author: McFADDEN, Judge.

text:
    A13A1479.
    BELLAMY v. THE STATE.
    (750 SE2d 395)
   McFADDEN, Judge.

After a jury trial, Denise Bellamy was convicted of robbery and simple battery. She appeals, arguing that the trial court erred in refusing to give her requested charge on theft by taking as a lesser included offense to robbery. But Bellamy’s co-defendant, Fakhrideen Abdul-Hakeem, admitted to facts establishing that he committed the greater offense of robbery, and Bellamy admitted to facts establishing that she was a party to that crime. Accordingly, the trial court did not err in denying her request for a charge on the lesser offense. We affirm.

The state presented evidence at trial showing that Bellamy and Abdul-Hakeem cornered victim Lawrence Miller as he sat in a parked vehicle, demanded money from him, dragged him out of the vehicle, hit him, took his wallet out of his jacket pocket, took money out of the wallet, and fled. They left him lying on the sidewalk, distraught and injured.

Bellamy and Abdul-Hakeem testified at trial to a different picture of their encounter with Miller. But even as they described it, the encounter was robbery. Bellamy and Abdul-Hakeem testified that Miller owed them money, and they admitted that they entered the vehicle, sat on either side of Miller, and asked for the money. They both denied touching Miller in any way, except Bellamy stated that at one point she placed her hand gently on his arm. They testified that all three people got out of the vehicle during the course of the encounter. Abdul-Hakeem admitted that he then removed Miller’s wallet from the pocket of the jacket that Miller was wearing. This occurred without the permission of Miller, who, according to AbdulHakeem, was “hollering, asking people to call the police.” AbdulHakeem took money out of the wallet and placed the wallet on the ground. Miller grabbed Abdul-Hakeem’s coat, and as Abdul-Hakeem pulled away Miller slipped and fell to the ground. Bellamy picked up the wallet and placed it on a nearby ice chest. Abdul-Hakeem and Bellamy then left with the money. They did not dispute that Miller was injured in the encounter.

Pertinently, the trial court instructed the jury on the charged offense of robbery by use of force. See OCGA § 16-8-40 (a) (1). It denied Bellamy’s request for an instruction on the lesser offense of theft by taking. See OCGA § 16-8-2. Bellamy argues that this was error.

“Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.” Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). But where the uncontradicted evidence in the record “shows completion only of the greater offense, it is unnecessary for the trial court to charge on the lesser offense.” Jenkins v. State, 270 Ga. 607, 608 (2) (c) (512 SE2d 269) (1999) (citation omitted). See Clark v. State, 279 Ga. 243, 247 (7) (611 SE2d 38) (2005); Munoz v. State, 190 Ga. App. 806 (3) (380 SE2d 88) (1989). Accordingly, when a defendant admits or does not dispute the facts authorizing his conviction for the greater offense, Georgia courts have affirmed the trial court’s refusal to charge on the lesser included offense. See Sims v. State, 197 Ga. App. 214, 217 (5) (398 SE2d 244) (1990) (trial court did not err in refusing to instruct jury on robbery and theft by taking as lesser offenses to charged offense of armed robbery in case where defendant admitted to having a shotgun during the incident in question); Hambrick v. State, 174 Ga. App. 444, 447 (2) (330 SE2d 383) (1985) (trial court did not err in refusing to instruct jury on theft by taking as lesser offense to charged offenses of armed robbery and burglary in case where defendant did not dispute using a knife to rob the victim but challenged whether it was an “offensive weapon” under the armed robbery statute). See also Edwards, 264 Ga. at 132-133 (emphasizing importance of defendants’ admissions to holdings in Sims and Hambrick).

There was uncontradicted evidence in this case that AbdulHakeem committed the greater offense of robbery. The state charged Abdul-Hakeem and Bellamy with robbery by use of force. A person commits that offense “where, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y use of force.” OCGA § 16-8-40 (a) (1).

Actual force in this method [of committing robbery] implies personal violence. If there is any injury done to the person, or if there is a struggle to retain possession of the property, before it is taken, it is the force sufficient for this method of robbery. Force, in the sense in which it is used in defining the offense of robbery by this method, consists in personal violence or that degree of force that is necessary to remove articles so attached to the person or clothing as to create resistance, however slight.

Decided October 24, 2013.

Drummond & Swindle, Jason W. Swindle, for appellant.

David McDade, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

Franklin v. State, 286 Ga. App. 288, 290 (1) (648 SE2d 746) (2007) (quoting Henderson v. State, 209 Ga. 72, 74 (1) (70 SE2d 713) (1952)). The force “must either precede or be contemporaneous with, and not subsequent to, the taking.” Gilmer v. State, 260 Ga. App. 581, 583 (1) (580 SE2d 331) (2003) (citations and punctuation omitted).

Here, Abdul-Hakeem admitted to taking Miller’s wallet from his person and removing the money therefrom without Miller’s permission. His belief that he had a right to this money to satisfy a debt owed by Miller does not provide a defense to the elements of robbery. See Moyers v. State, 186 Ga. 446, 455-456 (1) (197 SE 846) (1938). Abdul-Hakeem’s testimony also demonstrated that Miller resisted the taking of his money, calling out for help and grabbing AbdulHakeem’s arm. And it was undisputed that Miller was injured during the altercation. Miller’s struggle to keep his money and his resulting injuries were contemporaneous with the taking, occurring as AbdulHakeem and Bellamy attempted to leave the scene with the money, and thereby established the necessary “force.” See Henderson, 209 Ga. at 72 (1); McCoon v. State, 294 Ga. App. 490, 492 (1) (a) (669 SE2d 466) (2008) (where homeowner “stumbled upon” appellant and his co-defendants while they were in the process of stealing items from house, and appellant and co-defendants shot at homeowner and then fled, force required for armed robbery was contemporaneous with taking).

Bellamy did not dispute any of Abdul-Hakeem’s admissions. And her own admissions demonstrated that she was concerned in the commission of the robbery that Abdul-Hakeem committed against Miller, making her a party to that crime. See OCGA § 16-2-20. Because these admissions, along with the undisputed evidence in the case, showed the completion of the greater offense of robbery, the trial court did not err in refusing to charge the jury on the lesser offense of theft by taking. See Jenkins, 270 Ga. at 608 (2) (c). See also Miller v. State, 259 Ga. App. 244, 246 (2) (576 SE2d 631) (2003) (noting that “there was no evidence that [defendant] was guilty merely of the lesser offense” in determining that court did not err in refusing to charge on lesser offense) (emphasis supplied).

Judgment affirmed.

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


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A13A0823.
    NEVERSON v. THE STATE.
    (750 SE2d 397)
   McMlLLIAN, Judge.

Valerina Neverson was convicted by a jury of voluntary manslaughter as a lesser included offense of malice murder, felony murder, aggravated assault and possession of a knife during the commission of a crime. She appeals following the denial of her motion for new trial, arguing that the evidence did not support her conviction, that the trial court erred by failing to charge the jury on the defense of habitation, and that her trial counsel was ineffective for failing to object to the court’s instructions. Having considered Neverson’s claims of error, we now affirm.

1. Neverson does not assert a challenge to the legal sufficiency of the evidence, instead challenging the evidence on the “general grounds,” see OCGA §§ 5-5-20 and 5-5-21, which is a matter solely addressed to the discretion of the trial judge. E.g., Choisnet v. State, 292 Ga. 860, 862 (742 SE2d 476) (2013). In this case, the trial court applied the proper legal standard and rejected Neverson’s “general grounds” challenge.

Moreover, although not specifically raised, we will address the legal sufficiency of the evidence to support the jury’s verdict.

In doing so, we apply the familiar standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), asking whether any rational trier of fact could find beyond a reasonable doubt from the evidence adduced at trial that [Neverson] is guilty of the crimes of which [s]he was convicted. See 443 U. S. at 319 (III) (B). As to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and we put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact. See Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013).

White v. State, 293 Ga. 523, 523 (1) (753 SE2d 115) (2013).

Construed in the appropriate light, the evidence introduced at trial showed that on the night of the crime, Neverson and some others were playing cards on the porch outside her apartment. The victim, 17-year-old Jataun Stallings, had been visiting and drinking at an apartment above Neverson’s, and he and some others from that apartment came to Neverson’s porch and were allowed to join the card game. Although there were no problems at first, Stallings, who had been drinking, became upset when he thought someone had taken his cell phone. Stallings’ friends attempted to get Stallings to leave, but he refused, and he and Neverson’s boyfriend began fighting. Although Neverson was not directly involved in the fight, and, according to witnesses, her boyfriend appeared to be winning the fight and did not need any help, at some point Neverson went inside her apartment and came back out with a knife. She stabbed Stallings in the chest, inflicting a seven-inch gaping wound. Stallings immediately fell to the ground, but Neverson continued to punch and hit him until she was pulled off. Stallings’ friends dragged him a short distance away, and he died a short time later. None of the witnesses saw Stallings with a knife or gun, and no weapons were recovered from his person, although testimony was presented that he may have been swinging a liquor bottle at Neverson’s boyfriend.

An officer responding to the scene testified that Neverson told him that a fight broke out while she, her boyfriend, Stallings and others were playing cards, and that Stallings charged them, but she denied that she stabbed Stallings. However, the officer noticed she was holding a kitchen towel with blood on it, and subsequently a knife with blood on it was recovered from a utensil container in the kitchen/dining area of Neverson’s apartment.

This evidence, as well as other evidence adduced at trial, was more than sufficient to authorize Neverson’s conviction under the appropriate appellate standard. And although Neverson argued at trial that she acted in self-defense,

conflicts in the evidence, questions about the credibility of witnesses, and questions about the existence of justification are for the jury to resolve. In this case, the jury was free to accept the evidence that the stabbing was not done in self-defense and to reject any evidence in support of a justification defense.

(Citations and punctuation omitted.) Grimes v. State, 293 Ga. 559, 560 (748 SE2d 441) (2013). Shaw v. State, 292 Ga. 871, 872 (1) (742 SE2d 707) (2013).

2. Neverson also argues that the trial court erred by failing to give her requested charge on the defense of habitation. The record reveals, however, that although Neverson requested a general charge on justification pursuant to OCGA § 16-3-20, as well as a more specific charge on use of force in defense of self or others, she did not in fact specifically request a charge on the defense of habitation. Further, it is undisputed that Neverson’s counsel did not object to the trial court’s failure to give a charge on this defense. Consequently, we review this enumeration of error under the plain error standard. E.g., Fleming v. State, 324 Ga. App. 481 (1) (749 SE2d 54) (2013).

In determining whether plain error exists, we apply a four-part test. Allen [v. State, 290 Ga. 743, 744-745 (3) (723 SE2d 684) (2012)]. First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrityf,] or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Fleming v. State, 324 Ga. App. at 483 (1).

The defense of habitation is available to prevent or terminate an “unlawful entry into or attack upon a habitation[.]” OCGA § 16-3-23. Fair v. State, 288 Ga. 244, 255-256 (2) (A) (2) (702 SE2d 420) (2010); Stobbart v. State, 272 Ga. 608, 612 (4) (533 SE2d 379) (2000). “Where there is no evidence that the victim was attempting to enter or attack the habitation at the time he was injured by the defendant, the defense of habitation is not available.” Coleman v. State, 286 Ga. 291, 298 (6) (687 SE2d 427) (2009). Accordingly, the “defense of habitation is not a defense available to a defendant when the victim is a guest in the home.” Stobbart, 272 Ga. at 612 (4).

As the trial court found, Neverson could not establish the essential element of unlawful entry or attack upon her habitation so as to warrant the giving of a defense of habitation charge because Stallings neither entered her home unlawfully nor attacked her home. Stallings was on her porch by permission, and the evidence, which showed that Stallings’ friends attempted to get him to leave but that he refused, did not support Neverson’s theory that Stallings left and then made an illegal re-entry to the premises. Nor did the testimony support her argument that there was an attack on her home. The witnesses to these events, even her own witnesses, testified that Stallings had been stabbed and was on the ground when his friends started throwing things at the apartment and around the porch.

Further, Neverson did not argue defense of habitation at trial. Rather, her defense was that she was defending herself or others from Stallings at the time that she stabbed him, and she did not claim or argue that she was acting in defense of habitation. Moreover, the transcript shows that the trial court thoroughly and repeatedly charged the jury on the defense Neverson urged at trial.

Under these circumstances, a charge on defense of habitation was not warranted. Accordingly, there was no error, much less plain error, because the trial court failed to give such a charge. Fleming v. State, 324 Ga. App. at 483 (1).

3. Because a charge on defense of habitation was not warranted in this case, it follows that Neverson’s trial counsel did not render deficient performance by failing specifically to request such a charge or by failing to object to the trial court’s failure to give this charge. Neverson’s third enumeration of error thus also provides no basis for reversal.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

Decided October 25, 2013.

Kenneth W. Sheppard, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

       The trial court merged the felony murder and aggravated assault convictions with the voluntary manslaughter conviction for sentencing. See Wells v. State, 294 Ga. App. 277, 279 (1) (a) (668 SE2d 881) (2008) (“Where the jury renders a verdict for voluntary manslaughter, it cannot also find felony murder based on the same underlying aggravated assault.”) (citation and punctuation omitted).

       Although the trial court made note that the evidence was “more than sufficient,” it also correctly cited the general grounds standard, weighed the evidence, and explicitly found that the evidence did not preponderate heavily against the verdict. Thus, this is not a case where it is necessary for us to remand to the trial court for consideration of this issue under the proper standard. Cf. White v. State, 293 Ga. 523, 524-525 (2) (753 SE2d 115) (2013); Choisnet v. State, 292 Ga. at 862; Walker v. State, 292 Ga. 262, 264-265 (737 SE2d 311) (2013); Manuel v. State, 289 Ga. 383, 385-386 (2) (711 SE2d 676) (2011).

       We also take the occasion to
      reiterate an observation [our Supreme Court] made in Manuel v. State, 289 Ga. at 386-387: the sufficiency of the evidence standard and the discretionary standard given to the trial court pursuant to OCGA § 5-5-21 address two distinct legal issues, illustrated by the fact that the double jeopardy clause applies when a court finds the evidence insufficient, but not when a court holds that the verdict was against the weight of the evidence.
      (Citations and punctuation omitted.) Walker, 292 Ga. at 264, n. 2.

      It appears that others from both groups also began fighting.

       That Code section, contains a citation to the Code section that embodies the habitation defense.


author: Miller, Judge.

text:
    A13A0936.
    A13A0937.
    GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. NORTHSIDE HOSPITAL, INC. KENNESTONE HOSPITAL, INC. v. NORTHSIDE HOSPITAL, INC.
    (750 SE2d 401)
   Miller, Judge.

This case arises from the Department of Community Health’s (the “Department”) initial approval of the application of Kennestone Hospital, Inc. (“Kennestone”) for a certificate of need (“CON”) to develop an ambulatory surgery center (“ASC”) in Cobb County based on the Department’s determination that the ASC would be part of a hospital and, therefore, subject to less-stringent criteria to qualify for a CON. The Department determined that the ASC was part of a hospital under the provision for a case-by-case determination set forth under the Department’s Rule 111-2-2-.40 (1) (a). Northside Hospital, Inc. (“Northside”) opposed the CON and sought administrative review of the Department’s initial decision. An appeal panel and the Commissioner of the Department upheld the Department’s initial determination. Northside then filed a petition for judicial review in the superior court. The superior court reversed the Department’s final decision on the basis that the “case-by-case” provision in the Department’s Rule 111-2-2-.40 (1) (a) was unconstitutionally vague because it lacked ascertainable standards and specific guidelines to limit the Department’s discretion. We granted the discretionary applications for review filed by the Department and Kennestone.

In Case No. A13A0936, the Department contends that Northside lacked standing to assert a vagueness challenge to Rule 111-2-2-.40 (1) (a), and that the superior court erred in concluding that the rule was unconstitutionally vague. In Case No. A13A0937, Kennestone further contends that the superior court erred in finding the rule to be unconstitutionally vague and in failing to apply judicial estoppel to prevent Northside from challenging the constitutionality of the rule since it had previously obtained favorable determinations under it. We conclude that the superior court’s decision must be affirmed because the lack of ascertainable standards to guide the Department’s “case-by-case” review under Rule 111-2-2-.40 (1) (a) gives the agency unfettered discretion and fails to provide fair notice to prospective applicants.

Although we review an agency’s factual determinations under the “substantial evidence” standard, we conduct a de novo review of the agency’s conclusions of law. See Palmyra Park Hosp. v. Phoebe Sumter Med. Center, 310 Ga. App. 487, 488 (714 SE2d 71) (2011); Walker v. Dept. of Transp., 279 Ga. App. 287, 291 (2) (630 SE2d 878) (2006).

The record shows the following. Kennestone, a subsidiary of WellStar Health System, Inc. (“WellStar”), operates two Cobb County acute care hospitals: WellStar Kennestone Hospital, a 633-bed hospital, and WellStar Windy Hill Hospital, a 115-bed long-term care hospital. Both hospitals are located in Marietta. Northside operates two acute care hospitals located in Atlanta and Alpharetta.

In 2010, Kennestone submitted an application for a CON to develop the ASC, to be called East Cobb Surgery Center, in Marietta. The ASC would be located approximately eight miles from WellStar Windy Hill Hospital and about seven miles from WellStar Kennestone Hospital. Kennestone explained that the ASC would be hospital-based, operate as a department from Windy Hill Hospital, and result in the decommission and transfer of three operating rooms from Windy Hill Hospital to the new location. Kennestone identified the ASC’s primary service area as East Cobb County and secondary service area to include the rest of Cobb County and parts of Cherokee, Bartow, and Paulding counties.

In reviewing Kennestone’s CON application, which was opposed by Northside, the Department determined that the ASC was “part of a hospital” under the “case-by-case” review provided by Rule 111-2-2-.40 (1) (a). Pursuant to Rule 111-2-2-.40 (1) (a), new ambulatory surgery services are subject to specific review considerations unless such service is or will be provided as “part of a hospital.” An ambulatory surgery service is considered to be “part of the hospital” if it is located: (a) within the hospital; or (b) in a building on the hospital’s primary campus and that building, or relevant portion thereof, is included in the hospital’s permit issued by the State’s licensing agency, subject to determination by the Department. Ga. Comp. R. & Regs. r. 111-2-2-.40 (1) (a). Rule 111-2-2-.40 (1) (a) further provides that “[t]he Department also will make a determination of reviewability on a case-by-case basis in other situations involving hospitals.”

The Department concluded that the ASC would be “part of a hospital,” reviewed the CON application under the general considerations of Rule 111-2-2-.09 (1) and, under such review, decided to issue Kennestone a CON for its ASC. In concluding that the ASC was “part of the hospital” under a case-by-case review, however, the Department set forth no reasoning to explain its conclusion.

Northside appealed the Department’s decision to issue a CON to an appeal panel, and an administrative hearing officer held a hearing on the appeal. At the hearing, the Department presented testimony from Marsha Hopkins, its primary witness, who during the relevant review period, was the executive director of the Division of Health Planning for the Department. Hopkins testified that she was the Department official who approved Kennestone’s CON application, and that the Department concluded that the ASC was part of the hospital because the service was located within Windy Hill Hospital. Hopkins also testified that the ASC was part of the hospital because it was located in a building on the hospital’s primary campus and included on the hospital’s permit. Hopkins initially testified that she did not conduct a case-by-case determination as to whether the ASC was part of a hospital since it was within the hospital and on the hospital’s permit. Hopkins reversed herself and later explained that she did in fact conduct a case-by-case analysis, and under such review, she concluded that the ASC was part of a hospital because the existing location of the operating rooms was in Windy Hill Hospital and the operating rooms were under the hospital’s license. Hopkins confirmed, however, that the Department had no written guidelines or limitations, such as geographic distance, which would aid the Department in conducting a case-by-case determination, and she was unaware of prior Department decisions on the issue. Hopkins stated that aside from the common licensure factor, she was not aware of any other factors that she took into account when making the determination that the ASC was part of the hospital.

Hopkins also testified that she had consulted with Bruce Henderson, a senior review analyst with the Department, who also reviewed Kennestone’s CON application. Henderson testified that he conducted a case-by-case determination of whether the ASC was part of a hospital, and in his review, he considered the fact that the ASC could be added to Windy Hill Hospital’s permit. Hopkins and Henderson both testified that they also considered the fact that the ASC did not involve the addition of operating rooms to Windy Hill Hospital’s inventory.

Following the hearing, the administrative hearing officer found that the Department’s conclusion that the ASC was part of the hospital was reasonable and supported by the evidence. The hearing officer further found that the Department’s consideration of a proposed ambulatory surgery service as part of a hospital when it would be included on the hospital’s permit, while not specifically required under Rule 111-2-2-.40 (1) (a), was reasonable and consistent with the Department’s policies. As a result, the hearing officer upheld the Department’s determination that Kennestone’s ASC was “part of a hospital” and that it met the general considerations set forth in Rule 111-2-2-.09 to qualify for a CON.

Northside appealed the hearing officer’s decision to the Commissioner of the Department, and the Commissioner, through an appointed representative, adopted the appeal panel’s factual findings and affirmed the decision to issue a CON to Kennestone. Northside filed a petition for review in the superior court, and the superior court reversed the Department’s final decision on the basis that the “case-by-case” language of Rule 111-2-2-.40 (1) (a) was unconstitutionally vague because it lacked sufficient guidelines and standards to limit the Department’s discretion.

Case No. A13A0936

1. The Department argues that Northside lacked standing to challenge Rule 111-2-2-.40 (1) (a) on vagueness grounds. We disagree.

The appeal of the Department’s ruling on a CON application is governed by the Administrative Procedure Act. OCGA § 31-6-44 (m). Under the Administrative Procedure Act, a person must meet two requirements before seeking judicial review of an agency action: a person must have “exhausted all administrative remedies available within the agency and [must be] aggrieved by a final decision in a contested case[.]” OCGA § 50-13-19 (a).

In the context of the Administrative [Procedure] Act, the word “aggrieved” has been interpreted to mean that the person seeking to appeal must show that he has an interest in the agency decision that has been specially and adversely affected thereby.

(Citation and punctuation omitted.) Chattahoochee Valley Home Health Care v. Healthmaster, Inc., 191 Ga. App. 42, 43 (1) (a) (381 SE2d 56) (1989). “[0]ne who suffers or will suffer economic injury as the result of an administrative decision may be considered aggrieved for purposes of obtaining judicial review of the decision.” (Citations omitted.) Id.; see also Atlanta Taxicab Co. Owners Assn. v. City of Atlanta, 281 Ga. 342, 345 (2) (638 SE2d 307) (2006) (in order to challenge an administrative action taken pursuant to a statute, the plaintiff must normally show that it has interests or rights which are or will be affected by the action). Thus, it is “well-settled that a business entity may be considered ‘aggrieved’ by an administrative decision which confers an economic benefit upon a competitor.” Chattahoochee Valley, supra, 191 Ga. App. at 43 (1) (a).

Here, during the administrative appeal process, the Department never contended that Northside lacked standing to challenge Kennestone’s CON application, including on grounds that Rule 111-2-2-.40 (1) (a) was unconstitutionally vague. Instead, in preparation for the appeal panel administrative hearing, the Department noted that Northside had appeared at a Department meeting to oppose Kennestone’s CON application, and that by doing so, Northside secured its standing to challenge the CON application.

Additionally, the evidence shows that Northside would be a competitor aggrieved by the grant of Kennestone’s CON application for the ASC in East Cobb County. Specifically, evidence shows that Northside Hospital in Atlanta is located approximately eight miles from the location of the ASC, and the primary service area of the ASC would partially overlap the area served by Northside. Based on this evidence, along with the Department’s own representations in the administrative review process that Northside secured its standing to challenge Kennestone’s CON application, we find the Department’s arguments to be meritless and conclude that Northside has standing to challenge the application of Rule 111-2-2-.40 (1) (a) in this case. See Chattahoochee Valley, supra, 191 Ga. App. at 43 (1) (a); see also North Fulton Med. Center v. Roach, 263 Ga. 814, 815 (2) (a), n. 1 (440 SE2d 18) (1994).

2. In several enumerations of error, the Department contends that the superior court erred in its vagueness analysis and in concluding that Rule 111-2-2-.40 (1) (a) was unconstitutionally vague. We disagree.

In reviewing the constitutionality challenge, we must keep in mind

that the constitutionality of a statute is presumed, and that all doubts must be resolved in favor of its validity .... Of course, it has long been recognized that the General Assembly is empowered to enact laws of general application and then delegate to administrative officers or agencies the authority to make rules and regulations necessary to effectuate such laws.

(Citations and punctuation omitted.) Albany Surgical, P.C. v. Ga. Dept. of Community Health, 278 Ga. 366, 368 (2) (602 SE2d 648) (2004).

The Department is charged with adopting and implementing rules sufficient to administer the CON program. See Palmyra, supra, 310 Ga. App. at 491 (1). “If reviewing courts find that [the Department] has acted within the authority granted the agency by statute, they defer to [the Department’s] interpretation and application of the CON statute and the rules and regulations it has enacted to fulfill the function given it by the legislative branch.” (Citation omitted.) Id.; see also Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 159 (2) (664 SE2d 223) (2008).

The courts defer to agency interpretation when appropriate because agencies provide a high level of expertise and an opportunity for specialization unavailable in the judicial or legislative branches. They are able to use these skills, along with the policy mandate and discretion entrusted to them by the legislature, to make rules and enforce them in fashioning solutions to very complex problems. Thus, their decisions are not to be taken lightly or minimized by the judiciary.

(Punctuation omitted.) Palmyra, supra, 310 Ga. App. at 491 (1). While reviewing courts defer to the agency’s interpretation of statutes and regulations it is charged with enforcing or administering,

the agency’s interpretation is not binding on the courts, which have the ultimate authority to construe statutes. . . . The judicial branch makes an independent determination as to whether the interpretation of the administrative agency correctly reflects the plain language of the statute and comports with the legislative intent.

(Citations and punctuation omitted.) Handel v. Powell, 284 Ga. 550, 553 (670 SE2d 62) (2008).

“To withstand an attack of vagueness or indefiniteness, a civil statute must provide fair notice to those to whom the statute is directed and its provisions must enable them to determine the legislative intent.” (Citation and punctuation omitted.) Bell v. Austin, 278 Ga. 844, 847 (2) (b) (607 SE2d 569) (2005). A law is considered unconstitutionally vague if persons of common intelligence must guess at its meaning and differ as to its application. Professional Standards Comm. v. Alberson, 273 Ga. App. 1, 8 (2) (614 SE2d 132) (2005). When, as here, a statute or regulation does not implicate constitutionally protected conduct, a facial vagueness challenge will be upheld only if the enactment is impermissibly vague in all of its applications. See JIG Real Estate v. Countrywide Home Loans, 289 Ga. 488, 491 (2) (712 SE2d 820) (2011). Moreover, “there is a greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” (Citations and punctuation omitted.) Thelen v. State, 272 Ga. 81, 82 (526 SE2d 60) (2000). Nevertheless, when a statute or regulation gives an agency unfettered discretion with no objective standards, the statute or regulation has been held to be unconstitutionally vague. See, e.g., Fleck & Assoc., Inc. v. City of Atlanta, 260 Ga. 105, 106 (2) (a) (390 SE2d 396) (1990) (city code giving city officials the absolute authority to issue, renew, or revoke a license or permit under “any proper criterion or standard” was the equivalent of no standard at all); Davidson Mineral Properties v. Monroe County, 257 Ga. 215, 216 (1) (357 SE2d 95) (1987) (resolutions giving the Board of Commissioners absolute discretion to grant or deny construction permits with no standards whatsoever to control that discretion and without providing any notice to applicants of the criteria for the issuance of permits were too vague to be enforced); Arras v. Herrin, 255 Ga. 11, 12 (334 SE2d 677) (1985) (county ordinance setting forth Board of Commissioners’ absolute discretion to grant beer and wine license was unconstitutional because it was not “tempered with ascertainable standards”) (punctuation omitted).

Here, Rule 111-2-2-.40 (1) (a) provides:

If the ambulatory surgery service is or will be provided as “part of a hospital”, the hospital’s provision of such service is not subject to Certificate of Need (CON) review under this rule. For purposes of this rule, the following are always considered to be “part of a hospital”: a) if the service is located within a hospital; or, b) if the service is located in a building on the hospital’s primary campus and that building, or relevant portion thereof, is included within the hospital’s permit issued by the State’s licensing agency, subject to determination by the Department. The Department also will make a determination of reviewability on a case-by-case basis in other situations involving hospitals.

Ga. Comp. R. & Regs. r. 111-2-2-.40 (1) (a).

The entirety of Rule 111-2-2-.40 (1) (a) is clearly directed at hospitals, and the clear intent of the rule is to exempt ambulatory surgery services that are considered to be “part of a hospital” from the specific considerations set forth in Rule 111-2-2-.40 (3). That is where the clarity ends.

The “case-by-case” language of Rule 111-2-2-.40 (1) (a) does not provide persons of common intelligence a common understanding as to how the Department would apply the “case-by-case” determination rule “in other situations” involving hospitals. Specifically, while the rule sets forth two clear criteria as to when an ambulatory surgery service is automatically considered “part of a hospital,” the rule provides no criteria or objective standards for a determination of when a surgery service would otherwise be considered to be “part of a hospital.” Compare Charter Medical-Fayette County v. Health Planning Agency, 181 Ga. App. 184, 185 (4) (351 SE2d 547) (1986) (Department regulation regarding hospital bed need was not unconstitutionally vague because it listed several factors Department would use in making its determination). Instead, Rule 111-2-2-.40 (1) (a) gives the Department absolute discretion to determine whether an off-site and off-campus surgery service is “part of a hospital.”

Indeed, the lack of guidelines and unlimited discretion is evidenced by the Department’s own actions in the review process. In the initial determination approving Kennestone’s CON application, the Department provided no explanation for why the ASC was considered “part of the hospital” under the case-by-case determination. At the subsequent administrative appeal hearing, Hopkins, the former executive director of the Division of Health Planning for the Department who made this initial determination, provided vague and inconsistent rationales for her determination. Hopkins first testified that the ASC satisfied subpart (a) of Rule 111-2-2-.40 (1) (a) because it was located within Windy Hill Hospital. She further testified that the ASC satisfied subpart (b) of Rule 111-2-2.40 (1) (a) because the operating rooms were currently located on Windy Hill Hospital’s campus and were included on the hospital’s permit. Additionally, despite the Department’s order stating that it had concluded that the ASC was part of the hospital on a case-by-case determination, Hopkins testified that neither she, nor anyone else at the Department, ever conducted a “case-by-case” determination of whether the ASC was part of a hospital. Although Hopkins later testified that the project was, in fact, reviewed under a “case-by-case” determination, her explanation that such review was based on the current location of the operating rooms is illogical given that the entire purpose of the CON application was to move the operating rooms out of Windy Hill Hospital. Moreover, Hopkins confirmed that: the Department had no written guidelines or limitations, such as geographic distance, regarding a case-by-case determination; she was unaware of prior Department decisions on the issue; and aside from the fact that the ASC would share Windy Hill Hospital’s permit, she was unaware of any other factors that she took into account when making the case-by-case determination. The Department’s explanations clearly show unbridled and unguided discretion. Furthermore, the Department’s explanations as to what it considered in its case-by-case determination are nothing more than post-hoc rationales that are insufficient to save the statute from vagueness. These rationales do not provide fair notice as to clear and definite guidelines that the Department would use in a case-by-case determination. Cf. Hall v. State, 268 Ga. 89, 95 (2) (485 SE2d 755) (1997) (post-hoc rationales cannot save an impermissibly vague statute that allows officials to make determinations based on their subjective and ad-hoc analysis).

Additionally, the Department’s post-hoc explanation showed that it relied primarily on the fact that the ASC would share a common permit with Windy Hill Hospital. A case-by-case determination based principally on common licensure would render subpart (b) of Rule 111-2-2-.40 (1) (a) meaningless, because subpart (b) contains a common licensure requirement, as well as a geographic element (being located in a building on the hospital’s campus). Ga. Comp. R. & Regs. r. 111-2-2-.40 (1) (a). We “must endeavor to give each part of the [regulation] meaning and avoid constructions that make some language mere surplusage or meaningless.” (Punctuation omitted.) Aimwell, Inc. v. McLendon Enterprises, 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012). As a result, the Department’s use of a common license to guide its case-by-case determination is untenable.

Likewise, to the extent the Department asserts that prior agency determinations provide sufficient standards to limit the “case-by-case” language under Rule 111-2-2-.40 (1) (a), those determinations have no application here. Specifically, the Department notes that it had issued multiple rulings stating that Northside’s acquisition of facilities located off its campus would be considered “hospital-based,” if these facilities were added to Northside’s permit once acquired. These rulings, however, were not made in a case such as the one before this Court. Rather, the cited rulings were made in Letters of Determination issued pursuant to Department Rule 111-2-2-.10 following Northside’s acquisition of facilities that already had approved CONs. Under OCGA § 31-6-47 (a) (9), expenditures for the acquisition of existing health care facilities do not require CON approval. Any person proposing such an acquisition, however, must submit a request for a Letter of Determination from the Department, and the Department’s written response (or Letter of Determination) would confirm that the proposed activity was exempt from review. See Ga. Comp. R. & Regs. r. 111-2-2-.10 (2). Rule 111-2-2-.10 specifically provides, however, that

Determinations and Letters of Non-Reviewability are conclusions of the Department that are based on specific facts and are limited to the specific issues addressed in the request for determination or letter of non-reviewability, as applicable. Therefore, the conclusions of a specific determination or letter of non-reviewability shall have no binding precedent in relation to parties not subject to the request and to other facts or factual situations that are not presented in the request.

(Emphasis supplied.) Ga. Comp. R. & Regs. r. 111-2-2-.10 (1) (a). Moreover, “ [t]his rule shall not be construed as providing an administrative remedy for decisions made by the Department pursuant to [OCGA] § 31-6-43, which involve the approval or denial of applications for certificates of need.” Ga. Comp. R. & Regs. r. 111-2-2-.10 (1) (b). Based on the plain language of the Department’s own rules, the decisions it makes in Letters of Determination have no application to other cases, including those involving the grant or denial of CON applications.

We are sympathetic to the fact that a specialized agency may need to make determinations on a case-by-case basis because it will often confront special problems or considerations that require a flexible approach to a resolution. The agency, however, must set identifiable standards to guide its judgment when operating under a case-by-case determination. See Oceana, Inc. v. Locke, 670 F3d 1238, 1241 (II) (D.C. Cir. 2011); cf. Fleck, supra, 260 Ga. at 106 (2) (a) (city code unconstitutionally vague where it gave city officials unlimited discretion over permit applications without defined standards to guide discretion); Davidson Mineral Properties, supra, 257 Ga. at 216 (1) (resolutions struck down on vagueness grounds where they gave Board of Commissioners absolute discretion to grant or deny construction permits with no standards to guide decision); Arras, supra, 255 Ga. at 12 (county ordinance was unconstitutionally vague where it gave Board of Commissioners absolute discretion to grant beer and wine license without ascertainable standards). The Department’s failure to include ascertainable standards to guide the “case-by-case” determination improperly gives it uncontrolled discretion and, therefore, renders the regulation unconstitutionally vague.

Case No. A13A0937

3. In light of our holding in Division 2, we need not address Kennestone’s contention that Rule 111-2-2-.40 (1) (a) is not unconstitutionally vague.

4. Kennestone also argues that the superior court erred in failing to apply judicial estoppel to preclude Northside from taking inconsistent positions on the issue of what off-campus facilities are hospital-based. We disagree.

Under the doctrine of judicial estoppel, a trial court has the discretion to preclude “a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding.” (Citations and punctuation omitted.) Pechin v. Lowder, 290 Ga. App. 203, 203-204 (659 SE2d 430) (2008). Application of judicial estoppel depends on three factors: (1) the party’s later position must be clearly inconsistent with a previously held position; (2) the party must have successfully persuaded a court to accept the earlier inconsistent position; and (3) the party must be in a position to derive an unfair advantage or impose an unfair detriment upon the opposing party if not estopped. Id. at 204.

Decided October 25, 2013

Samuel S. Olens, Attorney General, Alex F. Sponseller, Assistant Attorney General, Parker, Hudson, Rainer & Dobbs, Armando L. Basarrate II, Ashley L. Filip, David A. Cook, Roxana D. Tatman, for appellants.

McKenna, Long & Aldridge, Kathlynn L. Butler, Robert M. Rozier, for appellee.

In support of its argument that Northside has taken inconsistent positions, Kennestone relies upon the Letters of Determination that were discussed above in Division 2. The evidence, at most, shows that Northside had requested that the acquired facilities, which had prior CON authorizations, be transferred to Northside without additional CON review and approval by having the Department confirm that the facilities could be operated by Northside as hospital-based ambulatory surgery services and could be added to the hospital’s permit. The evidence relied upon by Kennestone does not show, however, that Northside requested that new facilities be treated as part of a hospital for purposes of receiving a CON for those new facilities. Additionally, the Department’s rulings on Northside’s requests were made through Letters of Determination, and as set forth above in Division 2, Letters of Determination have no bearing on CON applications, such as the case here. Therefore, Northside has not clearly taken inconsistent positions on the matter of whether a new, off-campus surgery service center is “part of a hospital” for purposes of a CON application. Based on these circumstances, we cannot say that the trial court abused its discretion in failing to apply the doctrine of judicial estoppel.

Judgments affirmed.

Barnes, P. J., and Ray, J., concur.

       The Supreme Court of Georgia has exclusive jurisdiction in “all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question.” Ga. Const. 1983, Art. VI, Sec. VI, Par. II. Administrative regulations, however, are not laws under the meaning of the Constitution, and therefore, this Court has jurisdiction to resolve whether Department Rule 111-2-2-.40 (1) (a) is constitutional. See, e.g., Brosnan v. Undercofler, 220 Ga. 239 (138 SE2d 314) (1964); Professional Standards Comm. v. Alberson, 273 Ga. App. 1, 7 (2), n. 3 (614 SE2d 132) (2005).

       Most of the relevant facts are not in dispute and can be found in the administrative appeal panel hearing officer’s decision.

       “If an ambulatory surgery service, which is part of a hospital, involves a capital expenditure, which exceeds the CON threshold and does not increase the number of ambulatory surgery operating rooms, the project will be reviewed under the General Review Considerations (111-2-2-.09).” Ga. Comp. R. & Regs. r. 111-2-2-.40 (1) (d).

       The Department concedes that it never raised the standing issue below. Kennestone did, however, raise the standing issue during the administrative process, and the superior court considered and rejected Kennestone’s standing argument.

       “The CON program, OCGA § 31-6-40 et seq., establishes a comprehensive system of planning for the orderly development of adequate health care services throughout the state.” (Citations omitted.) Palmyra, supra, 310 Ga. App. at 488. The Department is the “lead planning agency for all health issues” in Georgia and, therefore, is responsible for granting or denying CON applications. OCGA §§ 31-2-1 (1); 31-6-43 (g). To assist in the CON review, the legislature authorized the Department to promulgate rules setting forth the criteria for evaluating applications. See OCGA §§ 31-6-21 (b) (4); 31-6-21.1. At a minimum, a new health care service must be consistent with a list of general considerations, including the establishment of a need for the services. OCGA § 31-6-42 (a).

       It should be noted that it is undisputed that Kennestone’s CON application would not be approved under the more stringent considerations for service-specific criteria set forth in Rule 111-2-2-.40 (3). When applying the service-specific review for ambulatory surgery services, the Department concluded that Kennestone’s CON application would be denied.


author: Phipps, Chief Judge.

text:
    A13A1273.
    A13A1292, A13A1518.
    DODDS v. DABBS, HICKMAN, HILL AND CANNON, LLP. DODDS v. ZACHARIUS et al.; and vice versa.
    (750 SE2d 410)
   Phipps, Chief Judge.

In August 2005, Frank Dodds served upon Savannah Air Center, LLC (a business in which he owned a 25 percent interest) and upon Jeff Zacharius, Hossein Motlagh, Iraj Shambayati, and Shahinlsad-Doost (his alleged co-members of Savannah Air; Savannah Air and Dodds’s alleged co-members of Savannah Air shall hereinafter be referred to collectively as “SAC”) notice of his intent to withdraw as a member of Savannah Air. In May 2007, Dodds and Savannah Air reached a settlement concerning the value of Dodds’s interest in Savannah Air, and Dodds executed a “General Release,” discharging Savannah Air and those in privity with Savannah Air from all claims, demands, rights, and causes of action, concerning matters arising from Dodds’s employment, membership, and ownership in Savannah Air.

Despite the release, Dodds subsequently filed two lawsuits — one in April 2008 (which was dismissed and renewed in March 2010) against SAC, and another one in September 2010 against an accounting firm (Dabbs, Hickman, Hill and Cannon, LLP) Savannah Air had retained after Dodds had given SAC his withdrawal notice, but before settlement was reached. Dodds claimed that after the settlement he had received tax documents (drawn by the accounting firm) indicating that some settlement funds had been allocated as income disbursements for the two years following the year of Dodds’s withdrawal notice, that the allocations were contrary to SAC’s presettlement representations to Dodds that SAC no longer considered Dodds a member of Savannah Air after Dodds had served his withdrawal notice, and that the allocations exposed Dodds to significant tax consequences.

SAC and the accounting firm moved for summary judgment, which the trial court granted. SAC also moved to dismiss the complaint, but the trial court denied that motion. In Case No. A13A1292, Dodds appeals the trial court’s grant of summary judgment in favor of SAC, enumerating two errors which are reflected in Dodds’s view that “[wjhile [he] has been reimbursed [by the IRS] for the taxes he never should have had to have paid to begin with, he has nonetheless sustained financial harm in this case due to the time and money he has spent litigating this matter and resolving the tax issues.” In Case No. A13A1273, Dodds appeals the trial court’s grant of summary judgment in favor of the accounting firm, contending that the trial court erred in determining that the terms of the release he signed discharging Savannah Air of certain rights, responsibilities and/or liability precluded his lawsuit against the accounting firm, and that the trial court erred in failing to find that the release was procured by fraud and therefore unenforceable. In Case No. A13A1518, SAC appeals the trial court’s denial of its motion to dismiss the complaint.

Based on the evidence and applying standard rules of contract construction to the release in this case, we conclude that the trial court did not err in granting summary judgment to SAC and to the accounting firm. Therefore, we affirm the trial court’s grant of summary judgment in favor of SAC in Case No. A13A1292, and we affirm the trial court’s grant of summary judgment in favor of the accounting firm in Case No. A13A1273. Because of our conclusion reached in Case No. A13A1292, we dismiss Case No. A13A1518 as moot.

To prevail at summary judgment..., the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.[] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case____If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Viewed to support Dodds, the evidence showed the following. The settlement agreement, signed May 16, 2007, provided that Savannah Air would pay Dodds $4.6 million

in full and final settlement of all claims of any kind, that [Dodds] has against [Savannah Air], all those in privity with [Savannah Air] and [Savannah Air’s] employees, principals, affiliates, shareholders, managers, members, predecessors, assigns, accountants, attorneys and anyone else who [Dodds] has or may have a claim against in [sic] way arising from or relating to [Savannah Air].

The settlement agreement also provided that Dodds would execute a release of all claims in favor of Savannah Air and those in privity with Savannah Air, as to anyone Dodds “has or may have a claim against.” And Dodds executed such a release, which contained the following provision: “Dodds represents that no promise, inducement, or agreement not herein expressed has been made and that this Release contains the entire agreement between the parties.”

After the parties had executed the settlement agreement and Dodds had executed the release, Dodds was sent tax documents indicating that in 2006, he had received income from Savannah Air in the amount of almost $600,000, and that in 2007, he had received income from Savannah Air in the amount of more than $600,000.

Case No. A13A1292

1. Dodds contends that the trial court erred in granting summary judgment in favor of SAC and in concluding that “[t]here is no evidence to support the claim of fraudulent inducement so as to set aside the Release.”

Dodds claims that SAC’s actions subsequent to the settlement, of providing him with tax forms designating a substantial portion of the settlement amount as income he received from Savannah Air in 2006 and 2007, reflected that SAC considered him to be a member of Savannah Air during those years, despite SAC’s representations to Dodds during settlement negotiations that SAC did not consider Dodds to be a member of Savannah Air after Dodds (in August 2005) notified SAC of his intent to withdraw his membership. The inconsistency, Dodds claims, evidenced that Dodds’s approval of the settlement agreement and execution of the release were procured by fraud.

“In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud.” “Critical to rescission is the tender of benefits, the prompt restoration or offer to restore whatever the complaining party received by virtue of the contract.” “A party seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so.” “Rescission or attempted rescission is a condition precedent even to bringing an action seeking rescission.”

Here, despite Dodds’s claim in his complaint for rescission of the settlement agreement and release (hereinafter, the “settlement”), there was no evidence that Dodds tendered back to Savannah Air the $4.6 million he received as part of the settlement. And we are not persuaded by Dodds’s bare assertion that “[o]n the facts of this case, rescission and restoration of the benefits conferred by the settlement [was] unreasonable and impossible,” on the grounds that he had already distributed “a considerable portion of the settlement proceeds to the [IRS].” “Restoration does not require that the other party be placed in the exact situation it was in before the contract, but only that it be placed substantially in its original position. The rescinding party must derive no unconscionable advantage from the rescission.”

Dodds made no showing that he restored, or offered to restore to Savannah Air any of the $4.6 million he received pursuant to the settlement. He failed to put Savannah Air in substantially the same position as before the settlement. And by retaining settlement funds (minus any amount he purportedly paid in taxes), Dodds would have derived an “unconscionable advantage” from any rescission of the release.

Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity.

After receiving the tax document for the 2006 tax year, Dodds admittedly chose to file with the IRS an amended return for tax year 2006, thereby acknowledging that he received the reported income for that year; he then chose to later apply with the IRS for a reimbursement of taxes that he had paid on the allegedly “wrongfully allocated” funds, which reimbursement he admits he received.

Instead of returning to Savannah Air the settlement funds which he received, Dodds showed an intent to treat the funds as his, thereby opting to affirm the settlement and sue for damages from the alleged fraud or breach. Dodds was thus bound by the terms of the release, which included an “entire agreement” clause. “Therefore, [Dodds was] estopped from arguing that [he] relied on representations other than those contained in the contract. Stated another way, the entire agreement clause operates as a disclaimer, establishing that the written agreement completely and comprehensively represents all the parties’ agreement.”

Dodds points out that SAC wrote him a letter stating that it (SAC) did not consider Dodds a member of Savannah Air, as of the time Dodds served upon SAC his withdrawal notice. But there was no evidence that the letter was incorporated into the release, and thus, the parties were not bound by any representations made in the letter. And “reliance on . . . alleged [oral] misrepresentations is barred by the merger clause as well.” Therefore, Dodds’s assertion, even if true, that “the record is clear that [SAC’s] position with respect to Dodds’s membership status was not based solely on the statement in the letter issued by SAC’s counsel, but rather was reiterated by consistent, repeated statements to the effect that Dodds’s interest had terminated as of the date of his Letter of Intent,” is of no avail.

Accordingly, SAC was entitled to judgment as a matter of law, and the trial court did not err in granting summary judgment in favor of SAC as to Dodds’s claim that he was fraudulently induced to execute the release.

2. Dodds contends that the trial court erred in granting summary judgment to SAC as to the remaining claims he asserted in his complaint. The trial court ruled that those claims were barred pursuant to the terms of the release. We agree with the trial court.

In Division l, we determined that Dodds was bound by the terms of the release. “A release or settlement agreement is a contract subject to construction by the court. It is governed by state law applicable to contracts in general.” “The construction of a contract is a question of law for the court.” “However, where the language of a contract is clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible by the trial court.” Dodds concedes that the release was executed “[i]n connection with the settlement [agreement].”

The “General Release” which Dodds executed pursuant to the settlement agreement provided, in pertinent part, as follows.

[Dodds] . . . does hereby . . . acquit, remise, release, and forever discharge SAVANNAH AIR CENTER, LLC, a Georgia limited liability company, Jeffrey D. Zacharius, Gholamhossein Motlagh, fraj [sic] Shambayati and Shahin Isadoost, as well [sic] any other Members or Managers, past, present or future, as well as their attorneys, agents, employees, heirs, executors, administrators, predecessors, successors and assigns (collectively “SAC”), from any and all claims, demands, rights, and causes of action of every kind and nature, known and unknown, all damages, lost earnings, breach of fiduciary duty, taxes, distributions, opportunity costs, attorney fees and any other expenses that belong to Dodds or which may hereafter accrue to Dodds resulting from his employment, Membership and Ownership Interest in Savannah Air Center, LLC ....

The settlement agreement and release were clear and certain in their terms that Dodds could not sue SAC for any claim that existed at the time the settlement agreement and release were executed or for any claim which may have thereafter accrued, and related to or resulted from Dodds’s employment, membership, and ownership interest in Savannah Air.

It is axiomatic that contracts must be construed in their entirety and in a manner that permits all of the terms contained therein to be consistent with one another. Of course, the terms and phrases contained in a contract must be given their ordinary meaning. As always, the paramount rule in construing a contract is to ascertain the intention of the parties.

Indeed, the “release extinguished] [against SAC] the entire cause of action.” Accordingly, the trial court did not err in granting summary judgment to SAC as to Dodds’s remaining claims.

Case No. A13A1273

3. Dodds contends that the trial court erred in granting summary judgment to the accounting firm on the ground that Dodds’s claims were precluded pursuant to the terms of the settlement reached between Dodds and Savannah Air. Specifically, Dodds asserts that the language in the release, discharging from “any and all claims” Savannah Air and its “agents,” fails to “meet the Lackey [v. McDowell] [] standard so as to release the claims against [the accounting firm].” “In reviewing a question of law, as here, we owe no deference to a trial court’s ruling on a legal question.”

In Posey v. Medical Center-West, the Supreme Court of Georgia said: “[T]he intent of the parties to [a] release regarding its effect may be proven by external evidence as against a third party. One not a party to the release may not object to the external evidence under the parol evidence rule.” In Lackey the Court took the “opportunity to modify Posey, so as to provide a clearer rule: Only those parties named in the release will be discharged by that instrument.” And by “named,” the Court meant “being identified either by proper name or such other description as leaves no question of the identity of the party released.” The Court reasoned that this clearer rule “should eliminate the need to inquire as to the intent of the parties to releases executed after the date of this opinion.” Thus, parol evidence is inadmissible for determining which persons are covered or bound by a release.

Although the settlement agreement provided that Dodds agreed that “[u]pon payment of said $4.6 million, [he would] execute a release of all claims in favor of [Savannah Air], those in privity with [Savannah Air] and [Savannah Air’s] employees, principals, affiliates, shareholders, accountants, members, managers, predecessors, assigns, attorneys and anyone else who [Dodds] has or may have a claim against,” the release Dodds executed did not employ the terminology “accountants” in enumerating those discharged thereby. But the trial court held that Savannah Air’s accounting firm was an “agent,” because the accounting firm rendered professional services to Savannah Air, and thus, was covered by the release. There is authority to support the trial court’s ruling.

In Harkins v. CA 14th Investors, a worker injured in a parking deck at work reached a settlement with his employer, and as part of that settlement, the worker executed a release which

contained language by which [the worker] agreed to fully waive, discharge, and release any and all claims of whatever nature, known or unknown, I may have against [the employer], its parent, subsidiaries, affiliated and related companies, [and] their respective owners, ... as a result of actions or omissions occurring through this date.

This court affirmed the trial court’s grant of summary judgment to a business entity that partly owned the parking deck, as did the employer, holding that the business entity fit within the category of “affiliated and related companies,” as identified in the release.

In reaching this result, the court found “no ambiguity in the terms ‘affiliated’ and ‘related’ companies.” The court recognized that “[t]he fact that the scope of the release is broad does not make it ambiguous,” that “[t]he words in a contract generally bear their ‘usual and common signification,’ ” and that “dictionaries may supply the plain and ordinary meaning of a word.” Looking then to Black’s Law Dictionary, the court defined the terms “affiliate,” “affiliate company,” and “related.”

We apply those principles here. According to Black’s Law Dictionary, the term “agent” means “[o]ne who is authorized to act for or in place of another; a representative.” Savannah Air had retained the services of the accounting firm before Dodds and Savannah Air had reached a settlement. Therefore, the trial court was authorized to conclude that the accounting firm was authorized to act for or in place of Savannah Air concerning financial matters, that the accounting firm fit within the category of “agents,” and that the accounting firm was thereby released from liability for claims then existing and for claims which may have accrued after Savannah Air’s buy-out of Dodds’s interest in Savannah Air and that resulted from Dodds’s employment, membership, and ownership interest in Savannah Air.

Decided October 25, 2013

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellant.

Cruser & Mitchell, Joseph R. Cruser, Craig P. Terrett, Oliver Maner, Patrick T. O’Connor, Timothy D. Roberts, Jeffrey S. Vaughan, for appellees.

Accordingly, the trial court did not err in granting the accounting firm’s motion for summary judgment.

4. Dodds contends that the trial court erred in granting summary judgment to the accounting firm because the accounting firm, in defense of the lawsuit against it, was allowed to “invoke [ ]” a fraudulently executed release.

As we have determined in Division l, there was no competent evidence that Dodds was fraudulently induced to execute the release, and therefore, Dodds’s contention fails.

Case No. A13A1518

5. SAC contends that the trial court erred in denying its motion to dismiss the case. Because we affirm the trial court’s grant of summary judgment to SAC in Case No. A13A1292, this issue is moot. Therefore, we dismiss the appeal in Case No. A13A1518.

Judgments affirmed in Case Nos. A13A1273 and A13A1292.

Appeal dismissed in Case No. A13A1518.

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

       As against SAC, Dodds asserted claims for fraud/negligent representation, breach of contract, unjust enrichment, breach of fiduciary duty, rescission of settlement agreement/release, declaratory judgment, attorney fees and litigation expenses, and punitive damages.

       As against the accounting firm, Dodds asserted claims for breach of a duty of due care, punitive damages, and attorney fees and litigation expenses.

       OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (citations and emphasis omitted).

        Carter v. Moody, 236 Ga. App. 262, 263 (511 SE2d 520) (1999) (“A de novo standard of review applies to an appeal from a grant or denial 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.”) (citation and punctuation omitted).

        Ainsworth v. Perreault, 254 Ga. App. 470, 471 (1) (563 SE2d 135) (2002) (citations omitted).

        Meadow River Lumber Co. v. Univ. of Ga. Research Foundation, 233 Ga. App. 169, 175 (2) (503 SE2d 655) (1998) (citation and punctuation omitted).

        Wender & Roberts, Inc. v. Wender, 238 Ga. App. 355, 360 (5) (518 SE2d 154) (1999).

        Cotton v. Bank South, 231 Ga. App. 812, 815 (1) (499 SE2d 129) (1998) (citation and punctuation omitted); see Novare Group v. Sarif, 290 Ga. 186, 188 (1) (718 SE2d 304) (2011) (demand for rescission, served contemporaneously with the filing of lawsuit, “cannot be held to satisfy the prerequisite” of the rule requiring one who seeks the rescission of a contract on the ground of fraud to restore, or offer to restore, the consideration received, as a condition precedent to bringing the action).

        Wender & Roberts, supra (citations omitted).

       Compare Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589, 591 (1) (411 SE2d 518) (1991) (return of property not necessary for rescission where defrauding party made it impossible or unreasonable).

       See generally Wender & Roberts, supra.

        Meadow River Lumber Co., supra at 176 (2) (punctuation and footnote omitted); OCGA § 13-4-60 (“A contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.”).

         See Novare Group, supra; Lakeside Investments Group v. Allen, 253 Ga. App. 448, 452 (2) (a) (559 SE2d 491) (2002) (buyer claiming it was fraudulently induced to enter a contract undisputably affirmed contract when, after learning of the fraud, it had the property rezoned and huilt an office building thereon with plans to build more; even though the buyer may have early on unsuccessfully attempted to rescind the contract, improving the property thereafter showed an intent to treat the property as the buyer’s own and thereby affirmed the contract); Wender & Roberts, supra at 360-361 (5); Meadow River Lumber Co., supra at 175-176 (2).

       See Meadow River Lumber Co., supra at 173 (1) (“Where the allegedly defrauded party elected to affirm the contract, that party is bound by the contract’s terms and is subject to any defenses which may be based on the contract.”) (punctuation and footnote omitted).

        Ainsworth, supra at 472 (1) (citations and punctuation omitted); Novare Group, supra at 190 (3) (‘Where a purchaser affirms a contract that contains a merger or disclaimer provision, he is estopped from asserting reliance on a representation that is not part of the contract.” Since purchasers did not properly elect rescission as a remedy and were not entitled to rescission as a remedy, they were bound by the terms of their agreements, and therefore, purchasers could not maintain their claims for fraud in the inducement based on active concealment, negligent misrepresentation, or the Fair Business Practices Act) (citation omitted); see Driscoll v. Schuttler, 697 FSupp. 1195, 1202 (N.D. Ga. 1988).

        See Ainsworth, supra.

        Ainsworth, supra at 474 (1) (citation omitted).

       The remaining claims were for negligent misrepresentation, breach of contract, unjust enrichment, breach of fiduciary duty, declaratory judgment, attorney fees and litigation expenses, and punitive damages.

       Supra.

        UniFund Financial Corp. v. Donaghue, 288 Ga. App. 81, 82 (653 SE2d 513) (2007) (punctuation and footnote omitted).

       OCGA § 13-2-1.

        Ainsworth, supra at 476 (4) (citation and punctuation omitted).

        Thompson v. Allstate Ins. Co., 285 Ga. 24, 29 (3) (673 SE2d 227) (2009) (except for determining which persons are covered or hound by the release, parol evidence is always admissible as to what and whose claims were released).

        Schwartz v. Schwartz, 275 Ga. 107, 108 (1) (561 SE2d 96) (2002) (footnotes omitted).

        Miller v. Grand Union Co., 270 Ga. 537, 538 (1) (512 SE2d 887) (1999).

       See generally Ainsworth, supra at 476-477 (4).

       262 Ga. 185 (415 SE2d 902) (1992).

        Carey v. Houston Oral Surgeons, 265 Ga. App. 812, 815 (1) (595 SE2d 633) (2004) (footnote omitted).

       257 Ga. 55 (354 SE2d 417) (1987).

       Id. at 59 (citations omitted).

       Supra.

        Lackey, supra at 186 (footnote omitted).

       Id. at 186, n. 3.

       Id. at 186.

        Thompson, supra at 29 (3); Miller, supra (‘Posey requires that the master he named in a release if he is to be discharged thereby”) (citations omitted).

       (Emphasis supplied.)

       247 Ga. App. 549 (544 SE2d 744) (2001).

       Id. at 549-550.

       Id. at 551.

       Id. at 550.

       Id. at 550 (citation and punctuation omitted).

       Id. at 550, citing OCGA § 13-2-2 (2) (punctuation omitted).

       Id. at 550 (citation omitted).

       Id. at 550-551.

       Black’s Law Dictionary (9th. ed. 2009).

       See Harkins, supra at 551; Driscoll, supra at 1200, 1203-1204 (accountant defendant not identified in release by proper name, was held to have been covered under the release terms of “advisors or agents” involved in deal to cancel a management agreement and certain indebtedness).

        Harkins, supra; Driscoll, supra.

       Supra.

        Meadow River Lumber Co., supra (“Where the allegedly defrauded party elected to affirm the contract, that party is bound by the contract’s terms and is subject to any defenses which may be based on the contract.”) (punctuation and footnotes omitted).


author: BARNES, Presiding Judge.

text:
    A13A1373.
    MARSHALL v. THE STATE.
    (750 SE2d 418)
   BARNES, Presiding Judge.

Demario Antwon Marshall appeals his convictions for aggravated assault and possession of a firearm during the commission of a felony. He contends that he received ineffective assistance of counsel, that the trial court erred in its instructions to the jury, that the evidence was insufficient to support the conviction, and that the trial court erred in allowing the district attorney to recite his arrest record at sentencing. Finding no reversible error, we affirm.

Construed in favor of the verdict, the evidence shows that while the victim, Marshall’s ex-girlfriend, was lying across the passenger seat of her car attempting to release the hood of the car and talking to her mother on her cell phone, Marshall approached her and attempted to strike up a conversation. The victim, who had recently broken off their relationship, continued “talking to [her] mother like he wasn’t there.” Marshall grabbed the victim’s legs, pulled her out of the car and across the pavement, and shot at her at least three times but did not hit her. A neighbor, who had observed Marshall standing over the victim in the parking lot, interrupted the confrontation, enabling the victim to escape to her own apartment and call the police. Marshall fled the scene.

At trial, Marshall testified that the gun did not belong to him, but that the victim had retrieved the gun from the glove box of her car when he confronted her about stealing his laptop. He also testified that the gun discharged as they struggled for control of it. Marshall denied that he and the victim had a romantic relationship.

As a preliminary matter, we note that, for the most part, Marshall’s appellate brief does not comply with Court of Appeals Rule 25, which requires citation to both the record and authorities, and a reasoned argument. “[NJonetheless, we will review [his] claims of error to the extent we can, based on what we perceive [his] arguments to be.” (Citation and punctuation omitted.) Sevostiyanova v. State, 313 Ga. App. 729, 729-730 (722 SE2d 333) (2012).

1. Marshall contends that he received ineffective assistance of counsel because his attorney did not investigate the case, did not request a continuance so that a private investigator would be available to testify, and did not object to the prosecutor’s statements at sentencing.

[To] prevail on a claim of ineffective assistance of trial counsel, an appellant has to demonstrate that his or her attorney’s performance was deficient, and that the deficiency caused such prejudice that there is a reasonable likelihood that, but for the attorney’s error, the outcome at trial would have been different; in so doing, appellant must overcome the strong presumption that counsel’s conduct fell within the range of reasonable professional conduct, which is broad. In its review, this Court gives deference to the trial court’s factual findings, which are to be upheld unless clearly erroneous, and examines the lower court’s legal conclusions de novo.

(Citations omitted.) Dulcio v. State, 292 Ga. 645, 649-650 (3) (740 SE2d 574) (2013). See also Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

(a) Marshall maintains that, had his attorney properly investigated the case, he would have uncovered the victim’s admission that she and Marshall were not previously in a romantic relationship and her complaint against the responding police officer for sending an inappropriate text message. These contentions of ineffectiveness, however, were not raised in Marshall’s motion for a new trial or at the motion hearing, and thus are waived. Whorton v. State, 318 Ga. App. 885, 893 (4) (e) (735 SE2d 7) (2012).

(b) Marshall also maintains that trial counsel provided ineffective assistance for failing to request a continuance so that an investigator could appear at trial to testify on his behalf. But the investigator did not testify at the motion hearing, and Marshall’s “testimony about what he thought the [witness’s] testimony might have been was mere speculation and hearsay.” Felder v. State, 286 Ga. App. 271, 277 (5) (a) (648 SE2d 753) (2007). Moreover, “[w]here, as here, the defendant fails to proffer the testimony of an uncalled witness, he cannot prove that there is a reasonable probability that the trial would have ended differently.” (Citation omitted.) McDaniel v. State, 279 Ga. 801, 802 (2) (c) (621 SE2d 424) (2005). Accordingly, the trial court committed no error in concluding that trial counsel did not render ineffective assistance on this basis.

(c) Marshall also argues that trial counsel should have objected to the prosecutor’s statements at sentencing regarding his prior arrests. He contends that the prosecutor’s statements amounted to a denial of his constitutional rights, but Marshall does not recount the improper statements or describe how they affected his rights. At the sentencing hearing, the prosecutor stated that “this was [Marshall’s] ninth arrest,” and that although he did not have any felony convictions on his record, he had a 2007 arrest for domestic violence which the victim declined to prosecute.

At the motion hearing, appellate counsel “never asked defense counsel to explain why he did not object. Thus, [he] failed to overcome the strong presumption that the inaction was a strategic decision.” (Punctuation omitted.) Goodman v. State, 293 Ga. 80, 87 (9) (c) (742 SE2d 719) (2013). Moreover, even if the prosecutor’s statements regarding the prior arrests were in any way improper, there was no evidence that the trial court considered the prior arrests in imposing its sentence. Marshall was sentenced to five years in confinement on the aggravated assault conviction, and five years of probation on the firearm conviction, to be served consecutively. He has not shown a reasonable probability that his sentence would have been different but for trial counsel’s failure to object to the prosecutor’s statements regarding his prior arrests. See Wright v. State, 265 Ga. App. 188, 191 (3) (b) (593 SE2d 391) (2004).

2. Marshall maintains that the trial court erred by failing to charge the jury on the elements of simple assault.

Because Marshall did not object to the jury charges at trial, we review his contention on appeal for “plain error.”

The plain error test... authorizes reversal of 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.

(Citation omitted.) Holloman v. State, 293 Ga. 151, 152 (2) (744 SE2d 59) (2013). “On ‘plain error’ review, the presence of actual legal error is not enough, as the jury instruction in question must have an obvious defect rather than a merely arguable defect.” (Citation omitted.) Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669) (2012).

In this case, although unclear, Marshall seems to be arguing that the trial court should have charged the jury on the elements of simple assault as well as aggravated assault because the victim suffered no injury and “the jury would need to understand the substantive points or issues involved in the aggravated assault case.”

Under OCGA § 16-5-20 (a), simple assault is defined as either an attempt to commit a violent injury to the person of another or the commission of an act which places another in reasonable apprehension ofimmediately receiving a violent injury. Under OCGA § 16-5-21 (a), a person can commit the offense of aggravated assault in several ways, one of them being to commit an assault with a deadly weapon. OCGA § 16-5-21 (a) (2). Marshall was indicted for aggravated assault for shooting at the victim with a handgun, a deadly weapon. The trial court charged the jury that

[a] person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute such an assault, actual injury to the victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury. The State must prove as a material element of aggravated assault, as alleged in this case, that the assault was made with a deadly weapon. And I charge you that a firearm, when used as such, is a deadly weapon as a matter of law.

Thus, the trial court properly charged the jury with the applicable assault definition, which was an act that places another in reasonable apprehension of immediately receiving a violent injury. Absent an erroneous charge, Marshall has not established the existence of plain error.

3. Marshall contends that the evidence was insufficient to support his conviction.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. Further, we neither resolve conflicts in the evidence nor assess witness credibility, but merely determine the legal sufficiency of the evidence. When an appellant challenges the sufficiency of the evidence to uphold [his] conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Hines v. State, 320 Ga. App. 854, 856 (1) (740 SE2d 786) (2013). See also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Marshall merely contends that there was “conflicting evidence as to whether the victim actually was assaulted or whether it was a struggle over a firearm pulled by the victim and resulting in the errant shot seen by the only eyewitness.” This argument is without merit.

The victim testified that Marshall shot at her at least three times, and her neighbor testified that she saw “the young lady ... on the groundf,] and [Marshall] was [standing] over her.” “The testimony of a single witness is generally sufficient to establish a fact.” Former OCGA § 24-4-8 (2012). Moreover, “it was the role of the jury, not this Court, to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Jackson v. State, 316 Ga. App. 588, 590 (1) (730 SE2d 69) (2012). As long as some competent evidence, even though contradicted, supports each fact necessary to make out the State’s case, we will uphold the convictions. Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012).

Decided October 25, 2013.

Jonathan R Waters, for appellant.

Gregory W. Winters, District Attorney, Sandra G. Matson, Dorothy V. Hull, Assistant District Attorneys, for appellee.

Thus, in this case, the evidence was sufficient to authorize the jury to convict Marshall of aggravated assault and possession of a firearm during the commission of a felony.

4. Marshall’s contention that the trial court erred in allowing the district attorney to recount his arrest record at sentencing is merit-less. The prosecutor did not give a “lengthy diatribe” or address Marshall’s prior arrest in “such detail” as he alleges. Marshall’s former arrests were not discussed, other than to point out that the present case was his ninth arrest, that he was arrested in 2007 for domestic violence, and that the victim in that case did not want to pursue the charges.

As noted earlier, absent evidence showing otherwise, “we must apply the presumption that the judge considered only those matters which may be lawfully considered in determining a sentence.” (Citation and punctuation omitted.) Wright, 265 Ga. App. at 190 (2). Applying that presumption, we find no error.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Currently codified at OCGA § 24-14-8 (2013).