text:
    A11A2173.
    READY MIX USA, INC. et al. v. ROSS.
    (726 SE2d 90)
   Miller, Judge.

Terrell B. Ross injured his back during the course of his employment with Ready Mix USA, Inc. a/k/a Aggregates USA (“Ready Mix”) and filed a claim for workers’ compensation benefits. Following a hearing at which Ready Mix and its insurer, Liberty Mutual Insurance Company (“Liberty Mutual”), failed to appear, an administrative law judge (“ALJ”) of the State Board of Workers’ Compensation (the “Board”) awarded Ross temporary total disability (“TTD”) benefits, authorized certain medical procedures, and ordered the assessment of attorney fees and litigation expenses in favor of Ross. After the Appellate Division of the Board adopted the ALJ’s award, Ready Mix and Liberty Mutual (also collectively referred to as “Appellants”) appealed to the Superior Court of Jones County. As a result of the superior court’s failure to enter a timely decision, the Appellate Division’s award was affirmed by operation of law. See OCGA § 34-9-105 (b). We granted Appellants’ application for discretionary appeal. On appeal, Ready Mix and Liberty Mutual contend that the superior court erred in failing to reverse the Appellate Division’s adoption of the ALJ’s award on the grounds that (1) Appellants were not provided wdth proper notice of the hearing; (2) the ALJ improperly admitted and considered Ross’s medical records; (3) the ALJ improperly denied Appellants’ motion to withdraw or amend their admissions; and (4) attorney fees and costs should not have been awarded in the absence of adequate notice. For the reasons set forth below, we affirm.

On appeal from an award of the Appellate Division of the State Board of Workers’ Compensation, this Court examines the record to see if there is competent evidence to support the award and construes the evidence in a light most favorable to the prevailing party. Further, it is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this [C]ourt has any authority to substitute itself as a fact finding body in lieu of the [B]oard.

(Citation and punctuation omitted.) Harris v. Peach County Bd. of Commrs., 296 Ga. App. 225 (674 SE2d 36) (2009).

Construed in the light most favorable to Ross, the evidence demonstrates that Ross was employed by Ready Mix as a maintenance worker. On the day of his injury, December 28, 2009, Ross was using a sledgehammer to swing a heavy ball hooked to a crane when he started feeling pain and tightening in his back. Although Ross immediately reported the injury to his supervisor, he was not provided with Ready Mix’s panel of physicians at that time. About a week later, when Ross began to feel pain emanating from his lower back, he again advised his supervisor about the December 28, 2009, injury. At that point, Ready Mix sent Ross for an evaluation, where Ross was diagnosed with lumbar and thoracic back strain caused by his work. The evaluating physician put Ross on restrictive duty at work and prescribed Ross with physical therapy and medication. A few weeks later, Ross selected and began seeing his primary authorized treating physician, who recommended that Ross undergo a cervical MRI. Ross’s primary authorized treating physician subsequently referred Ross to an authorized orthopaedic spine specialist for further evaluation and treatment; the orthopaedic spine physician recommended that Ross receive facet injections in his lower back. Ross testified that the orthopaedic spine physician took Ross out of work completely as of May 28, 2010. A work status report completed on May 28, 2010, by the offices of Ross’s orthopaedic spine physician indicated that Ross was totally disabled until his next doctor’s appointment or pending the Board’s approval for facet injections.

Ross requested a hearing and sought authorization of a cervical MRI and lumbar facet injections; TTD benefits beginning May 28, 2010; a 15% penalty for nonpayment; and assessment of attorney fees and litigation costs. Ross also served Ready Mix and Liberty Mutual with written discovery requests, including requests for admissions, interrogatories, and requests for production of documents. Pursuant to the notice of hearing, Ross’s claim was heard before the ALJ on July 13, 2010. Neither Ready Mix nor Liberty Mutual appeared at the hearing; nor had they responded to Ross’s discovery requests. Ross testified at the hearing that he was unable to work pending further treatment.

Following the hearing, Ready Mix and Liberty Mutual moved to vacate the hearing on the grounds that they were not provided with adequate notice and to also withdraw or amend their responses to Ross’s requests for admissions. The ALJ issued a written order denying their motion and specifically finding that Ready Mix and Liberty Mutual were provided with proper notice of the hearing. The ALJ’s order also found that Ross was entitled to authorization of a cervical MRI and lumbar facet injections and awarded him TTD benefits in the amount of $500 per week from May 28, 2010, as well as assessed attorney fees and litigation expenses.

1. Ready Mix and Liberty Mutual contend that the superior court erred in failing to reverse the Appellate Division’s adoption of the ALJ’s award because the record did not show that they were properly served with a hearing notice. We disagree.

“Any notice required by this chapter shall be satisfied by the mailing of the notice to the address of record[.]” OCGA § 34-9-102 (i). “Service upon a party or attorney of any form, document, or other correspondence shall be by electronic mail. Whenever electronic mail is not available, service shall be by U.S. Mail.” Rules & Regulations of the State Board of Workers’ Compensation, Rule 60 0). This Court has concluded “that mailing notice, via first class mail, is sufficient. . . [and, thus,] the failure of a party to actually receive the notice [does not] constitute[ ] a nonamendable defect.” (Punctuation and footnote omitted.) American Mobile Imaging v. Miles, 260 Ga. App. 877, 878 (581 SE2d 396) (2003).

Here, the record before the ALJ contained a copy of the “Notice of Hearing” (the “Notice”), which contained the claim number and the names and addresses of the employee, the employer, and insurer, and which stated the time and place of the hearing. The ALJ took judicial notice of the Notice. The hearing record reflects the following statement by Ross’s counsel: “We confirmed that the address for the Employer and the address for the Insurer, Liberty Mutual, are the correct addresses, that all notices have been sent to the proper addresses and the Court’s notice has been sent electronically to the insurance company properly.” Ross’s counsel also indicated that other than the insurance adjuster’s authorization of three different doctors to treat Ross, she had received no contact from either Ready Mix or Liberty Mutual in response to Ross’s various attempts to obtain discovery and other information. The evidence was closed at the end of the hearing.

In support of their contention that there was no evidence in the record showing that they were provided with proper notice, Ready Mix and Liberty Mutual aver that the ALJ’s subsequent written order refers to specific materials that were not submitted at the hearing or otherwise before the evidence was closed. In his findings of fact, the ALJ specifically concluded that the Board’s satellite office sent the Notice by electronic mail to Liberty Mutual at its correct e-mail address and by United States Mail to Ready Mix at its correct mailing address; the ALJ also found that the Notice mailed to Ready Mix was not returned. Notwithstanding the ALJ’s reliance on additional documents not entered into evidence, we nevertheless construe the other evidence that was properly before the ALJ in the light most favorable to Ross as the prevailing party. See High Voltage Vending v. Odom, 266 Ga. App. 537, 538 (597 SE2d 428) (2004). So viewed, we conclude that the Notice itself, along with the statements of Ross’s counsel at the hearing, constituted some competent evidence to support the Board’s finding that Ready Mix and Liberty Mutual were provided with adequate notice. Cf. id.; Bailey-Lewis-Williams of Ga., Inc. v. Thomas, 103 Ga. App. 279, 280 (2) (119 SE2d 141) (1961).

2. Ready Mix and Liberty Mutual argue that the superior court erred in failing to reverse the Appellate Division’s adoption of the ALJ’s award, asserting that there was no properly admitted medical evidence showing that Ross was totally disabled as a result of his back injury. We disagree.

In all claims for compensation under Georgia’s Workers’ Compensation Act, the employee must carry the burden of proof and show that he sustained a disabling injury arising out of and in the course of his employment entitling him to compensation. An employee is entitled to total disability benefits under OCGA § 34-9-261 if the employee can show by a preponderance of credible evidence that he or she has experienced a loss of earning capacity due to the injury and not due to the employee’s unwillingness to work or to economic conditions of unemployment. The incapacity is total so long as the injured employee, by reason of and on account of his injury, is unable to do any work of any character.

(Citations and punctuation omitted.) Dasher v. City of Valdosta, 217 Ga. App. 351, 352-353 (1) (457 SE2d 259) (1995). Here, the ALJ found that Ross demonstrated by a preponderance of the credible evidence that his injuries were sustained in an accident on December 28, 2009, that arose out of and in the course of his employment with Ready Mix, and that Ross suffered a total loss of earning capacity on account of his injury.

On appeal, Ready Mix and Liberty Mutual nevertheless argue that Ross was not entitled to TTD benefits because there was no evidence that Ross was disabled by his work injury. In support of their argument, they first contend that the ALJ improperly admitted and considered Ross’s medical records in light of Ross’s alleged failure to provide a copy of those records to Ready Mix and Liberty Mutual before the hearing. Ready Mix and Liberty Mutual rely solely upon Rule 102 (E) (3) (b) of the Rules & Regulations of the State Board of Workers’ Compensation. Board Rule 102 (E) (3) (b) provides as follows:

All medical evidence regarding the treatment, testing or evaluation of the claimant for the accident which is the subject of the hearing should be exchanged between the parties as soon as practicable, but no later than ten days prior to the hearing, and all depositions should be completed prior to the hearing. Failure to exchange such evidence within ten days of a hearing may, in the discretion of the Administrative Law Judge or the Board, result in: (1) the imposition of civil penalties, (2) award of assessed attorney fees, (3) a continuance, (4) award of costs, (5) award of witnesses fees and expenses, and/or (6) in limited circumstances, the exclusion of evidence at the hearing.

Contrary to Appellants’ contention otherwise, however, it is clear that the above-emphasized language of Rule 102 (E) (3) (b) does not mandate the exclusion of evidence that was not exchanged between the parties within ten days of the hearing. Rather, as properly construed, Rule 102 (E) (3) (b) gave the ALJ discretion to determine whether the circumstances of this case warranted the exclusion of Ross’s medical records; the ALJ was otherwise authorized to admit them at the hearing. Thus, there is no merit to Appellants’ contention that the ALJ erred in admitting Ross’s medical records.

Ready Mix and Liberty Mutual further contend that even if the AU’s admittance of the medical records was proper, there was still an absence of medical evidence showing that Ross was disabled by his work injury given that a physician’s assistant, rather than the orthopaedic spine physician, signed the May 28, 2010, work status report indicating Ross’s total disability. Appellants point to no statutory or judicial authority in support of their contention. Instead, Appellants rely solely upon their suggested implication that because suspension of benefits under Board Rule 221 (i) (4) (a) requires a medical report from the claimant’s authorized treating physician, “it follows that an authorized treating physician must provide the report under which benefits are to be initiated.” This is simply not the standard of proof imposed upon an employee seeking TTD benefits under OCGA § 34-9-261. As stated above, that standard requires an employee to show by a preponderance of credible evidence that he has experienced a loss of earning capacity due to the injury and not due to the employee’s unwillingness to work or to economic conditions of unemployment. See Dasher, supra, 217 Ga. App. at 352 (1).

Here, the work status report in the record clearly originated from the offices of Ross’s authorized orthopaedic spine physician and indicated that Ross was totally disabled until his next doctor’s appointment or pending the Board’s approval of lumbar facet injections. The record also contained Ross’s hearing testimony that his authorized orthopaedic spine physician took Ross out of work completely as of May 28, 2010, and that he was unable to work pending further treatment. This Court is bound by the “any evidence” standard of review, and

[r]egardless of what our findings would be if we were the factfinders, upon appeal, the evidence will be construed in a light most favorable to the party prevailing before the [B]oard, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court.

(Citation and punctuation omitted.) Dasher, supra, 217 Ga. App. at 352 (1). Construed in this light, we conclude that the foregoing record evidence supported the ALJ’s finding that Ross was entitled to TTD benefits starting May 28, 2010.

3. Ready Mix and Liberty Mutual contend that the superior court erred in failing to reverse the Appellate Division’s adoption of the ALJ’s denial of their motion to withdraw or amend their responses to Ross’s requests for admissions. There is no merit to Appellants’ contention.

With respect to requests for admission, the Georgia Civil Practice Act provides that “[t]he matter is admitted unless, within 30 days after service of the request. . . , the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter[.]” OCGA § 9-11-36 (a) (2). “Furthermore, although OCGA § 9-11-36 [(b)] provides that any matter admitted under the statute is ‘conclusively established,’ the statute also expressly authorizes the court to permit withdrawal or amendment of the admission and vests broad discretion in the trial court in this regard.” (Citation and punctuation omitted.) G.H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 330 (1) (486 SE2d 810) (1997).

Decided March 14, 2012

Swift, Currie, McGhee & Hiers, Timothy C. Lemke, Jon W. Spencer, for appellants.

Here, Ross served Ready Mix and Liberty Mutual with requests for admission on June 9, 2010. Both Ready Mix and Liberty Mutual failed to answer Ross’s requests within the requisite time period, thereby resulting in their admission that Ross suffered a disability as a result of the accident and injury occurring on December 28, 2009. See OCGA § 9-11-36 (a) (2), (b). In its written order, the ALJ denied the motion by Ready Mix and Liberty Mutual to withdraw or amend their admissions. On appeal, Ready Mix and Liberty Mutual specifically challenge the ALJ’s denial of their motion with respect to their admission that Ross suffered a disability as a result of the accident and injury occurring on December 28, 2009. Even assuming that the ALJ’s denial of the motion was improper as to that admission, however, the error was harmless. Cf. Bibb County v. Higgins, 241 Ga. App. 161 (526 SE2d 379) (1999) (concluding that ALJ’s error in basing workers’ compensation award, in part, upon medical treatises not admitted in evidence was harmless, where treatises were merely cumulative of medical expert’s testimony). Notably, the admission which Ready Mix and Liberty Mutual challenge was merely cumulative of the evidence set forth in Division 2 above, and even without consideration of their admission, the evidence was sufficient to support the ALJ’s finding that Ross was totally disabled and entitled to an award of TTD benefits.

4. Ready Mix and Liberty Mutual contend that the superior court erred in failing to reverse the Appellate Division’s adoption of the ALJ’s award of attorney fees and litigation costs because they were not provided with notice of the hearing. As discussed and concluded in Division 1 above, however, there was some competent evidence in the record to support the ALJ’s finding of adequate notice. Accordingly, this contention is without merit.

Judgment affirmed.

Ellington, C. J., and Doyle, P. J., concur.

Katherine L. McArthur, Leslie L. Cadle, for appellee.

       The superior court subsequently entered an untimely order affirming the Appellate Division’s award.

       Ready Mix and Liberty Mutual also assert that the Notice incorrectly listed the street name in Ready Mix’s address. This is not sufficient to establish insufficient notice, however, as “notice to either the employer or insurer serves as notice to the other.” (Footnote omitted.) Miles, supra, 260 Ga. App. at 879.

       This Rule specifically provides, “When suspending benefits for release to return to work without restrictions, the employer/insurer shall attach to the Form WC-2 a copy of the supporting medical report from employee’s authorized treating physician, who must have examined the employee within sixty days of the effective date of the release.” Rules & Regulations of the State Board of Workers’ Compensation, Rule 221 (i) (4) (a).

       We note that discovery procedures at a workers’ compensation hearing before an ALJ are governed and controlled by the Georgia Civil Practice Act. See OCGA § 34-9-102 (d) (1).

       Specifically, the statute provides that “the court may permit withdrawal or amendment when [(1)] the presentation of the merits of the action will be subserved thereby and [(2)] the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” OCGA § 9-11-36 (b). “The burden as to the first prong is on the party moving to withdraw and the burden as to the second prong is on the respondent.” (Citation and punctuation omitted.) Johnson v. City Wide Cab, 205 Ga. App. 502, 502 (1) (422 SE2d 912) (1992).


source: Caselaw Access Project

author: BOGGS, Judge.

license: Public Domain

text:
    A11A2264.
    A11A2265.
    MATTHEWS v. DUKES et al. DUKES v. MATTHEWS.
    (726 SE2d 95)
   BOGGS, Judge.

We granted these discretionary applications to consider the trial court’s rulings in this legitimation action. The trial court did not err in denying appellant Kevin Matthews’ legitimation petition, determining that Matthews had lost his opportunity interest in becoming the child’s legal father, and finding that legitimation was not in the best interest of the child. The trial court also did not abuse its discretion in entering a no-contact order with respect to Matthews. We therefore affirm in part. The trial court erred, however, in ordering Matthews to pay child support, and we therefore reverse that portion of the court’s order.

The facts as found by the trial court show that immediately after Amy Dukes (“the wife”) married James Dukes (“the husband”) in 2003, she began an affair with Matthews, who was also married to another. In 2005, the wife became pregnant, and suspected that Matthews might be the father. She informed the husband, but falsely told him “that she’d had a one-time sexual encounter with him and that it was over.” The husband testified, and the trial court found that the husband “has provided for all the child’s needs” and the husband, wife and child “have lived together as a family continuously since the birth of the child.”

The wife testified that, after the child was born, she and Matthews arranged for a DNA test — under false names — and discovered that Matthews was the child’s biological father. They did not, however, inform the husband. Matthews did not take any legal steps at that time to acknowledge or legitimate the child. Instead, Matthews saw the child when the wife met him secretly at the marital residence, Matthews’ home, and other places where they believed they would not be recognized. These meetings included sex in the marital home while the child was there. Matthews also brought the child of his own marriage along to meetings outside the marital residence. Matthews testified that he gave the wife cash and purchased some toys and clothes for the child over a period of five years. He provided receipts for approximately $250 worth of clothes and toys. He believed that he had also purchased “a few more pull-ups and a few cans of formula” although he had no receipts, and he let her borrow some used clothing and equipment that his daughter had used. He acknowledged that he had not provided any substantial support for the child.

In 2010, the husband discovered that Matthews was seeing the child when the child complained that Matthews had pushed him down and hurt his arm. Suspicious of the wife’s behavior while she was on the family computer, the husband investigated and found numerous e-mail exchanges between the wife and Matthews that revealed their years-long affair. He instructed his wife to stop Matthews’ contact with the child; she did not immediately comply, but eventually the visits ceased. Only then did Matthews bring this action seeking to legitimate the child. As the trial court found, neither the husband nor the wife expressed an intent to end the marriage.

The trial court held a hearing at which all parties presented evidence and testimony. After the hearing, the trial court entered an order denying the petition to legitimate, finding that Matthews had lost his opportunity interest in becoming the father of the child and that it was not in the best interest of the child for Matthews to become the legal father. In addition, the court ordered Matthews to stay 500 yards away from the child unless he obtained written permission from the father and ordered Matthews to pay child support in the amount of $538 per month until the child was 18 years old, “unless earlier emancipated.” In Case No. A11A2264, Matthews appeals from the trial court’s order, asserting six enumerations of error. In Case No. A11A2265, the wife appeals from the trial court’s order, asserting two enumerations of error.

Case No. Al 1A2264

1. We first consider whether the trial court erred in denying Matthews’ petition for legitimation under OCGA § 19-7-22. Most legitimation cases apply an “opportunity interest” test derived from the Supreme Court of Georgia’s decision in In re Baby Girl Eason, 257 Ga. 292 (358 SE2d 459) (1987).

Before granting a petition to legitimate, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.
A biological father’s opportunity interest begins at conception and may endure through the minority of the child, but it may be abandoned by the unwed father if not timely pursued. On the other hand it is an interest which an unwed father has a right to pursue through his commitment to becoming a father in a true relational sense as well as in a biological sense. Factors which may support a finding of abandonment include, without limitation, a biological father’s inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child.

(Citations, punctuation and footnotes omitted.) Morris v. Morris, 309 Ga. App. 387, 388-389 (2) (710 SE2d 601) (2011). “If the trial court concludes that the father has abandoned his opportunity interest, that finding is sufficient to end the court’s inquiry and justifies the denial of the legitimation petition.” (Citation and punctuation omitted.) Id. at 389 (2), n. 5.

But a different standard applies where, as here, a petitioner is not attempting to legitimate a fatherless child as against unrelated third parties, such as the potential adoptive parents in Eason, but rather seeks to delegitimate the presumptively legitimate child of a marriage and thus to destroy an existing, legal parent-child relationship, as in Baker v. Baker, 276 Ga. 778, 781 (582 SE2d 102) (2003). There, the Supreme Court relied upon Davis v. LaBrec, 274 Ga. 5, 7-8 (549 SE2d 76) (2001), in which the child had been legitimated pursuant to OCGA § 19-7-22, and Ghrist v. Fricks, 219 Ga. App. 415, 420-421 (1) (465 SE2d 501) (1995), in which the child was, as in Baker, the presumptively legitimate offspring of a marriage. These cases are distinct from Eason and its progeny because in Baker, Davis, and Ghrist, the child had a legal father and a “legally recognized family unit already in existence.” (Citation, punctuation and footnote omitted.) Baker, supra, 276 Ga. at 780 (2). Such cases involve the strong public interest in supporting marriage and the family, as well as the presumption of legitimacy found in OCGA § 19-7-20 (a).

The public policy of this state favoring the institution of marriage and the legitimacy of children born during a marriage is the strongest public policy recognized by law. This court’s holding . . . that all children born in wedlock or within the usual period of gestation thereafter are legitimate, but the legitimacy of such a child may be disputed; where possibility of access exists, the strong presumption is in favor of legitimacy and the proof must be clear to establish the contrary, citing OCGA § 19-7-20 (a) and (b), is but one of the latest of a long series of decisions rendered by the appellate courts of Georgia recognizing this public policy and evincing the commitment of Georgia’s courts to enforcing it. This presumption of legitimacy is one of the strongest and most persuasive known to our law. Moreover, this statutory presumption is a firmly-established principle of law, evincing a strong state policy favoring marriage and legitimacy.

(Citations and punctuation omitted; emphasis in original.) Ghrist, supra, 219 Ga. App. at 418 (1).

In such a situation, our Supreme Court has declared that the “best interests of the child” standard should apply to any attempt to attack the presumption of legitimacy:

[W]e believe it is not contradictory to say that although the Code provides the means for the presumption of legitimacy to be rebutted, the trial court should consider the child’s best interests when deciding whether to permit the legal father’s status to be challenged by a rebuttal of the presumption of legitimacy. The law allowing the presumption of legitimacy to be rebutted was never intended to sever a child’s ties with his or her legal father. In fact, the Code sections . . . were primarily intended to provide for the establishment rather than the dissolution of legitimacy and paternity. Moreover, our public policy will not permit a [petitioner] to enlist the aid of the courts to disturb the emotional ties existing between a child and his legal father after sitting on [his] rights for the first phase of the child’s life.

(Citations, punctuation and footnotes omitted.) Baker, supra, 276 Ga. at 782 (3). Here, “[i]t is undisputed that [the husband] and the child have formed deep familial and psychological bonds that stem from the emotional attachments that derive from the intimacy of daily association.” (Citations and punctuation omitted.) Davis, supra, 274 Ga. at 7.

Put another way, cases such as these can be seen as concluding that the public policy of our state forbids the assertion of an Eason “opportunity interest” by a third party whose adulterous conduct has resulted in a presumptively legitimate child being born within an existing family — at least when that third party knowingly and fraudulently conceals his involvement from the legal father and takes no steps to claim the child as his own. Even the dissent in Baker, while objecting to the use of the majority’s analysis in the context of a divorce action, recognized that it was appropriate when fraud was involved, especially when “both biological parents engaged in fraudulent conduct regarding paternity while maintaining a years-long adulterous affair.” (Citation omitted.) 276 Ga. at 785 (Benham, J., dissenting). Such is precisely the situation here, and “this Court will not relieve parties of the consequences of their own fraudulent conduct. [Cit.]” Patterson v. Whitehead, 224 Ga. App. 636, 639 (3) (481 SE2d 621) (1997) (citing Ghrist, supra).

Even if we assume that Matthews had some form of opportunity interest in delegitimating a legitimate child and destroying an intact family, an analysis of the factors outlined in Morris, supra, 309 Ga. App. at 389 (2), shows that the trial court correctly concluded that Matthews has abandoned any such interest. He took no action during the wife’s pregnancy or birth, and he never sought to legitimate the child, even after he received the results from the secret DNA test, until almost five years after the child’s conception and only after his surreptitious contact with the child was cut off. Compare id. at 390 (2) (putative father participated in doctor visit, went to hospital, provided home and medical insurance for mother, and petitioned for legitimation within two months of child’s birth).

Both Matthews and the wife argue that Matthews pursued his opportunity interest by meeting with the child during the course of their affair and by giving the wife cash and making purchases for the child. But occasional visits with and small gifts to the child do not alter the conclusion that he abandoned his “opportunity interest” within the meaning of Eason. In the absence of a legal, public, or unconcealed assertion of any opportunity interest, Matthews has lost any such interest he may have had.

The trial court’s ruling on a legitimation petition is reviewed for abuse of discretion only. Morris, supra, 309 Ga. App. at 389 (2). Moreover, “factual findings made after a hearing shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citation and punctuation omitted.) Harris v. Williams, 304 Ga. App. 390, 390-391 (696 SE2d 131) (2010). Under the circumstances presented here, the trial court did not err in denying Matthews’ legitimation petition.

2. Matthews also argues that because the denial of his legitimation petition is, in effect, a termination of his parental rights, the case therefore should have been transferred to juvenile court. This contention is without merit. See Ghrist, supra, 219 Ga. App. at 421 (2) (paternity and legitimation action not termination action, and issue of putative father’s rights ancillary to paternity and legitimation issues).

3. We next consider the trial court’s entry of a no-contact order with respect to Matthews. Even in a dispute between legal parents, in deciding

the issue of custody of a child, which includes visitation, the trial court has very broad discretion, looking always to the best interest of the child. When the trial court has exercised that discretion, this court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, this court will not find there was an abuse of discretion.

(Citations and punctuation omitted.) Taylor v. Taylor, 282 Ga. 113, 114 (1) (646 SE2d 238) (2007) (divorce decree denying any visitation with husband supported by some evidence and not abuse of discretion). Similarly, if a legitimation petition is granted, the trial court has discretion with respect to visitation, considering the best interests of the child. OCGA § 19-7-22 (f.l).

In addition, a trial court has the inherent power to craft such conditions as will enforce its orders.

The inherent power of courts to enforce their orders is grounded in both the [C]onstitution and the Official Code of this state. Under OCGA § 15-1-3 (3), every court has the power to compel obedience to its orders. And the Georgia Constitution provides that each court may exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments. Ga. Const. Art. VI, Sec. I, Par. IV This court will not undertake to control the wide discretion vested in the trial court in the exercise of this fundamental power unless it is made to appear that wrong or oppression has resulted from an abuse of such discretion reposed in the court. Moreover, where equity acquires jurisdiction for any purpose it will retain jurisdiction to give full and complete relief, whether legal or equitable, as to all purposes relating to the subject matter.

(Citations, punctuation and footnote omitted.) Clark v. Chapman, 301 Ga. App. 117, 119 (687 SE2d 146) (2009). And a court is constitutionally authorized to “take action to protect the efficacy of its judgment from a party’s actions that endanger that judgment. [Cits.]” Felix v. State, 271 Ga. 534, 537 (523 SE2d 1) (1999).

Here, bearing in mind these principles and the strong interest of the State of Georgia in preserving intact families and defending marriage and legitimacy, we consider the evidence presented to the trial court. The trial court has determined that Matthews has no legal relationship with the child, and we have affirmed that determination. But Matthews has demonstrated repeatedly over a period of years that he has no respect for marriage or the family, and he has not taken responsibility for his actions or considered any potential harm to the child from his conduct. Moreover, as the trial court noted in its order, Matthews has been hostile and confrontational with the husband. The trial court was authorized to protect the child and the family from interference and the resulting confusion and harm to the child.

The trial court was also authorized to give certainty to its no-contact order by including a requirement for written permission from the father in the order. Otherwise, the mother could render the order of no effect by taking the child to see Matthews as she has in the past, thus arguably giving consent to the forbidden contact. See, e.g., OCGA § 16-5-91 (a) (violation of protective order must be without consent). Under these circumstances, the trial court did not err in entering a no-contact order with respect to Matthews.

Case No. A11A2265

4. In Case No. A11A2265, the wife complains that the court’s no-contact order violates her right as the mother to determine her child’s associations and companions. But her illegal and fraudulent conduct, as well as that of Matthews, contributed to the situation in which she now finds herself. And her position has not been constant or consistent. Although initially she gave an affidavit stating that she did not want the child to have contact with Matthews, at the hearing she stated that she had changed her mind, although she was unable to articulate any clear reason for having done so. She continues to assert her desire for Matthews to legitimate the child and for the child to have contact with Matthews, although she joins his appeal of the award of child support.

The trial court could reasonably conclude from the evidence presented that the wife is unable to stay away from Matthews of her own volition, despite claiming that “I don’t break up marriages,” acknowledging that “it couldn’t go on the way it was,” and complaining that it was “very stressful” for her to keep up the affair. She continued to have sexual intercourse with Matthews even after being served with the petition in this case and two months before the hearing. She involved her child in the relationship as well, only stopping because, by her own testimony, the child “is now talking and he’s going home and he’s telling, you know, [the husband] oh, I saw Kevin today, you know.” In addition, evidence was presented that when the child complained that Matthews pushed him down and hurt his arm, the wife told her husband that the child “made it up.” The evidence and testimony show that the wife placed her illicit relationship with Matthews before the best interest of her child, to the child’s detriment. Her belatedly expressed concern at the hearing that the child may be “devastate[d] ” or “hurt” if he someday learns who his “real father” is does not comport with her previous actions.

The paramount concern of the courts is to consider the best interests of the child and to protect that child from harm to those interests, if circumstances require it. As we noted in Division 3, supra, the trial court did not abuse its discretion in concluding from the evidence presented that the continued presence of Matthews, with a lengthy history of misconduct, subterfuge, and improper influence over the wife, was harmful to the child both directly and indirectly as a threat to the integrity of the child’s family and “the emotional ties existing between a child and his legal father.” Baker, supra, 276 Ga. at 782 (3).

5. The trial court erred, however, in requiring Matthews to pay child support after denying his petition for legitimation. The trial court reasoned that paternity is separate from legitimation and support may be ordered despite lack of legitimation. But, as we noted in Division 1, above, this is not a typical legitimation proceeding, nor is it a paternity suit. Matthews’ petition sought not to provide a father — and hence a father’s support — to a fatherless child, but “to, in effect, render the legitimate child illegitimate.” Ghrist, supra, 219 Ga. App. at 418 (1). And “[t]he statutes do not contemplate a child having two legal fathers.” In the Interest of C. L., 284 Ga. App. 674, 676 (1) (644 SE2d 530) (2007) (grant of legitimation petition substituted biological father for legal father and former legal father could not seek custody). This is certainly also true when the legitimation petition has been denied: a biological father who has not been permitted to legitimate a child may not usurp the legal father’s obligation and duty to support his child.

Decided March 14, 2012.

Capers, Dunbar, Sanders, Bruckner & Bellotti, Amanda M. Bellotti, for Matthews.

James M. Spence, Lisa L. Clarke, for Dukes et al.

Here, Matthews was never determined to be the legal father, and because of the unusual circumstances presented here, he had no opportunity interest in claiming paternity of the legitimate child of an intact family. No legal basis exists for an obligation to support the child, and the trial court therefore erred in ordering Matthews to pay child support.

Judgment affirmed in part and reversed in part.

Mikell, P. J., and Dillard, J., concur.

       At the time of the hearing in 2011, Matthews remained married to his wife, although they had been separated for approximately one year.

       The wife and Matthews later tested the second child of the marriage, and determined that she was the daughter of the husband and the wife.

       The husband questions whether the wife has any standing to assert the denial of Matthews’ legitimation petition as error. We need not consider that question because we find no error here in any event.

       This is not, as Matthews asserts, hearsay, as it was not submitted to prove the truth of the matters asserted: whether the child was injured by Matthews or whether the child “made it up.” See, e.g., Wright v. State, 302 Ga. App. 101, 104 (3) (690 SE2d 220) (2010). Rather, it demonstrates the wife’s willing participation in the concealment of both her affair with Matthews and Matthews’ contact with the child, as well as her stated motivation for ending contact with Matthews because the child was beginning to talk.

       Although acknowledging that the right of support belongs to the child and may not be waived by a parent, see Worthington v. Worthington, 250 Ga. 730, 731 (1) (301 SE2d 44) (1983), the husband does not oppose Matthews’ argument, stating that his “first and foremost desire is for the cessation of any and all contact between the Appellant Kevin Matthews and every member of his family, particularly with his son .... [He] is fully capable of financially supporting his son without any assistance from anyone else, especially Mr. Matthews.”


author: Miller, Judge.

text:
    A11A2358, A11A2359.
    JOHNSON et al. v. DeKALB COUNTY et al. (two cases).
    (726 SE2d 102)
   Miller, Judge.

Robert Edward Johnson, Howard Krinsky, and Kenneth Young (collectively, “Appellants”) appeal from the trial court’s order granting a motion by DeKalb County to enforce a settlement agreement between the parties. Appellants contend that (1) the purported settlement agreement was not a binding and enforceable agreement; (2) the settlement agreement violated the Statute of Frauds; (3) DeKalb County failed to meet its requisite burden of proof to prevail on its motion to enforce the settlement agreement; and (4) the trial court erred in denying Appellants’ alternative motion to enforce the settlement agreement on the terms of their settlement offer. For the reasons set forth below, we affirm.

We apply a de novo standard of review to a trial court’s order on a motion to enforce a settlement agreement. Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the Appellant’s case. Thus, we view the evidence in a light most favorable to the nonmoving party[.]

(Punctuation and footnotes omitted.) DeRossett Enterprises v. Gen. Elec. Capital Corp., 275 Ga. App. 728 (621 SE2d 755) (2005).

So viewed, the evidence shows that a part of DeKalb County’s stormwater drainage system discharged water onto Appellants’ respective properties, causing the properties to sustain erosion damage. In November 2007, Appellants sued DeKalb County and other unknown individuals for injunctive relief and damages. After completing discovery, the parties attempted to resolve the case through alternative dispute resolution.

During this process, a DeKalb County engineer submitted a concept plan (the “Concept Plan”) to correct the drainage issues and repair Appellants’ properties. Appellants hired their own engineering consultant to review the Concept Plan. Appellants’ consultant issued written comments on the Concept Plan, which were forwarded to DeKalb County for consideration. Thereafter, on December 29, 2010, Appellants sent DeKalb County an e-mail with seven proposed terms of settlement (the “December 2010 E-mail”).

At a subsequent mediation between the parties, DeKalb County made an offer to implement the Concept Plan, estimated to cost $80,000, as well as pay Appellants a total of $10,000. Appellants countered with an offer to settle for a total payment of $55,000, as well as implementation of the Concept Plan to include the modifications specified by Appellants’ consultant. On February 26, 2011, Appellants sent another e-mail to DeKalb County stating that they would settle for a total payment of $45,000 plus implementation of the Concept Plan.

On February 28, 2011, an attorney representing DeKalb County sent Appellants’ counsel an e-mail stating:

I was telling you the 100% truth when we talked; the [DeKalb County] [BJoard of [C]ommissioners gave us authority [to settle] for $115,000, i.e. the fix plus $35,000.1 hope we don’t have to try the case over $10,000, but what I offered you is the authority we have, and that isn’t going to change.

Appellants’ counsel responded the same day, asking whether DeKalb County was “o.k. with the repair items as outlined [in the Concept Plan] and adjusted by [them].” DeKalb County’s attorney sought clarification about Appellants’ reference to “adjustments” in an e-mail dated March 1, 2011. DeKalb County’s attorney stated that, based on statements made by Appellants at the last mediation session, he was under the impression that Appellants were willing to accept the Concept Plan without the other proposed conditions set out in their December 2010 E-mail. In response, Appellants’ counsel confirmed that the terms contained in their December 2010 E-mail were either not a part of the settlement agreement or were otherwise already implicitly covered by the Concept Plan. Appellants’ response e-mail also indicated that Appellants were willing to accept DeKalb County’s offer to implement the Concept Plan plus payment of $35,000 in damages.

DeKalb County then began attempts to formalize a written settlement agreement, but acknowledged that there was no rush since it was still trying to complete a final design of the Concept Plan. DeKalb County did not provide a final design of the Concept Plan until a few days prior to the case’s scheduled trial date. In light of the parties’ anticipated settlement, and because the scheduled trial date was nearing, DeKalb County also asked Appellants to execute a voluntary dismissal without prejudice. When Appellants’ consultant reviewed the final Concept Plan provided by DeKalb County, however, he commented that the final design did not incorporate his prior recommendations. Appellants notified DeKalb County of their concerns and refused to execute the voluntary dismissal in light of such concerns.

As a result, DeKalb County filed a motion to enforce the settlement agreement, arguing that the parties settled the case on the terms that DeKalb County would pay Appellants $35,000 plus implement the Concept Plan. In response, Appellants argued that they never reached a final settlement agreement with DeKalb County, but had rather only “agreed to agree,” which is not an enforceable settlement. Following a hearing on the motion, the trial court concluded that the settlement agreement was enforceable and granted DeKalb County’s motion to enforce the same. Appellants filed a motion to reconsider, which the trial court denied. On appeal, Appellants challenge the trial court’s grant of DeKalb County’s motion to enforce the settlement agreement.

1. Appellants argue that the purported settlement agreement was not enforceable because the evidence showed that the parties entered only into an “agreement to agree” and had no meeting of the minds on all essential terms of the contract. We disagree.

“[T]he law favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced.” (Punctuation and footnote omitted.) DeRossett Enterprises, supra, 275 Ga. App. at 729 (1).

In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties. The settlement agreement alleged to have been created in this case would have been the product of the attorneys for the parties. As the existence of a binding agreement is disputed, the proponent of the settlement must establish its existence in writing. The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.

(Citation and punctuation omitted.) Pourreza v. Teel Appraisals &c., 273 Ga. App. 880, 882-883 (616 SE2d 108) (2005).

Here, Appellants assert that the e-mail exchanges between their counsel and DeKalb County’s counsel demonstrated only the parties’ ongoing negotiations. In particular, Appellants argue that their counsel’s February 26, 2011 e-mail requesting $45,000 in damages constituted a counteroffer to, and therefore a rejection of, DeKalb County’s offer to pay $35,000 in damages. See Lamb v. Decatur Fed. Sav. & Loan Assn., 201 Ga. App. 583, 585 (1) (411 SE2d 527) (1991) (“A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation^]”) (citation and punctuation omitted).

Notably, however, DeKalb County sent a subsequent e-mail on March 1, 2011, stating that its offer to implement the Concept Plan and pay $35,000 in damages would not change, and expressing its desire not to try the case over a difference of $10,000 in damages. Indeed, a rejected offer does not put an end to negotiation where the party who made the original offer renews it or assents to the modification requested in a counteroffer. Lamb, supra, 201 Ga. App. at 585 (1). Here, DeKalb County’s March 1, 2011 e-mail, making definite statements to settle, constituted DeKalb County’s renewal of its offer. Cf. Rakusin v. Radiology Assoc. of Atlanta, 305 Ga. App. 175, 180 (1) (699 SE2d 384) (2010) (“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”) (citations and punctuation omitted).

Appellants’ counsel subsequently sent a response via e-mail, which unequivocally accepted DeKalb County’s original offer and memorialized the parties’ agreement to settle. See Pourreza, supra, 273 Ga. App. at 883; Moreno v. Strickland, 255 Ga. App. 850, 852-853 (1) (567 SE2d 90) (2002). Moreover, the essential elements of the agreement were clear — implementation of the Concept Plan and payment of $35,000 — and Appellants’ counsel did not condition acceptance on the occurrence of any other events. Contrary to Appellants’ claim, the agreement was not contingent on acceptance of the terms outlined in their December 2010 E-mail. Notably, in accepting DeKalb County’s offer, Appellants’ counsel specifically confirmed that the other settlement terms previously sought by Appellants were not a part of the settlement agreement or otherwise implicitly included in the Concept Plan. Therefore, the other terms outlined by Appellants were not essential elements of the settlement agreement.

We recognize that DeKalb County attempted to execute a formal written settlement agreement while waiting on the completion of the final design of the Concept Plan. Notwithstanding Appellants’ argument to the contrary, however, DeKalb County’s actions did not change the fact that on March 1, 2011, the parties entered into

a mutual binding agreement. Thereafter, the drafting of documents necessary to effectuate the settlement agreement may have been a condition of the performance but it was not an act necessary to acceptance of the offer to settle. . . . [T]his is simply a case where an agreement as to terms was clearly made and then [Appellants] changed [their] mind and no longer wanted to settle the case.

Decided March 14, 2012.

Teague & Chambless, James S. Teague, Jr., Keisha M. Chamb less, for appellants.

(Citations and punctuation omitted.) Pourreza, supra, 273 Ga. App. at 883.

2. Appellants next contend that the settlement agreement violated the Statute of Frauds, because execution of the Concept Plan required construction easements. We disagree.

“[W]hile the Statute of Frauds requires a contract involving the sale or transfer of an interest of land to be in writing, OCGA § 13-5-30 (4), that written requirement does not extend to [a] settlement agreement pursuant to which the transfer is to be made.” (Citation and punctuation omitted.) Triple Eagle Assoc. v. PBK, Inc., 307 Ga. App. 17, 19 (2), n. 6 (704 SE2d 189) (2010). In any event, as discussed in Division 1 above, the e-mail exchange between counsels for Appellants and DeKalb County was sufficient to memorialize the terms of the settlement agreement and render it an enforceable contract. See, e.g., Capitol Materials v. Kellogg & Kimsey, Inc., 242 Ga. App. 584, 587 (4) (530 SE2d 488) (2000) (holding that an attorney’s letter was sufficient to meet the Statute of Frauds because the letter memorialized the terms of an agreement).

3. Appellants contend that the trial court erred in granting DeKalb County’s motion to enforce the settlement agreement because DeKalb County failed to meet its requisite burden of proof. Their claim is without merit.

As discussed in Division 1 above, DeKalb County showed that there was no record evidence sufficient to create a jury issue on any essential element. See DeRossett Enterprises, supra, 275 Ga. App. at 728.

Accordingly, the trial court did not err in granting DeKalb County’s motion to enforce the settlement agreement.

Judgment affirmed.

Ellington, C. J., and Doyle, P. J., concur.

Duane D. Pritchett, Kendric E. Smith, for appellees.

       Appellants have filed two appeals in Case Nos. A11A2358 and A11A2359, both of which challenge the trial court’s ruling on the motion to enforce the settlement agreement. The appeals raise the same enumerations of error and arguments, and Appellants have filed identical briefs in both cases. We therefore consolidate these duplicative appeals for resolution in this opinion.

       Appellants offered to settle if DeKalb County (1) started construction of the Concept Plan, subject to the comments of Appellants’ consultant, within 90 days of the settlement agreement, finished construction within 180 days, and maintained the structures on a continuing basis; (2) minimized disturbance to the drainage easement area, fixed existing erosion, and landscaped the disturbed area; (3) replaced the number of trees killed or destroyed as a result of the construction; (4) obtained the opinion of a qualified hydrologist regarding “state waters” in the subject drainage easement; and (5) paid $40,000 in damages and $35,000 in attorney fees. In exchange, Appellants would (6) release DeKalb County from liability subject to the general maintenance of the drainage easement and drainage structures and (7) execute and record easements for the construction and maintenance of the proposed drainage modifications.

       In light of this conclusion, we need not address Appellants’ argument that the trial court should have enforced the settlement agreement according to these other terms.

       Appellants also argue that the trial court erred by failing to provide them 30 days notice in which to respond to the motion to enforce the settlement agreement. However, this claim was not enumerated as error, and as a result, we are precluded from reviewing the claim on appeal. See Toberman v. Larose Ltd. Partnership, 281 Ga. App. 775, 780-781 (3) (637 SE2d 158) (2006) (“A party cannot expand his enumerations of error through argument or citation in his brief.”) (citations and punctuation omitted). Even if Appellants had properly enumerated this argument, they nevertheless waived any procedural defect by not raising an objection at the hearing on the motion to enforce the settlement agreement. See, e.g., Jones v. Orris, 274 Ga. App. 52, 56 (1) (616 SE2d 820) (2005); Dennisson v. Lakeway Publishers, 196 Ga. App. 85 (1) (395 SE2d 366) (1990).


author: McFADDEN, Judge.

text:
    A11A1637.
    CRAWFORD v. THE STATE.
    (726 SE2d 58)
   McFADDEN, Judge.

Robert Crawford appeals from his convictions for aggravated assault upon a law enforcement officer, possessing a firearm during the commission of a crime, and giving a false name and date of birth to an officer. As a threshold matter, we note that Crawford has failed to comply with Court of Appeals Rule 25 (c) (1), which requires that the sequence of arguments in his brief follow the order of the enumerations of error and be numbered accordingly. Although Crawford has alleged 14 enumerations of error, he has set out only five argument sections which do not coincide with the numbered enumerations.

As we have previously held, Rule 25 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [Crawford] has hindered the Court’s review of his assertions and has risked the possibility that certain enumerations will not be addressed.

(Citation and punctuation omitted.) McCombs v. State, 306 Ga. App. 64, 64-65 (1) (701 SE2d 496) (2010). To the extent that we are able to discern arguments that are properly before us, we find no error.

Construed in favor of the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that late one August night, a police officer approached 16-year-old Crawford and another juvenile as they smoked cigarettes near the rear exit of a movie theater. When the officer attempted to verify their names and ages, Crawford provided a false name and birth date. After another officer arrived, Crawford ran away from the scene. As the first officer chased him, Crawford pulled out a handgun, turned and aimed the gun at the officer, and then pulled the trigger. But the gun did not fire because the magazine was not properly loaded. The officer continued the chase, and Crawford threw the gun to the ground. The officer eventually apprehended Crawford and recovered the gun, which had ten rounds of ammunition in the magazine.

The matter was originally filed in juvenile court, which transferred the case to superior court. After a jury trial and the denial of a motion for a new trial, Crawford filed this appeal.

1. Crawford claims that the juvenile court erred in transferring his case to the superior court. Such a transfer order is a final order that is directly appealable. In the Interest of D. M., 299 Ga. App. 586, n. 1 (683 SE2d 130) (2009). However, Crawford did not file an appeal within 30 days of that final order, and instead first challenged it nearly two years later in an amended motion for new trial. “Because [Crawford] failed to appeal the transfer to superior court within 30 days, he waived appellate review of this issue. [Cit.]” Cox v. State, 242 Ga. App. 334, 335 (2) (528 SE2d 871) (2000). See also Rivers v. State, 229 Ga. App. 12, 13 (1) (493 SE2d 2) (1997).

2. Crawford complains that the state violated reciprocal discovery by not providing him with video recordings from the officers’ patrol cars. However, Crawford has not cited any part of the record showing that this issue was raised in and ruled on by the trial court.

Pretermitting whether the State upheld its reciprocal discovery obligations, [Crawford’s] failure during trial to assert a discovery violation deprived the trial court of an opportunity to formulate appropriate relief, if any. . . . Accordingly, [Crawford] has waived this issue for purposes of appeal.

Garrett v. State, 285 Ga. App. 282, 284 (1) (645 SE2d 718) (2007).

Furthermore, according to trial counsel’s testimony at the motion for new trial hearing, only one such video was available, it was provided to him, and he watched it. Crawford “has not offered any explanation of the possible harm even if [there were a discovery violation], and therefore there are no grounds to reverse. [Cit.]” Dupree v. State, 267 Ga. App. 561, 564 (3) (600 SE2d 654) (2004).

3. Contrary to Crawford’s argument, the trial court did not err in refusing to charge the jury on reckless conduct and pointing a pistol at another as lesser included offenses of aggravated assault upon a law enforcement officer. Crawford was charged with aggravated assault for pointing and attempting to fire a handgun at the officer. During trial, both officers who were at the scene of the incident testified that they saw Crawford point the gun directly at the officer and pull the trigger. Crawford presented an “all or nothing defense,” admitting that he was at the scene, gave a false name and birth date to the officer, fled because he did not want the officer to find the gun, and discarded the weapon as he fled; but he denied pointing the gun at the officer or pulling the trigger. “Where, as here, the evidence establishes either the commission of the completed offense as charged, or the commission of no offense, the trial court is not authorized to charge the jury on a lesser included offense.” (Citations and punctuation omitted.) Seay v. State, 276 Ga. 139, 140 (2) (576 SE2d 839) (2003). Accordingly, the trial court correctly refused to charge the jury on reckless conduct and pointing a pistol as lesser included offenses of the aggravated assault charge. See Paul v. State, 296 Ga. App. 6, 8-9 (2) (673 SE2d 551) (2009).

4. The trial court also did not err in refusing to give a requested jury instruction based on OCGA § 24-4-6, concerning a conviction based on circumstantial evidence. Such a charge was not warranted because the state’s evidence supporting the conviction was not circumstantial; rather, the state relied on direct evidence in the form of the eyewitness testimony of the two police officers. See Kirk v. State, 289 Ga. App. 125, 126-127 (656 SE2d 251) (2008) (charge not required where there was direct evidence in the form of eyewitness testimony and no circumstantial evidence). Furthermore, even if we assume for the sake of argument “that the State introduced circumstantial evidence to establish some item of proof, and that [the] requested charge on OCGA § 24-4-6 should have been given, any error was harmless in light of the overwhelming evidence of guilt.” (Citation omitted.) Thompson v. State, 283 Ga. 581, 582 (3) (662 SE2d 124) (2008).

5. Crawford contends that the trial court, in its aggravated assault jury charge and recharge in response to a question from the jury, erroneously reduced the state’s burden of proof and indicated that the offense could be committed in a manner not alleged in the indictment, by instructing the jurors that they could convict Crawford merely because he had a deadly weapon in his possession and there was a policeman involved in the case. The contention is wholly without merit as the trial court gave no such instruction to the jury.

At trial, Crawford did not raise any objections to the aggravated assault charge or recharge, and therefore we will not reverse unless either charge constituted plain error. See Guajardo v. State, 290 Ga. 172, 175 (3) (718 SE2d 292) (2011). Thus, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding. Jury instructions must be read and considered as a whole when determining whether the charges contained error.” (Citations and punctuation omitted.) Id. at 176 (4). Here, the trial court properly charged the jury on Crawford’s presumption of innocence and the state’s burden of proof, fully and accurately instructed the jury on the offense of aggravated assault, informed the jury of the aggravated assault charge as alleged in the indictment, and sent the indictment out with the jury for deliberations. Considered in the context of the entire jury instructions, the trial court’s charge and recharge on aggravated assault were not obviously erroneous, nor did they likely affect the outcome of the proceeding. Accordingly, there was no plain error.

6. Crawford enumerates that the prosecutor made improper comments during closing argument that attempted to engender fear of the defendant. But as the record reveals and as Crawford acknowledges, there was no contemporaneous objection to the state’s closing argument. “Accordingly, appellant’s failure to object below so as to invoke a ruling by the trial court precludes our consideration of the merits of this contention that the State’s closing argument was improper.” (Citation and punctuation omitted.) McClarin v. State, 289 Ga. 180, 183 (3) (b) (710 SE2d 120) (2011).

7. Crawford argues that his trial counsel was ineffective in failing to call an expert witness on weapons, failing to object to the aggravated assault jury charge and recharge, failing to object to the lack of a jury charge on witness impeachment, and failing to object to the state’s closing argument purportedly engendering fear of the defendant.

To prevail on his claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. ... A court must indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

(Citations and punctuation omitted.) Ford v. State, 290 Ga. 45, 47-48 (5) (717 SE2d 464) (2011).

(a) At the motion for new trial hearing, trial counsel testified that he considered bringing in a weapons expert, that he spoke to three different experts about the gun in question, and that none of the information he received was favorable. Counsel’s decision not to call an expert “was clearly a tactical and strategic decision that cannot form the basis for an ineffective assistance claim.” Machiavello v. State, 308 Ga. App. 772, 776 (4) (709 SE2d 28) (2011). See also Smith v. State, 283 Ga. 237, 238 (2) (a) (657 SE2d 523) (2008).

(b) As discussed above in Division 5, the jury charges on aggravated assault were not erroneous. “Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.” (Citation and punctuation omitted.) Gross v. State, 312 Ga. App. 362, 364 (2) (718 SE2d 581) (2011) (no ineffective assistance in failing to object to aggravated assault charge).

(c) As for Crawford’s claim that counsel should have requested an impeachment charge because of purported conflicts in the evidence, “we note that [Crawford] has not indicated precisely what jury charge should have been requested.” Gross, supra at 364 (2). Regardless, the record shows that the trial court fully charged the jury on their duties to determine the credibility of witnesses and to resolve conflicts in the evidence. Given the jury charge as a whole, as well as the overwhelming evidence of guilt, “[e]ven assuming ar-guendo that trial counsel’s failure to request [some sort of impeachment] charge constituted deficient performance, we find no reasonable probability on the record before [us] that the outcome of the trial would have been different had the charge been requested. [Cit.]” Ruiz v. State, 286 Ga. 146, 149 (2) (b) (686 SE2d 253) (2009).

(d) At the motion for new trial hearing, trial counsel testified that he did not object to the state’s closing argument because the objections would have been so minor and “nitpicking” that they could have alienated the jury and thus done a disservice to the defendant.

[N]ot objecting to every improper statement made by the prosecutor during closing argument is often a sound tactic. In this case, even if the prosecutor’s fleeting remarks exceeded the proper bounds of appropriate argument, [Crawford] has not demonstrated that the failure to object was outside the wide range of professionally competent assistance and therefore fell below an objective standard of reasonableness.

(Citations omitted.) Relaford v. State, 306 Ga. App. 549, 557 (3) (e) (702 SE2d 776) (2010). Moreover, in light of the overwhelming evidence of guilt, there is no reasonable probability that the outcome of the trial would have been different if trial counsel had objected to the prosecutor’s closing argument. See Cannon v. State, 288 Ga. 225, 231 (6) (c) (702 SE2d 845) (2010).

8. Crawford complains that the trial court erred in not allowing an attorney to testify at the motion for new trial hearing as an expert who could opine about whether the various actions of trial counsel raised in the ineffective assistance of counsel claim constituted sound trial strategy. The complaint is without merit, and the trial court correctly refused to allow such improper testimony which would have merely “stated legal conclusions that the [trial court] could reach for itself.” (Citations omitted.) DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 57 (12) (668 SE2d 737) (2008).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.

Decided February 17, 2012

RECONSIDERATION DENIED MARCH 15, 2012

Stephenson & Reynolds, Pamela S. Stephenson, Lynn H. What-ley, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.


text:
    A11A1994, A11A2406.
    DUKE GALISH, LLC et al. v. SOUTHCREST BANK (two cases).
    (726 SE2d 54)
   McFADDEN, Judge.

Duke Galish, LLC and the guarantors of its loan (together, “Duke Galish”) appeal an order denying confirmation of a foreclosure sale but allowing SouthCrest Bank to conduct a resale of the property securing the loan. They also appeal an order requiring them to post a supersedeas bond. Duke Galish argues that SouthCrest did not timely confirm the operative foreclosure sale and that South-Crest acted in bad faith. Duke Galish also argues that the trial court lacked authority to require a supersedeas bond in this case. We hold that the foreclosure Duke Galish argues was the operative foreclosure was invalid — and therefore inoperative. And we hold that SouthCrest proceeded in a proper manner to correct the defect by re-foreclosing. And we hold that Duke Galish has not pointed to evidence that SouthCrest acted in bad faith. Therefore, we hold that the trial court did not err in allowing SouthCrest to resell the property. Finally, we hold that the trial court was authorized to require a supersedeas bond and that Duke Galish has not shown that the trial court abused its discretion in setting the amount. We therefore affirm.

The relevant facts are undisputed. Century Security Bank lent Duke Galish $1,720,346.72, and Duke Galish executed a note and security deed. Gary Anglin, Sr., Gary Anglin, Jr., Patrick Anglin and Luxomni Corporation guaranteed Duke Galish’s obligation. Duke Galish and the guarantors defaulted.

In the meantime, the original lender, Century Security Bank, went into receivership. The Federal Deposit Insurance Corporation, as receiver, assigned Duke Galish’s security deed to SouthCrest. This assignment to SouthCrest was recorded in the superior court on June 7, 2010.

SouthCrest began foreclosure proceedings before the assignment was recorded. It sold the property to itself on May 4, 2010 for $795,000, recorded a deed under power of sale that same day, and filed a petition for confirmation of the sale on May 25, 2010.

But it voluntarily dismissed the confirmation proceeding on June 7, 2010, the same day the assignment was recorded in superior court. SouthCrest advertised and conducted a second foreclosure sale on July 6, 2010, and again purchased the property at foreclosure for $795,000. It filed the instant action to confirm that sale.

Duke Galish moved for summary judgment, essentially arguing that because the May 4, 2010 deed under power had not been cancelled, SouthCrest could not conduct a second foreclosure sale, and the trial court could not confirm that sale. The trial court denied Duke Galish’s motion. It ruled that the notice and advertisement of the July 6, 2010, foreclosure sale were legal and regular. But it denied the confirmation petition because SouthCrest had not shown that it sold the property at its fair market value. The court found that SouthCrest acted in good faith, good cause existed to order a resale, and SouthCrest therefore could resell the property. Upon South-Crest’s motion, the trial court conditioned supersedeas upon Duke Galish filing a $300,000 bond. Duke Galish appealed from both the summary judgment and the supersedeas order.

Case No. A11A1994

1. In 2008, the legislature added to OCGA § 44-14-162 subsection (b), which provides:

The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.

Subsection (b) does not include a penalty for failure to comply with its provisions, but its purpose is “to require a foreclosure to be conducted by the current owner or holder of the mortgage, as reflected by public records.” Ga. L. 2008, p. 624, § 1/SB 531.

The assignment of the security deed to SouthCrest was not recorded until June 7, 2010, more than a month after the May 4, 2010 foreclosure sale. Duke Galish argues that the failure to comply with OCGA § 44-14-162 (b) rendered the May 2010 sale invalid and voidable — but not void. Consequently, Duke Galish argues, South-Crest could proceed with the July 2010 sale only after setting aside the May 2010 sale through a declaratory judgment action or quiet title action. Simply put, Duke Galish argues that SouthCrest forfeited its right to seek a deficiency judgment because SouthCrest failed to set aside the first, invalid sale but instead sought to cure the invalidity through re-foreclosure in compliance with the statute.

We are not required to determine whether a failure to comply with OCGA § 44-14-162 (b) rendered the invalid May 2010 foreclosure sale void or merely voidable. In either case, SouthCrest cured the invalidity by conducting a second foreclosure. Culver v. Lambert, 132 Ga. 296, 298 (64 SE 82) (1909).

Culver involved a borrower’s suit to recover certain land securing a debt upon which the borrower had defaulted. When the borrower defaulted, the lender obtained a judgment on the note and levied execution on the land by sheriffs sale without complying with all legal requirements, particularly that the lender first reconvey the land to the borrower and have the deed of reconveyance recorded. Id. at 297. The lender purchased the land at the sheriffs sale. Apparently after discovering the problem, the lender again levied execution on the land by sheriffs sale, this time, while complying with the legal requirements, again purchased the land and then sold it to a third party.

The borrower filed an action to recover the land, contending that the second sale did not divest her of title. The Supreme Court disagreed, holding that

where the lender ... is also the purchaser at an illegal and void sheriffs sale, we see no reason why he can not treat the sale as void, and proceed in the manner which he should have first adopted in the enforcement of his execution. The [borrower] can not complain that the [lender] treats as void a sale which the law pronounces invalid, and proceeds to sell again.

Culver at 298. The Supreme Court referred to the first sale as “void,” but it held that the sale could be set aside “at the instance of the borrower,” id. at 297, indicating the concept of voidability that Duke Galish insists is at issue here.

Although Culver involved a sheriffs sale of property securing a note after the creditor had obtained a judgment against the borrower, as opposed to the non-judicial foreclosure at issue here, this factual distinction does not undermine the application of the principle that when the lender is also the purchaser at an invalid sale, the lender can treat the sale as void and resell the property in the manner that it should have sold the property in the first place. See also Cary v. Guiragossian, 270 Ga. 192, 194 (1) (508 SE2d 403) (1998) (in case where foreclosing party invalidly exercised power of sale in security deed, since the lender had not executed assignment of the security deed to foreclosing party, “[t]he defect in the first foreclosure was corrected by the proper foreclosure of the security deed after [lender] had validly transferred and assigned it in writing.”).

Allowing this practice effectuates the legislative purpose reflected in OCGA § 44-14-162 (b): requiring foreclosures to be conducted by the current owner of the mortgage, as shown by public records. See Ferguson v. Ferguson, 267 Ga. 886, 887 (1) (485 SE2d 475) (1997) (“The cardinal rule of statutory construction is to ascertain the legislative intent and purpose in enacting the law and to construe the statute to effectuate that intent. [Cit.]”).

Duke Galish argues that the issue is controlled by Burgess v. Simmons, 207 Ga. 291 (61 SE2d 410) (1950), in which, it contends, the Supreme Court held that the failure to enter of record an assignment of a security deed renders the foreclosure of that deed voidable, not void. As we held above, however, whether the May 2010 foreclosure sale was void or voidable is irrelevant. In any event, we disagree with Duke Galish’s interpretation of the holding in Burgess.

In Burgess, the Supreme Court did discuss whether a sale under the powers contained in a security deed was void or voidable, but not in the context of the failure to record an assignment. Rather, the issue depended on certain terms in the security deed itself. Burgess, supra at 299 (3). Although the Supreme Court did address an issue regarding the failure to record an assignment of the security deed, the court simply rejected the challenge because the party’s “claim of title was acquired after notice by a properly recorded deed that the transfer had been made.” Id. at 298-299. It did not hold, as Duke Galish asserts, that a failure to record an assignment of a security deed renders a subsequent foreclosure sale merely voidable.

2. Duke Galish argues that the trial court erred in authorizing a resale because SouthCrest did not act in good faith during the foreclosure process. It contends that SouthCrest’s failure to attempt to remedy the cloud upon title created by the first foreclosure before re-foreclosing demonstrates its bad faith. As Duke Galish acknowledges, SouthCrest did undertake to remedy the defect by dismissing the action to confirm the May 2010 foreclosure sede and by proceeding to foreclose again, after the assignment had been recorded. And we found that undertaking sufficient in Division 1 of this opinion.

Duke Galish also argues that SouthCrest’s failure to update the appraisal of the property before re-foreclosing demonstrates bad faith. The trial court observed that SouthCrest obtained two appraisals prior to sale, and its failure to sell and buy the property at its fair market value was not intentional. Duke Galish has not shown that the trial court abused its discretion in finding that SouthCrest acted in good faith. Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233, 234-235 (3) (230 SE2d 324) (1976).

Case No. A11A2406

3. Duke Galish argues that the trial court lacked authority to order a supersedeas bond because the court had not granted monetary relief or disposition of property in SouthCrest’s favor. OCGA § 5-6-46 (a) provides:

In civil cases, . . . upon motion by the appellee, . . . the trial court shall require that supersedeas bond or other form of security be given with such surety and in such amount as the court may require, conditioned for the satisfaction of the judgment in full, together with costs, interest, and damages for delay if the appeal is found to be frivolous. . . .

The statute describes the amount the trial court should require when the appellant is appealing “a judgment. . . for the recovery of money not otherwise secured.” Id. It also provides that where

the judgment determines the disposition of the property in controversy as in real actions, . . . and actions to foreclose mortgages and other security instruments . . . the amount of the supersedeas bond or other form of security shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.

Id.

Duke Galish argues that the trial court could not require a supersedeas bond because the judgment it is appealing is not a monetary judgment and did not determine the disposition of the property, as it denied confirmation and ordered a re-sale. We disagree and find that this case is controlled by Cloud v. Georgia Central Credit Union, 214 Ga. App. 594 (448 SE2d 913) (1994). Cloud, like this case, involved “allegations] that [a] foreclosure sale was unlawful.” Id. at 595. In Cloud, as here, the trial court found that the non-judicial foreclosure sale was lawful. On appeal, the borrowers in Cloud argued that OCGA § 5-6-46 (a) did not authorize a super-sedeas bond because there was no money judgment. We rejected the argument because the case fell within the disposition-of-property provision of the statute. Cloud, 214 Ga. App. at 597 (5).

4. Duke Galish argues that the trial court abused its discretion in requiring a $300,000 bond. “Under OCGA § 5-6-46 the trial court has the discretion to fix the amount of the bond when a motion is filed requesting a supersedeas bond. Hyman v. Leathers, 168 Ga. App. 112, 115-116 (308 SE2d 388) [(1983)].” Cloud, 214 Ga. App. at 597-598 (7). The court should fix the amount of the bond to “secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.” OCGA § 5-6-46 (a).

Decided February 16, 2012

Reconsideration denied March 15, 2012

Webb, Tanner, Powell, Mertz & Wilson, Anthony O. L. Powell, John D. Gussio, for appellants.

Andersen, Tate & Carr, James C. Joedecke, Jr., for appellee.

The trial court conducted a hearing at which counsel for Duke Galish reported that Duke Galish was not making payments on the note pending the appeal. SouthCrest argued that interest continued to accrue on the note pending appeal, that taxes on the property were coming due, and that the appeal delayed SouthCrest from pursuing its foreclosure, confirmation and action for deficiency judgment. Under these facts, we conclude that Duke Galish has not shown that the trial court abused its discretion in setting a $300,000 supersedeas bond.

Judgments affirmed.

Phipps, P. J., and Andrews, J., concur.


author: McFadden, Judge.

text:
    A11A2019.
    JACKSON v. THE STATE.
    (726 SE2d 63)
   McFadden, Judge.

After a jury trial, Jermario Jackson was convicted of three counts of armed robbery, one count of aggravated battery and one count of possession of a firearm during the commission of a felony. Because there was sufficient evidence to support the convictions and his trial counsel was not ineffective, we affirm.

Construed to support the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that on September 29, 2005, Jackson and Marcus Monger entered a T-Mobile store. Using handguns, the men forced three victims, Irfan Maya, Emran Maya and Rizwan Haider, to move to the back of the store and get on the floor. Jackson began beating, kicking and stomping on the head of one of the victims, Irfan Maya. Maya lost consciousness, and the other two victims were forced into a bathroom. Jackson and Monger subsequently left the store with the cash register, phones and other personal property of the victims.

1. Jackson challenges his conviction for the aggravated battery of Irfan Maya on the ground that there is insufficient evidence that Maya’s skull and brain were rendered useless. As to his skull, Jackson’s challenge is misplaced. The trial court, with the consent of Jackson, expressly removed that issue from the jury’s consideration.

With regard to the victim’s brain injury, the neurosurgeon who treated Maya after the attack testified that Maya had suffered severe head injuries that were life-threatening, that fluid was leaking out of his ear, that air bubbles were inside his skull and that he was in a semi-comatose state for approximately two weeks. The surgeon gave his expert opinion that the injuries inflicted on Maya had rendered his brain useless, at least temporarily, because he was unconscious and the brain had been stunned by the trauma. Maya himself testified that he cannot remember anything from the day of the attack, stating, “[t]hat one day is wiped out forever.” He has no memory of the weeks that he spent in the hospital; the first thing he remembers after the attack is waking up in a rehabilitation center where he was sent after the hospital and underwent therapy for nerve damage. He continues to have impaired memory, explaining that he cannot remember things like he used to and that he has “[tjotally changed.”

“When the evidence shows that a battered victim has suffered a severe injury to their brain, resulting in the loss of normal brain functioning, they are said to have been deprived of their brain, thus suffering an aggravated battery.” (Citations and punctuation omitted.) Miller v. State, 275 Ga. 730, 732 (1) (571 SE2d 788) (2002). In this case, the evidence clearly shows that Maya was a battered victim who suffered severe injury to his brain, rendering him unconscious and semi-comatose for weeks and causing significant memory loss. Accordingly, the evidence “is sufficient to authorize the jury’s verdict that [Jackson] committed aggravated battery by depriving [the victim] of a member of [his] body as alleged in . . . the indictment.” (Citation omitted.) Scott v. State, 243 Ga. App. 383, 384-385 (1) (b) (532 SE2d 141) (2000) (aggravated battery conviction supported by evidence that blows to victim’s head caused memory lapses and nerve damage). See also Griffin v. State, 170 Ga. App. 287, 293 (10) (316 SE2d 797) (1984) (brain injury resulting from blows to the head sufficient).

2. Contrary to Jackson’s argument, the evidence showed that the phone and cash register taken from the immediate presence of Irfan Maya was the property of another in that the property belonged to the Maya family’s T-Mobile phone business. “(R)obbery is a crime against possession, and is not affected by concepts of ownership. Thus, it does not matter exactly whose property was taken so long as it was taken from a person or the immediate presence of another.” (Citations and punctuation omitted.) Ward v. State, 304 Ga. App. 517, 522 (1) (a) (696 SE2d 471) (2010). Thus, Jackson’s challenge to the sufficiency of the evidence supporting his conviction for the armed robbery of Irfan Maya is without merit. See OCGA § 16-8-41 (a) (person commits armed robbery when, with intent to commit theft, he takes property of another from the immediate presence of another by use of an offensive weapon).

3. Jackson complains that the trial court erred in allowing testimony that there had been a prior robbery at the same store and opinion testimony as to the truthfulness of his in-custody statement. But as Jackson concedes in his brief and as our review of the transcript reveals, there was no objection to such testimony at trial. Because Jackson failed to interpose a timely objection when this evidence was introduced at trial, his claims of error have been waived. See Hester v. State, 287 Ga. App. 434, 438 (3) (a) (651 SE2d 538) (2007) (failure to make objection to evidence when it is offered results in a waiver of any objection that might have been urged); Capps v. State, 273 Ga. App. 696, 697 (1) (615 SE2d 821) (2005) (under contemporaneous objection rule, party must object to evidence when it is actually offered, and the failure to object waives any objections).

4. Jackson claims that his trial counsel was ineffective in failing to object to the testimony about the prior robbery at the same store and to the opinion testimony as to the truthfulness of his in-custody statement.

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

(Citations and punctuation omitted.) Herndon v. State, 309 Ga. App. 403 (710 SE2d 607) (2011).

(a) The testimony concerning a prior robbery occurred when a police officer testified that he worked as a loss prevention officer at a grocery store and that he was familiar with the neighboring T-Mobile store because it had been robbed before. When questioned about this at the motion for new trial hearing, trial counsel explained that he probably did not object to the testimony because he did not want to bring attention to it in front of the jury. There was no suggestion at trial that Jackson was involved in any prior robbery, but even if this brief reference to another robbery at the store can somehow be considered unfavorable to Jackson, “[w]e do not find counsel’s strategy of avoiding an objection that would draw the jury’s attention to unfavorable matters to be outside the wide range of reasonable professional assistance.” (Citation and punctuation omitted.) Westmoreland v. State, 287 Ga. 688, 696 (9) (b) (699 SE2d 13) (2010). See also Kay v. State, 306 Ga. App. 666, 671-672 (5) (c) (703 SE2d 108) (2010) (tactical decision not to object to statement in order to avoid drawing jury’s attention to it did not amount to ineffective assistance of counsel).

Decided February 17, 2012

RECONSIDERATION DENIED MARCH 15, 2012.

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, Robby A. King, Assistant District Attorney, for appellee.

(b) An officer who interviewed Jackson was asked if any statements he had made during the interview were intended to obtain an untrue confession, and the officer responded, ‘‘Nobody lies to confessing to a crime. They usually lie to get out of a crime.” Even if we assume for the sake of argument that counsel’s failure to object to this testimony was deficient, Jackson has not shown prejudice. The evidence of his guilt was strong, and the trial court fully charged the jurors as to their duty to determine the believability of, and the weight to be given to, Jackson’s in-custody statement. Under these circumstances, “we do not find that trial counsel’s failure to object [to the testimony] was likely to affect the outcome of the trial.” (Citation omitted.) Crawford v. State, 294 Ga. App. 711, 712 (1) (a) (670 SE2d 185) (2008).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.