author: ELLINGTON, Presiding Judge. McMlLLlAN, Judge,

text:
    A14A0718.
    LEGACY ACADEMY, INC. et al. v. MAMILOVE, LLC et al.
    (761 SE2d 880)
   ELLINGTON, Presiding Judge.

In this case involving a dispute arising from a daycare center franchise agreement, a Gwinnett County jury rendered a verdict in favor of the plaintiffs, franchisee Mamilove, LLC and its officers, Michele Reymond and Lorraine Reymond (collectively, “Mamilove”), and against the franchisors, Legacy Academy, Inc. and its officers, Frank and Melissa Turner (collectively, “Legacy”). The superior court denied a motion for new trial filed by Legacy, and Legacy appeals from the court’s judgment on the verdict and from its order on the motion for new trial. Legacy contends that the trial court erred in rejecting its argument that Mamilove’s claims were barred as a matter of law, in denying its motion for a directed verdict on all of the claims, in excluding certain evidence, and in denying its motion for new trial. Finding no error, we affirm.

Viewed in favor of the jury’s verdict, the evidence presented showed the following facts. In 2001, sisters Michele and Lorraine Reymond entered into discussions with Frank and Melissa Turner about opening a Legacy Academy daycare franchise. In July 2001, the Turners gave the Reymonds a pro forma earnings claim in the form of an income and expense statement (hereinafter, the “earnings claim”) that was purportedly based upon the actual income and expenses of Legacy franchises that were then in operation. According to the earnings claim, a new franchisee would have approximately $260,000 in net income after the first year of operation and approximately $440,000 in net income after each of the second and third years. Relying upon the earnings claim, the Reymonds decided to open a Legacy franchise. The Turners showed the Reymonds property on Old Peachtree Road in Gwinnett County, and the Reymonds agreed to build their daycare center there.

On September 13, 2001, the Reymonds met with the Turners, who gave them a 17-page “Franchise Offering Circular for Prospective Franchisees for Non-Registration States” (the “franchise circular”) and a 37-page, 25-year Franchise Agreement (the “franchise agreement”). The Reymonds did not have time to read the documents or consult with an attorney before signing them, however, because the Turners “pressured” them, telling them with “a sense of urgency” that they had to sign the documents that day or other franchisees would “take” the Old Peachtree Road location and it could be months before another location became available. As a result, the Reymonds signed the circular, the agreement, and an amendment to the agreement. The Reymonds also paid Legacy a $30,000 franchise fee.

The Turners subsequently informed the Reymonds that they could not build their center at the Old Peachtree Road location after all, purportedly because of “issues with the zoning” of that property. Several months later, in February 2002, the Reymonds executed an agreement to purchase 2.6 acres of land in Sugar Hill from the Turners and a contract with a construction company owned by Frank Turner, Commercial Contractors Enterprises (“CCE”), to build a daycare center on that property. At the October 2002 closing, the Reymonds gave CCE a $40,000 check to be applied to the building’s construction costs, executed two bank notes totaling $1,884,450 to pay for the property and the construction of the building, and signed a $200,000 promissory note in favor of CCE. Frank Turner told them that execution of the note was required to reimburse CCE for “equity’ it allegedly contributed to assist with the closing of the bank loans and that they had to sign the note “or the whole deal would fall through.” Ultimately, the Reymonds invested more than $2.2 million in the franchise and daycare center.

The Reymonds opened their daycare center in November 2002 and, by the end of its first year of operation, they had lost $212,300. Although they recorded net earnings of $103,692 in 2004 and $66,507 in 2005, those amounts were still far less than the $440,000 in annual profits that the other franchisees had earned, according to the earnings claim the Reymonds had received from the Turners. The Reymonds repeatedly attempted to discuss with the Turners their concerns regarding the business’ inability to enroll more children and its poor financial performance, but the Turners “berated and badgered” them in response, telling them that they were doing something wrong and that the lack of income was their fault for accepting part-time enrollees, charging tuition that was too low, not marketing the center enough, etc. In addition, the Turners contributed to the center’s poor performance by opening two more daycare center franchises within five miles of Mamilove’s center between 2006 and 2008. When the Reymonds tried to consult with other franchisees to compare their financial performance, the others refused to participate due to Legacy’s policy of discouraging the franchisees from discussing the financial performance of their daycare centers with each other.

In 2008, five of Legacy’s franchisees jointly left the franchise and sued Legacy and the Turners. While talking to some of these franchisees about their complaints against Legacy and the Turners, the Reymonds found out information that, combined with Mamilove’s poor financial performance, caused them to decide to terminate their Legacy franchise agreement. As a result, in August or September 2010, Mamilove stopped paying Legacy the monthly five percent royalty fees and one percent advertising fees required by the agreement. Then, on September 2, 2010, the Reymonds’ attorney sent a letter to the Turners notifying them that the Reymonds intended to terminate the franchise agreement, effective October 1. According to the letter, the Reymonds believed that Legacy had violated certain rules of the Federal Trade Commission (the “FTC Rules”) by, inter alia, failing to timely provide them with the franchise circular and agreement and making an earnings claim that was prohibited by the FTC. In addition, the Reymonds asserted that the strength of the Legacy “brand” had been severely reduced due to the fraud committed by the Turners that resulted in the 2008 litigation by the other franchisees and the “bad will” that resulted.

In November 2010, Mamilove filed suit against Legacy, asserting a claim under OCGA § 51-1-6 that was based upon Legacy’s violations of the FTC Rules, a claim that Legacy violated Georgia’s RICO Act, and claims for fraud, negligent misrepresentation, and rescission. Legacy answered the complaint and filed a breach of contract counterclaim based upon Mamilove’s failure to pay it royalty and marketing fees due under the franchise agreement after August 2010. The parties filed cross-motions for summary judgment on the opposing claims, and the trial court denied the motions.

At trial, Mamilove presented the evidence outlined above, as well as evidence that the earnings claim the Reymonds received from the Turners in the summer of 2001 was, in fact, fraudulent. The evidence showed that the earnings claim was not a historical representation of the actual revenues and expenses of the existing Legacy franchises, as the Turners had claimed, but was, instead, mere speculation based upon assumptions regarding the total revenues and expenses a franchise might experience.

In addition, Mamilove presented the testimony of four former Legacy franchisees. Patricia Williams, who opened the first Legacy daycare center franchise in November 1998, lost over $283,000 in her first year of operation and lost another $147,000 in the second year. She provided her financial statements to Frank Turner in March 2000 — over a year before the Turners gave the Reymonds the earnings claim that was supposedly based on the performance of Williams’ center and the other franchises. Another franchisee, Tim Paulus, testified that he was considering opening a Legacy franchise in the summer of2001, and Frank Turner gave him an earnings claim that was very similar to the one the Turners gave to the Reymonds around the same time. As with the Reymonds, Turner told Paulus that the earnings claim was based on the actual performance of the existing Legacy franchises. The other two franchisees, Ann Weaks and Bobby Vatalaro, testified that, when they contacted Legacy about opening a franchise, the Turners gave them an earnings claim similar to that given to Paulus and the Reymonds and told them that the figures shown were not merely estimations or projections but were based on the actual revenues and expenses of existing Legacy franchises. In reliance on the earnings claim, each franchisee decided to open a daycare center. According to Weaks, she and the Turners had agreed on a location for her daycare center before she signed the franchise agreement, but the Turners called her one day and told her that she had to sign the agreement immediately and pay the $40,000 franchise fee or she would lose the location to another franchisee. As with the Reymonds, when Weaks arrived at the Legacy office, she was given a franchise agreement to sign immediately, without an opportunity to read it beforehand. Similarly, Vatalaro testified that, before he had chosen a location for his center, Frank Turner unexpectedly called him and offered him a location, telling him that he had to commit to it within 24 hours because there was “a long list of people” who wanted the property. Both Weaks and Vatalaro testified that their franchises lost hundreds of thousands of dollars between 2004 and 2009. And, as with the Reymonds, when Weaks complained about the losses to the Turners, they told her that other daycare franchises were “doing fine” and that it was her fault that her center was not succeeding.

Testifying in their defense, the Turners denied that they or anyone on Legacy’s behalf had given the Reymonds an earnings claim for the franchise before the Reymonds signed the franchise agreement on September 13, 2011. The Turners also claimed, inter alia, that they had given the Reymonds the franchise circular prior to September 13, and Frank Turner denied that he had ever promised the Reymonds that they could build a center at the Old Peachtree Road location. Finally, they denied that they had pressured or otherwise prevented the Reymonds from reading the franchise agreement before signing it.

Based upon the evidence presented, the jury rendered a general verdict in favor of Mamilove on all of its claims and awarded it $750,000, plus $350,000 in damages based upon the RICO violations, and $30,000 in attorney fees. The jury also found that Frank and Melissa Turner were personally liable for the judgments. In addition, the jury found in favor of Mamilove on Legacy’s breach of contract counterclaim. The court entered judgment on the verdict.*

1. On appeal, Legacy contends that the trial court erred in denying it summary judgment on Mamilove’s claims based upon the expiration of the statute of limitation periods for the claims. It has abandoned this issue, however.

Generally,
[ajfter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.

(Punctuation, footnotes and emphasis omitted.) ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 575 (1) (649 SE2d 740) (2007). However,

if the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial, then the denial of the motion is not rendered moot by the verdict and judgment. Under such circumstances, a party may appeal the denial of summary judgment as part of the party’s direct appeal from the final judgment, and the denial will be reviewed and determined by this Court. See OCGA § 5-6-34 (d)[J

(Citations and punctuation omitted.) Coregis Ins. Co. v. Nelson, 282 Ga. App. 488, 489 (1) (639 SE2d 365) (2006).

On appeal, Legacy argues that the ruling at issue is not moot because the statute of limitation issue was not submitted to the jury at trial. This argument is patently disingenuous, though, as the trial transcript clearly shows that Legacy expressly abandoned its statute of limitation defense at the beginning of trial. Specifically, the transcript shows that, during a discussion of Legacy’s objection to the admission of evidence of the arbitrator’s award in suits against Legacy that had been brought by other franchisees, Mamilove’s counsel proposed the following compromise: “[If Legacy] were to drop the statute of limitations defense, the arbitration award would not come in. We would still be talking [about] franchisees [and a] similar sort of pattern of activity with respect to the RICO claim, but the [arbitration] award doesn’t come in.” In response, Legacy’s counsel agreed that Legacy would not assert a statute of limitation defense. Therefore, under these circumstances, this alleged error is no longer subject to appellate review. See ALEA London Ltd. v. Woodcock, 286 Ga. App. at 575 (1); Crawford v. Crump, 223 Ga. App. 119, 122 (2) (476 SE2d 855) (1996) (“A stipulation by the parties upon which a resolution of some issue is to be made is binding even though it might in some manner contradict or conflict with the pleadings. Evidence contrary to the stipulation is not admissible; since it is binding, it may not be disproved.”) (citations and punctuation omitted); see also Renee Unlimited v. City of Atlanta, 301 Ga. App. 254, 257 (1) (687 SE2d 233) (2009) (“A litigant... cannot submit to a ruling, acquiesce in the ruling, and still complain of same.”) (citation and punctuation omitted).

2. Legacy also contends that the trial court erred in denying its motion for summary judgment on Mamilove’s rescission claim, arguing that Mamilove waived its right to rescind the franchise agreement by failing to seek rescission in a timely manner as a matter of law. However, after the trial court denied the motion for summary judgment, the parties submitted to the jury the questions of whether Mamilove was entitled to equitable rescission of the agreement and whether it timely moved for rescission of the agreement under the circumstances. Consequently, because there was evidence presented at trial to support a finding by the jury that Mamilove timely asserted its rescission claim under the circumstances presented, the question of whether the trial court properly denied Legacy summary judgment on this issue is moot. See ALEA London Ltd. v. Woodcock, 286 Ga. App. at 575 (1).

3. Legacy contends that Mamilove waived its right to rescind the agreement as a matter of law when it claimed that Legacy had breached the agreement, because, in asserting that claim, Mamilove acted in a manner that was inconsistent with its purported repudiation of the agreement. This contention lacks merit.

“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.” (Punctuation and footnote omitted.) Dodds v. Dabbs, Hickman, Hill & Cannon, 324 Ga. App. 337, 340 (1) (750 SE2d 410) (2013).

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.

(Punctuation and footnote omitted.) Id. at 341-342 (1).

In this case, the record shows that Mamilove did not affirm the contract and then assert a breach of contract claim against Legacy in its complaint; instead, it sought rescission of the agreement. In contrast, Legacy’s breach of contract counterclaim asserted that Mamilove had breached the agreement by failing to pay royalties and other fees due under the contract. Subsequently, in the consolidated pretrial order, Mamilove, as the defendant to that counterclaim, raised the defense that Legacy’s fraudulent conduct constituted a prior breach of the agreement that had relieved Mamilove of its obligations under the agreement. Legacy now argues that, by asserting a defense that was based on the agreement, Mamilove affirmed the agreement and, thus, waived its right to rescission of the agreement. However,

there is a fundamental difference between the assertion of a “defense” by a defendant and the assertion of a right to affirmative relief through the filing of a “claim” ... by one who thereby occupies the status of a plaintiff. A “defense” is “that which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks. A defense is not something by means of which the party who interposes it can obtain relief for himself.”

(Citation and punctuation omitted.) T. V. Tempo, Inc. v. T. V. Venture, Inc., 182 Ga. App. 198, 200 (1) (355 SE2d 76) (1987). Thus, under the circumstances presented, we conclude that Mamilove did not waive its right to rescission by asserting a contract-based defense against Legacy’s breach of contract counterclaim.

4. Legacy contends that the trial court erred in failing to grant its motion for a directed verdict on Mamilove’s claim for rescission of the franchise agreement.

[0]n appeal from a trial court’s rulings on motions for directed verdict and judgment notwithstanding the verdict, we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments notwithstanding the verdict are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Citation and punctuation omitted.) Fertility Technology Resources v. Lifetek Med., 282 Ga. App. 148, 149 (637 SE2d 844) (2006). See also Rolleston v. Estate of Sims, 253 Ga. App. 182, 185 (4) (558 SE2d 411) (2001) (“The question before this [C]ourt is not whether the verdict and judgment of the trial court were merely authorized [by the evidence presented], but is whether a contrary judgment was demanded.”) (citations and punctuation omitted).

On appeal, Legacy argues that Mamilove could not prove that the Turners fraudulently induced them to sign the agreement by showing them the earnings claims because the agreement specifically states that Mamilove had not received any representations of potential income or earning capabilities from Legacy prior to signing the agreement. According to Legacy, because it is undisputed that the Reymonds failed to read the agreement before signing it, they were estopped as a matter of law from asserting a claim for rescission of the agreement based upon allegations of fraudulent inducement.

It is well-settled law in Georgia that a party who has the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of his signature to the instrument based on oral representations that differ from the terms of the contract. ... In fact, the only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract.

(Citations and punctuation omitted.) Novare Group v. Sarif, 290 Ga. 186, 188-189 (2) (718 SE2d 304) (2011).

Although it is undisputed that the Reymonds did not read the agreement prior to signing it, the parties submitted to the jury the question of whether the Turners intentionally prevented the Reymonds from reading the agreement before they signed it. Mamilove then presented evidence showing, inter alia, that the Turners first gave the Reymonds the 17-page circular and 37-page agreement on September 13, 2001, and told them that they had to sign the documents that day or another franchisee would be allowed to take the daycare center location they had chosen and it could be months before another location became available. Thus, from the evidence presented, the jury was authorized to find that the Turners intentionally prevented the Reymonds from reading the agreement before signing it in order to conceal from them the provisions at issue here, which the Turners knew were false. See Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997) (The jury’s verdict will stand if there is any evidence to support it.). And, given such a finding, the Reymonds cannot be deemed to have knowingly agreed to such provisions and to have waived the instant claims as a result.

It follows that, despite the fact that the agreement stated otherwise, the evidence presented authorized the jury to find that Frank Turner did, in fact, show the Reymonds a fraudulent earnings claim prior to September 13, 2001, and that he did so with the intention of inducing them to execute the franchise agreement. See Greenwald v. Odom, 314 Ga. App. 46, 53-54 (1) (723 SE2d 305) (2012) (The evidence presented authorized the jury to find that a revenue forecast provided by the seller included an actionable false statement of an existing fact that was intended to induce the buyer to enter into the purchase transaction.). Consequently, Legacy was not entitled to a directed verdict on Mamilove’s rescission claim, and the jury’s verdict in favor of Mamilove on that claim must be affirmed. See Fertility Technology Resources v. Lifetek Med., 282 Ga. App. at 149; Rolleston v. Estate of Sims, 253 Ga. App. at 185 (4); Stubbs v. Harmon, 226 Ga. App. at 632 (1).

5. Legacy contends that the trial court erred in denying its motion for a directed verdict on Mamilove’s claims for fraud, negligent misrepresentation, and RICO violations because the merger or “entire agreement” provision in the franchise agreement bars these claims as a matter of law. Section 24.6 of the agreement states as follows: “Entire Agreement. Franchisee acknowledges that this agreement constitutes the entire agreement of the parties with respect to the matters contained herein. This [a] greement terminates and supersedes any prior agreement between the parties concerning the same subject matter.” According to Legacy, this provision prevents the Reymonds from proving that they reasonably relied on the earnings claim Frank Turner had given them before they executed the franchise agreement. It argues that, because justifiable reliance is an essential element of Mamilove’s claims for fraud, negligent misrepresentation, and RICO violations, Mamilove could not prevail on those claims as a matter of law. Under the circumstances presented, we disagree.

(a) As we stated in Division 3, supra, “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) rescind the contract and sue in tort for fraud.” (Citations omitted.) Jones v. Cartee, 227 Ga. App. 401, 402-403 (1) (489 SE2d 141) (1997).

Depending upon which of the two actions is ultimately pursued, the presence of a merger clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery. If, on the other hand, he does rescind the contract, the merger clause will not prevent his recovery under a tort [claim for fraud].

(Citations and punctuation omitted.) Id. at 403 (1).

In City Dodge v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974), the Supreme Court of Georgia addressed whether a merger clause in a sales contract prevented a buyer from prevailing on his fraudulent inducement claim when the contract had been rescinded. In that case, the buyer asserted that, before he purchased a vehicle, the seller told him that the vehicle had never been wrecked. Id. at 767. The buyer signed a sales agreement that stated that the car was sold “as is” and contained the following merger clause: “no other agreement, promise or understanding of any kind pertaining to this purchase will be recognized.” Id. After purchasing the car, the buyer discovered that it had been wrecked, so he tendered the car to the seller, unilaterally rescinded the contract, and filed a tort claim for fraud and deceit. Id. Following a jury verdict in favor of the buyer, the Supreme Court of Georgia directly addressed the legal issue of “whether the language of the merger clause... was legally effective to prevent the buyer from claiming that he relied on the seller’s misrepresentation.” Id. at 767. The Court held that

the question of reliance on the alleged fraudulent misrepresentation in tort cases cannot be determined by the provisions of the contract sought to be rescinded but must be determined as a question of fact by the jury. It is inconsistent to apply a disclaimer provision of a contract in a tort action brought to determine whether the entire contract is invalid because of alleged prior fraud which induced the execution of the contract. If the contract is invalid because of the antecedent fraud, thenthe... provisionfs] therein [are] ineffectual since, in legal contemplation, there is no contract between the parties.

(Emphasis supplied.) Id. at 770. In other words, a plaintiff can prevail on a claim for fraud in the inducement, even when the sales contract contains a merger clause, if the jury finds that the contract was invalid due to the seller’s antecedent fraud. See id. (“[P]arol evidence of the alleged misrepresentation was admissible on the question of fraud and deceit. As the antecedent fraud was proven to the satisfaction of the jury, it vitiated the contract.”).

Therefore, in the instant case, because the evidence supported the jury’s verdict in favor of Mamilove on the rescission claim, as explained in Division 4, supra, the entire agreement — including the merger clause—was no longer valid or enforceable against Mamilove and did not prevent the Reymonds from proving that they reasonably relied on the fraudulent earnings claim when they executed the franchise agreement. See id. Instead, it was for the jury to decide whether their reliance on the earnings claim was reasonable under the circumstances presented. See id. It follows that the trial court properly denied Legacy’s motion for a directed verdict on Mamilove’s claims for fraud, negligent misrepresentation, and RICO violations.

(b) Still, Legacy argues that the Reymonds could not prove the element of reasonable reliance as a matter of law because precontractual misrepresentations that contradict the express terms of a valid, written contract that contains a merger clause cannot be relied upon to vary the terms of that contract or to support a fraud claim. However, the misrepresentation at issue in this case — the fraudulent content of Legacy’s earnings claim — did not contradict or vary the merger clause or any other provision of the agreement. Thus, this argument does not support the grant of a directed verdict on these claims.

6. Legacy contends that the trial court erred in denying its motion for a directed verdict on Mamilove’s claim for violation of a legal duty under OCGA § 51-1-6. Under OCGA § 51-1-6, “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”

Mamilove’s claim under this statute was based upon Legacy’s violations of the FTC Rules, specifically the FTC’s Disclosure Requirements and Prohibitions Concerning Franchising, 16 CFR §§ 436.1-436.5. Under the FTC Rules,

a franchisor must provide to prospective franchisees a complete and accurate basic disclosure document containing information relating to the franchisor and its existing franchisees. 16 CFR §§ 436.2-436.5.[] A franchisor’s failure to disclose that information is an unfair or deceptive trade practice that violates § 5 of the Federal Trade Commission Act (FTCA). 16 CFR § 436.2; 15 USC § 45.

Palermo Gelato, LLC v. Pino Gelato, Inc., 2013 U. S. Dist. LEXIS 9931 (1), n. 2 (W.D. Penn. 2013).

On appeal, Legacy argues that 15 USC § 45 allows a franchisee, like Mamilove, to file a complaint with the FTC asserting a franchisor’s alleged violations of the FTC Rules and that, if Mamilove had done so, the FTC could have filed a “cause of action” on Mamilove’s behalf. Legacy contends that, because OCGA § 51-1-6 only applies when a “cause of action” is not available to the injured party, OCGA § 51-1-6 does not provide a remedy for Mamilove in this case.

However, the phrase “cause of action” in the context of OCGA § 51-1-6 refers to an injured party’s right to bring a private lawsuit. “OCGA § 51-1-6 authorizes a plaintiff to recover damages for the breach of a legal duty . . . when that duty arises from a statute that does not provide a private cause of action.” (Citation and punctuation omitted; emphasis supplied.) Pulte Home Corp. v. Simerly, 322 Ga. App. 699, 705 (3) (746 SE2d 173) (2013). The plain language of 15 USC § 45 clearly shows that the statute does not provide a private cause of action. Instead, the statute provides that, if the FTC believes that a franchisor has intentionally violated its rules against unfair or deceptive acts, it will conduct a “hearing.” Then, if it finds a violation, it will issue a cease and desist order. If the FTC subsequently finds that the franchisor has violated the cease and desist order, it may issue, at most, a civil penalty to be paid to the United States, not to the injured party. Thus, there is no merit to Legacy’s contention that the FTC could have filed a cause of action on behalf of Mamilove.

Accordingly, we conclude that Mamilove was entitled to pursue a claim under OCGA § 51-1-6 based upon Legacy’s violations of the FTC Rules. See Holiday Hospitality Franchising v. 174 West Street Corp., 2006 U. S. Dist. LEXIS 49177 (III) (A) (2) (N.D. Ga. 2006). It follows that, because there was evidence to support the jury’s verdict against Legacy on that claim, the trial court did not err in denying Legacy’s motion for a directed verdict thereon.

7. Legacy contends that the trial court erred in denying its motion for a directed verdict on its counterclaim for breach of contract based upon Mamilove’s failure to pay royalty and advertising fees to Legacy after the Reymonds discovered Legacy’s fraud and terminated the franchise agreement in 2010. However, because the jury found that the franchise agreement was rescinded due to Legacy’s antecedent fraud, as discussed in Division 4, supra, no contractual fee obligation survived for Mamilove to breach. See City Dodge v. Gardner, 232 Ga. at 770 (Because the evidence supported the jury’s conclusion that the entire contract was invalid due to the defendant’s antecedent fraud, the defendant could not rely on the contract’s provisions, as they had no legal effect.).

Moreover, even if Mamilove had been obligated to pay such fees to Legacy after terminating the agreement, Legacy failed to produce any evidence at trial to prove the amount of fees Mamilove failed to pay, instead relying on a purely speculative estimate of the franchise’s possible revenue for the remainder of the contract period. “Damages must be proved by evidence which furnishes the jury with sufficient data to enable them to calculate the amount with reasonable certainty. Proof of damages cannot be left to speculation, conjecture and guesswork.” (Citation and punctuation omitted.) Olagbegi v. Hutto, 320 Ga. App. 436, 439-440 (2) (740 SE2d 190) (2013). Accordingly, this alleged error lacks merit.

8. Legacy contends that the trial court erred in denying its motion for a directed verdict on Melissa Turner’s individual liability for Mamilove’s claims. Because there was evidence presented at trial to support the jury’s finding on Melissa Turner’s individual culpability for Mamilove’s claims, and because Legacy has failed to cite to any evidence or authority to demand a contrary finding, the trial court did not err in refusing to direct a verdict on this factual issue. See Fertility Technology Resources v. Lifetek Med., 282 Ga. App. at 149; Rolleston v. Estate of Sims, 253 Ga. App. at 185 (4); Stubbs v. Harmon, 226 Ga. App. at 632 (1).

9. Legacy contends that the trial court abused its discretion in excluding the tax returns of one of its other franchisees, JLK, Inc. and JLK Holdings, Inc. The trial court excluded the evidence after concluding that it constituted hearsay. Legacy has failed to cite to any evidence or authority to show that this conclusion was erroneous and that, as a result, the court abused its discretion in excluding admissible evidence. Accordingly, this alleged error is deemed abandoned. See Court of Appeals Rule 25 (c) (2).

10. Legacy contends that the trial court abused its discretion in excluding the tax returns of a separate business, The Cutting Board, Inc., that was owned solely by Lorraine Reymond. The trial court excluded the evidence on the basis that it was irrelevant to the issues presented at trial. Because Legacy failed to tender the evidence at trial and has not cited to any authority on appeal to support this alleged error, this argument is deemed abandoned. See Court of Appeals Rule 25 (c) (2).

11. Legacy contends that the trial court abused its discretion in denying its motion for a new trial. According to the motion, Michele Reymond allegedly committed perjury during the trial when she testified that she did not have an opportunity to review the franchise circular and agreement prior to signing them. In support of the motion, Legacy claimed that it had a copy of the circular and agreement on which Reymond had made handwritten notes, thus proving that she had thoroughly reviewed the documents before signing them.

Under OCGA § 5-5-23, the trial court is authorized to grant a new trial “in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.”

Grants of new trial on the ground of newly discovered evidence are not favored and are addressed to the sound discretion of the trial court. The trial court’s decision will not be disturbed absent a manifest abuse of discretion. To obtain a new trial based on newly discovered evidence, the evidence supporting the motion must satisfy six criteria: (1) it must have been discovered after the trial or hearing; (2) its late discovery was not due to lack of diligence; (3) it is so material that its introduction in evidence would probably produce a different result; (4) it is not merely cumulative; (5) the affidavit of the witness must be attached to the motion (or its absence accounted for); and (6) it does not operate only to impeach a witness. All six criteria must be satisfied for a new trial to be warranted.

(Footnotes omitted.) Hopper v. M & B Builders, 261 Ga. App. 702, 704 (1) (b) (583 SE2d 533) (2003).

In this case, in arguing that Reymond had lied during her trial testimony as to when she received the circular and agreement from Legacy, Legacy is relying on copies of the documents that, by its own admissions, it possessed prior to and during trial. Thus, the documents are not newly discovered evidence that might, under certain circumstances, authorize the grant of a new trial. Further, even if the documents had been newly discovered evidence, their only purpose would be to impeach Reymond’s testimony as to when she received the documents from Legacy. Because even newly discovered evidence that merely serves to impeach a trial witness’ testimony does not authorize the grant of a new trial under OCGA § 5-5-23, the trial court did not abuse its discretion in denying Legacy’s motion. Hopper v. M & B Builders, 261 Ga. App. at 704 (1) (b).

Judgment affirmed.

Phipps, C. J., Barnes, P. J., and McFadden, J., concur. Andrews, P. J., Ray and McMillian, JJ., concur in part and dissent in part.

McMlLLlAN, Judge,

concurring in part and dissenting in part.

For the reasons set forth below, I must respectfully dissent to Division 4 and Division 5 of the majority opinion.

1. Contrary to the majority’s holding in Division 4, Legacy was entitled to a directed verdict on Mamilove’s claim for rescission of the franchise agreement.

As the majority states, it is undisputed in this case that Michele Reymond and Lorraine Reymond did not read the franchise agreement prior to signing. Further, as the majority acknowledges, it is “well-settled law in Georgia that a party who has the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of [the contract] based on... representations that differ from the terms of the contract.” (Citation and punctuation omitted.) Novare Group v. Sarif, 290 Ga. 186, 188-189 (2) (718 SE2d 304) (2011). Nevertheless, the majority concludes that Mamilove is entitled to rescind the franchise agreement despite the Reymonds’ failure to read it because the jury was authorized to find that they were “pressured” or “rushed” into signing it.

But being pressured or rushed into signing an agreement does not provide a legal excuse for not reading the agreement. As the Supreme Court also explained in Novare,

[i]n fact, the only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract.... To be able to rescind a contract, the fraud must be of a nature that the [party seeking to rescind the contract was] deprived of an opportunity to read the agreements.

(Emphasis supplied.) Id. at 189 (2). In this case, although the Reymonds set out evidence that the Turners “rushed” or “pressured” them into signing the agreement “right then” by telling them they would lose the franchise opportunity if they did not act, they presented no evidence that the Turners said or did anything that prevented them from reading the agreement before they signed it. Citizens Bank, Vienna v. Bowen, 169 Ga. App. 896, 897 (1) (315 SE2d 437) (1984) (the fact that one party was in a “hurry” to have the agreements signed does not mean the other party was prevented from reading it); see also Tidwell v. Critz, 248 Ga. 201, 203 (1) (282 SE2d 104) (1981) (“threat of losing a job or fear of such loss not duress which will void a contract”); Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 420 (1) (364 SE2d 65) (1987) (“[t]he fact that appellees deemed themselves too busy to read the ... agreements prior to signing them will not authorize them to avoid their obligations”); Bradley v. Swift & Co., 93 Ga. App. 847, 856 (3) (93 SE2d 364) (1956) (being occupied with other business does not mean party was fraudulently induced to sign).

Thus, Mamilove was bound by the terms of the franchise agreement, which contained a merger clause and disclaimers that it had not received any representations concerning potential income or earnings claims prior to signing the agreement. Accordingly, Mamilove could not rescind the agreement based upon allegations that it was fraudulently induced to enter into the agreement based on a false earnings spreadsheet, and the trial court should have granted Legacy’s motion for directed verdict on this claim. Novare, 290 Ga. at 189 (2) (“[purchasers are not entitled to back out of a written agreement whose terms expressly contradict the oral representations on which Purchasers claim to have relied.”); Campbell v. Citizens & Southern Nat. Bank, 202 Ga. App. 639, 640 (1) (415 SE2d 193) (1992) (party not prevented from reading the contract cannot claim he was fraudulently induced to sign by promises which contradict the contract terms)..

2. Because Mamilove was not entitled to rescind the agreement, I also disagree with the majority’s conclusion in Division 5 that the disclaimers and merger clause contained in the agreement were ineffectual. In other words, because Mamilove “[was] not entitled to rescission as a remedy, [it was] bound by the terms of [its] agreement[ ].” Novare, 290 Ga. at 190 (3). Cf. City Dodge, Inc. v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974). These provisions precluded the Reymonds’ claim that they reasonably relied on or were deceived by the earnings spreadsheet when they executed the franchise agreement. Accordingly, the trial court should have granted Legacy’s motion for directed verdict on Mamilove’s claims for fraud, negligent misrepresentation, and RICO violations. Novare, 290 Ga. at 190 (3) (“Since Purchasers are estopped from relying on a representation outside of the agreement, they cannot sustain any of the causes of action that require justifiable reliance.”); First Data POS, Inc. v. Willis, 273 Ga. 792, 796 (2) (546 SE2d 781) (2001) (“merger clause ... precludes any subsequent claim of deceit based upon pre-contractual representations.”); W. R. Grace & Co.-Conn. v. Taco Tico Acquisition Corp., 216 Ga. App. 423, 426 (1) (454 SE2d 789) (1995) (“[t]his [C]ourt has consistently held that disclaimers in contracts prevent justifiable reliance on other representations purportedly made by the parties.”).

3. Mamilove argues, however, that even if we were to decide that it was not entitled to rescind the franchise agreement and accordingly it was bound by its terms, we nevertheless must sustain the jury’s verdict as long as the verdict in its favor on its other claims remains extant. But as our Supreme Court explained in Georgia Power Co. v. Busbin, 242 Ga. 612, 616-617 (8) (250 SE2d 442) (1978), “the [general] verdict [] cannot stand for the reason that this court cannot determine whether the verdict was entered upon a proper basis.” See also Godwin v. Godwin, 265 Ga. 891, 892 (1) (463 SE2d 685) (1995). Accordingly, I believe that Legacy must be granted a new trial on its other claims, including their negligence claim under OCGA § 51-1-6.

Decided July 16, 2014 —

Reconsideration denied July 31, 2014 —

C. David Joyner, Gregory, Doyle, Calhoun & Rogers, Stuart L. Sims, Charles L. Bachman, Jr., for appellants.

Ichter Thomas, Cary Ichter, W. Daniel Davis, for appellees.

I am authorized to state that Presiding Judge Andrews and Judge Ray join in this opinion.

        See ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 576 (2) (649 SE2d 740) (2007) (“On appeal, we examine the record in the light most favorable to the verdict and judgment. A jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law.”) (punctuation and footnotes omitted).

       The record shows that the Turners purchased 6.6 acres of property at the Sugar Hill location for $440,000, and then, on the same day, sold the Reymonds a 2.26-acre parcel of the property for $525,000, thereby obtaining an immediate and substantial profit on the land. The Turners constructed a building for the Legacy Academy corporate headquarters on the remaining four-acre parcel right behind Mamilove’s daycare center.

       Net earnings for subsequent years also fell far short of those represented in the earnings claim, with the Reymonds earning just $89,947 in 2006, $40,668 in 2007, $17,213 in 2008, and $28,299 in 2009.

       According to Michele Reymond, she tried to avoid complaining too often or committing any violations of Legacy’s policies because she was concerned about getting “default letters” from Legacy for even minor or inadvertent infractions, which she feared would cause Legacy to take over Mamilove’s center.

       The franchisees asserted claims for fraud, negligent misrepresentation, RICO violations, and breach of contract. In July 2010, an arbitrator issued an award in favor of franchisees that was later confirmed by the Superior Court of Gwinnett County. At trial in the instant case, the parties agreed that they would not present to the jury evidence of the arbitration award. See Division 1, infra.

       After removing Legacy’s insignia and other materials from the daycare center, the Reymonds began operating the center as the “Wise Owl Academy.”

       See Division 6, infra.

       See OCGA § 16-14-1 et seq. (the “Georgia Racketeer Influenced and Corrupt Organizations Act”).

       Mamilove also asserted claims against the contractor that built its daycare center, but those claims are not at issue in this appeal.

       Notably, although the most Legacy daycare center franchises in operation at one time was about twenty-five, only ten were still in operation at the time of the 2013 trial in this case.

       See Division 11, infra, regarding the trial court’s denial of Legacy’s motion for new trial.

       Further, to the extent that Legacy contends that it was entitled to a directed verdict on this issue, the record shows that Legacy failed to raise this issue in its motion for a directed verdict. Regardless, Legacy would not have been entitled to a directed verdict on this issue, because there was evidence to support the jury’s finding that Mamilove timely asserted its claim for rescission. See Krayev v. Johnson, 327 Ga. App. 213, 217 (1) (757 SE2d 872) (2014) (“[T]he question as to what is a reasonable or proper time within which to rescind a contract depends upon the facts of the particular case and is ordinarily a question for the jury.”) (citation and punctuation omitted); Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997) (“When there exists any evidence to support the jury’s verdict, and no reversible error is otherwise committed, the verdict will stand. It is the function of the jury to resolve conflictfs] in [the] testimony; this Court will not substitute its judgment for that of the jury and will neither weigh evidence nor determine witness credibility.”) (citations omitted).

       Specifically, the agreement contained the following relevant provisions:
      24.2. No Representations, Warranties or Guarantees. Franchisor expressly disclaims the making of, and Franchisee and each Owner acknowledge that it has not received from Franchisor or any party on behalf of Franchisor, any representation, warranty or guarantee, express or implied, as to the potential volume, profit, income or success of the business licensed under this Agreement. . . . 24.7. No Earnings Claims. Franchisee acknowledges that neither Franchisor, nor any person on behalf of Franchisor, has made any written, oral or visual representation of (i) earnings capability of Legacy Academy Center; (ii) a specific level of potential sales, income, gross or net profit for the Franchisee; or (iii) a specific level of sales, income, gross or net profits of existing centers (whether franchised or company-owned) other than as specifically described in the Offering Circular.

       Accordingly, the dissent’s statement that the Reymonds “presented no evidence that the Turners said or did anything that prevented them from reading the agreement before they signed it” is simply incorrect.

       The dissent misrepresents this conclusion by stating that “the majority concludes that Mamilove is entitled to rescind the franchise agreement despite the Reymonds’ failure to read it because the jury was authorized to find that they were ‘pressured’ or ‘rushed’ into signing it.” To be clear, the evidence did not only show that the Turners merely “pressured” the Reymonds into signing the agreement before reading it; it authorized the jury to find that the Turners actively defrauded the Reymonds by intentionally preventing them from reading the voluminous agreement so that they would be bound by the 25-year agreement before discovering the false statements contained therein.
      Further, the facts in the cases cited by the dissent on this issue are clearly distinguishable from those presented in this case. The Reymonds never testified that they could not read the agreement because they were “too busy” or “occupied with other business.” Cf. Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 420 (1) (364 SE2d 65) (1987) (wherein there was no evidence that the opposing party “employed any artifice to prevent [the plaintiffs] from reading the agreements. The fact that [the plaintiffs] deemed themselves too busy to read the lease and indemnification agreements prior to signing them will not authorize them to avoid their obligations to appellant thereunder.”); Bradley v. Swift & Co., 93 Ga. App. 842, 857 (3) (93 SE2d 364) (1956) (wherein there was no evidence that the opposing party committed any actual fraud on the guarantor from whom he was trying to collect a debt, and the guarantor admitted that he did not read the guaranty before signing it because he was occupied with his other business at the time). Nor did the Reymonds contend that they signed the agreement by mistake, thinking it was a different type of agreement, or that they had read the agreement, consulted with an attorney, and then waited months before signing it despite their objections to certain provisions of the agreement that they believed were contrary to their best interests. Cf. Citizens Bank, Vienna v. Bowen, 169 Ga. App. 896, 897 (1) (315 SE2d 437) (1984), and Tidwell v. Critz, 248 Ga. 201, 203-204 (1) (282 SE2d 104) (1981), respectively.

       Cf. Novare Group v. Sarif, 290 Ga. at 189 (2) (wherein there was no allegation that the sellers tried to prevent the purchasers from reading the terms of the agreements); Raysoni v. Payless Auto Deals, 323 Ga. App. 583 (753 SE2d 313) (2013) (wherein there was no allegation that the buyer was prevented from reading the contract or from determining whether the seller’s oral statements were true before he purchased a car); Campbell v. Citizens & Southern

        Nat. Bank, 202 Ga. App. 639, 640 (415 SE2d 193) (1992) (wherein the debtor did not claim that he was prevented from reading the note before he signed it).

       See Jones v. Cartee, 227 Ga. App. 401, 405 (2) (489 SE2d 141) (1997) (“The tort of fraud requires proof of five elements: (1) a false representation; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff.”) (citation omitted).

       See Greenwald v. Odom, 314 Ga. App. at 52 (“[N]egligent misrepresentation requires proof of (1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance.”) (citation and punctuation omitted).

       The R.ICO claim was based upon allegations that Legacy had committed at least two acts of racketeering activity, including, among other crimes, theft by deception. See OCGA § 16-8-3 (a), (b) (1) (theft by deception); OCGA § 16-14-3 (8) (A), (9) (A) (ix) (RICO Act); see also First Data

        POS v. Willis, 273 Ga. 792, 795 (2) (546 SE2d 781) (2001) (If a party cannot prove that it reasonably relied on a pre-contractual representation, then it also cannot prove that it was deceived by that representation. It follows that, absent proof of deception, the party cannot prevail on claims for theft by deception or a RICO claim based upon theft by deception.).

        See Novare Group v. Sarif, 290 Ga. at 190 (3) (The questionofwhether apartyjustifiably relied on a seller’s antecedent misrepresentation “may be a jury question in a fraud case where no contract exists or where the contract has become void[i\” However, it is a question of law in a case where the contract remains valid and its provisions preclude reliance on oral representations.) (citations omitted; emphasis supplied).

       Cf. Novare Group v. Sarif, 290 Ga. at 190 (3) (Because the purchasers did not prevail on their rescission claims, the contract remained valid, and the purchasers were bound to the contract’s merger clause, which expressly stated that the purchasers could not rely on oral representations by the sellers. It followed that the purchasers could not prevail on their fraud and negligent misrepresentation claims, as those claims required a showing of justifiable reliance.).
      We note that, to the extent that Legacy relies on an unpublished opinion by this Court in a previous appeal involving Legacy and a different franchisee, JLK, Inc. v. Legacy Academy (A13A0810) (323 Ga. App. XXIII) (2013), this Court issued that opinion pursuant to Court of Appeals Rule 36. Thus, pretermitting whether that appeal addressed this issue, Rule 36 specifically states that such opinions “have no precedential value.”

       See Novare Group v. Sarif, 290 Ga. at 189 (2) (“Statements that directly contradict the terms of the agreement . . . cannot form the basis of a fraud claim[.]”) (citation omitted); Campbell v. Citizens & Southern Nat. Bank, 202 Ga. App. 639, 640 (1) (415 SE2d 193) (1992) (Pre-contractual statements or agreements that contradict the express terms of a contract “cannot be used to vary the terms of a valid written agreement purporting to contain the entire agreement of the parties, nor would the violation of any such alleged oral agreement amount to actionable fraud.”) (citation omitted).

       Cf. Novare Group v. Sarif, 290 Ga. at 188-189 (2) (Although the sellers of high-rise condominiums told purchasers that the units would have “spectacular city views,” the purchasers all signed written agreements that expressly stated that the views “may change over time.”) (citation omitted); First Data POS v. Willis, 273 Ga. at 794-796 (2) (Although the purchasers of a business told the sellers that they intended to increase the size of the business, thereby providing additional revenue to the sellers, the agreement stated that the purchasers could cease operations of the business entirely without notice to the sellers.); Raysoni v. Payless Auto Deals, 323 Ga. App. at 586-588 (1), (2), 589 (Although a salesman told a buyer that the car he was interested in purchasing had not been wrecked, the written sales contract stated that the car was being sold “AS-IS NO WARRANTY,” that none of the salesman’s statements were binding on the seller, and that the vehicle had been reported as damaged at auction.).

         The FTC Rules require, inter alia, that franchisors provide prospective franchisees with a copy of the current franchise circular and agreement “at least 14 calendar-days before the prospective franchisee signs a binding agreement with, or makes any payment to, the franchisor[.]” 16 CFR § 436.2 (a). The Rules also require that, if a franchisor provides a prospective franchisee “information about the actual or potential financial performance of its franchised and/or franchisor-owned outlets,” there must be “a reasonable basis for the information,” and the information must be included in the disclosure documents provided at least 14 days before the agreement is executed. 16 CFR § 436.5 (s). Further, the Rules state as follows:
      If the franchisor makes any financial performance representation to prospective franchisees, the franchisor must have a reasonable basis and written substantiation for the representation at the time the representation is made and must state the representation in the Item 19 disclosure. The franchisor must also disclose the following: (i) Whether the representation is an historic financial performance representation about the franchise system’s existing outlets, or a subset of those outlets, or is a forecast of the prospective franchisee’s future financial performance. . . . (ii) If the representation relates to past performance of the franchise system’s existing outlets, the material bases for the representation!.]
      16 CFR § 436.5 (s) (3).

       Legacy does not dispute that it owed a legal duty to Mamilove under the FTC Rules.

       See 15 USC § 45 (b) (‘Whenever the Commission shall have reason to believe that any such person, partnership, or corporation has been or is using any... unfair or deceptive act or practice in or affecting commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint stating its charges in that respect and containing a notice of a hearing!.] • • . If upon such hearing the Commission shall be of the opinion that the method of competition or the act or practice in question is prohibited by this Act, it shall make a report in writing in which it shall state its findings as to the facts and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of competition or such act or practice.”).

       Id.

       Seel5USC§45(l) (“Any person, partnership, or corporation who violates an order of the Commission after it has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $10,000 for each violation, which shall accrue to the United States and may be recovered in a civil action brought by the Attorney General of the United States.”); see also 15 USC § 45 (m) (1) (A) (“The Commission may commence a civil action to recover a civil penalty in a district court of the United States against any person, partnership, or corporation which violates any rule under this Act respecting unfair or deceptive acts or practices .. . with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule. In such action, such person, partnership, or corporation shall be liable for a civil penalty of not more than $10,000 for each violation.”).

       Moreover, the federal courts have repeatedly ruled that the FTC’s franchise disclosure rules, 16 CFR §§ 436.2-436.5, “do not create a private right of action.” (Citations omitted.) Holiday Hospitality Franchising v. 174 West Street Corp., 2006 U. S. Dist. LEXIS 49177 (III) (A) (2) (N.D. Ga. 2006). See, e.g., Bans Pasta v. Mirko Franchising, 2014 U. S. Dist. LEXIS 19953 (II) (B) (4) (W.D. Va. 2014) (“[Njeither the FTC Act nor [16 CFR § 436.5] gives rise to a private cause of action, and numerous courts have so held.”); Palermo Gelato, LLC v. Pino Gelato, Inc., 2013 U. S. Dist. LEXIS 9931 (II) (“It is well settled that [16 CFR § 436.5] may only be enforced by the FTC, and does not create a private cause of action.”) (citations omitted).

       See generally Pulte Home Corp. v. Simerly, 322 Ga. App. at 705 (3) (This Court concluded that the duties imposed by Georgia’s water quality statutes and the federal Clean Water Act, 33 USC prec. § 1251 et seq., fall within the ambit of OCGA § 51-1-6.); Cardin v. Telfair Acres of Lowndes County, 195 Ga. App. 449, 450 (393 SE2d 731) (1990) (This Court concluded that the regulations of the federal Occupational and Safety Health Administration constituted an enforceable duty under the law, and a breach of those regulations was a violation of law. Thus, the regulations were admissible as evidence of an employer’s legal duty, the violation of which may give a cause of action under OCGA § 51-1-6.).

       See Carter v. State, 296 Ga. App. 598, 601, n. 7 (675 SE2d 320) (2009) (This Court reviews a trial court’s ruling on the admission of evidence under an abuse of discretion standard.).

        See Hopper v. M & B Builders, 261 Ga. App. 702, 705 (1) (b) (583 SE2d 533) (2003) (“When a trial judge decides not to grant a new trial, he becomes the trier of fact, and his discretion in refusing the motion will not be disturbed unless manifestly abused.”) (footnote omitted).

       See OCGA § 24-6-621 (“A witness maybe impeached by disproving the facts testified to by the witness.”).

       Paragraph 24.2 of the franchise agreement provides:

        No Representations, Warranties or Guarantees. Franchisor expressly disclaims the making of, and Franchisee and each Owner acknowledge that it has not received from Franchisor or any party on behalf of Franchisor, any representation, warranty or guarantee, express or implied, as to the potential volume, profit, income or success of the business licensed under this Agreement.
      Paragraph 24.7 provides:

        No Earnings Claims. Franchisee acknowledges that neither Franchisor, nor any person on behalf of Franchisor, has made any written, oral or visual representation of (i) earnings capability of Legacy Academy Center; (ii) a specific level of potential sales, income, gross or net profit for the Franchisee; or (iii) a specific level of sales, income, gross or net profits of existing centers (whether franchised or company-owned) other than as specifically described in the Offering Circular.
      The merger clause was contained in paragraph 24.6 and provides:

        Entire Agreement. Franchisee acknowledges that this agreement constitutes the entire agreement of the parties with respect to the matters contained herein. This Agreement terminates and supersedes any prior agreement between the parties concerning the same subject matter.

       The verdict form was general as to liability for the claims asserted.

       I concur with the majority’s conclusion in Division 1 that Legacy waived the statute of limitation defense as to this claim.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A14A1418.
    GOM BUILDERS, LLC et al. v. RENASANT BANK.
    (762 SE2d 622)
    Decided August 5, 2014.

      Steven J. Strelzik, Mary Trachian-Bradley, for appellants.

      Howick, Westfall, McBryan & Kaplan, Susan L. Howick, Trout-man Sanders, Michael E. Johnson, for appellee.
   Boggs, Judge.

GOM Builders, LLC, Barry Straus, Denise Straus, and Jim Hutchins appeal from an order granting a supersedeas bond for their appeals of the trial court’s order granting summary judgment in favor of Renasant Bank. Those appeals have been decided and are no longer pending in this court. The appeal as to the propriety of the supersedeas bond is therefore dismissed as moot. Muhammad v. Power Lending, 311 Ga. App. 347, 349-350 (5) (715 SE2d 734) (2011).

Appeal dismissed.

Doyle, P. J., and Dillard, J., concur.


author: ELLINGTON, Presiding Judge.

text:
    A14A1355.
    DAVIS v. THE STATE.
    (760 SE2d 728)
   ELLINGTON, Presiding Judge.

A Polk County jury found Reginald Davis guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41 (a); kidnapping, OCGA § 16-5-40; hijacking a motor vehicle, OCGA § 16-5-44.1; and theft by taking, OCGA § 16-8-2. Following the denial of his motion for a new trial, Davis appeals, contending that the evidence was insufficient as to venue and that the trial court erred in denying his motion for a mistrial which was based upon testimony he claims constituted an improper comment upon his choice to remain silent. For the reasons explained below, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following. On August 24, 2011, Davis enlisted the help of his co-defendant, Mar quita Alford, and another woman in his plan to rob the victim. Knowing that the victim was interested in having sex with the other woman, Alford offered to arrange a meeting between the victim and the other woman, who acted as “bait.” When the victim arrived in his car at the agreed time to pick up Alford and the other woman, the women were walking on South Martiele Street, between Davenport Street and Cleo Street, in Cedartown. Alford got in the back seat, and the other woman got in the front seat. Davis was waiting in the same block in his own car with the engine running, ready to follow.

Just after the victim picked up the two women, Alford told the victim to drop her off on Cleo Street, which was the next cross street. The victim turned left onto Cleo Street and pulled over just before reaching the next corner at Estes Street. The other woman left the car and Davis entered the car, holding a gun. Davis pointed the gun at the back of the victim’s head and directed the victim’s driving until they reached a more secluded area. After telling the victim to stop the car, Davis and Alford took money, jewelry, and a cell phone from the victim while Davis continued to point the gun at him. After robbing the victim, Davis and Alford took the victim’s car, stranding him in some woods, and drove back toward Cedartown.

1. Davis contends that the State failed to prove that he committed the charged offenses in Polk County and that, as a result, the evidence was insufficient to prove venue.

The standard for review of the sufficiency of the evidence to support a criminal conviction 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. The review of the sufficiency of the evidence to support venue is no different because venue is an essential element that must be proven beyond a reasonable doubt in every criminal trial.

(Punctuation and footnotes omitted.) Thompson v. State, 277 Ga. 102, 103 (1) (586 SE2d 231) (2003). “Furthermore, venue is a question for the jury, and its decision will not be set aside if there is any evidence to support it.” (Punctuation and footnote omitted.) Leftwich v. State, 299 Ga. App. 392, 399 (4) (682 SE2d 614) (2009).

The State offered the testimony of the victim to establish venue in Polk County, as follows:

Q: [W]hat was the [telephone] conversation [between you and Alford] at that point[, that is, just before the victim picked up Alford and the other woman]?
A: [S]he said, we are on Martiele Street, and pick us up on Martiele. ... So when I got on Martiele, that’s where they were waiting. So when I stopped, [the other woman] got in the front, and [Alford] got in the back of my car[.] . . .
Q: Okay. And that was on Martiele Street?
A: On Martiele — South Martiele.
Q: That’s here in Cedartown?
A: Here in Cedartown, yeah.
Q: And that is in Polk County?
A: [Yes,] Polk County.

During his testimony, the victim referred to State’s Exhibit 2, a paper map, which showed these streets. The victim marked the block of South Martiele Street where he picked up the two women, the block he drove on Cleo Street, and the intersection of Cleo Street and Estes Street where Davis entered the car. The trial court admitted State’s Exhibit 2 without objection.

We conclude that the victim’s testimony, together with the map that he marked to show where he picked up Alford and the other woman, constituted direct evidence that South Martiele Street, between Davenport Street and Cleo Street, is in Polk County. In addition, the evidence authorized the jury to find that Alford and Davis’s conduct at that Polk County location — Alford entering the victim’s car with the other woman while Davis watched and followed in his own car — was an integral part of their plan to hijack the victim’s car and kidnap and rob him, which they executed during one continuous occurrence while in transit. See OCGA § 17-2-2 (e). Under these circumstances, each of the charged offenses can be considered as having been committed in Polk County, and venue as to each of the charged offenses was proper in that county. See Epps v. State, 297 Ga. App. 66, 69-70 (1) (676 SE2d 791) (2009) (Testimony showing that a bar where the defendant tricked the victim into getting into a car for the purpose of kidnapping and robbing him was in Douglas County was sufficient to establish venue there, even if the evidence showed that the defendant took the victim to an ATM in another county.). ****8

2. Davis contends that the trial court erred in denying his motion for a mistrial, which was based on an investigator’s alleged comment on Davis’s post-arrest silence. “The grant or denial of a mistrial is within the trial court’s discretion, and the appellate court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial.” (Footnote omitted.) Franks v. State, 301 Ga. App. 590, 591 (688 SE2d 382) (2009).

It is fundamental that “[t]he fact that a defendant exercised the right to remain silent may not be used against the defendant at trial.” (Citation omitted.) Taylor v. State, 272 Ga. 559, 561 (2) (d) (532 SE2d 395) (2000). Therefore, Georgia law prohibits the State from commenting on a criminal defendant’s post-arrest silence or failure to come forward after a crime, even when the defendant takes the stand in his own defense. Reynolds v. State, 285 Ga. 70, 71 (673 SE2d 854) (2009); Harrelson v. State, 312 Ga. App. 710, 716 (2) (719 SE2d 569) (2011); Franks v. State, 301 Ga. App. at 591. Evidence of the election to remain silent warrants reversal if it “point[s] directly at the substance of the defendant’s defense or otherwise substantially prejudice[s] the defendant in the eyes of the jury.” (Citation and punctuation omitted.) Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008).

In this case, the alleged comment on Davis’s silence occurred during the direct testimony of the lead detective. The detective described how he identified Davis as a participant in the crimes, through interviews with the victim, Alford, and the woman used as “bait,” who had come forward on the night of the robbery. The prosecutor asked whether the detective’s investigation suggested any suspect other than Davis; the detective answered, “no.” The prosecutor then asked, “[d]id any family members or anybody else come up and inform you that [Davis] was nowhere near that area at the time?” The detective answered, “No. [In the year between the crime and the trial,] I’ve been contacted by nobody providing an alibi of where he was, that he wasn’t at this location, or that he was with them. I’ve been contacted by absolutely nobody.” Davis’s counsel moved for a mistrial, arguing that a statement that “nobody’ had provided an alibi implied that Davis himself had failed to come forward during the investigation, claiming to have an alibi. The trial court determined, however, that the jurors likely inferred from the detective’s response, taken in context, only that none of the witnesses had given Davis an alibi and that they would not have taken the testimony as a comment on Davis’s silence. On this basis, the trial court denied Davis’s motion for a mistrial. Having reviewed the record, we discern no abuse of discretion in the trial court’s ruling. See Johnson v. State, 271 Ga. 375, 383 (15) (a) (519 SE2d 221) (1999) (Aprosecutor’s argument that evidence of guilt has not been contradicted or rebutted is permissible and is not a comment on the defendant’s silence.); Bryant v. State, 146 Ga. App. 43, 44 (1) (245 SE2d 333) (1978) (A prosecutor’s argument that “no other witness appeared here and told you that it didn’t happen •—• no witness — no evidence” was not an impermissible and prejudicial comment on the defendant’s silence.).

Decided July 22, 2014 —

Reconsideration denied August 6, 2014 —

Andrew S. Fleischman, for appellant.

Jack Browning, Jr., District Attorney, Matthew S. Nestrud, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., concurs. McMillian, J., concurs in Division 2 and in judgment only in Division 1.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       If a crime is committed upon any .. . vehicle ... traveling within this state and it cannot readily he determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the .. . vehicle .. . has traveled.
      OCGA § 17-2-2 (e).

       See also Wickerson v. State, 321 Ga. App. 844, 851-852 (2) (743 SE2d 509) (2013) (Testimony by the victims of armed robberies as to locations where they were robbed, and testimony by the lead police detective pointing out those locations on a map and testifying that the map was of an area of DeKalb County, were sufficient to establish venue there.); Bizimana v. State, 311 Ga. App. 447, 448-451 (715 SE2d 754) (2011) (Testimony by the investigating police officer that an apartment complex where the victim was raped was in DeKalb County was sufficient to establish venue there, even if the evidence supported a conclusion that the victim might have been driven into another county before the rape occurred.); Aldridge v. State, 310 Ga. App. 502, 504-505 (1) (713 SE2d 682) (2011) (The evidence was sufficient to establish venue in prosecution for kidnapping where the defendant pointed a gun at the victim and ordered her into his car at a gas station located in Fulton County, and the victim was also released in the same county.).


text:
    A14A0799.
    BREWER v. THE STATE.
    (762 SE2d 622)
   ELLINGTON, Presiding Judge.

A Richmond County jury found Michael Brewer guilty on two counts of committing an act of child exploitation through the use of a computer or electronic device, OCGA § 16-12-100.2 (d) (1). Brewer appeals from the denial of his motion for new trial. He contends that the trial court erred in rejecting his claim of ineffective assistance of trial counsel. Finding no error, we affirm.

Brewer contends that his court-appointed defense counsel provided ineffective assistance by filing a general demurrer to the State’s original indictment. He argues that his counsel’s general demurrer “alert[ed] the prosecution to [the indictment’s] problems of proof before jeopardy attached, and induc[ed] it to retreat to charges better tailored to its proof, easier to establish, and carrying greater sentences.” According to Brewer, the fact that counsel filed the demurrer at his insistence is legally insignificant.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

“As a general rule, reasonable trial tactics and strategies do not amount to ineffective assistance of counsel.” Woods v. State, 304 Ga. App. 403, 409 (4) (696 SE2d 411) (2010). “The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his [or her] client.” (Citation and punctuation omitted.) Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003). “Whether an attorney’s trial tactics [were] reasonable is a question of law, not fact.” (Citation and punctuation omitted.) Id. “When assessing the reasonableness of counsel’s actions, a court must evaluate counsel’s performance from his or her perspective atthetime of trial.” Woods v. State, 304 Ga. App. at 409 (4). Finally, this Court reviews a trial court’s ruling on an ineffective assistance claim on appeal by “accept [ing] the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

So viewed, the record reveals the following facts. On November 6, 2012, the State indicted Brewer on two counts of criminal attempt to commit child molestation, OCGA §§ 16-4-1 (criminal attempt) and 16-6-4 (a). Each count charged Brewer with performing an act which constituted a substantial step toward the commission of child molestation, specifically, sending messages via computer to an underage victim indicating that he wanted to have anal sodomy with her when he was released from prison in two months. Although the court had appointed a public defender, Lyndsey Hix, to represent him per his request, Brewer filed a pro se general demurrer on December 4. In the demurrer, he argued that the court must dismiss the charges because, in sending the e-mail messages at issue, he did not make a substantial step toward the commission of child molestation. Two days later, Brewer filed an amended demurrer in which he re-asserted that argument, noting that he was in prison at the time the messages were allegedly sent and therefore could not have any physical contact with the children; he also argued that the indictment was issued by an illegal grand jury and that he had an alibi and therefore must be acquitted on the charged offenses.

On January 7, 2013, Hix filed a general demurrer to the indictment on the basis that the acts described in the indictment were not violations of Georgia law because sending such messages by computer did not constitute a substantial step toward the commission of child molestation. The next day, Brewer mailed a third letter to the trial court clerk’s office, reiterating those arguments.

On March 1, the trial court initiated a hearing on Hix’s demurrer, but the State immediately notified the court that it was going to re-indict Brewer within the next few days. Although the court heard some argument in support of the demurrer, it noted that the arguments were “academic” at that point since the State was going to obtain and file a new indictment. Then, on March 5, before the court issued a ruling on the demurrer, the State filed the new indictment against Brewer, charging him with two counts of committing an act of child exploitation through the use of a computer or electronic device, OCGA § 16-12-100.2 (d) (1). Following his conviction by a jury, the trial court sentenced Brewer on the charges on March 28. The court also entered an order of nolle prosequi on the original indictment.

Brewer filed a motion for new trial, asserting that Hix provided ineffective assistance by filing the general demurrer to the original indictment and, to the extent she only did so at his insistence, for “abandon[ing]” her professional judgment and capitulating to his demands. During a hearing on the motion, Hix testified that, in attempting to “help” her while she was preparing for trial, Brewer

wrote [to me] constantly. He threatened me with habeas petitions and writing the judge and wrote letters to the clerk’s office... exposing privileged information between the two of us, and he believed himself to be a lawyer.... [I]t got to the point of borderline harassment of me. And that’s why I ultimately filed the demurrer [,] because ... if I didn’t do it, it was ineffective [assistance]____Mr. Brewer wrote daily,... asking for me to file [the] demurrer about the child molestation, that he could not possibly be guilty of it, that the judge had to grant it. At first, I didn’t think there was [a legal] basis for it. And I did some research and there was [a legal basis for the demurrer]. . . . [M]y goal is to be client-centered. I try the best I can to do as my client asks as long as it’s within the law and within the rules — and within the ethical rules that we’re confined to as lawyers. . . . [M]y position was [that] if I don’t file this [demurrer],... I’m going to be sworn in and sit and testify after the trial that I was ineffective for not filing the motion. If I filed [the demurrer], then there’s a chance [the State] will either re-indict [him] and do a better job this time, or re-indict [him] for something else entirely. And then I will be sworn in and be accused of being ineffective. I essentially had no choice. And I knew from my interactions from Mr. Brewer that... anything I did was going to be the wrong choice anyway. . . . [I]t didn’t matter — short of an acquittal, everything I did was going to be the wrong choice [from Brewer’s perspective].... [Brewer’s] demands were so unrelenting to me that I... didn’t feel like I had any other choice in representation of him[.]

Hix also testified that, before she filed the demurrer, she thought there was “a small chance [Brewer] could [be] acquitted at trial[] if we... just kept our mouths shut” about the problems with the original indictment and that, if Brewer was convicted, the problems would have presented “a really good appellate issue.” According to Hix, she explained this strategy to Brewer, yet he “continued to write and continued to ask for the demurrer and ... I felt like I had no other choice at that point.”

Based upon this evidence, the trial court found no error in Hix’s successful pursuit of a demurrer, finding that she filed it

at the insistence of her client, even after she explained to [him] that it was an issue that would be better raised at trial or on appeal. That [Brewer] is now dissatisfied with the result of a strategy he insisted upon does not make counsel’s actions erroneous. Furthermore, the letters [Brewer] sent to the Clerk of Court put the State on notice of the same arguments raised in [Hix’s] demurrer. For these reasons, [Brewer] has not proven both prongs of the test [for ineffective assistance].

We find no error in the trial court’s ruling. This Court has repeatedly held that, in connection with an ineffective assistance claim, “a defendant cannot blame trial counsel for a decision he himself made over counsel’s objection.” (Citation and punctuation omitted.) Gunter v. State, 316 Ga. App. 485, 488 (3) (729 SE2d 597) (2012) (The defendant could not prevail on an ineffective assistance claim when she waived the charge of a lesser included offense against her attorney’s advice.).

Pretermitting whether Hix should have agreed to file the demurrer under the circumstances presented, “[a] defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. Induced error is impermissible and furnishes no ground for reversal.” (Citation and punctuation omitted.) Alvarado v. State, 271 Ga. App. 714, 719 (3) (610 SE2d 675) (2005) (The defendant could not prevail on an ineffective assistance claim when he waived a trial by jury over his attorney’s advice that to do so would be unwise.). See Sanders v. State, 211 Ga. App. 859, 861 (1) (440 SE2d 745) (1994) (The defendant could not prevail on an ineffective assistance claim when he testified at trial against his counsel’s advice and, in the process, opened the door to his criminal record. This Court held that “trial counsel cannot be labeled ineffective where the defendant proceeded against counsel’s advice and blundered.”).

Moreover, even if Brewer had been able to show that Hix provided deficient performance by filing the demurrer, he is unable to show that, but for her doing so, there is a reasonable likelihood that the State would have proceeded to trial on the original, defective indictment. See Robinson v. State, 277 Ga. at 75-76 (regarding the prejudice prong of an ineffective assistance claim). It is undisputed that Brewer himself filed pro se demurrers and related pleadings that raised the same issues as counsel’s demurrer, thus independently alerting the State to the same problems with the indictment that prompted it to re-indict him. Accordingly, Brewer cannot show that he was prejudiced by counsel’s allegedly deficient performance. Id.; see Gabler v. State, 177 Ga. App. 3, 7-8 (2) (338 SE2d 469) (1985) (The defendant could not prevail on an ineffective assistance claim when counsel failed to obj ect to bad character evidence that was duplicative of testimony given by a witness whom the defendant had insisted upon calling against his trial counsel’s advice.).

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

Decided August 6, 2014 —

James C. Bonner, Jr., Michael W. Tarleton, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

       OCGA § 16-12-100.2 (d) (1) provides, in relevant part, as follows:
      It shall be unlawful for any person intentionally or willfully to utilize a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, instant messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child [or] another person believed by such person to be a child... to commit any illegal act by, with, or against a child as described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy [or] Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation... or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

       Hix acknowledged that it was “extremely challenging” to prepare a defense in this case because Brewer had admitted to sending the e-mails at issue.

       The motion hearing transcript also shows that Brewer’s appellate counsel admitted that Brewer had “lobbied heavily” to get the trial court to issue a formal order quashing the original indictment and that he “lobbied equally hard for a written nolle pros [order], which was finally entered.”

       See also McCulley v. State, 275 Ga. 473, 475-476 (1) (569 SE2d 507) (2002) (The defendant could not prevail on an ineffective assistance claim based upon counsel’s decision to abandon a possible defense when that decision was made after consultation with the defendant, who acquiesced in that decision.); English v. State, 260 Ga. App. 620, 624 (4) (a) (580 SE2d 351) (2003) (The defendant could not prevail on an ineffective assistance claim based upon counsel’s failure to request a continuance when the evidence showed that “[p]roceeding to trial as scheduled was important to [the defendant], and counsel merely acceded to his wishes.”); Rose v. State, 258 Ga. App. 232, 235 (2) (a) (573 SE2d 465) (2002) (The defendant could not prevail on an ineffective assistance claim when, after consultation with counsel, he decided to introduce his prior drug conviction so the jury would know “that the prior conviction changed his life and that he would no longer be around drugs or anybody with drugs.”); Walls v. State, 233 Ga. App. 601, 605 (5) (504 SE2d 471) (1998) (The defendant could not prevail on an ineffective assistance claim based upon counsel’s failure to call an alibi witness when the transcript showed that the defendant had confirmed, under oath, that it was his decision not to call the witness.); see generally Brooks v. State, 169 Ga. App. 543, 545 (4) (314 SE2d 115) (1984) (physical precedent only) (A defendant is “estopped to assert a claim of ineffective assistance of counsel at any stage of the proceedings wherein he acted as his own counsel.”) (citation omitted).


author: MCFADDEN, Judge.

text:
    A14A1256.
    PINEDA v. THE STATE.
    (762 SE2d 626)
   MCFADDEN, Judge.

In 2011, after pleading guilty to conspiracy to commit trafficking in methamphetamine and conspiracy to commit trafficking in cocaine, Jose Pineda was convicted of those offenses. He did not timely appeal from the convictions, but in 2013 he filed a motion for an out-of-time appeal, which the trial court denied. Pineda appeals from the denial of that motion. Because, based on the existing record, his claims either can be resolved against him or cannot be resolved, we affirm.

Out-of-time appeals
are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice.

Stephens v. State, 291 Ga. 837, 837-838 (2) (733 SE2d 266) (2012) (citations omitted). Where, as here, a defendant seeks an out-of-time appeal from a conviction entered on a guilty plea, we consider whether the issues that the defendant seeks to appeal

can be resolved by reference to the existing record____[I]f the issues that the defendant seeks to appeal cannot be resolved from the record, he had no right to file a direct appeal, and therefore he has no right to file an out-of-time appeal. If the defendant raises issues that can be determined from the existing record, he then must show that his counsel was ineffective in not filing a timely appeal. However, if the claims that the defendant wants to raise in the out-of-time appeal can be resolved against him on the face of the record, so that even a timely appeal would have been unsuccessful, then plea counsel’s failure to advise the defendant to file such an appeal was not professionally deficient, nor did any prejudice result.

Decided August 7, 2014 —

Jose Pineda, pro se.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Hagan v. State, 294 Ga. 716, 718 (3) (a) (755 SE2d 734) (2014) (citations and punctuation omitted; emphasis in original).

In his motion for out-of-time appeal, Pineda sought to raise two claims: a challenge to the sufficiency of the indictment underlying his convictions, and a challenge to the effectiveness of his trial counsel. Neither claim supports the grant of an out-of-time appeal.

1. Sufficiency of indictment.

Pineda’s challenge to the sufficiency of the indictment can be resolved against him on the face of the record. “When [he] pled guilty to [the conspiracy offenses], he waived all defenses except that the indictment charged no crime.” Kemp v. Simpson, 278 Ga. 439, 439-440 (603 SE2d 267) (2004) (citations omitted). In his motion for out-of-time appeal, however, Pineda did not argue that the indictment charged no crime, but rather that the indictment did not sufficiently apprise him of the specific date on which the alleged crimes occurred. Because he waived this defense, a timely appeal on this ground would have been unsuccessful, and the trial court did not err in denying his motion for out-of-time appeal as to this claim. See Hagan, 294 Ga. at 718 (3) (a).

2. Effectiveness of trial counsel.

Pineda’s challenge to the effectiveness of his trial counsel cannot be resolved from the existing record. He argued in his motion for out-of-time appeal that his counsel was ineffective by failing to engage in pretrial discovery, failing to file a demurrer to his indictment, and failing to inform Pineda of his right to withdraw his guilty plea before sentencing. Because these claims were “not developed by way of a post-plea hearing, [they] cannot be resolved on the state of the record. [Pineda’s] remedy, therefore, lies in habeas corpus.” Moore v. State, 285 Ga. 855, 858 (3) (684 SE2d 605) (2009) (citation omitted). The trial court did not err in denying the motion for out-of-time appeal as to this claim. See id.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.