author: McFadden, Judge. RAY, Judge,

text:
    A14A1462.
    In the Interest of C. K. S., a child.
    (764 SE2d 559)
   McFadden, Judge.

The father of C. K. S. appeals the termination of his parental rights. He argues that the evidence does not support the termination. He also challenges the juvenile court’s decision not to place the child with a family member. We agree that the evidence is insufficient to support the termination, and we therefore reverse. We do not reach the issue regarding the child’s placement.

On appeal of a juvenile court’s order terminating a parent’s rights, we view the evidence

in the light most favorable to the juvenile court’s ruling, and [our] review is limited to addressing the question of whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In this review, [we] must necessarily defer to the juvenile court’s fact finding, weighing of the evidence, and credibility determinations.

In the Interest of D. T. A., 312 Ga. App. 26, 27 (717 SE2d 536) (2011) (citations and punctuation omitted).

Viewed in this light, the evidence shows that on July 7,2011, two days after the child was born, the Department of Family and Children Services (“DFCS”) filed a deprivation petition seeking custody of the child because the mother was incarcerated. The juvenile court granted the petition. After conducting a hearing, four days later, the court continued custody of the child in DFCS. The child’s case manager filed an affidavit in which she testified that she had contacted the father and paternal grandmother, but they reported that they did not have the resources to care for the child.

On July 28,2011, the court found the child to be deprived because the mother was incarcerated; her parental rights to another child had been terminated because of her chronic, unrehabilitated substance abuse, lack of stable housing and income, and failure to develop a bond with the child; the father admitted marijuana use; the father was unemployed; and the father resided in his mother’s house, which did not have accommodations for an infant. Although he had been notified of the hearing, the father was not present.

On August 29, 2011, the court entered a case plan with the alternate goals of the reunification of the child with his mother and the adoption of the child. The case plan listed multiple goals for the mother to meet in order for her to regain custody. It listed no specific goals for the father. The mother signed the plan, hut the father did not.

According to DFCS, when it looked as if the mother would not meet the goals of her case plan, DFCS intensified its efforts to work with the father. Nonetheless, the record contains no case plan entered before June 2012 specifically directing the father to meet any goals to regain custody of the child. In early 2012, the father voluntarily entered two accountability-court programs: the Savannah-Chatham County Felony Drug Court, a program of the Chatham Superior Court, and the Family Dependency Treatment Court, a program of the juvenile court. On February 7, 2012, he filed a petition to legitimate the child. The petition was granted in April 2012.

In the meantime, on March 15, 2012, the father pled guilty to theft by shoplifting and was sentenced to five years probation. In May 2012, the father tested positive for the presence of cocaine. Previously, before he had become part of the child’s case plan, the father pled guilty to possession of more than an ounce of marijuana, possession of a tool for the commission of a crime, and misdemeanor theft by receiving, and was sentenced under the First Offender Act to four years probation.

On June 1, 2012, DFCS filed a motion seeking to extend its custody of the child. DFCS alleged that the father had not complied with the recommendations of a psychological evaluation and had not completed parenting instruction. But not until June 19,2012, did the juvenile court enter a case plan that included goals for the father. Among other things, the goals in that plan required the father to complete a parenting class; to complete a drug and alcohol treatment program; to remain drug and alcohol free for six months; to submit to random drug screens; to undergo a psychological evaluation and to follow the recommendations of the psychologist; to maintain a source of income to support the child; to maintain stable, clean, and safe housing suitable for the child; to obtain childcare services; and to attend all visitations and the child’s doctor’s appointments.

On September 28, 2012, DFCS filed a petition to terminate the parents’ rights. It alleged that the father had failed to remain drug and alcohol free; had failed to maintain stable housing sufficient for himself and the child; had failed to maintain stable income sufficient to support himself and the child; had failed to complete a substance abuse treatment program; had failed to support the child; and had failed to maintain a bond with the child. DFCS also alleged that the father had been convicted of and incarcerated for an unspecified felony which had adversely affected the parent-child relationship. Hearings on the petition were scheduled for December 3, 2012, February 4, 2013, and April 8, 2013, but were continued at the request of DFCS due to the father’s or the father’s and mother’s progress toward meeting their goals.

In January 2013, the father missed a urine test. This was considered to be a positive test. In April 2013, the Family Dependency Treatment Court sanctioned the father because during a “Community Policing K-9 search” of his mother’s residence where he was living, officers found empty liquor bottles, a marijuana roach and marijuana residue in the trash can outside the back door of the residence. They found a prescription bottle containing his mother’s hydrocodone in the father’s bedroom closet. The juvenile court ordered the father to move out of his mother’s residence.

On June 10,2013 and June 15,2013, the father tested positive for the presence of alcohol in violation of the terms of the Family Dependency Treatment Court and his substance abuse treatment program. The father admitted that he had been drinking a month and a half. His alcohol use also amounted to a violation of his superior court probation. He was sentenced to serve 20 days in the Chatham County Detention Center for contempt of the Family Dependency Treatment Court. He was sentenced to complete a 28-day substance abuse program for the superior court violation, and he was ordered to complete a six-month residential treatment program following his incarceration. The child would not be allowed to stay with him at the program. The father remained incarcerated at the time of the August 12, 2013 termination hearing.

On October 14, 2013, the court terminated the parental rights of both parents. The parents filed motions for new trial, which the court denied. We granted the father’s application for discretionary appeal, and this appeal followed.

1. The sufficiency of the evidence.

First we observe that in 2013, the General Assembly adopted a new Juvenile Code to replace Chapter 11 of Title 15 of the Georgia Code. Ga. L. 2013, p. 294, § 1-1. The new Juvenile Code became effective on January 1, 2014, and does not apply to this case but to all juvenile proceedings commenced on and after January 1,2014. Ga. L. 2013, p. 294, § 5-1.

The father argues that clear and convincing evidence does not support the termination because it does not show parental misconduct or inability. Specifically, he challenges the juvenile court’s findings that the child was deprived; that any deprivation was likely to continue; and that the child would suffer serious physical, mental or emotional harm if the termination petition were not granted.

A juvenile court must employ a two-prong test in order to terminate a parent’s rights:

In the first prong, the court must decide whether there is present clear and convincing evidence of parental misconduct or inability. Former OCGA § 15-11-94 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. Former OCGA § 15-11-94 (b) (4) (A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child, after considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. Former OCGA § 15-11-94 (a).

In the Interest of D. P., 326 Ga. App. 101, 102 (756 SE2d 207) (2014) (citation, punctuation and footnotes omitted).

(a) Finding that the child was deprived and that deprivation is likely to continue.

Without belaboring the point here, we will assume that the evidence was sufficient to show that the [child was] deprived and that the mother and... father were responsible for that deprivation at the time the [child was] placed in the custody of DFCS [and at the time of the termination hearing].

In the Interest of C. S., 319 Ga. App. 138, 145 (1) (735 SE2d 140) (2012).

We observe that the father did not appeal the order finding deprivation, so the father is bound “to the finding that at the time of the order the child was deprived for the reasons given in the order.” In the Interest of R. C. M., 284 Ga. App. 791, 798 (III) (1), n. 6 (645 SE2d 363) (2007) (emphasis in original). Those reasons included that, at that time, the father admitted marijuana use, the father was unemployed, and the father resided in his mother’s house, which did not have accommodations for an infant. And at the time of the termination hearing, the father was incarcerated and would be unable to have custody of the child for at least six months, while he was in the residential treatment facility. See In the Interest of J. A. W., 281 Ga. App. 545, 547 (636 SE2d 725) (2006).

We also will assume that the evidence was sufficient to show that the deprivation was likely to continue, see In the Interest of C. S., 319 Ga. App. at 145 (1), given the evidence that the father admitted using marijuana at the time of the deprivation hearing in July 2011; that he tested positive for the presence of cocaine in May 2012, the month after his legitimation petition was granted; that he missed a urine test in January 2013, which was considered to be a positive test; and that in June 2013, he tested positive twice for the presence of alcohol and admitted that he had been drinking for a month and a half.

(b) Finding that continued deprivation would harm the child and that the best interest of the child would be served by termination.

The father argues that the juvenile court erred by finding by clear and convincing evidence that the child was suffering harm or would probably suffer serious physical, mental or emotional harm if the petition to terminate parental rights were denied. We construe this to be a challenge to the juvenile court’s finding regarding the first prong of the two-prong analysis that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child, former OCGA § 15-11-94 (b) (4) (A), and to the juvenile court’s finding regarding the second prong of the analysis that termination was in the child’s best interest. Former OCGA § 15-11-94 (a).

(i) Finding that continued deprivation was likely to cause harm.

The juvenile court concluded that continued deprivation was likely to cause harm because of evidence of the detrimental effects of ongoing temporary foster care to the child, the on again-off again relationship of the father with the child, and that as of the date of the termination hearing, the father was not close to being in a position to parent the child. Pertinent to this conclusion were certain factual findings that are not supported by the record. For example, the juvenile court found that the father repeatedly had been incarcerated because of his substance abuse. It found specifically that the father had been incarcerated four times since the case was initiated. But the only record evidence of the father’s incarceration during the period at issue is of the accountability-court contempt sanctions of 48 days for his June 2013 use of alcohol. Although the juvenile court found that the father had been incarcerated for violation of his probation due to the May 2012 positive cocaine test, record evidence does not support this finding. There are some indirect references to the father’s incarceration in the June 2012 case plan, but this plan was submitted to show the father’s case plan goals, not as evidence of the father’s incarceration. “This is hardly clear and convincing evidence.” In the Interest of J. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001).

Significantly, the record refutes the juvenile court’s finding that the father had not established or maintained a bond with the child. The DFCS case manager testified that the child has a bond with the father, that the father has a bond with the child, and that the father has visited the child throughout the case. She testified that this was the reason that DFCS intensified its efforts to work with the father. The father testified that he visited the child and that he loved him.

And it is not apparent that the juvenile court considered the evidence that the father had secured employment, would have obtained housing had he not been incarcerated for consuming alcohol, and had completed the case plan goals of completing parenting classes and obtaining a psychological assessment.

The DFCS case manager testified that she felt that the child would be in danger if placed with the father because “if he continue [d] with the instability he ha[d] shown, there would be no one to care for the child if he were to end up incarcerated again, at some point, and also the concern of substance abuse.” She also testified that it is in a child’s best interest to be in a permanent home because children need stability. But none of the witnesses

testified that the child was likely to suffer serious harm if parental rights were not terminated. None of the witnesses testified that the child’s relationship with the father was harmful to the child. . . . There was no expert testimony regarding the effect on the child of his father’s incarceration or the likely effects if parental rights were not terminated.

In the Interest of K. J., 226 Ga. App. 303, 308 (2) (b) (486 SE2d 899) (1997) (citations omitted). Consequently, “we cannot say that the evidence authorized the [juvenile] court to find by clear and convincing evidence that the child was likely to suffer serious physical, mental, moral or emotional harm.” Id. at 309 (2) (b).

(ii) Finding that termination was in the child’s best interest.

The juvenile court concluded that termination was in the child’s best interest because the child is in a placement with someone who is willing to adopt the child and who, unlike the parents, had bonded with the child. But, as noted, the evidence does not support the finding that the father had not bonded with the child. “As a result, the juvenile court was not authorized to terminate the [father’s] parental rights on this basis.” In the Interest of D. P., 326 Ga. App. at 109-110 (1) (b) (citations omitted).

“While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship.” In the Interest of D. L. T. C., 299 Ga. App. 765, 771 (1) (684 SE2d 29) (2009) (citations and punctuation omitted). “And the right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.” In the Interest of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006) (citation omitted). Absent clear and convincing evidence that the child’s continued deprivation will harm the child and that termination is in the child’s best interest, we are compelled to “reverse the judgment and remand the case for the establishment of [a] reunification plan[ ] for [the father], subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.” In the Interest of D. L. T. C., 299 Ga. App. at 771 (1).

2. Alternative placement.

The father argues that the juvenile court’s finding that there was no suitable relative with whom to place the child was premature, given that a paternal aunt had been evaluated, that “everything appeared appropriate,” according to the DFCS case manager, and that DFCS was simply awaiting final, written confirmation before approving that placement. We do not reach this enumeration, given “our reversal of the termination of the [father’s] parental rights, [but] it would seem appropriate for the juvenile court to now reconsider its finding [regarding the availability of a relative as a] suitable placemen^ ].” In the Interest of C. S., 319 Ga. App. at 149 (2) (footnote omitted).

Judgment reversed.

Andrews, P. J., concurs. Ray, J., concurs specially.

RAY, Judge,

concurring specially.

Because I do not necessarily agree with all that is written in the majority’s opinion, I concur in judgment only and agree that the decision of the Juvenile Court of Chatham County must be reversed as to the father of the subject child. I reach this conclusion, in principal part, because I believe that the trial court’s decision as to the father was improperly influenced by the abundance of evidence against the mother of the child. Though she did not appeal, clearly there was ample evidence in the record to support the trial court’s decision to terminate the mother’s parental rights. As to the father, as the majority has found, there is considerable doubt.

Decided October 6, 2014.

Nazish A. Ahmed, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Leo Beckmann, Jr., for appellee.

The record clearly shows that the father had made progress toward meeting the goals set for his reunification with the child, among them that he filed (successfully) a petition to legitimate his relationship with the child, consistently visited with and bonded with the child, participated in parenting classes, submitted to a psychological evaluation, and sought out employment. While certainly there was some negative conduct by the father during the rather short period after which he had been added to the case plan, as evidenced by sanctions leveled against him by the treatment courts in which he was participating, it is worth noting that he had not been terminated or “booted out” of the treatment programs by the presiding judges therein. In short, it seems to me that the burden of proof to forever terminate the father’s relationship with his child has not been met. Whether he is ultimately successful in obtaining reunification remains a question, and assuming that termination is the proper outcome, that time has not yet come.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge. MCFADDEN, Judge,

license: Public Domain

text:
    A14A0858.
    DENSTAEDT v. THE STATE.
    (764 SE2d 565)
   ANDREWS, Presiding Judge.

Following a jury trial, Matthew Denstaedt was convicted of driving under the influence of alcohol with an alcohol concentration of 0.08 grams or more (OCGA § 40-6-391 (a) (5)) and acquitted of speeding (OCGA § 40-6-181) and driving under the influence of alcohol to the extent that it was less safe to drive (OCGA § 40-6-391 (a) (1)). Denstaedt appeals from the denial of his motion for a new trial, arguing that he received ineffective assistance from his trial counsel because she failed to admit into evidence at trial print cards generated during a quarterly inspection of the Intoxilyzer 5000 used to test his alcohol concentration. Denstaedt cannot establish prejudice resulting from his trial counsel’s alleged deficient performance, and we therefore affirm.

Viewed in the light most favorable to the jury’s verdict, Maloney v. State, 317 Ga. App. 460 (731 SE2d 133) (2012), the evidence at trial showed that at approximately 2:24 a.m. on February 6, 2011, a City of Duluth police officer conducted a traffic stop after the officer saw Denstaedt driving a car at a high rate of speed as Denstaedt turned onto Georgia Highway 120 from Peachtree Industrial Boulevard. The officer approached the vehicle, and as he advised Denstaedt of the reason for the stop, the officer noticed that Denstaedt was fumbling with his wallet. The officer immediately noticed an overwhelming odor of alcoholic beverage coming from the vehicle. When the officer asked Denstaedt about his consumption of alcohol, Denstaedt admitted to consuming three beers. The officer also observed that Denstaedt’s speech was slurred and that his eyes were red and watery.

Denstaedt agreed to submit to standardized field sobriety evaluations, exited his car, and walked to the rear of the vehicle. The officer performed the horizontal gaze nystagmus (HGN), the walk and turn, and one-leg stand evaluations. The officer observed six out of six clues on the HGN evaluation, one of eight clues on the walk and turn, and no clues on the one-leg stand. The officer testified that, based on his experience, six out of six clues on the HGN evaluation means that an individual is a less safe driver due to alcohol and over the per se legal limit.

The officer asked Denstaedt to submit to an alco-sensor evaluation, and Denstaedt’s breath sample tested positive for the presence of alcohol. The officer then placed Denstaedt under arrest for driving under the influence and read Denstaedt Georgia’s implied consent warning for suspects over the age of 21. Denstaedt agreed to submit to a breath test, and the officer transported Denstaedt to the City of Duluth Police Department for a breath test on the Intoxilyzer 5000. The officer testified that he was certified by the Georgia Bureau of Investigation, Division of Forensic Sciences to administer tests on an Intoxilyzer 5000, and a copy of his permit was entered into evidence. The State also entered into evidence certificates of inspection for the quarterly inspections of the Intoxilyzer performed on November 26, 2010 and February 14, 2011. In compliance with OCGA § 40-6-392 (f), each certificate represented that the Intoxilyzer had been thoroughly inspected, tested, and standardized and that “all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.” The officer stated that the Intoxilyzer 5000 appeared to be functioning properly on the morning of Denstaedt’s test. Prior to accepting Denstaedt’s breath sample, the machine conducted a diagnostic check, which revealed no problems. Denstaedt provided breath samples at 2:57 a.m. and 3:00 a.m. Both samples indicated an alcohol concentration of 0.132 grams. The officer testified that he had conducted other breath tests on the Intoxilyzer prior to and after the date of Denstaedt’s breath test, and the machine appeared to be functioning properly at all times.

In his single enumeration of error, Denstaedt argues that his trial counsel was ineffective because she was unable to admit into evidence print cards from the November 26, 2010 quarterly inspection of the Intoxilyzer 5000. Denstaedt’s claim of error fails.

In order to prevail on his claim of ineffective assistance, [Denstaedt] must show both that counsel’s performance was deficient and that the deficiency prejudiced him such that there is a reasonable probability that, but for the deficiency, the outcome of his trial would have been different. This burden, although not impossible to carry, is a heavy one. Moreover, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.

(Citations and punctuation omitted.) Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014). In reviewing a trial court’s ruling on an ineffective assistance claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but independently apply the legal principles to the facts. Holloman v. State, 293 Ga. 151, 154 (4) (744 SE2d 59) (2013).

The record shows that Denstaedt’s trial counsel called Matthew Malhiot as an expert witness at trial, and Malhiot was admitted as an expert in the areas of field sobriety evaluations and the Intoxilyzer 5000. Malhiot testified that he reviewed the inspection certificates the State admitted into evidence as well as the print cards generated during the inspection process. When Denstaedt’s trial counsel asked Malhiot what he found when he reviewed the supporting data for the inspections, the solicitor-general objected, asserting that Malhiot lacked personal knowledge, the documents were not in evidence, Malhiot’s testimony would be hearsay, and no foundation had been established for the documents’ authenticity. Denstaedt’s trial counsel then suggested that “perhaps [Malhiot] can lay a foundation as to the business records” and how he came into possession of them. The trial court, however, sustained the solicitor-general’s objection, concluding that Malhiot “would have to be either the custodian or [have] created [the print cards] to be able to testify to business records exception.”

At the hearing on the motion for new trial, Denstaedt called the records supervisor for the City of Duluth Police Department as a witness in order to lay a foundation for admission of copies of the two certificates of inspection introduced into evidence at trial together with the supporting print cards under the business records exception to the hearsay rule. Malhiot testified at the motion for new trial hearing and explained that one of the tests performed during the quarterly inspection is a difference check to ensure the Intoxilyzer’s software is able to determine if the difference in the alcohol concentration of two samples is greater than 0.02 grams. Malhiot testified that, to perform the difference check, the inspector prepares a 0.08 gram reference solution, heats it, and delivers a sample of the solution to the instrument through the breath tube. The next sample delivered to the instrument is alcohol free. To pass the difference check, the Intoxilyzer must respond with an error message advising the operator to retest after 20 minutes. Malhiot testified that when the difference check was performed on November 26, 2010, the result for the first sample was 0.075 grams while the second was 0.00 grams. He testified that although the objective of the difference check was satisfied and the proper error message was displayed, the 0.075 reading was outside the range of the Intoxilyzer’s calibration standard, which requires a reading between 0.076 and 0.084 for a 0.08 solution.

Malhiot testified that a result outside of the required standard can result from “[m]any different things: the simulator not heated properly, . . . air leaks [,] . . . instrument calibration [,] breath tube leaks[,] internal leaks[, and] three-way valve leaks.” Malhiot stated that there was no documented reason the first sample on the difference check was outside of the calibration standards and that “you can’t determine the reliability of the results the instrument is producing without an explanation as to the reason for the ... result.” He admitted on cross-examination, however, that the Intoxilyzer passed every test conducted on November 26, 2010 and February 14, 2011. Malhiot also testified that during the difference check conducted on February 14, 2011, the results for the two samples were 0.081 and 0.00.

Denstaedt’s trial counsel testified at the motion for new trial hearing that she was familiar with the print cards from the November 26,2010 inspection and that her strategy with respect to the cards was to use them to show that the results of her client’s breath test were unreliable. She testified that she and Malhiot agreed that the card regarding the November 26, 2010 difference check was the strongest basis for the defense in Denstaedt’s case. She stated that she did not anticipate that there would be a hearsay objection to Malhiot’s testimony about the difference check or that it would be sustained. She testified that in hindsight, she should have subpoenaed the records supervisor. Trial counsel also stated that prior to trial she had a note to herself to have the records custodian under subpoena but did not follow up on that.

The Supreme Court of Georgia has held:

In the situation in which an expert personally observes data collected by another, the expert’s opinion is not objectionable merely because it is based, in part, on the other’s findings. Even when an expert’s testimony is based on hearsay, the expert’s lack of personal knowledge does not mandate the exclusion of the opinion but merely presents a jury question as to the weight which should be accorded the opinion.

Velazquez v. State, 282 Ga. 871, 875 (3) (655 SE2d 806) (2008). See also Watkins v. State, 285 Ga. 355, 358 (2) (676 SE2d 196) (2009) (GBI toxicologist was properly permitted to testify concerning victim’s blood alcohol level based on her peer review of testing performed by another GBI employee). In view of these cases, trial counsel reasonably may have failed to anticipate the State’s hearsay objection to Malhiot’s testimony concerning the print cards from the November 26, 2010 inspection. But even assuming arguendo that trial counsel performed deficiently by failing to anticipate the objection or to find a way to overcome it, Denstaedt cannot establish a reasonable probability that, but for such deficiency, the outcome of his trial would have been different.

The print card for the November 26, 2010 difference check showed that the Intoxilyzer’s reading of the first sample was only 0.001 outside of the calibration standards for the instrument. Nonetheless, the objective of the difference check, to identify samples that differ by more than 0.02 grams, was satisfied. See State v. Carter, 292 Ga. App. 322, 328-329 (665 SE2d 14) (2008). The Intoxilyzer passed every other test conducted on November 26, 2010, including a calibration check, and every test conducted on February 14,2011. During the February 14,2011 difference check, the first sample tested within the calibration standards for the instrument. The record also establishes that on the date of Denstaedt’s test, the Intoxilyzer passed a self-diagnostic check and that the arresting officer did not observe any problems with the machine that day or when he used it before and after the date of Denstaedt’s test. Although Malhiot testified that there are many potential reasons for the slight discrepancy in the difference check on November 26, 2010, he could not identify the actual cause and never stated that he believed the machine’s margin of error on the date of testing could have been so great that Denstaedt’s alcohol concentration, which the Intoxilyzer measured as 0.132 grams, was actually below 0.08. Viewing the record as a whole, we find no reasonable probability that, had the print cards been introduced into evidence, the jury would have concluded that the State presented insufficient proof that Denstaedt’s alcohol concentration was 0.08 grams or more. Accordingly, Denstaedt failed to establish prejudice, and the trial court did not err in denying Denstaedt’s motion for a new trial. See Crowe v. State, 314 Ga. App. 527, 531 (3) (724 SE2d 831) (2012); Thomas v. State, 288 Ga. App. 827, 827-828 (655 SE2d 701) (2007).

Judgment affirmed.

Barnes, P. J., Doyle, P. J., Boggs, Ray and Branch, JJ., concur. McFadden, J., dissents.

MCFADDEN, Judge,

dissenting.

I respectfully dissent. Trial counsel performed deficiently in failing to present the expert defense witness’s opinion that the Intoxilyzer results were unreliable, and there is a reasonable probability that, but for this deficiency, the result of the trial would have been different. See Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014).

The results of Denstaedt’s two Intoxilyzer tests provided the only evidence of his blood alcohol concentration, which the state was required to prove to convict him of DUI per se. See OCGA § 40-6-391 (a) (5). At the hearing on Denstaedt’s motion for new trial, the expert defense witness testified that, had he been allowed to do so at trial, he would have opined that he had concerns about the reliability and accuracy of Denstaedt’s Intoxilyzer results based on the particular machine’s performance on a difference check (a quarterly procedure used to gauge certain software performance in the machine). But Denstaedt’s trial counsel failed to elicit that opinion from the expert at trial, after the trial court sustained the state’s objection that the opinion testimony was based on hearsay, namely documents for which no foundation had been laid. Although trial counsel initially had planned to subpoena a records custodian, she did not do so. In response to the objection, trial counsel tried — unsuccessfully — to lay a foundation for the underlying documents without a records custodian, rather than arguing that the opinion testimony was nevertheless admissible. See Velazquez v. State, 282 Ga. 871, 875 (3) (655 SE2d 806) (2008) (“[e]ven when an expert’s testimony is based on hearsay, the expert’s lack of personal knowledge does not mandate the exclusion of the opinion”).

Decided October 7, 2014

Head, Thomas, Webb & Willis, Gregory A. Willis, Jared T. Hall, for appellant.

Nothing in the record suggests that trial counsel’s inadequate response to the state’s objection was strategic. Trial counsel admitted at the hearing on the motion for new trial that she “didn’t anticipate that there would be an objection or that the objection would be sustained” and had not considered how she would handle an objection to the expert’s opinion. She also testified that her failure to subpoena a records custodian was a mistake. Consequently, she was unprepared either to establish a foundation for the documents upon which the expert’s opinion was based or to argue that the opinion testimony was admissible despite being based on hearsay. Because trial counsel was unprepared to contend with an objection to the testimony that she described as “crucial” to the defense, she performed deficiently. See Ottley v. State, 325 Ga. App. 15, 19-20 (752 SE2d 92) (2013) (defendant demonstrated that trial counsel performed deficiently where, among other things, trial counsel was “caught off-guard” at trial by degree to which state’s case rested on particular witness and thus was unprepared to cross-examine her).

The deficient performance prejudiced Denstaedt. There is a reasonable probability that the trial court would have allowed the expert witness to testify to his concerns about the reliability of the Intoxilyzer results had trial counsel responded to the state’s objection with authority supporting the position that, under the rules of evidence then in effect, an expert witness could base an opinion on hearsay. See Watkins v. State, 285 Ga. 355, 358 (2) (676 SE2d 196) (2009); Velazquez, 282 Ga. at 875 (3). Because no other evidence pertained to Denstaedt’s blood alcohol concentration, there is a reasonable probability that, but for trial counsel’s failure to overcome the objection to the expert witness’s testimony, the outcome of his trial would have been different.

For this reason, the judgment should be reversed.

Rosanna M. Szabo, Solicitor-General, R. Tyler Fisher, Assistant Solicitor-General, for appellee.

       The admissibility of expert testimony in cases tried on or after January 1, 2013 is governed by OCGA § 24-7-703 in Georgia’s new Evidence Code. The trial in this case took place on November 5 and 6, 2012.


author: Branch, Judge.

text:
    A14A1352.
    JACKSON v. THE STATE.
    (764 SE2d 569)
   Branch, Judge.

James Gower Jackson was tried by a Clayton County jury and found guilty on two counts of criminal damage to property in the second degree and one count of simple assault. He now appeals from the denial of his motion for a new trial, arguing that the trial court erred when it refused to instruct the jury on the defense of justification. We find no error and affirm.

“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga. App. 58 (739 SE2d 68) (2013) (citation omitted). So viewed, the record shows that Jackson was previously employed as a truck driver for Super Service Trucking. On October 27, 2011, while driving a trailer of freight to Tennessee, Jackson used the Qualcomm system located in the cab of the Super Service truck he was driving to send a message to Bruce Ellington, Super Service’s director of operations. Jackson told Ellington that he was going to bring Ellington his “god damn truck” because he was “tired of delivering [Super Service’s] freight for nothing”; he concluded the message by writing “[w]hatever happens now just remember you drove me to it.” Ellington replied to the message, telling Jackson that he accepted Jackson’s resignation. After receiving Ellington’s reply, and assuming that he had been fired, Jackson dropped the trailer loaded with freight at a truck stop off of 1-75 in north Georgia, near the Tennessee line. Jackson then drove the truck cab to the Super Service facility in Ellenwood, Georgia.

Vehicles enter the Super Service facility at Ellenwood through a parking lot. Trucks entering the lot are then supposed to drive to a guard shack located at an interior gate, check in with the guard, and then drive around the building to the back entrance. When he returned with the truck cab, however, Jackson neither stopped at the guard gate nor attempted to drive to the back of the building. Instead, he drove past the guard shack and through the interior gate, made a sharp left turn, and ran into two SUVs parked near the building. One of the SUVs belonged to Ellington and the other belonged to Danny Bryan, the Super Service terminal manager. Jackson then exited the truck cab carrying his tire bat, which was described as a long wooden object that resembles a billy club. Carrying the tire bat, Jackson walked into Ellington’s office and told Ellington he was “going to whoop somebody’s ass.” Jackson also told Ellington that he had “hit a couple of cars in the parking lot.” After observing the damaged cars and truck cab from his office window, Ellington called the police while another Super Service employee walked Jackson out of the building. Following an investigation at the scene, the responding officer arrested Jackson.

Jackson testified in his own defense and stated that as he pulled into the Super Service parking lot, the truck’s throttle became stuck. He then accidentally hit the accelerator instead of the brake, and he indicated that the accelerator got stuck. At that point, Jackson decided to steer the truck into the parked cars to avoid hitting either the guard or two Super Service employees who were sitting at a nearby picnic table. Jackson further explained that he confronted Ellington while carrying a tire bat because he was afraid Ellington would be angry about the damage to his car.

During the charge conference, Jackson requested charges on the affirmative defenses of justification and accident. The trial court agreed that the charge on accident was supported by the evidence, but declined to give the charge on justification, finding that Jackson’s testimony showed that the damage to the cars was accidental. As the court explained its reasoning, “what [Jackson’s] saying here is the truck malfunctioned. [He] had an accident and [he] ran into their cars instead of running into people. I think that’s all covered by accident.” Jackson excepted to the jury charge and on appeal he contends that the trial court’s refusal to give his requested charge on justification constitutes reversible error.

A defendant is entitled to a requested jury charge on an affirmative defense as long as there is at least some evidence, including the defendant’s own testimony, to support it. Price v. State, 289 Ga. 459, 459-460 (2) (712 SE2d 828) (2011). Whether the evidence presented supports a particular affirmative defense is a question of law, Lewis v. State, 292 Ga. App. 257, 264 (2) (663 SE2d 721) (2008), and the trial court’s ruling on this issue is therefore subject to de novo review. Burdett v. State, 285 Ga. App. 571 (646 SE2d 748) (2007).

When a defendant claims justification, he admits that he intended to engage in the conduct which constitutes the crime but argues that under the circumstances he was justified in so acting and that he therefore lacked the requisite criminal intent. Brower v. State, 298 Ga. App. 699, 702 (1) (680 SE2d 859) (2009) (the defense of justification requires that a defendant admit all elements of the crime except intent). See also Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991) (defendant was entitled to a jury instruction on justification where he admitted driving without a valid license, but argued that he was justified in doing so because his pregnant wife was experiencing labor pains and was unable to drive, and the doctor had instructed her to come to his office); Moore v. State, 234 Ga. App. 332, 333 (1) (506 SE2d 685) (1998) (on charge of interference with government property, defendant was entitled to a charge on justification where he admitted kicking out the window in a police car, and the evidence showed that he was in respiratory distress resulting from an allergic reaction to pepper spray and needed air).

Unlike justification, the defense of accident is premised on the defendant’s assertion that he did not intend to commit the act which constitutes the crime. See State v. Ogilvie, 292 Ga. 6, 9 (2) (b) (734 SE2d 50) (2012) (in cases involving strict liability traffic offenses, the defense of accident “must be based... on evidence that the prohibited act was committed involuntarily, for example, because of an unforeseeable physical ailment or external force”) (citations omitted); McBurnette v. State, 236 Ga. App. 398, 399 (512 SE2d 298) (1999) (defendant entitled to jury charge on accident where he testified that he did not deliberately strike victim but that victim was struck inadvertently by defendant’s elbow as defendant turned in an attempt to keep the defendant from striking him); Sapp v. State, 179 Ga. App. 614, 615 (2) (347 SE2d 354) (1986) (in a prosecution for obstructing a police officer, the defendant’s testimony that her conduct in obstructing the officer resulted from a fall caused by illness required a jury charge on accident). Additionally, a defendant claiming accident must also show that the allegedly unintentional act did not occur while he was engaged in a “criminal scheme or undertaking” and that he was not criminally negligent, i.e., that his conduct “did not show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.” Lee v. State, 320 Ga. App. 573, 578-579 (2) (740 SE2d 307) (2013) (where defendant hit victims’ car while fleeing from police at a high rate of speed, he was not entitled to a jury instruction on accident) (citation and punctuation omitted).

Given that a defendant claiming justification admits intentionally engaging in the charged conduct while a defendant claiming accident does not, the two defenses are usually considered mutually exclusive and as a general rule will not be charged in the same case. Hill v. State, 300 Ga. App. 210, 212 (1) (684 SE2d 356) (2009); Lewis, 292 Ga. App. at 264 (2); Payne v. State, 273 Ga. App. 483, 487 (7) (615 SE2d 564) (2005). The cases in which Georgia’s appellate courts have found that a defendant is entitled to a jury instruction on both justification and accident are those in which some evidence shows that the defendant was armed with a weapon while defending himself from another party and the other party was wounded or killed accidentally by that weapon. See Hudson v. State, 284 Ga. 595, 597 (4) (669 SE2d 94) (2008) (evidence supported a jury charge on both accident and justification where defendant testified that she brandished knife at the victim after he threatened her, that she did not intend to stab him, and that she could not recall how the knife wound up in the victim); Koritta v. State, 263 Ga. 703, 704 (438 SE2d 68) (1994) (a trial court should charge the jury on both accident and justification “where one who is armed with a weapon claims it accidentally discharged while he was defending himself from another party”) (citation omitted); Turner v. State, 262 Ga. 359, 360-361 (2) (b) (418 SE2d 52) (1992) (same). Under those particular circumstances, a jury could find that the defendant acted intentionally in using his weapon, but that his conduct was justified by self-defense. Alternatively, the jury could find that the use of the defendant’s weapon was unintentional, in which case the defense of accident would apply. See Hill, 300 Ga. App. at 212-213 (1) (where evidence shows that defendant had armed himself for purposes of self-defense and that the victim was injured accidentally, the defendant was not required to choose between the defenses of accident and justification “but [was] entitled to have the jury, under proper instruction, to determine which, if either, of the defenses is applicable”) (citations omitted).

In this case, Jackson argues that he was entitled to a jury instruction on both accident and justification because although he claimed that the entire incident resulted from a malfunctioning truck, he also testified that he deliberately chose to strike the parked cars to avoid striking people. Although that testimony explains why Jackson made a sharp turn into the parked cars, Jackson’s defense was that the truck’s throttle and/or accelerator stuck, that he was unable to stop the truck, and that he elected to steer the truck toward fixed objects and away from the Super Service employees present in the parking lot. According to Jackson, therefore, his crashing of the truck was the unintentional result of unforeseen circumstances over which he had no control. Thus, under his version of the events, the damage to the parked cars resulted from an unavoidable accident. Moreover, Jackson’s testimony as to the reasons for his decision to steer the truck toward the parked cars served to support his accident defense. If believed by the jury, that testimony would have shown when he decided to hit the cars Jackson “was acting with regard for the safety of others, i.e., without criminal negligence.” Davis v. State, 269 Ga. 276, 280 (3) (496 SE2d 699) (1998) (citations omitted).

Decided October 7, 2014.

Tyler R. Conklin, James C. Bonner, Jr., for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Deah B. Warren, Assistant District Attorneys, for appellee.

Additionally, Jackson’s position that the damage to the property was the result of a malfunctioning truck is inconsistent with a justification defense. As discussed supra, such a defense requires that a defendant admit to otherwise criminal conduct. Here, however, Jackson claimed his conduct was the result of an accident, and he therefore has not admitted that the conduct was otherwise criminal.

Given Jackson’s theory of defense and the evidence presented at trial, we find no error in the trial court’s refusal to give Jackson’s requested jury charge on justification. See London v. State, 289 Ga. App. 17, 19 (1) (656 SE2d 180) (2007).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Herbert M. Poston, Jr., District Attorney, McCamy, Phillips, Tuggle & Fordham, Curtis A. Kleem, for appellee.

       OCGA § 16-7-23 (a) (1).

       OCGA § 16-5-20 (a) (2).

       Qualcomm is a computerized system that allows drivers to exchange messages with people at the Super Service offices.

       Under Georgia law, a criminal defendant may prove that his conduct was justified because it occurred in defense of himself, his home or his property, or in defense of other persons; resulted from entrapment or coercion; occurred in reasonable fulfillment of his duties as a government officer or employee; constituted the reasonable discipline of a minor by his parent or a person in loco parentis; was both reasonable and performed in the course of making a lawful arrest; or was “justified for any other reason under the laws of [Georgia].” OCGA § 16-3-20 (l)-(5). A defendant may also assert justification “[i]n all other instances which stand upon the same footing of reason and justice as” any of the foregoing grounds. OCGA § 16-3-20 (6).

       The defense of accident is set forth in OCGA § 16-2-2, which provides: “Aperson shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.”


author: Dillard, Judge.

text:
    A14A1353.
    CHRISTIAN v. THE STATE.
    (764 SE2d 573)
   Dillard, Judge.

Following a bench trial, Billy Wayne Christian was convicted in probate court of driving under the influence and violating conditions of limited driving. He appealed to the superior court, and his convictions were affirmed. Now, on appeal to this Court, Christian contends that the probate court erred in denying his motion to suppress the State’s evidence and in admitting Georgia Crime Information Center (“GCIC”) printouts when the State failed to lay a proper foundation for same. For the reasons noted infra, we affirm in part and reverse in part.

Viewed in the light most favorable to the guilty verdict, the record reflects that at 8:26 a.m. on July 27, 2010, a law-enforcement officer with the Whitfield County Sheriff’s Office observed Christian’s pickup truck “gripping” the pavement while making a distinct scratching sound. The officer also noticed that the truck bore a Tennessee license plate, which, in light of the erratic driving, further raised his suspicions about the vehicle being in this particular subdivision that early in the morning. Accordingly, the officer relayed the tag information to dispatch and was informed that the tag returned as “not on file.” The officer then stopped the truck to investigate further.

Immediately upon approaching the vehicle, the officer detected the odor of an alcoholic beverage and asked Christian to exit the truck to perform field-sobriety tests. During the investigation that ensued, the officer also learned from dispatch that Christian’s license was subject to certain travel restrictions, which he violated because he was driving to a store. Thereafter, Christian exhibited clues of impairment on each field-sobriety test administered, and then returned levels of 0.137 and 0.139, respectively, on two Intoxilyzer 5000 tests. Christian was later tried and convicted of the above-referenced offenses. This appeal follows.

1. First, Christian contends that the trial court erred in denying his motion to suppress the State’s evidence when the officer lacked a reasonable and articulable suspicion to stop his vehicle. We disagree.

To begin with, in considering a trial court’s denial of a motion to suppress, this Court construes the evidence in favor of the court’s ruling, “and we review de novo the trial court’s application of the law to undisputed facts.” Furthermore, we must defer to the trial court’s “determination on the credibility of witnesses, and the trial court’s ruling on disputed facts must be accepted unless it is clearly erroneous.” And in reviewing the denial of a motion to suppress, we consider “all the evidence of record, including evidence introduced at trial.”

Additionally, we bear in mind that stopping and detaining a driver to check his license and registration is appropriate when an officer has a reasonable and articulable suspicion that “the driver or vehicle is subject to seizure for violation of the law.” In this respect, we have held that a reasonable and articulable suspicion must be “an objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and that this determination can only be made after considering the totality of the circumstances.”

Here, the officer who stopped Christian did so after dispatch relayed that his Tennessee tag number returned as “not on file.” And after doing so, the officer investigated Christian’s registration of the vehicle and the legality of the tag because, according to the officer’s testimony, a return of “not on file” means that the tag has not been registered. Indeed, it is a misdemeanor to “operate any vehicle required to be registered in the State of Georgia without a valid numbered license plate properly validated, unless such operation is otherwise permitted... ,” and this registration requirement applies to nonresidents and out-of-state visitors as well. Accordingly, the officer had a reasonable and articulable suspicion justifying his stop of Christian, and the trial court did not err in denying Christian’s motion to suppress.

Christian also argues that the trial court erred in permitting the officer to testify as to what dispatch told him regarding the tag’s return as “not on file,” contending that this testimony was hearsay. However, as the trial court properly determined, this testimony was used not to prove the truth of the matter asserted, but was instead proffered to explain the officer’s conduct in deciding to stop the truck and initiate an investigation. Accordingly, this enumeration of error is likewise without merit.

2. Next, Christian argues that the trial court erred by permitting the State to introduce into evidence GCIC printouts without first laying the proper foundation. We agree.

Former OCGA § 24-3-17 provides that any court may

receive and use as evidence in any case information otherwise admissible from the records of the Department of Public Safety or the Department of Driver Services obtained from any terminal lawfully connected to the Georgia Crime Information Center without the need for additional certification of those records.

Thus, we have held that, pursuant to the plain terms of the statute, the State presents a sufficient foundation for the admission of GCIC printouts when it shows that the document was “obtained from a computer terminal lawfully connected to the GCIC.” And we have further held that the State accomplishes this when a witness testifies to personally obtaining the printouts from a GCIC terminal or identifies the printouts as having been obtained from a specific GCIC terminal, but not when a witness merely testifies to obtaining a printout from some other source or when the State only argues that a printout was obtained from a lawfully connected terminal.

Here, an employee of the probate court clerk’s office testified that she was not authorized to access the GCIC computer but that she had experience reading GCIC printouts and criminal histories. When presented with the State’s exhibit, which purported to be a GCIC printout on Christian, the employee testified that it was a GCIC printout “that was obtained in our office” and that two individuals employed in the clerk’s office were certified to access the GCIC computer. She further testified that the office had four terminals that could access the GCIC database; that, as far as she knew, all were properly connected; and that only certified clerks were authorized to access the GCIC database in the office. Additionally, she testified that each certified operator had a unique operator number but that, because she was not a certified operator, she did not know the identification numbers for those individuals in the office. Finally, reading the printout, the employee testified that as of the date of Christian’s arrest, his driver’s license was suspended.

Decided October 7, 2014.

Christian argued below, and argues again on appeal, that the State failed to lay a proper foundation for the admission of the GCIC printout. We agree. The State’s witness, although generally familiar with GCIC printouts and how to read criminal histories, did not personally obtain the GCIC printout at issue, was not certified to access a GCIC terminal, and had no personal knowledge as to who accessed the GCIC terminal to acquire the relevant printout. Additionally, although the probate-court employee testified that the printout was obtained from a terminal located in that courthouse, she did not provide any detail as to how she could make such a determination and, in fact, testified that because she was not certified to access GCIC reports, she could not identify unique GCIC operator numbers. Accordingly, the testimony in the case sub judice was tenuous at best and insufficient to satisfy the strict requirement of former OCGA § 24-3-17 (b) that, prior to admission, the State must establish that a GCIC printout was obtained from a computer terminal lawfully connected to the GCIC.

The testimony by the probate-court employee as to the status of Christian’s license at the time of his arrest was the only evidence the State presented that Christian was driving in violation of OCGA § 40-5-64, which makes it a crime to operate a motor vehicle in violation of the conditions of a limited driving permit. Accordingly, because the State failed to lay the proper foundation, this evidence was inadmissible hearsay, and the evidence was insufficient to support Christian’s conviction for this offense.

As such, for all the foregoing reasons, we affirm Christian’s DUI conviction and reverse his conviction for violating conditions of limited driving.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Miller, J., concur.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

        Reid v. State, 321 Ga. App. 653, 653 (742 SE2d 166) (2013) (punctuation omitted); accord Lindsey v. State, 287 Ga. App. 412, 412 (651 SE2d 531) (2007).

        Reid, 321 Ga. App. at 653 (punctuation omitted); accord Lindsey, 287 Ga. App. at 412.

        Reid, 321 Ga. App. at 653 (punctuation omitted); accord Lindsey, 287 Ga. App. at 412.

        Hernandez-Lopez v. State, 319 Ga. App. 662, 663 (1) (738 SE2d 116) (2013) (punctuation omitted); see also Delaware v. Prouse, 440 U. S. 648, 663 (VII) (99 SCt 1391, 59 LE2d 660) (1979) (“[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.”).

        Hernandez-Lopez, 319 Ga. App. at 663-64 (1) (punctuation omitted); accord Humphreys v. State, 304 Ga. App. 365, 366 (696 SE2d 400) (2010).

       OCGA § 40-2-8 (b) (2) (A).

        See OCGA § 40-2-90 (b) (3) (“To be eligible for the exemptions provided for in paragraph (1) or (2) of this subsection, a nonresident or visitor shall have fully complied with the laws relating to the registration of motor vehicles of the state or territory wherein he resides, and the registration number and initial letter of such state or territory shall be displayed and plainly visible on such motor vehicles.”).

        See Jordan v. State, 223 Ga. App. 176, 178 (1) (477 SE2d 583) (1996) (holding that stop of defendant was justified when officer did so to investigate the operation of a motor vehicle with an expired license tag); see also United States v. Santana-Gomez, Case No. CR-12-175-M, 2012 WL 3946268, at *2 (II) (A) (W.D. Okla. 2012) (holding that officer had a reasonable and articulable suspicion to stop defendant when registration check on vehicle tag returned as “not on file” and officer suspected that the vehicle might not he registered); United States v. Lee-Speight, Case No. 10-40035-01-SAC, 2010 WL 2653412, at *6 (D. Kan. June 29, 2010) (same); United States v. Franklin, Case No. 09-40042-JAR, 2009 WL 3335602, at *4-5 (II) (A) (D. Kan. Oct. 15, 2009) (same); State v. Kramer, Case No. 104,578,2011 WL 768034, at *3 (Kan. Ct. App. 2011) (same); cf. State v. Dixson, 280 Ga. App. 260, 262-63 (633 SE2d 636) (2006) (holding that officer lacked a reasonable and articulable suspicion to justify stop from a database return of “unknown” insurance status when officer “did not testify that an ‘unknown’ status likely meant that [the defendant’s] car was uninsured” or “testify about any prior experience or training he had with such a response from an NCIC search or why the database might produce such a response”).

        See Stallings v. State, 319 Ga. App. 587, 589 (2) (a) (737 SE2d 592) (2013) (“The record shows that the dispatch description of the vehicle was admitted for the limited purpose of explaining the officer’s conduct in responding to the dispatch call and investigating Stallings’s vehicle. As such, the admission of the dispatch description was not erroneous.”); see also Herieia v. State, 297 Ga. App. 872, 875 (2) (678 SE2d 548) (2009) (holding that officer’s testimony-regarding information he received from dispatch was properly admitted, not to establish the truth of the matter asserted, but to explain his conduct in investigating the defendant).

       Former OCGA § 24-3-17 (b) (2011). We note that Christian was tried in 2011, making the former Evidence Code applicable. See Ga. L. 2011, p. 99, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013). However, the relevant provision of former OCGA § 24-3-17 (b) has been recodified in the new Evidence Code at OCGA § 24-9-924 (a).

        Thomas v. State, 196 Ga. App. 88, 91 (4) (395 SE2d 615) (1990).

        See Fannin v. State, 267 Ga. App. 413, 414 (1) (599 SE2d 355) (2004) (holding that State established the necessary foundation for admission when an officer “testified that he was certified to run driving histories and that he obtained a printout of [the defendant’s] driving history from an approved computer terminal at the Department of Public Safety”); Smith v. State, 247 Ga. App. 516, 517 (1) (544 SE2d 208) (2001) (holding that State established the necessary foundation for admission when “a certified GCIC operator testified that she obtained the computer printouts from a GCIC terminal”); see also Worthy v. State, 252 Ga. App. 852, 853 (1) (557 SE2d 448) (2001) (holding that State presented at least circumstantial evidence that GCIC terminal was lawfully connected when it “offered evidence that... an investigator with the solicitor’s office [ ] was trained and authorized to access the driving record and that she retrieved the information through a computer connected to the GCIC”).

        See Jackson v. State, 228 Ga. App. 877, 878 (1) (492 SE2d 897) (1997) (holding that State established the necessary foundation for admission when a certified GCIC coordinator “identified State’s Exhibit 1 via the ‘origination agency identity number’ ” and the Fulton County Solicitor’s number, before further testifying that the Fulton County Solicitor’s computer terminal is “connected to the GBI ([Georgia Bureau of Investigation]), Panthersville” and confirming that the exhibit was a “GCIC, criminal history, driver’s history’ (punctuation omitted)); see also Thomas, 196 Ga. App. at 91 (4) (“Testimony showed that the document in question here was obtained from an Athens police department terminal lawfully connected to the GCIC computer. Pursuant to the statute, nothing more is required.”).

        See Tolbert v. State, 227 Ga. App. 647, 647 (490 SE2d 183) (1997) (holding that State failed to lay the necessary foundation for admission when “an employee of the Coweta County Solicitor’s Office testified that she had physically obtained a copy of [the defendant’s] driving history from the State Patrol office”); see also Mordica v. State of Ga., 319 Ga. App. 149, 155-56 (4) (736 SE2d 153) (2012) (physical precedent only) (holding that appellant had not properly preserved objection for appellate review but noting that, although State presented testimony that an officer used the GCIC database to determine that appellant had a history of drug convictions, the State “never elicited testimony from [the officer] that he had, in fact, pulled the GCIC report” from a terminal lawfully connected to the GCIC before the State admitted the report as evidence).

        See Tipton v. State, 213 Ga. App. 764, 765 (2) (445 SE2d 860) (1994) (“Although the record in this case seemingly was obtained from ... a computer [lawfully connected to GCIC], no witness testified that it was so obtained. Instead, the prosecutor merely represented in argument that the record was obtained from such a computer. This is not evidence, and thus, we find the prosecutor also did not lay an adequate foundation for introduction of the driver’s record.” (punctuation omitted)); accord Waters v. State, 210 Ga. App. 305, 306-07 (1) (436 SE2d 44) (1993).

       Given the late hour of the trial, the two individuals certified to access GCIC reports had since gone home at the time the State presented the court employee’s testimony, and the State had not subpoenaed either of the certified individuals, notwithstanding Christian’s repeated objections.

        See Tolbert, 227 Ga. App. at 647; cf. Jackson, 228 Ga. App. at 878 (1).

       OCGA § 40-5-64 (j) (“Any permittee who operates a motor vehicle in violation of any condition specified on the permit shall be guilty of a misdemeanor.”).

        See Tolbert, 227 Ga. App. at 647-48 (reversing conviction for driving with a revoked or suspended license when the State failed to lay a proper foundation for the admission of driving history).


author: ANDREWS, Presiding Judge.

text:
    A14A1172.
    THOMAS et al. v. SUMMERS.
    (764 SE2d 578)
   ANDREWS, Presiding Judge.

This appeal arises from an action Jere Summers commenced against David and Sondra Thomas to recover on a promissory note. The Thomases appeal the trial court’s order granting Summers’ motion for summary judgment, arguing that summary judgment was improper because Summers failed to establish that no material issues of fact remain as to their affirmative defenses of accord and satisfaction, release, and statute of limitation. We conclude that material issues of fact exist as to the Thomases’ accord and satisfaction defense and therefore reverse.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). We review a trial court’s grant of summary judgment de novo, construing the evidence, and all reasonable conclusions and inferences drawn from it, in favor of the nonmovant. Id.

Clay v. Oxendine, 285 Ga. App. 50 (645 SE2d 553) (2007).

So viewed, the record shows that Summers formerly was married to Sondra Thomas’ mother, Martha Summers. On May 2, 1994, Jere and Martha Summers loaned the Thomases $25,000 by delivering to them a cashier’s check in that amount. Summers stated in an affidavit that on the same date, the Thomases executed and delivered a promissory note payable to him and his wife. Acopy of a May 2,1994 promissory note payable to the Summers and signed by the Thomases was attached as an exhibit to Summers’ affidavit. The note does not specify an interest rate prior to maturity but provides for an eight percent interest rate following maturity “together with all costs of collection, including fifteen percent... of the principal and interest as attorney’s fees if collected by law or through an attorney at law.” The note states that it is “[g]iven under the hand and seal of each of the undersigned,” and the notation “(seal)” appears after the Thomases’ signatures.

Sondra Thomas stated in an affidavit that she recalled that she and her husband signed a document regarding the loan in May 1994 but that she could not recall whether the copy of the promissory note Summers provided accurately represented the document they signed. The Thomases made a $1,500 interest payment on the loan on May 18, 1995. Sondra Thomas stated that her mother died in February 1996, and that, at that time, the Summers owned a home in Tennessee where Summers’ mother lived. Sondra Thomas testified that the property was regarded as her mother’s separate property and that during her mother’s lifetime, her mother made it clear that she wished for the property to be given to her daughters. According to Sondra Thomas, she and her two sisters had a discussion with Summers following her mother’s death in which Summers stated that he wished to honor his wife’s wishes regarding the property. Summers estimated the value of the property was $75,000, and since he did not wish to move his mother out of the home, he offered to pay each of the sisters $25,000 immediately. They also discussed splitting the proceeds among the sisters when the property was sold. Sondra Thomas stated that she reminded Summers that she and her husband owed him $25,000 and asked him to forgive the debt in lieu of giving her any proceeds from the sale of the property. Sondra Thomas stated that Summers agreed to this proposal. Sondra Thomas’ sister submitted an affidavit in which she corroborated Sondra Thomas’ account of her agreement with Summers regarding the loan.

Sondra Thomas also stated that later in 1996, Summers told her that although the loan was forgiven, she and her husband still owed him an interest payment for the previous year, so she wrote him a check for $1,500. The Thomases have made no further payments on the loan since that time. Sondra Thomas stated that she heard nothing from Summers about the loan until 2010, when he called and asked that it be repaid. She reminded him of their prior agreement, and Summers became irate. In June 2011, Summers, through counsel, declared the note due and payable and provided the Thomases sixty days to pay the note in full, with interest calculated at the seven percent legal rate. When no payment was forthcoming, Summers commenced this action.

1. The Thomases maintain that Summers’ motion for summary judgment failed to address their affirmative defenses and that, as such, the burden of producing evidence to support the defenses never shifted to them. This argument lacks merit.

In an action to enforce a promissory note, the plaintiff establishes a prima facie right to judgment as a matter of law by producing the note and showing that it was executed by the defendant, who is in default. Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 629 (1) (725 SE2d 336) (2012); Brown v. McGriff, 256 Ga. App. 44, 45 (1) (567 SE2d 374) (2002). Summers’ motion for summary judgment established his prima facie right to recover on the promissory note at issue.

OCGA § 11-3-308 (a) provides in relevant part:

In an action with respect to an instrument, the authenticity of and authority to make each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized. . . .

Here, the third paragraph of Summers’ complaint stated that the Thomases executed and delivered the promissory note at issue on May 2,1994, the note did not state an interest rate, and a copy of the promissory note was attached as an exhibit. David and Sondra Thomas, who filed separate answers, each denied the allegations in paragraph three. Even if their denials of the third paragraph as a whole are construed as specifically denying the authenticity of the signatures on the note, the evidence created no material dispute of fact as to this issue.

Before Summers was obligated to submit evidence with respect to the authenticity of the signatures, the Thomases were required to present evidence showing the grounds for denying their authenticity. See Uniform Commercial Code § 3-308, cmt. 1 (“The defendant is therefore required to make some sufficient showing of the grounds for the denial before the plaintiff is required to introduce evidence. . . . Until introduction of such evidence the presumption [of authenticity] requires a finding for the plaintiff.”). Summers’ affidavit nonetheless affirmatively stated that the Thomases executed the promissory note on May 2, 1994, payable to him and his deceased wife, and attached a copy of the note. In her response affidavit, Sondra Thomas admitted borrowing $25,000 from the Summers and stated that she signed a document regarding the loan but could not recall whether the photocopied promissory note Summers provided “accurately represents the document we signed.” Sondra Thomas’ equivocal testimony was insufficient to overcome the presumption of the signatures’ authenticity or to rebut Summers’ testimony regarding the execution of the note. See Hogan v. Pearson, 190 Ga. App. 787, 788 (2) (380 SE2d 82) (1989) (appellant’s equivocal testimony, in which he did not deny signing bill of sale but testified that the signature on it did not look like his, was insufficient to create issue of fact as to authenticity of his signature).

Summers produced the promissory note and established its execution, and it is undisputed that the Thomases have made only two interest payments on the note. Summers established his prima facie right to recover, and the burden of production then shifted to the Thomases to produce or point to evidence in the record establishing an affirmative defense. Secured Realty Investment, supra, 314 Ga. App. at 629 (1); Big Sandy Partnership, LLC v. Branch Banking & Trust Co., 313 Ga. App. 871, 872 (1) (723 SE2d 82) (2012). Contrary to the Thomases’ argument, they were not excused from shouldering their burden because Summers failed to address their affirmative defenses. Summers pierced the statute of limitation defense because the promissory note attached to his affidavit was executed under seal. The statute of limitation applicable to an action on an instrument under seal is 20 years. OCGA § 9-3-23. Summers commenced his action on the May 1994 note in October 2011, within that time period. The Thomases’ defenses of release and accord and satisfaction were based on the allegations in their answers that following his wife’s death, Summers “offered to convey a parcel of rental property, having been previously owned solely by the late Ms. Summers, to [Sondra Thomas] and her sisters,” but “[i]n lieu of said conveyance, [Summers] agreed to sell the property and release [Sondra Thomas] from any debt owed him under the note.” Summers was not required to submit evidence disproving these affirmative defenses but rather could simply rely on the lack of any evidence in the record supporting them at the time the motion was filed. See Big Sandy Partnership, LLC, supra, 313 Ga. App. at 872 (1). In any event, Summers implicitly denied the agreement to forgive the debt in his affidavit, which describes the relevant sequence of events, states that Sondra Thomas’ mother “is deceased and by her last will and testament left all of her property, including the Note, to [him],” and acknowledges no discussion about conveying property to Sondra Thomas and her sisters or forgiving the debt.

2. The Thomases also argue that even if Summers succeeded in shifting the burden of production to them, their evidence raised a material issue of fact regarding their defense of accord and satisfaction. We agree.

“Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed.” OCGA § 13-4-101; see also Bartosz v. Chapparal Enterprises, 271 Ga. App. 246, 249 (2) (609 SE2d 185) (2005) (accord and satisfaction “takes place where the parties satisfy one agreement by making and carrying out a new one”). Whether there has been accord and satisfaction is generally a question for the trier of fact. Progressive Cas. Ins. Co. v. Evans, 276 Ga. App. 594, 595 (623 SE2d 767) (2005).

Summers argues that his alleged promise to split the proceeds from the sale of the Tennessee property among his late wife’s daughters, as described in the affidavits of Sondra Thomas and her sister, was not supported by consideration and was unenforceable. He further maintains that Sondra Thomas’ agreement to relinquish the unenforceable promised gift failed to furnish consideration supporting his alleged agreement to forgive the debt. Given the additional facts alleged in Sondra Thomas’ affidavit, however, we need not decide whether the alleged agreement to forgive the debt is supported by consideration.

Sondra Thomas also asserted that shortly after Summers agreed to forgive the debt in 1996, he asked her to make the interest payment the Thomases owed him for the previous year. She complied and wrote him a check for $1,500. Summers admits that he received a payment of $1,500 from the Thomases on May 1, 1996. “Georgia law is clear that an executory agreement to accept payment of less than the total amount of a liquidated debt is not obligatory without new consideration or complete performance of the agreement.” (Citations omitted; emphasis supplied.) Codner v. Siegel, 246 Ga. 368, 369 (271 SE2d 465) (1980); see also OCGA § 13-4-103 (a); Bartosz, supra, 271 Ga. App. at 249 (2) (agreement to settle $100,000 debt for $30,000 was not an accord and satisfaction where there was no evidence agreement was executed). Sondra Thomas’ affidavit raises an issue of fact as to whether the parties agreed that Summers would forego any further attempts to collect on the Thomases’ debt upon payment of a final interest payment in 1996. If such an understanding existed, the debt was extinguished upon the tender and acceptance of that payment. That Summers did not request any further payments from the Thomases until 2010 could be construed as evidence that the parties understood that the debt was forgiven after the 1996 payment.

Decided October 8, 2014.

Adam C. Cathey, for appellants.

Patty & Young, Clifton M. Patty, Jr., for appellee.

Because material issues of fact exist as to the affirmative defense of accord and satisfaction, the trial court erred in granting Summers’ motion for summary judgment.

Judgment reversed.

McFadden and Ray, JJ., concur.

       OCGA § 13-4-103 (a) states:
      Except as otherwise provided in this Code section, an agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction unless it is actually executed by the payment of the money, the giving of additional security, the substitution of another debtor, or some other new consideration.
      The Supreme Court of Georgia, discussing the predecessor to this Code section, explained that it had been construed to mean that “an independent agreement on the part of the debtor that he would, or does, accept a part of an undisputed claim as in full settlement, will, when actually effectuated, become binding.” Sylvania Elec. Products v. Electrical Wholesalers, 198 Ga. 870, 875 (33 SE2d 5) (1945), overruled in part on other grounds by Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196) (1952).


author: McFadden, Judge.

text:
    A14A0999.
    PENNINGTON et al. v. GWINNETT COUNTY.
    (764 SE2d 860)
   McFadden, Judge.

Steve and Brenda Pennington appeal the trial court’s grant of summary judgment to Gwinnett County in the Penningtons’ action seeking compensation for the loss of a business opportunity. The Penningtons argue that the county’s interference scuttled their deal with T-Mobile South LLC under which T-Mobile intended to lease a portion of their property for the installation of a cell phone tower. They argue that this interference resulted in a taking and amounted to an inverse condemnation. But because the evidence is undisputed that the Penningtons merely had an option contract with T-Mobile and that T-Mobile decided not to exercise that option, as was its right, the Penningtons have not shown a taking or an inverse condemnation. We therefore affirm.

A trial court may grant summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). “We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” City of Tybee Island v. Live Oak Group, 324 Ga. App. 476, 477 (751 SE2d 123) (2013) (citation omitted).

1. Facts.

Viewed in the light most favorable to the Penningtons as nonmovants, the record shows that on May 21, 2008, the Penningtons entered a contract with T-Mobile granting T-Mobile the option to lease a portion of the Penningtons’ property for the installation of a cell phone tower. The contract was entitled “Site Lease with Option.” The contract specified that in exchange for T-Mobile’s payment of $1,000, the Penningtons granted T-Mobile “an option to lease” a portion of their property, that this option was “for an initial term of twelve (12) months,” and that T-Mobile could extend the option period by an additional 12 months “upon written notice and payment” of an additional $1,000. It provided that T-Mobile “may exercise the Option” by notifying the Penningtons in writing and that “[i]f [T-Mobile] exercise [d] the Option, then [the Penningtons] [t] hereby lease [d] to [T-Mobile] that portion of the Property sufficient for placement of the Antenna Facilities. ...” A separate document, entitled “Owner Authorization Agreement,’’was signed by Brenda Pennington, granted T-Mobile the right to enter the Penningtons’ property, and provided that “EACH PARTY ACKNOWLEDGES THAT THE OTHER HAS MADE NO REPRESENTATIONS OR COMMITMENTS THAT A LEASE AGREEMENT CONCERNING THE PROPERTY WILL BE ENTERED INTO IN THE FUTURE.” (Emphasis in original.) T-Mobile extended the option for a total of three years, each time paying additional compensation to the Penningtons.

Within a month of entering the Site Lease with Option, T-Mobile filed with the Gwinnett County Department of Planning and Development an application to place the cell tower on the Penningtons’ property. At T-Mobile’s request, consideration of the application was tabled more than 20 times, until April 26, 2011, when the application was denied, also at T-Mobile’s request. In the meantime, in April 2009, the county amended its policy to allow the placement of cell phone towers on county property, and on November 2,2009, T-Mobile formally requested that Gwinnett County consider entering into a lease for placement of the tower at a county park near the Penning-tons’ property. T-Mobile and Gwinnett County entered such lease on January 25, 2011.

The Penningtons filed this lawsuit, alleging that Gwinnett County confiscated the value of their lease with T-Mobile, which constituted an improper taking by inverse condemnation. They also alleged that Gwinnett County tortiously interfered in their dealings with T-Mobile.

The trial court granted the county’s motion for summary judgment. The court ruled that sovereign immunity barred the Penning-tons’ tortious interference claim against the county; that the Penningtons’ inverse condemnation claim failed on the merits because they had no compensable interest in the lease part of the option contract, since it was within T-Mobile’s discretion whether or not to exercise the option; that because T-Mobile chose not to exercise the option, the Penningtons could not show that they had sustained a loss compensable under their theory of inverse condemnation; and that the Penningtons’ claims were time barred.

The Penningtons appeal only the grant of summary judgment on their inverse condemnation claim. They argue that the trial court erred by failing to acknowledge they were pursuing an inverse condemnation claim; by concluding they had no property interest that was taken, given the nature of an option contract; by finding that their damages were too speculative; and by determining that their claims were time barred.

2. The Penningtons had no property interest that was taken.

The Penningtons argue that the trial court erred by holding that they could not pursue their inverse condemnation claim because T-Mobile had sole discretion whether to exercise the option. We disagree.

Inverse condemnation “is not limited to a taking of real property, but it applies only if the complaining party has a valid property interest in that which is taken.” Brown v. Penland Constr. Co., 276 Ga. App. 522, 525 (1) (623 SE2d 717) (2005), reversed in part on other grounds, 281 Ga. 625 (641 SE2d 522) (2007). The Penningtons have not shown that they had a valid property interest in that which was allegedly taken. They describe the thing taken as the “business opportunity of leasing a portion of their property to T-Mobile for erection of and use of a cell phone tower”; “the business opportunity of placing a cell tower” on their lot; and “the business opportunity... of developing their property.” But the Penningtons never had a lease with T-Mobile. They merely had an expectation of a lease, which was extinguished when T-Mobile chose not to exercise its option, as was its right. In the trial court, the Penningtons stipulated that the agreement was an option contract that granted T-Mobile complete discretion whether or not to lease the Penningtons’ property. And they acknowledge that they received compensation for granting the option and its renewal.

A contract is not compensable when it merely confers a contingent, future right. Coastal Water & Sewerage Co. v. Effingham County Indus. Dev. Auth., 288 Ga. App. 422, 424 (654 SE2d 236) (2007). “[The Penningtons have] done no more than prove that a prospective business opportunity was lost. More than that is necessary to constitute a compensable taking.” Id. at 425 (punctuation omitted) (citing United States v. Grand River Dam Auth., 363 U. S. 229, 236 (80 SCt 1134, 4 LE2d 1186) (1960)). See also State Bd. of Ed. v. Drury, 263 Ga. 429 (437 SE2d 290) (1993) (teachers who were denied renewable teaching certificates under invalidly promulgated regulations were not entitled to recover damages under the taking provision of the state constitution, since they did not have a property interest in renewable teaching certificates that were never issued to them).

Decided October 9, 2014.

Larry E. Stewart, for appellants.

M. Van Stephens II, J. Brooke Savage, for appellee.

3. Remaining enumerations of error.

Given our holding that the Penningtons had no property right that was taken, we do not reach their remaining enumerations of error. See Jenkins v. Dept. of Corrections, 238 Ga. App. 336, 340 (2) (518 SE2d 730) (1999).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: Ellington, Presiding Judge. McMillian, Judge,

text:
    A14A1767.
    GEORGIA REGIONAL TRANSPORTATION AUTHORITY v. FOSTER.
    (764 SE2d 862)
   Ellington, Presiding Judge.

Pursuant to a granted application for interlocutory appeal, the Georgia Regional Transportation Authority (“GRTA”) appeals from an order of the State Court of Fulton County denying GRTA’s motion for judgment on the pleadings, contending that the instant action is time-barred because it was filed outside the applicable limitation period. Because the trial court erred in denying GRTA’s motion for the reasons set forth below, we reverse.

The facts relevant to this appeal are undisputed. Plaintiff Dana Foster’s tort claim arises from an incident that occurred on August 16, 2011, when she was a passenger on a GRTA bus. Foster alleges that the driver accelerated suddenly and unexpectedly, causing her to fall and suffer injuries. On February 10, 2012, Foster sent notice of her claim to GRTA and the Risk Management Division of the Georgia Department of Administrative Services. There is no evidence that the State responded to the ante litem notice. On September 18, 2013, more than two years after the incident giving rise to her claim, Foster filed the instant personal injury suit against GRTA.

GRTA moved for judgment on the pleadings, arguing that Foster’s lawsuit was time-barred because it had been filed after the running of the two-year statute of limitation applicable to tort claims brought against the State, OCGA § 50-21-27 (c). Foster concedes that her complaint was filed outside the two-year period, but contends that the running of the limitation period was tolled pending the State’s response to her ante litem notice of claim, pursuant to OCGA § 36-33-5 (d), a tolling provision which expressly pertains to suits against municipal corporations. Foster argues that OCGA § 36-33-5 (d) applies to claims brought against the State under the Georgia Tort Claims Act (“GTCA”) by virtue of this provision of the GTCA: “All provisions relating to the tolling of limitations of actions, as provided elsewhere in this Code, shall apply to causes of action brought pursuant to [the GTCA].” OCGA § 50-21-27 (e). Foster argues that the plain language of this provision means that any tolling provision found in any title of the Georgia Code applies to claims brought under the Act. We disagree.

“Although appellate courts generally do not construe statutory language that is plain and unequivocal, judicial construction is required when words construed literally would defeat the legislature’s purpose.” (Punctuation and footnote omitted.) Echols v. Thomas, 265 Ga. 474, 475 (458 SE2d 100) (1995).

[I]n construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole. Different parts of a statutory scheme should be read in a manner that renders them consistent and harmonious.

(Citations and punctuation omitted.) Walker County v. Tri-State Crematory, 292 Ga. App. 411, 414-415 (1) (664 SE2d 788) (2008). Additionally, “[i]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” (Citation and punctuation omitted.) Cellular One v. Emanuel County, 227 Ga. App. 197, 200 (489 SE2d 50) (1997).

Although the GTCA allows the State to be sued for its torts “in the same manner as a private individual or entity,” this waiver of sovereign immunity is limited and applies “only to the extent and manner provided in [the GTCA].” “Thus, the [GTCA], by its own terms, must be strictly construed.” Howard v. State of Ga., 226 Ga. App. 543 (1) (487 SE2d 112) (1997). So viewed, OCGA § 50-21-27 (e) allows for the application of tolling provisions found elsewhere in the Code to the GTCA only if those tolling provisions can be harmonized with the express purposes of the GTCA.

The tolling provision of OCGA § 36-33-5 (d) is found in Title 36, pertaining to “Local Government,” in a subpart entitled “Local Government Provisions applicable to Municipal Corporations Only.” “Although captions of Code sections are not part of the law[,]” they are often useful to “give[ ] some idea of the General Assembly’s intent.” (Citations omitted.) Balkcom v. State, 227 Ga. App. 327, 331 (489 SE2d 129) (1997). And, in this case, the Code’s captions accurately reflect that the tolling provision was not intended to apply outside the confines of its Title, Subpart, and Chapter for the following reasons.

Chapter 33 of Title 36, entitled “Liability of Municipal Corporations for Acts or Omissions,” provides that municipal corporations must respond to ante litem notices of claim within 30 days. OCGA § 36-33-5 (c). It also provides that “[n]o action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.” OCGA § 36-33-5 (b). Thus, the tolling provision of OCGA § 36-33-5 (d) provides a remedy and protects a clai mant in those cases where the municipal corporation has failed to respond to a timely filed notice of a claim for damages. The tolling provision is meant to encourage municipalities to comply with this deadline and to facilitate the prompt settlement of claims without suit. See City of Rome v. Rigdon, 192 Ga. 742, 746 (16 SE2d 902) (1941).

The GTCA, on the other hand, imposes no deadline for the State to respond to ante litem notices; in fact, it requires no response at all. SeeOCGA § 50-21-26 (b). Instead, if the State fails to respond within the time allotted, the statute authorizes the complainant to file suit. See id. Because there is no obligation on the State to respond to an ante litem notice, the State’s “failure” to respond requires no remedy. Rather, the GTCA squarely places the burden on the complainant to timely file suit within the limitation period, even though a notice of claim remains pending. OCGA § 50-21-27 (c).

Thus, applying OCGA § 36-33-5 (c) to the GTCA would impose an obligation on the State to respond where none exists and thwart the legislature’s intent that tort claims be filed against the State within two years or they are “forever barred.” OCGA § 50-21-27 (c). Consequently, we hold that the tolling provision of OCGA § 36-33-5 (d) cannot be harmonized with the GTCA and, thus, has no application to suits brought pursuant to the GTCA, notwithstanding the language of OCGA § 50-21-27 (e). Absent the application of this municipal tolling provision, the record before us shows that Foster’s complaint is time-barred; therefore, the trial court erred in denying GRTA’s motion for judgment on the pleadings. OCGA § 50-21-27 (c).

Judgment reversed.

Phipps, C. J., concurs. McMillian, J., concurs in judgment only.

McMillian, Judge,

concurring in judgment only.

While I concur with the result reached by the majority in this case, I do not agree with all that is said. Accordingly, I concur in the judgment only.

Decided October 10, 2014

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, Dennis, Corry, Porter & Smith, Grant B. Smith, Brent M. Estes, for appellant.

Joyce W. Bergman, for appellee.

       “When a question of law is at issue, such as whether the statute of limitation bars an action, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.” (Citation and punctuation omitted.) Harpe v. Hall, 266 Ga. App. 340 (596 SE2d 666) (2004).

       “For tort claims and causes of action which accrue on or after July 1,1992, any tort action brought pursuant to this article is forever barred unless it is commenced within two years after the date the loss was or should have been discovered.”

       “The running of the statute of limitations shall be suspended during the time that the demand for payment is pending before such authorities without action on their part.”

       OCGA § 50-21-23 (a) provides, in relevant part:
      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 and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in [the GTCA], .. .

       OCGA § 50-21-23 (b) provides, in relevant part: “The state waives its sovereign immunity only to the extent and in the manner provided in [the GTCA] and only with respect to actions brought in the courts of the State of Georgia. . . .”

       See, e.g., Sylvester v. Dept. of Transp., 252 Ga. App. 31, 32 (555 SE2d 740) (2001) (concerning the application of the renewal statute, OCGA § 9-2-61, to actions brought under the GTCA); Howard v. State of Ga., 226 Ga. App. at 545-547 (2) (concerning the application of OCGA § 9-3-90 (a), pertaining to the tolling of limitation periods during a claimant’s legal incompetency, to the GTCA).

       Although the phrase “governing authority” is used in OCGA § 36-33-5 (c), it is clear from OCGA § 36-33-5 (a) and (b) that the governing authority is an authority within a “municipal corporation.” The term “municipal corporations” includes cities, towns, villages, and municipalities — as opposed to counties or states. Compare OCGA §§ 36-30-1 and 36-1-1 with OCGA § 50-21-22 (5) (“ ‘State’. . . does not include counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities.”).

       “Upon the presentation of such claim, the governing authority shall consider and act upon the claim within 30 days from the presentation; and the action of the governing authority, unless it results in the settlement thereof, shall in no sense be a bar to an action therefor in the courts.”

       No action may be commenced under this article following presentation of a notice of claim until either the Department of Administrative Services has denied the claim or more than 90 days have elapsed after the presentation of the notice of claim without action by the Department of Administrative Services, whichever occurs first.

       If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said.
      Court of Appeals Rule 33 (a).