text:
    A11A1107.
    SMITH v. THE STATE.
    (718 SE2d 43)
   Barnes, Presiding Judge.

Jody Smith appeals his convictions for two counts of rape, two counts of robbery by force, and kidnapping. He contends he was denied due process of law because the trial court did not replace his appointed defense counsel. He also contends the trial court erred by seating one juror and excusing another, by denying his motion for a directed verdict in his competency trial, and by sentencing him as a recidivist. Smith further contends that the evidence was insufficient to establish the asportation necessary to prove the crime of kidnapping. Finding no error, we affirm the trial court.

Viewed most strongly in support of the verdict, the evidence shows that a victim testified that a man gained entrance to her apartment by telling her he was there to check the water, then forced her into a bedroom and raped her. As he was leaving, the man took a ring from the victim’s finger. The victim identified Smith at trial as the man who raped her.

Another victim testified that a man grabbed her in her apartment building’s laundry room, forced her into a restroom stall, and raped her. Afterward, the assailant took a ring from the victim’s finger. This victim, who is visually impaired, did not identify Smith as the man who raped her, but a maintenance man identified Smith as the man he saw in the laundry room earlier on the day of the attack.

Smith’s DNA was found to match DNA obtained from both victims. The State’s forensic expert testified that the odds of such a match were one in ten billion.

1. Smith contends he was denied due process of law because he had a conflict with his appointed defense counsel. Although couched initially as a Fifth Amendment violation, Smith alleges a Sixth Amendment claim. He contends that because he was abused by his African-American grandmother, he had an “unworkable relationship” with his female African-American public defender. Before trial, Smith informed the court of his dissatisfaction and asked the court to replace her. At Smith’s competency trial, his public defender informed the court that Smith would not talk to her and sought permission to withdraw. The trial court deferred ruling on the request, and subsequently denied counsel’s request to withdraw.

Smith points to no particular instance manifesting this conflict with his defense counsel. Instead, he argues that this is an occasion when the evidence of ineffectiveness is so pervasive that a particularized inquiry into prejudice would be “unguided speculation,” citing Ross v. Kemp, 260 Ga. 312, 315 (393 SE2d 244) (1990). The full quotation from Ross, however, demonstrates why this rule is inapplicable here:

The presentation of a fractured defense, and the placement of petitioner on the stand with no preparation whatsoever in a trial in which his life hung in the balance is evidence of ineffectiveness so pervasive that a particularized inquiry into prejudice would be “unguided speculation.”

(Citation and punctuation omitted.) Id. No such evidence of ineffectiveness exists in this appeal.

Further, “[t]he circumstances under which a court will presume prejudice are extremely limited,” Owens v. State, 269 Ga. 887, 888 (2) (a) (506 SE2d 860) (1998), and apply “in only a narrow range of circumstances.” State v. Heath, 277 Ga. 337 (588 SE2d 738) (2003). Our Supreme Court has identified only three instances in which a defendant is authorized to rely upon a presumption of ineffective prejudice: “(1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel [who] labors under an actual conflict of interest that adversely affects his performance.” (Citation omitted.) Id. at 338. Only the first instance could possibly apply here, but Smith was not actually denied counsel, and constructive denial is only present when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing. Id. To meet this test, the “attorney’s failure must be complete” and must occur throughout the proceeding, not merely at specific points. Bell v. Cone, 535 U. S. 685, 697 (II) (122 SC 1843, 152 LE2d 914) (2002). This is not a case in which “counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,” and thus Smith was not constructively denied counsel. Turpin v. Curtis, 278 Ga. 698, 699 (1) (606 SE2d 244) (2004).

Consequently, as Smith has made no showing of deficient performance by his counsel and has not even attempted to show prejudice, he has not demonstrated either a Sixth Amendment or Fifth Amendment violation. This enumeration of error is without merit.

2. Smith alleges the trial court erred by denying his motion for a directed verdict in his competency trial. Competency hearings are in the nature of a civil proceeding with the defendant bearing the burden of proof:

OCGA § 16-2-3 establishes the presumption that a person is mentally competent to stand trial. OCGA § 17-7-130 (a) permits a criminal defendant to procure review of mental competency by properly alleging mental incompetency to stand trial. Once alleged, the court is required to conduct a trial whereby a special jury determines the defendant’s mental competency. We have previously held that an OCGA § 17-7-130 special jury trial proceeding to determine competency is in the nature of a “civil proceeding” wherein the defendant bears the higher burden of persuading the jury by a preponderance of the evidence he is mentally incompetent.

(Citation and punctuation omitted.) Sims v. State, 279 Ga. 390, 390-391 (1) (614 SE2d 73) (2005). A directed verdict is authorized only when there is no conflict in the evidence on any material issue and, with all reasonable deductions construed in favor of the nonmoving party, the evidence demands a certain verdict. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268) (1990); McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 179 (129 SE2d 408) (1962). Further, the trial court is not authorized to weigh the evidence or decide issues of fact. Barber v. Atlas Concrete Pools, 155 Ga. App. 118, 118-119 (2) (270 SE2d 471) (1980). Here, even though Smith’s expert witness opined that Smith was not competent to stand trial, the State’s expert testified that Smith was competent to do so. Smith contends that a directed verdict was warranted because his expert conducted a more thorough evaluation of his competency. The State’s expert, however, reviewed the results of the tests performed by Smith’s expert and conducted her own evaluation of Smith’s mental health to find him competent to stand trial. Consequently, as the evidence on competency was in conflict, the trial court did not err by denying Smith’s motion for a directed verdict on this issue.

3. Smith contends the trial court erred during jury selection for the competency hearing by excusing a potential juror who voiced concern about her ability to be fair and impartial because her husband was mentally ill. She testified, ‘T feel I would feel sorry for someone that is mental [sic] because I live with that every day and know what it does to a person because I know what it’s done to me as a person.” When asked by the trial court whether she could make a fair and impartial decision on whether Smith was competent, she replied that she did not think she could because the stress would be too much. The juror also stated that she could not separate her emotions from the evidence presented because a mentally ill person has no control over his actions. Smith contends the trial court erred by excusing this juror because the evidence did not show that she had such a fixed and definite opinion that it would not be changed by the evidence and the charge of the court.

Smith further contends the trial court erred by failing to excuse another juror during the guilt-innocence trial who stated that she had been the victim of an attempted rape and that it would be hard for her to be fair and impartial. The trial court noted that the juror said that she could be fair to Smith, and in the court’s opinion, the juror did not hold a fixed opinion regarding Smith’s guilt.

The decision to strike a potential juror for cause lies within the sound discretion of the trial court, and before a potential juror is so excused, it must be shown that the individual holds an opinion of the defendant’s guilt or innocence that is so fixed and definite that the individual will not be able to set the opinion aside and decide the case based upon the evidence and the court’s instructions.

(Citation omitted.) Stokes v. State, 281 Ga. 825, 827 (2) (642 SE2d 82) (2007). Given that the first juror expressed an inability to judge Smith’s competency on the merits, and that after the second juror expressed a willingness to be fair the trial court found she had no fixed opinion about Smith’s guilt, the trial court did not abuse its discretion by excusing the first juror and denying Smith’s challenge to the second. These enumerations of error are without merit.

4. Smith argues that the trial court erred in sentencing him to life without parole as a recidivist.

(a) Smith first argues that his sentence of life without parole was not authorized because the judge failed to mention OCGA § 17-10-7 when he orally pronounced sentence, but included the Code section in the written final disposition. We disagree. While the court cannot increase a defendant’s punishment in its written sentence, Hinton v. State, 127 Ga. App. 853 (195 SE2d 472) (1973), in this case Smith’s sentence did not change. He was still sentenced to life in prison without parole.

(b) Smith argues that neither the State’s notice of evidence in aggravation of sentence nor his written sentence specifies which subsection of OCGA § 17-10-7 was being applied to him, but that the trial court had the discretion to sentence him under subsection (b) to a term of years because none of Smith’s previous convictions were for a violent felony.

OCGA § 17-10-7 provides:

(a) Except as otherwise provided in subsection (b) of this Code section, any person convicted of a felony offense in this state . . . , who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.
(b) (1) As used in this subsection, the term “serious violent felony” means a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1.
(2) Any person who has been convicted of a serious violent felony in this state . . . and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole. Any such sentence of life without parole shall not be suspended, stayed, probated, deferred, or withheld, and any such person sentenced pursuant to this paragraph shall not be eligible for any form of pardon, parole, or early release . . . except as may be authorized by any existing or future provisions of the Constitution.
(c) Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies . . . commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

We find no error in the sentencing. The case law is clear that subsections (a) and (c) of OCGA § 17-10-7 must be read together and the record is clear that both subsections apply in this case. The State introduced certified records of Smith’s six prior felony convictions, about which it had given notice, and argued that Smith should be sentenced to two consecutive life sentences without the possibility of parole plus another 60 years, consecutive to the life sentences, under OCGA § 17-10-7 (c). Under the applicable version of OCGA § 17-10-7, the trial court was required to sentence Smith to life imprisonment without eligibility for parole.

While it might have been the better practice for the trial court to plainly indicate on its final disposition which subsection of the repeat offender statute applies to [Smith’s] recidivist sentence, the failure to do so does not amount to reversible error. As in Gilbert [v. State, 265 Ga. App. 76, 79 (4) (593 SE2d 25) (2003)], the record here is clear as to how many felonies the trial court was relying upon, and therefore it was easily discernible pursuant to which subsection the trial court was imposing the sentence.

(Citation and punctuation omitted.) Harper v. State, 270 Ga. App. 376, 378 (2) (606 SE2d 599) (2004). Smith’s additional contentions attacking his sentence are without merit.

5. Smith also contends the evidence was insufficient to establish the asportation necessary to prove kidnapping. See Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008). Under Garza, whether a putative asportation was more than merely incidental to another crime depends upon four factors:

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

Decided October 20, 2011.

Charles H. Frier, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Lenny I. Krick, Paige Reece Whitaker, Assistant District Attorneys, for appellee.

State v. Clements, 289 Ga. 640, 647 (2) (c) (715 SE2d 59) (2011). Here, the evidence shows that Smith forced the victim from the laundry room to a stall in a restroom. Although the duration was short, the movement increased the danger to the victim because it isolated her from a place where others might enter to a more secluded and remote location. Further, the movement was not an inherent part of the crime of rape. Under these circumstances, this evidence was sufficient to prove the element of asportation. See Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (noting that the kidnapping statute is intended to address movement serving to substantially isolate the victim from protection or rescue); Brown v. State, 288 Ga. 902 (3) (708 SE2d 294) (2011) (evidence of asportation sufficient when all but one Garza factor supported the verdict).

Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       The legislature subsequently amended the kidnapping statute to provide that slight movement is sufficient to prove kidnapping as long as the movement was not incidental to another offense, then further defined what actions would not be incidental to another offense. This statute applies to crimes committed on or after the revised statute’s effective date, July 1, 2009. OCGA § 1-3-4. The crimes in this case occurred in August 2001, and therefore the standard set forth in Garza applies. Horne v. State, 298 Ga. App. 601, 603 (1), n. 1 (680 SE2d 616) (2009).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A1224.
    In the Interest of S. B. et al., children.
    (718 SE2d 49)
   Dillard, Judge.

The father of S. B., Ka. B., Ke. B., and T. B. appeals from an order of the Juvenile Court of DeKalb County, arguing that the court erred in finding that the children were deprived and that the court’s deprivation order was deficient. For the reasons set forth infra, we affirm.

In an appeal from a deprivation order, we review the evidence from a juvenile court hearing “in the light most favorable to the court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the children were deprived.” So viewed, the evidence shows that in early February 2009, S. B., who was thirteen years old at the time, confided to a friend at school that her father had forced her to have sexual intercourse with him on several occasions. S. B.’s friend told the school’s counselor about this revelation, and the counselor, in turn, informed the school’s resource officer and DeKalb County DFCS. The resource officer then spoke with S. B., at which time she repeated that her father had been forcing her to have sexual intercourse with him over the course of the last year. S. B. also informed the resource officer that her mother had caught her father having sexual intercourse with her on two separate occasions but did nothing to stop this abuse. Later, when the resource officer questioned S. B.’s mother about these allegations, the mother admitted that she had twice caught her husband having sexual intercourse with S. B. Both S. B. and her mother repeated these same allegations to the DFCS investigator initially assigned to the case.

Based on S. B.’s outcry, a police officer interviewed S. B.’s sister T. B., who was fourteen years old at the time. Although T. B. did not allege that her father had ever forced her to have sex with him, she did reveal that her father had recently punished her by making her fully undress and then touching her breasts and buttocks. The same police officer also interviewed S. B. and T. B.’s father after informing him of his Miranda rights. During that interview, the father initially denied any wrongdoing, but he eventually admitted that he had engaged in sexual intercourse with S. B. on several occasions and that he had made T. B. remove all her clothes on one occasion to punish her. The father also acknowledged that his wife (the children’s mother) had twice caught him having sexual intercourse with S. B. As a result of this interview, the police officer arrested the father. In addition, DFCS removed S. B., T. B. and their two younger siblings, Ke. B. and Ka. B., from the home.

On March 5, 2009, DFCS filed petitions alleging that all four children were deprived based on the father’s sexual abuse of S. B. and T. B. and the mother’s failure to protect them from such abuse despite being aware of it. A few months later, the juvenile court held a hearing on the matter. During that hearing, S. B. testified about the sexual abuse inflicted upon her by her father and further testified that her mother had witnessed her father engaging in sexual intercourse with her on two occasions but had done nothing to stop it.

The DFCS investigator and the school-resource officer also testified regarding S. B.’s outcry and the mother’s admission that she was aware that the father was having sexual intercourse with S. B., and the investigating police officer recounted the details of his interview of the father. Additionally, DFCS proffered the testimony of two psychologists from the Georgia Center for Child Advocacy, who conducted forensic interviews of S. B. and T. B., respectively, and claimed that the girls repeated the disclosures regarding their father’s sexual abuse of them that they had made to others.

In contesting DFCS’s evidence, the father proffered the testimony of a pediatrician, who did not examine S. B. but, rather, reviewed a medical report completed by physicians who did examine her several days after her outcry. The pediatrician testified that the medical report indicated that S. B. exhibited no physical symptoms of recent sexual abuse. However, on cross-examination, the pediatrician acknowledged that the findings in the medical report did not conclusively preclude the possibility that S. B. had ever suffered such abuse. Finally, both the father and the mother testified during the hearing, and although the father denied S. B.’s allegations, both he and the mother refused to answer the majority of questions posed to them, asserting, instead, their Fifth Amendment right against self-incrimination.

At the conclusion of the hearing, the juvenile court found that all four children were deprived based on the conduct of both parents, and on November 18, 2009, the court issued an order to that effect. This appeal by the father follows.

1. The father contends that the juvenile court erred in finding clear and convincing evidence that the children were deprived. We disagree.

A deprived child is one who is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” In determining whether a child is without proper parental care or control, the court shall consider, among other things, “evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature.” Additionally, “[i]n determining whether a child is deprived, the court focuses on the needs of the child rather than parental fault.”

Here, the evidence shows that the father abused S. B. by forcing her to have sexual intercourse with him and that he also abused T. B. by forcing her to fully undress and touching her breasts and buttocks in an inappropriate manner. In fact, the father admitted to these actions before later recanting. Furthermore, when questioned about his police interview during the deprivation hearing, the father refused to provide answers and, instead, asserted his Fifth Amendment right against self-incrimination, which led to the juvenile court appropriately inferring that a truthful answer would have been harmful. Moreover, several witnesses testified that the mother admitted to catching the father having sexual intercourse with S. B. and doing nothing to stop it. And when questioned about these admissions during the hearing, the mother similarly asserted her Fifth Amendment right against self-incrimination.

Nevertheless, the father argues that the evidence was not clear and convincing in support of the juvenile court’s deprivation finding because the results of S. B.’s medical examination did not indicate that she had been sexually abused and, therefore, called S. B.’s credibility into question. We are unpersuaded. Indeed, as previously noted, while the pediatrician testified that the medical report did not indicate that S. B. had recently been subjected to sexual abuse, she also conceded that the report did not preclude the possibility that S. B. had ever suffered such abuse. Furthermore, “it is the role of the factfinder, not the appellate courts, to judge the credibility of a witness or the lack thereof.” Thus, there was sufficient evidence to support the juvenile court’s finding that S. B. and T. B. were deprived.

Within his sufficiency-of-the-evidence challenge, the father also contends that there was no evidence presented to show that S. B. and T. B.’s two younger siblings, Ke. B. and Ka. B., were deprived. Again, we disagree. The father’s sexual molestation of S. B. and T. B., as well as the mother’s failure to stop such abuse despite being aware of it, authorized the juvenile court to find that Ke. B. and Ka. B. were also deprived. In fact, even without direct testimony as to the effect on Ke. B. and Ka. B., the juvenile court was authorized to infer from the evidence that the sexual abuse of S. B. and T. B. in the home had an adverse effect on the two younger siblings. Accordingly, the trial court did not err in finding that all four children were deprived.

Decided October 20, 2011.

Phyllis R. Williams, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Rosalind M. Zollicoffer, Yolanda Smith-Williams, for appellee.

2. The father also contends that the juvenile court erred in denying his motion to dismiss based on insufficient evidence, which he submitted during the hearing after the close of DFCS’s case. Given our holding in Division 1 that clear and convincing evidence supported the juvenile court’s deprivation finding, the court clearly did not err in denying the father’s motion to dismiss.

3. The father further contends that the juvenile court’s deprivation order was deficient in that it lacked findings of fact as required by OCGA § 15-11-54 (a). We disagree.

OCGA § 15-11-54 (a) provides, in pertinent part, that “[a]fter hearing the evidence on any petition alleging deprivation, the court shall make and file its findings as to whether the child is a deprived child.” And “[f]indings of fact and conclusions of law are mandatory under OCGA § 9-11-52 (a).” However, contrary to the father’s contention, here, the juvenile court’s order clearly stated that its finding of deprivation was based on the father’s sexual abuse of S. B. and T. B. and the mother’s failure to stop such abuse as alleged. Accordingly, the father’s contention that the juvenile court’s order was deficient is without merit.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        In the Interest of T. W, 297 Ga. App. 886, 886 (678 SE2d 546) (2009) (punctuation and footnote omitted).

       OCGA § 15-11-2 (8) (A).

       OCGA § 15-11-94 (b) (4) (B) (iv).

        In the Interest of M. K., 288 Ga. App. 71, 71 (1) (653 SE2d 354) (2007) (citation omitted).

        See In the Interest of A. A., 293 Ga. App. 471, 474 (1) (667 SE2d 641) (2008) (holding that a parent may plead the Fifth Amendment in juvenile proceedings, but if a parent does so, the trial court may infer that a truthful answer would be harmful); In the Interest of M. V., 253 Ga. App. 669, 672 (560 SE2d 125) (2002) (same).

        In the Interest of B. H., 295 Ga. App. 297, 298 (1) (671 SE2d 303) (2008) (citation and punctuation omitted).

        See, e.g., In the Interest of C. A. L., 307 Ga. App. 658, 660-61 (705 SE2d 885) (2011) (holding that child’s testimony that she was inappropriately touched in a sexual manner provided clear and convincing evidence of deprivation); In the Interest of B. H., 295 Ga. App. at 297-98 (1) (holding that child’s testimony regarding sexual abuse to which she was subjected provided clear and convincing evidence of deprivation).

        See In the Interest of E. S. K, 299 Ga. App. 35, 38 (681 SE2d 705) (2009) (holding in termination of parental rights case that past molestation of one child was properly considered in deciding whether another daughter’s deprivation would continue); In the Interest of A. C., 234 Ga. App. 717, 719 (507 SE2d 549) (1998) (same).

        Cf. In the Interest of E. D., 287 Ga. App. 152, 157-58 (650 SE2d 800) (2007) (holding that trial court was authorized to infer from the evidence that the alcohol abuse and domestic violence in the home, which was the cause of older child’s deprivation, also had an adverse effect on the minor children).

        In the Interest of J. V., 241 Ga. App. 621, 627 (526 SE2d 386) (1999) (citation and punctuation omitted).

        See id.


author: Blackwell, Judge.

text:
    A11A1386.
    BIZZARD v. THE STATE.
    (718 SE2d 52)
   Blackwell, Judge.

Following a bench trial, Robert Earl Bizzard was convicted of aggravated battery in violation of OCGA § 16-5-24 (a), for attacking and seriously injuring his wife. Bizzard now appeals from the denial of his motion for a new trial. He contends that the evidence is insufficient to sustain his conviction because the State failed to prove either that Bizzard acted with the requisite criminal intent or that venue was proper in Liberty County. Although we find that the evidence is enough to prove beyond a reasonable doubt that Bizzard committed aggravated battery, we also find that the State failed to present any evidence of venue. Accordingly, we must reverse the judgment below and remand for a new trial.

Viewed in the light most favorable to the verdict, the evidence shows that on the night in question, the victim attended a church revival meeting and then returned to the home she shared with Bizzard on Strickland Street. There she found a note from Bizzard, stating that he had seen the victim with another man and that she should expect a beating when Bizzard returned. Later that evening, Bizzard called the victim and asked her to pick him up at a local bar. The victim refused his request, and Bizzard found another way home. Soon after he arrived home, Bizzard began physically assaulting the victim and repeatedly told her that he was going to kill her. Eventually, the victim was able to flee the house and began running toward her mother’s house, which was also located on Strickland Street. When it appeared that Bizzard would catch her before she made it to her mother’s house, the victim instead went to the home of a neighbor. Bizzard reached the victim as she was standing on the neighbor’s porch, banging on the door and screaming for help. He hit the victim in the face with such force that she lost consciousness. The force of the blow also split the skin above the victim’s upper lip, and the injury was so severe that it required more than 20 stitches to close, the victim was unable to eat for approximately ten days after the incident, and she was left with a permanent scar. Bizzard left the scene and went to the home of the victim’s mother, where he informed the mother that the victim needed medical attention. The victim’s mother called 911. Officers with the City of Hinesville Police Department responded and arrested Bizzard.

1. A person commits aggravated battery when he “maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). Here, Bizzard contends that the State failed to prove that he possessed the requisite criminal intent for aggravated battery because it did not show that he intended to injure the victim as seriously as he did; that is, he argues that the State failed to prove that he specifically intended to maim or disfigure the victim. This argument misapprehends the intent necessary for aggravated battery.

To convict Bizzard, the State was not required to show that he intended the specific results of his conduct. White v. State, 210 Ga. App. 563, 564 (436 SE2d 584) (1993). Rather, the State was required to prove only that Bizzard acted maliciously when he engaged in that conduct. Id. See also Blackwood v. State, 224 Ga. App. 486, 487-488 (1) (480 SE2d 914) (1997) (the defendant need only have intended the conduct that resulted in the injury, rather than the injury itself). Under Georgia law, a person acts maliciously within the meaning of the aggravated battery statute “when he acts intentionally and without justification or serious provocation.” Wade v. State, 258 Ga. 324, 330-331 (11) (d) (368 SE2d 482) (1988) (emphasis in original). The evidence here supports the conclusion that Bizzard acted intentionally and without provocation or justification when he struck the victim, and it therefore suffices to sustain Bizzard’s conviction. See Dunn v. State, 242 Ga. App. 525, 528 (2) (530 SE2d 236) (2000).

2. Bizzard also contends that the State failed to prove venue. We agree. The Georgia Constitution “requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed.” Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000). Where the State fails to prove venue beyond a reasonable doubt, the judgment of conviction must be reversed. Id. at 901-902 (2). See also Turner v. State, 273 Ga. 340, 343 (3) (541 SE2d 641) (2001) (“Venue is a jurisdictional fact, an essential element in proving that the accused is guilty of the crime charged, and must be proven beyond a reasonable doubt.”).

In this case, the record is devoid of any evidence establishing that venue is proper in Liberty County. Indeed, Liberty County was not mentioned by any witness, and the State showed only that the crime occurred on Strickland Street. As our Supreme Court has explained, however, “a street name, standing alone, is never sufficient to establish venue, because streets frequently run through more than one county.” Jones, 272 Ga. at 904 (3). See also In the Interest of J B., 289 Ga. App. 617, 618 (658 SE2d 194) (2008) (venue not proven where the evidence showed only that the crime occurred at “316 Palmer Lane,” and there was no “mention of a city, county, or state.”). Additionally, and despite the State’s assertion to the contrary, the fact that the prosecutor noted in his opening statement that Strickland Street was a block from the Liberty County Courthouse did not establish that the crime scene was in Liberty County. See Jones, 272 Ga. at 903-904 (3) (venue not proven where neighbor testified that his home was on Evans Drive, his home was in Fulton County, and crime scene was directly across the street from his house, because it was possible that, despite their proximity to one another, the neighbor’s house and the crime scene were located in different counties). See also Thompson v. Brown, 288 Ga. 855, 857 (708 SE2d 270) (2011) (even though all the participants in a trial, including the factfinder, may know from their daily lives that the crime scene is in a particular county, the State is still required to offer evidence of venue, because a defendant “may not be convicted of crimes based on extra-judicial knowledge rather than evidence of such essential facts admitted at trial.”). Similarly, the fact that officers with the City of Hinesville Police Department responded to the scene is also insufficient to establish venue in Liberty County. The Supreme Court of Georgia has repeatedly held that “proving that a crime took place within a city without also proving that the city is entirely within a county does not establish venue.” Graham v. State, 275 Ga. 290, 293 (2) (565 SE2d 467) (2002). See also In the Interest of J. B., 289 Ga. App. at 619.

In its brief, the State offers three arguments why we should find sufficient evidence of venue, despite the lack of any direct testimony on that issue. First, the State argues that it introduced a map at trial, and cites a case holding that such evidence can support a finding of venue in a particular county. See Carter v. State, 146 Ga. App. 681 (247 SE2d 191) (1978) (map of the City of Albany, introduced to assist witnesses in identifying location of crimes, could be used as proof of venue where victim testified that these locations were in Dougherty County). What the State refers to as a map, however, is in reality an aerial photograph of a portion of Strickland Street, showing the house numbers of various residences. At trial, this photograph was introduced for the purpose of showing the relative locations of the homes of the victim, her neighbor, and her mother, all of which were situated on that portion of Strickland Street shown in the picture. Unlike the map in Carter, however, the photograph in this case contains nothing which indicates the city, county, or state in which the area depicted is located, and the State failed to elicit any testimony on this issue. This photographic exhibit, therefore, fails to establish that the crime occurred in Liberty County. See In the Interest of J. B., 289 Ga. App. at 618.

Next, the State points to the fact that, when the prosecutor noted during opening statements that Strickland Street was approximately one block from the courthouse, the trial judge responded that he was familiar with the location of Strickland Street. The State argues that this response shows that the trial court took judicial notice of the fact that the crime occurred in Liberty County. We disagree. The Supreme Court of Georgia has held that “if a trial court intends to take judicial notice of any fact, it must first announce its intention to do so on the record, and afford the parties an opportunity to be heard regarding whether judicial notice should be taken.” Graves v. State, 269 Ga. 772, 775 (4) (a) (504 SE2d 679) (1998), rev’d in part on other grounds, Jones, 272 Ga. at 903, n. 13. Here, in an effort to expedite opening argument, the trial judge merely stated that he was familiar with the location of Strickland Street and its proximity to the Liberty County Courthouse. This statement, made before the presentation of evidence had even begun, cannot be construed as an announcement that the judge was taking judicial notice of the fact that the crime occurred in Liberty County.

Decided October 20, 2011.

Craig T. Pearson, for appellant.

Tom Durden, District Attorney, Russell B. Mabrey, Jr., Assistant District Attorney, for appellee.

Finally, the State argues that, even if the trial court failed to take judicial notice of the fact that venue was proper in Liberty County, this Court has the authority to take judicial notice of that fact. In support of this position, the State cites Brown v. State, 205 Ga. App. 31 (421 SE2d 340) (1992), Harper v. State, 172 Ga. App. 69 (1) (321 SE2d 805) (1984), and Williams v. State, 162 Ga. App. 680, 680-681 (1) (292 SE2d 560) (1982). All of these cases, however, were decided before the Supreme Court of Georgia’s decision in Graves, 269 Ga. at 775 (4) (a). Moreover, each of these cases relied upon the slight evidence rule, an evidentiary standard that our Supreme Court expressly disapproved in Jones, 272 Ga. at 903, n. 13. Accordingly, we do not find this argument persuasive.

We note that, because our reversal is based solely upon insufficient evidence of venue, “the State is not barred by the Double Jeopardy Clause from retrying [Bizzard], so long as venue is properly established at retrial.” Jones, 272 Ga. at 905 (4).

Judgment reversed.

Barnes, P. J., and Adams, J., concur.

        Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010).

       Witnesses testified that the cut resulting from Bizzard’s blow was so severe that the victim’s teeth were visible, even when her mouth was closed. One of the responding officers stated that it was the worst injury he had ever seen.


author: McFadden, Judge.

text:
    A10A0497.
    POUNDS et al. v. BROWN et al.
    (721 SE2d 905)
   McFadden, Judge.

In Pounds v. Brown, 303 Ga. App. 674 (695 SE2d 66) (2010), we affirmed in part and reversed in part the trial court’s denial of a motion to enforce a settlement agreement, and we remanded the case to the trial court to enforce the settlement agreement in accordance with our opinion. The case involves a shareholders’ derivative action against Cobb Electric Membership Corporation, its president and CEO, and the members of its board of directors, alleging various breaches of fiduciary duties and mismanagement. The order at issue denied the plaintiff-shareholders’ motion to enforce the parties’ settlement agreement and upheld as lawful the board of directors’ adoption of numerous amendments to the Cobb EMC bylaws.

Reversing the trial court, we held that the proxy voting bylaw amendment violated the parties’ settlement agreement. Pounds, 303 Ga. App. at 676-677 (1) (a). We dismissed as moot the plaintiffs’ claims that the bylaw amendments limiting the business that can be conducted at member meetings and increasing the number of directors required to call special meetings violated Georgia law and Cobb EMC’s existing bylaws. Pounds, 303 Ga. App. at 677 (1) (b). This amounted to an affirmance of the trial court’s ruling upholding these bylaw changes. Finally, reversing the trial court, we held that the trial court erred in allowing Cobb EMC to distribute its own resolutions at a special meeting and to recommend that members vote in favor of such resolutions, and reversed the trial court on this issue. Pounds, 303 Ga. App. at 678-679 (2).

In Brown v. Pounds, 289 Ga. 338 (711 SE2d 646) (2011), the Supreme Court granted certiorari to determine whether we erred in holding that the “amendment to the bylaws of Cobb Electric Membership Corporation’s [allowing for voting by proxy,] violated a settlement agreement previously entered into by the parties.” The Supreme Court affirmed in part and reversed in part Division 1 (a) of our opinion, agreeing that the proxy bylaw amendment violated the settlement agreement, but for different reasons than those we had given. The Supreme Court did not address Divisions 1 (b) or 2 of our opinion, and our rulings in those divisions are not inconsistent with the Supreme Court’s decision. Accordingly, Division 1 (a) of our opinion in Pounds v. Brown, 303 Ga. App. 674 is vacated, and we adopt the Supreme Court’s decision as our own as to that division. Divisions 1 (b) and 2 of our decision remain unchanged.

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

Barnes, P. J., and Phipps, P. J., concur.

Decided October 21, 2011.

Carr & Palmer, W. Pitts Carr, Dupree & Kimbrough, Hylton B. Dupree, Jr., for appellants.

Schreeder, Wheeler & Flint, David H. Flint, Weinstock & Scavo, Michael Weinstock, Richard V Merritt, Akin & Tate, S. Lester Tate III, Brock, Clay, Calhoun & Rogers, Harbert S. Gregory, Jr., Sutherland, F. Barry McCabe, King & Spalding, Dwight J. Davis, Awtrey & Parker, Robert B. Silliman, Leo E. Reichert, for appellees.


author: Phipps, Presiding Judge.

text:
    A11A0856.
    GEORGIA DEPARTMENT OF CORRECTIONS v. JAMES et al.
    (718 SE2d 55)
   Phipps, Presiding Judge.

The Georgia Department of Corrections (DOC) appeals the denial of its motion to dismiss, which asserted that sovereign immunity barred a lawsuit filed against it by Anthony Wayne James. In the lawsuit, James alleged that, on May 31, 2005, as a state inmate on a work detail at an Effingham County ball park, he was required to continue pouring a concrete slab even through rainy weather; he lost his balance, and the wet concrete came into contact with skin on his legs; his legs were chemically burned, and the affected areas worsened, until he was taken to a hospital six days after the incident; by that point, his condition required him to undergo two surgeries, treatment at a burn unit, skin grafting, and physical therapy.

James sought damages for his personal injuries, naming the DOC as a defendant. He charged the DOC with negligence, asserting that it had breached a nondelegable duty to protect his safety and health at the construction site and that it had breached a nondel-egable duty to provide proper and expedient medical care after he sustained injuries at the construction site. As set forth more fully below, however, James failed to establish any waiver of sovereign immunity with respect to his negligence claims against the DOC. Consequently, we reverse the denial of the DOC’s motion to dismiss.

At all relevant times, James was incarcerated at Effingham County Prison, pursuant to a contract between the DOC and Effingham County for the latter to house and care for state inmates. Supervising the slab construction was a maintenance coordinator employed by Effingham County; his job responsibilities included overseeing the construction and maintenance of county facilities, such as the ball park where James was injured. Also at the construction site, supervising James and other inmates who were assigned the same work detail, was a correctional officer employed by the Effingham County Prison.

At about 3:00 p.m. that day, after several hours of pouring concrete, James complained to the maintenance coordinator and the correctional officer that contact with the wet concrete had caused a skin reaction on his legs. The correctional officer handed James “burn cream” from a first aid kit, which James applied to the affected areas before continuing with the slab construction. At about 6:00 p.m., when the slab work was completed, the maintenance coordinator drove James back to Effingham County Prison.

The next morning, James sought treatment for his legs at the medical unit at Effingham County Prison. A licensed practical nurse who worked there and was employed by the Effingham County Board of Commissioners (and not the DOC) treated the wounds as abrasions rather than chemical burns and thus applied to the affected areas a hydrogen peroxide solution and triple antibiotic ointment, then wrapped them with gauze. Because his condition was worsening, James sought help from the medical unit on each of the next five days; on each visit, the nurse responded with the same treatment to his legs. On June 6, 2005, the nurse’s supervisor returned from vacation, looked at James’s legs, then immediately ordered him transported to a hospital. That same day, the DOC was first notified of James’s injuries.

After these circumstances were revealed during discovery, the DOC filed a motion to dismiss, arguing that James’s claims of negligence against the DOC were barred by sovereign immunity. Under the Georgia Constitution,

sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver,

James responded to the DOC’s motion by claiming that sovereign immunity was waived under the Georgia Tort Claims Act (GTCA), citing thereof OCGA § 50-21-23 (a): “The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment.” The GTCA defines “[s]tate officer or employee,” in part, as:

... an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. . . .

James asserted that Effingham County’s personnel — identifying specifically: (i) the county maintenance coordinator and the county correctional officer, as the individuals who had required him to continue constructing the concrete slab during inclement weather, and (ii) the county nurse, who had applied ointment and gauze to his worsening condition — were “law enforcement officers” and/or “persons acting on behalf or in service of the state in any official capacity.”

Countering James’s claim that sovereign immunity was waived, the DOC pointed out that there was no evidence that any DOC officer or employee had committed any of the alleged negligent acts or omissions. Further, the DOC pointed out that it was undisputed that, at all times relevant to his negligence claims, James was being housed and thus cared for at the Effingham County Prison, pursuant to Effingham County’s contract with the DOC. Pointing out also that the GTCA defines “state” so as to exclude counties, and additionally relying on the GTCA’s exclusion of independent contractors from the definition of “[s]tate officer or employee,” the DOC argued that James had failed to make the requisite showing that any state officer or employee had committed a tort for which sovereign immunity was waived by the GTCA.

The trial court ruled that James’s suit was not subject to dismissal. Citing OCGA §§ 42-2-5, 42-2-11 (c), and 42-5-53 (b), the court determined, “Because the Effingham County Prison and its employees are subject to the [DOC’s] rules and supervision, . . . they are not ‘independent contractors’ but ‘. . . persons acting on behalf or in the service of the state in any official capacity.’ ” Citing Summerlin v. Ga. Pines Community Svc. Bd., the court noted, “Under the facts of this case, it may also be that the employees of the Effingham County Prison are ‘borrowed servants’ and therefore ‘state employees.’ ”

The DOC filed this direct appeal from the denial of its motion, maintaining that James’s suit against it was barred by sovereign immunity.

Sovereign immunity is not an affirmative defense!] that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the [s]tate, and the waiver must be established by the party seeking to benefit from the waiver. Thus, [James], not [the DOC], had the burden of establishing that [the DOC] had waived sovereign immunity.

“We review de novo a trial court’s denial of a motion to dismiss based on sovereign immunity grounds, which is a matter of law. However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them.” For the following reasons, we agree with the DOC that James’s suit is barred.

1. In determining that James’s suit was not subject to dismissal based on sovereign immunity, the trial court misplaced reliance upon

OCGA §§ 42-2-5, 42-2-11 (c), and 42-5-53.

Nowhere in [any one of those statutory provisions] has the Legislature “specifically provide[d] that sovereign immunity [has been] waived and the extent of such waiver,” and, without specific statutory language providing for (1) a waiver of sovereign immunity and (2) the extent of such waiver, no waiver can be shown.

“[I]implied waivers of governmental immunity should not be favored.” Thus, even if, pursuant to the cited statutory provisions, “the Effingham County Prison and its employees are subject to the [DOC’s] rules and supervision,” those statutory provisions did not authorize the trial court’s ultimate conclusion that sovereign immunity was waived.

2. Although James relies upon the GTCA as providing a waiver of sovereign immunity, express exceptions and limitations within the GTCA bar James’s tort claims against the DOC. “[T]he GTCA, on its face, provides that, for its purposes, neither a [county] nor an independent contractor, without exception, can be considered an employee of the state for purposes of triggering a waiver of immunity.” Accordingly, “[t]he General Assembly has spoken by removing from the pool of [entities] covered by the Georgia Tort Claims Act independent contractors and [counties].”

(a) The General Assembly enacted OCGA § 42-5-53 to provide for any county to contract with the DOC regarding the state’s inmates: “Subject to the provisions stated in this Code section, any county may purchase, rent, establish, construct, and maintain a county correctional institution for the care and detention of all inmates assigned to it by the [DOC].” The statute authorizes the DOC to pay “funds . . . for each state inmate assigned to a county correctional institution to the county operating the facility.” The statute provides that the county may “use the money paid to it. . . for the operation and maintenance of the county correctional institution or may use the money so paid to supplant county funds or previous levels of county funding for the county correctional institution.” Also, the statute provides that the “[Board of Corrections] shall promulgate rules and regulations governing the administration and operation” of such county correctional institutions, and correspondingly subjects those county correctional institutions to “supervision and control by the [DOC].”

And as James conceded in his brief to the trial court,

[o]n May 31, 2005, at the time of his injuries, Mr. James was an inmate at the Effingham County Prison. . . . [A]t all relevant times, Mr. James was a state inmate being held by Effingham County pursuant to a contract with the GDOC. . . . And Effingham County contracted with GDOC to house and care for state inmates, such as Mr. James.

Given OCGA § 42-5-53, together with the undisputed factual record, we agree with the DOC that the county took on the role of an independent contractor doing business with the state.

The GTCA does not provide a specific or detailed definition of ‘ ‘independent contractor. ’ ’

In the absence of such a definition, we must look diligently for the intention of the General Assembly. The General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it. The meaning and effect of a statute 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.

Generally,

[t]he true test of whether the relationship is one of employer-employee or employer-independent contractor is whether the employer, under the contract either oral or written, assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.

“The right to control the time of doing the job means the right to control the hours of work.” “The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow.”

The record before us contains no evidence that the DOC assumed the right to control the time, manner and method of operating either the work detail or the medical unit. The Effingham County maintenance coordinator had never consulted with the DOC regarding any inmate work detail; instead, he always dealt directly with Effingham County Prison personnel. Likewise, the county correctional officer at the construction site that day had never been given any instructions from the DOC on how to run the work detail. Similarly, the nurse deposed that she had never been given any information from the DOC on the treatment of patients. Indeed, James has made no effort before either the trial court or this court to cite any evidence or even to assert that the GTCA’s “independent contractor” exception did not apply to his suit.

Consequently, we can conclude only that Effingham County functioned as an independent contractor for which the state did not waive sovereign immunity under the GTCA. And because the undisputed evidence shows that the persons James alleges committed negligent acts and omissions — the maintenance coordinator, the correctional officer, and the nurse — were all employees of Effing-ham County, these individuals did not fall within the GTCA’s definition of “[s]tate officer or employee.”

(b) Moreover, the GTCA’s statutory definition of “state” forecloses waiver of sovereign immunity in this case. In OCGA § 50-21-22 (5), the GTCA defines:

“State” means the State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions, but does not include counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities.

Citing OCGA § 50-21-22 (5), the Supreme Court of Georgia has held, “The waiver of sovereign immunity contained in the [GTCA] does not apply to counties.” Because James’s lawsuit hinges on alleged negligence committed solely by a county’s employees, the GTCA affords James no waiver of the state’s sovereign immunity.

3. Nothing in Summerlin v. Ga. Pines Community Sue. Bd., cited by the trial court, provides for an outcome in James’s favor on the issue of waiver. That case stemmed from the death of an 18-year-old patient at Georgia Pines, a residential facility for the care and treatment of individuals with mental illness, mental retardation, and addiction. The plaintiff alleged that the negligent care of certain individuals working at Georgia Pines, pursuant to the Georgia Pines Community Service Board’s use of an outside staffing company, had caused the patient’s death. The board, which was a state entity, moved to dismiss the case based on sovereign immunity; it claimed that under the GTCA, immunity is waived only for acts of “state employees” and that the cited individuals were borrowed servants, and not employees of the state. The Supreme Court of Georgia determined that the motion had been correctly denied by the trial court, explaining that “ ‘borrowed servants’ are included within the definition of an ‘employee’ for purposes of the [GTCA].”

Summerlin does not control the outcome of this case because

for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.

James adduced no such evidence; he did not assert before the trial court that the three Effingham County employees were “borrowed servants”; nor does he assert on appeal that those Effingham County employees were borrowed servants.

4. James’s argument, that his negligence action against the DOC should not be barred because the duties he alleges therein were breached are nondelegable ones, is unavailing.

The Supreme Court of Georgia rejected that argument in Johnson v. Ga. Dept. of Human Resources. That case stemmed from the death of a 15-year-old child, who was in the joint legal custody of the Georgia Department of Human Resources (DHR) and the Georgia Department of Juvenile Justice (DJJ). The child was placed, pursuant to an agreement, in the Broken Shackle Ranch, a corporate facility licensed by DHR as a child caring institution. The child, complying with the request of a Broken Shackle employee serving as a house parent to sweep behind a freezer, was electrocuted by faulty wiring behind the freezer. The child’s mother brought a wrongful death action against the DHR and DJJ, asserting that the ranch and the house parent were employees of the state under the GTCA, thereby triggering a waiver of immunity. In affirming this court’s unanimous, whole-court decision in Dept. of Human Resources v. Johnson, the Court held that the GTCA’s statutory definition of “employee,” which expressly “excludes corporations and independent contractors doing business with the [s]tate, keeps Broken Shackle from being an employee of the [s]tate since it is a corporation.” Consequently, sovereign immunity with respect to Broken Shackle and its employee (the house parent) had not been waived, and suit was barred.

In reaching that conclusion, the Supreme Court expressly disagreed with the premise that the state “has a nondelegable duty to protect the safety and health of state inmates that cannot be relieved by employing independent contractors.” Further, the Court explained:

DHR and DJJ have meaningful statutory responsibilities for children placed in their custody, and they satisfy those responsibilities by exercising reasonable care in the selection and supervision of their independent contractors.!] If liability without fault should be imposed on the taxpayers in circumstances of the kind presented by this record, this should be effected by the legislature, not the courts. The Georgia General Assembly has spoken by removing from the pool of State employees covered by the [GTCA] independent contractors and corporations, and by failing to include in OCGA § 51-2-5 a waiver of sovereign immunity.

Likewise, in Dept. of Veterans Svcs. v. Robinson, this court held that the Georgia Department of Veterans Services (Department) did not have a nondelegable duty to care for its veterans and that it had properly contracted with an independent contractor to run the Georgia State War Veterans’ Home. Therefore, in an action based on negligent acts of the contractor resulting in the death of a veteran at the Home, the trial court erred in concluding that the Department could not avail itself of the “independent contractor defense” under the GTCA.

Decided October 21, 2011

Thurbert E. Baker, Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Bryon A. Themes, Elizabeth A. Monyak, Assistant Attorneys General, for appellant.

Savage, Turner, Pinson & Karsman, Ashleigh R. Madison, Joseph Wiley, Jr., for appellees.

For the foregoing reasons, the trial court erred in concluding that “the Effingham County Prison and its employees are . . . persons acting on behalf or in the service of the state in any official capacity” such that sovereign immunity was waived by the GTCA.

Judgment reversed.

Andrews and McFadden, JJ., concur.

       The DOC also sought dismissal on an alternative ground, but our disposition of the sovereign immunity issue renders the alternative ground moot.

       James also named as a defendant the company that allegedly mixed and supplied the concrete. Issues related to that defendant are not pertinent to the disposition of this appeal. See generally OCGA § 5-6-37 (parties to proceedings in lower courts are parties on appeal).

       1983 Ga. Const., Art. I, Sec. II, Par. IX (e) (emphasis supplied); see Johnson v. Ga. Dept. of Human Resources, 278 Ga. 714, 715 (1) (606 SE2d 270) (2004).

       OCGA § 50-21-20 et seq.; see 1983 Ga. Const., Art. I, Sec. II, Par. IX (a) (providing that the General Assembly may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act); Johnson, supra (noting that Legislature may waive sovereign immunity in a tort claims act); Youngblood v. Gwinnett Rockdale Newton Community Sue. Bd., 273 Ga. 715, 716 (1) (545 SE2d 875) (2001) (GTCA is applicable to all state agencies and departments).

       OCGA § 50-21-22 (7).

       OCGA § 50-21-22 (5).

       (“The [DOC] shall administer the state’s correctional institutions and the rehabilitative programs conducted therein.”)

       (“The [Board of Corrections] shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training, and hospitalization of all inmates coming under its custody.”)

       (“All county correctional institutions established by the counties as provided in subsection (a) of this Code section shall be subject to supervision and control by the [DOC], and the [Board of Corrections] shall promulgate rules and regulations governing the administration and operations thereof.”)

       286 Ga. 593 (690 SE2d 401) (2010).

       See Board of Regents v. Canas, 295 Ga. App. 505, 506-507 (1) (672 SE2d 471) (2009) (holding that an order that denies a motion to dismiss, based on a conclusive determination that the state is not immune from suit on the basis of sovereign immunity, is directly appealable).

       See OCGA § 9-11-8 (c).

        Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993), overruled on other grounds, Hedquist v. Merrill Lynch, 272 Ga. 209, 211 (1) (528 SE2d 508) (2000).

        Ga. Dept. of Human Resources v. Johnson, 264 Ga. App. 730, 731 (592 SE2d 124) (2003), aff'd, Johnson, 278 Ga. 714.

        Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187 (674 SE2d 894) (2009) (emphasis in original) (quoting 1983 Ga. Const., Art. I, Sec. II, Par. IX (e)).

        Currid, supra at 186 (citations and punctuation omitted).

       See id. (Community Service Act, OCGA § 42-8-71 (d) et seq., did not create a statutory waiver of a county’s sovereign immunity; Act failed both prongs of the constitutional test because its language provided for neither a specific waiver of sovereign immunity nor the extent of any waiver); Gish v. Thomas, 302 Ga. App. 854, 862-864 (4) (691 SE2d 900) (2010) (while OCGA § 42-5-2 imposes the duty and cost for medical care of inmates in the custody of a county upon the county, statute does not waive county’s sovereign immunity because statute does not provide an express waiver, and nothing in statute can be read to imply a waiver).

       See OCGA § 50-21-23 (under the GTCA, “the state sovereign immunity is waived subject to all exceptions and limitations set forth” therein and “only to the extent and in the manner provided” therein).

        Ga. Dept. of Human Resources, 264 Ga. App. at 734 (1) (emphasis in original).

        Johnson, 278 Ga. at 717 (2).

       OCGA § 42-5-53 (a).

       OCGA § 42-5-53 (c) (2).

       OCGA § 42-5-53 (c) (3).

       OCGA § 42-5-53 (b).

       James also concedes these circumstances in his brief to this court.

        Summerlin, supra at 594 (2) (citations omitted); see id. at 595 (2) (reasoning that, by electing not to include separate definition of term “employee” within GTCA, the General Assembly intended courts to apply legal definition of that term as developed under common law and existing jurisprudence).

        Allrid v. Emory Univ., 249 Ga. 35, 39-40 (2) (285 SE2d 521) (1982) (emphasis supplied); see Armstrong State College v. McGlynn, 234 Ga. App. 181, 184 (505 SE2d 853) (1998); see generally Peachtree-Cain Co. v. McBee, 254 Ga. 91 (1) (327 SE2d 188) (1985) (explaining rationale of original common law rule of the nonliability of an employer for the torts of an independent contractor: since the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it).

        RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990) (citation and punctuation omitted).

        Armstrong State College, supra (citation and punctuation omitted).

       Other than quoting the same language of the trial court’s order, which language we have set forth above, the term “independent contractor” does not appear in James’s appellate brief.

       See Coosa Valley Technical College v. West, 299 Ga. App. 171, 176 (2) (682 SE2d 187) (2009) (where suit against technical college and the Georgia Department of Technical and Adult Education was based on acts committed by technical college’s guest lecturer, a self-employed sole proprietor, suit was barred because the guest lecturer was an independent contractor); Dept. of Veterans Svcs. v. Robinson, 244 Ga. App. 878, 881 (536 SE2d 617) (2000); Armstrong State College, supra at 184; see generally Ga. Dept. of Human Resources, 264 Ga. App. 730, aff'd, Johnson, supra.

        See Johnson, 278 Ga. at 717 (2) (because corporations are excluded from the GTCA’s statutory definition of state “employee,” a corporation’s employee did not fall within the statutory definition of an “employee” for whose negligence the state has waived its sovereign immunity in the GTCA).

       (Emphasis supplied.)

         Currid, supra at 188; see Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995) (“the waiver of sovereign immunity afforded by [the GTCA] does not extend to a county”) (citing OCGA § 50-21-22 (5)).

       See Currid, supra; Johnson, 275 Ga. at 717 (2).

       Supra.

       Id.

       Id.

       Id.

       Id. at 596.

        Tim’s Crane & Rigging v. Gibson, 278 Ga. 796, 797 (604 SE2d 763) (2004) (citation and punctuation omitted).

       Supra.

        Ga. Dept. of Human Resources, 264 Ga. App. at 730.

       Id. at 730-731.

        Johnson, 278 Ga. at 714; Ga. Dept. of Human Resources, 264 Ga. App. at 730, 732 (1).

       264 Ga. App. 730.

        Johnson, 278 Ga. at 715 (1).

       Id. at 715-717 (l)-(3).

       Id. at 716 (2) (citation and punctuation omitted).

       James does not assert that the DOC failed to exercise reasonable care in this regard.

        Johnson, 278 Ga. at 716-717 (2) (citations and punctuation omitted); see OCGA § 51-2-5 (providing for liability for negligence of contractor in certain instances); Dept. of Human Resources, 264 Ga. App. at 732-733 (1) (explaining that OCGA § 51-2-5 is not applicable in determining who falls within the definition of an employee for purposes of waiver under the GTCA).

       Supra.

       Id. at 881 (noting that the Department was not statutorily prohibited from delegating the day-to-day operation of the nursing home for veterans and that the Department was authorized to expend its funds “ ‘in any manner whatsoever for the care and support of disabled war veterans’ ”); accord OCGA § 42-5-53 (providing for contracts between the DOC and counties in connection with the care and detention of state inmates).

        Dept. of Veterans Svcs., supra.


text:
    A11A0897.
    FEDERAL TRUST BANK et al. v. C. W. MATTHEWS CONTRACTING COMPANY, INC.
    (718 SE2d 63)
   Phipps, Presiding Judge.

C. W Matthews Contracting Company, Inc. filed an action seeking a materialman’s special lien against property owned by Federal Trust Bank. Federal Trust Bank thereafter obtained a bond for discharge of materialman’s lien from Hartford Fire Insurance Company, and the latter was added as a defendant. C. W. Matthews amended the complaint to recover under the lien discharge bond. The trial court granted summary judgment to C. W. Matthews and denied summary judgment to Federal Trust Bank and Hartford Fire Insurance (collectively, the Bank). The Bank appeals from the rulings on the motions. For the reasons that follow, 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. We apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant.

In January 2007, C. W. Matthews entered into a contract with Crescent Development, Inc. for the former to provide asphalt and paving services and materials to a 12.67-acre parcel of land; the property contained a strip shopping center. On June 13, 2007, C. W. Matthews completed the work, which was valued in excess of $400,000. On September 12, 2007, C. W Matthews, still owed $134,858.77, filed a claim of lien against the 12.67-acre property in the amount of $105,475.77. Still unpaid in February 2008, C. W. Matthews filed in superior court a complaint against Crescent Development and a notice of the action. C. W. Matthews obtained a default judgment against Crescent Development on June 5, 2008 for $134,858.77.

On June 3, 2008, Federal Trust Bank purchased a 1.8-acre parcel of the 12.67-acre property. In February 2009, when it had not received any payment of the amounts in the claim of lien or the default judgment, C. W Matthews filed the instant action seeking a special lien against Federal Trust Bank’s property in the amount of its judgment against Crescent Development; it later amended the complaint to recover under the lien discharge bond. The trial court granted summary judgment to C. W Matthews pursuant to the lien discharge bond in the amount of $105,475.77, and denied summary judgment to the Bank.

1. The Bank contends that the trial court erred in granting summary judgment to C. W Matthews because the claim of lien was not filed within the time limit set out in OCGA § 44-14-361.1. The Bank and C. W Matthews agree that the version of OCGA § 44-14-361.1 applicable in this case is the one that was in effect in June 2007. That version of OCGA § 44-14-361.1 set forth, among other things, the requirements for declaring and creating the liens specified in OCGA § 44-14-361. It provided, in relevant part:

(a) To make good the liens specified in . . . subsection (a) of Code Section 44-14-361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable: . . .
(2) The filing for record of his claim of lien within three months after the completion of the work ... or within three months after the material or machinery is furnished in the office of the clerk of the superior court. . . ,

The Bank posits that “three months” as it appeared in the applicable (1991) version of the statute meant “90 days,” not three calendar months as C. W. Matthews contends; thus, because the claim of lien came due on June 13, 2007, and July and August each have 31 days, C. W. Matthews’s filing on September 12 was two days beyond the 90-day deadline. While we recognize that lien statutes in derogation of the common law must be strictly construed in favor of the property owner and against the materialman, the Bank’s argument is nonetheless without merit.

There is no statutory basis for the Bank’s argument that the three-month requirement set out in the applicable version of OCGA § 44-14-361.1 is analogous to 90 days. In fact, contrary to the Bank’s position, OCGA § 1-3-3 (11) defines “month,” as used in the Georgia Code, as “a calendar month.” OCGA § 1-3-3 does not define “calendar month,” but Webster’s Third International Dictionary (1981) defines “calendar month” as “the period from a day of one month to the corresponding day of the next month if such exists or if not to the last day of the next month.”

The Supreme Court of Georgia has computed “three months” in a manner consistent with these definitions:

From the first of one month to the first of the next month, in common language and common sense, is always one month, and from the second of the month to the second of the next does not vary the length of time — it is a month still. So from the first of January to the first of April is three months, and it can make no difference if the count be from the second or any other day of January to the second or any corresponding day of April. . . . [A]nd ... always from . . . any other day of a given month, to the corresponding day of any following month, the time will be computed to be fully one, two, or three, or more full months, as the case may be.

Nonetheless, the Bank cites several cases in which our appellate courts, in rendering decisions involving OCGA § 44-14-361.1 (the 1991 version and its predecessors), referred to a 90-day period for filing claims of lien. However, in none of those cases was the issue presented for adjudication the meaning of “three months” or the manner in which the period was to be computed. The apparent effort in those cases to provide a shorthand definition of “three months,” i.e., 90 days, was not necessary and the computation of “three months” (as calendar months versus a specific number of days) was not essential to the determination of those cases. Indeed, the 90-day language in the cited cases

was obiter dicta lacking the force of an adjudication because it was a statement in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand. ... As the U. S. Supreme Court recently noted, “we are not bound to follow our dicta in a prior case where the point now at issue was not fully debated.” . . . “[Gjeneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for adjudication.”

The “very point” presented for adjudication in the case at bar is the meaning of “three months” and whether that period had expired before C. W. Matthews filed its claim of lien. We decline to give force to the dicta in the cases cited by the Bank because the language relied upon was not necessary to resolve the issues before the court in those cases.

Accordingly, the three-month period in the instant case began on June 13, 2007 and ended at 12:00 midnight on September 12, 2007. C. W. Matthews’s September 12, 2007 filing was timely pursuant to the applicable version of the statute, and the court did not err in so ruling.

2. The Bank contends that the court erred in granting summary judgment to C. W. Matthews because the asphalt and paving services and materials were provided to the entire 12.67-acre shopping center, not solely to Federal Trust Bank’s 1.8-acre parcel. The Bank’s argument is without merit.

In moving for summary judgment, C. W. Matthews asserted that it had satisfied the requirements set forth in the applicable (1991) version of OCGA § 44-14-360 et seq. to enforce its lien against the property owned by Federal Trust Bank and for which the lien discharge bond provided by Hartford Fire Insurance was issued as security. C. W Matthews supported its motion with evidence showing that it had satisfied the requirements of the applicable versions of OCGA §§ 44-14-361 and 44-14-361.1. That evidence included an affidavit in which it stated, inter alia, that pursuant to a contract with Crescent Development, C. W. Matthews had provided asphalt and paving services and materials which were incorporated into a 12.67-acre parcel of land (the “Property”); as of June 13, 2007, the work was completed on the Property; the total value of the work C. W. Matthews performed exceeded $400,000, and C. W. Matthews was owed $134,858.77 for the services and materials it provided to the Property; “Tract 1” of the Property was owned (at the time of the complaint) by Federal Trust Bank; the value of paving services provided to Tract 1 exceeded $149,000 and included the entire parking lot for the strip center on Tract 1; as of September 12, 2007, C. W Matthews was owed the principal sum of $134,858.77 for services and materials it provided to the Property; and on September 12, 2007, C. W Matthews filed a claim of lien against the Property in the amount of $105,475.77.

In opposing the motion, the Bank did not dispute that C. W Matthews had satisfied the requirements of the applicable lien statutes — except regarding the three-month time limit (discussed in Division l) and the requirement that the materials and services were furnished for the improvement of Federal Trust Bank’s real property. The Bank submitted an affidavit stating, in pertinent part, that it owned only 1.8 acres of the 12.67-acre property improved; it also pointed to an invoice purportedly showing that the $105,475.77 lien amount was for work done on “Phase I” and “Phase II” of the entire property, and pointed to plats purportedly showing that Federal Trust Bank’s parcel (Tract 1) constituted only a portion of “Phase I” and none of “Phase II.”

The Bank is correct that the burden was on C. W Matthews “to prove that the materials [and services] furnished actually went into construction of [Federal Trust Bank’s property], under a contract and the value of same.” C. W Matthews made the required showing. Its affidavit stated that it completed its work pursuant to the contract, and that the total value of the work it provided to the 12.67-acre property exceeded $400,000; the 1.8-acre tract owned by Federal Trust Bank was part of the property improved and included in the property covered by the lien; and “[t]he value of asphalt paving services provided to the ‘Tract 1’ portion of the [p]roperty exceeded $149,000 and included the entire parking lot for the strip center currently on Tract 1.”

Decided October 21, 2011.

Assuming arguendo that the referenced plats and invoice showed what the Bank claimed they did, the documents were not certified or authenticated and cannot be considered in our evaluation of whether summary judgment was warranted.

On motion for summary judgment, the evidence is construed most favorably for the opposing party, but when the movant presents evidence showing that there is no genuine issue of fact, it is incumbent upon the respondent to present evidence to the contrary. The Bank presented no evidence to rebut C. W. Matthews’s evidence that services and materials of the value alleged were used in the improvement of Federal Trust Bank’s property. The court did not err in determining that the claim of lien was enforceable and in granting C. W Matthews’s motion for summary judgment as to recovery under the lien discharge bond which was provided as security for the real property owned by Federal Trust Bank.

3. The Bank contends that the court erred in denying its motion for summary judgment because the claim of lien was filed more than 90 days after it became due and the materials and services were not provided solely to the Bank’s property. For the reasons discussed in Divisions 1 and 2, the court did not err in denying the Bank’s motion for summary judgment.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

Miles, Patterson, Hansford & Tallant, Dana B. Miles, Wendy W. Kraby, for appellants.

Moore, Ingram, Johnson & Steele, G. Phillip Beggs, Christopher C. Mingledorff, for appellee.

       Although C. W. Matthews stated in its complaint that the action was a “materialman’s lien foreclosure action,” it sought only to obtain a special lien on the property in a certain amount and to recover under the lien discharge bond.

        Lawyers Title Ins. Corp. v. Griffin, 302 Ga. App. 726, 727 (691 SE2d 633) (2010) (citation and punctuation omitted).

       The amount initially set forth in the complaint filed against Federal Trust Bank was $134,858.77; as amended, the complaint set forth the amount of $105,475.77.

       Ga. L. 1991, p. 639, § 1.

       OCGA § 44-14-361 (a) (2) (Ga. L. 1991, p. 915, § 2) pertinently granted to contractors, subcontractors and materialmen furnishing material for the improvement of real estate a special lien on the real estate.

       (Emphasis supplied.) A 2008 amendment to OCGA § 44-14-361.1, which took effect on March 31, 2009, replaced “three months” with “90 days.” Ga. L. 2008, p. 1063, § 2. The amendment does not apply retroactively. See Vulcan Constr. Materials v. Franklin Builders Properties, 298 Ga. App. 120, 122, n. 1 (679 SE2d 356) (2009), citing Browning v. Maytag Corp., 261 Ga. 20, 21 (401 SE2d 725) (1991).

       See U. S. Filter &c. v. Barnett, 273 Ga. 254, 255 (538 SE2d 739) (2000).

       An alternate definition contained in this source (“one of the months as named in the calendar”) is not pertinent to the issue raised herein.

        English v. Ozburn, 59 Ga. 392, 393-394 (1877). See Western &c. R. v. Carson, 70 Ga. 388 (1883) (petition for certiorari filed on January 12, 1881 from October 12, 1880 verdict not timely filed, as it was not within three-month time limit), citing Barrett & Carswell v. Devine, 60 Ga. 632, 633 (1878) (three-month period for filing petition started on June 12 and ended at 12:00 at night on September 11; thus, September 12 filing was not timely).

       See, e.g., Stonepecker, Inc. v. Shepherd Constr. Co., 188 Ga. App. 513, 514-515 (373 SE2d 295) (1988) (issue before court was whether lienholder could recover when it failed to bring its action within 12 months of the time the claim became due); Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277, 278 (1) (351 SE2d 711) (1986) (where last services and materials were furnished on March 2, 1982, claim of lien filed on April 8, 1982 was timely); Henderson v. Mitchell Engineering Co., 158 Ga. App. 306 (279 SE2d 750) (1981) (issues were whether payment arrangement between contractor and subcontractor barred subcontractor’s enforcement of its lien against owner’s property, and whether amount of indebtedness was limited to unpaid balance); Pacific Southern Mtg. Trust v. Melton, 151 Ga. App. 593 (260 SE2d 910) (1979) (February 12, 1974 filing held not timely where the last lienable item was charged on November 1, 1973; although the court referred to a 90-day period, the claim would have been untimely using either computation method); M. Shapiro & Sons v. Yates Constr. &c., 140 Ga. App. 675 (231 SE2d 497) (1976) (in an action to recover on a statutory bond to release realty from a lien, issue was whether a lienor was required to prove entitlement to the lien; court held lienor in such a bond action had to show compliance with lien law and lienee could assert defenses which would have been available in a lien foreclosure action; court did not discuss whether time limit had been met).

        Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008) (citations and punctuation omitted).

       See id.

       For a lien specified in the 1991 version of OCGA § 44-14-361 (a) (2) to be enforceable, the 1991 version of OCGA § 44-14-361.1 (a) (2) and (a) (3) required, in relevant part: the filing for record of the claim of lien within three months of last providing services or materials to the project (which claim contained certain information, such as the lien claimant’s name, the claimant’s position as a materialman, contractor, etc., its claim for a specific amount, a description of the property, and the date the claim became due); and the commencement of an action for the recovery of the amount of the claim within 12 months from the time the claim became due and, within 14 days of the filing of the action, the filing of a notice with the clerk of superior court wherein the subject lien was filed. See applicable 1983 version of OCGA § 44-14-364, which pertinently provided for the obtaining of a lien discharge bond by a property owner and the requirement that the bond be conditioned to pay a lienholder the sum found to be due upon the trial of an action filed by the lienholder to recover the amount of the claim. Ga. L. 1983, p. 1450, § 2. OCGA § 44-14-364 was amended in 2008, effective March 31, 2009 (Ga. L. 2008, p. 1063, § 4).

       OCGA § 44-14-361.1 (a) (2) (1991 version).

       Supra.

       See OCGA § 44-14-361 (a) (2) (1991 version) (pertinently providing for contractors and materialmen furnishing material for the improvement of real estate to have a special lien on the real estate); OCGA § 44-14-361 (b) (1991 version) (pertinently providing that such a lien may attach to the real estate of the owner for which the services or materials are furnished).

        Sanford v. Hodges Builders Supply, 166 Ga. App. 86, 87 (2) (303 SE2d 280) (1983) (citation and punctuation omitted). See Guaranty &c. Co. v. Athens Engineering Co., 152 Ga. 596, 598 (5) (110 SE 873) (1922) (noting pertinently that liens for contractors and material-men, created by the same statute (Civil Code, § 3352, now OCGA § 44-14-361) are of the same character and governed by the same principles of law).

       The plats referenced did not clearly identify the relationship between Tract 1 and Phases I and II; the invoice referenced did not indicate the extent to which it pertained to Tract 1.

       See Baker v. Simon Property Group, 273 Ga. App. 406, 407 (1) (614 SE2d 793) (2005).

        Taverrite v. Lowe’s of Franklin, 166 Ga. App. 346, 347 (1) (304 SE2d 78) (1983).

       See generally United Bonding Ins. Co. v. Good-Wynn Elec. Supply Co., 124 Ga. App. 545, 546 (1) (184 SE2d 508) (1971).

       See Taverrite, supra (materialman entitled to enforce lien where it, inter alia, presented evidence that it delivered materials to owner’s property, and owner argued that all materials at issue were not actually used on the property but failed to present rebuttal evidence showing the materials were not used on the property); see generally Madison Retail Suwanee v. Orion Enterprises &c., 309 Ga. App. 712 (711 SE2d 71) (2011) (affirming grant of summary judgment to materialman in action to recover on lien discharge bond obtained by property owner).

       Supra.

       See generally McGivern v. First Capital Income Properties, 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988) (motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail).