon discusses a scenario in which a materialman supplies materials on or near the same date that work commences, and the contractor has not yet filed a Notice of Commencement. Nevertheless, that discussion is not controlling nor is it directly applicable to the specific facts presented here. See Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008).

       See Gen. Elec. Co. v. North Point Ministries, 289 Ga. App. 382, 384-385 (657 SE2d 297) (2008).

       (Emphasis supplied; punctuation omitted.) Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259 (411 SE2d 87) (1991).


author: Mikell, Judge.

text:
    A11A0965.
    McDOWELL et al. v. HARTZOG et al.
    (718 SE2d 20)
   Mikell, Judge.

Hershell McDowell appeals from the trial court’s denial of his motion for new trial following a jury verdict in favor of Gregory Hartzog and his employer Optimus Solutions, LLC, on McDowell’s claims arising from a traffic accident. Finding no error, we affirm.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict and new trial will not be disturbed.

So viewed, the evidence was that, on September 2, 2005, the Friday before Labor Day, around 5:00 p.m., McDowell had just left the hospital in Dalton, Georgia, where his wife had given birth to their daughter. Driving his pickup truck, McDowell proceeded west in the inside lane of four-lane Walnut Avenue, crossed 1-75, and approached the traffic light controlling traffic exiting southbound 1-75 at Walnut Avenue. As McDowell approached the traffic light, it was red. According to him, he began slowing and saw the light turn green. McDowell acknowledged that the eastbound traffic on Walnut was still stopped as he went through the light. McDowell said a black vehicle then crossed in front of him, causing him to steer to the right, lock his brakes, and skid into an Isuzu Rodeo attempting to turn eastbound onto Walnut from College Avenue. McDowell estimated his speed at the point of impact as 42 or 43 mph, in a 40 mph speed zone. McDowell’s truck left 30 feet of skid marks.

Robbie Griggs was a passenger in her husband’s car as they were coming off the southbound 1-75 exit onto Walnut Avenue. She did not recall whether they had to stop at the light at the end of the exit, but they turned right onto Walnut Avenue heading toward the next intersection where College Avenue came into Walnut. At that point, Griggs heard brakes squealing and then saw McDowell’s truck come by their car on the driver’s side, with its tires smoking. As the Griggs’ car stopped, she saw McDowell’s truck veer to the right into their lane and strike an Isuzu Rodeo, driven by Hartzog, coming out of College Avenue. According to Griggs, the Rodeo was stopped when it was hit and was approximately halfway across the outside lane of Walnut Avenue.

Victoria Chamberlain, a registered nurse, was a passenger in her mother’s car as they were leaving the Red Lobster on the west side of 1-75. As Chamberlain was looking up and down Walnut watching for traffic, she heard the squeal of brakes and saw McDowell’s pickup truck hit Hartzog’s Isuzu. She described the pickup as going very fast. According to her, Hartzog was inching out into the intersection. Chamberlain saw McDowell climb out the window of the door of his pickup truck and walk to the rear of the truck. She went to aid Hartzog, whose car was struck between the driver’s door and the front wheel of the Isuzu.

Hartzog was in Dalton working for Optimus Solutions that day. He was to work the entire weekend at Shaw Carpeting to transition Shaw to a new large scale computer data storage system. He went to check into his motel on College Avenue late in the afternoon so he would not lose his reservation. As he was returning to Shaw, he approached the College and Walnut Avenues intersection and saw several vehicles waiting to enter Walnut. When he got up to the stop line, his view to the left was partially blocked by trees. As he was looking for gaps in the traffic in order to turn left, Hartzog saw McDowell’s pickup coming toward him, saw the smoke coming from its tires, and was hit by McDowell. Hartzog did not see any black vehicle.

Whitfield County Sheriffs Deputy Andrew Hambrick was called as a witness by McDowell. He was also traveling westbound on Walnut and testified that he came up on the accident shortly after it happened. Upon cross-examination by Hartzog’s attorney, Deputy Hambrick testified extensively about the changes which had been made in the intersection of College and Walnut Avenues between 2005 and the date of trial. These changes included the cutting of

trees obscuring the view of a driver exiting College, moving the stop line for those exiting College further into the outer lane on Walnut, and turning that lane into a right turn only lane.

McDowell also testified that, following his accident, the stop line on College was brought forward to what had been the middle of the outside westbound lane of Walnut, where his accident occurred. Further, he acknowledged that the shrubs and trees obscuring the eastbound view of a driver exiting College had been cut.

1. McDowell’s first enumeration is that the trial court erred in charging the jury on his failure to obey a stop light, which was not adjusted to the evidence.

(a) We first consider the adequacy of the objection voiced below by McDowell. At the charge conference following the close of evidence, when Hartzog’s supplemental request to charge based on OCGA §§ 40-6-20 and 40-6-21 was discussed, McDowell’s counsel stated only “[a]s long as it’s noted it’s over my objection, we’re good.” Following the giving of the charge to the jury, including the stop light charge, the trial court inquired regarding errors in the charge. In response, McDowell’s counsel stated “[exceptions that we had, the ones we talked about the other day. Where did they go? I know the one on stop lights, we excepted to.” (Emphasis supplied.)

This was an inadequate objection to the charge as given.

(b) The additional arguments made by McDowell regarding running a red light and proximate cause were not the subject of a motion for directed verdict, motion for judgment notwithstanding the verdict, motion for new trial, or other objection below and will not be considered here for the first time.

2. In his second enumeration, McDowell argues that the trial court erred in admitting evidence of the medical treatment rendered to Hartzog as a result of the accident.

During Hartzog’s testimony, he was asked by his counsel what tests, other than an x-ray, were performed on him. In response, he said “[t]hey did a CT scan, because they were concerned.” At that point, McDowell objected on relevancy grounds, and Hartzog did not complete his answer.

The record reveals, however, that McDowell elicited numerous facts regarding Hartzog’s injuries and treatment. In his opening argument, McDowell’s counsel stated: “[McDowell] went to the emergency room, from the scene, in an ambulance, as did Mr. Hartzog. They rode together.”

On direct examination of the investigating police officer, counsel for McDowell elicited testimony that Hartzog’s vehicle had been moved rearward to allow EMS to remove him from his vehicle.

McDowell also called Michael Dickson, his brother-in-law, who came to the wreck scene shortly after the accident. Dickson testified, in response to questions from McDowell’s attorney, that emergency personnel were “running around” trying to extract Hartzog from his vehicle and that, when he later saw Hartzog at the emergency room, he was on a stretcher.

Finally, during direct examination of Chamberlain, the nurse who went to Hartzog’s aid, McDowell’s counsel asked her about Hartzog’s condition and she responded that she was “concerned about a neck injury on him.”

Having himself elicited evidence regarding Hartzog’s injuries and treatment, McDowell cannot now complain of Hartzog’s doing so.

3. McDowell’s third and fourth enumerations are that the trial court erred in admitting testimony and allowing counsel to argue that the intersection was unsafe and in allowing into evidence photographs showing that the intersection had been reconfigured after the collision.

Again, however, McDowell introduced evidence of the reconfiguration of the intersection through his witnesses. Dalton Police Officer Jason Thompson, who investigated the accident and was called by McDowell as a witness, testified on direct examination that the configuration of the intersection had been changed; that for years authorities had “tried to figure out a way to make it a safer intersection”; that DOT owns the highway; and that the trees and shrubs had been cut down. Testimony was also elicited by McDowell from his expert, Dr. Ronald Cox, regarding the reconfiguration of the intersection.

When Hartzog tendered his photo exhibits showing the before and after configurations of the intersection, McDowell’s counsel stated that he had no objection to them.

Again, McDowell may not now complain of the introduction of this evidence.

Decided September 22, 2011

Reconsideration denied October 20, 2011

David J. Blevins, for appellants.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, W. Jason Pettus, Downey & Cleveland, Sean L. Hynes, for appellees.

There was no error in the trial court’s denial of McDowell’s motion for new trial.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       Cindy McDowell, his wife, alleged a loss of consortium claim.

       (Citations and punctuation omitted.) MARTA v. Green Intl., 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998).

       See OCGA § 5-5-24 (a); Sims v. GT Architecture Contractors Corp., 292 Ga. App. 94, 97 (2) (663 SE2d 797) (2008) (regarding a claim that the trial court gave an erroneous jury instruction, “an objection made at a charge conference before the charge is given does not preserve a charging issue for appellate review”) (punctuation and footnote omitted); accord Thompson v. Princell, 304 Ga. App. 256, 261 (b) (696 SE2d 91) (2010); Tucker Nursing Center v. Mosby, 303 Ga. App. 80, 87 (5) (692 SE2d 727) (2010).

       Generally, “[a]n argument not raised in the trial court is waived and cannot be raised for the first time on appeal.” (Footnote omitted.) Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156) (2007).

        Ahmed v. Clark, 301 Ga. App. 426, 428 (688 SE2d 361) (2009); cf. Thrash v. Rahn, 249 Ga. App. 351, 352 (2) (547 SE2d 694) (2001).

       Id.


text:
    A11A1236.
    WILSON v. THE STATE.
    (718 SE2d 31)
   Miller, Presiding Judge.

A jury found Justin Thomas Wilson guilty of trafficking in marijuana (OCGA § 16-13-31 (c)), possession of marijuana with intent to distribute (OCGA § 16-13-30 (b)), and possession of marijuana (OCGA § 16-13-30 (a)). Wilson appeals, contending that (i) the trial court erred in denying his motion to suppress evidence; (ii) the evidence was insufficient to sustain his trafficking in marijuana conviction since the State failed to prove that he had knowledge that the amount of marijuana in his possession met or exceeded the requisite for trafficking; (iii) the trial court erred in charging the jury that his knowledge of the quantity of marijuana was not an element of the trafficking offense; and (iv) his trial counsel rendered ineffective assistance to the extent that he failed to object to the trial court’s erroneous jury charge. Discerning no error, we affirm.

The record shows that Wilson was jointly indicted with his co-defendants, Daniel Park and Jose David Salinas, Jr., for the drug offenses. Both Wilson and Park were convicted during separate jury trials. In Park v. State, 308 Ga. App. 648 (708 SE2d 614) (2011), we affirmed Park’s conviction. The evidence adduced during Wilson’s trial was essentially the same as that presented at the trial of co-defendant Park. Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial evidence showed as follows:

[O]n April 4, 2008, a suspicious package addressed to [Wilson’s] residence in Hall County was misdirected to [Wilson’s] neighbor. The package was a medium-sized box bearing the name “Abby.” After retrieving the package, the neighbor noticed that the package was . . . “soggy” and “had a funny smell to it.” . . . [T]he neighbor took [the package] to her father for his inspection. When her father opened the package, they observed a grass-like substance wrapped in plastic. They suspected that the substance was marijuana and called the police.
The responding officers took custody of the package and launched an investigation. The investigating detective identified the substance in the package as marijuana based upon his training and experience. Subsequent testing of the substance further confirmed that it was marijuana, weighing 12.46 pounds.
On the same afternoon that the package was received, the officers arranged a controlled delivery to the address that was listed on the package. An investigator, disguised as a postal carrier, made the delivery, while other undercover officers provided backup and surveillance nearby. When the investigator knocked on the door to the residence, . . . Wilson answered. The investigator asked Wilson if “Abby” was present. Wilson responded, “no[J but they were expecting the package and he would accept delivery of it.” Wilson signed the delivery form, using a fictitious name, and took possession of the package containing the drug contraband. When Wilson attempted to take the package inside the residence, the investigator gave the takedown signal to the other agents and secured the package from Wilson’s possession. Wilson was placed on the ground and was detained in handcuffs.
Through the open door of the residence, the officers observed the presence of four adult occupants. The officers entered the residence, performed a protective sweep, and secured all of the occupants. During the protective sweep, the officers observed a marijuana grinder, marijuana stems, and plastic baggies in plain view on a table in the bedroom identified as belonging to [Wilson’s roommate,] Park.
Following the protective sweep, the officers requested and received Wilson’s consent to search the common areas of the residence. During the search, the officers discovered marijuana in a baggie located in a bathroom and additional baggies containing marijuana residue in the kitchen.
After Wilson was arrested, he was advised of his rights under Miranda. Wilson agreed to cooperate with the investigation and informed the officers that his roommate, Park, had advised him that the package of marijuana would be shipped to the residence and that the package was for [Park’s] friend, David Salinas.

(Punctuation omitted.) Park, supra, 308 Ga. App. at 648-649.

Wilson, Park, and Salinas were arrested and jointly indicted for multiple drug offenses. Wilson filed a pretrial motion to suppress the evidence, contending that the officers’ warrantless entry and search of the residence were unauthorized and that his consent to the search was involuntary. Following a hearing, the trial court denied Wilson’s motion, finding that the warrantless entry and search were authorized based upon exigent circumstances and, alternatively, based upon Wilson’s consent.

The statements provided by Wilson to the officers during the investigation had been recorded by audiotape and were played for the jury at trial. Wilson testified at trial, admitting that Park had told him that a package of marijuana was being shipped to the residence, that he had accepted delivery of the package despite knowing that it was addressed to a person who did not reside there, and that he signed for the package using a false name. At the conclusion of the trial, the jury found Wilson guilty of the drug offenses.

1. Wilson contends that the trial court erred in denying his motion to suppress the drug evidence and his statements since the warrantless entry and search of his residence were illegal. He argues that no exigent circumstances existed to authorize the entry and search, and that his consent to the search was not freely and voluntarily given. In this regard, Wilson raises the same arguments that were presented and decided in the prior appeal of his co-defendant, Park. See Park, supra, 308 Ga. App. at 650-653 (1). Wilson’s arguments fail for the same reasons explained in our decision in Park. See id.

2. Wilson further contends that the evidence was insufficient to sustain his trafficking in marijuana conviction, arguing only that the State failed to prove that he had knowledge of the weight of the marijuana that was in his possession. Again, Wilson’s arguments are unavailing.

OCGA § 16-13-31 defines and proscribes the offense of illegal drug trafficking. Wilson was convicted of marijuana trafficking under subsection (c) of that statute, which provides in pertinent part that “[a]ny person who knowingly . . . has possession of a quantity of marijuana exceeding 10 pounds commits the offense of trafficking in marijuana[.]” OCGA § 16-13-31 (c). The marijuana trafficking provision is substantially analogous to the cocaine trafficking provision found in the same statute. See OCGA § 16-13-31 (a) (1) (“Any person . . . who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine[.]”). In the context of the cocaine trafficking provision, this Court has rejected the premise that the defendant must know or should know the weight of the substance possessed:

Under the cocaine trafficking statute, the State must show as an element the minimum amount of 28 grams, after which the quantity possessed bears only on punishment. The amount of 28 grams was designated by the legislature as the basis for distinguishing the crime of trafficking from the somewhat less serious crimes. The trafficking statute explicitly requires as the mens rea that defendant know he or she possesses the substance and know it is cocaine. The statute is not, however, reasonably subject to the construction urged, that defendant must know or should know the substance possessed weighs at least 28 grams.

(Citations omitted.) Cleveland v. State, 218 Ga. App. 660, 662-663 (1) (463 SE2d 36) (1995). We recently applied and upheld the Cleveland ruling in Barr v. State, 302 Ga. App. 60, 61-62 (1) (690 SE2d 643) (2010). Wilson does not argue that there is any reasonable basis for distinguishing the mens rea requirement of marijuana trafficking from that of cocaine trafficking. Rather, he suggests that the rulings in Barr and Cleveland were erroneous and should be overruled. We disagree and decline to do so.

All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect are to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.

(Citations and punctuation omitted.) Schlomer v. State, 247 Ga. App. 257, 259 (1) (543 SE2d 472) (2000). In addition, “we must construe the statute in accordance with the legislature’s real intent and meaning and not so strictly as to defeat the legislative purpose.” Id. Notably, OCGA § 16-13-31 has been amended several times since the issuance of the Cleveland decision. See Ga. L. 1997, p. 1311, § 5; Ga. L. 2003, p. 177, § 4; Ga. L. 2003, p. 257, § 1. The General Assembly was presumably aware of the Cleveland decision, which rejected the statutory construction urged regarding the defendant’s knowledge as to the weight of the drug substance, but it did not amend OCGA § 16-13-31 to alter that holding. We do not believe that the legislative intent of the drug trafficking statutory scheme is to require proof of the defendant’s subjective knowledge as to the precise weight of the drugs in his possession. Consistent with the rulings in Barr and Cleveland, we conclude that Wilson’s knowledge of the precise weight of the drugs in his possession was not required to sustain his drug trafficking conviction. See Barr, supra, 302 Ga. App. at 61-62 (1); Cleveland, supra, 218 Ga. App. at 662-663 (1).

Decided October 4, 2011

Reconsideration denied October 20, 2011

Collins & Csider, Arianne E. Mathé, for appellant.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

3. Wilson also claims that the trial court erred in charging the jury that his knowledge of the quantity of marijuana was not an element of the marijuana trafficking offense, and that his trial counsel rendered ineffective assistance in failing to object to the erroneous jury charge. In light of our ruling in Division 2 above, however, the jury charge was not erroneous, and no basis for reversal has been shown. See Cleveland, supra, 218 Ga. App. at 662-663 (1).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       In Harrison v. State, 309 Ga. App. 454, 456-457 (2) (711 SE2d 35) (2011), we recently questioned whether the knowledge requirement of the cocaine trafficking statute applied to the weight of the substance. We nevertheless did not overrule the decisions in Barr and Cleveland. Id. at 457 (2). Rather, we concluded that there was no need to revisit those decisions since the trial court’s refusal to give a jury instruction on the issue was harmless in light of the evidence establishing the defendant’s guilt of the trafficking offense. Id. at 458-459 (2) (b).

       The trial evidence sufficiently established that Wilson knowingly possessed the marijuana and had agreed to accept delivery of the package of marijuana at his residence. The trial evidence further established that subsequent testing confirmed that the substance was marijuana, weighing 12.46 pounds. Wilson’s conviction of the trafficking offense was therefore authorized. See OCGA §§ 16-2-20 (a), (b) (3) (authorizing convictions of persons who are parties to a crime), 16-13-31 (c) (defining marijuana trafficking offense); Park, supra, 308 Ga. App. at 654 (2) (concluding that defendant’s conviction for trafficking in marijuana was authorized since he participated as a party to the drug offense and had agreed to accept delivery of the package of marijuana at his residence).


text:
    A11A1403.
    FAIRFAX v. WELLS FARGO BANK, N.A. et al.
    (718 SE2d 16)
   Mikell, Judge.

Cherie Fairfax, pro se, appeals from the trial court’s grant of the motions to dismiss for failure to state a claim of defendants Wells Fargo Bank, N.A. (Wells Fargo), as trustee for Option One Mortgage Loan Trust 2007-5 and American Home Mortgage Servicing, Inc. (AHMS), and McCurdy & Candler, LLC (McCurdy). Finding no error, we affirm.

“On appeal from the grant of a motion to dismiss, we review the record de novo and treat all well-pled material allegations by the nonmovant as true and all denials by the movant as false.”

The main claim alleged in Fairfax’s Third Amended Petition for Injunction and Declaratory Relief appears to be that she was defrauded through overbilling by Wells Fargo, AHMS, and McCurdy on her mortgage and this is the only claim addressed in her enumeration of errors. Fairfax alleges that this continued overbilling resulted in the wrongful foreclosure on her home.

Although the record designated by Fairfax for inclusion in this appeal is minimal, the supplemental record designated by McCurdy shows that on January 29, 2007, Fairfax executed and conveyed to the original lender Washington Financial Group, Inc. (Washington), a Deed to Secure Debt securing the indebtedness created by a contemporaneously signed Promissory Note in the original amount of $157,250. The Security Deed granted the original lender and its successors a power of nonjudicial sale and the immediate right to institute nonjudicial foreclosure proceedings upon default.

AHMS, successor-in-interest to Washington, retained McCurdy to facilitate a noniudicial sale of the property, originally scheduled for February 2, 2009.

1. Fairfax’s first enumeration is that the “trial court erred and abused its Discretion dismissing the Appellant petition and Injunc-tive Relief while billing errors exist.”

At a minimum, a complaint must contain “[a] short and plain statement of the claims showing that the pleader is entitled to relief,” and this short and plain statement must include enough detail to afford the defendant fair notice of the nature of the claim and a fair opportunity to frame a responsive pleading.

(a) To the extent that the complaint alleges errors in billing, that alone is insufficient to allege a cause of action. Fairfax’s allegations in this regard are similar to the allegations made by the Patricks in Patrick v. Verizon Directories Corp. They alleged that Verizon committed “wrongful action” by putting an erroneous entry under their listing in the telephone directory. This allegation was also deemed insufficient.

Fairfax also alleged that appellees committed fraud by overbill-ing her and misrepresenting the facts.

OCGA § 9-11-9 (b) requires that all allegations of fraud must be made with particularity and not averred generally. Notice pleading is the rule in Georgia, and under OCGA § 9-11-9 (b), allegations of fraud must be pled with particularity. It is well settled that a general allegation of fraud amounts to nothing — it is necessary that the complainant show, by specifications, wherein the fraud consists. Issuable facts must be charged.

Fairfax makes no specific factual allegations regarding the alleged overbilling, billing errors, schemes or tricks used by any of the named defendants in an attempt to defraud her or wrongfully foreclose on her home. Therefore, there was no error in the trial court’s grant of the motions to dismiss.

(b) To the extent that Fairfax relies in her brief on 15 USC § 1666 and requested that the trial court declare her rights “pertaining to incorrect billing under 15 USC § 1666,” that claim was also properly dismissed.

By its very terms, the FCBA’s [Fair Credit Billing Act] billing error section applies solely to creditors of open end credit plans. Specifically, the definition of creditor under the FCBA is limited as follows: “For the purpose of the requirements imposed under chapter [41] [15 USCS § 1666 et seq.] the term ‘creditor’ shall also include card issuers, and the Board shall, by regulation, apply these requirements to such card issuers, to the extent appropriate, even though the requirements are by their terms applicable only to creditors offering open-end credit plans.” 15 USC § 1602. . . . Because the definition of “creditor” as used in section 1666 only applies to creditors offering open end credit plans and Plaintiffs have not alleged that the transaction underlying this claim is based on an open end credit plan, this claim must be dismissed.

Therefore, there was no error in the trial court’s grant of the motion to dismiss as to this claim.

2. Fairfax’s second enumeration is that the trial court erred by “dismissing the appellant injunction on both parties while one party was in default.”

Fairfax contends that McCurdy was named as a defendant, was properly served with process, and failed to timely answer. Pretermit-ting the issue of whether it is apparent from the face of either of the two versions of the complaint before this court that McCurdy was intended to be named as a defendant and whether, having decided that Fairfax has failed to state a claim, we need even address other issues, we will address the issue of the sufficiency of the summons which was left at McCurdy’s office.

The initial pleadings filed by Fairfax suggest that McCurdy was not intended to be a defendant in the case. The caption of the “Petition to Have Wrongful Foreclosure and Fraud” identifies a single defendant, AHMS, and McCurdy appears to have been listed as AHMS’s attorney. The body of the complaint refers only to a singular defendant. The summons issued reflects Fairfax as plaintiff and only AHMS as a defendant. It then directs the “above named defendant” to file with the clerk and serve upon Fairfax an answer or suffer default.

“Proper service of summons is necessary for the court to obtain jurisdiction over a defendant.” OCGA § 9-11-4 (b) states that

[t]he summons shall be signed by the clerk; contain the name of the court and county and the names of the parties; he directed to the defendant-, . . . and shall notify the defendant that in case of the defendant’s failure [to appear and file appropriate pleadings] judgment by default will be rendered against him or her.

Any deficiency in the summons is in the nature of the defense of “insufficiency of process.”

Decided September 20, 2011

Reconsideration denied October 20, 2011.

Cherie Fairfax, pro se.

McCurdy & Candler; Frank R. Olson, Thompson Hine, James C. Fox II, Russell J. Rogers, for appellees.

There is no proof in the record before us that a summons was issued identifying McCurdy as a defendant. Therefore, no jurisdiction was obtained over McCurdy, and McCurdy was not in default.

3. Fairfax’s third enumeration of error is that the trial court erred in dismissing the petition because it failed to send notice of the hearing to her.

This contention is belied by the fact that, on the day before the hearing, Fairfax filed her motion for a continuance based on “improper service” of the rule nisi.

Therefore, there was no error on this basis in the trial court’s dismissal of the petition.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       (Punctuation and footnotes omitted.) Walker v. Wallis, 289 Ga. App. 676 (658 SE2d 217) (2008).

       None of the allegations made by Fairfax are specifically alleged against any single defendant, but are all alleged against “Respondent(s).”

       OCGA § 9-11-8 (a) (2) (A).

        Patrick v. Verizon Directories Corp., 284 Ga. App. 123, 124 (643 SE2d 251) (2007).

       Id.

       Id.

        Dockens v. Runkle Consulting, Inc., 285 Ga. App. 896, 900 (2) (a) (648 SE2d 80) (2007), quoting Majeed v. Randall, 279 Ga. App. 679, 680 (2) (632 SE2d 413) (2006).

       (Punctuation omitted; emphasis in original.) Roybal v. Equifax, 405 FSupp.2d 1177, 1180 (2) (E.D. Cal. 2005), cited by Hennington v. Bank of America, 2011 WL 705173, *4 (N.D. Ga. Feb. 18, 2011).

        Bonner v. Bonner, 272 Ga. 545, 546 (2) (533 SE2d 72) (2000).

       (Emphasis supplied.)

       OCGA § 9-11-12 (b) (4).

        Diaz v. First Nat. Bank of Tucker, 144 Ga. App. 582-583 (1) (241 SE2d 467) (1978); cf. Schafer v. Wachovia Bank of Ga., 248 Ga. App. 466, 467 (1) (b) (546 SE2d 846) (2001).