text:
    A10A1362.
    DOVER v. THE STATE.
    (704 SE2d 235)
   Doyle, Judge.

Following a jury trial, Daniel Dover was convicted of possession of methamphetamine, driving with a suspended license, operating a motor vehicle without proof of insurance, and driving without a seatbelt. He appeals following the denial of his motion for new trial, arguing that the trial court erred by denying his motion to suppress and by denying his motion for a directed verdict of acquittal on the basis that the evidence presented at trial failed to exclude all reasonable hypotheses other than his possession of the methamphetamine. For the reasons that follow, we affirm.

Viewed in favor of the verdict, Georgia State Trooper Matt Sowell observed on Georgia Highway 1 a motor vehicle in which the driver, later identified as Dover, was not wearing a seatbelt. Officer Sowell stopped the vehicle, in which Dover, Dalmous Holbrook, and Holbrook’s four-year-old child were riding. Upon checking Dover’s license and registration, the officer determined that Dover’s license was suspended, the vehicle registration was suspended, and the vehicle was uninsured. Officer Sowell told Holbrook that he and his child could leave as there was no reason to hold them at the time.

Officer Sowell impounded the vehicle because it could not be driven lawfully without insurance, and Holbrook was not properly licensed to operate a motor vehicle. The videotape of the stop shows that Holbrook offered to have someone from his father’s business, which was down the road, come remove the vehicle; although in the transcript of the motion to suppress this is discussed as Holbrook offering to have the vehicle towed, in the videotape, Holbrook stated that someone could walk over and move it. Officer Sowell declined Holbrook’s offer, explaining that the lack of insurance on the car prevented anyone from operating the vehicle. Officer Sowell discussed removal of the vehicle with Dover, who expresses a preference for “Gill’s” to tow the vehicle.

Because the vehicle was being impounded, Officer Sowell conducted an inventory search, which revealed in the vehicle’s center console a pipe covered with methamphetamine residue. In a videotape of the encounter played for the jury, Dover admitted he knew that the pipe was the kind used to smoke methamphetamine, but he explained to Officer Sowell that the car had been stored, and the pipe could have been in the console for a long time. He did not admit ownership of the pipe, claiming that the car had “been parked” for the last six months. Holbrook denied knowing the identity of the pipe and denied ownership of the same.

Dover was arrested at the scene and charged with four counts, including possession of methamphetamine for the residue found on the pipe. Although Holbrook was released at the scene, he was later charged with possession of methamphetamine, and the two defendants were tried together. At the close of the State’s case, the trial court granted Holbrook’s motion for a directed verdict of acquittal, but denied Dover’s motion for the same. Thereafter, the trial court denied Dover’s motion for new trial, and he appeals.

1. Dover first argues that the trial court erred by denying his motion to suppress.

When reviewing a trial court’s decision on a motion to suppress, this [C]ourt’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(a) First, Dover contends that evidence of the pipe and methamphetamine residue should have been suppressed because Officer Sowell insisted on having the car impounded, thereby necessitating an inventory search, instead of attempting to have the car moved by another means. We disagree.

“Cases supporting the [SJtate’s right to impound a vehicle incident to the arrest of a person in control of it are founded on a doctrine of necessity.” “When the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove an owner’s vehicle which is capable of being safely removed it is unnecessary for the police to impound it. The rationale for an inventory search does not exist.” “The ultimate test for the validity of the police officer’s conduct is whether, under the circumstances then confronting the officer, his conduct was reasonable within the meaning of the Fourth Amendment.”

Dover relies heavily upon this Court’s decisions in Strobhert v. State and Reed v. State, in which this Court reversed the defendants’ convictions on the bases that the arresting officers improperly impounded the vehicles, and therefore, improperly conducted inventory searches of those vehicles. Both cases are factually distinguishable. In Strobhert, the vehicle was legally parked in a public area, and the officer did not attempt to contact the alleged owner of the vehicle to retrieve it. Moreover, the arrest of the defendant in that case had no connection to the vehicle. Here, Dover was arrested for various traffic violations and had been stopped by the officer in a gravel area beside a private business, where it would have been inappropriate to leave the vehicle. In Reed, a passenger in the vehicle possessed a valid license and capably drove the vehicle to the police station prior to the impoundment, and there was nothing to indicate that the vehicle was stolen or lacked insurance. Here, Holbrook was not a licensed driver capable of operating the vehicle, and in any event, the vehicle was not insured, so it could not be driven by another individual.

Dover claims that Officer Sowell should have accepted Hol-brook’s offer to make arrangements to remove the vehicle or Officer Sowell should have communicated the offer to Dover prior to impounding the vehicle. Our review of the videotaped stop reveals that Holbrook’s offer to remove the vehicle was not obviously one to have the vehicle towed. Holbrook repeatedly explains that he could have someone “walk over” and drive the vehicle, and when Officer Sowell explained that lack of insurance on the vehicle would preclude such action, Holbrook did not extend the offer to move the vehicle.

Based on the circumstances of this case, we cannot conclude that the officer’s decision to impound the vehicle instead of allowing Holbrook (who was not the purported owner of the vehicle) to take possession of the vehicle, was unreasonable, given the facts before the officer at the time, which included two unlicensed drivers traveling in an uninsured vehicle, which was stopped in a gravel area beside a private business, creating potential liability by leaving it unattended. Thus, the trial court was authorized to deny the motion to suppress on this basis.

(b) Dover also argues that the motion to suppress should have been granted because Officer Sowell conducted the search after his arrest, when he was outside the grab area of the vehicle. Pretermit-ting whether the search was an appropriate search incident to arrest, this Court has upheld the propriety of inventory searches subject to a reasonable impoundment in order to protect an owner’s property and to protect officers from claims over lost or stolen property. Accordingly, the inventory search was proper, and Dover’s enumeration is without merit.

2. Next, Dover contends that the trial court erred by denying his motion for a directed verdict of acquittal because presence in the vicinity of contraband does not establish possession. Dover argues that the State failed to present sufficient evidence to prove that he possessed the methamphetamine-laced pipe because Holbrook had equal access to the vehicle’s center console prior to the stop, and Holbrook had greater access to the area, entering the vehicle at least once after Dover was arrested and placed in the back of Officer Sowell’s cruiser. Thus, Dover claims, because his possession of the contraband was based solely on circumstantial evidence, his conviction should be reversed because the evidence did not exclude every reasonable hypothesis — that Holbrook, rather than Dover, possessed the methamphetamine.

“When an appellant challenges the sufficiency of the evidence to support his conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rationed trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” “We do not weigh the evidence or resolve issues of witness credibility. . . .” “Generally, a directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.”

Where the State is unable to provide evidence of actual possession, it may sustain a conviction based upon evidence of constructive possession. Constructive possession requires proof that the accused knowingly had both the power and the intention at a given time to exercise control over the drugs. In cases involving contraband found in automobiles, the State is generally entitled to an evidentiary presumption that the owner or driver of the automobile is in constructive possession of the contraband. That presumption does not apply, however, where there is evidence that persons other than the accused had equal access to the vehicle prior to the discovery of the drugs. But the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.

Because Holbrook and Dover were indicted and tried together for possession of methamphetamine, the jury was entitled to conclude that Dover was in possession of the methamphetamine-coated pipe, which was found in the car he drove, next to the driver’s seat. Moreover, the jury heard Officer Sowell’s testimony that Dover stated at arrest that he was aware the item was used to smoke methamphetamine, and the trial court charged the jury on the doctrine of equal access. Thus, the jury was able to contemplate and reject the equal access defense, and sufficient evidence was presented for the jury to find that Dover possessed the methamphetamine.

Decided November 24, 2010.

Steven A. Miller, for appellant.

Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 16-13-30 (a).

       OCGA § 40-5-121 (a).

       OCGA § 40-6-10 (a) (1).

       OCGA § 40-8-76.1 (b).

       Dover does not challenge on appeal the sufficiency of the convictions for the traffic violations.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       (Punctuation omitted.) Waggoner v. State, 228 Ga. App. 148, 148 (1) (491 SE2d 88) (1997).

       (Punctuation omitted.) Lopez v. State, 286 Ga. App. 873, 876 (2) (650 SE2d 430) (2007).

       (Punctuation omitted.) Reed v. State, 195 Ga. App. 821, 822 (395 SE2d 294) (1990).

       (Punctuation omitted.) Lopez, 286 Ga. App. at 877 (2).

       165 Ga. App. 515 (301 SE2d 681) (1983).

       195 Ga. App. at 821.

       See Strobhert, 165 Ga. App. at 516.

       See id.

       See Reed, 195 Ga. App. at 823.

       See Duvall v. State, 194 Ga. App. 420, 421 (390 SE2d 647) (1990) (“it was not unreasonable for the officer to refuse to allow appellant’s female companion to drive the car, since there was no proof of any insurance on the car”).

       We note that the videotape of the stop reveals that Dover expressed a preference as to a towing company for the car, which company was then contacted by dispatch. It does not appear that Dover made any contact with the towing service or that he expressed a preference as to the location to which the vehicle should be towed, leaving those aspects up to the officer. Dover does not argue on appeal that his expressed preference of a towing company prohibited the impoundment or that the officer should have inquired into a private location to which the vehicle should be towed. Compare State v. Darabaris, 159 Ga. App. 121, 123 (282 SE2d 744) (1981) (holding that the officers should have inquired about the driver’s preference for disposition of the vehicle, obviating necessity to impound the vehicle and therefore conduct an inventory search); and State v. Ludvicek, 147 Ga. App. 784 (250 SE2d 503) (1978) (impound and subsequent inventory search unauthorized when officer failed to inquire with off-site owner of vehicle about preference for disposition of vehicle); with State v. King, 237 Ga. App. 729 (516 SE2d 580) (1999) (holding that an officer was not required to make inquiries into alternative arrangements to impounding vehicle after driver and passenger were arrested for shoplifting); and Waggoner, 228 Ga. App. at 149 (1) (by failing to express a preference regarding towing companies and allowing officer to make the towing arrangements, “it was necessary for the police to exercise at least temporary dominion over the vehicle” and inventory search was therefore authorized).

       See Duvall, 194 Ga. App. at 421.

       See Lopez, 286 Ga. App. at 877 (3).

       (Punctuation omitted.) Perkins v. State, 300 Ga. App. 464, 465 (2) (685 SE2d 300) (2009).

        McGee v. State, 287 Ga. App. 460, 460-461 (651 SE2d 546) (2007).

        Turner v. State, 247 Ga. App. 775, 776 (1) (544 SE2d 765) (2001).

       (Citations and punctuation omitted.) Cabrera v. State, 303 Ga. App. 646, 651 (1) (694 SE2d 720) (2010).

       See, e.g., id. at 651-652 (1).

       See, e.g., Waters v. State, 280 Ga. App. 566, 567 (634 SE2d 508) (2006); Bryson v. State, 293 Ga. App. 392, 395 (2) (667 SE2d 170) (2008).


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A10A1374.
    FLETCHER v. THE STATE.
    (704 SE2d 222)
   SMITH, Presiding Judge.

A jury found Brushawn Perry Fletcher guilty on two counts of homicide by vehicle, one count of DUI less safe, and one count of driving without a license. Following the denial of his motion in arrest of judgment and his amended motion for new trial, Fletcher appeals, citing several claims of error. Having reviewed these claims, we find they are without merit and affirm.

Construed in favor of the verdict, the record reveals that police officers responded to the scene of a single-car accident around 4:00 a.m. The 911 operator had received a call from Fletcher, the driver of the vehicle, stating that he needed help. When the operator asked Fletcher if someone was there with him who could also help, Fletcher replied “No, we’re drunk. We’re f***ed up.” When officers arrived, they observed Fletcher sitting beside the driver’s door and observed the deceased victim inside the vehicle. Officers also observed the strong odor of alcohol coming from the vehicle and believed that Fletcher might have been under the influence of alcohol.

Fletcher was transported to a hospital for treatment of the injuries he received. When Fletcher arrived, a deputy, instructed to follow the ambulance to the hospital, noticed the smell of alcohol on Fletcher’s person. He also noticed that Fletcher’s pupils were dilated, which he considered unusual since he and Fletcher were in a well-lit room. Based on his observations, the deputy believed that Fletcher had been driving under the influence of alcohol to the extent he was a less-safe driver. The deputy then read Fletcher the implied consent warning. Fletcher consented to a test of his blood, which revealed that he had a blood alcohol concentration of 0.142.

An autopsy was performed on the victim, and it was determined that he died of blunt force trauma to the head as a result of the accident. An officer trained in accident reconstruction opined that Fletcher was driving in excess of 73 miles per hour and that the vehicle left the roadway, hit a concrete culvert, became airborne, landed on top of a chain link fence, “flipped over and landed on its roof and then slid. And the car rolled over one more . . . time[,] . . . and then the vehicle finally slid to a stop.” The investigation into the crash revealed that Fletcher and the victim had been at a residence about two miles from the crash scene.

1. Fletcher argues that the trial court erred in refusing to allow the jury to hear an audio recording of a conversation between police officers and Fletcher made at the hospital several hours after the accident. But the record reveals that Fletcher made no objection to the court’s ruling on this issue. He has therefore waived this claim of error. See Burrowes v. State, 296 Ga. App. 629, 634 (5) (675 SE2d 518) (2009).

2. (a) Fletcher argues that the trial court erred in excluding evidence that the victim’s failure to wear a seat belt was an intervening cause of his death. This court has previously held:

So long as the defendant’s negligence proximately caused the death of another, the crime has been committed, even if there are other factors which also are proximate causes of the death. As opposed to the civil context, in which compensating deserving victims is the aim, in the criminal context it simply is not relevant that the victim was negligent, unless the defendant’s conduct did not substantially contribute to the cause of death.
. . . Negligence on the part of the deceased has no bearing upon either responsibility or imputability in the determination of guilt or innocence if it was a substantial factor thereof, an act which is a direct cause of a socially harmful occurrence is always a proximate cause. Inasmuch as defendant’s conduct was a “substantial factor” in causing the victim’s death, it was a proximate cause of the victim’s death.

(Citations and punctuation omitted.) Whitener v. State, 201 Ga. App. 309, 311-312 (3) (410 SE2d 796) (1991).

“[T]he admission of such evidence is a matter resting within the sound discretion of the trial court, [and] we will not disturb the trial court’s ruling absent evidence of abuse.” (Citation and footnote omitted.) Moore v. State, 258 Ga. App. 293, 295 (2) (574 SE2d 372) (2002). Because Fletcher’s conduct was a substantial factor in the victim’s death, we find no abuse of the trial court’s discretion in excluding the expert testimony concerning seat belt use.

(b) Fletcher also complains that in closing arguments, the prosecutor was “allowed to mislead the jury by lecturing them that it was impossible for anyone to tell them that the failure to wear a seatbelt resulted in a fatality in this case.” But Fletcher failed to object to the prosecutor’s closing argument and has therefore waived this issue. Sharp v. State, 286 Ga. 799, 802 (2) (692 SE2d 325) (2010).

3. Fletcher contends in two enumerations that the trial court erred in failing to give his requests to charge “No. 28” and “No. 29.” But Fletcher offers no argument in support of this claim, does not state the specific jury charges he requested, and provides no citation to the record for his requests or the trial court’s refusal to give them. He states only that he “ incorporate [s] by reference all arguments set forth” in other parts of his brief. These enumerations are therefore deemed abandoned. See Sapeu v. State, 222 Ga. App. 509, 513-514 (10) (474 SE2d 703) (1996); Court of Appeals Rule 25 (c) (2) (i).

4. Fletcher argues that because the officer failed to properly read the implied consent law, his conviction for vehicular homicide must be reversed. He complains that the officer’s testimony summarizing the notice shows that “he did not limit the operation of the implied consent law to a ‘Georgia driver’s license or privilege to drive on the highways of this state’ ” and that he did not mention “the right to an independent test at the Appellant’s expense.”

The officer testified that he read Fletcher the implied consent warning for suspects 21 years of age or over, and he had the implied consent card he read from with him at trial. Following this testimony, the triad court allowed the State to admit the card as State’s Exhibit 68. The officer stated further that he read the card verbatim to Fletcher, and he then summarized the language of the notice for the jury. Under these circumstances we see no error. See Cullingham v. State, 242 Ga. App. 499, 500 (3) (529 SE2d 199) (2000) (where officer testified he read appellant complete implied consent notice for suspects over 21 twice and then recited a portion at trial, defendant was properly informed of his rights). “This testimony and the specifying of a portion of the warning are sufficient to prove compliance with the implied consent notice requirements.” (Citations and footnote omitted.) Id.

5. Fletcher argues that the evidence is insufficient to sustain his conviction for DUI less safe because there was “scant objective evidence of intoxication other than the blood test result,” and “[n]o field sobriety tests were performed” due to his injuries. The evidence here showed that (1) Fletcher lost control of the vehicle he was driving and left the roadway, (2) Fletcher told a 911 operator after the accident that he was intoxicated, (3) there was an odor of alcohol inside the vehicle, (4) there was an odor of alcohol on Fletcher’s person, and (5) Fletcher’s eyes were dilated in a well-lit room. An officer testified that he believed Fletcher was under the influence of alcohol to the extent he was less safe. Although the officer did not conduct field sobriety tests due to Fletcher’s injuries, the evidence was sufficient to sustain Fletcher’s DUI less safe conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Sistrunk v. State, 287 Ga. App. 39, 39-40 (651 SE2d 350) (2007).

6. Fletcher contends that the jury’s acquittal on a charge of reckless driving excludes his conviction for homicide by vehicle based on reckless driving as the predicate offense. As Fletcher acknowledges, the inconsistent verdict rule was abolished in Georgia in Milam v. State, 255 Ga. 560, 562.(2) (341 SE2d 216) (1986). A defendant therefore “cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count.” (Citations omitted.) Coleman v. State, 286 Ga. 291, 296 (4) (687 SE2d 427) (2009).

The reason therefor is that as an appellate court, we cannot know and should not speculate why a jury acquitted on the predicate offense and convicted on the compound offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. Nonetheless, as a matter of prudence, the conviction on the compound offense should be upheld so long as the evidence will support it.

(Citations, punctuation and footnotes omitted.) Amis v. State, 277 Ga. App. 223, 225 (1) (626 SE2d 192) (2006).

Fletcher argues, however, that “[a] number of Georgia cases have held that verdicts are mutually exclusive when a guilty verdict on one count logically excludes a finding of guilt on another.” But the present case is inapposite to those decisions because they involve mutually exclusive guilty verdicts. See Jackson v. State, 276 Ga. 408, 409-413 (2) (577 SE2d 570) (2003); Dumas v. State, 266 Ga. 797, 798-800 (2) (471 SE2d 508) (1996). And as held in Dumas, “[t]he general rule dispensing with the necessity for consistency as between acquittals and guilty verdicts under a multi-count indictment or information is not ordinarily applied where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.” (Citation and footnote omitted.) Id. at 799 (2); see also Stephens v. State, 279 Ga. 43, 45 (3) (609 SE2d 344) (2005). The jury’s guilty verdict on one count and acquittal on another here falls under the general rule and cannot be attacked as inconsistent. Coleman, supra. This claim of error is therefore without merit.

7. Fletcher argues that he received ineffective assistance of counsel. To prevail on an ineffective assistance claim, Fletcher must establish pursuant to Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984),

that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous.

(Citations and footnotes omitted.) Bruce v. State, 268 Ga. App. 677, 679 (603 SE2d 33) (2004). “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” (Citations and punctuation omitted.) Vaughn v. State, 301 Ga. App. 55, 60 (5) (686 SE2d 847) (2009).

(a) Fletcher contends that trial counsel was ineffective in failing to object to arguments made by the prosecutor during closing arguments. We have considered each of the complained-of statements, reviewed the trial transcript and the transcript of the hearing on the motion for new trial, and conclude that Fletcher has failed to show either that trial counsel performed deficiently in failing to object or that the outcome of the trial would have been different had counsel objected under the standard of Strickland, supra.

(b) Fletcher also argues that trial counsel was ineffective for failing to question the phlebotomist who drew his blood about the fact that she did not invert the blood tubes and in failing to introduce evidence regarding the impact of this omission on the blood test results. But the phlebotomist did not testify that she failed to invert the tubes. In response to a general question about overall procedure not necessarily applicable in this case, she stated only that “certain tubes, you have to sit there and invert them to make sure the chemicals mix in them .... [I]f you’re drawing an EDTA tube, once you draw the blood, you need to invert that.” She had already testified that she followed the proper procedure for drawing blood. The forensic toxicologist testified that she tested the tube containing Fletcher’s blood and that it was suitable for testing and had no clots, indicating that the chemicals were working functionally in the tube. Because there was no evidence that the phlebotomist failed to invert the tubes, we cannot say that trial counsel performed deficiently in failing to question the phlebotomist on this issue or in failing to introduce evidence regarding the impact on a blood test from tubes not inverted. And in any case, Fletcher has failed to show that the outcome of the trial would have been different had counsel done so. See Strickland, supra.

Decided November 24, 2010

Head, Thomas, Webb & Willis, William C. Head, Allen M. Trapp, Jr., for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The jury acquitted Fletcher on a third count of homicide by vehicle and one count of reckless driving. A count of theft by receiving was nolle prossed, and the trial court granted a demurrer to a DUI per se charge.


author: BARNES, Presiding Judge.

text:
    A10A1379.
    WRIGHT v. SAFARI CLUB INTERNATIONAL.
    (706 SE2d 84)
   BARNES, Presiding Judge.

Joseph Jerry Wright appeals the dismissal of his lawsuit against Safari Club International, an organization based in Arizona (“SCI”), because the trial court found that Wright failed to join a necessary party to the action, Waterberg Big Game Hunting, Fishing & Photographic Safaris (“WABI”). Wright is a resident of Georgia and a member of SCI. WABI, based in Namibia, conducts African safaris.

Wright contends the trial court erred by dismissing his complaint for failing to join an indispensable party, WABI, without allowing him a reasonable time to join WABI in the action, and erred by finding that WABI could not be joined in the action because it had not done business in this State within the meaning of OCGA § 9-10-91 (1). Wright does not contend, however, that the trial court erred by finding that WABI was a necessary party.

The record shows that after receiving SCI’s magazine inviting him to attend SCI’s annual safari auction, Wright traveled to Reno, Nevada to participate in the auction. The magazine invited SCI members to bid on a safari in South Africa. Wright went to Reno and won the trip with a successful bid of $10,000.

Wright signed a document entitled “Safari Club International Auction Sales Invoice and Buyer’s Agreement.” The Agreement described the trip in detail, identified the services that would be provided and the dates of the trip, and identified WABI as the operator of the safari. The Agreement also stated, “For more information, contact [WABI] by fax at [the designated number] or by email” at a particular e-mail address. Thereafter, WABI and Wright engaged in a series of e-mail messages between Namibia and Georgia concerning arrangements for the anticipated safari. Included among the correspondence were messages from WABI confirming the trip dates, demanding immediate payment of $3,800 for licensing fees, which Wright paid, requesting travel arrangement information, and ultimately canceling the trip.

After his attempts to recover the money he paid to SCI were unsuccessful, Wright sued SCI to recover his funds. He alleged breach of contract and a violation of OCGA § 10-1-393, the Georgia Fair Business Practices Act. After SCI answered, it moved to dismiss Wright’s complaint because he failed to join WABI as a party to the action.

Finding that relief could not be granted to Wright without WABI’s presence and that the case could not be decided without prejudicing WABI’s rights, the court held that WABI was “an indispensable and necessary party.” Then, the court found that Wright could not obtain jurisdiction over WABI because it had not conducted business in this State sufficient to establish jurisdiction under OCGA § 9-10-91 (1) and dismissed Wright’s complaint.

Because Wright did not challenge the trial court’s determination that WABI was a necessary party, our only consideration is whether the trial court erred by dismissing Wright’s complaint. It is usually error to dismiss a petition for failure to join an indispensable party, as the relief is to join the missing party and have the case considered on the merits. Capote v. Ray, 276 Ga. 1, 4 (3) (577 SE2d 755) (2002). In cases in which the court lacks jurisdiction over the indispensable party, however, a complaint may be dismissed for failure to join the indispensable party. Dixon v. Cole, 277 Ga. 353, 354 (1) (589 SE2d 94) (2003). Nevertheless, dismissal for failure to join a party is warranted only when jurisdiction cannot be obtained over the indispensable party. Burkhead v. Trustees, Firemen’s Pension Fund of Atlanta, 133 Ga. App. 41, 43 (209 SE2d 651) (1974).

Here, the trial court’s dismissal was premised on its determination that WABI could not be made subject to the jurisdiction of the court. The record does not require such a determination. Although discussing our opinion in ATCO Sign & Lighting Co., LLC v. Stamm Mfg., 298 Ga. App. 528 (680 SE2d 571) (2009), the trial court’s order relies primarily on Object Techs., Inc. v. Marlabs, Inc., 246 Ga. 202 (540 SE2d 216) (2000), a case decided before our Supreme Court decided Innovative Clinical & Consulting Svcs. v. First Nat. Bank, 279 Ga. 672, 675 (620 SE2d 352) (2005). In Innovative Clinical our Supreme Court substantially changed the way long arm jurisdiction was viewed in Georgia. The court held that OCGA § 9-10-91 (1) granted Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State “to the maximum extent allowed by procedural due process.” Id. The Court noted that “nothing in subsection (1) requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State.” Id. Additionally, “a single event may be a sufficient basis for the exercise of long arm jurisdiction if its effects within the forum are substantial enough even though the nonresident has never been physically present in the state.” Aero Toy Store v. Grieves, 279 Ga. App. 515, 520 (1) (631 SE2d 734) (2006).

Due process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign. In evaluating whether a defendant could reasonably expect to be haled into court in a particular forum, courts examine defendant’s contacts with the state, focusing on whether (1) defendant has done some act to avail himself of the law of the forum state; (2) the claim is related to those acts; and (3) the exercise of jurisdiction is reasonable, that is, it does not violate notions of fair play and substantial justice. These three elements do not constitute a due process formula, but are helpful analytical tools which ensure that a defendant is not forced to litigate in a jurisdiction solely as a result of “random,” “fortuitous” or “attenuated” contacts.

(Citations and punctuation omitted.) ATCO Sign & Lighting Co. v. Stamm Mfg., supra, 298 Ga. App. at 534.

Based upon the record before us, we cannot conclude definitively whether the trial court is authorized to exercise jurisdiction over WABI. Nevertheless, WABI’s participation in the safari auction which was advertised to Wright in Georgia, as well as numerous e-mail messages exchanged between WABI in Namibia and Wright in Georgia, including those from WABI demanding payment of the fees and then canceling the trip, are factors from which the trial court might conclude upon proper application of the relevant law that WABI was doing business in this State sufficient to confer jurisdiction under OCGA § 9-10-91 (1). In any event, as the moving party, SCI had the burden of establishing that the trial court cannot exercise personal jurisdiction over WABI, and the record before us does not satisfy that burden. Accordingly, we must reverse the trial court and remand the case with direction that Wright be given the opportunity to serve WABI with process and bring it before the court. At that time, WABI can challenge the exercise of personal jurisdiction if it deems it warranted.

Should the trial court then decide that it cannot exercise personal jurisdiction over WABI, dismissal of Wright’s complaint against SCI still may not be appropriate. Altama Delta Corp. v. Howell, 225 Ga. App. 78, 81 (3) (483 SE2d 127) (1997) (“Even if it is not feasible to join a party described in OCGA § 9-11-19 (a), the court may in some circumstances allow the action to proceed without that party.”). Instead, OCGA § 9-11-19 (b) provides that if a party cannot be joined, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it or should be dismissed, the absent person being thus regarded as indispensable.” The Code section states five factors to be considered:

(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or to those already parties;
(2) The extent to which, by protective provisions in the judgment, by the shaping of relief, or by other measures, the prejudice can be lessened or avoided;
(3) Whether a judgment rendered in the person’s absence will be adequate;
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder; and
(5) Whether and by whom prejudice might have been avoided or may, in the future, be avoided.

OCGA § 9-11-19 (b).

Accordingly, we find that the trial court erred in concluding that WABI was not subject to the jurisdiction of the court and not allowing Wright a reasonable period in which to effect service upon and obtain jurisdiction over WABI. Further, should Wright be unable to perfect service or obtain jurisdiction over WABI, the trial court must consider the factors set forth in OCGA § 9-11-19 (b) before again dismissing the action. In addition, we note that the allegations that SCI violated the Georgia Fair Business Practices Act could be sufficient to allow the trial court to proceed in an action against SCI independent of any action involving WABI.

Judgment reversed with direction.

Blackwell and Dillard, JJ., concur.

Decided November 29, 2010.

Michael D. Barber, for appellant.

Arnall, Golden & Gregory, Henry Chalmers, Christopher K. Withers, for appellee.


text:
    A10A1481.
    TARGOVNIK et al. v. CITY OF DUNWOODY ZONING BOARD OF APPEALS.
    (704 SE2d 448)
   SMITH, Presiding Judge.

In this discretionary appeal, Tara Targovnik, Harris Targovnik, Mary Wynn, and Edward Wynn (collectively, “the appellants”) seek discretionary review of the trial court’s dismissal of their petition for certiorari based upon an insufficient certificate of costs. For the reasons set forth below, we reverse.

The record shows that the City of Dunwoody Zoning Board of Appeals approved a stream buffer variance for a Dunwoody property owner to build a playground for a preschool. The appellants — four neighboring homeowners — opposed the variance and filed a petition for certiorari to the superior court. The city moved to dismiss the petition based upon the appellants’ failure to have the proper person sign their certificate of payment of costs. The superior court agreed and dismissed the petition for certiorari.

A city’s zoning ordinance may specify a particular method of appellate review, including by writ of certiorari. See Jackson v. Spalding County, 265 Ga. 792, 793 (1) (462 SE2d 361) (1995). Section 5D-20 (a) of the City of Dunwoody Code of Ordinances provides that appeals from final decisions of the zoning board of appeals shall be made though a petition to the Superior Court of DeKalb County for a writ of certiorari.

OCGA § 5-4-5 (a) provides:

Before any writ of certiorari shall issue [from superior court], . . . the party applying for the same . . . shall also produce a certificate from the officer whose decision or judgment is the subject matter of complaint that all costs which may have accrued on the trial below have been paid. The . . . certificate shall be filed with the petition for certiorari. . . .

(Emphasis supplied.) The certificate of costs initially submitted by the appellants in this case was not signed by any of the members of the board of zoning appeals that issued the decision for which certiorari was sought. Instead, it was signed by Jennifer Peterson, the Director of Community Development for the City of Dunwoody, because the appointed secretary for the board of zoning appeals, Howard Koontz, was not in the office at the time the appellants sought a certificate. Koontz provided an affidavit to the court and averred that Peterson “was authorized in my absence to perform the duties of the [board of zoning appeals] secretary.” He also explained that the members of the board “do not maintain their own records. As such, the members would have no personal knowledge as to the costs associated with any . . . appeal . . . filed for their consideration, let alone whether all costs (such as copying costs) had been paid.”

Historically, Georgia courts have required that the certificate be signed by the judge whose decision the applicants seek to challenge or “the certiorari is void.” Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757 (1) (120 SE2d 674) (1961). The question now before this court is: How does a party appealing from a multi-member board obtain a certificate “from the officer whose decision or judgment is the subject matter of complaint”? OCGA § 5-4-5 (a).

The appellants assert that the duly appointed secretary for the board of zoning appeals, or his proxy, should be considered the appropriate person to issue the certificate of cost payment. In support of this argument, the appellants point to the following provisions of the city ordinance:

The Community Development Director or the director’s designee may serve as secretary to the board as directed by the City Manager. The secretary shall make tape recordings and keep minutes of the proceedings of the board, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its official actions and evidence submitted, all of which shall be filed in the office of the planning department and shall be a public record. Permanent and complete records of the proceedings and decisions of the board shall be maintained. City of Dunwoody Code of Ordinances, Section 5D-8.
In any such petition [for certiorari] filed, the zoning board of appeals shall be designated the respondent in certiorari and City of Dunwoody the defendant in certiorari. The secretary of the zoning board of appeals shall be authorized to acknowledge service of a copy of the petition and writ for the zoning board of appeals as respondent. City of Dunwoody Code of Ordinances, Section 5D-20 (b).

Decided November 29, 2010.

Linda I. Dunlavy, for appellants.

Riley & McLendon, Leonid M. Felgin, Schreeder, Wheeler & Flint, Mark W Forsling, for appellees.

The charter for the City of Dunwoody expressly provides that a city board, such as the board of zoning appeals, “may appoint as secretary an employee of the city.” City of Dunwoody Charter Section 2.14 (g).

Based upon the city ordinances and charter conferring ministerial power to the secretary for the board of zoning appeals and the facts and circumstances of this particular case, we conclude that the duly appointed secretary for the City of Dunwoody Zoning Board of Appeals, or his proxy, may issue the required certificate of costs. We therefore reverse the superior court’s dismissal of the appellants’ petition for certiorari. See Harte v. Sturtevant, 20 Ga. App. 822 (93 SE 530) (1917) (particular act creating municipal court broad enough to allow clerk of court to issue certificate of costs). Compare Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757 (2) (120 SE2d 674) (1961) (particular statute creating city court did not give clerk “broad power” to issue bond).

Judgment reversed.

Mikell and Adams, JJ, concur.


author: JOHNSON, Judge.

text:
    A10A2305.
    LASTER v. THE STATE.
    (704 SE2d 451)
   JOHNSON, Judge.

After a jury trial, Mario Laster was convicted of possessing both cocaine and methylenedioxymethamphetamine with intent to distribute. He appeals, claiming in his sole enumeration of error that the charge to the jury overemphasized the option of finding him guilty. However, at the end of the jury instructions, when the trial court asked for exceptions, counsel for Laster did not raise this objection. Instead, he expressly stated that he had no objections to the charge, but would like to reserve any exceptions “for subsequent appeal.” Although this used to be an appropriate procedure for a criminal defendant, the trial in this case occurred in October 2008.

Thus, this issue is controlled by the 2007 amendment to OCGA § 17-8-58, effective July 1, 2007. Under subsection (a) of that Code section, a criminal defendant is required to inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Subsection (b) precludes appellate review where there is a failure to object in accordance with subsection (a).

Decided November 29, 2010.

Mary Erickson, for appellant.

David McDade, District Attorney, Jeffrey M. Gore, Assistant District Attorney, for appellee.

Because Laster did not inform the trial court of the specific objection to the charge that he now seeks to raise, “he has waived his right to urge error on appeal.” Moreover, to the extent that Laster seeks review under the further provision of OCGA § 17-8-58 (b), that appellate review is not precluded if the jury charge at issue constitutes plain error affecting substantial rights of the parties, we find no error. The charge as a whole properly instructed the jury of its duty to acquit if the state failed to carry its burden of proving guilt beyond a reasonable doubt, and thus, there was no plain error.

Judgment affirmed.

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

       (Punctuation omitted.) Metz v. State, 284 Ga. 614, 619-620 (5) (669 SE2d 121) (2008).

       Id. at 620 (5). See also Johnson v. State, 293 Ga. App. 294, 296 (2) (666 SE2d 635) (2008).

       See Machado v. State, 300 Ga. App. 459, 463 (6) (685 SE2d 428) (2009).


author: Johnson, Judge.

text:
    A10A2332.
    CARROLL v. CARROLL.
    (704 SE2d 450)
   Johnson, Judge.

Following a final hearing in this custody modification action, the trial court awarded primary physical custody of the three minor children to their father, Shane Carroll. The children’s mother, Heather Carroll, appeals claiming that the trial court committed harmful error in reviewing testimony previously submitted by affidavit. We find no error because the mother does not show that the trial court considered the affidavits as evidence for purpose of the final hearing or used the knowledge derived therefrom to reach its decision in the matter.

The mother asserts, and the father does not dispute, that the parties submitted affidavits in anticipation of a temporary hearing which was subsequently cancelled by the agreement of the parties. The mother shows that the trial court reviewed the affidavit testimony before the final hearing. She claims that the trial court improperly considered the affidavits, which were not admitted into evidence at the final hearing, for purposes of its final order.

Decided November 29, 2010

W. Edward Meeks, Jr., for appellant.

We agree with the mother that the affidavits, although properly submitted in anticipation of a temporary custody hearing, did not upon their filing constitute evidence for purposes of the final hearing. We also agree with the mother that the trial court was required to rule on the evidence presented at the final hearing and not on knowledge gleaned from affidavits that were not admitted into evidence.

The flaw in the mother’s argument is that she does not show that the trial court used the affidavits for an improper purpose. The mother shows only that before the presentation of evidence the trial court took a moment to make “a couple of observations,” prefacing his statements by informing the parties that he had read the file, which included the affidavits, and that “I have digested them all.” The trial court then professed his continuing surprise that people were willing to submit “issues involved in [their] relationship” to a judge for resolution. That the trial court prepared for the hearing by reading the case file is not error. Further, “[w]e will not assume that the judge considered anything outside of the evidence [ ] in rendering his judgment.” As the mother does not show that the trial court either considered the affidavits to be evidence or relied thereon in reaching its final decision, nor that the testimony of the numerous witnesses presented at the final hearing was insufficient to support the trial court’s findings, we find no error.

Judgment affirmed.

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

Joshua C. Bell, for appellee.

       See Uniform Superior Court Rule 24.5; Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010) (“absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination”); Camp v. Camp, 213 Ga. 65, 66-70 (2) (97 SE2d 125) (1957) (testimony by affidavit improper in support of permanent custody determination).

       See Pace, supra, 287 Ga. at 901; Alford v. Alford, 190 Ga. 562, 564 (9 SE2d 895) (1940) (“[a] rule that would permit the judge to base his judgment on knowledge gained elsewhere than on the trial at which it is rendered would . . . deprive! ] [the other party] of the legal right to cross-examine, and otherwise try to controvert such alleged facts”).

       Id. at 564. See, e.g., Jennings u. State, 296 Ga. App. 767 (675 SE2d 623) (2009) (“there is a presumption, in the absence of a strong showing to the contrary, that the trial judge sift[ed] the wheat from the chaff, ignor[ed] illegal evidence and considered] only legal evidence.” (citation, punctuation and emphasis omitted).


text:
    A10A0827.
    KITCHEN et al. v. HART et al.
    (704 SE2d 452)
   SMITH, Presiding Judge.

In this legal malpractice action, Charlotte and Harry Kitchen appeal from the trial court’s order entering summary judgment in favor of defendants R. Jonathan Hart and Lee, Black, Hart & Rouse, E C. (collectively “Hart”). The Kitchens contend the trial court erred in concluding that they suffered no damages as a proximate result of Hart’s alleged negligence and in applying the “read or perish” rule to a portion of their claim against Hart. For the reasons set forth below, we affirm.

On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Cox Enterprises v. Nix, 274 Ga. 801, 804 (2) (560 SE2d 650) (2002). In this case, we adopt the following portions of the outline of relevant facts contained in the trial court’s orders:

This matter stems from a contract to buy two companies which were part of a group of companies known as the Adams Group. These companies were involved in the business of constructing, renovating, and/or interior designing commercial properties. Plaintiffs are real estate developers. . . . Mr. Kitchen was contacted by Stephen Adams, shareholder of The Adams Group companies. Mr. Adams sought to ascertain Mr. Kitchen’s interest in investing in MSA and Parker and becoming a co-owner of those companies. In exchange for his financial investment, Mr. Kitchen was to receive one-third interest in MSA and Parker. . . .
[D]uring an all day meeting, the final terms of the deal were solidified. SunTrust Bank served as the lender and was represented by its attorney. Defendant Hart served as legal counsel for Plaintiffs, Anthony Adams, Sr., John McEachern, Steven Adams, MSA, Parker, Foxfield and Adams Construction. Plaintiffs were aware that Defendant Hart represented multiple parties in the subject transaction. No conflict of interest waiver was signed.
The deal basically involved three loans that totaled $3,600,000. SunTrust loaned $2,700,000 to Plaintiffs, Anthony Adams, Sr. and John McEachern combined. All four of those obligors, including Plaintiffs, signed a promissory note on a $2.7 million loan, making them jointly and severally liable for the entire loan amount. Under a separate note, the same four individuals borrowed $600,000. That note was guaranteed and collateralized in the same way as the $2.7 million loan. The third loan, in the amount of $300,000, was made to Adams Acquisition, Inc. Plaintiffs each executed unlimited, unconditional, personal guarantees for that loan, as well as a separate limited guaranty by their company Foxfield. Finally, Plaintiffs executed, along with their co-borrowers, a Cross Default and Cross Collat-eralization Agreement binding them and their collateral under all three of the notes.
As it relates to Plaintiffs’ portion of the collateral, Mr. Kitchen deposed that SunTrust loaned Plaintiffs $950,000 to purchase a certificate of deposit. According to Mr. Kitchen, after the closing, Plaintiffs’ company, Foxfield, was to purchase 2.2 acres of property. Once that property was purchased, the $950,000 certificate of deposit would be replaced by the 2.2 acres. Thus, Plaintiffs’ portion of the collateral was the certificate of deposit which would be later substituted for the 2.2 acres. According to Mr. Kitchen, the 2.2 acres was worth approximately $950,000. Mr. Kitchen deposed, “that is how we came up with $950,000. It’s roughly a third of the obligation.”
The parties dispute whether Plaintiffs were suppose[d] to be jointly and severally liable for the entire loan amount or just $950,000, allegedly one-third of the loan. When asked to explain how $950,000 equates to one-third of the loan obligation, Mr. Kitchen deposed that he started with a loan amount of $3.3 million (which excludes the $300,000 loan to Adams Acquisition for which Plaintiffs signed guarantees). According to Mr. Kitchen, “if you subtract the amounts due from the IRS refund and the supposed small amount of equity in the value of the option property, then you can work back to a number that’s roughly a third.” However, Mr. Kitchen deposed that he understood the notes were going to be $2,700,000, $600,000, and $300,000. Additionally, there is no evidence in the record as to whether the IRS refund was received and the amount, if any. Nor is there any evidence regarding the amount, if any, of “the supposed small amount of equity in the value of the option.”
Plaintiffs deposed that they did not read the loan documents. Mr. Kitchen testified that he relied on his attorney Defendant Hart to effectuate his desire to be limited to one-third of the loan amount. Mrs. Kitchen deposed that she did not look at any of the documents before signing because, “I was signing quickly because my children were in the car.” Mrs. Kitchen explained that no one prevented her from looking at the documents. Mrs. Kitchen testified that she was informed that the documents needed to be signed that day but that no one fully explained to her the details of what she was signing.
As it relates to Mr. McEachern’s collateral, a security interest was obtained by SunTrust on Mr. McEachern’s home. On the morning of the closing, Mr. McEachern and his wife executed an affidavit averring that the title on their home was free and clear of any encumbrance. Mr. Kitchen deposed that he watched Mr. McEachern and his wife sign the affidavit. Additionally, on the day of the closing, around 10:00 a.m., a title update was conducted on the McEacherns’ home and no liens were detected. Approximately one year later, SunTrust discovered that Wachovia Bank held a superior security interest on the property. It was later discovered that the Wachovia security interest was filed at 10:47 a.m., approximately two hours prior to the July 13, closing.
On or about May 12, 2000, in an effort to increase the profitability of MSA and Parker, Plaintiffs reached agreements with both Mr. McEachern and Mr. Adams, whereby Plaintiffs would purchase the stock interest of Mr. McEach-ern and Mr. Adams in MSA and Parker. The agreement provided that Mr. McEachern and Mr. Adams would convey their stock in the companies to Plaintiffs. In exchange, Plaintiffs agreed to, among other things, “indemnify and hold harmless Seller from any claim by SunTrust Bank Savannah, N.A. ..[.]” In addition, Plaintiffs would pay Mr. McEachern and Mr. Adams periodic cash payments totaling one million dollars each in consulting fees. A condition precedent to the transaction required, “the fulfillment and satisfaction at the time of closing and the obtaining of a release of the Seller of certain promissory notes, real estate, personal collateral, and personal guarantees . . . Defendant Hart drafted the stock purchase agreements. SunTrust did not agree to the proposed releases. On July 7, 2000, Plaintiffs sued Mr. Adams and Mr. McEachern to try to enforce the agreements claiming that the contract was valid despite the failure to obtain the releases from SunTrust.
In the spring or summer of 2000, potentially while the lawsuit against Mr. Adams and Mr. McEachern was in progress, Mrs. Kitchen was informed by Mr. McEachern and his attorney that the collateral pledged by Mr. McEachern, i.e., his home, was previously encumbered by a Wachovia Bank security interest and potentially a $100,000 loan from Mr. McEachern’s father. Mrs. Kitchen deposed that she then informed SunTrust that the Wachovia security interest was superior.

Trial court’s November 2, 2005 order, pp. 2-7.

Mr. Kitchen testified that if he had gained control of the companies as planned, he “would have taken my business expertise and try to increase the — you know, expand the scope of MSA as to the tenants that we were representing, and to go to Atlanta and roll my sleeves up and try to expand the role of Parker.” In addition, the Plaintiffs testified that they also sought control of the companies because they were personal guarantors of several bonds on Dollar General projects and were concerned about their liability for those bonds.

Trial court’s February 9, 2009 order, p. 3.

On or about November 7, 2000, Plaintiffs settled their lawsuit against Mr. McEachern by renegotiating the buyout agreement. The settlement was not drafted by Defendant Hart. According to the agreement, Mr. McEachern agreed to convey to Plaintiffs all of his ownership interests in MSA and Parker, Plaintiffs again agreed to indemnify and hold Mr. McEachern harmless from all claims by SunTrust for any of the obligations under the July 13, 1999, loans. Although the settlement contained language whereby Plaintiffs agreed to exercise, “their best efforts to obtain a release for Mr. McEachern . . . from SunTrust Bank ... in connection with the July 13, 1999, closing. . . ,” this requirement was not characterized as a condition precedent as was the case in the first contract. Plaintiffs testified that before entering into this agreement, they were aware that Mr. McEachern was jointly and severally liable for all of the July 13, 1999, loans. Mr. Kitchen deposed that under the new contract, as it relates to Mr. McEachern, he saved a million dollars from what the May 12, 2000, agreement contemplated.
Shortly after the purchase of Mr. McEachern’s interest in MSA and Parker, the companies began to fail and the original July 13, 1999, loans went into default. Thereafter, Plaintiffs tendered $950,000 to SunTrust which Plaintiffs state[d] was their one-third obligation under the loans. SunTrust did not accept the amount offered. . . . The parties eventually settled the matter for $2,900,000. Plaintiffs contributed $2,100,000 to the settlement and Mr. Adams, who was also jointly and severally liable for the entire loan amounts, only contributed $800,000.
Plaintiffs have brought this action alleging negligence and breach of fiduciary duty against Defendants. Defendants do not dispute that an attorney/client relationship existed between Plaintiffs and Defendant Hart. Also, Defendants do not dispute that a written conflict of interest waiver was not provided to Plaintiffs.

Trial court’s November 2, 2005 order, pp. 7-9.

The Plaintiffs allege that they were damaged by the failure of the stock purchase agreements:
Q. Do you believe that you were harmed by the failure of the stock purchase agreement that would have acquired the ownership interest of McEachern and Tony Adams in return for assuming their obligations under the notes and payment of a million dollars each?
A. Absolutely.
Q. And why do you think that?
A. Titan Construction was formed, and it’s still doing business and very successfully with the tenants that we were working with at the time. We basically shut down, and they took all of our business in Savannah.
Q. And Titan was composed of Anthony Adams, Steve Adams’ wife, and Beeson who had worked with MSA before?
A. Yes.
Q. So what reason do you have to believe that MSA could have competed successfully against those people?
A. We wouldn’t have competed with those people. Grant Beeson was our employee when the company shut down. Then him and Steve Adams and Tony Adams went on and formed a new entity.
Q. What tenants of MSA are now doing work with Titan?
A. I have no idea today.
Q. Well, the vast majority of MSA’s business was construction of the Dollar stores, wasn’t it?
A. Build to suit for retail tenants, yes.
Q. And what proportion of those retail tenants were Dollar stores?
A. Seventy-five percent.
Q. And Dollar stores ended that program right about the time the company failed, didn’t it?
A. They ended it in November [2000], yes.
Q. Can you tell me how much money you would have made with MSA not building Dollar stores had you acquired the complete ownership of the company in this exchange for —
A. No.
It is undisputed that after the stock purchase agreements failed, Grant Beeson left MSA. It is further undisputed that Dollar General was MSA’s primary client and that Dollar General eventually cut back its programs and work with MSA. However, the record is ambiguous about precisely when Dollar General cut back and then eventually cut off its work with MSA.
Plaintiffs seek damages for the lost profits of MSA as a result of the [Defendants’] alleged malpractice. In support of this argument, the Plaintiffs offer information on the history of MSA. According to the Affidavit of M. Stephen Adams, MSA was formed in 1997. The affidavit further provides, “As of July 1999, MSA had completed approximately 20 Dollar General Stores, MSA also had approximately another 20 stores under construction. By this time, MSA was grossing over $5 million dollars and had a backlog of over $5 million.” In support of this statement, a March 31,1999 copy of MSA’s balance sheet, operating statement, and percentage to com-píete reports was attached to the affidavit. The operating statement shows that MSA earned a total income of $2,477,081 from April 1, 1997 to March 31, 1998 and had a net profit of $299,984 for that period. The operating statement further provides that MSA earned a total income of $4,671,780 from April 1,1998 to March 31,1999 and made $0 net profit for that time period. The March 31, 1999 percent complete report lists approximately 40 items, all of which appear to be Dollar General construction projects as indicated by the letters “D.G.” or the words “Dollar General.” The status of these jobs is unclear from the information in the report. Beyond these documents and some limited testimony, there is no further substantive evidence in the record regarding the financial history or status of MSA.

Trial court’s February 9, 2009 order, pp. 9-11.

The trial court granted Hart’s motion for summary judgment based upon its conclusion that the Kitchens could not show any damages proximately caused by Hart’s negligence. It also granted summary judgment in connection with the stock purchase agreements based upon its application of the “read or perish” rule. See McWhorter, Ltd. v. Irvin, 154 Ga. App. 89, 91 (2) (267 SE2d 630) (1980); Kushner v. McLarty, 165 Ga. App. 400, 401-402 (1) (300 SE2d 531) (1983).

1. The Kitchens assert in this appeal that the trial court erred in granting summary judgment in Hart’s favor on damages in connection with their claim that they should have only been liable for one-third of the SunTrust loan. The trial court concluded that “the Plaintiffs’ own actions negated any damages they might have suffered from Defendants’ alleged negligence” by later voluntarily assuming full responsibility for the SunTrust loan.

To prevail on a legal malpractice claim, a client must prove that (1) he employed the defendant attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) this failure was the proximate cause of damages to the client. To establish proximate cause, the client must show that but for the attorney’s error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. The defendant attorney is entitled to summary judgment if he shows that there is an absence of proof adduced by the client on the issue of proximate cause.

(Citation and punctuation omitted.) Kramer v. Yokely, 291 Ga. App. 375, 379-380 (2) (662 SE2d 208) (2008). We agree with the trial court’s conclusion that the Kitchens’ later conduct precludes them from holding Hart responsible for the difference between one-third and full liability for the SunTrust loan. See Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga. App. 75, 75-76 (653 SE2d 791) (2007) (client’s settlement severed proximate cause resulting from attorney’s alleged negligence).

The Kitchens argue that Hart should still be held accountable for the difference because they assumed liability for the entire debt to mitigate the losses caused by Hart’s initial drafting error. We find no merit in this argument because the record shows that the Kitchens’ decision to assume responsibility for the entire loan was not made to mitigate losses caused by Hart’s alleged malpractice. At the time the Kitchens entered into the voluntary agreement, they believed their obligation was limited to one-third and they had not yet discovered that the closing documents obligated them for the entire amount of the loan.

The Kitchens claim that because their liability for the entire debt might have been voided by any “fraudulent or other willful, intentional conduct” of McEachern, their assumption of full responsibility for the loan should not sever proximate cause with regard to Hart’s alleged negligence. The trial court correctly rejected this argument because the record shows that the Kitchens knew the facts surrounding their fraud claim at the time they agreed to assume full responsibility for the loan. See Pacheco v. Charles Crews Custom Homes, 289 Ga. App. 773, 775 (1) (658 SE2d 396) (2008) (knowledge of deficiencies precluded fraud claim).

2. The Kitchens also assert that the trial court erred in concluding they failed to establish an issue of fact with regard to lost profits based upon McEachern and Anthony Adams’s rescission of the stock purchase agreement. We disagree.

Ordinarily, anticipated profits are too speculative to be recovered, but where the business has been established, has made profits and there are definite, certain and reasonable data for their ascertainment, and such profits were in the contemplation of the parties at the time of the contract, they may be recovered even though they can not be computed with exact mathematical certainty. Nonetheless, to recover lost profits one must show the probable gain with great specificity as well as expenses incurred in realizing such profits. In short, the gross amount minus expenses equals the amount of recovery.

(Citation, punctuation and footnote omitted.) KAR Printing v. Pierce, 276 Ga. App. 511, 512 (623 SE2d 704) (2005).

Decided November 30, 2010.

Savage, Turner, Pinson & Karsman, Brent J. Savage, Christopher D. Britt, for appellants.

Brannen, Searcy & Smith, David R. Smith, for appellees.

The trial court correctly concluded in this case that

Ltjhere is insufficient evidence to show that the companies had a record of profits. There is no expert testimony regarding the financial status of MSA prior to or after the execution of the stock purchase agreements. There is limited fact testimony from any other witnesses on this issue as well. Although the Plaintiffs apparently intend to argue that MSA would be as successful as Titan Construction — the business that MSA’s “key employee” Grant Beeson left to work for — there is no information on the record regarding the financial status of Titan Construction, what clients Titan Construction retained from MSA, or even what clients currently employ Titan Construction. . . . The financial information provided, along with the testimony that the Plaintiffs would have used their experience to make MSA successful, falls below the threshold requirement for specificity . . . and . . . the “definite, certain, and reasonable data” required to ascertain lost profits.

3. Based upon our holdings in Divisions 1 and 2, we need not decide whether the trial court erred in its application of the “read or perish” rule.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The trial court initially granted summary judgment on November 2, 2005, but subsequently rescinded it because it failed to address all of the Kitchens’ arguments. On February 9, 2009, it granted summary judgment again and incorporated by reference facts set forth in its initial order.

       The record shows that Dollar General began its cut backs in the second half of 2000.


author: Adams, Judge.

text:
    A10A0837.
    TEASLEY et al. v. THE STATE.
    (704 SE2d 248)
   Adams, Judge.

Elizabeth and Jerry Teasley appeal the denial of their motion for discharge and acquittal, in which they asserted that they had been denied their constitutional right to a speedy trial. We reverse in part and remand with instruction.

The record shows that on August 31, 2006, the Teasleys were indicted on one count of cruelty to children for allegedly injuring their three-week-old child between April 9 and 13, 2006; he had been diagnosed with a broken leg. Arraignment was scheduled for October 5, 2006 in the Superior Court of Hart County, during that court’s August term. On October 10, 2006, as a part of a document addressing other matters, Elizabeth demanded a public and speedy trial pursuant to the Georgia Constitution and Constitution of the United States. She reiterated the demand in similar fashion in March 2007, but she never made a Georgia statutory demand under OCGA § 17-7-170. No other demands are in the record except the motion for discharge and acquittal itself.

In April 2007, in response to a notice of potential conflict of interest of the public defender’s office, the court ordered that the public defender be relieved of representing Jerry Teasley and that Martin Melton be appointed instead. The case was not tried during the February 2007 term of court, and there is no information in the record explaining why.

In October 2007, Melton moved to continue the trial, which had been scheduled for October 15, because both he and the District Attorney’s office had “unexpectedly received almost 100 pages of medical records” and a large number of photographs that counsel needed to examine. The court granted the motion and ordered that the case be rescheduled to the February 2008 term of court.

Meanwhile, in November 2007, Melton filed a notice that he had accepted a position with the State and that he could no longer represent Jerry Teasley. The court ordered that Melton be relieved and appointed the public defender on the ground that “no conflict appears.” But on December 12, 2007, the court ordered that the public defender again be relieved of representing Jerry because “a serious potential conflict of interest exists”; the court appointed Harvey Wasserman instead. Nevertheless, on March 12, 2008, the public defender filed a notice that she had determined that no potential conflict of interest existed, and she requested that she be allowed to represent both Teasleys.

In April 2008, the court placed the case on a calendar for June 30, 2008, which was during the February 2008 term of court. The defense provided a list of witnesses on April 23, 2008. But the case was not tried at that time, and there is no information in the record explaining why.

During the August 2008 term of court, both Jerry and Elizabeth filed separate notices indicating that they waived any potential conflict of interest arising out of the joint representation of the public defender’s office. In September, subpoenas were filed that indicated a trial date of September 22, 2008. On September 16, the defense submitted a witness list. But again, no trial occurred during that term, and there is no information in the record explaining why.

In April 2009, the case was assigned to a new judge because the assigned judge recused himself. The State has admitted that the recusal caused a continuance, and the February 2009 term of court passed without a trial. At some point in 2009, the Teasleys understood the case would be called for trial “at a special week scheduled November 2, 2009.” But when the calendar for that day was published, it did not list the case as being scheduled for trial. On October 14, 2009, during the August term of court, the defendants moved for discharge and acquittal based on the violation of their constitutional right to a speedy trial. The matter was heard on November 2, 2009, three years and two months after indictment.

At the hearing on the motion, Elizabeth and a relative testified that the delay had affected the Teasleys because the child had been taken away from them and placed with Elizabeth’s parents for three years. This concerned Elizabeth because her mother was prone to seizures and unable to drive a car. She was worried that something could happen to the child as a result. She experienced stress because tensions arose with her parents, including one time when her parents obtained a restraining order against Jerry and her. Elizabeth and Jerry had to comply with two family case plans. They attended parenting classes, anger management classes, and took psychological tests. Elizabeth testified that she and her husband have been nervous and anxious every day for the three years about going to trial, and had been living under a cloud of suspicion. Also, while awaiting trial, Elizabeth became pregnant again. One week before she was to deliver, the Department of Family and Children Services contacted her and indicated it was going to take the baby and place it in foster care because of the charges pending against them. Elizabeth experienced anxiety as a result, including during her delivery. Ultimately she was allowed to keep the child but only under supervision. Elizabeth testified that there have been six times in the three years that she expected the case to be tried and that neither she nor Jerry ever asked for the trial to be postponed or failed to appear at any court proceedings. Jerry did not testify at the hearing.

Some colloquy was presented at the hearing to the effect that in the spring of 2008, Harvey Wasserman had stopped defending Jerry because he was not getting paid by the State for his work as a conflict attorney because of the State’s failure to fund the public defender system. The defendants assert that this did not cause a delay because they waived any conflict, agreed to be represented by the same counsel, and never asked for a continuance based on the issues of representation.

In further colloquy, defense counsel essentially admitted that she relied on the State’s assurances that the case would be tried as an explanation for not making further efforts to demand a speedy trial. The State claimed that some delay occurred when the defense requested time to perform a bone density test on the child and that it never received a test report. There is no documentation in the record to support this statement. The defendants denied that the bone density test caused any delay. Also, the State admitted that it asked for a continuance in 2008 when a witness was not available to testify. The State asserted that the defense had made an oral request for a continuance one other time in order to find an expert witness. But defense counsel asserted that the State requested the continuance and that she did not object because she needed time to get experts.

The court denied the Teasleys’ motion “for the reasons enumerated orally in Court.” The court gave the following reasons at the hearing: that the over three-year delay raised a presumption of prejudice; that the reasons for delay were hard to sort out; that there had been a continuance by the defense; that there were “some problems” in obtaining the medical testimony or medical records; that it did not seem fair to charge the State with the State’s failure to fund the public defender system; that the Teasleys had never filed a statutory demand for speedy trial; that the motion for discharge and acquittal was filed “shortly before this case was assumed to be appearing on a trial calendar for November 2, 2009”; that there was no evidence that the delay had affected the defendants’ ability to present their case; and that every defendant is adversely affected like the Teasleys were while awaiting trial. The court also stated, “I think the Court has a duty to balance the victim’s rights against the rights of the Defendants, the allegation in this case being abuse of a very small child.” The court also relied on the fact that the State offered, during colloquy, to try the case the following week: “I don’t know, but the State has offered to bring this to trial next week based on your speedy trial demand and I think that’s sufficient, so I’m going to deny the motion.” The Teasleys contend the trial court erred in several regards.

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The right is “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U. S. 116, 120 (86 SC 773, 15 LE2d 627) (1966).

“While the constitutional speedy trial provisions primarily safeguard the defendant’s rights, they also recognize the public’s interest — including the interest of crime victims — in the resolution of criminal cases without unnecessary delay, and the prosecutor and the trial court have a responsibility to protect those interests.” [Cits.]

Phan v. State, 287 Ga. 697, 698 (699 SE2d 9) (2010). “Absent an abuse of discretion, the decision of the trial court must be affirmed. [Cit.]” State v. Johnson, 274 Ga. 511, 512 (555 SE2d 710) (2001).

1. The determination of whether the constitutional right to a speedy triad has been violated has two stages. The court first determines “whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered ‘presumptively prejudicial.’ ” Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). “If not, the speedy trial claim fails at the threshhold.” Id. Otherwise, the court proceeds to “application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.” Id.

The length of delay in this case is three years and two months, which is presumptively prejudicial, as the State concedes. See, e.g., Weis v. State, 287 Ga. 46, 49 (1) (a) (694 SE2d 350) (2010) (three- and-a-half year period is presumptively prejudicial); Ruffin, 284 Ga. at 55 (2) (a) (two years, two months, and twenty-three days is presumptively prejudicial); Perry v. Mitchell, 253 Ga. 593 (322 SE2d 273) (1984) (delay of more than two years is “deplorable”). The trial court so held.

2. The second-stage, four-factor balancing test raises these questions:

[i] whether delay before trial was uncommonly long, [ii] whether the government or the criminal defendant is more to blame for that delay, [iii] whether, in due course, the defendant asserted [the] right to a speedy trial, and [iv] whether he [or she] suffered prejudice as the delay’s result.

Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992). See also Barker v. Wingo, 407 U. S. 514, 530 (92 SC 2182, 33 LE2d 101) (1972) (describing four factors as “[l]ength of delay, the reason for the delay, the defendant’s assertion of [the] right, and prejudice to the defendant”). Under the test,

none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test. Thus, we must apply and weigh these factors together to determine if [the defendant’s] constitutional right to a speedy trial has been abridged.

(Citations omitted.) Layman v. State, 284 Ga. 83, 84 (663 SE2d 169) (2008). The analysis requires courts to “ ‘engage in a difficult and sensitive balancing process’ and ‘necessarily compels them to approach speedy trial cases on an ad hoc basis.’ ” Ruffin, 284 Ga. at 56 (2), quoting Barker, 407 U. S. at 530, 533.

(a) The first factor requires consideration of “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U. S. at 652 (II). “[An] uncommon length of the pretrial delay thus merits consideration beyond its use as a liminal screening mechanism.” Ruffin, 284 Ga. at 57. Here, we find nothing in the trial court’s order to show that it considered whether the delay before trial was uncommonly long given the circumstances of the case. “To the extent the trial court overlooked this factor in the four-factor balancing process, it erred.” Ruffin, 284 Ga. 59. The pretrial delay in this case — three years and two months — greatly exceeds the amount of time necessary to establish a presumption of prejudice. See Doggett, 505 U. S. at 652, n. 1 (delay approaching one year is presumptively prejudicial). Thus, this factor weighs heavily against the State. See, e.g., Ruffin, 284 Ga. at 58-59.

(b) With regard to who is to blame for the delay, the State concedes the trial court did not attribute the delay to either party as required by Barker v. Wingo. Rather, the court stated that the reasons for delay were hard to sort out; that there had been a continuance; that there were “some problems” in obtaining the medical testimony or medical records, and that it did not seem fair to charge the State with the State’s failure to fund the public defender system.

To evaluate the reasons for delay, courts are required to “assign[] various degrees of weight to the different reasons provided by the prosecution and the defense respectively.” Layman, 284 Ga. at 85, citing Barker, 407 U. S. at 531. See also Doggett, 505 U. S. at 657. And the Supreme Court of Georgia has held that “evidence of a systemic breakdown of the public defender system impacting a particular defendant should be considered under the reasons for delay.” Phan, 287 Ga. at 699. The delay resulting from such a breakdown can be charged to the State. Id. Thus, the trial court erred by assuming that the State could not be blamed for the State’s failure to fund the public defender system. The matter, however, was not fully analyzed.

Evaluating the reasons for the entire delay ourselves shows that of the seven terms of court available for trial, no reason was given for delay in four of the terms, the State caused the delay in two terms (when the judge was recused, and when the State admitted that it once sought a continuance), and the defendants caused the delay in one term by asking for a continuance. The defendants probably should have or share blame for the delay during an additional term because they admitted they acquiesced in the State’s continuance, and they may have orally requested a continuance on another occasion.

“Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial. [Cit.]” Brannen v. State, 274 Ga. 454, 455-456 (553 SE2d 813) (2001). See also Bell v. State, 287 Ga. App. 300, 302 (651 SE2d 218) (2007). Even if these delays were unintentional, they fall on the shoulders of the State, although they are not weighed heavily:

Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense, in determining whether the Sixth Amendment has been violated but, as we noted in Barker v. Wingo, 407 U. S. 514, 531 [(92 SC 2182, 2192, 33 LE2d 101)] (1972), they must “nevertheless ... be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”

Strunk v. United States, 412 U. S. 434, 436 (93 SC 2260, 37 LE2d 56) (1973). “Under such circumstances, this factor ‘is . . . relatively benign but definitely negative.’ [Cits.]” Brannen, 274 Ga. at 456. Nevertheless, as explained by the United States Supreme Court, “the weight we assign to official negligence compounds over time . . . [t]hus, our toleration of such negligence varies inversely with its protractedness.” Doggett, 505 U. S. at 657. “[Pjersistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it.” Ruffin, 284 Ga. at 61.

Applying the applicable law, we conclude that in this case, at least four terms of delay were caused by the State, perhaps two by the defendant, and one with blame falling on both parties. Given that it was possible to at least partially assign blame for the delays in this case, it was error for the trial court to fail to assign blame. See Ruffin, 284 Ga. at 61. Because of the protracted delay attributed largely to the State, this factor weighs against the State.

(c) A defendant who fails to demand a speedy trial does not forever waive his right. Barker, 407 U. S. at 528. “This does not mean, however, that the defendant has no responsibility to assert his right, [rather] the defendant’s assertion of or failure to assert his right to a speedy trial -is one of the factors to be considered in an inquiry into the deprivation of the right.” Id.

First, the trial court erred by relying in part on the fact that the Teasleys had not filed a statutory demand. “[T]he filing of a speedy trial demand is not a prerequisite for a plea in bar for failure to have a speedy trial on constitutional grounds.” (Citation and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 345 (2) (c) (680 SE2d 182) (2009). Rather, a court must determine whether “the accused has asserted the right to a speedy trial ‘in due course.’ [Cit.]” Ruffin, 284 Ga. at 63 (2) (b) (iii). Compare Brannon, 274 Ga. at 456 (objecting to continuance, stating readiness for trial, and suggesting witnesses should be held in contempt for failing to appear, “cannot be construed as an assertion of the right to a speedy trial”). “[T]he failure to exercise that right is entitled ‘to strong evidentiary weight’ against the defendant.” (Citations and punctuation omitted.) Id. See also Harris v. State, 284 Ga. 455, 456 (667 SE2d 361) (2008).

Here, less than two months after indictment, Elizabeth Teasley demanded in writing a public and speedy trial pursuant to the Georgia Constitution and Constitution of the United States, and she specifically invoked the Sixth Amendment and the corresponding paragraph of the Constitution of Georgia. Compare Bell v. State, 287 Ga. App. at 302 (trial court properly weighed against the defendant a 10-month delay between indictment and a demand for speedy trial), and cases cited therein. She reiterated the identical demand in March 2007. Defense counsel admitted she failed to make further demands based on assurances of trial by the State. Elizabeth asserted her right to a speedy trial again in October 2009, two and one-half years after her previous assertion, by way of the motion for discharge and acquittal, after finding out that the case had not been placed on the October 2, 2009 calendar as she had been assured earlier. We conclude this factor weighs against Elizabeth Teasley but not heavily.

With regard to Jerry Teasley, we find no demand in the record other than the motion for discharge and acquittal; he was represented by different counsel at the time of Elizabeth’s first two requests. Thus, he waited three years and two months from his indictment to first assert his right to a speedy trial. Where a defendant waits years to assert the right just prior to trial, it is difficult to show denial of the right to a speedy trial. Brannon, 274 Ga. at 456. See also Harris, 284 Ga. at 456-457 (no prejudice where defendant waited five years to assert the right to a speedy trial).

(d) The last of the four Barker factors is prejudice. In analyzing that factor, we “consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired.” Brannen, 274 Ga. at 456. “Of these forms of prejudice, ‘the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ [Cit.]” Doggett, 505 U. S. at 654 (III) (A). Here, there was no pre-trial incarceration, and the defendants do not contend that their defense has been hampered.

Yet “even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.” Barker, 407 U. S. at 533. See also Ruffin, 284 Ga. at 55 (“Release on bond does not absolve the State of its constitutional obligation to bring those accused of committing crimes to trial in a speedy manner.”) Also, “consideration of prejudice is not limited to the specifically demonstrable, and . . . affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U. S. at 655 (III) (A). A finding of presumptive prejudice “cannot alone carry [the defendants’] Sixth Amendment claim without regard to the other Barker criteria. Instead, it is part of the mix of relevant facts, and its importance increases with the length of delay.” (Citations and punctuation omitted.) Harris, 284 Ga. at 456-457. But, “the extent to which a defendant must prove prejudice from a delay in prosecution is directly related to the government’s reasonableness in its pursuit of that defendant.” Hayes, 298 Ga. App. at 349 (2) (d) (case of aggravated assault, aggravated battery, and cruelty to children characterized as “relatively uncomplicated”). Finally, as explained by the Supreme Court, “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett, 505 U. S. at 652 (II). And the delay that can be tolerated rises with the seriousness and complexity of the case. See Barker, 407 U. S. at 531 (IV).

That defendants have some anxiety and concern is common to criminal proceedings. See Jackson v. State, 272 Ga. 782 (534 SE2d 796) (2000). But the trial court’s finding that Elizabeth’s anxiety was the same as every other defendant awaiting trial is not supported by the evidence because, among other things, hers included losing custody of a small child and having the State threaten to take a different child away from her at the time of that child’s birth.

Here, Elizabeth testified that the delay caused her significant anxiety about the well-being of her child who was removed from the home for three years, about whether the State was going to take her subsequent newborn child, about her strained family relations, and about having to live under a cloud of suspicion for so long. This factor weighs in favor of Elizabeth Teasley, and, to a slight degree, in favor of Jerry, who did not testify. We agree with the Teasleys that the State’s negligence in prolonging the separation of the family based on unproven allegations weighs heavily against the State. Given the length of delay in this case, the State’s unexplained lack of persistence to prosecute a relatively straightforward case, the presumption of innocence, and the effect on Elizabeth Teasley, we conclude that the prejudice to Elizabeth was legally significant.

Without testimony from Jerry, we cannot say that he suffered in the same way as Elizabeth. We therefore conclude that the prejudice to Jerry was not as significant. This factor therefore weighs against the State with regard to Elizabeth but not significantly for Jerry.

(e) Finally, the trial court also relied on two other reasons for finding no violation of the Teasleys’ right to a speedy trial. First, the court stated that, given that the victim was a small child, it had a duty to balance the victim’s rights against the rights of the defendants. But we find no authority for weighing the specific victim’s rights against the defendant’s based on the circumstances of the case in order to conclude that a lengthy delay in prosecution attributable to the State is acceptable if the victim is a small child. Thus, we find the trial court erred by applying this factor.

The court also relied on the fact that, at the hearing on the motion to discharge, the State had offered to try the case the following week. But there is nothing in the record to show that the offer was serious, that it was communicated to the Teasleys prior to the motion hearing, or that the trial had in fact been calendered or scheduled.

Decided November 30, 2010.

Patricia A. Provost, for appellants.

Robert W. Lavender, District Attorney, for appellee.

In summary, the trial court made several legal errors when addressing the motion for discharge and acquittal. Although we review the trial court’s decision for abuse of discretion, the deference we owe to the trial court is diminished when that court’s decision is based on clearly erroneous factual findings or errors of law. Williams v. State, 277 Ga. 598, 601 (1) (e) (592 SE2d 848) (2004); Hayes, 298 Ga. App. at 338. Applying the Barker v. Wingo test, we conclude that the length of the delay and the blame for the delay weigh heavily against the State. The defendants’ failure to doggedly pursue a speedy trial weighs against Elizabeth and heavily against Jerry. And the prejudice to the defendants weighs against the State with regard to Elizabeth but not with regard to Jerry. Combined with the errors noted above, we therefore conclude the trial court abused its discretion by denying Elizabeth Teasley’s motion for discharge and acquittal but not by denying Jerry Teasley’s motion. See, e.g., Hayes, 298 Ga. App. at 350.

“ ‘[T]he only possible remedy’ ” for a violation of the constitutional right to a speedy trial is dismissal of the indictment with prejudice. Strunk, 412 U. S. at 440. Accordingly, this case is remanded with direction to enter a discharge and acquittal in favor of Elizabeth Teasley. See, e.g., Hayes, 298 Ga. App. at 350. Jerry Teasley’s conviction is affirmed.

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

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

       Hart County has two terms, which begin on the “Third Monday in February and August.” OCGA § 15-6-3 (27) (C).

       Shortly before the hearing, the victim had been returned to her parents.

       Jerry has another child from a previous relationship who also lives with the family.

       “The speedy trial right enshrined in the Georgia Constitution is coextensive with the federal guarantee.” Ruffin v. State, 284 Ga. 52, 54 (2) (663 SE2d 189) (2008).

       “The relevant inquiry for purposes of the second factor is not whether the prosecutor or the accused bears more responsibility for the delay, but whether the government or the criminal defendant is more to blame for that delay.” (Punctuation and footnote omitted; emphasis in original.) Ruffin, supra, 284 Ga. at 61 (2) (b) (ii).

       “Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent.” Vermont v. Brillon, 556 U. S. 81 (129 SC 1283, 173 LE2d 231) (2009).

       The burden is on the State to bring the defendant to trial:
      A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, . . . society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest.

        Barker, 407 U. S. at 527.