author: ELLINGTON, Presiding Judge.

text:
    A15A2296.
    DUKES-WALTON v. ATLANTA INDEPENDENT SCHOOL SYSTEM.
    (784 SE2d 37)
   ELLINGTON, Presiding Judge.

Selena Dukes-Walton, following our grant of her application for discretionary review, appeals from the order of the Superior Court of Fulton County affirming the decision of the Georgia Board of Education upholding the termination of Dukes-Walton’s employment contract by the Atlanta Board of Education (“Local Board”). Dukes-Walton contends that the superior court erred because the evidence was insufficient to support the charges against her. She also contends that the superior court erred because the decision of the Local Board was arbitrary and capricious, based on inadmissible evidence, and violated her right to due process. We affirm for the reasons set forth below.

The record shows that by letter dated March 29, 2012, the superintendent of the Atlanta Independent School System (“APS”) notified Dukes-Walton under the Fair Dismissal Act of Georgia, OCGA § 20-2-940 et seq., that he was recommending that the Local Board terminate her employment contract on the statutory grounds of wilful neglect of duties, immorality, and other good and sufficient cause, as well as other grounds. APS charged that Dukes-Walton failed her duties as principal and knew or should have known about testing improprieties during the administration of the Spring 2009 Criterion Referenced Competency Test (“CRCT”), and that, among other things, her actions and inactions resulted in the misrepresentation of the evaluation of her students to the Georgia Department of Education as to the results of the 2009 CRCT. A hearing on the charges was held before a tribunal, which, by a preponderance of the evidence, found the charged violations of immorality and other good and sufficient cause. The tribunal did not find that Dukes-Walton committed the charged violation of wilful neglect of duties. The tribunal affirmed the recommendation by the superintendent that Dukes-Walton’s employment contract be terminated.

The Local Board adopted the tribunal’s findings of fact and terminated Dukes-Walton’s employment. The Georgia Board of Education (“State Board”) affirmed that decision on appeal. Dukes-Walton appealed the decision of the State Board to the superior court, which affirmed.

The superior court and the State Board, in reviewing a decision of a local board, act as appellate bodies applying an “any evidence” rule to the facts of the case. See Moulder v. Bartow County Bd. of Ed., 267 Ga. App. 339, 340 (599 SE2d 495) (2004). “[T]he superior court should not interfere with a local board’s administration of its schools unless the board has grossly abused its discretion or acted arbitrarily or contrary to law.” (Footnote omitted.) Clinch County Bd. of Ed. v. Hinson, 247 Ga. App. 33, 36 (1) (543 SE2d 91) (2000). Like the State Board and the superior court, this Court “applies the ‘any evidence’ standard of review to the record supporting the initial decision of [a] Local Board.” (Citations omitted.) Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d 629) (2010). We presume, absent clear evidence to the contrary, that the acts of a local board are not arbitrary and capricious. See King v. Worth County Bd. of Ed., 324 Ga. App. 208 (749 SE2d 791) (2013).

Viewed in the light most favorable to the Local Board’s decision, the evidence shows that Dukes-Walton was the principal of Slater Elementary School during the administration of the 2009 CRCT. The CRCT is a standardized test given to Georgia students in the first through the eighth grades. The test is designed to measure how well students at each grade level had acquired knowledge and skills within the state’s curriculum. The Governor’s Office of Student Achievement (“GOSA”) conducted a state-wide analysis of erasures on the answer sheets used in the 2009 CRCT and “flagged” those classrooms in which the number of answers changed from wrong to right was unusually high. The GOSA report flagged 30.3 percent of the classes at Slater Elementary.

At the tribunal hearing, APS offered expert testimony from an applied statistician, Mary Beth Walker, who had reviewed the statistical techniques used in GOSA’s erasure report. Walker testified that the GOSA report used a conservative measure that flagged only those classrooms in which the chance that the number of wrong-to-right erasures occurred without adult intervention was 1 in 1,000. Walker opined that there was no credible explanation other than that cheating occurred at Slater Elementary.

APS also offered direct evidence of cheating. The parties stipulated that Ellen Grant, who taught at Slater Elementary during the 2008-2009 school year, cheated on the 2009 CRCT by allowing students to correct their answers the following day and by changing student answers herself. Nettie Walker, also a teacher at Slater Elementary during the 2008-2009 school year, testified that she erased wrong answers and replaced them with correct answers. According to Walker, she cheated on the CRCT because she was under a lot of pressure.

A third teacher, Katrina Coleman, testified that, prior to the administration of the 2009 CRCT, she was given written targets as to how many students in her classroom had to pass the test. She was given these targets at the beginning of the semester, and later in an individual conference with Dukes-Walton. The same sheet of paper containing her classroom targets was also included with the CRCT test booklets, answer documents, and other testing materials. At that time, Coleman testified, there was nothing that she could legitimately do to ensure that her class met those goals. According to Coleman, Dukes-Walton acted “very like a dictator” and created a hostile work environment at Slater Elementary, and she did not feel that she could have approached Dukes-Walton with any concerns regarding the 2009 CRCT.

APS also presented the testimony of former Slater Elementary teacher Schajuan Jones. Jones testified that teachers were told at faculty meetings how many students in each grade level could fail the 2009 CRCT. Either the Friday before, or on the morning of, the exam, Dukes-Walton called the fifth grade teachers into the hallway, and she said that Jones “had one person that could fail, [another fifth grade teacher] had one person to fail, [a third fifth grade teacher] had one person to fail and that [a fourth fifth grade teacher] couldn’t have any to fail.” Jones testified that, other than cheating, there was nothing she could have done the Friday before, or on the morning of, the CRCT to affect the outcome of the test. Jones also testified that, immediately after the administration of the CRCT in 2007, she saw Grant sitting at a table in the media center erasing whole sections of answer sheets and then “bubbling in” the answers. Jones immediately reported the incident to Vanessa Jackson, who was the testing coordinator at Slater Elementary and the person designated for receiving reports of irregularities.

Jackson apparently did not report the 2007 incident to Dukes-Walton, who testified that she was not aware of any irregularities or cheating on the CRCT before the 2008-2009 school year. The tribunal found Dukes-Walton’s testimony to be credible insofar as it concluded that she did not have actual knowledge of cheating. As Dukes-Walton acknowledged, however, as the principal she had the ultimate responsibility for testing activities at her school and was responsible for ensuring the proper environment for administration of the CRCT, including an atmosphere where teachers knew that cheating would not be tolerated.

The tribunal found that, although Dukes-Walton did not have actual knowledge of cheating at Slater Elementary, she should have had such knowledge. Further, it found that she created an environment in which cheating could occur and in which teachers felt they could not approach her to report cheating violations. Dukes-Walton, the tribunal concluded, “create [d] an environment that allowed teachers to violate testing rules and procedures in order to increase student scores on the 2009 CRCT.”

1. Dukes-Walton contends that the superior court erred in affirming the decision of the State Board because the State Board improperly found evidentiary and precedential support for the charge of “any other good and sufficient cause.” Dukes-Walton argues that APS failed to show that she engaged in intentional misconduct which had an adverse impact on her ability to be effective. She contends that there was a lack of evidence that she knew about the cheating, a lack of evidence that the teachers’ decisions to cheat were attributable to the pressure or climate Dukes-Walton created at the school, and, given that the number of wrong to right erasures on the CRCT dropped markedly in 2010, when she remained the principal at Slater Elementary, there was a lack of evidence that her effectiveness as an educator had been adversely impacted.

“Any other good and sufficient cause” is one of the grounds under the Fair Dismissal Act pursuant to which a teacher, administrator, or other employee having a contract for a definite term may be terminated. See OCGA § 20-2-940 (a) (8). The meaning of “any other good and sufficient cause,” for purposes of the Fair Dismissal Act, has not been expressly defined in our appellate decisions, although we have nevertheless found evidence sufficient to support a local board’s decision to terminate an educator’s contract on this ground.

Here, the State Board found that “good and sufficient cause” must be construed consistently with the other grounds for discipline set forth in the Fair Dismissal Act, and, accordingly, requires more than a showing of mere negligence. See Beal-Parker v. DeKalb County Bd. of Ed., Case No. 2008-17 (Ga. SBE, Feb. 2008). Further, “any other good and sufficient cause,” the State Board concluded, “is limited to actions taken (or not taken) by an employee that adversely impact on the employee’s ability to be effective,” and “contemplates some improper action on the part of the employee [.]” See Cooper v. Atlanta Bd. of Ed., Case No. 2005-08 (Ga. SBE, Nov. 2004). “[T]he State Board is the governmental agency charged by law with enforcement of the Fair Dismissal Act and ... its interpretation of the statute, though not conclusive, is entitled to great weight.” (Footnote omitted.) Moulder v. Bartow County Bd. of Ed., 267 Ga. App. at 340.

Applying the foregoing standard, which we find to be an authorized interpretation of the Fair Dismissal Act, there was evidence from which the Local Board could sustain the charge that Dukes-Walton’s conduct authorized the termination of her contract for other good and sufficient cause. Evidence showed that Dukes-Walton personally told teachers in the fifth grade hallway, on either the morning of the test administration, or the Friday before, how many students could fail the test. Similar information as to testing goals was distributed to at least one teacher within the testing materials themselves. At these times, the Local Board could conclude, there was nothing that those teachers could legitimately do to affect the outcome of the test. Thus, even if Dukes-Walton did not actually direct teachers to cheat on the 2009 CRCT, a trier of fact could conclude that she was responsible for creating an environment in which cheating was implicitly encouraged. It can also be reasonably inferred from the evidence that her actions in pressuring teachers to achieve goals that could not then be legitimately achieved was more than negligent, but intentional, and weakened her credibility and effectiveness as a principal. And, if circumstantial, a trier of fact could also conclude that Dukes-Walton’s conduct contributed to the misrepresentation of her student’s academic abilities on the reported results of the 2009 CRCT. Accordingly, there was at least some evidence from which the Local Board could conclude that Dukes-Walton’s contract be terminated for other good and sufficient cause.

2. Dukes-Walton also contends that the superior court erred in affirming the decision of the State Board as there was a lack of evidence to support the charge of immorality. See OCGA § 20-2-940 (a) (4). Even assuming, without deciding, that Dukes-Walton’s actions did not rise to the level of immorality, the evidence was nevertheless sufficient to support the decision of the Local Board to terminate her employment under the Fair Dismissal Act, as we found in Division 1, supra, and the superior court did not err in affirming the decision of the State Board.

3. Dukes-Walton contends that the superior court erred in affirming the State Board’s decision because the hearing officer violated her right to due process by permitting APS to amend the charges against her in the middle of the hearing before the tribunal. Dukes-Walton contends that, by permitting the amendment, the hearing officer improperly allowed APS to introduce evidence which would otherwise have been inadmissible because it was outside the scope of the charge letter.

The record shows that the tribunal convened Dukes-Walton’s hearing on May 7, 2012, and recessed that day with APS having yet to rest its case. The hearing was scheduled to reconvene on May 22, 2012. On May 10, 2012, the Professional Standards Commission (“PSC”) voted to recommend revocation of Dukes-Walton’s educator’s certificate. APS moved on May 16, 2012, to introduce evidence regarding the PSC’s decision. The hearing officer determined that the PSC’s decision to revoke Dukes-Walton’s certificate in May 2012 could not be offered as evidentiary support for APS’s decision to terminate her employment under the previously issued charge letter, as amended. But, he ruled, evidence of the PSC’s decision would be admissible if APS issued an amended charge letter and provided Dukes-Walton with at least 10 days’ notice of the rescheduled hearing date. See OCGA § 20-2-940 (b) (“Before the discharge or suspension of a teacher, administrator, or other employee having a contract of employment for a definite term, written notice of the charges shall be given at least ten days before the date set for hearingf.]” The notice must, among other things, state “[t]he cause or causes for [the employee’s] discharge, suspension, or demotion in sufficient detail to enable him or her fairly to show any error that may exist therein.”).

APS opted to issue an amended charge letter. The amended letter, dated May 25, 2012, stated that the PSC’s recommendation to revoke Dukes-Walton’s educator’s certificate “further impacted” APS’s loss of confidence in her ability to discharge her duties as an educator. The amended charge letter notified Dukes-Walton that it intended to introduce evidence of that decision and that the hearing would reconvene on June 11, 2012. When the hearing recommenced on that date, the hearing officer admitted evidence of the PSC’s decision.

Although OCGA § 20-2-940 does not precisely address the instant situation, it is undisputed that APS provided Dukes-Walton with at least 10 days’ advance notice that it would be offering evidence of the PSC’s decision, and she had an opportunity to defend and be heard consistent with the requirements of the statute. Dukes-Walton has not shown that she was denied due process by APS’s amendment of its charge letter under these circumstances. See Boatright v. Glynn County School Dist., 315 Ga. App. 468, 470 (1) (726 SE2d 591) (2012) (due process in public employment cases requires that the state must give notice and an opportunity to be heard to a person deprived of a property interest).

4. Dukes-Walton contends that the Local Board’s decision, as affirmed by the State Board and the superior court, was arbitrary and capricious because the tribunal’s findings, which the Local Board adopted, were based on erroneous evidentiary rulings by the hearing officer. Specifically, she argues that the hearing officer erred in admitting the PSC’s decision, which she contends was irrelevant and prejudicial, and in excluding “comparator evidence,” that is, evidence that APS decided to terminate her while retaining similarly situated principals.

Assuming without deciding that the hearing officer erred in admitting the PSC’s decision, we cannot conclude, as Dukes-Walton asserts, that the decision of the Local Board was consequently arbitrary and capricious. The tribunal’s findings, which were adopted by the Local Board, contained numerous specific findings of fact regarding Dukes-Walton’s professional failures, but the tribunal notably did not identify the PSC’s decision as support for its findings or even reference the PSC’s decision. The admissible evidence supported the Local Board’s decision to terminate Dukes-Walton’s employment under the statutory grounds, as we found in Division 1, supra. Dukes-Walton was not harmed by the improper admission of the PSC’s recommendation.

With regard to the comparator evidence that the hearing officer excluded, the record shows that Dukes-Walton intended to introduce the document to show that, after GOSA issued its report flagging classrooms for high rates of wrong-to-right erasures on the 2009 CRCT, APS did not place on administrative leave several principals whose schools had a high percentage of classrooms flagged for wrong-to-right erasures. Dukes-Walton argues that APS’s decision to terminate her employment was based on the GOSA report and not on her individual conduct. She maintains that disparate treatment by APS of principals who were similarly situated in terms of the GOSA report was relevant to show that APS acted arbitrarily in seeking to terminate her. We conclude, however, that Dukes-Walton’s argument that APS’s decision to terminate her employment was based solely on the GOSA report is not supported by the record. To the contrary, the charge letter alleges, and the evidence showed, that APS lost confidence in her ability to carry out her professional duties based on her individual misconduct. The hearing officer did not abuse his discretion in excluding the proffered “comparator” evidence. See Brown v. DeKalb County Bd. of Ed., Case No. 2013-37 (Ga. SBE, May 2013) (comparator evidence of misconduct by other employees who received different discipline was not relevant and was properly excluded).

Decided March ll, 2016.

Borquaye A. Thomas, for appellant.

Jones, Cork & Miller, Sharon H. Reeves, Canon B. Hill, Sherry H. Culves, for appellee.

Judgment affirmed.

Dillard and Mercier, JJ., concur.

       The eight grounds upon which the contract of employment of a teacher, principal, or other employee having a contract for a definite term may be terminated by a local board of education under OCGA § 20-2-940 (a) are:
      (1) Incompetency; (2) Insubordination; (3) Willful neglect of duties; (4) Immorality;
      (5) Inciting, encouraging, or counseling students to violate any valid state law, municipal ordinance, or policy or rule of the local board of education; (6) To reduce staff due to loss of students or cancellation of programs . . . ; (7) Failure to secure and maintain necessary educational training; or (8) Any other good and sufficient cause.
      OCGA § 20-2-940 (b)
      requires that the teacher, principal, or other employee under contract for a definite term be given written notice of the charges, along with certain information to enable preparation of a defense. Subsection (e) requires a hearing before the local board or a board-designated tribunal. Under subsection (f), appeals from the decision of the local board may be taken to the State Board in accordance with OCGA § 20-2-1160.

        Moulder v. Bartow County Bd. of Ed., 267 Ga. App. 339, 340 (599 SE2d 495) (2004).

       See Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. at 732.

       See Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. at 734-735 (b) (where a teacher’s oral statements to her students weakened her credibility and effectiveness as an educator, sufficient evidence supported the local board’s finding of “good and sufficient cause” to terminate the teacher’s employment contract); Clinch County Bd. of Ed. v. Hinson, 247 Ga. App. at 36 (d) (1) (where a teacher videotaped a student locker room the evidence authorized the local board to find “good and sufficient cause” for his termination); Rabon v. Bryan County Bd. of Ed., 173 Ga. App. 507, 508-509 (2) (326 SE2d 577) (1985) (where a principal intimidated certain teachers by making remarks with sexual connotations, the evidence authorized the local board to find good and sufficient cause to terminate his employment). See also Professional Standards Commission v. Alberson, 273 Ga. App. 1, 7-11 (2) (614 SE2d 132) (2005) (finding Professional Standards Commission ethics rule authorizing teacher discipline for “any other good and sufficient cause” in the Commission’s discretion not unconstitutionally vague; and recognizing “a school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process”) (citation and punctuation omitted).

       The PSC is charged with creating and implementing “standards and procedures for certifying educational personnel as qualified for a certificate to practice in the public schools of Georgia.” OCGA § 20-2-984 (a).

       Cf. Whisenant v. Douglas County Bd. of Ed., Case No. 1997-52 (Ga. SBE, March 12,1998) (the appellant was denied due process by admission of evidence “beyond the scope of the charge letter, thus denying [him] the opportunity to properly defend against such charges”).

       OCGA § 20-2-940 (e) (4) provides that “the parties by agreement may stipulate that some disinterested member of the State Bar of Georgia shall decide all questions of evidence and other legal issues arising before the local board or tribunal.” The hearing transcript shows that the proceedings were presided over by a disinterested member of the State Bar of Georgia who, the parties agreed, would rule on questions of law or evidence that might arise during the course of the hearing.

       Under OCGA § 20-2-940 (e) (4), except as otherwise provided therein, at the hearing “the same rules governing nonjury trials in the superior court shall prevail.” The State Board has applied the Georgia Rules of Evidence in reviewing evidentiary rulings at a tribunal hearing. See, e.g., Beal-Parker v. DeKalb County Bd. of Ed., Case No. 2008-17 (Ga. SBE, Feb. 2008); Duncan v. Clayton County Bd. of Ed., Case No. 1996-10 (Ga. SBE, July 1996).

       See Adams v. Fulton County Bd. of Ed., Case No. 2010-91 (Ga. SBE, Oct. 2010) (evidence before the local board included a PSC decision to suspend the teacher’s certificate); Bullock v. Fulton County Bd. of Ed., Case No. 2010-92 (Ga. SBE, Oct. 2010) (same); see also Wyatt v. Atlanta Independent School System, Case No. 2013-02 (Ga. SBE, Nov. 2012) (citing Adams and Bullock for the proposition that the State Board had upheld the decision of a local board where there was no objection to the local board’s reliance on a PSC decision).


source: Caselaw Access Project

author: Ellington, Presiding Judge. PETERSON, Judge,

license: Public Domain

text:
    A15A2185.
    CLASSIC COMMERCIAL SERVICES, INC. v. BALDWIN.
    (784 SE2d 44)
   Ellington, Presiding Judge.

Classic Commercial Services, Inc. sued defendant Robert Baldwin in the Superior Court of Gwinnett County and later served Baldwin with the summons and complaint at his residence in North Carolina. Baldwin moved to dismiss the complaint on the grounds that the superior court lacked personal jurisdiction. The trial court granted Baldwin’s motion to dismiss, and Classic Commercial appeals. For the reasons set forth below, we vacate the trial court’s order and remand the case with direction.

A defendant moving to dismiss for lack of personal jurisdiction bears the burden of proving the absence of jurisdiction. To meet that burden, the defendant may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. Further, to the extent that defendant’s evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence. When examining and deciding jurisdictional issues on a motion to dismiss, a trial court has discretion to hear oral testimony or to decide the motion on the basis of affidavits and documentary evidence alone pursuant to OCGA § 9-11-43 (b).

(Citation and punctuation omitted.) General Pump & Well v. Miller, 326 Ga. App. 546, 546-547 (757 SE2d 161) (2014).

We review the trial court’s decision de novo. American College Connection v. Berkowitz, 332 Ga. App. 867, 868 (775 SE2d 226) (2015). This court is in an equal position with the trial court to determine and examine the facts where, as here, the trial court ruled on the motion to dismiss solely on written evidentiary submissions. General Pump & Well v. Miller, 326 Ga. App. at 547. Accordingly, on appellate review, we “examine [ ] the facts under a non-deferential standard, [and] we resolve all disputed issues of fact in favor of the party asserting the existence of personal jurisdiction.” (Citation and punctuation omitted.) Lima Delta Co. v. Global Aerospace, 325 Ga. App. 76 (752 SE2d 135) (2013). See Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990).

So viewed, the evidence shows that on December 27, 2013, Classic Commercial filed a complaint against Baldwin in the Superior Court of Gwinnett County seeking to hold Baldwin liable for an unpaid default judgment that it had obtained against Piedmont Hotel Group, Inc. Classic Commercial sought to recover from Baldwin, the sole shareholder, director, and officer of Piedmont Hotel, under theories of piercing the corporate veil and fraudulent transfer.

On January 2, 2014, a sheriff’s deputy unsuccessfully attempted to serve the complaint on Baldwin at his house in Suwanee, Georgia, which was then occupied by a tenant. A deputy was again unsuccessful in attempting service on Baldwin on April 29, 2014, at a house in Braselton, Georgia. The deputy spoke to a woman who represented that she and her husband owned the house, that “it was a short sale,” and Baldwin did not live there. Baldwin was personally served in North Carolina on November 26, 2014.

In his answer and subsequent motion to dismiss, Baldwin contended that the complaint should be dismissed for lack of personal jurisdiction and that venue was also improper in Gwinnett County. Baldwin argued that the superior court lacked personal jurisdiction over him because he had been a resident of North Carolina since January 2014, he owned no property in Georgia, he conducted no business in Georgia, and he had not been served with the summons and complaint in Georgia. These factual assertions were supported by Baldwin’s first affidavit.

In his motion to dismiss, Baldwin asserted that the complaint was filed on April 14, 2014. In its response to the motion, Classic Commercial pointed out that the complaint was filed on December 27, 2013, and contended that, inasmuch as Baldwin’s affidavit established that he moved to North Carolina from Georgia in 2014, the court necessarily had personal jurisdiction over Baldwin. Alternatively, Classic Commercial argued that Baldwin was subject to the court’s jurisdiction under Georgia’s Long Arm Statute, OCGA § 9-10-91.

After receiving the response, Baldwin amended his motion to dismiss to acknowledge that the complaint was filed on December 27, 2013. He then supplemented his motion to dismiss with a second affidavit for the purpose of, as he explained in his supplemental brief, “clarifying the dates during which he was transitioning from the State of Georgia to the State of North Carolina.” Baldwin averred in his second affidavit that his residential address was in North Carolina and that he acquired the property in February 2013, began paying utilities on the property that same month, and began moving his belongings to North Carolina in May 2013. According to Baldwin, he had previously resided in Gwinnett County, Georgia in his home in Braselton, listed the house for sale in May 2013, and sold the house in March 2014. He owned a second Georgia property that was sold in June 2014. He “irregularly” returned from North Carolina to Georgia to check on the condition of the two properties while they were on sale. Further, according to Baldwin, Piedmont Hotels ceased operating in March 2013, and he was not employed by any business in Georgia after March 2013.

Upon consideration of the parties’ written submissions, the trial court granted Baldwin’s motion to dismiss. The trial court found that Baldwin was not a resident of the State of Georgia on the date that the action was filed. Alternatively, the trial court concluded that even if Baldwin were a resident of the State of Georgia when the complaint was filed, service of the complaint was not completed with reasonable diligence and within a reasonable time after the filing of suit.

1. Classic Commercial contends that the trial court erred in finding that Baldwin was not a resident of the State of Georgia on the date the complaint was filed. We agree. Whether Baldwin was a resident of the State of Georgia on the date the complaint was filed is material to determining whether the Georgia courts had personal jurisdiction over Baldwin. For purposes of resolving “jurisdictional questions, a person’s residence at the time of filing of suit is the determining factor . . . [if] followed by service within a reasonable time____” Franek v. Ray, 239 Ga. 282, 285 (236 SE2d 629) (1977). See also OCGA § 9-11-3 (a) (“A civil action is commenced by filing a complaint with the court.”); Williams-East, Inc. v. Weeks, 156 Ga. App. 861, 863 (4) (275 SE2d 801) (1981) (“The Georgia courts have repeatedly held that service or waiver is essential, but that when made it relates back to the date of filing, which establishes the date the action is commenced.”) (citations and punctuation omitted). See generally Watts v. Allstate Ins. Co., 214 Ga. App. 462, 463 (448 SE2d 55) (1994) (“Georgia courts may exercise jurisdiction over Georgia residents [.]”). Baldwin, who had the burden of showing that the court lacked personal jurisdiction over him, failed to show that he was not a resident of the State of Georgia at the time of the filing of the complaint.

The undisputed evidence, as shown by Baldwin’s first affidavit, is that he lived “continuously” at his North Carolina residence “since J anuary 2014,” which fairly infers that he could not have then resided in Georgia. But January 2014 was after the filing of the complaint, and Baldwin’s first affidavit says nothing about whether he was a resident of Georgia on December 27, 2013. And Baldwin’s second affidavit does not answer that question. According to his testimony, after Baldwin acquired his North Carolina property in February 2013 he “began” moving his belongings, but he does not say when the move was completed. He avers that he listed his Georgia residence for sale in May 2013 and that the property was sold in March 2014, but not when he ceased to reside therein. And the wording of his first affidavit suggests that, as he continuously lived in North Carolina “since” January 2014, he did not continuously live in North Carolina before January 2014.

As a rule, “the testimony of a party who offers [himself] as a witness in [his] own behalf at trial is to be construed most strongly against [him] when it is self-contradictory, vague or equivocal.” (Citation and punctuation omitted.) Conrad v. Conrad, 278 Ga. 107, 110 (597 SE2d 369) (2004). This principle applies in the context of a motion to dismiss on jurisdictional grounds. Id. While Baldwin’s second affidavit appears to be carefully crafted not to be patently inconsistent with his first affidavit, it is vague and equivocal as to whether he remained a resident of Georgia when the complaint was filed. See Chandler v. Gately, 119 Ga. App. 513, 520 (3) (167 SE2d 697) (1969) (“Being peculiarly in a position to state fairly and definitely the facts which he professes to know, [a party testifying in his own favor] is under a duty of so stating them as to give a candid and intelligible account of what occurred.”). Baldwin did not show that he had left his residence in Georgia and completed his move to North Carolina before 2014, and he “retained his domicile and legal residence in [Gwinnett County] until he succeeded in acquiring residence and domicile in [North Carolina].” Shirley v. State, 1 Ga. App. 143, 145 (57 SE 912) (1907) (where grand juror had sold his lands in Rabun County where he had resided, with the intent of moving to Haber-sham County, and he had loaded his household goods on a train with the intent of sending them there, but remained in Rabun County to look after a sawmill and some cattle, and stayed in a hotel in Rabun County when court was in session, he remained a citizen of Rabun County at the time of his service as a juror). In view of the foregoing, Baldwin did not show, through his written submissions, that he was no longer a resident of Georgia when the complaint was filed, and the trial court erred in so finding.

2. In an alternate ruling, the trial court concluded that, even if Baldwin resided in Georgia on the date the complaint was filed, service was not completed with reasonable diligence and within a reasonable time after the filing of the suit. Classic Commercial contends that the timeliness of his service on Baldwin was not a sufficient ground to authorize dismissal of the action. Further, Classic Commercial argues that, because the parties had not addressed the issue, the trial court should not have ruled without affording Classic Commercial an opportunity to come forward with evidence of its diligence in perfecting service on Baldwin. We agree with both arguments.

At the outset, we note that Baldwin did not contend that service was perfected on him in North Carolina after the statute of limitation had run, and it is readily apparent from the trial court’s order that this was not the basis for its ruling. Thus, those cases in which, in order to avoid the bar of the statute of limitation, the relation back of the service to the date of filing of the complaint is dependent upon the diligence exercised by the plaintiff in perfecting service, are inapposite. See, e.g., Moody v. Gilliam, 281 Ga. App. 819, 820 (637 SE2d 759) (2006). The trial court relied, rather, on Franek v. Ray, a case in which, following their divorce, the mother of two minor children sued the father for change of custody in the Superior Court of DeKalb County, Georgia, but no service was had on the father at that time. 239 Ga. at 282. Following the filing of the petition, the father moved from Georgia to Texas where he was personally served over a year after the filing of the custody petition. Id. The Supreme Court noted that (as to the law that then applied), following a custody award, further custody proceedings must be brought in the county where the defendant resides, and “[w]hen the parent awarded custody in Georgia moves to a foreign state, that state, and not Georgia, has jurisdiction over any new questions as to custody.” (Citations omitted.) Id. at 283. The issue before the Court was whether, in determining residence for purposes of venue, courts should look to the residence of the defendant at the time a petition is filed in the clerk’s office or at the time of service. Id. at 283-284.

The Court concluded that “for purposes of venue and other jurisdictional questions, a person’s residence at the time of filing of suit is the determining factor.” Franek v. Ray, 239 Ga. at 285. However, the Court said, “filing is still not the commencement of suit unless followed by service within a reasonable time, but that once service is perfected upon a defendant it will relate back to the original date of the filing which will be considered the date of the commencement of the lawsuit.” Id. at 285-286. The Court ultimately remanded the case to the trial court for determination of whether the mother “used due diligence and served the [father] within a reasonable period of time so as to preserve the pending suit.” Id. at 286.

Although Franek addressed the issue of venue, its analysis is expressly relevant to “other jurisdictional questions.” Id. at 285. And, under Franek, filing is not the commencement of suit if service is not made within a reasonable time. Thus, applying the reasoning of Franek to the instant situation, if Classic Commercial had not served Baldwin in North Carolina within a reasonable period of time, Classic Commercial could not rely on Baldwin’s residence in Georgia on the date of filing of the complaint to establish that the Georgia courts had personal jurisdiction over Baldwin. But here, unlike Franek, if service was not perfected within a reasonable time and so did not relate back to the original date of filing for jurisdictional and venue purposes, the action is not necessarily subject to dismissal. In Franek, if the filing of the complaint was not the commencement of suit for venue purposes, then the custody action could not have proceeded in DeKalb County, or in Georgia, based on the father’s residence in Texas. In this case, however, Classic Commercial relied on Georgia’s Long Arm Statute, OCGA § 9-10-91, to show that the trial court had jurisdiction over Baldwin if he was not a Georgia resident, and the determination of venue and personal jurisdiction thereunder would not require the trial court to conclude that service related back to the original date of filing of the complaint. Thus, if service in North Carolina did not relate back to the time of the filing of the complaint for venue and jurisdictional purposes, the trial court should have considered Georgia’s Long Arm Statute before reaching a final determination that it lacked jurisdiction over Baldwin. As the trial court did not, its dismissal of the complaint was premature.

In addition, as Classic Commercial points out, the parties did not address the issue of whether it used due diligence and served Baldwin within a reasonable period of time. Pretermitting whether the trial court acted properly in reaching the issue sua sponte, as it remains relevant to whether Baldwin was or was not a Georgia resident for purposes of this action, its findings were not, as we concluded supra, an appropriate basis for dismissing the case without consideration of whether the Georgia courts had long arm jurisdiction. Compare Kelley v. Lymon, 279 Ga. App. 849, 850 (1) (632 SE2d 734) (2006) (“A trial court has the inherent power to dismiss a case sua sponte where appropriate.”) (citations omitted). Nor, in the absence of a claim that service was made beyond the statute of limitation, can we conclude that Classic Commercial was put on notice that it must carry the burden of showing its diligence in perfecting service lest its claim be dismissed. Compare Robinson v. Boyd, 288 Ga. 53, 55 (2) (701 SE2d 165) (2010) (“Where service occurs after the statute of limitation has run, plaintiffs bear the additional burden of showing the exercise of due diligence in serving the defendants.”) (citation omitted); Farahi v. Jordan, 238 Ga. App. 63, 64 (517 SE2d 803) (1999) (Because service of process was perfected after the statute of limitation had passed, plaintiff was required to show he acted reasonably and diligently in attempting to serve defendant as quickly as possible, and, in absence of such a showing, “he would be guilty of laches and service would not relate back to the filing of the complaint.”). We find, therefore, that the trial court acted prematurely in ruling on the question of whether Classic Commercial exercised diligence in serving Baldwin without affording Classic Commercial an opportunity to present evidence addressing its diligence in attempting to serve Baldwin within a reasonable time.

3. Lastly, Classic Commercial contends that the trial court erred in granting Baldwin’s motion to dismiss because Baldwin was subject to Georgia’s Long Arm Statute, OCGA § 9-10-91, which sets forth the conditions under which “[a] court of this state may exercise personal jurisdiction over any nonresident.” However, as we noted above, the trial court did not rule on this issue, and it is therefore not ripe for appellate review. See In re Estate of Belcher, 299 Ga. App. 432, 439 (2) (b) (682 SE2d 581) (2009).

In view of the foregoing, we vacate the judgment of the trial court and remand for proceedings consistent with this opinion.

Judgment vacated and case remanded with direction.

McFadden, J., concurs. Peterson, J., concurs fully and specially.

PETERSON, Judge,

concurring fully and specially.

I concur fully in the majority opinion, but write separately to make explicit something I think implicit in that opinion. The full text of judicial decisions is not law. Only the holdings of judicial decisions are law. See Natson v. United States, 494 Fed. Appx. 3, 5 n.2 (11th Cir. 2012) (“The opinions of the Supreme Court are not the United States Code. Every sentence in a Supreme Court opinion is not law. Only the holdings of Supreme Court decisions are law.”). And a decision’s holding is limited to the factual context of the case being decided and the issues that context necessarily raises. Language that sounds like a holding — but actually exceeds the scope of the case’s factual context — is not a holding no matter how much it sounds like one. See Watts v. BellSouth Telecomm., Inc., 316 F. 3d 1203, 1207 (11th Cir. 2003) (“Whatever their opinions say, judicial decisions cannot make law beyond the facts of the cases in which those decisions are announced.”).

Sometimes, careful definition of a decision’s holding may seem unnecessarily pedantic. But the separation of powers requires it. The Georgia Constitution vests the legislative power in the General Assembly, Ga. Const. Art. Ill, Sec. II, Para. I, and demands that “[t]he legislative, judicial, and executive powers shall forever remain separate and distinct. . . .” Ga. Const. Art. I, Sec. II, Para. III. When we afford legal authority to language in a judicial opinion that goes beyond the scope of the case being decided, we risk blurring the inviolate line separating the judicial power from the legislative.

The majority opinion discusses in detail a decision of our Supreme Court containing language that sounds like — but is not — a holding. In Franek v. Ray, 239 Ga. 282 (236 SE2d 629) (1977), the Supreme Court stated that “for purposes of venue and other jurisdictional questions, a person’s residence at the time of filing of suit is the determining factor.” Id. at 285. But venue was the only “jurisdictional question” before the Franek Court. Id. at 283. Accordingly, the added text “and other jurisdictional questions” is pure dicta, and the holding of Franek is limited to the principle that, “for purposes of venue ..., a person’s residence at the time of filing of suit is the determining factor.” Personal jurisdiction — not venue — is the issue here, and so Franek is merely persuasive — not binding — to the extent it is relevant. I concur fully in the majority’s conclusion that the factual differences between this case and Franek warrant a different result.

Decided March 14, 2016.

Merbaum Law Group, David J. Merbaum, Katherine N. Willett, for appellant.

Hays Potter & Martin, James W. Martin, for appellee.

       The trial court considered the parties’ written arguments, through their motions, briefs, replies, and responses, and “all matters of record,” which included Baldwin’s two affidavits. The record does not show that the trial court held a hearing before issuing its ruling.

       We are unaware of any authority which has expressly applied Franek for the proposition that service within the statute of limitation, if not made within a reasonable time, is itself grounds for dismissal of an action. On the other hand, “[a] suit is unquestionably a valid ‘pending action’ if service has been perfected before the running of the applicable statute of limitations.” Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995). See also Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, 125 Ga. App. 423, 427 (1) (188 SE2d 167) (1972) (suit would be valid as a pending action upon which the plaintiff could proceed if, though late, service had been perfected before the running of the statute).

       We note that, unlike in Shahan v. Scott, 259 Ga. 172 (377 SE2d 859) (1989), Classic Commercial did not admit in its complaint that Baldwin was a resident of the State of Georgia, such that it could not rely on the Long Arm Statute, nor did Baldwin contend that he was improperly served with process.

       A “nonresident” for purposes of the Long Arm Statute, includes “an individual. .. who, at the time a claim or cause of action arises under Code Section 9-10-91, was residing [or] domiciled... in this state and subsequently becomes a resident [or] domiciled... outside of this state as of the date of perfection of service of process as provided by Code Section 9-10-94.” (Emphasis supplied.) OCGA § 9-10-90. Thus, the trial court would not need to look to the date of filing of the complaint to determine that Baldwin was a nonresident for purposes of the Long Arm Statute. See Oglesby v. Deal, 311 Ga. App. 622, 624 (1) (716 SE2d 749) (2011) (“Because the long arm statute defines ‘nonresident’ in the disjunctive, either a change in residence or change in domicile would suffice to make a person a nonresident.”) (citation and punctuation omitted); Bailey v. Hall, 199 Ga. App. 602, 603-604(1) (405 SE2d 579) (1991). Georgia courts may exercise personal jurisdiction over a nonresident “as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section.” OCGA § 9-10-91. Venue lies “in any county wherein a substantial part of the business was transacted, the tortious act, omission, or injury occurred, or the real property is located.” OCGA § 9-10-93.

       The same reasoning would apply to the trial court’s initial determination that Baldwin was not a Georgia resident at the time of filing of the complaint. That finding did not resolve whether the Georgia courts nevertheless had personal jurisdiction over Baldwin under the Long Arm Statute.


author: Boggs, Judge.

text:
    A15A1947.
    THE STATE v. DEPOL.
    (784 SE2d 51)
   Boggs, Judge.

The State of Georgia appeals from the trial court’s order granting Scott Depol’s motion to suppress the results of a breath test based upon the Supreme Court of Georgia’s recent decision in Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). Specifically, the trial court concluded that “the Defendant’s apparent voluntary intoxication left him without the ability to voluntarily consent to a search of his breath with the use of a machine, despite the lack of threats, benefits or promises from any of the three officers present on the scene.” For the reasons explained below, we reverse.

[0]n appeal from a ruling on a motion to suppress, we defer to the trial court’s factual findings and credibility determinations, but review de novo the court’s application of the law to the undisputed facts. And significantly, to the extent that the controlling facts “are undisputed because they are plainly discernable from the patrol car-mounted video recording,” as they are in this case, we review those facts de novo.

(Citations, punctuation and footnotes omitted.) State v. Mosley, 321 Ga. App. 236 (739 SE2d 106) (2013). See also Mack v. State, 296 Ga. 239, 241 (765 SE2d 896) (2014) (de novo review of videotaped interview to determine if defendant waived Fifth Amendment rights); Vergara v. State, 283 Ga. 175,178 (1) (657 SE2d 863) (2008) (de novo review of facts discernible from a videotape). “Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact, we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts. [Cit.]” Hughes v. State, 296 Ga. 744, 750 (2) (770 SE2d 636) (2015). This includes legal determinations based upon the totality of the circumstances. See, e.g., Hughes, supra, 296 Ga. at 749-752 (2) (no deference owed to trial court’s determination that totality of circumstances showed no probable cause to arrest); Boyd v. State, 315 Ga. App. 256, 257 (1) (726 SE2d 746) (2012) (applying de novo review of videotaped interview to determine if totality of circumstances showed that juvenile knowingly and voluntarily waived his Fifth Amendment right against self-incrimination); Franklin v. State, 249 Ga. App. 834, 835 (1) (549 SE2d 794) (2001) (applying de novo review of tape recording and police officer testimony to determine whether confession was voluntary).

In this case, the trial court ruled based upon the testimony of three sheriff’s deputies in a previous motion to suppress hearing, a video of the police interaction with Depol taken from a camera inside one of the deputy’s patrol car, and previous findings of fact made in its order denying Depol’s first motion to suppress made on other grounds. In its first order, the trial court made the following findings of fact:

Corporal C. Prescott was dispatched to a 911 call in reference to a hit & run/striking fixed object call. Upon her arrival at the scene of the incident, she spoke to the property owner and attempted to locate the vehicle and driver involved at the Kroger down the street. When she was unsuccessful, she returned to the incident location. Shortly after her return, an unknown individual is heard arriving on scene and telling Corporal Prescott that a vehicle that appeared to be involved in an accident was at the auto parts store up the street with the driver trying to change a tire and “he’s pretty drunk.” It is apparent from her response and later actions that she did no[t] hear the last comment about possible intoxication. Immediately thereafter, she leaves the incident location and goes to the auto parts store. There, she finds the defendant outside his vehicle in the parking lot of the auto parts store. The vehicle is parked, doors open, and it appears the defendant is attempting to change a tire. She engages him in conversation, and he admits that he was in an accident and did leave the scene. Less than a minute after arriving on the scene, the defendant hands the officer his driver’s license. She tells the defendant that she will need his insurance information to write a report, he indicates it just changed, and from there begins a long attempt of the defendant to get the insurance information. This attempt includes looking in the vehicle and making several phone calls.
Four minutes after arriving at the defendant’s location, Corporal Prescott calls in the defendant’s driver’s license and tag information to dispatch. Approximately two minutes later a second officer arrives on scene. Corporal Prescott tells this officer that she doesn’t smell anything and that she intends to give the defendant a ticket for leaving the scene. Two minutes later she receives information from dispatch that both the driver’s license and tag are valid. Almost four minutes after receiving this dispatch information, the defendant has still not been able to locate any insurance information. He has been free to walk around his vehicle, get in and out of his vehicle, and at one point walk into and out of the auto parts store. At some point, the second officer begins to suspect that the defendant might be impaired and asks Corporal Prescott about doing an alcosensor on the defendant almost four minutes after the dispatch information was received. She reveals that she cannot smell anything at all. She never relays the information from an unknown individual about intoxication, and it appears she really never heard that information. The defendant denies consuming alcohol. The defendant continues to attempt to get insurance information. At some point, a third officer arrives on scene. The audio cuts in and out at some points, as if someone cuts off their microphone.
Seven minutes after the first mention of an alcosensor, the defendant has still not been able to get any insurance information. The second officer tells the first officer that another officer is going to bring an alcosensor. It appears that even Corporal Prescott attempts to get the insurance information for him but is unsuccessful. The alcosensor arrives seven minutes after it was indicated that someone was bringing one. Corporal Prescott is assisted by another officer in operating it, and the defendant voluntarily blows into it. It registers positive for alcohol at approximately twice the legal limit (the number is shown on the video). From there, none of the three officers does any field sobriety evaluations. Corporal Prescott is clearly the lead officer on the case, and the others appear to be waiting for her to make a decision. The defendant appears to talk about some people in the sheriff’s office that he knows. For ten minutes after the defendant blows into the alcosensor, all three officers are talking to the defendant and then conversing with each other, with the microphone turned off some. No insurance information has provided at this point still. Four more minutes elapse a[s] the other two officers appear to be attempting to let Corporal Prescott come to the conclusion that they have — which is to arrest the defendant for DUI. One officer even says, “I’d take him to jail — you have enough, crash, presence of alcohol, not last night.” Finally Corporal Prescott tells the defendant he is under arrest. It has been approximately 42 minutes since Corporal Prescott arrived on scene. The defendant was never able to provide any insurance information. It is the defendant’s apparent inability to successfully find out his insurance information or even operate the telephone properly that attributes to the officers’ suspicions of impairment. Additionally, during this lengthy interaction the defendant begins to sway and become unsteady on his feet. After the arrest, Corporal Prescott secures the defendant in the back of her patrol car and reads implied consent properly. Implied consent is read two minutes after the handcuffs go on the defendant. He agrees to take the state’s test.
The above facts were gained from a review of the video. At the hearing, Captain Pinyan, the second officer to arrive on the scene, testified that the defendant’s eyes were bloodshot and glassy and that he was chewing gum. He also testified that the defendant swayed while trying to talk on the telephone, and he appeared to be under the influence of something. Corporal Prescott also testified at the hearing and said that the defendant’s eyes were bloodshot, his speech delayed, he swayed, and when asked if had been drinking said, “No, thank you.” The defendant later said that he’d had “too much to drink,” but that it was the night before.

(Emphasis supplied.) The trial court denied Depol’s motion to suppress based upon its conclusion that probable cause existed for his arrest, the length of his detention was not unreasonable, and the implied consent notice was timely and properly read.

Six months later, Depol filed a supplemental motion to suppress based upon the Supreme Court’s intervening decision in Williams, supra. In a second hearing before the trial court, it heard only argument of counsel before ruling from the bench that it would grant the motion. It stated: “All the reasons that I put in my order as to his demeanor are the same reasons that lead me to believe that he could not have formed a voluntary choice. He was, as you watch the video, and it’s quite a lengthy video, it’s very clear he’s extremely impaired.”

In its written order granting the second motion to suppress, the trial court expressly states that its ruling is based upon the findings of fact in its previous order, as well as the evidence and testimony presented in the first motion to suppress hearing, which had been held ten months before. It also stated:

The issue at hand is whether the Defendant, in agreeing to submit to the State’s breath test under the Georgia Implied Consent law, also made a voluntary decision to waive any remaining Fourth Amendment rights and consent to the search of his breath through the use of an Intoxilyzer breath testing machine. After a review of the totality of the circumstances, this Court finds that the State did not carry its burden in proving that the Defendant voluntarily consented to taking the breath test.
It was clear from the video that the Defendant was extremely impaired. He had grave difficulty in using his cell phone. He was never able to utilize it to find insurance information. His physical demeanor clearly indicated he was under the influence — swaying, difficulty operating the cell phone, appearing confused as to recent time line of events, not appearing to work on changing his tire, delayed speech, not knowing whether he was coming from or going to hunt, unsure of when he had consumed alcohol. At one point, three officers were present on scene and yet the Defendant appeared to express no concern for why they were there. He felt free to roam the area, appearing to not fully understand the gravity of the situation. At one point, he is asked if he hadbeen drinking said, “No, thank you.” It is the defendant’s apparent inability to successfully find out his insurance information or even operate the telephone properly that attributes to the officers’ suspicions of impairment. The defendant appears to talk about some people in the sheriff’s office that he knows, almost in a small talk fashion and not in an attempt to persuade the officers to not arrest him. This is odd considering others facing three officers likely would have felt an impending arrest. The alcosensor the Defendant took registered for alcohol at approximately twice the legal limit (the number is shown on the video).
Essentially, the officers clearly had sufficient probable cause to arrest the Defendant for DUI, but for all the same reasons, under a totality of the circumstances, it is also clear that the Defendant’s intoxication left him in state in which he could not have formed a voluntary decision to waive his Fourth Amendment rights and consent to providing a breath sample.... [I]n this particular case, the Defendant’s apparent voluntary intoxication left him without the ability to voluntarily consent to a search of his breath with the use of a machine, despite the lack of threats, benefits or promises from any of the three officers present on scene.

We cannot determine from the transcript of the second hearing or the trial court’s order whether it watched the video again in the six-month time period between its first and second orders. A review of the hearing transcript for the first motion to suppress shows that none of the deputies were asked any questions relating to the voluntariness of Depol’s consent to a breath test after he was read the implied consent notice. Corporal Prescott testified only that after she read the implied consent notice to Depol, “he agreed” and her testimony is supported by the video. No evidence was presented about his education, intelligence, or medical conditions. According to the citation in the trial court record, Depol was 47 years old at the time of his arrest.

On appeal, the State contends that the trial court erred by concluding that it failed to meet its burden of proving that Depol voluntarily consented to the breath test. We agree.

In Schneckloth v. Bustamonte, 412 U. S. 218 (93 SCt 2041, 36 LE2d 854) (1973), the Supreme Court of the United States addressed at length what the prosecution must “prove to demonstrate that a consent [to search] was ‘voluntarily’ given.” Id. at 223 (II). It rejected knowledge of the right to refuse consent as a requirement for effective consent. Id. at 223 (II), 234-246 (II) (B). See also Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). Instead, it adopted a “totality of the circumstances test” in which the knowledge of the accused is but one factor to be considered. Schneckloth, supra, 412 U. S. at 227 (II) (B). Accordingly, when the State relies upon the consent exception to the warrant requirement, it “has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” (Citations, punctuation and footnote omitted.) Williams, supra, 296 Ga. at 821-822.

In a recent case applying Williams, supra, this court noted:

A “totality of the circumstances” analysis is not new to Georgia courts. “A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008). Nor may consent be “coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth[, supra, 412 U. S. at 228 (II) (B)]. Other factors to be considered are “prolonged questioning;... the accused’s age, level of education, intelligence . . . and advisement of constitutional rights; and the psychological impact of these factors on the accused.” State v. Austin, 310 Ga. App. 814, 817-18(1) (714 SE2d 671) (2011). Moreover, “[w]hile 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.” Schneckloth, [supra,] 412 U. S. at 227 (II) (B). Instead, the court should consider whether “a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.” Austin, [supra,] 310 Ga. App. at 820 (1) (citing Johnson v. State, 297 Ga. App. 847, 849 (678 SE2d 539) (2009)); State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008). “Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.” State v. Jourdan, 264 Ga. App. 118, 121 (1) (589 SE2d 682) (2003) (citation omitted); Hollenback v. State, 289 Ga. App. 516, 519 (657 SE2d 884) (2008).

Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016).

In the context of determining whether a defendant has knowingly and voluntarily waived his right to be silent under the Fifth Amendment, we have held that

the mere fact that a defendant was intoxicated at the time of the statement does not necessarily render it inadmissible. If the evidence is sufficient to establish that the defendant’s statement was the product of rational intellect and free will, it may be admitted even if the defendant was intoxicated when he made the statement.

(Citations and punctuation omitted.) McNear v. State, 326 Ga. App. 32, 34 (2) (755 SE2d 844) (2014).

In this case, we have reviewed the video of Depol’s interactions with the deputies and conclude that it cannot support the trial court’s observation that it shows “the Defendant was extremely impaired” and “without the ability to voluntarily consent to a search of his breath.” While Depol swayed slightly at times, it is clear from the video of his approximately 45-minute interaction with the officers that he was capable of exercising sufficient free will to consent to a breath test. When the officer first approached him at the auto parts store, he exchanged appropriate and well-timed greetings with her, admitted that he ran off the road due to bad tires, and explained that he planned to return to where he ran off the road after he changed out the bad tire. During this exchange, he continually worked at unwinding something located on the floor of the rear hatch of his sport utility vehicle while periodically turning his head to talk with the deputy. He stopped working only after the deputy asked him to get his driver’s license and insurance information for her.

After pulling out his wallet and handing the deputy his driver’s license, Depol walked quickly toward the driver’s compartment of the car where he appeared to begin searching for his insurance information. After looking unsuccessfully for about two minutes, he told the officer that he had just changed his insurance. After another minute of unsuccessful searching, he told the deputy that his insurance carrier was Allstate. She replied, “If you wouldn’t mind sir, I’m still gonna need you to contact someone to get the policy number.” He acknowledged her request, and the deputy returned to her patrol car, leaving him in the driver’s seat of his vehicle.

Approximately three minutes later, the deputy told another deputy who had arrived as back-up that she did not “smell any alcohol, he’s not drunk... so he’ll get a ticket for leaving the scene of an accident. . . . He’s trying to call his Allstate insurance.” Three minutes later, Depol got out of the car and looked at the damage to his tire with the back-up deputy and talked with this deputy for about two minutes, but their conversation cannot be heard on the video and the deputy almost entirely blocked the camera’s view of Depol for a large portion of this conversation. At the end of their conversation, the deputy walked away from him to talk with the first deputy who appeared to be seated in her patrol car, while Depol walked inside the auto parts store.

When Depol returned to his vehicle less than a minute later, the first deputy stepped away from her patrol car and asked him whether he hadbeen able to obtain his insurance information. Depol responded in the negative, removed his cell phone from the front seat and explained to the officer that he could not see the phone well because “his arms weren’t long enough” as he demonstrated holding it far away from his body. He continued trying to operate the phone while holding it out as far as he could from his body until he overheard the deputies discussing the amount of damage to the fence where he ran off the road. At that point, he looked up from the phone and interjected, “I’m going to pay for that.” When the deputy explained that either he or his insurance company would have to pay for it, he repeated that he would pay for it. When the officers explained that they needed to verify he was driving with valid insurance, Depol stated, “Oh, I understand.” As the officers continued to discuss with one another potential damage to a fire hydrant, Depol interjected that he was calling 1-800-All-State. After hanging up, he asked the officer another question, and she responded that she still needed the policy number. While Depol continued trying to obtain the requested policy number, the officer also attempted to do it herself while back in her patrol car. Three minutes later, she stated, apparently to herself, “Really, you just hung up on me. Seriously.” When another officer approached her a minute later, she responded, “I haven’t even gotten it.”

Decided March 15, 2016

After another officer brought an alco-sensor, the first deputy stated, “Mr. Depol, if you wouldn’t mind, I’d like you to breathe into this just to make sure you are safe to drive.” Depol responded, “I’m safe.” After the device was explained, the officer instructed Depol to take a deep breath and blow. Depol followed her instructions without difficulty.

Approximately 14 minutes later, Depol was arrested and placed in handcuffs. Depol responded appropriately when the officer asked if he had a weapon in his vehicle. When a deputy explained that his car would be towed and that his weapon would be placed in evidence for safekeeping, Depol stated that he understood and informed the officer that his gun was in a case and that there were no other weapons present. Immediately after this conversation, during which Depol responded in a timely and appropriate fashion, the first deputy read the implied consent warning to Depol and he replied, “yes ma’am,” when asked if he would submit to the state-administered test.

Based upon our de novo review of the video and the other undisputed evidence before the trial court, we conclude that Depol voluntarily consented to a test of his breath. Although he was under the influence of alcohol, the video clearly demonstrates that he was also capable of understanding what was said to him, able to freely and voluntarily consent, and actually did so. Accordingly, we reverse the trial court’s grant of Depol’s motion to suppress. See State v. McMichael, 276 Ga. App. 735, 739-740 (1) (624 SE2d 212) (2005) (reversing trial court’s grant of motion to suppress after applying law to undisputed facts and determining that consent to search was voluntary); State v. Brown, 273 Ga. App. 148, 151 (2) (c) (614 SE2d 250) (2005) (same).

Judgment reversed.

Doyle, C. J., and Rickman, J., concur.

Jessica K. Moss, Solicitor-General, Barry W. Hixson, Assistant Solicitor-General, for appellant.

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

       In his first motion to suppress, Depots argument centered on the claim that the unreasonable length of his detention vitiated his consent to the breath test.

       While the trial court’s order stated the correct standard, we note that it also included some loose, less specific language about the issue before it. Specifically, the trial court framed it as follows: “The issue at hand is whether the Defendant, in agreeing to submit to the State’s breath test... also made a voluntary decision to waive any remaining Fourth Amendment rights and consent to the search of his breath.” (Emphasis supplied.) The issue, however, is not whether the defendant voluntarily decided to waive his Fourth Amendment rights, but rather whether he voluntarily consented to a breath test. “Where the trial court has used a wrong standard in reaching its conclusion, a remand may be appropriate where legitimate factual issues are raised. However, where there is no evidence which would authorize the grant of the motion to suppress, a remand is unnecessary.” (Citations and punctuation omitted.) State v. Davison, 280 Ga. 84, 86 (2) (623 SE2d 500) (2005).

       The deputy acknowledged that the property owner told her that his property “was a hot spot for cars going off the roadway” and had “happened many times before.”

       The deputy testified that he was attempting to get out his spare tire.

       At one point in the video, Depol patted his shirt pockets as though he were looking for reading glasses, but his pockets were empty. The deputy testified that she believed Depol “was straining to try to read his [cell phone].”

       Even under the clearly erroneous standard of review, we would have to reverse the trial court’s decision to grant the motion to suppress in this case as the evidence demands the conclusion that Depol voluntarily consented to the state-administered breath test. See State v. Kinsey, 272 Ga. App. 723,724 (613 SE2d 232) (2005) (physicalprecedent only). In its first order, the trial court expressly concluded that Depol voluntarily blew into the alco-sensor and nothing which occurred in the 14 minutes between the alco-sensor and Depol’s consent to the state-administered breath test demonstrates that he was too intoxicated to freely and voluntarily consent.

       Depol’s argument that we should conclude that he merely acquiesced to a show of authority based upon the language of the implied consent notice has already been rejected by this court in Kendrick, supra, 335 Ga. App. at 770.


text:
    A15A1996.
    CRONAN v. JP MORGAN CHASE BANK, N.A.
    (784 SE2d 57)
   Boggs, Judge.

Michael A. Cronan appeals from a trial court order dismissing his counterclaim against JP Morgan Chase Bank, N.A. (“Chase”). On appeal, Cronan contends that the court erred in dismissing his claim to quiet title and his claim for attorney fees pursuant to OCGA § 13-6-11. He also asserts that the court erred in “refusing to permit examination of Chase’s attorney-in-fact.” For the following reasons, we affirm in part and reverse in part.

The underlying facts are largely undisputed. In 2010, Cronan obtained a $417,000 loan from Chase and executed a security deed to secure the debt. The deed listed a parcel ID number and the property address of 2215 Dawnville Beaverdale Road in Dalton, Georgia (hereinafter “2215 Dawnville”) under “Transfer of Rights in the Property,” and further provided, “See Attached Legal Description.” The attached legal description described the property by reference to a plat/ survey and by metes and bounds, and added: “Commonly known as: 2215 Dawnville Beaverdale R, Dalton, GA 30721.” But, as the parties agree, the legal description in the deed was for that of 2253 Dawnville Beaverdale Road (“2253 Dawnville”), another property Cronan owned.

In September 2012, after Cronan defaulted on the loan, Chase foreclosed on the property. The advertisement of foreclosure identified 2253 Dawnville as the property to be foreclosed upon. After the foreclosure deed under power of sale was recorded, Chase conveyed its interest in the property to Fannie Mae, and Fannie Mae sought a writ of possession for “2215 Dawnville Beaverdale Rd NE aka 2253 Dalton GA 30721.” But the magistrate court found that Fannie Mae had an ownership interest in 2253 Dawnville and did not have a “lien or ownership interest in . . . 2215 Dawnville,” and granted Fannie Mae a writ of possession for 2253 Dawnville only.

In February 2014, counsel for Chase signed an Affidavit of Title (recorded on February 18, 2014), asserting that it intended the deed to encumber 2215 Dawnville, that Cronan defaulted on the loan, that it discovered that the legal description attached to the deed was for the property located at 2253 Dawnville, and that it intended to file suit to correct the error in the deed. In April 2014, Chase filed a complaint for reformation, declaratory judgment, and equitable relief seeking to correct the legal description in the deed to reflect that the deed was intended to encumber 2215 Dawnville, void the foreclosure sale and reinstate the security deed, and return the parties “to their respective positions and holding their respective interests in the property.”

In June 2014, Cronan filed an answer and a counterclaim for libel and abusive collection. He subsequently filed a motion to compel and for attorney fees, a separate motion for attorney fees, a motion to dismiss Chase’s complaint, and a motion to dismiss lis pendens. Chase voluntarily dismissed its complaint without prejudice on August 8, 2014. Chase’s counsel signed a second Affidavit of Title on August 11, 2014, and it was filed the same day.

On September 24, 2014, Chase moved to dismiss Cronan’s counterclaim. On October 28, however, Cronan filed an amended answer and verified counterclaim to quiet title. Following a hearing, the trial court denied Cronan’s pending motions and dismissed his counterclaims. It is from this order that Cronan appeals.

1. Cronan argues that the trial court erred in dismissing his quiet title claim. Assuming without deciding that Chase properly moved to dismiss this claim, we agree.

Amotion to dismiss pursuant to OCGA § 9-11-12 (b) (6) will not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. The main consideration of such a motion to dismiss is whether, under the assumed set of facts, a right to some form of legal relief would exist. If material allegations are missing from a pleading, then the pleading fails. [An appellate court’s] review of a trial court’s ruling on a motion to dismiss is de novo.

(Citations and punctuation omitted.) Cumberland Contractors v. State Bank and Trust Co., 327 Ga. App. 121, 125-126 (2) (755 SE2d 511) (2014).

Cronan’s verified counterclaim to quiet title asserted that Chase’s First and Second Affidavits and its “actions in falsely or maliciously reporting the foreclosure of his homeplace a/k/a 2215 Dawnville to mortgage and/or credit reporting companies . . . cast a cloud over [Cronan’s] title to his homeplace, and/or otherwise subjects him to future liability or present annoyance.”

OCGA § 23-3-61 provides in part:

Any person ... who claims an estate of freehold present or future or any estate for years of which at least five years are unexpired, including persons holding lands under tax deeds, in any land in this state, whether in the actual and peaceable possession thereof or not and whether the land is vacant or not, may bring a proceeding in rem against all the world to establish his title to the land and to determine all adverse claims thereto or to remove any particular cloud or clouds upon his title to the land, including an equity of redemption, which proceeding may be against all persons known or unknown who claim or might claim adversely to him ....

The purpose of this equitable remedy

is to create a procedure for removing any cloud upon the title to land, including the equity of redemption by owners of land sold at tax sales, and for readily and conclusively establishing that certain named persons are the owners of all the interests in land defined by a decree entered in such proceeding, so that there shall be no occasion for land in this state to be unmarketable because of any uncertainty as to the owner of every interest therein.

OCGA § 23-3-60.

Cronan asserted that only 2253 Dawnville was intended to be encumbered by the deed as shown by the legal description contained therein, and that 2215 “is merely a reference to a mailing address at which [Cronan] could be reached.” Chase, on the other hand, asserted that the deed was intended to encumber 2215 Dawnville. The allegations of Cronan’s counterclaim disclose that he would be entitled to relief if it is determined that he does in fact hold unencumbered legal title to 2215 Dawnville (which he alleges he currently holds), and that Chase through the filing of the Affidavits of Title and the foreclosure and resulting Deed Under Power, cast a cloud upon that title. The trial court therefore erred in dismissing Cronan’s counterclaim to quiet title. See, e.g., DOCO Credit Union v. Chambers, 330 Ga. App. 633, 637 (1) (768 SE2d 808) (2015) (trial court erred in dismissing quiet title action).

2. Cronan also appeals from the dismissal of his claim for attorney fees pursuant to OCGA § 13-6-11. The trial court ruled that Cronan’s claim for attorney fees fails because it found “no merit in his other claims.” In light of our reversal of the dismissal of Cronan’s quiet title claim in Division 1, we would ordinarily reverse the court’s denial of his claim for attorney fees pursuant to OCGA § 13-6-11. See, e.g., Omni Builders Risk v. Bennett, 325 Ga. App. 293, 298 (3) (750 SE2d 499) (2013). But, as the trial court also noted in passing, “a plaintiff-in-counterclaim cannot recover attorney’s fees under OCGA § 13-6-11 unless he asserts a counterclaim which is an independent claim that arose separately from or after the plaintiff’s claim.” (Citations omitted.) Byers v. McGuire Properties, 285 Ga. 530, 540 (6) (679 SE2d 1) (2009). In Byers, the Supreme Court of Georgia held that where the plaintiff brought an action seeking, among other things, cancellation of a deed, a decree to quiet title, and equitable subrogation, the plaintiff-in-counterclaim could not recover attorney fees because his quiet title counterclaim was not independent from the underlying/original complaint. Id. As in Byers, Cronan’s counterclaim to quiet title did not arise separately from Chase’s claim to reform the deed and void the foreclosure. See id. The trial court therefore did not err in dismissing Cronan’s claim for attorney fees pursuant to OCGA § 13-6-11.

3. Cronan argues that the trial court erred in refusing to permit examination of Chase’s attorney-in-fact. The record reveals that Cronan served a subpoena for Chase’s counsel to appear to give testimony concerning the Affidavits of Title she filed as the deponent. Chase’s counsel moved to quash the subpoena on the ground that, inter alia, the request violates the attorney-client privilege and is overly burdensome, unreasonable and oppressive. During a hearing, the court effectively granted the motion to quash by ruling simply, “I’m not going to require her to testify.”

“A trial court has discretion to quash an unreasonable and oppressive subpoena, and abuse of discretion is the appropriate standard of review in such situations.” (Citations and punctuation omitted.) Bazemore v. State, 244 Ga. App. 460, 463 (2) (535 SE2d 830) (2000); see also LecStar Telecom v. Grenfell, 273 Ga. App. 712, 715 (4) (616 SE2d 482) (2005); OCGA § 24-13-23 (b) (1). Cronan argues on appeal that he was entitled to question Chase’s counsel concerning her stated knowledge of the subjective intent of Chase and Cronan with regard to the security deed. He asserts that Chase’s counsel’s averments in the Affidavits of Title “go[ ] far beyond an objective evaluation of title by purporting to know Cronan’s subjective intent, which cannot be discerned by reviewing documents filed in a clerk’s office.”

OCGA § 44-2-20 provides in part:

Recorded affidavits shall be notice of the facts therein recited, whether taken at the time of a conveyance of land or not, where such affidavits show . . . [t]he relationship of parties or other persons to conveyances of land;... [or] state any other fact or circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land.

OCGA § 44-2-20 (a) (1), (9).

Here, both Affidavits of Title assert allegations concerning the execution of the deed: that Chase intended the deed to encumber 2215 Dawnville, Cronan’s default on the loan, Chase’s discovery that the legal description attached to the deed was for the property located at 2253 Dawnville, that Chase intends to file suit to correct the error in the deed, and that the purpose of the affidavits is to put all on notice of Chase’s claimed interest in the property. The second Affidavit of Title adds that Cronan disputes that 2215 Dawnville was the intended collateral. All of these allegations simply describe either the relationship of the parties, or other objective facts or circumstances affecting title to the property. Moreover, nearly all of these allegations are asserted or confirmed by Cronan either in his answer to Chase’s complaint, his counterclaim, or his brief on appeal to this court.

Under these circumstances, we cannot conclude that the trial court abused its discretion in refusing to allow Cronan to question Chase’s counsel. See In the Interest of N. S. M., 183 Ga. App. 398, 399 (2) (359 SE2d 185) (1987) (trial court did not abuse its discretion in refusing to allow witness to testify in termination action when all information sought by petitioners had been obtained through other sources and at best cumulative).

Decided March 15, 2016.

Coppedge & Associates, Warren N. Coppedge, Jr., Stephen Michmerhuizen, Daniel H. Laird III, for appellant.

Gilroy Bailey Trumble, Monica K. Gilroy, Tania T. Trumble; Wargo French, Dustin S. Sharpes, for appellee.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Rickman, J., concur.

       This appeal was originally filed in the Supreme Court of Georgia, but that court transferred the appeal here on grounds that
      there appears to be no issue of equity which could be raised on appeal so as to invoke this Court’s equity jurisdiction .... Further, a review of the record reveals that appellant currently has both legal title and possession of the land at the heart of his quiet title counterclaim such that it does not involve this Court’s title to land jurisdiction!-]

        Cronan v. JP Morgan Chase Bank, N.A., Case No. S15A1223 (transferred to the Court of Appeals by order May 26, 2015).

       This deed listed the property address and description for 2253 Dawnville.

       Chase asserts that although Cronan recorded a survey showing the creation of 2215 Dawnville, that tract is being taxed as part of, and had never been formally subdivided out of, a 29.71-acre tract of land known as 2235 Dawnville Beaverdale Road.

       Chase cancelled this lis pendens and instead filed its second Affidavit of Title.

       Chase explains that it was in the process of repurchasing the property from Fannie Mae, and that the repurchase was finalized in September 2014.


author: McFadden, Judge.

text:
    A15A2044.
    WEAVER v. THE STATE.
    (784 SE2d 61)
   McFadden, Judge.

After a jury trial, Rodney Weaver was convicted of aggravated child molestation, aggravated sexual battery, and child molestation. He appeals, claiming that the trial court’s communication with the jury violated his right to be present during all stages of the proceedings and his right to counsel, that his trial counsel was ineffective, and that the trial court improperly expressed an opinion about the evidence. However, Weaver waived any objection to the right to be present, was not deprived of counsel at a critical stage, has failed to show that his trial counsel’s performance was both deficient and prejudicial, and has not shown that the trial court expressed an opinion about the evidence. Accordingly, we affirm.

1. Sufficiency of the evidence.

Although Weaver has not challenged the sufficiency of the evidence, we note that, construed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that Weaver sexually abused the 12-year-old victim by forcing her to disrobe, inserting his finger into her vagina, licking her vagina, and putting his mouth on her breasts. Such evidence “was sufficient for a rational trier of fact to find [Weaver] guilty of the crimes charged beyond a reasonable doubt. [Cit.]” Hudson v. State, 309 Ga. App. 580 (1) (711 SE2d 95) (2011).

2. Communication with jury.

During jury deliberations, the foreperson sent a note to the judge indicating that one of the jurors wanted to speak with the court. At this time, Weaver and the lawyers were not in the courtroom. The judge responded in writing, asking what the matter concerned and stating that she could not speak with the juror without the lawyers and Weaver present. The foreperson sent a second note indicating that the juror wanted to discuss possible juror misconduct, and the court responded in writing that the jury should continue deliberating until the court had considered the matter. Approximately 20 minutes later, Weaver and the lawyers returned to the courtroom, and the judge informed them of the substance of both the jury’s notes and her responses. The judge also told Weaver and the attorneys that she intended to call the juror into court to inquire into the matter, and asked for objections. Both the state’s attorney and Weaver’s counsel replied that they had no objections to the procedure. The court then separately questioned the juror and the jury foreperson in open court, after which she had them return to the jury room to continue deliberations, and determined that no further action was required by the court. Upon inquiry by the court, counsel for Weaver stated that the defense had nothing to add in regard to the matter and did not raise any objections to the judge’s handling of the notes from the jury or her questioning of the jurors.

(a) Right to be present.

Weaver claims that the trial court’s communication with the jury via the notes violated his right to be present during all proceedings. However, Weaver waived this claim.

Within the Georgia constitutional right to the courts is a criminal defendant’s right to be present, and see and hear, all the proceedings which are had against him on the trial before the [c]ourt.... Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused; and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial. We state again: all communications with the jury are to be discouraged except in open court with all persons present.

Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998) (citations, punctuation, footnote and emphasis omitted).

However, like many other rights, “the right to be present can be waived by failure to object. [Cit.]” Fuller v. State, 277 Ga. 505, 506 (2) (591 SE2d 782) (2004). “[A] defendant waives appellate review of an allegedly improper judge/jury communication when, prior to verdict, [the] defendant is aware of the communication and fails to voice an objection.” Hanifa, 269 Ga. at 808 (6) (citation omitted). In this case, the court made Weaver and his counsel aware of her communication with the jury shortly after it had occurred and prior to the verdict, but Weaver and his counsel did not object to the communication. Thus, Weaver

waived [his] right to appellate review of this issue by failing to voice an objection or seek a mistrial after being informed by the trial judge, prior to the return of the jury’s verdicts, of [her communication] with the jury. Upon being told of the occurrence, a motion for mistrial is a proper manner for objecting.

Id. at 807-808 (6) (citations omitted). See also Allen v. State, 297 Ga. 702, 704-705 (4) (777 SE2d 680) (2015) (defendant waived right to be present during court’s conversation with juror); Daniel v. State, 292 Ga. App. 560, 561 (1) (665 SE2d 696) (2008) (defendant waived claim that trial court erred in responding to jury’s note in absence of him and his counsel by failing to raise an objection after being informed of the communication).

(b) Right to counsel.

Weaver relies on Lowery v. State, 282 Ga. 68 (646 SE2d 67) (2007) to support his argument that he was deprived of his right to counsel by the trial court’s failure to notify him of the notes from the jury prior to the court’s responses to those notes. But contrary to Weaver’s argument, Lowery did not hold that such a failure violates the right to counsel. Rather, in that case, the Supreme Court of Georgia assumed for the sake of argument, but did not decide, that such a failure would constitute a violation of the right to counsel, and then engaged in a harmless error analysis. Id. at 75 (4) (b) (ii).

Assuming without deciding that the right to counsel encompasses the right to have reasonable notice of a deliberating jury’s substantive communication and a meaningful opportunity to be heard with regard to the proposed response thereto, the failure of the trial court to inform counsel of the contents of the note and to seek comment on or input in the formulation of the court’s response would constitute a violation of the right to counsel. Our analysis does not end here, however, because even error of a constitutional magnitude, such as an abridgment of the Sixth Amendment right to counsel, can be deemed harmless. Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Whether a constitutional violation constitutes harmless error depends on whether the [s]tate can prove beyond a reasonable doubt that the error did not contribute to the verdict.

Id. (citations and punctuation omitted).

In the instant case, even if we assume, without deciding, that the trial court violated Weaver’s right to counsel by responding to the jury notes without first notifying Weaver and his attorney, the assumed error was harmless beyond a reasonable doubt. The trial court’s responses to the notes correctly informed the jury that the court could not discuss the matter without Weaver and the attorneys present and instructed the jury to continue deliberations until the matter was addressed by the court. Those responses did not address the substance of the notes insofar as they raised the issue of possible juror misconduct; rather, the responses contained a correct statement of law that merely maintained the status quo until Weaver and the attorneys had returned and were able to address the matter fully in open court. “The communication between the court and jurors neither materially affected [Weaver’s] case nor did it provide a causal link to the verdict. [Cit.]” Logan v. State, 266 Ga. 566, 568 (2) (468 SE2d 755) (1996) (punctuation omitted). Under these circumstances, we conclude that the assumed error “did not contribute to the verdict and therefore was harmless beyond a reasonable doubt.” Lowery, 282 Ga. at 76 (4) (b) (ii). See also Logan, 266 Ga. at 567-568 (2) (harmless error for court to respond to question concerning consequences if jury unable to reach a verdict).

3. Ineffective assistance of counsel.

Weaver claims that his trial counsel was ineffective in failing to object to testimony that invaded the province of the jury by going to the ultimate issue in the case and by failing to ob j ect to testimony that opined as to the victim’s truthfulness.

To establish [these] claim [s] of ineffective assistance of counsel, [Weaver] must show that (1) his trial counsel’s performance was professionally deficient and (2) but for such deficient performance there is a reasonable probability that the result of the trial would have been different. On appeal, this [c]ourt accepts the trial court’s findings of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions are reviewed de novo.

Adams v. State, 298 Ga. 371, 372-373 (2) (782 SE2d 36) (2016) (citations and punctuation omitted).

(a) Ultimate issue.

At trial, a forensic interviewer testified, among other things, that she recommends counseling in certain cases because in talking to the children “you can kind of feel that there is some additional therapy needed,” and that she recommended counseling in this case based on things the victim had said about how she felt and “about how she was going to have to remember this.” Weaver maintains that the forensic interviewer, without objection from his counsel, was thereby allowed to testify regarding the ultimate issue at trial. We disagree.

Ordinarily, a witness may not express his opinion as to an ultimate fact, because to do so would invade the province of the jury. [But i]n this instance, the [witness] testified only regarding the [recommendation for counseling] concerning [the child]. [She] did not testify regarding the ultimate issue in question, namely whether [Weaver sexually abused the victim].

Lamar v. State, 297 Ga. 89, 93 (3) (772 SE2d 636) (2015) (citation omitted). Since the forensic interviewer’s testimony was not an inadmissible opinion as to the ultimate issue, “it therefore follows that [Weaver’s] trial counsel was not ineffective for failing to make a meritless objection. [Cits.]” Scott v. State, 332 Ga. App. 559, 568 (6) (774 SE2d 137) (2015).

(b) Opinion as to truthfulness.

Weaver also contends that the forensic interviewer improperly opined as to the victim’s truthfulness. Indeed, “the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness. Thus, a witness may not give an opinion as to whether the victim is telling the truth.” Canty v. State, 318 Ga. App. 13, 16 (2) (733 SE2d 64) (2012).

However, a review of the forensic interviewer’s challenged testimony reveals that the witness did not give an opinion as to the child’s truthfulness, but simply noted consistencies between statements made by the victim during her forensic interview and in another statement introduced by the defense. The witness “merely indicated that [the victim] was consistent in her story. She did not address whether [the victim’s] story was believable nor did she opine that it was truthful. Thus, [the witness] did not directly comment on [the victim’s] credibility^]” Carter v. State, 320 Ga. App. 454, 461 (4) (b) (740 SE2d 195) (2013) (citation and punctuation omitted). And once again, “since the testimony was admissible, an objection to it would have been without merit, and failure to make a meritless objection does not constitute ineffective assistance of counsel.” Id. (citation and punctuation omitted).

Decided March 15, 2016.

Steven E. Phillips, Kenneth D. Kondritzer, for appellant.

PaulL. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

4. Judge’s opinion as to guilt.

While the trial court was questioning the juror discussed above in Division 2, the juror revealed that she had written “not guilty” on her notes before the end of the presentation of evidence. Amongst other things, the trial court asked the juror about that note to determine whether she had prematurely made a decision in the case or if she had kept an open mind during the trial and was participating in the jury deliberations. Weaver complains that this questioning by the judge constituted an impermissible comment as to his guilt. We disagree.

Former OCGA § 17-8-57, in effect at the time of trial, provided: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Here, the judge merely sought to clarify the juror’s statements regarding her notes taken during the trial. Thus, “[cjontrary to [Weaver’s] argument, the trial court’s mere clarification of [the juror’s statements] did not constitute the type of direct comment [as to guilt] that would violate OCGA § 17-8-57. [Cit.]” Wallace v. State, 335 Ga. App. 232, 234 (1) (779 SE2d 130) (2015). See also Alexander v. State, 294 Ga. 345, 348 (3) (751 SE2d 408) (2013) (trial court’s questions posed for purpose of clarifying testimony did not express or intimate an opinion regarding the evidence or the guilt of the accused).

Judgment affirmed.

Dillard, J., concurs. Ellington, P. J., concurs in judgment only.

       OCGA § 17-8-57 (a) (1) of the current Code similarly provides: “It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.”