author: Phipps, Chief Judge. BRANCH, Judge,

text:
    A13A0853.
    HEARD v. THE STATE.
    (751 SE2d 918)
   Phipps, Chief Judge.

We granted James Heard’s application for interlocutory review of the trial court’s order denying his motion to suppress evidence found during a stop of his vehicle. For the reasons that follow, we reverse.

[I]n reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings will not be disturbed if any evidence supports them; but the court’s application of the law to undisputed facts is reviewed de novo.

So viewed, the evidence in this case showed that on July 24,2009, a police captain informed a patrol officer that he had received “some complaints about illegal narcotics,” and that the officer should be on the lookout for an “older model, two-wheel drive, blue Chevy S-10” vehicle; the captain gave the officer no additional information.

Later that evening, the patrol officer saw a vehicle matching that description and began following it. He noticed a 2007 registration decal on the license plate, but he saw no current (2009) decal. The officer initiated a traffic stop based on the suspected tag violation.

The patrol officer approached Heard, who was the vehicle’s driver and sole occupant, and told him that he had stopped the vehicle because of the 2007 decal. Heard replied that he had a valid decal. At the officer’s request, Heard produced his driver’s license and proof of insurance. The officer observed that Heard was shaking, and he asked Heard if he was nervous. Heard replied that he was not. While the patrol officer was speaking with Heard, two other officers walked up to Heard’s vehicle; one stood next to the passenger’s door, while the other stood near the vehicle’s cargo area.

The patrol officer walked back to the patrol vehicle and, as he did so, he saw that Heard’s license plate had a current decal affixed; the officer testified that the plate was bent and the decal was “curled up” on the “wrong” or “left” side of the plate. The officer “began running information through GCIC and NCIC, tag information, driver’s license information,” and outstanding warrant information. After the checks were completed and no “issues” were revealed, the officer returned to Heard’s vehicle and handed Heard his driver’s license and insurance card. The officer testified that, at that point, his traffic investigation had ended and “[h]ad [Heard] denied consent, he would have been free to leave.”

Upon returning Heard’s documents, the officer told Heard that he had stopped him because he had seen a 2007 decal on the license plate and that “normally, what you do is like when you get the new green tag, you put it on top.” The officer continued, “Now that I get up here, you’re pretty nervous.” The officer asked Heard if there was any reason he was so nervous. Heard replied that the blue lights and the traffic stop made him nervous. The officer asked Heard if he was nervous because he had illegal narcotics or weapons in the vehicle. Heard denied having such items.

The officer next asked Heard if he could search the vehicle. Heard replied that he did not want the vehicle searched, and then stepped out of the vehicle. The officer frisked Heard for weapons and then asked Heard again if he could search the vehicle. This time, Heard consented. The search of the vehicle yielded a small tube containing six pieces of suspected crack cocaine. Heard was arrested and charged with possession of cocaine with intent to distribute. A total of about four minutes elapsed from the time Heard stopped his vehicle to the time he consented to the search.

Heard moved to suppress the evidence seized from the vehicle, arguing that, among other things, the officer had prolonged the traffic stop without a reasonable suspicion of criminal activity. The trial court denied the motion, finding that the stop was valid based on the suspected tag violation, that the detention had not been unreasonably long, and that Heard had consented to the search.

1. Heard does not dispute that the initial traffic stop for the suspected tag violation was valid. Instead, he contends that the officer prolonged the traffic stop to conduct a drug investigation without having a legal basis for doing so, and that the trial court thus erred in denying his motion to suppress. We agree.

Upon this Court’s review, it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A reasonable time to conduct a traffic stop includes the time necessary to verify the driver’s license, insurance, registration, and to complete any paperwork connected with the citation or a written warning. A reasonable time also includes the time necessary to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.

“Once the tasks related to the investigation of the traffic violation and processing of the traffic citation have been accomplished, an officer cannot continue to detain an individual without articulable suspicion.” “Once the purpose of that [traffic] stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.” “[I]f [an] officer continues to detain [an individual] after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop.”

Here, the officer testified that the traffic investigation ended when he determined that the vehicle’s registration was valid and that, absent consent to search, Heard was “free to leave” when the officer returned his documents. In fact, the officer could lawfully verify the registration, driver’s license and insurance information, and check for outstanding warrants; but any subsequent interrogation or request for consent had to be supported by reasonable suspicion of criminal activity.

The officer expressly confirmed at the hearing that after his investigation of the suspected traffic violation had ended, he “extended the detention by asking Heard questions about his nervous behavior,” and that he was “then launching into a drug investigation.” The officer testified that he asked those questions because he thought there might be contraband in the vehicle; he said that his suspicion was based on Heard’s nervous behavior and the lookout information he (the officer) had received before the traffic stop.

In this case, the basis of the officer’s suspicion was insufficient to justify the continued or second detention. The officer had no information about the reliability of the lookout information, such as who had provided the information to the captain or how recently it had been provided. And the officer was given only a general description of the vehicle, not information sufficiently detailed that it would have allowed him to verify that the information was inherently reliable.

Nervousness is not sufficient to justify an investigative detention. Even when we consider together the lookout information and Heard’s nervousness, we cannot conclude that the officer was aware of circumstances sufficient to create a reasonable suspicion that Heard was involved in criminal activity other than the suspected traffic violation.

The state asserts that “the stop was not unlawfully prolonged as ... no more than four minutes” elapsed from the time Heard stopped his vehicle until he consented to the search.

However, in assessing the reasonableness of an investigative stop, “[n]o ‘bright-line’ or rigid time limitation is imposed.” In considering whether the length of a detention was reasonable, it is appropriate to examine whether, after the stop of the vehicle, “the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” “The officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning.”

Here, the purpose of the traffic stop had been effectuated, and no developments occurred after the vehicle was validly stopped which provided the officer with a reasonable basis to suspect that there were illegal drugs in the vehicle. Yet, the officer continued to question Heard about his nervousness and whether he possessed drugs or weapons, and to seek consent to a search. The detention lasted longer than was necessary to effectuate the purpose of the stop, and was not lawful. We hold that, in this case, the trial court erred in its application of the law to undisputed facts.

2. In a related argument, Heard contends that the trial court erred by finding that the search was lawful based on his consent, when, in fact, his consent was the product of an illegal detention and thus was not valid.

As discussed in Division l, the officer lacked reasonable suspicion of criminal activity to justify detaining Heard after the traffic investigation ended. Accordingly, Heard’s consent to search the vehicle — given after the traffic investigation concluded — was the product of an illegally prolonged detention, and no circumstances intervened to purge the taint of that illegal detention. The trial court erred by denying the motion to suppress.

Judgment reversed.

Barnes, P. J., Ellington, P. J., and Miller, J., concur. Andrews, P. J., Ray and Branch, JJ., dissent.

BRANCH, Judge,

dissenting.

The trial court did not clearly err when it concluded that the officer obtained consent to search Heard’s truck after returning his documents to him and that the brief conversation giving rise to the consent did not impermissibly extend the valid traffic stop at issue here. I therefore respectfully dissent.

As the majority concedes, the initial traffic stop, undertaken for the purpose of investigating the traffic violation of driving without a valid tag, was legal, and the officer returned Heard’s documents to him before seeking consent to search. See Humphreys v. State, 304 Ga. App. 365, 366-367 (1) (696 SE2d 400) (2010). But the majority does not defer to the trial court’s implicit determination that when the officer returned Heard’s license and insurance information to him, the second-tier detention either came to an end or was not impermissibly extended. See Brown v. State, 293 Ga. 787, 800 (3) (b) (750 SE2d 148) (2013) (noting requirement that an appellate court defer to a trial court’s findings as to disputed facts concerning a motion to suppress).

The videotape confirms the trial court’s finding, for example, that the entire encounter, from traffic stop to Heard’s arrest for possession of crack cocaine, lasted “five or six minutes,” and also supports the trial court’s determination that Heard was not being “detained” in the very short time — well under a minute — between the beginning of the officer’s explanation why Heard had been stopped (including why his registration was actually in order) and the obtaining of consent to search. The United States Supreme Court has repeatedly held, moreover, that an officer may obtain valid consent to search without informing a detainee that he is free to leave:

“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.” And just as it “would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,” so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.

Ohio v. Robinette, 519 U. S. 33, 39-40 (117 SCt 417, 136 LE2d 347) (1996), quoting Schneckloth v. Bustamonte, 412 U. S. 218 (93 SCt 2041, 36 LE2d 854) (1973).

The fact that the officer characterized the moments after returning the documents to Heard as a “detention” does not compel the legal conclusion that it was so. Indeed, this trial court explicitly declined to construe the officer’s testimony as showing that the second part of this encounter amounted to a “detention.” Because this conclusion was not clearly erroneous, and because it follows that Heard’s consent to search was not the product of an impermissible detention, we must affirm the denial of Heard’s motion to suppress. See Hayes v. State, 292 Ga. App. 724, 731 (2) (665 SE2d 422) (2008) (affirming denial of motion to suppress when evidence “[did] not demand a finding contrary to the trial court’s determination” that an officer did not prolong a detention unduly when he obtained consent to search 30 seconds after returning driver’s paperwork and issuing him a warning); Cutter v. State, 274 Ga. App. 589, 593-594 (617 SE2d 589) (2005) (where there was “no evidence” that a defendant driver “made any attempt to leave” after being informed that he could do so, or that officers remaining with him and waiting for the arrival of a K-9 unit threatened him in any way, trial court did not err in concluding that the defendant was not detained before the arrival of the unit resulting in the detection of hashish in the car). Compare State v. Thompson, 256 Ga. App. 188, 189-190 (569 SE2d 254) (2002) (excluding evidence obtained as a result of officer’s continued questioning of defendant after citation had been written and license returned to defendant, resulting in a 20-minute delay while waiting for drug dog after traffic stop had concluded).

Because I believe that the trial court did not err when it denied Heard’s motion to suppress, I respectfully dissent.

Decided November 22, 2013

Healy & Svoren, Timothy P. Healy, NinaM. Svoren, for appellant.

Robert W. Lavender, District Attorney, Adam C. Schroeder, David P. White, Assistant District Attorneys, for appellee.

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

        Lewis v. State, 323 Ga. App. 709 (747 SE2d 867) (2013) (punctuation and footnotes omitted); see State v. Hammond, 313 Ga. App. 882, 884 (723 SE2d 89) (2012).

       See OCGA §§ 40-2-8 (b) (pertinently providing that any vehicle which is required to be registered and which does not have attached to the rear thereof a numbered license plate and current revalidation decal affixed to a corner or corners of the license plate as designated by the commissioner, if required, shall be stored at owner’s risk and expense); 40-2-8 (b) (2) (A) (pertinently providing that it shall be a misdemeanor to operate any vehicle required to be registered in the State of Georgia without a license plate properly validated).

       Notably, in its brief the state has cited no law requiring the decal to be affixed to the right side of the license plate.

       Heard did not testify at the hearing, and his reason for exiting the vehicle at that time is not clear from the hearing transcript. However, in the audio-videotape recording of the stop (which recording was admitted into evidence and played at the hearing), when the officer commented that Heard’s exit from the vehicle was a sign of his nervousness, Heard replied that he had exited the vehicle because the officer told him to do so; the officer responded that Heard had misunderstood him.

       See generally Humphreys, supra at 366-367 (appellant’s motion to suppress based on lack of a basis to stop the vehicle was properly denied because officer was authorized to stop vehicle based on a perceived traffic violation).

        Nash v. State, 323 Ga. App. 438 (746 SE2d 918) (2013) (citations and punctuation omitted).

        Weems v. State, 318 Ga. App. 749, 752 (1) (734 SE2d 749) (2012) (citation and punctuation omitted); see also State v. Connor, 288 Ga. App. 517, 519 (654 SE2d 461) (2007) (noting that the continued questioning outside the scope of a valid traffic stop is permissible only when the officer has a reasonable articulable suspicion of illegal activity or when the valid traffic stop has become consensual). We note that there is no claim that the continued questioning of Heard was consensual.

        Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006) (citation and punctuation omitted); Richbow v. State, 293 Ga. App. 556, 558 (667 SE2d 418) (2008).

       See State v. Felton, 297 Ga. App. 35, 37 (676 SE2d 434) (2009).

       See Felton, supra; see generally Nash, supra.

       See Register v. State, 315 Ga. App. 776, 778 (728 SE2d 292) (2012) (a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity; but if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police; information corroborated must include a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted); Dominguez v. State, 310 Ga. App. 370, 374-375 (714 SE2d 25) (2011); McSwain v. State, 240 Ga. App. 60, 61-62 (522 SE2d 553) (1999) (anonymous tip that a light green, four-door Honda Accord, with a specific license plate number, occupied by four males and headed northbound on 1-95 from Florida to one of the Carolinas, might have some contraband in the trunk, did not support a reasonable suspicion of criminal activity).

       See Tiller v. State, 261 Ga. App. 363, 365 (582 SE2d 536) (2003) (as a general rule, information from a tipster of unknown credibility does not provide reasonable grounds upon which to detain a person for investigative purposes).

       See Slocum, 267 Ga. App. 337, 338 (599 SE2d 299) (2004); see generally Register, supra.

        Dominguez, supra at 374-375.

        See Register, supra; Dominguez, supra; Nunnally v. State, 310 Ga. App. 183, 188 (2) (713 SE2d 408) (2011).

        Mallarino v. State, 190 Ga. App. 398, 401 (2) (379 SE2d 210) (1989) (citation and punctuation omitted).

        Weems, supra at 751 (1) (citation and punctuation omitted); Nunnally, supra at 188 (2).

        Nunnally, supra at 186 (2) (punctuation and footnote omitted).

       See id. at 188-189 (2), n. 21.

       See Weems, supraat752 (1);Register, supra;Nunnally, supraat 187 (2) (reversingdenial of motion to suppress; the fact that eight minutes elapsed from the time the officer lawfully stopped the suspect’s vehicle for a traffic violation until a drug dog arrived was not determinative of reasonableness, because there was no evidence that the detention lasted no longer than was necessary to effectuate the purpose of the stop and no evidence that the scope of the detention was carefully tailored to its underlying justification); Felton, supra.

       Supra.

       See Felton, supra; Connor, supra; Smith v. State, 288 Ga. App. 87, 89 (653 SE2d 510) (2007).


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A13A0942.
    WALLACE v. THE STATE.
    (751 SE2d 887)
   Phipps, Chief Judge.

William Glynn Wallace was charged with driving under the influence of alcohol (unlawful alcohol concentration and less safe) and failure to illuminate the vehicle’s rear registration plate. Wallace moved to suppress the results of the state-administered chemical test of his breath, contending that the arresting officer failed to adequately inform him of his implied consent rights. Specifically, Wallace argued that after the officer read to him the appropriate implied consent notice, and he refused to submit to the test, the officer gave him incorrect information regarding the consequences of a refusal; and, immediately after being misinformed, Wallace rescinded his refusal and consented to submit to the test. The court denied the motion, and we granted Wallace’s application for interlocutory review. We reverse.

“When reviewing a ruling on a motion to suppress, where, as here, the evidence is uncontroverted and there exists no question regarding witness credibility, we review de novo the trial court’s application of the law to the facts presented.”

Asheriff’s deputy testified that on February 14, 2012, he initiated a stop of Wallace’s vehicle and, after investigating, placed Wallace under arrest for DUI. The deputy properly read to Wallace the appropriate implied consent notice. That notice provides as follows:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

At Wallace’s request, the deputy re-read the notice to Wallace, then stated that he (the deputy) needed a “yes or a no” response. Wallace responded “no.” Then, as the deputy was escorting Wallace back to the police vehicle, Wallace asked the deputy “what would happen if I said yes?” The deputy explained, “that would mean that you would submit to the . . . breath test.” Wallace asked the deputy, “well, if I say yes or no, that can be used against me[?]” The deputy replied, “yes or no cannot be used against you.” Wallace then said “yes,” and submitted to the breath test. It is the deputy’s remark to Wallace — “yes or no cannot be used against you” — which is at the center of this appeal.

The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing. Even when the officer properly gives the implied consent notice, if the officer gives additional, deceptively misleading information that impairs a defendant’s ability to make an informed decision about whether to submit to testing, the defendant’s test results or evidence of his refusal to submit to testing must be suppressed.
[T]he purpose of the implied consent law is to notify drivers of their rights so that they can make informed decisions. Accordingly, we have suppressed the results of chemical tests where the driver was misinformed of his rights and where that misinformation may have affected his decision to consent.

“When the state seeks to prove a DUI violation by evidence of a chemical test, the state has the burden of demonstrating compliance with the implied consent notice requirements.”

In this case, the deputy informed Wallace that his refusal (in particular, a “no” answer) could not be used against him. That information was incorrect, and it altered the substance of the notice •—• indeed, a refusal can be used against a person. Wallace did not testify at the hearing, and the record contains no evidence as to whether he changed his response based, at least in part, on the misleading information the deputy gave him concerning the consequences of his response. The state bears the burden of showing that the implied consent requirements were met. We cannot say that the error was harmless, because Wallace submitted to the breath test immediately after he was misinformed about the consequences of a refusal. Nor do we find that the statutory language, “Your refusal to submit to the required testing may be offered into evidence against you at trial” is superfluous. As this court has recognized, “misinformation [regarding the legitimate consequences of a refusal to submit to the state-administered test] may constitute unlawful coercion.”

Decided November 22, 2013.

Stein & Ward, T. Kevin Mooney, for appellant.

SandraN. Wisenbaker, Solicitor-General, Natalie Ashman, Kimberly D. Sewell, Stephen J. Tuggle, Assistant Solicitors-General, for appellee.

[Although we find no suggestion that the [deputy] intentionally misinformed [Wallace] concerning the penalty for refusal,... we cannot conclude that his misstatement of the law did not induce the consent. It directly impacted [Wallace’s] options under the Implied Consent Statute.

The trial court erred by denying Wallace’s motion to suppress.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.

       OCGA § 40-6-391 (a) (1), (5).

       OCGA § 40-8-23 (d).

        State v. Quezada, 295 Ga. App. 522 (672 SE2d 497) (2009) (citation and punctuation omitted).

       At the hearing on the motion to suppress, defense counsel stated that the legality of the stop and arrest were not at issue.

       OCGA § 40-5-67.1 (b) (2) (emphasis supplied).

       A DVD of the traffic stop was admitted into evidence and played at the suppression hearing.

        State v. Barnard, 321 Ga. App. 20, 23 (1) (740 SE2d 837) (2013) (footnote omitted); State v. Chun, 265 Ga. App. 530, 531 (594 SE2d 732) (2004).

        Kitchens v. State, 258 Ga. App. 411 (574 SE2d 451) (2002); see State v. Terry, 236 Ga. App. 248 (511 SE2d 608) (1999) (suppression of evidence of a driver’s refusal to submit to testing was required where police properly informed suspect of implied consent rights, but then gave her misleading information about independent testing in response to her questions about the notice; misinformation could have affected the driver’s decision; whether officer intended to mislead her was immaterial); State v. Coleman, 216 Ga. App. 598, 599 (455 SE2d 604) (1995) (suppression was required where an out-of-state driver was wrongly told that he would lose his driver’s license if he refused testing).

       See Epps v. State, 298 Ga. App. 607, 608 (1) (680 SE2d 636) (2009) (punctuation and footnote omitted); State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639) (1994).

       OCGA § 40-5-67.1 (b) (2); see Stewart v. State, 288 Ga. App. 735, 736 (1) (655 SE2d 328) (2007) (a defendant’s refusal to submit to a state-administered chemical test of his or her blood, breath, urine, or other bodily substance is admissible as evidence of the defendant’s intoxication).

        Epps, supra.

       See State v. Peirce, 257 Ga. App. 623, 625 (1) (571 SE2d 826) (2002) (“Where the consent was based at least in part on deceptively misleading information concerning a penalty for refusal which the state was not authorized to implement, there was no informed choice and the test results are inadmissible.”) (footnote omitted).

       See generally State v. Hughes, 181 Ga. App. 464, 467 (352 SE2d 643) (1987).

        Deckard v. State, 210 Ga. App. 421, 423 (436 SE2d 536) (1993).

       Id. (citations omitted).

       See Peirce, supra at 627 (1); Terry, supra at 251.


author:
Branch, Judge.
      PHIPPS, Chief Judge,

text:
    A13A0982.
    KELLEY v. COOPER.
    (751 SE2d 889)
   Branch, Judge.

Following a bench trial, the trial court awarded Melissa Cooper damages on her claims of breach of promise to marry, fraud, and attorney fees. Without having moved for a directed verdict in the trial court, which limits his possible recourse to a new trial, Christopher Ned Kelley raises five enumerations of error, including that a promise to marry is not enforceable when the parties are in a meretricious relationship. We find no error and affirm.

Construed in favor of the judgment, the evidence produced at trial shows that Kelley and Cooper had been living together since at least 2000 and had one child together, when, on December 23, 2004, Kelley proposed marriage to Cooper and gave her a ring valued at approximately $10,000. Cooper accepted the proposal. The couple continued to live together thereafter and moved to a new home. Cooper also left her job at Kelley’s request in order to stay home and raise the children. Although the couple was never formally married, Kelley often held out the couple as husband and wife.

The evidence also shows that after the proposal, Cooper discovered that Kelley had been in a two-year relationship with another woman that extended in time from before the proposal to afterward. After Cooper confronted Kelley, she agreed to stay with him because of his pledges not to see the other woman again and his promises thereafter to marry Cooper. In April 2011, when confronted about a relationship with another woman, Kelley told Cooper that he wanted to be with this woman and that Cooper and the children should move out. Cooper was “devastated” by this development.

Cooper filed suit and later amended the action to assert claims to establish paternity and to obtain child support, as well as to assert claims for an implied or constructive trust on certain assets, breach of contract to marry, unjust enrichment, fraud, and attorney fees. During the litigation, the parties resolved all issues concerning paternity, custody, visitation and support. The trial court held a bench trial on the remaining claims. Following the trial, the court entered an order in which it found in favor of Cooper on her claims of breach of promise to marry, fraud, and attorney fees. The court awarded damages on the claims of breach of promise to marry and fraud in the amount of $43,500 and awarded attorney fees of $6,500.

1. Kelley contends the trial court erred because the promise to marry was part of a meretricious relationship and therefore not enforceable.

“ ‘Breach of promise to marry is a common law contract action.’ ” Phillips v. Blankenship, 251 Ga. App. 235, 236 (1) (554 SE2d 231) (2001), quoting Thorpe v. Collins, 245 Ga. 77, 78 (1) (263 SE2d 115) (1980). The meretricious relationship defense to a contract claim is derived from OCGA § 13-8-1 and its precursors. Abrams v. Massell, 262 Ga. App. 761, 766 (5) (586 SE2d 435) (2003); Rehak v. Mathis, 239 Ga. 541, 543 (238 SE2d 81) (1977) (citing Code Ann. § 20-501). OCGA § 13-8-1 provides: “Acontract to do an immoral or illegal thing is void. If the contract is severable, however, the part of the contract which is legal will not be invalidated by the part of the contract which is illegal.” The Supreme Court of Georgia has held that parties who are unmarried and live together in a sexual relationship are in a meretricious relationship. Rehak, 239 Ga. at 542. See also Abrams, 262 Ga. App. at 766-767 (5) {Rehak is still binding precedent).

A review of the case law, however, shows that the meretricious relationship defense typically is asserted as a defense to a claim of breach of a financial agreement or arrangement between two parties when the agreement is seen as being in exchange for one party’s agreement to cohabit with the other party and provide sexual relations. But OCGA § 13-8-1 “ ‘has been held inapplicable where the object of the contract is not illegal or against public policy, but where the illegality or immorality is only collateral or remotely connected to the contract.’ ” (Citation and punctuation omitted; emphasis in original.) Phillips, 251 Ga. App. at 237, quoting Liles, 176 Ga. App. at 66 (2).

In this case, Kelley asserts the defense against Cooper’s claim of breach of promise to marry. However, the object of such a promise is not illegal or against public policy. In Georgia, the legislature has specifically announced that “[m]arriage is encouraged by the law.” OCGA § 19-3-6. Kelley has not cited any cases, nor has our research uncovered one, where the meretricious relationship defense was asserted or upheld in response to a claim of breach of a promise to marry. We therefore conclude that the fact that the parties were living together both before and after the marriage proposal is only collateral to the promise to marry. The meretricious relationship defense is therefore inapplicable, and the promise to marry is enforceable. Cf. Thorpe, 245 Ga. at 81 (the obligation recognized by statute that the father of an illegitimate child is bound for its maintenance and education supports an agreement between the biological parents to provide for future support for the child, and “acts of cohabitation between the father and mother, which are not part of the consideration for the contract, do not render the.contract void”) (citations and punctuation omitted). Accordingly, Kelley is not entitled to a new trial on this ground.

2. Kelley’s argument that Cooper cannot recover in tort that which is not recoverable in contract is made moot by our decision in Division 1.

3. Kelley contends that Cooper cannot recover in fraud because the alleged fraudulent statements were only promises as to future acts.

In the appellate review of a bench trial, this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. The standard by which findings of fact are reviewed is the “any evidence” rule, under which a finding by the trial court supported by any evidence must be upheld.

Singh v. Hammond, 292 Ga. 579, 581 (2) (740 SE2d 126) (2013) (citation and punctuation omitted). Because there is some evidence supporting the trial court’s finding of fraud, we cannot say the court’s decision was clearly erroneous.

It is true that “[a] claim of fraud cannot be predicated on statements which are promissory in their nature as to future acts.” See generally Beard v. McDowell, 174 Ga. App. 793, 794 (2) (331 SE2d 104) (1985) (citation omitted). But “an exception to this rule exists where a promise as to future events is made with a present intent not to perform or where the promisor knows that the future event will not take place.” (Citation omitted.) JTHTax, Inc. v. Flowers, 302 Ga. App. 719, 725 (2) (691 SE2d 637) (2010). Also, “[f]raud may be proved by slight circumstances, and whether a misrepresentation is fraudulent and intended to deceive is generally a jury question.” (Citations and punctuation omitted.) Id.

Here, some evidence was presented to show that at the time he proposed, Kelley did not intend to marry Cooper. First, at the very time that he gave her a $10,000 ring and proposed marriage, he was having an affair with another woman that began before his proposal to marry and continued after Cooper accepted the proposal. He certainly equivocated frequently about his actions and his intent at the time. When asked whether he had seen another woman within three months prior to the proposal, Kelley testified, “It’s possible.” He gave the same answer when asked if he saw the same woman within three months after the proposal. He also testified “We never had very many discussions around marriage. I personally never initiated any conversations around marriage” and “I never initiated the concept of marriage with her, outside of giving her that ring.” Kelley’s testimony about the proposal itself was that although he gave Cooper the ring, “I never said the words will you marry me to her.” When asked if he gave Cooper a card that started with “What is a wife?”, Kelley responded, “Throughout our ten-year relationship, there will be very emotional times and you will do things that doesn’t necessarily represent, you know, the actuality of life.” When construed in favor of the verdict, this testimony, when juxtaposed with Cooper’s testimony about the proposal and her acceptance, can be construed as an admission that Kelley never intended to marry Cooper. Finally, the fact that after Cooper discovered the affair that circumscribed the proposal Kelley promised not to do it again is not relevant to Kelley’s intent on the day he proposed and Cooper accepted. For these reasons, the trial court’s decision was not clearly erroneous and Kelley is not entitled to a new trial based on this argument.

4. Kelley contends that the damage award for fraud was erroneous for three reasons: (1) it was made by a judge rather than a jury; (2) OCGA § 51-12-6 was inapplicable because the measure of damages in a fraud action is the actual loss sustained as a result of the fraud; and (3) because Cooper failed to present evidence of any “actual loss suffered as a result of Mr. Kelley’s purported claim.”

(a) With regard to the first argument, “ ‘a party may waive a right to jury trial by his or her actions, [including] by appearing at the hearing and allowing the bench trial to proceed without objection.’ ” Cole v. ACR/Atlanta Car Remarketing, 295 Ga. App. 510, 512 (672 SE2d 420) (2008), quoting Fine v. Fine, 281 Ga. 850, 851 (2) (642 SE2d 698) (2007). Kelley did not object to a bench trial and therefore has no basis to claim error as a result of not having a jury trial.

(b) In her opening statement, Cooper argued to the trial court that where there are no special damages alleged or shown, “and the injury is confined to the peace, happiness and feelings of the plaintiff, no measure of damages can be prescribed save the enlightened consciences of impartial jurors.” This language tracks the language of OCGA § 51-12-6. Nevertheless, the trial court did not state that it awarded damages pursuant to OCGA § 51-12-6. The court simply stated that it was awarding “damages for breach of promise to marry and fraud.” Thus, Kelley cannot show error based on this argument.

(c) Finally, Kelley’s argument that Cooper failed to show “actual damages” on her claim of fraud is controlled adversely by the well-established relevant law of damages:

In order to recover for fraud, a plaintiff must prove that actual damages, not simply nominal damages, flowed from the fraud alleged. The expression “actual damages” is not necessarily limited to pecuniary loss, or loss of ability to earn money. General damages are those which the law presumes to flow from any tortious act, and they may be awarded on a fraud claim. Wounding a man’s feelings is as much actual damage as breaking his limbs. Injury to reputation is a personal injury, and personal injury damages can be recovered in a fraud action.

(Citations and punctuation omitted; emphasis in original.) Zieve v. Hairston, 266 Ga. App. 753, 759 (2) (c) (598 SE2d 25) (2004). Here, Cooper testified that she was devastated by Kelley’s fraud and breach of promise to marry and that she quit her job to raise the couple’s children in reliance on the promise. Thus, some evidence supported the judgment and award of the trial court.

5. Finally, Kelley contends the trial court erred by awarding attorney fees under OCGA § 13-6-11. But that Code section authorizes an award where the defendant acted in bad faith in the underlying transaction — here, in connection with the promise to marry. Fletcher v. C. W. Matthews Contracting Co., 322 Ga. App. 751 (1) (d) (746 SE2d 230) (2013). And bad faith “may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff.” (Citation and punctuation omitted.) Id. Some evidence was presented to show that Kelley acted in bad faith in connection with the promise to marry given that he was involved in another relationship at the time. We find no grounds for a new trial.

Judgment affirmed.

Barnes, P. J., Andrews, P. J., and Miller, J., concur. Ray, J., concurs in judgment only. Phipps, C. J., and Ellington, P. J., concur in part and dissent in part.

PHIPPS, Chief Judge,

concurring in part and dissenting in part. I concur in Divisions 1 and 2 of the majority opinion. I respectfully dissent from Divisions 3, 4, and 5.

1. With regard to Division 3, I do not agree that the evidence showed that Kelley committed a fraud upon Cooper. “The elements of a fraud action are an intentional false representation by the defendant designed to induce the plaintiff to act or refrain from acting, upon which the plaintiff justifiably relies, resulting in damage to the plaintiff.”

Although “[fjraud may be proved by slight circumstances, and whether a misrepresentation is fraudulent and intended to deceive is generally a [fact finder’s] question,” there must be evidence of “more than a promise regarding future action, which is not actionable.”

However, an exception to this rule exists where a promise as to future events is made with a present intent not to perform or where the promisor knows that the future event will not take place. Fraudulent intent at the time of contracting can be inferred based on subsequent conduct of the defendant that is unusual, suspicious, or inconsistent with what would be expected from a contracting party who had been acting in good faith.

Kelley argues that “[t]here was no evidence presented that [he] promised to marry [Cooper] knowing that they would never marry.” “On appeal from the entry of judgment in a bench trial, the evidence must be viewed in the light most favorable to the trial court’s findings of fact.” The fact that Kelley had an affair that began before he first proposed marriage in 2004 and that continued after Cooper accepted the proposal could not have shown that Kelley never intended to marry Cooper, as the majority opinion states. According to Cooper (whose testimony the trial court obviously credited over Kelley’s), Kelley ended that affair after Cooper confronted him about it, Cooper agreed to stay with Kelley despite the indiscretions, and the two resumed their relationship and talks of marriage. Cooper testified that Kelley later commenced an affair with a different person, which affair eventually led to Cooper and Kelley’s breakup.

The majority opinion states that the following also showed that Kelley did not intend to marry Cooper at the time he proposed marriage: (1) Kelley’s testimony that it was “possible” that he had had an affair with the same woman within three months before and after the proposal; (2) Kelley’s testimony that he and Cooper did not discuss marriage much; (3) Kelley’s testimony that he never initiated the concept of marriage with Cooper, other than having given her a ring; (4) Kelley’s testimony that he did not ask Cooper to marry him when he gave her the ring; and (5) Kelley’s testimony as to the reason he had given Cooper a “card that said ‘What is a wife.’ ” The majority opinion states that Kelley’s testimony “juxtaposed with Cooper’s testimony about the proposal and her acceptance, can be construed as an admission that Kelley never intended to marry Cooper.” This “some evidence,” which the majority opinion states showed that at the time Kelley proposed marriage he did not intend to marry Cooper, is the same evidence, however, with regard to which the trial court obviously disbelieved Kelley’s testimony in ruling in Cooper’s favor on her breach of promise to marry claim. “Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness.” But Cooper has not cited any authority holding that a trier of fact may both believe and disbelieve the same testimony of a witness. In my view, Kelley’s testimony merely demonstrated the conflict in the evidence at trial as to whether he had actually proposed marriage to Cooper.

The pertinent evidence did not show that Kelley acted unusual, suspicious, or inconsistent with what would be expected from a contracting party who had been acting in good faith. Cooper testified that after Kelley had proposed marriage, she and Kelley had “talked about several dates” upon which to get married, but that when the dates would come about, “[w]e either didn’t have the money to have the reception that we wanted or we really wanted to get married in Vegas and my dad only took us to Vegas once a year in May, so we would always push it back.” Cooper testified that in 2010, she and Kelley had gone on a “romantic” vacation to Daytona Beach. Cooper testified that Kelley “never indicated that he wanted to be with [the lady with whom he had had the second affair] until April of 2011,” when, according to Cooper, he demanded that she move out of the house. The evidence did not show that Kelley lacked the intent to perform at the time he proposed to Cooper. Notably, Cooper admitted that there was a time after the proposal when she too had a “relationship” with someone else. A finding of fraud cannot be sustained upon these facts, and, in my view, Kelley is entitled to a new trial on that claim.

2. With regard to Division 4,1 agree with Kelley’s assertion that damages pursuant to OCGA § 51-12-6 were not authorized in this case.

[D]amages for injury to peace, happiness and feelings (“vindictive” damages; OCGA § 51-12-6) can be recovered only where “the entire injury is to the peace, feelings or happiness (and) there is no injury to the person or purse . . . the tort being of such a nature as to give rise to mental pain and suffering only. . . .” [T]he code language referring to a tort where “the entire injury” is to peace, happiness and feelings includes a situation where the entire injury claimed is to peace, happiness and feelings, although there may have been other more insignificant injuries in the case.

Considering only the new claims Cooper asserted in her amended petition, Cooper asserted against Kelley claims for implied/constructive trust (for an equitable partition of real and personal property), unjust enrichment, fraud, and the common law contract action of breach of promise to marry. As to the fraud claim, Cooper specifically alleged in her amended complaint that she was “entitled to damages for [Kelley’s] fraud in an amount to be determined by the enlightened conscience of the tier [sic] of fact.” Recovery under OCGA § 51-12-6 has been allowed for breach of promise to marry, and where the sole cause of action was for “fraudulent misrepresentation.” And as the majority opinion recognizes, “[ijnjury to reputation is a personal injury, and a personal injury can be recovered in a fraud action.”

As to the fraud claim, Cooper alleged in her amended complaint that Kelley “enticed [her] to convey upon [him] benefits based on [his] promise to marry [her].” With regard to the unjust enrichment claim, Cooper alleged that she was “entitled to damages and/or compensation for the benefits that she conferred upon [Kelley] in reliance of [his] promise to marry [her].” As to “benefits,” Cooper testified that she and Kelley agreed that she would pay household utility and grocery bills, and Kelley would ‘buy stocks for us for our future and to pay the mortgage.” Cooper also testified that, at Kelley’s suggestion, she quit her job, stayed home, and took care of the children, “instead of them going to day care,” but that she maintained employment (babysitting or cleaning houses) to “pay her share of the bills.”

Here, it is clear that the entire injury claimed was not to the peace, happiness and feelings, but was also to the person or purse, and Kelley correctly asserts that OCGA § 51-12-6 was not the “proper measure of damages for a fraud claim,” in this case. The trial court entered a single award of damages for both the fraud and contract claims, and it cannot be determined from the record the amounts awarded for each claim. Because, in my opinion, a finding of fraud could not be sustained, and Kelley is entitled to a new trial on that claim, the issue of damages should likewise be submitted to the trier of fact in a new trial.

3. As to Division 5,1 do not agree that a basis existed for the trial court’s award of attorney fees pursuant to OCGA § 13-6-11. In issuing an award of attorney fees, the trial court found that “[Kelley] has acted in bad faith and has been stubbornly litigious in regards to his promise to marry [Cooper].” Regarding OCGA § 13-6-11,

[b]ad faith is bad faith arising out of the transaction upon which the complaint is based and refers to a time prior to the institution of action. It generally refers to bad faith in entering into the contract or bad faith during the course of dealings with the plaintiff. ... If there is any reasonable ground to contest the claim, there is no bad faith and it would be error for the court to permit the jury to return a verdict for penalties and attorney fees. A judgment would not be authorized if the [defendant] had reasonable and probable cause for making a defense to the claim. .. . “[Stubborn litigiousness,” and “causing the plaintiff unnecessary trouble and expense” refer to a defendant’s forcing of the plaintiff to sue where no “bona fide controversy’ exists. The Supreme Court has described this on a number of occasions as a “wanton or excessive indulgence in litigation.”

Cooper initiated suit against Kelley on March 7, 2011, initially alleging claims to establish paternity, child support, and for equitable partition of real and personal property. On March 31, 2011, Kelley answered, admitting paternity and that the child who was the subject of the paternity/support claims was entitled to his support. Kelley denied the allegation that Cooper was entitled to an equitable partition of real or personal property the parties purportedly had acquired jointly during the relationship. Kelley also counterclaimed for custody of the child. The record reflects that the parties submitted to mediation on June 8, 2011, and resolved all issues other than those concerning the partition of real property. On August 2, 2011, the trial court entered an order reflecting the parties’ agreement.

On August 10, 2011, Cooper amended her complaint. She reasserted the claims that she had initially asserted, which had already been resolved by order of the court; however, she asserted new claims for implied/constructive trust (requesting an equitable partition of the residence the parties shared), breach of contract for alleged breach of “contract to marry,” unjust enrichment (for alleged benefits she conferred upon Kelley in reliance on his promise to marry her), fraud (for allegedly intentionally deceiving her for the purpose of receiving benefits from her for which he had no intention of compensating her), and attorney fees. On September 13,2011, Kelley asserted various defenses, and denied the allegations supporting the new claims. The record shows no further action in the case, until the bench trial was held on November 1, 2012.

The evidence at trial was conflicting as to whether Kelley had actually proposed marriage to Cooper, as to whether Kelley had broken off the relationship by asking Cooper to leave the house, and as to whether Cooper had contributed financially to the household expenses. And as stated above, the evidence showed that both parties had relationships with other people during the relevant time period. Moreover, Cooper admitted that Kelley had paid about $10,000 for the ring that Kelley had given her, and that she still possessed the ring at the time of trial. I would hold, therefore, that as a matter of law, a bona fide dispute existed as to Cooper’s new claims, and Kelley had reasonable defenses to the allegations. Moreover, as it was Cooper who amended her complaint after all but one of her claims had been disposed of from her initial complaint, and Kelley had done nothing more than raise defenses and deny the new allegations, Kelley has displayed no wanton or excessive indulgence in litigation. Thus, in my view, the trial court erred in entering an award of attorney fees, and that award should be stricken.

Decided November 22, 2013.

McKee & Mitchell, Sammie M. Mitchell, for appellant.

James W. Clifton, for appellee.

Therefore, I would affirm the trial court as set forth in Divisions 1 and 2 of the majority opinion, but I would reverse the trial court as set forth in this dissent.

I am authorized to state that Presiding Judge Ellington joins in this dissent.

       Aparty that fails to move for a directed verdict is “barred from contending on appeal that they are entitled to a directed verdict in their favor,” but an appellate court may still “review the sufficiency of the evidence under the ‘any evidence’ standard of review” to determine if that party is entitled to a new trial. (Footnote omitted.) Aldworth Co. v. England, 281 Ga. 197, 201 (2) (637 SE2d 198) (2006).

        Eagle Jets, LLC v. Atlanta Jet, Inc., 321 Ga. App. 386, 391 (1) (740 SE2d 439) (2013).

       Cooper had another child from a relationship that preceded her relationship with Kelley.

       See, e.g., Phillips, 251 Ga. App. at 235-237 (2) (issue of fact as to whether claim of unjust enrichment in certain financial transactions arose out of meretricious relationship); Long v. Marino, 212 Ga. App. 113, 114 (2) (a) (441 SE2d 475) (1994) (claim that defendant had “an implied duty to provide financial support in return for [the plaintiff’s] agreement to live with [defendant] and maintain sexual relations” barred as a meretricious relationship); Samples v. Monroe, 183 Ga. App. 187 (358 SE2d 273) (1987) (claims of breach of contract and unjust enrichment regarding shared living expenses barred by OCGA § 13-8-1 because of a meretricious relationship); Liles v. Still, 176 Ga. App. 65, 66 (2) (335 SE2d 168) (1985) (issue for jury as to whether agreement to share living expenses arose out of meretricious relationship); Wellmaker v. Roberts, 213 Ga. 740, 741 (101 SE2d 712) (1958) (because agreement between woman and defendant to engage in illicit sexual relations formed a part of the contract to share certain expenses, the agreement was void).

       The dissent raises an argument that the appellant did not raise, namely that because Cooper raised a claim for unjust enrichment (and raised and abandoned a claim for an implied/constructive trust), she was not authorized to seek damages for injury to her peace, happiness, and feelings under OCGA § 51-12-6. Accordingly, the argument asserted by the dissent is not properly before this court. “Our review is limited to those matters enumerated and argued by an appellant.” Peripety Group v. Smith, 237 Ga. App. 158, 162 (3) (514 SE2d 262) (1999) (dissent’s argument which was not raised by the appellant was not properly before the court).

       OCGA § 51-12-6 provides, in full:
      In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded.

        Zieve v. Hairston, 266 Ga. App. 753, 758 (2) (598 SE2d 25) (2004) (citation and punctuation omitted) (physical precedent only).

        JTH Tax, Inc. v. Flowers, 302 Ga. App. 719, 726 (2) (b) (691 SE2d 637) (2010).

        Mallen v. Mallen, 280 Ga. 43, 45 (1) (a) (622 SE2d 812) (2005) (recognizing that actionable fraud cannot be predicated upon promises to perform some act in the future or on a mere failure to perform promises made) (citation omitted).

        JTH Tax, Inc., supra at 725 (2) (b) (citations and punctuation omitted).

        Realty Lenders v. Levine, 286 Ga. App. 326-327 (649 SE2d 333) (2007) (citation omitted).

        River WalkFarm v. First Citizens Bank & Trust Co., 321 Ga. App. 173, 177 (4) (741 SE2d 165) (2013).

       See generally Equifax, Inc. v. 1600Peachtree, L.L.C., 268 Ga. App. 186, 195 (601 SE2d 519) (2004).

        SeeAldworth Co. v. England, 281 Ga. 197,199 (2) (637 SE2d 198) (2006) (OCGA § 5-6-36 (a) permits “a party to obtain only a new trial on appeal if she prevails on a claim that the evidence was insufficient to sustain the verdict, but failed to move for a directed verdict on that ground at trial.”).

       OCGA § 51-12-6, pertinently provides, “In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors.”

        Mallard v. Jenkins, 186 Ga. App. 167, 168 (1) (366 SE2d 775) (1988) (citations and punctuation omitted; emphasis in original and supplied).

       Cooper abandoned this claim at trial.

        Phillips v. Blankenship, 251 Ga. App. 235, 236 (1) (554 SE2d 231) (2001) (“Breach of promise to marry is a common law contract action”) (citation and punctuation omitted).

        Williamson v. Weeks, 142 Ga. App. 149 (235 SE2d 587) (1977).

       Mallard, supra.

        Derrickson v. Kristal, 148 Ga. App. 320, 321(3)(251 SE2d 170)(1978)(“[OCGA § 13-6-11], as interpreted, permits the trial judge when sitting as the trier of fact to make an award of litigation expenses.”) (citation omitted).

        Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 221 (2) (308 SE2d 564) (1983) (citations and punctuation omitted).

        Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676, 677 (266 SE2d 796) (1980) (At the appellate level, “ ‘[t]he proper rule is that the judgment [for attorney fees pursuant to OCGA § 13-6-11, on the ground of bad faith] should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense.’ ”) (citation and punctuation omitted); Myers v. Myers, 195 Ga. App. 529, 532 (7) (394 SE2d 374) (1990) (physical precedent only) (“Recovery of attorney fees for stubborn litigiousness is not authorized where there is a ‘bona fide controversy.’ ”) (citation, punctuation and emphasis omitted); Jeff Goolsby Homes Corp., supra at 222 (2) (holding that a bona fide dispute existed and that defendants had, as a matter of law, a reasonable defense to plaintiffs’ claims; thus, “attorney fees therefore must be stricken from the judgment and award.”).

        See Ken-Mar Constr. Co., supra; Jeff Goolsby Homes Corp., supra.


author: MCFADDEN, Judge.

text:
    A13A1051.
    ALLEN v. THE STATE.
    (751 SE2d 915)
   MCFADDEN, Judge.

After we granted his application for interlocutory appeal, Deondrez Allen filed this appeal of the denial of his motion to suppress. He argues that the “be on the lookout” (“BOLO”) broadcast which led to the stop of the car in which he was arrested was too vague to establish reasonable suspicion. We agree and therefore reverse the denial of his motion to suppress.

While the trial court’s findings as to disputed facts on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

State v. Sanders, 274 Ga. App. 393 (617 SE2d 633) (2005). The relevant facts from the testimony at the suppression hearing are undisputed, and the trial court entirely accepted that testimony. Corporal Daniel Anderson of the Fulton County Police Department, the officer who stopped the car in which Allen was a passenger and the only witness, testified that he

was given a lookout from a previous case, and basically the BOLO was a silver or dark colored Dodge Charger, and in a certain area of Flat Shoals in unincorporated Fulton County. And while on patrol, [he] noticed the vehicle matching that description, and [he] followed it and attempted to pull it over, and it pulled into a parking lot for a business there, and [he] conducted [his] traffic stop there.

He explained that the BOLO was issued because “[t]here were armed robberies in the area just off Flat Shoals Road. A subdivision in that area, and approximately three miles from the area that [he] pulled the vehicle over which is at Flat Shoals and Old National Road.” The armed robberies “had been occurring for a couple of days up until the actual time that [he] actually pulled the vehicle over. The last time... it was earlier that day or just the day before. Earlier that morning or the evening of....” In any event, the last armed robbery had occurred “more than three” hours before the stop. The stop occurred “at night. Probably... three in the morning..., something like that.” Anderson testified that the BOLO did not give the car’s direction of travel or the number of occupants; the only description of the occupants was “black males.”

The stop appears to have uncovered no information about the robberies, but Anderson smelled marijuana when he approached the car and later found marijuana inside. Allen, one of the occupants, was charged with possession of marijuana with intent to distribute.

Allen moved to suppress the marijuana. Following a hearing, the trial court denied the motion. The court found “nothing improper in the officer’s investigatory stop of a car that matched the description in a BOLO for armed robbers under the totality of the circumstances in this case.”

The proper question is whether the stop was justified by reasonable suspicion.

Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct____An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. . . . [C]ourts must consider all the facts and circumstances of a particular case in considering the legality of an investigative stop. In determining whether a stop was justified by reasonable suspicion, the totality of the circumstances — the whole picture — must be taken into account.

Darden v. State, 293 Ga. App. 127, 130 (1) (a) (666 SE2d 559) (2008) (citations omitted).

In Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994), our Supreme Court held that a police officer must have sufficient particularized information to justify a traffic stop, or else the stop is “an unreasonable governmental intrusion.” Id. at 321 (2). In Vansant, an officer stopped the defendant based solely on information that a white van had been involved in a hit-and-run in a restaurant parking lot approximately a mile away. The court noted that the officer

did not have a particularized description of the vehicle; he did not know the direction in which the vehicle had left the scene of the purported hit-and-run; he had not observed criminal activity on the part of the person stopped; he had no knowledge or suspicion that the vehicle had been involved in other, similar criminal behavior.

Id. The court held that under these circumstances, the stop was illegal and the trial court properly granted the defendant’s motion to suppress. Id. Thus, Vansant stands for the proposition that insufficiently particularized descriptions of vehicles believed to be related to criminal activity do not justify a traffic stop.

We applied this principle in State v. Dias, 284 Ga. App. 10 (642 SE2d 925) (2007), in which an officer was told to look for “a maroonish or a brownish color either a Ford Taurus or a Tempo, or something like that, leaving the scene [of a shopping center burglary] with a white male occupant” who may have been wearing a baseball cap and who was traveling “east on Oakridge from Radium and Oakridge.” Id. at 12 (2). We held that the description of the car was fatally general, observing that it contained “no year or body style, information about the condition, or number of doors”; and the description of the suspect was similarly defective, observing that it included no details other than skin color and gender. Id. at 13 (2).

The effect of the description was that the officers should look for some sort of brown or maroon automobile manufactured by the Ford Motor Company driven by a white male who might be wearing a baseball cap. This description would cover a staggering number of vehicles in the State of Georgia.

Id.

The facts of this case are similar to those in Vansant and Dias. The only specific piece of information was the make and model of the car ■— a Dodge Charger. The other information was so general as to be essentially useless. The color was described as “silver or dark,” a description that excludes very little. There was no information about the approximate year of manufacture or the condition of the car. The only facts known about the occupants were their race and gender; not even the number of occupants was known. No particular street or direction of travel was communicated, and the vehicle was said to have been associated with a crime at least three hours old, much longer than the period of time between the BOLOs and stops in Vansant and Dias. And the vehicle carrying Allen was stopped approximately three miles from the crime scene, a greater distance from the crime scene than the stops in Vansant (one mile) and Dias (two miles). Under these circumstances, the BOLO was too generalized to justify the stop.

We have found BOLOs that conveyed similar information to be insufficient to support stops. In Murray v. State, 282 Ga. App. 741 (639 SE2d 631) (2006), we held that a BOLO for a gold Ford pickup truck on Selfridge Road with a male driver who had thrown a woman from the truck, was insufficient to support a stop several minutes later of a gold Ford truck heading away from the general direction of Selfridge Road. In State v. Burns, 238 Ga. App. 683 (520 SE2d 39) (1999), we held that a BOLO for an “ ‘older, yellow in color Monte Carlo driven by or occupied by two suspects, one unknown and one... believed to be a white man,’ that had been involved in a purse snatching three days earlier at a Lowe’s store about two miles away” was insufficient to justify the stop. See also State v. Wolf, 317 Ga. App. 706 (732 SE2d 782) (2012) (physical precedent) (stop of vehicle in an area in which many burglaries had occurred the day after a mail carrier had relayed his suspicions about the vehicle was unjustified; the only information conveyed was the race and gender of the occupants and the make and color of the vehicle).

Decided November 22, 2013.

Lauren B. Shubow, for appellant.

Paul L. Howard, Jr., District Attorney, Edward J. Tarver, Jr., Arthur C. Walton, Assistant District Attorneys, for appellee.

The cases cited by the state are distinguishable. In Thomason v. State, 268 Ga. 298 (486 SE2d 861) (1997), the description of the car was much more specific than the description here. There, the BOLO was issued for “a brown 1978 or 1979 Oldsmobile Cutlass, described as being ‘not as dark [brown] as the sheriff department’s cars,’ with a lighter brown top, being driven by a white male.” Id. at 299 (2). “Shortly thereafter,” the defendant’s car was spotted “nearby.” Id. Unlike the instant case, in Thomason the year of the car was described, the specific color of the car was described, a distinguishing feature — the lighter brown top — was described, the number of occupants was known, and the stop occurred shortly after the BOLO was issued.

In Shorter v. State, 239 Ga. App. 625, 626 (1) (521 SE2d 684) (1999), the officer who stopped the car

was looking for a blue Cadillac with four black men near the area where a tipster said he saw gunshots fired from such a car. Ablue Cadillac with four black men in it crossed the road directly in front of the police car, almost hitting it. The officer had to stop in the middle of the street to avoid a collision.

Without specifying whether it was the description of the car or the careless driving that supported the stop, we held that “[tjhese facts support the conclusion that the officer had a reasonable, articulable suspicion for attempting to pull the Cadillac over.” Id. In any event, unlike the instant case, in Shorter, the specific color of the car was known, the number of occupants was known, and the car was spotted near the area where the crime had occurred.

Judgment reversed.

Doyle, P. J., and Boggs, J., concur in judgment only.


text:
    A13A1197.
    AMERICAN RADIOSURGERY, INC. et al. v. RAKES.
    (751 SE2d 898)
   Phipps, Chief Judge.

Bruce Rakes sued American Radiosurgery, Inc. (ARI) and its chairman and chief executive officer, John Clark, seeking damages under various theories in connection with a contract of employment executed by Rakes and ARI. Because the defendants thereafter failed to timely file responsive pleadings and respond to discovery requests, the trial court granted an initial default judgment, which default was subsequently opened; granted partial summary judgment against ARI, which ruling rested at least partly upon an unanswered request for admissions; and struck the defendants’ answer as a sanction for discovery abuse, entering a default judgment regarding liability as to both defendants. After a hearing on damages, the court entered final judgment against ARI and Clark jointly and severally. Contested in this appeal are the partial summary judgment, the sanction of striking the answer, and the final judgment. For reasons that follow, we affirm in part and vacate in part, and remand the case.

On March 21, 2008, Rakes filed a verified complaint that alleged the following. ARI was engaged in the business of marketing and selling a neurosurgical device used to treat brain tumors known as the “Rotating Gamma System.” A key component of the device was a software application that aided in the targeting and radiation prescription used by the device. Rakes was a physicist and software engineer, who previously had helped develop a software application for a device similar to the Rotating Gamma System. For that prior work, Rakes had become well known and highly regarded in his field.

As Rakes’s complaint continued, Rakes and ARI entered into an “Employment Agreement” that commenced in March 2004 and continued “until. . . such time as terminated by either party giving the other at least one month written notice.” Pursuant to their Agreement, Rakes would perform duties as the company’s “Director, Software Development” and would also serve as a company officer. His compensation included a specified annual salary; a “completion bonus,” which was to be paid upon the first “successful installation and operation of the first paid [Rotating Gamma System] using [the software application]”; and “ongoing royalty” of a designated amount for each Rotating Gamma System placed with a client. Also, the Agreement stated that ARI would “pay or reimburse” Rakes for expenses he incurred in connection with his employment.

Rakes further alleged that, during the course of his employment with ARI, the company failed to pay and reimburse him monies owed. Nevertheless, Rakes continued working on the software application until April 2007, when it was substantially complete. At that time, ARI owed him for, inter alia, outstanding salary, unpaid bonuses, and unreimbursed expenses. In June 2007, ARI terminated its relationship with Rakes. Since that time, ARI had installed a Rotating Gamma System in at least one hospital and had supplied the software application for another Rotating Gamma System. Meanwhile, ARI had disregarded Rakes’s demands to be paid the amounts owed him, as well as his demands to discontinue holding him out as a company officer in the company’s marketing materials.

In his complaint, Rakes sought to recoup monies under theories of recovery including breach of contract and misappropriation of name and likeness. Rakes also pursued attorney fees and litigation expenses under OCGA § 13-6-11. And Rakes alleged that Clark had disregarded and abused the corporate form, and consequently was personally liable for any judgment entered against ARI.

Affidavits of a process server show that ARI and Clark (personally and in his capacity as ARI’s agent) were personally served on April 10, 2008 with the complaint, summons, and numerous discovery requests. When neither ARI nor Clark filed an answer within the statutory period, the trial court granted Rakes a “default judgment against Defendants on liability and judgment on all claims” on June 5, 2008. Within a week, the defendants filed a verified answer and a motion to open default, wherein they claimed, inter alia, that they had not been served with process. After a hearing, the trial court granted on August 20, 2009 the defendants’ motion to open default; the court noted Clark’s claim that he had received the complaint (in his personal or corporate agent capacity) in the mail, but stated that it was “not specifically ruling upon the defense of proper [sic] service of process.”

On September 23, 2009, Rakes filed a motion for partial summary judgment on his breach of contract claim against ARI, asserting that the company had failed to respond to his request for admissions that had been served with the complaint over a year earlier. Rakes argued that the admissions thereby made conclusively established that ARI was liable to him for failing to pay him as agreed and that only the amount of damages needed to be determined.

On September 30, 2009, Rakes filed a motion to strike the defendants’ answer for failure to respond to the discovery requests. He asserted that, along with the complaint and respective summonses, each defendant had been served with discovery requests, and that ARI had also been served at that time with a request for admissions.

On October 26, 2009, ARI responded to the summary judgment motion, asserting that Rakes had failed to show that he had served the request for admissions. ARI pointed out that the process server’s affidavit did not list any request for admissions. Rather, the affidavit had enumerated as documents served: “S & C; Ntc of Filing of Verification; 1st Requests for Prod, to Clark & ARI; 1st Interr. to Clark,” which ARI understood as referring to “the Summons and Complaint, Interrogatories and Requests for Production of Documents.” Moreover, ARI reasserted on Rakes’s motion for summary judgment that it had never been served with process, citing Clark’s affidavit that had been attached to the defendants’ motion to open default, wherein Clark averred:

I was not personally served in my individual capacity, but rather only received the complaint and summons via US mail. ... I was not personally served in my capacity as registered agent for the corporation, but rather only received the complaint and summons via US Mail.

ARI acknowledged, however, that it had “actual notice” of Rakes’s request for admissions “by at least June 11, 2008, over a year ago.” But it “denie[d] any inference that it was properly served with the disputed Requests for Admissions.”

On November 2, 2009, ARI and Clark responded to Rakes’s motion to strike their answer. In their response, they stated that “neither Defendant has received the disputed Interrogatories or Requests for Production of Documents that are referenced in Plaintiff’s Motion to Strike” and that:

Defendants have denied ever being personally served with the Complaint. The defective service of the Complaint cannot become the basis for service of the disputed discovery requests. There is no evidence that the discovery requests were ever properly served on either Defendant. Plaintiff has not alleged that the discovery requests were ever served in any other manner other than the alleged and disputed service with the Complaint. This Court should permit this case to be decided on the merits.

A few days later, ARI mailed its response to Rakes’s request for admissions. And on November 6, “[o]ut of an abundance of caution,” ARI filed a motion for leave to withdraw answers deemed admitted, maintaining that Rakes had not properly served it any request for admissions.

Rakes countered ARI’s motion for leave, filing his attorney’s affidavit stating that the lawyer had hired a process server to personally serve ARI and Clark, and that the documents counsel gave to the process server were the complaint, a summons to each defendant, interrogatories to ARI, interrogatories to Clark, a request for production of documents to each defendant, and requests for admissions to ARI. Further, the lawyer averred, he had not mailed any such documents to ARI or to Clark.

The record shows that, thereafter, on December 7, 2009, ARI responded to Rakes’s interrogatories, Clark responded to Rakes’s interrogatories, and both defendants responded to Rakes’s request for production of documents.

Subsequently, the trial court entered the three orders contested in this appeal. In the first order, entered on December 16, 2009, the trial court granted Rakes’s motion for partial summary judgment against the company. In the second order, entered on March 25, 2011, the trial court granted Rakes’s motion to strike the defendants’ answer and for entry of default judgment against them as to liability. When the court convened a hearing on the issue of damages on August 10, 2011, defendants’ counsel reported to the court that he had filed earlier that morning “Defendants’ Motion to Open Default and to Vacate Order Filed March 25, 2011.” Further, defendants’ counsel stated that the defendants were not asking for a continuance and announced “ready to proceed with the damages hearing.” Accordingly, Rakes testified regarding damages and presented evidence as to attorney fees and litigation expenses.

On June 20, 2012, the trial court entered the third order challenged in this appeal. By final judgment, the court denied the defendants’ motion to open default and vacate order, and awarded to Rakes damages for the breach of contract claim, prejudgment interest on the breach of contract damages award, damages for misappropriation of name and likeness, as well as attorney fees and litigation expenses.

1. ARI challenges the grant of partial summary judgment entered against it on Rakes’s breach of contract claim on the issue of liability.

In this contention, “[ARI] does not argue that the trial court erred in [its] application of the summary judgment standard.” Instead, ARI asserts that by granting partial summary judgment, the trial court effectively denied its motion to withdraw admissions. ARI charges the trial court with abuse of discretion, maintaining that it was not properly served with the request for admissions and that without the allegations therein deemed true, there was no evidentiary basis to support the summary judgment ruling. “We therefore confine our analysis” to whether ARI has demonstrated that the trial court abused its discretion by denying its motion to withdraw admissions.

OCGA § 9-11-36, which governs requests for admissions, provides that “[a] party may serve upon any other party a written request for the admission ... of the truth of any matters within the scope of subsection (b) of Code Section 9-11-36 [general provisions governing discovery] which are set forth in the request. . . ,” Pursuant to that statute,

[t]he matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney[.]

“Any matter admitted under [OCGA § 9-11-36] is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.”

On appeal, ARI points out that whether it was served the request for admissions was disputed. Regarding that issue, the record shows that when ARI (and Clark) sought to open the initial default judgment, ARI announced that it was ready to proceed with discovery and trial of the issues, attaching to the motion, inter alia, a copy of Rakes’s request for admissions. And later, in opposing Rakes’s motion for summary judgment, ARI acknowledged having had the request for over a year, but asserted that service had not been perfected. After ARI made that claim, Rakes filed his attorney’s affidavit stating that he had hired a process server to personally serve ARI with, among other documents, the request for admissions; that the request for admissions had been provided to the process server; and that he (the lawyer) had not mailed any document to ARI or to Clark.

“Proof of service may be made by certificate of an attorney or of his employee, by written admission, by affidavit, or by other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service.” Here, although the facts were disputed, the trial court was authorized to find that ARI had been duly served with Rakes’s request for admissions. Hence, this contention provides no basis for disturbing the grant of partial summary judgment against ARI.

2. ARI and Clark contend that the trial court erred by striking their answer and entering against them (the second) default judgment as to liability. They point out that, prior to striking their answer, the trial court had neither issued an order to compel nor held a hearing on Rakes’s motion to strike. Moreover, ARI and Clark assert that dismissing their answer was too harsh a sanction.

[R]ulings on motions to strike and for entry of default judgment are reviewed by this Court using an abuse of discretion standard. Indeed, a trial judge has broad discretion in the enforcement of the discovery provisions of the Civil Practice Act, and we will not interfere with the exercise of that discretion absent clear abuse.

Here, the trial court was authorized to find that ARI and Clark were properly served in April 2008 with the complaint, summons, and discovery requests — including a set of interrogatories to each defendant. And it is undisputed that when Rakes filed his motion to strike in September 2009, neither ARI nor Clark had answered, obj ected, procured an extension, or sought a protective order. Although the record shows that ARI and Clark thereafter responded to the cited discovery requests, “[o]nce a motion for sanctions has been filed, their imposition cannot be precluded by a belated response made by the opposite party.”

Rakes is correct in that OCGA § 9-11-37 (d) (1) permits an immediate sanction, including dismissal of the answer, against a party for a “total failure” to respond to interrogatories. Further, an order compelling discovery is not a condition precedent for imposing sanctions under OCGA § 9-11-37 (d) (l). Generally, “prior to the imposition of such sanctions, all that is required is a request for sanctions, notice to all parties, and a motion hearing to determine if the offending party’s failure to respond was wilful.” However, in some “exceptional cases,” a hearing is not necessary.

For example, in a case where a trial court has already conducted a hearing on a prior motion to compel, the record may already contain enough evidence of the obstinate party’s willful behavior to support the conclusion that any hearing on the issue of willfulness would simply be duplicative.

But this is not the type of exceptional case wherein a hearing on wilfulness was unnecessary. “ ‘[T]he record... would support (though not demand) a finding that [the defendants’] failure to [respond to discovery requests, including interrogatories] resulted from negligence rather than wilfulness.’ ” AEI and Clark claimed that they had not been served interrogatories, each averring having “only received the complaint and summons . . . .” Meanwhile, as AEI and Clark assert and the record reveals, the parties did engage in some discovery. And prior to the court’s order dismissing their answer, AEI and Clark filed a response to Eakes’s motion to strike, as well as responses to the interrogatories at issue.

As this court has expounded:

The general rule may be that, although a trial court may impose sanctions, including dismissal, against a [party] without a hearing when the [party] has completely ignored discovery, has not responded to a properly served motion for sanctions, and has failed to request a hearing on the motion, it may not impose the sanction of dismissal without a hearing where . . . the [party] has responded to discovery, albeit in a most tardy manner.

Accordingly, in ASAP Healthcare Network v. Southwest Hosp. & Medical Center, where the plaintiff did not request oral argument on the defendant’s motion to dismiss plaintiff’s claims, but the plaintiff did oppose the motion to dismiss, respond to discovery, and move to reopen discovery, this court reversed the dismissal of the plaintiff’s claims and remanded the case to allow the trial court to conduct a hearing on the defendant’s motion.

Because the circumstances of this case did not place it within that category of “exceptional cases” for which a hearing on willfulness was unnecessary, we vacate the order granting Eakes’s motion to strike the defendants’ answer and for entry of default judgment against them as to liability, vacate the final judgment entered on June 20, 2012, and remand the case for proceedings not inconsistent with this opinion.

3. In light of Division 2, we do not reach Eakes’s remaining contentions, which contest rulings set forth in the final judgment (that was entered June 20, 2012).

Decided November 22, 2013.

Aaron B. Chausmer, for appellants.

Katz, Stepp, Wright & Fleming, Robert J. Fleming, Fried & Bonder, Joseph A. White, for appellee.

Judgment affirmed in part and vacated in part, and case remanded.

Ellington, P. J., and Branch, J., concur.

       See OCGA § 9-11-12 (a).

       See OCGA § 9-11-55.

       (Emphasis in original.)

        Patel v. Columbia Nat. Ins. Co., 315 Ga. App. 877, 877 (729 SE2d 35) (2012); see Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974) (a motion for summary judgment is designed to test the merits of the claim). But cf. Scanlan v. Tate Supply Co., 303 Ga. App. 9 (a) (692 SE2d 619) (2010) (explaining that because a motion for summary judgment is designed to test the merits of a claim, a defense such as lack of personal jurisdiction is generally not a proper subject for summary judgment).

       See Sayers v. Artistic Kitchen Design, LLC, 280 Ga. App. 223, 226 (2) (633 SE2d 619) (2006) (noting that review of ruling on motion to withdraw admissions is for abuse of discretion).

        Patel, supra.

       Id. at 879 (quoting OCGA § 9-11-36).

       OCGA § 9-11-36 (a) (2); see G. H. Bass & Co. v. Fulton County Board of Tax Assessors, 268 Ga. 327, 329(1) (486 SE2d 810) (1997) (holding that “request for admission under OCGA § 9-11-36 (a) are not objectionable even if they require opinions or conclusions of law, as long as the legal conclusions relate to the facts of the case”) (citations omitted).

       OCGA § 9-11-36 (b).

       OCGA § 9-11-5 (b).

        See Roberts v. Roberts, 226 Ga. 203, 205 (1) (173 SE2d 675) (1970) (construing language — “Proof of service may be made by certificate of an attorney or of his employee, or by written admission, or by affidavit, or other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service.” - to mean that the mere averment of service, even though contradicted by opposing counsel, is sufficient basis for the trial court to find valid service); see also, e.g., Tyson v. Automotive Controls Corp., 147 Ga. App. 409 (1) (249 SE2d 99) (1978) (recognizing that it is permissible to serve request for admissions by mail), cited in Cruickshank v. Fremont Inv. & Loan, 307 Ga. App. 489, 492, n. 8 (705 SE2d 298) (2010); see also McKesson HBOC v. Adler, 254 Ga. App. 500, 504 (1) (562 SE2d 809) (2002) (“The trial court is the trier of fact in discovery disputes.”) (citation omitted).

       See generally Deen v. Stevens, 287 Ga. 597, 612 (3) (b) (698 SE2d 321) (2010) (explaining that a party “cannot avoid summary judgment by pointing to contradictory evidence in the record on an issue that makes no difference to the legal analysis”).

        Cameron v. Miles, 311 Ga. App. 753, 754 (1) (716 SE2d 831) (2011) (punctuation and footnotes omitted).

       See generally Green v. Snellings, 260 Ga. 751, 752 (1) (400 SE2d 2) (1991) (noting that the facts, even though disputed, authorized finding that defendant had been properly served with pleadings on motion to compel discovery).

       See OCGA § 9-11-33 (a) (2) (providing that answers or objections to interrogatories must be answered within 30 or 45 days, unless court has allowed a shorter or longer time).

        Singleton v. Eastern Carriers, Inc., 192 Ga. App. 227, 228 (3) (384 SE2d 202) (1989) (citation and punctuation omitted; emphasis in original).

        Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 438-439 (2) (254 SE2d 825) (1979); see Howard v. Alegria, 321 Ga. App. 178, 189 (4) (c) (739 SE2d 95) (2013).

        Howard, supra.

       Id.; Rivers v. Almond, 241 Ga. App. 565, 566 (1) (527 SE2d 572) (1999) (“[A]n order compelling discovery is not a condition precedent for the imposition of sanctions under subsection (d). All that is required is a motion, notice, and a hearing”) (citations omitted).

        McConnell v. Wright, 281 Ga. 868, 869 (644 SE2d 111) (2007).

       Id. at 869-870, citing Schrembs v. Atlanta Classic Cars, 261 Ga. 182-183 (402 SE2d 723) (1991).

       Id., quoting Greenbriar Homes, Inc. v. Builders Ins., 273 Ga. App. 344, 347 (5) (615 SE2d 191) (2005).

        ASAP Healthcare Network v. Southwest Hosp. & Medical Center, 270 Ga. App. 76, 79 (1) (606 SE2d 98) (2004).

       Supra.

       Id. at 79 (1).

       Supra.