text:
    A16A0616.
    FRANKLIN v. EAVES.
    (787 SE2d 265)
   Peterson, Judge.

Dedrain E. Frankin brought a lawsuit under the Georgia Whistle-blower Act against defendant John E. Eaves in his official capacity as chairman of the Fulton County Board of Commissioners (“the County”). She appeals from the trial court’s orders granting the County’s motion to open default and granting the County’s motion for summary judgment. We agree with the County that the trial court did not abuse its discretion in granting the motion to open default and affirm the trial court’s ruling on that motion. But because there are genuine disputes of material fact preventing summary judgment for the County on the ground that Franklin did not timely file her suit, we reverse the trial court’s grant of summary judgment.

1. Franklin first argues that the trial court erred in granting the County’s motion to open default. We disagree.

On October 11, 2013, Franklin filed her lawsuit in the Fulton County Superior Court against the County’s manager, alleging claims under the Georgia Whistleblower Act, OCGA § 45-1-4, as well as provisions of the federal and state Constitutions. On November 18, 2013, she filed an amended complaint, substituting Eaves in his official capacity as the defendant and alleging claims under only OCGA § 45-1-4 and the free speech protections of the Georgia Constitution. Nine days later, the County’s manager filed a notice of removal in federal court, referencing only the original complaint. With the County manager’s consent, the federal district court on January 3, 2014, issued an order remanding the case to state court.

There was, however, some delay in docketing that order in state court. After inquiries from Franklin’s counsel, the order appeared on the Fulton County Superior Court docket as having been docketed on March 14, 2014. The County filed answers to Franklin’s complaint and amended complaint on March 25, 2014. Implicitly recognizing that its answer was tardy, the County filed a motion to open default, accompanied by an affidavit by its counsel. Counsel averred that, after the federal court issued its remand order, her office checked the status of the case on the state court docket on a daily basis. She did not learn until March 25, 2014, however, that the remand order had been docketed in state court, and even then “the status of the case remained closed” until her office contacted the state court. The County took the position that it was entitled to open default because it had filed its answer and paid costs within the 15-day grace period affordedby OCGA § 9-ll-55(a), or, alternatively, the trial court should exercisers discretion to open default pursuant to OCGA § 9-ll-55(b). In opposing the motion, Franklin moved for a default judgment and argued that the County’s 30 days for filing an answer began to run upon service of the complaint on November 4, 2013, and that the County had only seven days left once the federal court remanded the case on January 3, 2014, making the motion to open default 62 days late, even considering the grace period.

While the motion to open default was pending, the County filed a motion for summary judgment. The trial court granted the motion to open default and denied the motion for a default judgment without elaboration but also denied the County’s motion for summary judgment. The trial court later granted summary judgment to the County after it moved for reconsideration.

A trial court’s decision to open a prejudgment default under OCGA § 9-ll-55(b) is reviewed for an abuse of discretion as long as certain prerequisites are met. Brazell v. J. K. Boatwright & Co., P.C., 324 Ga. App. 502, 502 (751 SE2d 133) (2013). After the 15-day grace period for opening default as a matter ofright under OCGA § 9-ll-55(a), a trial court has no discretion to open default unless the defendant’s showing for opening the default meets four conditions: it must (1) be made under oath, (2) offer to plead instanter, (3) announce ready to proceed with trial, and (4) set up a meritorious defense. See id. at 502-04; OCGA § 9-11-55. “Compliance with the conditions of OCGA § 9-ll-55(b) is mandatory, and in its absence, the trial court has no discretion to open default.” Cavender v. Taylor, 285 Ga. 724, 725 (2) (681 SE2d 139) (2009).

Franklin challenges the trial court’s ruling based only on the first condition, arguing it was not met because the County’s answer and amended answer were not made or verified under oath. But Franklin did not argue this below, and “[ijssues not raised below will not be considered on appeal.” Allen v. Peachtree Airport Park Joint Venture, 231 Ga. App. 549, 550 (2) (499 SE2d 690) (1998) (footnote omitted). See also Robinson v. Moonraker Assocs., 205 Ga. App. 597, 598 (423 SE2d 44) (1992) (appellants waived right to complain that trial court opened default despite appellee’s failure to pay costs as required by OCGA § 9-11-55(b)). Accordingly, we need not consider whether the four conditions for opening default have been met here.

Once those four prerequisites are satisfied, a trial court may open default on any one of three grounds: (1) providential cause, (2) excusable neglect, or (3) that a proper case has been made for opening default. Brazell, 324 Ga. App. at 502. Although the “proper case” ground is broader than the other two grounds for default, it does not give a trial court unlimited authority to open a default. Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 21 (694 SE2d 346) (2010). In considering whether to open default under OCGA § 9-ll-55(b), courts consider (1) whether and how the opposing party will be prejudiced by opening the default, (2) whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-ll-55(a) had expired for the defaulting party to open default as a matter of right; and (3) whether the defaulting party acted promptly to open the default upon learning that no answer either had been filed or timely filed. Thomas v. Brown, 308 Ga. App. 514, 516 (3) (707 SE2d 900) (2011). The law favors the opening of defaults, as cases should be decided on their merits whenever possible. Id. at 517 (3).

Franklin argues that the County has not made a good case for opening default because counsel “substantially miscalculated” the time for filing an answer, and neglect by counsel is not a valid excuse. However, the County could not file its answer until the state court case was reopened, and the undisputed evidence shows that the County acted with diligence to monitor the state court docket. The undisputed evidence also shows that the County filed its answers and moved to open default on the same day that it learned the federal court’s remand order had been docketed in state court. Franklin has not shown how she will be prejudiced by opening of the default. Although the trial court did not specify the basis on which it granted the motion to open default, it did not abuse its discretion in opening default on the basis of either excusable neglect or proper case.

2. Franklin also argues that the trial court erred in granting summary judgment on the ground that she failed to timely file her lawsuit. We agree.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-ll-56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). Because Franklin’s original complaint was verified, we may consider factual allegations made therein as though she had averred those facts in an affidavit, recognizing that a verified complaint, like an affidavit, is not sufficient to avoid summary judgment to the extent that it is merely conclusory. See Kerr v. Cohen, 249 Ga. App. 392, 397 (1) (c) (548 SE2d 17) (2001).

Viewing the evidence in the light most favorable to the plaintiff, Franklin has been an employee of the County since 2007, working in the health department. In 2011, she became a Financial Systems Coordinator, the duties of which included credentialing medical providers by submitting information to various care management organizations. In that capacity, she collected from providers information about their health status, demographics, and various numerical identifiers. She had additional responsibilities for credit card payment processing that involved handling confidential medical information from patients, including their diagnoses and demographics. In March 2012, Franklin was moved from a private office to a cubicle.

That move triggered a series of complaints by Franklin premised on the notion that working in a cubicle would expose providers’ and patients’ protected health information to the general public in violation of the law. In March 2012, she expressed concerns to her supervisors that moving to a cubicle could violate the confidentiality requirements of the federal Health Insurance Portability and Accountability Act. Later that month, she filed an internal written grievance to that effect. In July 2012, the County’s grievance review committee sent Franklin a recommended settlement order, approved by the County manager, finding that the health department had not erred in its practices and thus denying Franklin’s grievance. The grievance committee recommended that the health department provide a secured office for Franklin or any other employee processing documents containing confidential health information.

Franklin contends that she experienced retaliation as a result of her grievance. After she filed her grievance, on or around August 27, 2012, her credit card processing duties were assigned to another employee, who was moved from a cubicle to an office. Her credentialing duties were assigned to another employee on or around October 12, 2012. She claims that she was not informed of those duty reassignments until an October 24, 2012 meeting with management.

Franklin also claims that she experienced other retaliation in her day-to-day interactions with management. She contends she was denied a request to attend a certain training, learning on or around October 17, 2012, that she was not invited. Franklin notes that she asked to leave work early in December 2012 but that request was denied (although she left work early, anyway, and was not disciplined). She complains that management ignored other leave requests after she filed her grievance, including in early 2013. She points to an April 2014 incident in which management required an original of her absence excuse for some volunteer work, claiming that also was retaliation. Franklin also alleges that management required her to submit documents for jury duty leave that were not required of others, required a doctor’s note after she took one day of intermittent Family and Medical Leave Act leave, and generally harassed her for an inability to complete her work in a timely manner and made it harder for her to do her job; it is not apparent from the record when those particular events occurred, however.

Franklin also claims that the County retaliated by failing to hire her for two job transfers for which she applied. She applied for a program administrator’s position in July 2012 and was interviewed in August 2012, but a County official said that she did not get the job because of her low interview scores. She also applied for a health program manager position but was informed by the County’s recruiting division on January 25, 2013, that she had not been selected because she did not meet the minimum requirements for the position. Franklin filed a second grievance that same month, claiming retaliation and seeking transfer out of her department, which was denied in June 2013.

The County moved for summary judgment partly on the basis that the October 11, 2013 filing of Franklin’s lawsuit was time-barred, either in whole or in part, because the first instance of retaliation alleged by Franklin, her reassignment from an office to a cubicle, occurred in March 2012. In ultimately granting the County’s motion, the trial court ruled that there were “no material facts at issue for determination at trial” and the County was “entitled to judgment as a matter of law as a result of Plaintiff’s failure to timely file her lawsuit[.]” Franklin argues that the trial court erred in granting summary judgment to the County on the ground that she failed to timely file her lawsuit.

The Georgia Whistleblower Act (“the Act”) provides that a public employee who experiences retaliation in violation of the statute may file a lawsuit “within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier.” OCGA § 45-l-4(e)(l). The Act’s definition of “retaliation,” the discovery of which triggers the running of the statute of limitations, includes “the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action[,]” OCGA § 45-l-4(a)(5), indicating that any discrete adverse employment action can create a cause of action and, upon discovery, trigger the running of the statute of limitations.

Franklin argues on appeal that her cause of action accrued on October 24,2012, when her supervisor informed her in a meeting that her job duties of credentialing and credit card reporting had been assigned to another employee. Therefore, she argues, she timely filed her complaint within one year, on October 11, 2013. However, the County accurately points out that Franklin did not take this position in the trial court below. Franklin stated in her response to the County’s motion for summary judgment that the first adverse employment action against her occurred on August 27, 2012, when her supervisor assigned Franklin’s credit card processing duties to another employee. Franklin’s response to the motion argued that the statute of limitations was tolled through May 30, 2013, while she exhausted her administrative remedies through the grievance process.

The County rightly points out that “[ejach party has a duty to present his best case on a motion for summary judgment.” Pfeiffer v. Ga. Dep't of Transp., 275 Ga. 827, 828 (2) (573 SE2d 389) (2002). However, here the issue is an affirmative defense on which the County bore the ultimate burden of proof, and it was not Franklin’s obligation to argue before the trial court that the County had not met its burden. See Falanga v. Kirschner & Venker, P.C., 286 Ga. App. 92, 97 (1) (b) (648 SE2d 690) (2007) (no waiver based on failure to argue in response to summary judgment motion on fraudulent billing claim that certain bills fell within the statute of limitations); see also Dental One Assocs. v. JKR Realty Assocs., 269 Ga. 616, 618 (1) (501 SE2d 497) (1998) (“It is not the obligation of the non-moving party to object to the movant’s failure to meet its evidentiary burden.”). Franklin did not make an admission that she had, in fact, been informed of the change in her duties on August 27, 2012, as suggested by the County Rather, she took a legal position as to when the statute of limitations began to run. The County seeks to require this Court to accept that legal proposition, even if it is wrong. This it cannot do. Cf. Tiller v. State, 314 Ga. App. 472, 474 (3) n.2 (724 SE2d 397) (2012) (court not bound by party’s concession on appeal).

Moreover, the parties appear to be unduly focused on when Franklin learned that her credit card processing and credentialing duties had been taken away These are not the only instances of retaliation alleged by Franklin. As noted above, the Act instructs us that any discrete adverse employment action can create a cause of action and thereby trigger the running of the statute of limitations upon discovery. We therefore consider each act of retaliation alleged by Franklin separately.

This is consistent with the United States Supreme Court’s approach to Title VII cases, as set forth in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (122 S. Ct. 2061, 153 LE2d 106) (2002). There, the Court held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., “precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period.” Id. at 105 (emphasis added). In supplemental briefing requested by the Court, Franklin offers a thoughtful analysis as to why this approach does not apply to retaliation claims under the Act, including concerns that it is at odds with the Act’s rule that the limitations period begins to run when the employee receives notice of the adverse employment action. Franklin is correct that the one-year limitations period found in OCGA § 45-1-4(e)(1) begins to run when the employee receives notice of the adverse employment action, whereas the relevant limitations period construed by the Supreme Court began to run when the alleged unlawful employment practice “occurred.” Compare OCGA § 45-1-4(e)(1) with 42 U.S.C. § 2000e-5(e)(1). We nonetheless find the Supreme Court’s approach to be a helpful framework to the extent that it counsels consideration of adverse employment actions one-by-one. Cf. Tuohy v. City of Atlanta, 331 Ga. App. 846, 848-49 (1) (771 SE2d 501) (2015) (approving application of Title VII’s burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (93 S. Ct. 1817, 36 LE2d 668) (1973) to retaliation claims brought under the Act).

Given the lack of evidence as to the exact timing of some of the acts of retaliation complained of by Franklin, it also is important to remember which party bears the burden of proof when a statute of limitations defense is raised on summary judgment. That a lawsuit is untimely filed under a given statute of limitations generally is an affirmative defense that must be proven by a defendant raising it as a basis for summary judgment. See Cleaveland, v. Gannon, 284 Ga. 376, 381 (2) (667 SE2d 366) (2008) (medical malpractice claim); Porex Corp. v. Haldopoulos, 284 Ga. App. 510, 511 (644 SE2d 349) (2007) (claim under Georgia Trade Secrets Act). A defendant moving for summary judgment based on an affirmative defense may not simply rely upon an absence of evidence in the record disproving the affirmative defense but must come forward with evidence demonstrating as a matter of law that the suit was filed too late. See Porex, 284 Ga. App. at 511.

Applying these standards, we find that the County has not proven that Franklin’s claimed instances of retaliation are barred by the statute of limitations. Regarding her claim that her duties were taken away from her in retaliation for her grievance, Franklin has presented evidence — a combination of her deposition testimony and averments in her verified complaint — that she did not learn of those changes until an October 24, 2012 meeting. Although we find it puzzling that someone could be relieved of her core job duties and not realize it for two months, that sort of credibility question creates an issue of fact for a jury, not an appellate court. See Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75, 84 (3) (779 SE2d 334) (2015) (when a court considers a motion for summary judgment, it must accept the credibility of the evidence upon which the nonmoving party relies).

Decided June 3, 2016.

Torin D. Togut, for appellant.

Kaye W. Burwell, Kristen B. Williams, Banna R. Hill, A. Jonathan Jackson, for appellee.

As for Franklin’s other allegations of retaliation, the County has pointed to no evidence demonstrating that they are time-barred. She points to specific instances of retaliation that came to her attention within one year of the filing of her suit on October 11, 2013: not being invited to a training, the denial of a leave request and other leave requests being ignored, and a request for an original volunteer work excuse. For other claimed acts of retaliation, the record does not contain evidence of when they might have occurred, and, again, it is the County’s burden to show that they are time-barred. The County presented an affidavit to the effect that Franklin was interviewed for the program administrator’s position in August 2012 but no evidence of when the decision not to hire Franklin was made, let alone when she discovered it. And an affidavit by another County witness demonstrated that Franklin was informed of her non-selection for the health program manager position in January 2013, well within the statute of limitations. Whether these alleged acts were significant enough to constitute retaliation is a separate question. In the absence of a ruling below, we decline to address it in this appeal. The trial court erred in granting summary judgment to the County based on the statute of limitations governing Franklin’s claims.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       Although Franklin contends on appeal that her amended complaint was verified and cites to its factual statements in her appellate briefing, the record shows that the amended complaint was not verified, and we do not consider the amended complaint as equivalent to an affidavit.

       Franklin also appeals on the basis that the trial court erred in granting summary judgment to the County on the ground that Franklin could not establish a prima facie case under the Georgia Whistleblower Act. This argument, and the County’s response to it, are premised on the assumption that the trial court provided two alternative bases for its grant of summary judgment. That assumption is erroneous: the trial court merely said that the case could be resolved based on Franklin’s failure to timely file, an issue that, in the trial court’s estimation, presented no genuine disputes of material fact for trial. We disagree with that conclusion, but nothing prevents the trial court from considering on remand the County’s alternative argument for summary judgment.

       In its reply brief filed with the trial court, the County noted that there is no requirement that a plaintiff under the Act exhaust her administrative remedies. The U.S. Court of Appeals for the Eleventh Circuit in an unpublished decision implicitly rejected the notion that there is an exhaustion requirement that can toll the statute in Georgia Whistleblower Act cases. See Stokes v. Savannah State Univ., 291 Fed. App’x 931, 932 (11th Cir. 2008). Because the question of an exhaustion requirement is not at issue here, we do not consider or decide it.

       The Court also held that “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period.” Morgan, 536 U. S. at 105. As Franklin has conceded that she did not allege a hostile working environment claim under a continuing violation theory in her complaint, we need not consider whether the Act contemplates such a claim or, if it does, how the limitations rule might apply.

       At one point in her deposition, Franklin testified that she thought being moved to a cubicle in March 2012 was itself an act of retaliation. Of course, this is nonsensical, as it predated her grievance that allegedly caused the County to retaliate against her. Franklin conceded as much in disavowing any such claim in her response to the County’s summary judgment motion, which premised its timeliness argument on the notion that the move to a cubicle was Franklin’s first claimed act of retaliation.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A14A1824.
    A14A1825.
    SMITH v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. CHUPP v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (789 SE2d 193)
   PHIPPS, Presiding Judge.

In Ga. Farm Bureau Mut. Ins. Co. v. Smith, the Supreme Court of Georgia reversed this court’s decision in Smith v. Ga. Farm Bureau Mut. Ins. Co. Accordingly, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and affirm the trial court’s judgments.

Decided June 7, 2016.

Jonathan W. Johnson; Childers, Schlueter & Smith, C. Andrew Childers, for appellant (case no. A14A1824).

Strauss & Frost, John L. Strauss, for appellant (case no. A14A1825).

James Bates Brannan Groover, DukeR. Groover, LeeM. Gillis, for appellee.

Judgments affirmed.

Ellington, P. J., and McMillian, J., concur.

       298 Ga. 716 (784 SE2d 422) (2016).

       331 Ga. App. 780 (771 SE2d 452) (2015).


author: MILLER, Presiding Judge.

text:
    A16A0139.
    COVAULT v. HARRIS.
    (787 SE2d 272)
   MILLER, Presiding Judge.

Chris Covault filed this action against Kentucky resident Austin Harris under the Georgia Nonresident Motorist Act (“NRMA”) to recover damages arising from a motor vehicle accident. Harris moved to dismiss the complaint for lack of personal jurisdiction because Covault failed to exercise due diligence in ensuring proper service upon a nonresident motorist. The trial court granted Harris’s motion to dismiss because Covault had failed to effect service upon Harris by certified mail under the NRMA and because the statute of limitation had expired. Covault appeals, contending that the trial court erred in granting Harris’s motion to dismiss. For the reasons that follow, we affirm.

A trial court’s finding of insufficient service of process will be upheld on appeal absent a showing of an abuse of discretion. Factual disputes regarding service are to be resolved by the trial court, and the [trial] court’s findings will be upheld if there is any evidence to support them.

(Citations and punctuation omitted.) Williams v. Wendland, 283 Ga. App. 109 (640 SE2d 684) (2006).

So viewed, the record shows that, on February 16, 2013, both Harris and Covault were driving northbound on Peachtree Street in Fulton County, Georgia. When they reached the intersection of Peachtree Street and John Wesley Dobbs Avenue, Harris failed to maintain his lane and struck Covault’s vehicle.

At the time of the accident, Harris was a resident of Kentucky, he was driving a rental car, and he provided a Kentucky driver’s license to the investigating officer. The police report listed Harris’s address as 5406 Heafer Farm Lane, Louisville, KY (“Heafer Farm Lane address”), but did not include his apartment number.

In January 2015, Covault’s counsel learned through a hired investigator that Harris was registered to vote at the Heafer Farm Lane address, Unit 204. Covault’s counsel also learned of several other possible addresses for Harris. One of those addresses was 5509 Fernfield Drive, Apt. 302, Louisville, KY (“Fernfield Drive address”).

Covault filed his complaint against Harris on January 26, 2015. On February 5, 2015, Covault’s counsel attempted to serve Harris by sending a copy of the complaint and summons via certified mail to the Fernfield Drive address. Covault’s counsel also sent a copy of the complaint and summons by certified mail to 430 South 21st Street, Paducah, KY (“the 21st Street address”). Covault admits that both of these certified mail packages have been reported unclaimed.

Less than a week later, Covault served a copy of the complaint and summons on Georgia’s Secretary of State. Thereafter, on February 16, 2015, the two-year statute of limitation for personal injury actions expired. See OCGA § 9-3-33. On April 17, 2015, Harris filed a special appearance answer in which he raised the defenses of insufficient service of process and lack of personal jurisdiction. Thereafter, on June 1, 2015, Harris moved to dismiss Covault’s complaint for lack of personal jurisdiction. Harris also argued in his motion to dismiss that the statute of limitation had expired and Covault could not meet his burden of demonstrating reasonable diligence, even if he perfected service on Harris in the future. On June 2, 2015, Covault finally attempted to serve Harris via certified mail at the Heafer Farm Lane address. That copy of the complaint and summons was returned to Covault as “unclaimed.”

On July 9, 2015, the trial court granted Harris’s motion to dismiss, finding that the statute of limitation had expired and Covault failed to effect service upon Harris by certified mail under the NRMA. This appeal ensued.

In his sole enumeration of error, Covault contends that the trial court erred in dismissing his complaint. Covault argues that he complied with the NRMA by serving the Secretary of State and by sending the complaint and summons via certified mail to the Fern-field Drive and 21st Street addresses, as well as the Heafer Farm Lane address. We disagree.

OCGA § 40-12-2 provides that service of process upon a nonresident pursuant to [OCGA §] 40-12-1 shall be made by serving a copy of the complaint or other pleading with summons attached thereto on the Secretary of State, his duly authorized agent, or his successor in office, along with a copy of the affidavit to be submitted to the court pursuant to [OCGA § 40-12-2]. Such service shall be sufficient service upon any such nonresident, provided that notice of such service and a copy of the complaint and process are forthwith sent by registered or certified mail or statutory overnight delivery by the plaintiff to the defendant^]

(Punctuation omitted.) Nolan v. Jowers, 280 Ga. App. 815, 816-817 (635 SE2d 211) (2006). “[T]he statute is in derogation of common law and must be strictly construed and fully complied with before a Georgia court may obtain jurisdiction over the nonresident.” (Citation omitted.) Tate v. Hughes, 255 Ga. App. 511, 512 (565 SE2d 853) (2002). Accordingly, OCGA § 40-12-2 does not merely require service upon the Secretary of State to effectuate service upon a nonresident. Rather, in order to perfect service on the defendant,

the plaintiff must also serve the defendant by registered or certified mail or statutory overnight delivery, if his address is known, and the defendant’s return receipt and the plaintiff’s affidavit of compliance that he has so served the defendant must be filed with the summons, complaint, and other papers in the case in the court wherein the action is pending.

(Footnote omitted; emphasis supplied.) Nolan, supra, 280 Ga. App. at 817.

Here, the record clearly shows that Covault failed to comply with the service requirements of the NRMA. Personal service is an area of the law where the letter of the law must be complied with strictly. See Williamson v. Basenback, 298 Ga. App. 567, 568 (680 SE2d 577) (2009) (“We strictly construe statutes addressing personal service, and absent proper service, the [trial] court obtains no personal jurisdiction over the defendant.”) (citations omitted). That was not done in this case. Notably, Covault knew that Harris resided at the Heafer Farm Lane address at the time of the accident, and he confirmed that Harris was registered to vote at this address on the same day that he filed his complaint. Nevertheless, Covault made no attempt to serve Harris at the Heater Farm Lane address until nearly four months after the statute of limitation expired. Accordingly, Covault failed to perfect service on Harris under the NRMA.

Decided June 7, 2016.

Lazenby Law Group, Kyle M. Moore, for appellant.

Levy & Pruett, Susan J. Levy, for appellee.

Contrary to Covault’s argument, this Court’s decision in Tate, supra, does not require a different, conclusion. In Tate, this Court held that, where the statute is strictly complied with, the NRMA does not require a plaintiff to attach a return receipt from the defendant to his pleadings in order to perfect service under the Act. Tate, supra, 255 Ga. App. at 512-513. Here, prior to the expiration of the statute of limitation, Covault failed to comply with the statute’s requirement that he serve Harris at his known address. Because Covault failed to strictly comply with the requirements for perfecting service under the NRMA, the trial court did not obtain jurisdiction over Harris. See id. at 512-513; OCGA § 40-12-2. Accordingly, this Court has no choice except to honor the trial court’s decision to dismiss this action for failure to comply with the NRMA.

Judgment affirmed.

McFadden, J., concurs. McMillian, J., concurs in judgment only.


text:
    A16A0517.
    COLEMAN v. THE STATE.
    (787 SE2d 274)
   PHIPPS, Presiding Judge.

On December 8, 2011, law enforcement officers executed a search warrant at an apartment being leased by Corey Ronqueze Coleman and discovered therein cocaine, marijuana, marijuana plants, and various drug paraphernalia such as boxes of plastic baggies, digital scales, and a notebook of instructions on cultivating marijuana plants. Coleman was indicted for possession of cocaine, manufacturing marijuana, and possession of marijuana with the intent to distribute. A jury found Coleman guilty as charged, and he was convicted thereon. Coleman filed a motion for new trial claiming ineffective assistance of trial counsel, but the trial court denied the motion. In this appeal, Coleman challenges the rejection of his ineffectiveness claim. We affirm.

Pursuant to Strickland v. Washington,

[i]n order to succeed on [a] claim of ineffective assistance, [a defendant] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different, if not for the deficient performance. If [the defendant] 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. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

1. Coleman complains that his trial lawyer failed to pursue a motion to suppress the drug evidence, arguing that the underlying search warrant was issued without the requisite showing of probable cause. At the hearing on Coleman’s motion for new trial, Coleman’s trial lawyer testified that he had not pursued a suppression motion because he had determined that such motion would not be granted. The lawyer further testified that he and Coleman had decided to pursue a defense that another individual was the sole resident of the apartment, which defense did not hinge upon suppressing the drug evidence.

“Where, as here, trial counsel’s failure to [pursue] a motion to suppress is the basis for a claim for ineffective assistance, the burden is on the appellant to make a strong showing that the damaging evidence would have been suppressed had counsel [pursued] the motion.” As explained below, Coleman has failed to meet his burden.

We first reiterate the standards applicable to the various levels of judicial scrutiny involved in the warrant process.

A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed. [] The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis set forth in Illinois v. Gates. [] The duty of the appellate courts is to determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrant. The Fourth Amendment requires no more.

Next, we turn to the circumstances presented by the instant case. On December 8, 2011, a narcotics officer with the Gwinnett County Police Department filed with the Magistrate Court of Gwinnett County an application seeking a warrant to search a specified apartment for marijuana and associated contraband. In support of the application, the officer presented the magistrate with his affidavit.

Coleman asserts, and the record supports, that no oral testimony was considered by the magistrate as part of the warrant application process. Coleman therefore posits that the magistrate’s finding of probable cause was based solely upon the officer’s affidavit. We thus focus on the information set forth within the four corners of the affidavit.

At the beginning of the affidavit, the officer set forth as background that, on December 8, 2011, two other police officers — Officer Copeland and Officer Nassery — approached a male who was walking within the apartment complex because those officers had discerned that the male was engaging in suspicious behavior. The affidavit, as Coleman particularly recites on appeal, went on to state:

Officer[s] Copeland and Nassery then made contact with the suspect who was identified as William Wilborn. Once Officer Copeland made contact with Wilborn he noticed a small white chunky substance in the males [sic] hand which based on his training and experience he recognized to be crack cocaine[.] Officer Copeland NIK tested the white chunky substance and received a positive response indicating the presence of cocaine. Officer Copeland then tried to retrieve the crack cocaine from Wilborn, where Wilburn [sic] in return attempted to flee. Abrief struggle between officers and Wilborn occurred, where Wilborns [sic] shirt came up and revealed that he has [sic] a small hand gun in his possession. Officers finally placed Wilborn in custody Officer Copeland then read Wilborn his Miranda rights which he stated he understood and wished to answer some questions. Officer Copeland asked Wilborn if he had anymore contraband in his possession and Wilborn stated he had some marijuana in his groin area. Officer Copeland NIK tested the marijuana and received a positive response indicating the presence [sic] marijuana. Wilborn stated he purchased the marijuana from a black male in an apartment located within the complex. He went on to state he and three other males were at the location to rob the individuals at the apartment for their illegal narcotics. Sgt. Tonelli . . . then spoke to Wilborn. Wilborn gave Sgt. Tonelli detailed directions to the apartment where he purchased the marijuana. The apartment in question turned out to be [the specific apartment leased by Coleman]. Wilburn [sic] stated while he was in the apartment purchasing the marijuana he saw what he believed to be two pounds of marijuana. He also stated there was a black female and black male inside. Wilborn stated the black male had a black handgun located on him. Wilborn stated he also saw two shotguns while in the apartment next tot [sic] the front door. Sgt. J. Morales . . . and Officer Nassery attempted to make contact with the occupants of the apartment and received no answer. While at the door both officers were able to smell the overwhelming smell of unburned marijuana coming from the door. Affiant believes there is enough probable cause to believe there will be more marijuana located at [the apartment specified] based on the following facts. First, the statement from William Wilborn where he stated he purchased marijuana from the apartment where [sic] stated he saw additional marijuana inside. And the fact that two officers smelled fresh unburned marijuana coming from the apartment. Affiant therefore requests a search warrant be issued for [the specified apartment].

Coleman maintains on appeal that the affidavit failed to supply an adequate basis for determining that probable cause existed because: the affidavit did not set forth sufficient facts from which the magistrate could ascertain the veracity of Wilborn, who had served as a key informant; the officers’ detection of the odor of marijuana at the apartment door was insufficient as a sole basis for establishing probable cause; the officers’ conduct at the apartment door amounted to an unlawful search; and the averring officer failed to apprise the magistrate of Wilborn’s prior convictions. According to Coleman, had his trial lawyer cited these “insufficiencies” in pursuing a suppression motion, the trial court would have been required to grant the motion. We cannot agree.

(a) Any deficiency in the affidavit with respect to Wilborn’s veracity was not fatal. Under the Gates analysis, an informant’s veracity, reliability, and basis of knowledge are neither

independently dispositive, [nor] irrelevant. They are instead several of a number of relevant factors, which we must review giving great deference to the magistrate’s determination of probable cause, keeping in mind that “affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation.”

Here, Wilborn’s tip that marijuana was being sold out of a particular apartment was sufficiently corroborated by: his own attempt to flee and brief struggle with the officers he encountered in the apartment complex’s parking lot; the police seizure of suspected illegal drugs and a handgun from Wilborn’s person; the results of immediate field testing by police indicating that the seized substances were cocaine and marijuana; and the police officers’ detection of a strong odor of unburned marijuana emanating from the exact apartment that Wilborn had identified. Indeed, case law prevailing at the relevant time — i.e., State v. Pando, State v. Charles, Shivers v. State, State v. Fossett, and Patman v. State — recognized that the odor of marijuana could be considered in determining whether, under the totality of the circumstances, probable cause existed to authorize the issuance of a search warrant.

In light of all the circumstances set forth in the affidavit, the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. Thus, contrary to Coleman’s claim on appeal, the trial court — bound to accord deference to the magistrate’s decision to issue a search warrant based on a finding of probable cause — would not have been required to grant a motion to suppress the drug evidence. We conclude, therefore, that Coleman has failed to demonstrate that his trial counsel performed deficiently by failing to pursue a suppression motion.

(b) In so concluding, we have determined that State v. Kazmierczak, relied upon by Coleman, does not control this case to an outcome in his favor.

Coleman points out that Kazmierczak overruled/disapproved (to the extent therein stated) cases including Pando, Charles, Shivers, Fossett, and Patman. Notwithstanding, Coleman’s “trial counsel was not ineffective for failing to predict [the 2015 decision].” And, at any rate, Kazmierczak is inapposite because it addressed the extent to which the odor of marijuana emanating from a specified location could be “the sole basis for the issuance of a search warrant for that location.” Here, as detailed above, the odor of marijuana emanating from the apartment was not the sole basis for the issuance of the search warrant.

(c) We have also found no merit in Coleman’s argument that the requisite showing of probable cause was not demonstrated because the officers’ detection of the odor of marijuana at the apartment door constituted an illegal search.

To support that argument, Coleman has relied upon Florida v. Jardines. In that case, the United States Supreme Court considered whether police use of “a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment.” The Court answered that question in the affirmative, and thus affirmed the decision invalidating a warrant that had been issued based upon information gathered as a result of that impermissible “search.”

Here, no drug-sniffing dog was employed to investigate the contents of the apartment. As set out in the affidavit, after Wilborn disclosed to police the apartment where he had purchased the marijuana seized from his person, two officers “attempted to make contact with the occupants of the apartment and received no answer. While at the door both officers were able to smell the overwhelming smell of unburned marijuana coming from the door.” Even Jardines reaffirmed the principle that “a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.” Accordingly, Coleman’s reliance upon Jardines is misplaced, and this challenge to the existence of probable cause is unavailing.

(d) Equally unavailing is Coleman’s assertion that the trial court would have granted a motion to suppress that pointed out that the affidavit contained no information about Wilborn’s prior convictions. According to Coleman, had the magistrate been so apprised, the magistrate would have found that Wilborn lacked veracity and thereupon refused to issue the warrant for want of a showing of probable cause.

At the hearing on his motion for new trial, Coleman showed that in 2008, Wilborn was convicted in Gwinnett County Superior Court for: (i) possessing cocaine in April 2007; and (ii) possessing marijuana and cocaine in June 2007.

“While attesting officers and magistrates should make every effort to see that supporting affidavits reflect the maximum indication of reliability, the absence of certain information, standing alone, such as the informant’s felony history ... is not determinative.” Here, the affidavit did not include Wilborn’s prior convictions for illegal marijuana and cocaine possession, but it plainly recounted that police had just seized from Wilborn what officers had field-tested and thereby believed to be cocaine; that quickly thereafter, police had discovered a handgun concealed under his clothing; that Wilborn had then revealed to police that he was also in possession of marijuana; that officers had thereupon seized from Wilborn a substance that they had field-tested and thereby believed to be marijuana; and that during their encounter with Wilborn, he had struggled with the officers and attempted to flee. Hence, in light of all the circumstances set forth in the affidavit, and guided by the standards applicable to the various levels of judicial scrutiny involved in the warrant process, we disagree with Coleman that the trial court would have granted a motion to suppress that urged the ground that the averring officer had not informed the magistrate of Wilborn’s drug possession convictions.

Decided June 7, 2016

2. Coleman complains that his trial lawyer did not object at trial to the admission of the drug evidence obtained during the search. Again, Coleman asserts that the underlying warrant was not supported by probable cause. Because the trial court would have correctly overruled an objection lodged on that basis, this complaint fails to show any deficiency in trial counsel’s performance.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, Marlene S. Zekser, Assistant District Attorney, for appellee.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (citations and punctuation omitted).

        Smith v. State, 296 Ga. 731, 733 (2) (a) (770 SE2d 610) (2015) (citation omitted).

       OCGA§ 17-5-21 (a).

       462 U. S. 213 (103 SCt 2317, 76 LE2d 527) (1983).

        State v. Palmer, 285 Ga. 75, 77-78 (673 SE2d 237) (2009) (citations and punctuation omitted).

        Curry v. State, 255 Ga. 215, 217 (1) (336 SE2d 762) (1985), citing Gates, supra, 462 U. S. at 235; see Palmer, supra at 79.

       Coleman’s trial was conducted in January 2013.

       284 Ga. App. 70 (643 SE2d 342) (2007), overruled to the extent stated in State v. Kazmierczak, 331 Ga. App. 817, 823 (771 SE2d 473) (2015). The Kazmierczak decision, as expressed in State v. Camp, 335 Ga. App. 730, 732, n. 1 (782 SE2d 819) (2016), “modified the doctrine in Georgia law that had previously held that evidence regarding the odor of marijuana alone was insufficient to establish probable cause for a warrant.”

       264 Ga. App. 874 (592 SE2d 518) (2003), disapproved to the extent stated in Kazmierczak, supra.

       258 Ga. App. 253 (573 SE2d 494) (2002), disapproved to the extent stated in Kazmierczak, supra.

       253 Ga. App. 791 (560 SE2d 351) (2002), disapproved to the extent stated in Kazmierczak, supra.

       244 Ga. App. 833 (537 SE2d 118) (2000).

        Pando, supra at 76-77 (2) (a) (“[T]he odor of marijuana may be considered as part of the totality of circumstances in determining whether there is sufficient probable cause to support a search warrant.”) (citation omitted); Charles, supra at 876 (2) (“[T]he odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, probable cause exists to authorize the issuance of a search warrant.”) (citations and punctuation omitted); Shivers, supra at 257 (“The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, probable cause exists to authorize the issuance of a search warrant.”) (footnote omitted); Patman, supra at 835 (“The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, an officer had probable cause to institute a search.”) (footnote omitted); Fossett, supra at 793 (1) (“The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, an officer had probable cause to institute a search.”) (citation and punctuation omitted).

       See Cochran v. State, 281 Ga. 4, 5-6 (635 SE2d 701) (2006) (rejecting claim that warrant was invalid because the underlying affidavit contained information from a third party then unknown to police, where the affidavit otherwise informed the magistrate “of some of the underlying circumstances supporting the affiant’s underlying conclusions,” and therefore ‘the warrant did not rest solely on the reliability of [the third party]”); Martinez-Vargas v. State, 317 Ga. App. 232, 236-239 (1) (730 SE2d 633) (2012) (concluding that affidavit showed probable cause to search residence, where information in affidavit reflected that a compressed marijuana bud had been found in trash of the residence; that, based upon the averring officer’s knowledge, training, and experience, the bud was from a large bale of marijuana; and that a lieutenant had smelled raw marijuana while standing near the garage, notwithstanding the lack of facts in the affidavit reflecting that the lieutenant had knowledge, training, or experience to identify that specific odor because “when a police officer supplies information to another officer that the latter then includes in a search warrant affidavit, the reliability of the officer informant can be presumed when assessing whether probable cause exists for issuance of the warrant”) (citations omitted), disapproved to the extent stated in Kazmierczak, supra; see generally Bigby v. State, 250 Ga. App. 529-530 (1) (552 SE2d 129) (2001) (probable cause arose from “odor of marijuana, together with [suspect’s] flight”).

        See Palmer, supra; Martinez-Vargas, supra; see generally Bigby, supra.

        See Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467) (2014) (“[T]he failure to make a meritless motion or objection does not provide a basis upon which to find ineffective assistance of counsel.”).

       Supra.

       See id. at 823 (disapproving a line of cases to the extent stated therein).

        Hill v. State, 290 Ga. 493, 499 (7) (722 SE2d 708) (2012) (citation and punctuation omitted); Deleon-Alvarez v. State, 324 Ga. App. 694, 708 (7) (751 SE2d 497) (2013) (same); see Rickman v. State, 277 Ga. 277, 280 (2) (587 SE2d 596) (2003) (noting that “in making litigation decisions, there is no general duty on the part of defense counsel to anticipate changes in the law”) (punctuation and footnote omitted).

        Kazmierczak, supra at 823 (emphasis supplied).

       See Division 1 (a), supra.

       _U. S._ (133 SCt 1409, 185 LE2d 495) (2013).

       Id. at 1413 (emphasis supplied).

       Id. at 1417-1418 (III).

       See id. at 1414 (I).

       Id. at 1416 (II) (B) (citation and punctuation omitted).

       See id.; State v. Schwartz, 261 Ga. App. 742, 744 (1) (583 SE2d 573) (2003) (“Undoubtedly, an officer may knock on the outside door of a home without implicating the Fourth Amendment.”) (footnote omitted); Strozier v. State, 244 Ga. App. 514, 515 (535 SE2d 847) (2000) (“[W]hen a police officer enters private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated. After all, such an officer is merely taking the same route as would any guest or other caller.”) (citation and punctuation omitted).

        Bussey v. State, 263 Ga. App. 56, 62 (3) (587 SE2d 134) (2003) (punctuation andfootnote omitted).

       “If information is knowingly or recklessly omitted, . . . suppression could result.” Id. (footnote omitted). But Coleman makes no assertion that the cited omission was knowingly or recklessly made.

       See Palmer, supra at 78 (“If any omissions on the part of the officer are offset by independent corroboration of criminal activity, then the magistrate may still have sufficient information to find that probable cause exists.”) (punctuation omitted). Accord Cochran, supra at 6 (rejecting argument that the confidential drug informant was unreliable because such Cl had admittedly participated in the commission of a drug crime, reasoning that if Cl told police that “he was participating in . . . illegal activity, Cl would be making a statement against his penal interest, which elevates the reliability of that statement”) (emphasis supplied).

        See Palmer, supra at 77-78.

       See id. at 78 (reasoning that, although the appellant argued that the search warrant was deficient because the attesting officer “offered no information to the magistrate as to the reliability of the unnamed Cl and he failed to disclose that the Cl had a criminal background, these uncontroverted omissions [did] not necessarily warrant suppression of the evidence”); Bussey, supra (rejecting argument that, because the affidavit omitted information about the informant’s paid status, the search warrant was invalid, where the omission was adequately “offset” by other facts provided to the magistrate); Roberson v. State, 246 Ga. App. 534, 537 (1) (540 SE2d 688) (2000) (rejecting argument that, because the attesting investigator did not disclose to the magistrate ‘the charges pending against the informant or the favorable treatment he received in exchange for his cooperation,” the magistrate could not determine the informant’s reliability, where the omissions were offset by other facts provided to the magistrate).

       See Division 1, supra.

       See Hampton, supra.


author: Dillard, Judge.

text:
    A16A0555.
    THE STATE v. BOWMAN.
    (787 SE2d 284)
   Dillard, Judge.

Following a hearing, the trial court granted Philip Bowman’s motion to suppress the results of a State-administered blood test. The State now appeals that ruling, arguing that the trial court erred in finding that Bowman did not voluntarily consent to the test. For the reasons set forth infra, we affirm.

At the outset, we note that when the facts material to a motion to suppress are disputed, “it generally is for the trial judge to resolve those disputes and determine the material facts.” This principle is well established, and our Supreme Court has “identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts.” An appellate court generally must (1) accept a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court. However, we review de novo the trial court’s “application of law to the undisputed facts.”

So viewed, the record shows that shortly after 1:00 a.m. on January 26, 2014, a Gwinnett County police officer responded to a dispatch regarding a one-vehicle accident on a nearby road in Dacula. Upon arrival, the officer observed that the vehicle had driven off the road and hit a fence and some trees. The vehicle appeared totaled, but fire-department personnel already on the scene informed the officer that the driver, ultimately identified as Bowman, suffered only minor injuries. The officer then spoke to Bowman and immediately noticed that he was unsteady on his feet and emanated a strong alcoholic-beverage odor. Based on these observations, the officer requested that a DUI task-force officer be dispatched to the scene.

Not long thereafter, the DUI task-force officer arrived and, upon making contact with Bowman, noticed the wrecked vehicle and that Bowman hada small cut on his forehead but otherwise did not appear seriously injured. The officer also noticed that Bowman had bloodshot eyes, slurred speech, and emanated a strong alcoholic-beverage odor. Additionally, Bowman was very unsteady on his feet, and thus, the officer had him sit on the bumper of the patrol vehicle while questioning him. During the officer’s questioning, Bowman admitted that he had consumed several beers, that he was only 20 years old, and that his driver’s license was still in his vehicle. At that point, the officer asked Bowman to perform certain field-sobriety tests. And although Bowman repeatedly muttered that he was “going to jail anyway,” he allowed the officer to conduct the horizontal gaze nystagmus (HGN) test, which indicated that he was impaired. The officer then asked Bowman to take a portable aleo-sensor test, but Bowman refused, again stating that he was “going to jail anyway.”

Based on all of his observations, the task-force officer determined that Bowman was under the influence of alcohol to the extent that he was a less-safe driver and placed him under arrest. The officer then read Bowman Georgia’s implied-consent notice for drivers under the age of 21 two separate times and asked if Bowman would submit to a State-administeredbreath test, to which Bowman responded, “F*** it, man, why not?” However, while being transported to the jail, Bowman vomited on the back seat of the officer’s patrol vehicle and, at one point, seemed to be choking. After determining that Bowman could breathe, the officer took him inside the jail for booking. But upon observing Bowman, the nurse on staff refused to admit him and directed the officer to take Bowman to Gwinnett Medical Center for evaluation. Once there, the officer once again read the applicable implied-consent warning, and this time, asked if Bowman would submit to a blood test. Bowman, lying in a hospital bed, replied saying, “yeah, whatever you got to do.” And subsequently, with the officer present, hospital personnel drew Bowman’s blood for testing.

Thereafter, the State charged Bowman, via accusation, with driving under the influence of alcohol to the extent that he was a less-safe driver (DUI less safe), driving under the influence of alcohol with an excessive blood-alcohol concentration (DUI per se), driving with more than 0.02 percent blood-alcohol content while under the age of 21, underage possession of an alcoholic beverage, and failure to maintain lane. Bowman subsequently filed a motion to suppress the results of the State-administered blood test, arguing, inter alia, that he did not voluntarily consent but merely acquiesced to the test.

During the hearing on Bowman’s motion to suppress, only the responding police officers testified. Both agreed that Bowman appeared intoxicated and that, although he only had a small cut on his forehead, the damage to his vehicle showed that his collision was not insignificant. Nevertheless, the DUI task-force officer testified that Bowman did not appear to have difficulty understanding his questions or communicating generally. The State also played a recording, which was captured by the recording device on the dashboard of the task-force officer’s vehicle and provided video and audio of the officer’s interaction with Bowman at the scene and additional audio for a short period of time after Bowman was placed in the back seat of the patrol vehicle, during which Bowman made unprompted comments about playing basketball with his brother.

At the hearing’s conclusion, the trial court took the matter under advisement. But one month later, the court issued an order granting Bowman’s motion to suppress. This appeal follows.

In its sole enumeration of error, the State contends that the trial court erred in granting Bowman’s motion to suppress the results of the State-administered blood test, arguing that the court did not consider the totality of the circumstances in finding that Bowman did not voluntarily consent to the test. We disagree.

It is now well established that a suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures “applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution.” Generally, searches are of two types: “those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.” Accordingly, a warrantless search is “presumed to be invalid, and the State has the burden of showing otherwise.”

One well-recognized exception to the warrant requirement in the context of a State-administered blood test is “the presence of exigent circumstances.” But in Missouri v. McNeely, the Supreme Court of the United States rejected a per se rule that the natural metabo-lization of alcohol in a person’s bloodstream constitutes an exigency justifying an exception to the Fourth Amendment’s search-warrant requirement for nonconsensual blood testing in all DUI cases. Rather, it held that “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, ... it does not do so categorically.” And thus, whether a warrantless blood test of a drunk-driving suspect is reasonable “must be determined case by case based on the totality of the circumstances.” In this matter, however, the State does not argue that exigent circumstances supported drawing Bowman’s blood, but instead, as previously noted, posits that Bowman consented to the test. Thus, we turn our analytical focus to the issue of consent.

It is similarly well settled in the context of a DUI blood draw that “a valid consent to a search eliminates the need for either probable cause or a search warrant.” Historically, Georgia’s appellate courts considered “a defendant’s affirmative response to the reading of the implied consent notice as sufficient to allow a search of his or her bodily fluids without further inquiry into the validity of the defendant’s consent.” But in Williams v. State, the Supreme Court of Georgia held that “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.” Instead, the Williams Court concluded that the State must show that a suspect “gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances.”

Specifically, under Georgia law, voluntariness must “reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority.” Consequently,

[t]he voluntariness of consent to search is measured by evaluating the totality of the circumstances, which includes factors such as prolonged questioning; the use of physical punishment; the accused’s age, level of education, intelligence, length of detention, and advisement of constitutional rights; and the psychological impact of these factors on the accused.

And while knowledge of the right to refuse consent is one factor to be taken into account, the government “need not establish such knowledge as the sine qua non of an effective consent.” Rather, the court should consider whether “a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.”

In reviewing the record in this matter, including the video-recording of the DUI task-force officer’s interaction with Bowman at the scene of the accident, there is no evidence that either officer threatened Bowman or prolonged his detention unnecessarily in an effort to obtain his consent to the blood test. However, the evidence did show that Bowman had been in a significant accident, suffered a cut to his head, and was so unsteady on his feet at the scene that the task-force officer directed him to sit on the bumper of the patrol vehicle while he questioned him. And as previously noted, Bowman was 20 years old at the time, but the task-force officer made no specific inquiries as to his level of education. In addition, following Bowman’s arrest, the task-force officer read him Georgia’s implied consent notice for drivers under the age of 21, but did not inform Bowman of his constitutional rights under Miranda v. Arizona. And while the task-force officer testified that Bowman appeared to understand the implied-consent notice, his response to most of the officer’s questions— which Bowman repeated numerous times during the encounter— was that nothing mattered and he “was going to jail anyway.” Furthermore, both officers agreed that Bowman was significantly intoxicated during the encounter, and in fact, the evidence showed that he made nonsensical comments about playing basketball with his brother and vomited in the back of the patrol vehicle to the extent that he seemed to be choking. Indeed, upon arriving at the jail, Bowman’s condition was such that the on-site nursing staff would not admit him and directed the task-force officer to take him to a nearby hospital.

Evaluating the totality of these circumstances, we are reminded that “in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress.” And here, the evidence supports the trial court’s findings and certainly does not demand a conclusion contrary to the court’s ruling.

Nevertheless, noting its legitimate interest in combating the deleterious effects of drunk-driving, the State argues that the trial court’s mere consideration of whether Bowman’s intoxication affected his ability to voluntarily consent allows DUI suspects to employ the very behavior the State is attempting to thwart as a shield to any prosecution of such behavior. But our Supreme Court has previously held that a trial court may consider a suspect’s lucidity and ability to comprehend questions in determining whether that suspect’s statements were rendered involuntary as a result of intoxication. Thus, we see no logic to any argument that intoxication should not also be a factor in determining whether a suspect’s consent to a search is truly voluntary. Moreover, in its haste to condemn the trial court’s ruling as an across-the-board preclusion of DUI per se prosecutions, the State neglects to mention that nothing in the court’s ruling prevents the State from obtaining a warrant to draw a suspect’s blood in situations, such as this, in which the voluntariness of a suspect’s consent is difficult to determine. And while obtaining a warrant no doubt imposes more of a burden on police officers than simply reading the implied-consent notice, “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Decided June 7, 2016.

Rosanna M. Szabo, Solicitor-General, Amina Bakari, John B. Weitnauer, Nicole Wong, Assistant Solicitors-General, for appellant.

Stein & Ward, George A. Stein, T. Kevin Mooney, for appellee.

For all of the foregoing reasons, we affirm the trial court’s order granting Bowman’s motion to suppress the results of the State-administered blood test.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015); see also Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Hughes, 296 Ga. at 746 (1); see also May v. State, 334 Ga. App. 807, 807 (780 SE2d 455) (2015); Armentrout v. State, 332 Ga. App. 370, 371 (772 SE2d 817) (2015).

        Hughes, 296 Ga. at 746 (1); see also May, 334 Ga. App. at 807; Armentrout, 332 Ga. App. at 371-72.

        State v. Conner, 322 Ga. App. 636, 637 (745 SE2d 837) (2013) (punctuation omitted); see also Armentrout, 332 Ga. App. at 372.

        See OCGA § 40-6-391 (a) (1).

        See OCGA § 40-6-391 (a) (5).

        See OCGA § 40-6-391 (k) (1).

        See OCGA § 3-3-23 (a) (2).

        See OCGA § 40-6-48 (1).

        See OCGA § 5-7-1 (a) (4) (permitting a direct appeal when the State’s evidence has been ruled inadmissible).

        Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015); see also Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003) (“A suspect’s Fourth Amendment right to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood.” (punctuation omitted)).

        Williams, 296 Ga. at 819; see also Coolidge v. New Hampshire, 403 U. S. 443, 454-55 (II) (91 SCt 2022, 29 LE2d 564) (1971) (noting that searches conducted without prior approval of a judge or magistrate are per se unreasonable).

        Williams, 296 Ga. at 819; see also Mincey v. Arizona, 437 U. S. 385, 393-94 (I) (98 SCt 2408, 57 LE2d 290) (1978) (noting that warrants are generally required to search a person’s home or person).

        Williams, 296 Ga. at 819.

       569 U. S._ (133 SCt 1552, 185 LE2d 696) (2013).

        Id. at 1556.

        Id. at 1563 (II) (B); accord Williams, 296 Ga. at 821.

        McNeely, 133 SCt at 1563 (II) (B); accord Williams, 296 Ga. at 821.

        Williams, 296 Ga. at 821; see also Cooper, 277 Ga. at 291 (VI) (noting that a suspect’s valid consent to search eliminates the need for either probable cause or a search warrant).

        Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016); see, e.g., Meiklejohn v. State, 281 Ga. App. 712, 714 (637 SE2d 117) (2006); State v. Lewis, 233 Ga. App. 390, 392 (1) (504 SE2d 242) (1998).

       296 Ga. 817.

        Id. at 822.

        Id. at 823.

        State v. Austin, 310 Ga. App. 814, 817 (1) (714 SE2d 671) (2011) (punctuation omitted).

        Id. (punctuation omitted); accord Kendrick, 335 Ga.App. at 769.

        Schneckloth v. Bustamonte, 412 U. S. 218, 227 (II) (B) (93 SCt 2014, 36 LE2d 854) (1973); accord Kendrick, 335 Ga. App. at 769.

        Kendrick, 335 Ga.App. at 769 (punctuation omitted).

       384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

        State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008) (punctuation omitted); accord State v. Stephens, 289 Ga. App. 167, 167 (657 SE2d 18) (2008).

        See Durrence, 295 Ga.App. at 218 (holding that evidence that defendant was intoxicated and was not advised that he could refuse consent to search supported trial court’s grant of defendant’s motion to suppress).

        See Clay v. State, 290 Ga. 822, 827-28 (1) (B) (725 SE2d 260) (2012) (holding that evidence supported the trial court’s finding that defendant’s first three statements to police were not voluntary based on testimony that when defendant made his first statement to officer while in the hospital he was severely intoxicated and could not appreciate his situation); State v. Folsom, 286 Ga. 105, 111 (4) (686 SE2d 239) (2009) (concluding that it was permissible for trial court to consider defendant’s lucidity and ability to comprehend questions as factors in determining whether a defendant’s statement was rendered involuntary as a result of intoxication).

        McNeely, 133 SCt at 1561.


text:
    A16A0095.
    HAMLER v. WOOD.
    (787 SE2d 299)
   PHIPPS, Presiding Judge.

Jennifer Wood d/b/a Jenny Wood Interiors (“Wood”) sued Garrett Hamler p/k/a Sean Garrett (“Hamler”) for breach of contract, quantum meruit, and fraud relating to interior design services provided to Hamler by Wood. Alleging that Wood’s work was deficient, Hamler counterclaimed for breach of contract and recoupment/set-off. A jury rejected Hamler’s counterclaims and found for Wood in the amount of $168,944. The trial court entered judgment on the jury’s verdict. Hamler appeals, asserting that the trial court erred by denying his motion for directed verdict and excluding certain testimony. For reasons that follow, we affirm.

1. Atrial court may direct a verdict “only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, [demands] a particular verdict.” In reviewing a ruling on a motion for directed verdict, we construe the evidence in the light most favorable to the non-movant and affirm if any evidence supports the trial court’s decision.

So viewed, the evidence shows that Wood is a professional interior designer who was referred to Hamler after he purchased a new home. In 2006, she and Hamler met to discuss Hamler’s vision for the home, which involved “a lot of work.” Wood devised an overall design plan based on their discussion, which Hamler approved, and he gave Wood an initial payment of $244,000 to “launch” the job. As the work progressed, more projects were added, including renovation work in the kitchen and laundry room. To simplify payments, Wood prepared a master invoice to which she added new projects, allowing them to keep up with “every area that [they] were addressing and then the overall budget and price.” She further explained: “[T]here were payments directed from [the master invoice]. There [were] designer costs put in there, retail costs, what he was paying for, so it was very up front and a very detailed list by room of what was going to take place throughout the project.”

The master invoice reflected the cost of items Wood purchased for Hamler, as well as any discounts she received that she passed on to him. Hamler also agreed to pay Wood $75 per hour for her design work plus a commission based on the percentage of discounts or savings she passed along to him. According to Wood, she explained her commission to Hamler before each portion of the work began. She asserted that “[i]t was all said up front,” and that she never performed work or purchased an item for the house without Hamler’s approval. Wood sent the master invoice to Hamler multiple times, often including with it vendor invoices that she had paid.

Between January 22, 2007, and August 28, 2008, Hamler made ten payments to Wood totaling $1,269,269 for work performed on the home. Wood used the majority of this money to pay vendors and outstanding bills relating to the project. She also paid herself approximately $57,000 for her design efforts. Based on the agreed-upon hourly rate and commission plan, however, Hamler owed her an additional $123,000. Wood contacted Hamler, requesting the balance due for outstanding purchases and money owed to her, which totaled $125,901. In response, Hamler requested that she purchase additional items for the house. Wood declined to perform further work until he paid the balance due, and she offered to set up a payment schedule for him. He refused the offer.

Several months later, Hamler complained to Wood that the heated floors installed during the renovations were not holding a consistent temperature. Wood and the general contractor who had overseen the floor work met at the home with a flooring company representative to inspect the flooring system. They determined that the system was working properly and that any temperature deviations were normal.

Wood filed suit on August 19, 2010, asserting that Hamler had breached the terms of their agreement by failing to satisfy all amounts owed on the project, was responsible for the outstanding balance under the theory of quantum meruit, and had committed fraud. After Wood presented her case at trial, Hamler moved for a directed verdict on her claims. The trial court denied the motion as to breach of contract and quantum meruit, but directed a verdict on the fraud claim. The jury subsequently found for Wood, returning a general verdict in her favor in the amount of $168,944.

(a) Breach of Con tract. Hamler first argues that he was entitled to a directed verdict on Wood’s breach of contract claim because Wood offered no evidence that the parties had entered into a valid agreement. We disagree.

To be enforceable, a contract “must be set forth with such certainty and completeness that either party may have a right of action upon it.” According to Hamler, he and Wood did not agree to the scope of the project, its cost, or the time frame for its completion, undermining any claim that they had entered into an enforceable contract. He notes that the scope, cost, and length of the project increased over time, and he claims that they never agreed to the terms of Wood’s commission payment.

Wood testified, however, that although the project expanded as Hamler requested additional work, they agreed to the increased scope and Hamler approved everything ‘Teforehand.” Wood included all charges on the master invoice that she provided to Hamler. And prior to each phase of work, she explained her commission, which, they had agreed, would be based on the discounts or savings that she was able to pass along to him. According to Wood, she never performed work on the home without Hamler’s approval. She also asserted that she did not promise to complete the project by a particular date. Wood explained that “[i]t would [have been] impossible” to set a specific time frame for completion, particularly given the expanding scope of the project.

“The law does not favor destroying contracts on the basis of uncertainty, and a contract that may originally have been indefinite may later acquire more precision and become enforceable because of the subsequent words or actions of the parties.” Based on Wood’s testimony, the jury was authorized to conclude that the parties had an ongoing agreement for Wood to perform work at Hamler’s home, that they ultimately agreed to the scope of work to be performed, as well as its cost, and that timing was not an essential element of the agreement.

We recognize that Hamler denied giving his approval for the work, and he testified that he had expected project completion within a specified time frame. But “[t]he fact that the plaintiff and the defendant differed in their testimony as to the terms of the contract is not sufficient to show that their minds had never met, but simply raised a conflict in the evidence as to what was the contract between the parties.” Given these conflicts, the evidence did not demand a particular verdict on the breach of contract allegations. Hamler, therefore, was not entitled to a directed verdict on this claim.

(b) Quan tum Meruit. Hamler further argues that the trial court should have directed a verdict for him on Wood’s quantum meruit claim because Wood offered insufficient evidence regarding the reasonable value of her services. “Proof of the reasonable value of services rendered to and accepted by a defendant is an element essential to recovery on a quantum meruit basis.” The key inquiry “is not the value of the labor but the value of the benefit resulting from such labor to the recipient; if there is no benefit to the recipient, then there is no recovery for something of no value to the recipient.”

With respect to value, Wood offered evidence of the master invoice, which detailed the cost of work approved by Hamler, as well as testimony regarding the hours she spent on the project and their agreed-upon hourly rate. She explained the balance due on Hamler’s account. Moreover, she asserted that Hamler never questioned the time she billed to the project, did not raise most of his complaints about the workmanship until “[yjears later,” asked her to continue working for him, and promised to pay her. Because such evidence authorized the jury to value the benefit of Wood’s services, the trial court properly denied Hamler’s motion for directed verdict as to quantum meruit.

2. Finally, Hamler contends that the trial court erred in excluding his testimony that several pieces of valuable jewelry disappeared while Wood oversaw work at his home. “A trial court retains broad discretion in determining whether to admit or exclude evidence, and absent an abuse of discretion, we will not interfere with a trial court’s determination as to the admission or exclusion of evidence on the grounds of relevancy.”

We find no abuse of discretion here. According to Hamler, evidence regarding the lost jewelry was relevant to his valuation of Wood’s services for purposes of quantum meruit. He thus argues that “the trial court unduly restricted [his] testimony” regarding this claim. Quantum meruit, however, is an equitable doctrine “based on the concept that no one who benefits from the labor and materials of another should be unjustly enriched thereby.” Ultimately, the fact-finder must determine the extent to which a party receiving materials or services benefitted from those materials or services. We fail to see how Wood’s alleged failure to oversee or safeguard Hamler’s jewelry pertained to the reasonable value of design services actually provided to — and accepted by — Hamler.

Decided June 8, 2016.

Frederick C. Dawkins, for appellant.

Hormozdi Law Firm, Shireen Hormozdi, for appellee.

Evidence regarding jewelry lost during the renovation work might have been relevant to some other claim. On appeal, however, Hamler asserts only that it should have been admitted for purposes of quantum meruit valuation; he does not contend that it was admissible to prove or defend against another claim. Accordingly, he has not shown that the trial court abused its discretion in excluding the evidence.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

        Lofty v. Fuller, 223 Ga. App. 95, 96 (1) (477 SE2d 30) (1996) (citation and punctuation omitted).

       Id.

         Reebaa Constr. Co. v. Chong, 283 Ga. 222, 223 (1) (657 SE2d 826) (2008).

       Id. (citation and punctuation omitted).

       See Peace v. Dominy Holdings, 251 Ga. App. 654, 655-656 (1) (554 SE2d 314) (2001) (“The requirement of certainty [in a contract] extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance where time and place are essential.") (punctuation and footnote omitted; emphasis supplied).

        Lofty, supra (citation and punctuation omitted).

       See id. at 96-97 (1).

       See Reebaa Constr. Co., supra at 223-224 (1) (homeowner not entitled to directed verdict on contractor’s breach of contract claim where at least some evidence showed that homeowner agreed to cost of renovations, including price increase resulting from change orders); Lofty, supra at 96 (1) (“Because [plaintiff] presented evidence that there was a meeting of the minds . . . , the parties’ disagreement about the precise contract terms constitutes a genuine issue of material fact for the jury.”); Danfair Properties v. Bowen, 222 Ga. App. 425, 426 (474 SE2d 295) (1996) (“The fact that [a party] contested whether there was a meeting of the minds on the terms of the [agreement] required that the issue be presented to the jury.”) (citation omitted).

        Diegert v. Cedarbrook Homes, 267 Ga.App. 264, 265 (599 SE2d 211) (2004) (punctuation and footnote omitted).

       Id. (footnote omitted).

       In connection with this lawsuit, Hamler filed an affidavit in 2014 raising several complaints about the renovations, including allegations that the marble flooring was not properly grouted, that the stainless steel island installed in the kitchen was scratched, and that various lighting elements did not work. Wood testified, however, that she had no notice of these alleged problems before the litigation.

       See Amstead v. McFarland, 287 Ga. App. 135, 137-138 (1) (650 SE2d 737) (2007) (attorney’s evidence regarding the reasonable value of his services supported award of quantum meruit against former client); Razavi v. Shackelford, 260 Ga. App. 603, 606 (2) (580 SE2d 253) (2003) (given evidence regarding work that claimant performed for defendant, “[wjhether [defendant] received a benefit from [claimant’s] work and the value of that work [were] issues exclusively within the province of the jury to decide”).

        Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 739 (6) (698 SE2d 19) (2010) (citation and punctuation omitted).

        Memar v. Jebraeilli, 303 Ga. App. 557, 560 (1) (694 SE2d 172) (2010).

       See Wallin v. Wallin, 316 Ga. App. 455, 456 (1) (729 SE2d 567) (2012).

       See id.

       See Terrell v. Pippart, 314 Ga. App. 483, 487 (3) (724 SE2d 802) (2012) (trial court did not err in excluding testimony in quantum meruit action that was “not relevant to the reasonable value of the work performed”).