author: Ray, Judge. MCFADDEN, Judge, BOGGS, Judge,

text:
    A14A1619.
    STATE OF GEORGIA v. WEST.
    (771 SE2d 432)
   Ray, Judge.

In this forfeiture action, the trial court denied the State’s forfeiture of West’s vehicle after West pled guilty and was convicted of possession of marijuana with intent to distribute. The State argues that the trial court misinterpreted the applicable provision of the forfeiture statute, OCGA § 16-13-49 (d) (6), and erroneously held that West’s vehicle, which was in close proximity to his apartment in which the drugs were seized, was not subject to forfeiture because the State lacked evidence that the vehicle was in any way connected to the unlawful activity. We agree with the State that the plain language of the statute imposes no such requirement and, therefore, reverse.

The pertinent facts are undisputed. In June 2012, law enforcement officers executed a search warrant of an apartment in which West resided. The officers located and seized large amounts of marijuana, as well as scales and other equipment indicative of distribution. They also seized West’s 1984 Oldsmobile Cutlass Supreme which, as held by the trial court, “was parked in the front yard of the residence directly in front of the door.” No contraband or money was found in the vehicle, no statement was made to police related to drug activity involving the vehicle, and no observation was made of West in or around the vehicle prior to the execution of the search warrant. West subsequently entered a guilty plea to possession of marijuana with intent to distribute and was sentenced on that charge.

The State instituted forfeiture proceedings against West’s vehicle pursuant to OCGA § 16-13-49 (d) (6), asserting that it was subject to forfeiture because it was located in “close proximity” to the marijuana. That statutory provision declares as contraband subject to forfeiture “[a] 11 moneys ... or other things of value which are found in close proximity to any controlled substance or marijuana or other property which is subject to forfeiture under this subsection.”

West filed an answer and statutory defense in which he asserted that he purchased the vehicle with money received through employment and student loans, and that it was not subject to forfeiture because it was not in close proximity to the marijuana or any other contraband, nor did it contain any contraband or money derived from unlawful activity.

The trial court thereafter issued an order holding that the vehicle was not subject to forfeiture on the basis of close proximity alone, in the absence of facts connecting the vehicle to West’s illegal activity. Implicit in the order is the trial court’s finding that the vehicle was, as a factual matter, located in “close proximity” to the marijuana seized from the apartment.

The State argues that the trial court misinterpreted the statute in holding that proximity alone was insufficient to authorize the forfeiture. We agree.

To resolve this issue, we must apply the controlling principles of statutory construction. When interpreting a legislative act, a court “must afford the words of the statute their ordinary signification, and . . . presume that the General Assembly meant what it said and said what it meant.” (Citations and punctuation omitted.) Arby’s Restaurant Group v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012); see OCGA § 1-3-1 (b). “[When] the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” (Citation and punctuation omitted.) Arby’s Restaurant Group, supra at 245 (1). To the extent that judicial construction is necessary, “[w]e must seek to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage.” (Citation and punctuation omitted.) City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996). Finally, “it is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” (Citation and punctuation omitted.) Id.

OCGA § 16-13-49 (d) (6) does not require evidence that property found in “close proximity” to marijuana be further connected to the illegal activity in order to be subject to forfeiture. To the contrary, the plain and unambiguous language states that “[a] 11... things of value which are found in close proximity to . . . marijuana” are subject to forfeiture. OCGA § 16-13-49 (d) (6). Our interpretation is buttressed by the fact that other provisions within the same statute explicitly contain such a requirement. Compare OCGA § 16-13-49 (d) (2) (authorizing forfeiture of “[a]ll property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or any proceeds derived orrealized therefrom”); OCGA § 16-13-49 (d) (3) (authorizing forfeiture of “[a] 11 property located in this state which was, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article”); OCGA § 16-13-49 (d) (4) (authorizing forfeiture of “[a]ll weapons possessed, used, or available for use in any manner to facilitate a violation of this article”). Moreover, OCGA § 16-13-49 (e) (2) creates an exception for violations involving four ounces or less of marijuana, imposing the additional requirement that property be “used to facilitate a transaction in or a purchase of or sale of” marijuana in order to be forfeited.

While agreeing that we have appropriately applied our precedent in holding that OCGA § 16-13-49 (d) (6) does not require that there be a nexus between the drug activity and the automobile at issue, other than it be found in close proximity to the drugs, the dissent both questions our prior interpretation of this statute and the constitutionality of this statutory scheme. Arguably, the forfeiture laws have sometimes led to unfair results and failed to protect the rights of innocent individuals. However, it is equally true that such criticism is more appropriately addressed to the General Assembly, which can change the law, or to the Supreme Court, which has jurisdiction on appeal of constitutional challenges. Given that West did not raise before the trial court or on appeal a constitutional challenge to the breadth of the statute or to its application to him under these facts, the dissent’s discussion of the same is not apt.

Additionally, the dissent argues that the case should nevertheless be remanded to the trial court because, it contends, the trial court did not reach the issue of whether the car was found in close proximity to the drugs. Everyone — the trial court, the State, and West — agreed that the vehicle had to be in close proximity to the drugs to be subject to forfeiture. The statute specifically says as much. Yet, under the dissent’s rationale, the trial court ignored this provision and, instead, judicially imposed into the statute its own requirement that the car had to be used in the drug activities to be at risk for forfeiture. If the trial court wanted to deny the forfeiture, why would it have added a new requirement to the statute unless it had already concluded that the car was found in close proximity to the drugs? The short answer is that it would not have. The car was found “parked in the front yard of the residence directly in front of the door” where the drugs were found. The only logical conclusion is that the trial court moved on to consider whether the car was actually used in the drug activities after finding that it was in close proximity thereto.

Having found that the plain and unambiguous language of OCGA § 16-13-49 (d) (6) requires nothing more than a geographical connection between the drugs and the property sought to be forfeited, we hereby reverse the decision of the trial court to deny the forfeiture of the subject vehicle.

Judgment reversed.

Andrews, P. J., Barnes, P. J., and Branch, J., concur. Doyle, P. J., McFadden and Boggs, JJ., dissent.

MCFADDEN, Judge,

dissenting.

I respectfully dissent. Although I agree with the majority that the trial court’s interpretation of OCGA § 16-13-49 (d) (6) is contrary to our case law, I see no implicit finding in the trial court’s order that the vehicle was, as a factual matter, located in “close proximity” to the marijuana seized from the apartment. I would therefore vacate the trial court’s order and remand for further proceedings.

In addition I question the soundness of our case law construing the residual clause of OCGA § 16-13-49 (d) (6). I am strongly inclined to hold that we have erred in applying that clause to things not of the same kind or class as moneys, negotiable instruments, and securities. But because the parties have not directly addressed this issue, I would not reach it today.

1. Trial court’s findings.

The state instituted forfeiture proceedings against West’s automobile based on OCGA § 16-13-49 (d) (6). Each of the six subsections of OCGA § 16-13-49 (d), which is set out in full below, 12 3456describes a category of property subject to forfeiture. Subsection (d) (6) provides:

The following are declared to be contraband and no person shall have a property right in them: [a]ll moneys, negotiable instruments, securities, or other things of value which are found in close proximity to any controlled substance or marijuana or other property which is subject to forfeiture under this subsection.

As the majority holds, the plain language of the statute provides that proximity alone is sufficient to authorize forfeiture of property subject to subsection (d) (6), and the trial court erred in holding otherwise. “The state need only prove that the property as to which forfeiture is sought falls within one of [the] six categories [of OCGA § 16-13-49 (d)] in order to prevail.” Pitts v. State of Ga., 207 Ga. App. 606, 608 (2) (428 SE2d 650) (1993).

But there is no basis for the majority’s holding that the trial court made an implicit factual finding that West’s car was in close proximity to the marijuana seized from the apartment. The state’s sole argument as to the car has two elements: as a matter of fact, it was in close proximity to the drugs; as a matter of law, close proximity authorizes forfeiture. Rejecting either element would have authorized and required the trial court to deny the forfeiture. The trial court’s order addresses the legal element at some length but says nothing one way or the other about the factual element.

The majority’s holding rests on unfounded speculation. “If the trial court wanted to deny the foreclosure,” the majority asks, “why would it have added a new requirement to the statute unless it had already concluded that the car was found in close proximity to the drugs?” The premise of that question is that the trial court started from the outcome he wanted and worked backward. I reject that premise.

Determining whether the car was in close proximity to the drugs for purposes of OCGA § 16-13-49 (d)(6) is a matter for the trial court’s fact-finding and discretionary authority. The majority usurps that authority.

I would vacate the trial court’s decision and remand for further proceedings.

2. Construction of the residual clause of OCGA § 16-13-49 (d) (6).

Moreover, notwithstanding the case law which the state accurately cites, I question whether OCGA § 16-13-49 (d) (6) authorizes forfeiture of anything other than money and money substitutes. Although those cases do apply subsection (d) (6) to motor vehicles, their construction of that subsection is not necessary to their results. Each case finds alternative justification for seizure of the vehicle at issue in another subsection of OCGA § 16-13-49 (d). Hodge v. State of Ga., 257 Ga. App. 203, 204-205 (2) (570 SE2d 666) (2002) (vehicles were subject to forfeiture under (d) (2) and (d) (6)); Manley v. State of Ga., 217 Ga. App. 556, 557-559 (3) (458 SE2d 179) (1995) (truck was subject to forfeiture under (d) (2) and (d) (6)).

And those cases do not address the canon of ejusdem generis. Under that canon, when a statute lists

by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis (i.e., of the same kind or class) with the things specifically named, unless, of course, there is something to show that a wider sense was intended.

Center for a Sustainable Coast v. Coastal Marshlands Protection Comm., 284 Ga. 736, 737-738 (1) (670 SE2d 429) (2008) (citations and punctuation omitted). The statute here includes “a list of specific items separated by commas [, ‘moneys, negotiable instruments, securities,’] followed by a general or collective term, [‘other things of value’].” Warren v. State, 294 Ga. 589, 591, n. 2 (755 SE2d 171) (2014). It follows that the General Assembly intended the phrase “other things of value” to mean things of the same kind or class as “moneys, negotiable instruments, [and] securities.” There is nothing to show that a wider sense was intended. See Center for a Sustainable Coast, 284 Ga. at 737-738 (1). On the contrary, a narrow reading of subsection (d) (6) is supported by the five preceding subsections, each of which deals with a distinct category of property.

Those cases also fail to address the rule that, to surmount a constitutional challenge to a forfeiture, there must be some nexus between the crime and the property to be forfeited. Howell v. State of Ga., 283 Ga. 24, 26 (1) (656 SE2d 511) (2008). As to “moneys, negotiable instruments, [and] securities” the General Assembly supplied that nexus by providing that

[t]he fact that money or a negotiable instrument was found in proximity to contraband or to an instrumentality of conduct giving rise to forfeiture authorizes the trier of the fact to infer that the money or negotiable instrument was the proceeds of conduct giving rise to forfeiture or was used or intended to be used to facilitate such conduct.

OCGA § 16-13-49 (s) (2). (Negotiable instruments include “bills of exchange, promissory notes, bank checks, certificates of deposit, and other negotiable securities.” Black’s Law Dictionary (9th ed. 2009).) To expand subsection (d) (6) to allow the forfeiture of things other than the money and money substitutes specified in subsection (s) (2) creates constitutional problems due to the absence of a nexus. Such a construction would authorize forfeiture of everything in a home where drugs are found: every stick of furniture, every stitch of clothing. The General Assembly is unlikely to have intended such an outcome. See Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011) (“[A]ll statutes are presumed to be enacted with full knowledge of existing law[,] and their meaning and effect [are] to be determined with reference to the constitution as well as other statutes and decisions of the courts.”) (citation omitted).

But as the majority observes, “West did not raise in the trial court or on appeal a constitutional challenge to the breadth of the statute or to its application to him under these facts.” Nor did he raise in the trial court or on appeal the question of the proper scope of the residual clause of OCGA § 16-13-49 (d) (6). So, although we have the authority to affirm a judgment if it is right for any reason, I would leave the scope of subsection (d) (6) for another day and remand for proceedings consistent with this opinion. City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369) (2002) (Sears, P. J., concurring specially) (courts may decline to review issue not ruled upon by the trial court if issue is not adequately briefed or argued by the parties on appeal).

Decided March 30, 2015.

J. David Miller, District Attorney, J. Bennett Threlkeld, Assistant District Attorney, for appellant.

Gregory Christy Maniklal & Dennis, Richard A. Wilkes, for appellee.

BOGGS, Judge,

dissenting.

I agree with the dissent that the trial court did not make an implicit finding on close proximity and that this case should be remanded for the court to apply the proper standard pursuant to OCGA § 16-13-49 (d) (6). But I cannot join the dissent because of what is said in Division 2, and I therefore write separately.

As noted to some degree by both the majority and Judge McFadden’s dissent, I agree that our civil forfeiture laws can be applied to work an inequity upon those innocent of wrongdoing. Of course, as the majority points out, such concerns are less prevalent in this case given that the defendant pled guilty and no presumed innocent third party has objected to the forfeiture. However, I take this opportunity to illuminate the absurdity with which forfeiture may be applied in other contexts. As enacted, OCGA § 16-13-49 (d) (6) authorizes the forfeiture of all things of value “which are found in close proximity to” the contraband. Taken to its most extreme point, this statutory language would permit the forfeiture of the Big Green Egg on the deck, the coffee maker in the kitchen, and the light fixtures in the home, despite the lack of any nexus between those items and any crime. However, issues regarding nexus and constitutionality have not been enumerated as error by the appellant, not briefed by the parties, and not been raised and ruled upon in the trial court. Consequently, it is not for this court to opine on such matters. As a result, the statutory/constitutional discussion in Division 2 of Judge McFadden’s dissent, whatever its objective merit, is not necessary for the resolution of this case. These issues are more appropriately addressed by the General Assembly or our Supreme Court in a case which squarely presents them for appellate review.

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

       We note, however, that West is hardly an innocent victim. Lest we forget, he pled guilty to the charge of possession of marijuana with intent to distribute, from which this forfeiture action arose.

       The following are declared to he contraband and no person shall have a property right in them:
      (1) All controlled substances, raw materials, or controlled substance analogs that have been manufactured, distributed, dispensed, possessed, or acquired in violation of this article;
      (2) All property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or any proceeds derived or realized therefrom;
      (3) All property located in this state which was, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or of the laws of the United States or any of the several states relating to controlled substances which is punishable by imprisonment for more than one year or any proceeds derived or realized therefrom;
      (4) All weapons possessed, used, or available for use in any manner to facilitate a violation of this article or any of the laws of the United States or any of the several states relating to controlled substances which is punishable by imprisonment for more than one year;
      (5) Any interest, security, claim, or property or contractual right of any kind affording a source of influence over any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of in violation of this article or any of the laws of the United States or any of the several states relating to controlled substances which is punishable by imprisonment for more than one year or any proceeds derived or realized therefrom; and
      (6) All moneys, negotiable instruments, securities, or other things of value which are found in close proximity to any controlled substance or marijuana or other property which is subject to forfeiture under this subsection.
      OCGA § 16-13-49 (d).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A1677.
    THE FOUR COUNTY BANK v. TIDEWATER EQUIPMENT COMPANY.
    (771 SE2d 437)
   Branch, Judge.

In June 2003 and November 2005 respectively, appellant The Four County Bank (“the Bank”) provided financing for the purchase of two different pieces of foresting equipment by Shepherd Brothers Timber Company, LLC (“Shepherd”). The Bank perfected its security interests in both pieces of equipment by filing financing statements in Wilkinson County Superior Court. While the Bank’s original financing statements were still effective, Shepherd sold both pieces of equipment to appellee Tidewater Equipment Company (“Tidewater”), which later resold them. In October 2008 and March 2011, more than five years after the filing of each of the original financing statements, the Bank attempted to file continuation statements as to the equipment. After Shepherd declared bankruptcy, the Bank sued Tidewater to recover the equipment or its value. On appeal from the trial court’s grant of summary judgment to Tidewater, the Bank argues that Tidewater is liable for the value of the equipment because Tidewater should have known of the Bank’s perfected security interest at the time Tidewater resold the equipment. We disagree and affirm.

Although we view the record in favor of the Bank as the nonmovant, the relevant facts are not in dispute. The Bank filed a purchase money financing statement as to Shepherd’s 2003 Tigercat Cutter on June 5, 2003, and a purchase money financing statement as to Shepherd’s 2005 Tigercat Skidder, a piece of construction equipment, on November 18, 2005. On August 30, 2007, Tidewater accepted the Cutter from Shepherd as a trade-in worth $52,500 toward Shepherd’s purchase of a new piece of equipment; Tidewater resold the used Cutter to a third party the same day. On June 26, 2008, Tidewater accepted the Skidder from Shepherd as a trade-in worth at least $47,000 toward Shepherd’s purchase of a second new piece of equipment; Tidewater sold the used Skidder to a third party on May 9, 2009. Tidewater did not perform any lien search before accepting the Tigercats, neither of which was required to have a motor vehicle title. The Bank did not receive any proceeds from either sale.

On October 31, 2008, the Bank filed a second financing statement as to the Cutter; on March 10, 2011, the Bank filed a second financing statement as to the Skidder. Shepherd filed for bankruptcy in the Middle District of Georgia on March 16, 2011. In September 2012, the Bank sued Tidewater for trover and conversion. Both sides moved for summary judgment, which the trial court granted to Tidewater because the Bank had failed to file timely continuation statements and because Tidewater lacked actual knowledge of the Bank’s security interests. This appeal followed.

1. The Bank first asserts that the trial court erred when it granted Tidewater summary judgment because the Bank’s security interests were perfected at the time Tidewater took possession of the equipment. We disagree.

OCGA § 11-9-515, Georgia’s version of Article 9, Section 515 of the Uniform Commercial Code (UCC), provides in relevant part as follows:

(a) Five-year effectiveness. Except as otherwise provided in subsection (d) of this Code section [concerning the effect of filing continuation statements], a filed financing statement is effective for a period of five years after the date of filing or until the twentieth day after any earlier maturity date required to be specified on the filed financing statement.
(b) Lapse and continuation of financing statement. The effectiveness of a filed financing statement lapses on the expiration of the period of its effectiveness unless before the lapse a continuation statement is filed pursuant to subsection (c) of this Code section. Upon lapse, a financing statement ceases to be effective and any security interest or agricultural lien that was perfected by the financing statement becomes unperfected, unless the security interest is perfected otherwise. If the security interest or agricultural lien becomes unperfected upon lapse, it is deemed never to have been perfected as against a purchaser of the collateral for value.
(c) When continuation statement may be filed. A continuation statement may be filed only within six months before the expiration of the five-year period specified in subsection (a) of this Code section or the occurrence of any earlier maturity date required to be specified on a filed financing statement.

(Emphasis supplied.)

Here, although the Bank had perfected its security interests in both pieces of equipment by filing financing statements which remained effective at the time Tidewater took possession of the equipment, the Bank failed to file continuation statements in the “six months before the expiration of the five-year period” running from the date of each original financing statement. OCGA § 11-9-515 (c). OCGA § 11-9-515 (b) provides, moreover, that once each of the Bank’s security interests had lapsed for failure to file a timely continuation statement, those interests “bee [ame] unperfected upon lapse,” and were “deemed never to have been perfected as against a purchaser of the collateral for value.” (Emphasis supplied.) It follows that even though the Bank’s security interests in the equipment were perfected in the first instance by the filing of the original financing statements, and though they remained so throughout Tidewater’s possession and disposition of the equipment, those same security interests were deemed never to have been perfected as against a purchaser for value when the Bank failed to file timely continuation statements. See Kubota Tractor Corp. v. C & S Nat. Bank, 198 Ga. App. 830, 831 (2) (403 SE2d 218) (1991) (a security interest that lapsed due to the secured party’s failure to file a continuation statement was deemed unperfected “ ‘as against a person who became a purchaser . . . before lapse,’ ” quoting former OCGA § 11-9-403 (2)); see also Thermal Supply v. Big Sky Beef, 346 Mont. 341, 347 (195 P3d 1227) (2008) (under UCC Article 9, Section 515, to hold that “any perfected security interest” a secured creditor “may have held at the time it initiated” its suit against the debtor “lapsed due to [the creditor’s] failure to timely file a continuation statement”); LB Folding Co. v. Gergel-Kellem Corp., 94 Ohio App. 3d 511, 516 (641 NE2d 222) (1994) (under UCC former Article 9, Section 403 (2), a lapse of creditor’s security interest related back to time of purchase by purchaser for value, whose interest was superior to that of the previously secured creditor).

2. The only question remaining is thus whether Tidewater was a “purchaser for value” such that it took possession of the equipment free ofthe Bank’s security interests once they lapsed. OCGA § 11-9-515 (b). The Bank asserts that because Tidewater could have discovered the Bank’s then-perfected security interests on file in the local superior court at the time it purchased each of the Tigercats, Tidewater (a) was not a “purchaser for value” and (b) should be held liable for converting the equipment to its own use. We disagree.

(a) OCGA § 11-9-317 (b)provides that with exceptions not argued as applying here,

a buyer, other than a secured party, of tangible chattel paper, tangible documents, goods, instruments, or a certificated security takes free of a security interest or agricultural lien if the buyer gives value and receives delivery of the collateral without knowledge ofthe security interest or agricultural lien and before it is perfected.

(Emphasis supplied.) See LB Folding, 94 Ohio App. 3d at 516 (interest of purchaser for value without actual knowledge was superior to secured creditor who failed to file a continuation statement). The UCC’s general provisions also specify that “[a] person ‘knows’ or has ‘knowledge’ of a fact when the person has actual knowledge of it.” OCGA § 11-1-201 (25); see also Bank of Dawson v. Worth Gin Co., 295 Ga. App. 256, 258 (671 SE2d 279) (2008) (under Georgia’s version of the UCC, a person has “knowledge” of a fact “when he has actual knowledge of it”) (punctuation and footnote omitted).

The Bank’s arguments for a judicially crafted exception to the UCC’s actual knowledge requirement have no basis in Georgia law. The Bank concedes that neither piece of equipment ever had a motor vehicle title that would have provided Tidewater with actual notice of anyone holding a security interest on the title’s face, and we have been cited no evidence that Tidewater ever had any other “actual knowledge” of the existence of the Bank’s security interest, OCGA § 11-1-201 (25). Rather, with no such evidence, Tidewater accepted both pieces of equipment in exchange for credit toward Shepherd’s new purchases, with the result that Tidewater “takes free” of that security interest as a “buyer” who gave value, in the form of credit, for both Tigercats. OCGA § 11-9-317 (b); see also LB Folding, 94 Ohio App. 3d at 519 (when creditor’s security interest became “unperfected” as to a prelapse purchaser for value, the purchaser’s “right to the collateral” was rendered “superior to” the creditor’s).

(b) Further, because Tidewater took the equipment as a purchaser for value “free and clear of the [Bank’s] previously secured interest,” Tidewater cannot be said to have wrongfully converted the equipment to its own use. See Hanley Implement Co. v. Riesterer Equip., 150 Wis. 2d 161, 170 (1989) (under former Article 9, Section 403 (2), a creditor who failed to file a continuation statement was deemed never to have perfected its security interest as against a prelapse purchaser, with the result that the purchaser could not be held to have converted the property). The Bank’s citations to cases involving converters rather than purchasers for value are thus inapposite.

3. The Bank’s last argument against what it perceives as the “harsh” result we have reached is that in light of the UCC’s requirement that all parties to secured transactions like the one at issue here are bound to act in good faith, Tidewater should have performed a search for a financing statement before selling either of the Tigercats. See OCGA § 11-1-203 (“Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement.”). We disagree, for two reasons. First, as we have already explained, in the absence of any evidence that either piece of equipment at issue was or should have been registered as a motor vehicle, and without any actual knowledge of any existing security interests in the Tigercats, Tidewater had no duty to investigate whether such interests existed. Second, and as other courts have noted as they held security interests to have been deemed unperfected for failure to file a timely continuation statement:

“Although strict adherence to the Code requirements may at times lead to harsh results, efforts by courts to fashion equitable solutions for mitigation of hardships experienced by creditors in the literal application of statutory filing requirements may have the undesirable effect of reducing the degree of reliance the market place should be able to place on the Code provisions. The inevitable harm doubtless would be more serious to commerce than the occasional harshness from strict obedience.”

Thermal Supply, 346 Mont. at 347, quoting Sec. Nat. Bank & Trust Co. of Norman v. Dentsply Professional Plan, 1980 Okla. 136 (617 P2d 1340, 1343 (I)) (1980) (applying former Article 9, Section 403 (2)).

For all these reasons, the trial court did not err when it granted Tidewater summary judgment as to the Bank’s claims. We thus need not reach the Bank’s contention that it should have been granted summary judgment.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Decided March 30, 2015.

Daniel L. Wilder, for appellant.

Anderson Walker & Reichert, Eugene S. Hatcher, Allen E. Orr, for appellee.

       UCC Article 9, former Section 403 (2), codified at former OCGA § 11-9-403 (2), provided that with exceptions not applicable here,
      a filed financing statement is effective for a period of five years from the date of filing. . . . [T]he effectiveness of a filed financing statement lapses on the . . . expiration of the five-year period... unless a continuation statement is filed prior to the lapse.... Upon lapse the security interest becomes unperfected, unless it is perfected without filing. If the security interest becomes unperfected upon lapse, it is deemed to have been unperfected as against a person who became a purchaser or lien creditor before lapse.
      (Emphasis supplied.)
      Former OCGA § 11-9-403 was superseded by Article 9’s new Section 515, codified at OCGA § 11-9-515, on July 1, 2001. See Ga. L. 2001, p. 362, § 1. As the 2002 editors’comment to Section 515 notes, “[t]he deemed retroactive unperfection applies only with respect to purchasers for value; unlike former Section 9-403 (2), it does not apply with respect to lien creditors.” Comment, Uniform Commercial Code § 9-515, n. 3. The Bank has not asserted that Tidewater could be held a lien creditor such that the “deemed retroactive unperfection” of the Bank’s previous security interest would not occur here. The new version of the statute also imposes “a new burden on the secured party: to be sure that a financing statement does not lapse during the debtor’s bankruptcy.” Id., n. 4. It is this burden that the Bank has failed to carry.


author: Boggs, Judge.

text:
    A14A1682.
    KELLEY v. THE STATE.
    (771 SE2d 441)
   Boggs, Judge.

Terry Kelley appeals following the trial court’s grant of the State’s “Motion to Set Aside an Illegal Judgment.” The court granted the motion on the basis that it was without authority to sentence Kelley to a lesser sentence than that recommended by the State as part of a negotiated plea to a reduced charge. Because the trial court erred in granting the State’s motion, we reverse and remand this case with direction for the trial court to re-enter the original judgment of conviction and sentence.

For the following reasons, we conclude that while a defendant can withdraw a negotiated plea if the trial court decides to impose a longer sentence than that recommended by the State, see Uniform Superior Court Rule 33.10, there is no comparable authority allowing for the State to withdraw its offer if the court indicates it intends to sentence the defendant to less time than recommended, and it is not for this court to judicially create such a right out of whole cloth.

The record reveals that Kelley was indicted along with three others and charged with felony murder and other crimes for his alleged participation in an armed robbery attempt that resulted in the death of a fifth participant. In an October 5, 2012 hearing, the State announced: “this is a plea regarding the defendant.” After the trial court questioned Kelley regarding the voluntariness of his plea, the State informed the trial court that “as a condition of the plea ... Kelley must testify truthfully in the trial of [his co-defendants].” Upon providing a proffer for the factual basis of the plea, the prosecutor stated, ‘Your honor, we ask that you accept this negotiated plea. I know that [Kelley] does not have any felony convictions and so I’m sure [defense counsel] will request first offender but the State would object to that but that’s up to the court.” The State also agreed to nol pros the remaining charges against Kelley and recommend to the court a 20-year sentence. And, after some discussion concerning the reduced charge the State offered to Kelley as part of the plea agreement, the parties agreed that Kelley was pleading guilty to a reduced charge of voluntary manslaughter.

Following the court’s colloquy with Kelley regarding his plea, Kelley presented his father, his grandmother, and the director of the Judicial Service House Arrest Services as character witnesses. The court then ruled:

I’m going to accept this plea as being freely, voluntarily, and knowingly entered with a factual basis therefor [ ].
I’m going to sentence Mr. Kelley ... to the reduced charge to voluntary manslaughter and the factors that the court — there’s a substantial factual basis for mitigation in this particular case.
First being that the defendant has admitted his involvement in this matter and has pled to it without reservation. He appears to be genuinely remorseful about his conduct...
So the court will sentence Mr. Kelley as follows: Sentence him to ten years to serve five years, the balance probated and stay away from the victims and testify truthfully in any matter involving this case.

The State immediately requested permission to approach the bench, and, after an off-the-record conference between the court and both counsel, the following colloquy occurred:

[THE STATE]: Your Honor, I understand the court has now imposed a sentence less than what was agreed to on the negotiated plea that the State was asking for.
THE COURT: This is off the trial calendar. This is a non-negotiated plea regardless of what — whether or not the defendant and the State negotiated something, this is — the court has the last say regardless. So go ahead.
[THE STATE]: Yes, Your Honor. And the State is requesting that this plea not be taken and be withdrawn and that the State proceed with trial with Mr. Kelley next week.
THE COURT: Okay. The court declines to do that. The sentence stands. And I’m making this pursuant to the provisions of the First Offender Act.

During a short break in the hearing, the State filed a “Motion to Set Aside an Illegal Judgment.” The court nevertheless entered a judgment of conviction and sentenced Kelley to a ten-year term.

Alittle over a month later, on November 13, 2012, the trial court granted the State’s motion, agreeing with the State that when it rejected the negotiated plea, it had no authority to sentence Kelley to a lesser offense not charged in the indictment, and therefore the judgment was illegal and must be set aside. See OCGA § 17-7-93 (a) (upon arraignment, the person accused of committing crime shall answer whether he is guilty or not guilty of offense charged which answer or plea shall be made orally). Citing Bostic v. State, 184 Ga. App. 509 (361 SE2d 872) (1987), the court held that “[a]bsent a negotiated plea for a reduced charge not included in the indictment consented to by the State, a defendant can plea only to the charges as stated in the indictment.” See id. at 511 (4) (no authority allowing for a nonnegotiated plea to an offense other than that charged in indictment). On May 6, 2013, the trial court resentenced Kelley to 20 years as originally recommended by the State.

Kelley now appeals, asserting that the trial court erred in granting the State’s motion to set aside the original judgment of conviction and sentence. We agree.

Here, the trial court was under the impression that its rejection of the State’s recommended sentence converted the negotiated plea into a nonnegotiated plea. During the hearing on the plea, the trial court asserted that it was sentencing on a nonnegotiated plea, but then denied the State’s request to withdraw its offer. While the court’s explanation was confusing, the record reflects that the court accepted most terms of the plea agreement. It required Kelley to testify against his co-defendants the following week, and nol prossed the remaining charges, as the State and Kelley agreed.

“Atrial judge has wide discretion to accept or reject a negotiated plea.” (Citation and punctuation omitted.) Barber v. State, 316 Ga. App. 701, 702, n. 4 (730 SE2d 176) (2012). If the trial court chooses to reject a plea agreement,

the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement; (2) the trial court intends to reject the plea agreement presently before it; (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement; and (4) that the defendant may then withdraw his or her guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced.

Uniform Superior Court Rule 33.10. This rule has been interpreted to include situations in which the trial court expressed an intention to reject the sentence recommended by the State and impose a harsher sentence. See, e.g., Mulkey v. State, 265 Ga. App. 631, 631-632 (595 SE2d 330) (2004) (trial court imposed harsher sentence than that recommended by State); Lawrence v. State, 234 Ga. App. 603, 604-605 (1) (507 SE2d 490) (1998) (same). It appears here, as in Mulkey, supra, the trial court accepted the plea agreement in large part, rejecting only the sentence recommended by the State. Compare Manley v. State, 287 Ga. App. 358, 359 (1) (651 SE2d 453) (2007) (nothing in record showing a negotiated plea; record indicated only open-ended plea with a sentence recommendation from State). Indeed, the crime with which to charge a defendant is within the exclusive purview of the State, while the sentence to be imposed with regard to a charge is within the exclusive province of the trial court unless that discretion has been removed by statute.

Contrary to the State’s arguments here, we have stated that the trial court’s rejection of a recommended sentence pursuant to a negotiated plea agreement does not give the State the right of withdrawal from the plea agreement. State v. Harper, 279 Ga. App. 620, 620-621 (2) (631 SE2d 820) (2006), overruled in part on other grounds, State v. King, 325 Ga. App. 445 (750 SE2d 756) (2013); compare Lewis v. State, 330 Ga. App. 412, 413 (1) (767 SE2d 771) (2014) (court erred in imposing harsher sentence after accepting State’s sentence recommendation and after defendant, in reliance upon court’s acceptance, waived First Amendment rights and testified on behalf of State). As we noted in Harper,

[t]he [Sjtate argues that it should have the same right of withdrawal as the defendant, but concedes that Georgia law gives the [Sjtate no such right. The [Sjtate has offered no argument which persuades this Court that the trial court erred in not affording to the [Sjtate the same right expressly afforded a defendant pursuant to [State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980)] and its progeny.

Id. at 621 (2). Additionally, as in this case, Harper entered a guilty plea to a lesser offense not charged in the indictment. Id. at 620. Because the State was bound by the portion of the plea agreement accepted by the trial court with no right of withdrawal, we cannot conclude that the negotiated plea was converted into a nonnegotiated plea, and the State has pointed to no authority requiring this court to arrive at a different conclusion. The court’s acceptance of the plea agreement in part and the judgment of conviction and sentence imposed thereon were therefore not illegal. See OCGA § 17-10-1 (a) (1) (upon a verdict or plea of guilty, judge fixing sentence shall prescribe a determinate sentence within the minimum and maximum sentences allowed by law). OCGA § 16-5-2 (b) (punishment for voluntary manslaughter not less than one nor more than twenty years). We are bound by our caselaw and constrained by the absence of statutory authority or Uniform Superior Court Rule giving the State a right to withdraw an offer in this or in any other circumstance. The remedy the State seeks must be addressed, if it is to be addressed at all, by the legislature and not the judiciary.

Decided March 30, 2015

Franklin & Hubbard, Curtis L. Hubbard, Jr., Barbee Law Firm, Todd E. Barbee, for appellant.

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

Because the trial court mistakenly believed that it imposed an illegal judgment, we reverse the trial court’s grant of the State’s motion to vacate and remand this case with direction for the trial court to re-enter the original judgment of conviction and sentence.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Branch, J., concur.

       Kelley does not seek to withdraw his guilty plea.

       To usurp the authority of the trial court with regard to sentencing in this system of checks and balances would obviate the need for the court to consider evidence and circumstances that would mitigate punishment.


text:
    A14A1688.
    R. C. ACRES, INC. v. CAMBRIDGE FAIRE PROPERTIES, LLC et al. MOMMIES PROPERTIES, LLC v. R. C. ACRES, INC. BOSE v. R. C. ACRES, INC.
    A14A1689.
    A14A2102.
    (771 SE2d 444)
   Boggs, Judge.

These appeals arise from litigation involving the location and extent of an easement of access to real property, and alleged damages as a result of interference with the easement. In 2009, R. C. Acres, Inc. (“R. C.”) filed a complaint seeking to quiet title to an alleged easement of access to its land and for damages against Cambridge Faire Properties, LLC and Mommies Properties, LLC as owners of adjoining parcels. After numerous amendments and motions to join parties and to intervene, the case proceeded to trial in 2013 as to appellees Mommies Properties, LLC, Vinay Bose, and Patricia Whitney d/b/a Flowered Rock Farm (“the M. P. defendants”) and Cambridge Faire LLC, Dewey White, and White Repair & Contracting Co. (“the Cambridge defendants”), as well as other entities not parties to this appeal.

In a bifurcated trial, the jury returned two detailed special verdicts. The first verdict marked the easement’s original and ultimate locations, and the second awarded damages to R. C. against the Cambridge defendants for interference with its easement, but found in favor of the M. P. defendants. Judgment was entered on the jury’s verdicts, and the parties filed various post-trial motions. But before any rulings were made by the trial court, R. C. filed its notice of appeal. Mommies Properties and Bose also filed conditional cross-appeals of the trial court’s order denying their motions for sanctions for the alleged spoliation of evidence.

Because the trial court abused its discretion in limiting the jury’s consideration of evidence showing earlier locations of the easement at issue, and further erred in ruling that the new Georgia Evidence Code limited cross-examination to the scope of direct, we reverse in part in Case No. A14A1688. We also vacate the judgment in part and remand for the trial court to conform that part of the judgment to the jury’s verdict. But because the trial court did not abuse its discretion in denying the motions for sanctions, we affirm in Case Nos. A14A1689 and A14A2102.

Case No. A14A1688

1. R. C. contends that in preparing the special verdict form for submission to the jury, the trial court improperly limited the jury’s consideration of the easement to its original and its ultimate locations only. As a result, R. C. contends that the jury was unable to consider the award of damages with respect to intermediate locations of the easement with which it alleged that the defendantsinterfered.

“The form of a verdict and the submission of a special verdict are within the discretion of the trial court, and, absent an abuse of that discretion, the court’s choice will not be overturned.” (Citations, punctuation and footnote omitted.) Certain Underwriters at Lloyd’s of London v. Rucker Constr., 285 Ga. App. 844, 851-852 (4) (648 SE2d 170) (2007); see also OCGA § 9-11-49. But the special verdict form must be “adequately crafted to elicit a decision on the issues before the court. [Cit.]” Glisson v. Glisson, 265 Ga. 239, 240 (4) (454 SE2d 508) (1995). Because some evidence was presented at trial that the easement was relocated by agreement of the parties to several different routes during the period in question, the trial court abused its discretion in refusing to submit this disputed question of fact to the jury, and we therefore must reverse.

A brief summary of the relevant evidence is necessary for consideration of this issue. At trial, R. C. presented testimony that it owns a parcel of property on the Chattahoochee River in Forsyth County. The parcel is landlocked, and was originally part of a larger tract of land with access to a nearby highway, owned by the Rives Corporation (“Rives”) at the time R. C. acquired its parcel from Rives, but later divided into two tracts and conveyed to others. One tract was transferred to the White defendants; the other was developed as an equestrian property by an intermediate owner, Silver Creek Development, and eventually transferred to M. R defendants Mommies Properties and Bose.

At the time of the sale to R. C. in 1985, Rives granted “a sixty foot wide easement which runs parallel to the south boundary line” of the property. The deed did not describe the easement location in more detail; instead, it explicitly provided: “a relocated easement of ingress and egress will be obtained between the parties hereto, their respective heirs and assigns subsequent to the date of this conveyance.” A Rives officer testified that this agreement was made so that the parties involved could later agree upon a mutually convenient location.

A maj or issue at trial was whether the easement was relocated by agreement between the parties or their predecessors in title. While the M. P. defendants contend the evidence showed that the easement was never relocated with respect to their property, citing portions of the record, R. C. points to evidence in the record, including surveys, deeds, and testimony, showing that the easement was relocated by agreement to an existing roadway on the property, known as “Woods Road” or “Old Woods Road.” Testimony was presented that this route was used from R. C.’s acquisition of the property in 1985 until 2005, by R. C. and others, including a lessee of R. C. which operated a model airplane club on the land, and the Army Corps of Engineers, which used the roadway to access a dam release warning horn on the river. R. C. presented surveys referenced in the various deeds which identified this roadway as its easement. Some evidence was also presented to show that after the equestrian complex was developed in 1998 by Silver Creek, a predecessor in title to the M. P. defendants, a barn blocked a portion of this existing roadway, and a gravel drive was installed around it.

The location of the easement became an issue after Mommies Properties purchased the stable property in 2005 and blocked access to R. C.’s property, informing R. C. by e-mail that it could no longer use the roadway. R. C. presented evidence that after matters reached this impasse, it began negotiations with both the M. P. defendants and the Cambridge defendants to move the easement to a location agreeable to all the parties. Testimony was presented that a location was agreed upon, and that R. C. constructed a roadway at its expense, referred to by the parties as the “New Road.” This roadway, however, was also blocked by defendants, and this action followed.

At trial, while preparing the special verdict forms, the parties discussed with the trial court whether they should provide for the jury to find multiple locations of the easement over time. The trial court observed:

This is just a matter whether this easement’s been relocated by agreement, where was it originally and has it been relocated by agreement. Whether somebody went around the barn for, you know, two or three years is not... it has nothing to do with the question of whether this easement has been relocated by the parties.

Counsel for R. C. objected, pointing out that the evidence as presented could support a finding that “between 1995 and 2008, R. C. Acres by agreement with Silver Creek located that easement on Woods Road, either through the barn or later by agreement to go around the barn. And that then there was another relocation to the new road ... in 2008.” After some discussion and further objection by R. C., the trial court ruled, “[A]s a matter of law, I’m finding that... this easement didn’t move around like a dot moving around, no. If it was relocated once, it was relocated once. And that’s it. And I’m finding that as a matter of law.”

The trial court, in formulating the special verdict form, in essence removed from the jury’s consideration the issue of any intermediate locations of the easement. This was error as a matter of law. Georgia follows the majority rule that “an easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate, absent reservations contained in the instrument creating the easement.” (Citations and footnote omitted.) Herren v. Pettengill, 273 Ga. 122, 123 (2) (538 SE2d 735) (2000). It follows that when that consent is given, the easement may be relocated. Here, the original deed explicitly provided that the easement would be relocated by the parties. And nothing in Georgia law prohibits the relocation of an easement by agreement more than once. In Calhoun GA NG, LLC v. Century Bank, 320 Ga. App. 472, 476 (1) (740 SE2d 210) (2013), we held that the parties’ agreement contemplated relocation of an easement “from time to time,” dependent upon the future construction or alteration of buildings and walkways on the servient property.

It follows that R. C. and the prior owners of the servient tract could have agreed to relocate the easement to the “Woods Road,” and that R. C. and subsequent owners of the servient tract could later agree to relocate the easement once more to the “New Road.” Whether and when they did so was a question properly submitted to the jury, and the trial court erred as a matter of law in removing this issue from the jury’s consideration.

We note that the trial court was correct in reasoning that the first and last locations of the easement were the only ones relevant to the first half of the bifurcated trial. Its ruling therefore was not error with respect to the first verdict, in which the jury established the final location of the easement as of the time of trial. But the evidence also demonstrated that this was not the only location relevant to the separate question of whether the defendants had interfered with R. C.’s easement, which was the subject of the second half of the bifurcated trial. Evidence that the easement was located along the ‘Woods Road” for a period of time was directly relevant to the jury’s consideration of whether the defendants interfered with R. C.’s easement of access to its property during that time, and removal of that question from consideration was harmful error. This is confirmed by the jury’s question to the trial court during deliberations: “Will our answer to number two [on the special verdict form] be the final easement?” The court’s answer was, “Yes, it will be.” The jury returned the special verdict form with two lines marked “Deeded Easement” and “New-Relocated Road” as of “Fall 2008.” It appears from its question and its completion of the special verdict form that the jury understood from the evidence presented that the easement was relocated more than once, but that its decision was limited by the special verdict form to only the initial and final locations of the easement, including on the question of damages.

“Although the jury are the best doctors of doubt that we know, they can be lulled, as here, into rendering an inaccurate diagnostic award when presented with misleading symptoms. It then becomes the duty of an appellate court to intervene with a correct judicial prescription.” (Citation and punctuation omitted.) CSX Transp. v. Levant, 200 Ga. App. 856, 865 (1) (410 SE2d 299) (1991) (Birdsong, J., dissenting); rev’d, 262 Ga. 313 (417 SE2d 320) (1992) (quoting dissent with approval). We therefore must reverse and remand for a new trial limited to the issue of liability of the remaining defendants with respect to all intermediate locations of the easement for which some evidence has been shown.

2. Because it may occur on retrial, we also consider R. C.’s assertion that the trial court improperly limited its cross-examination of a defense witness. Counsel for R. C. asked this witness some general questions regarding the system of land surveying in Georgia. Counsel for the M. P. defendants objected that the witness was not qualified as an expert, and the following exchange occurred:

THE COURT: Well, cross has exceeded — certainly exceeded the scope of direct. What do you say to that, [counsel]?
COUNSEL FOR R. C.: Well, Your Honor, I don’t know of a rule that restricts me to the scope of direct. But I’m not asking him for opinions, I’m asking him for facts about surveying at this point.
COUNSEL FOR CAMBRIDGE: Your Honor, for the record, the White defendants will object to this line of questioning. It clearly exceeds the very last —
THE COURT: I think we’re now under the new rules of evidence.... [It] used to be correct that it wasn’t restricted. I believe under the new rules of evidence, you’re now restricted to the scope of direct. I don’t think you can go beyond the scope of direct.
COUNSEL FOR R. C.: Then I have no further questions.

This was error. Federal Rule of Evidence 611 (b) indeed limits cross-examination to the scope of direct: “Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.” But this is one of several instances of the Georgia Evidence Code’s divergence from the federal rules. The Code section in question, OCGA § 24-6-611 (b), does not track the federal rule but instead provides:

A witness may be cross-examined on any matter relevant to any issue in the proceeding. The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against the party. If several parties to the same proceeding have distinct interests, each party may exercise the right to cross-examination.

“Where a provision of the new Evidence Code differs in substance from the counterpart federal rule, as interpreted by federal courts, we must correspondingly presume that the General Assembly meant the Georgia provision to be different.” (Footnote omitted; emphasis in original.) Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015).

The long-standing Georgia rule is that

[t]he right of cross[-]examination is a substantial right, the preservation of which is essential to the proper administration of justice and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. This right should not be abridged. It is the duty of the court both to protect a witness under cross-examination from being unfairly dealt with, and to allow a searching and skillful test of his intelligence, memory, accuracy and veracity. As a general rule, it is better that cross-examination should be too free than too much restricted. The right of cross-examination in this state includes questioning a witness about subjects relevant to any of the issues in the case, not simply those matters elicited on direct examination.

(Citations and punctuation omitted.) James v. State, 260 Ga. App. 536, 536-537 (1) (580 SE2d 334) (2003). See also Stone v. State, 250 Ga. 718, 720 (300 SE2d 500) (1983) (“The trial court erred in ruling that defendant could not seek this information on cross-examination simply because it had not been brought out during direct.”).

3. Finally, R. C. complains that the judgment entered below with respect to the location of the easement does not sufficiently identify or describe the easement, preventing it from obtaining marketable title. In the first part of the bifurcated trial, the jury was asked to locate both the original and the final locations of the easement on a plat provided as part of the special verdict form. During the preparation of the form, R. C. proposed that the jurors be given clear choices based upon a survey as to the location of the easement, rather than drawing a line, because “they obviously won’t be able to make a survey with a colored marker, and we will be left to guess where on the ground that the jury indicated to locate the easement.” The M. P. defendants responded that “[t]he Court has authority to interpret the verdict in connection with future proceedings,” and asserted that it was within the trial court’s power to discern the jury’s intent based upon the surveys admitted into evidence. The trial court concluded that it would take the jury’s mark and “interpret that location” to scale.

The jurors drew two lines on the plat with a marker, labeling one “Deeded Easement” and the other “New-Relocated Road,” but the trial court in its judgment did not reduce to scale the location of the line indicating the “New-Relocated Road.” Nor was it made clear in the judgment whether the easement would follow the exact metes and bounds of the “New-Relocated Road” as built, or the line as drawn by the jury on the survey The trial court had previously determined that the width of the easement was 60 feet, but that also was not incorporated in the judgment on the jury verdict.

Judgment and execution shall conform to the verdict, and a judgment may be amended by order of the court to conform to the verdict upon which it is predicated, even after an execution issues. The judgment must conform to the reasonable intendment of the verdict upon which it is based, as determined by an inspection of the record, including the verdict and pleadings. Consequently, the trial court was required to examine the record and determine if [the jury’s intent] plainly appeared upon the face of the record.

(Citations and punctuation omitted.) Kaufman Dev. Partners v. Eichenblatt, 324 Ga. App. 71, 75-76 (3) (749 SE2d 374) (2013).

A description of property “is sufficiently certain when it shows the intention of the grantor, as to what property is conveyed, and makes its identification practicable. When this appears, the exact location and boundaries of the land may be shown by extrinsic evidence.” (Citation and punctuation omitted.) Norton Realty & Loan Co. v. Bd. of Ed. of Hall County, 129 Ga. App. 668, 674-675 (4) (200 SE2d 461) (1973). In Norton, we held that the necessary information was provided in a judgment incorporating a specific plat in evidence, and that the width of the easement could be supplied from other pleadings in the case. Id. Here, in contrast, while the evidence exists in the record and the trial court indicated its intention to incorporate it in the judgment, it did not do so. In such circumstances, we may vacate the erroneous part of the judgment and direct that the trial court conform it to the jury’s verdict. Pinkerton & Laws v. Macro Constr., 226 Ga. App. 169, 172 (4) (b) (485 SE2d 797) (1997).

We therefore vacate the portion of the trial court’s judgment regarding the ultimate location of the easement, and remand with the direction that the trial court amend the judgment to conform to the jury’s verdict and the evidence, to make the description of the easement sufficiently certain.

Case Nos. A14A1689 and Al 4A2102

In these appeals, conditioned upon reversal in the main appeal, Mommies Properties, LLC and Bose complain of the trial court’s denial of their motions for sanctions due to alleged spoliation of evidence by R. C. At issue is a poster or enlargement, described by cross-appellants as an “oversized exhibit board,” that was used during a hearing on a temporary restraining order in 2009. Former counsel for R. C. displayed the board for the court, stating, “This is a plat of the property, and that’s the Old Woods Road (indicating) on the second page. It’s a blow up of the same property showing the Old Woods Road that crosses the property of Mommie’s [sic] and Cambridge.” But he did not identify it as an exhibit or offer it in evidence. During cross-examination, former counsel for Mommies marked the board as “Plaintiff’s Exhibit No. 1,” but also did not offer it in evidence. The court reporter’s transcript shows that “Exhibit No. 1” for the Petitioner was “Not Admitted.” The trial court stated in its written order that it reviewed this board in considering the application for a TRO, and that it appeared to be a plat prepared by Rochester and Associates, a surveyor. At some time before trial in 2013, however, the board disappeared.

In September 2013, Mommies Properties and Bose moved for sanctions, seeking the ultimate sanction of dismissal and arguing that the absence of this board prejudiced their case. By affidavit filed with his motion, Bose, who was a witness at the 2009 hearing though not yet a party, identified certain inscriptions or markings that he claimed to have observed on the missing board. Based on this testimony, Mommies Properties and Bose contended that the board contained information “that the other indisputable facts show were false,” that this information contradicted deposition testimony, and that they were deprived of the opportunity to cross-examine witnesses regarding inconsistencies between the board and other surveys.

At the hearing on the motions, the trial court noted that the TRO was sought under a completely different theory, that of prescriptive easement, and that the court had ruled that theory out on summary judgment because the alleged easement did not satisfy the requirements for prescription. It further observed that the missing exhibit was obviously favorable to R. C. because R. C. presented it, and to the extent that Mommies Properties and Bose sought to impeach R. C.’s witness with inconsistent allegations, the verified complaint executed by that witness was the proper method for doing so. In its written order, the trial court observed that the argument raised by Mommies Properties and Bose is the exact opposite of that ordinarily raised in a spoliation argument, because they contended they were harmed by the disappearance of a document that they acknowledged helped R. C.’s case. The trial court concluded that the missing exhibit supported R. C.’s contentions and “would also be very helpful to Plaintiff at trial in explaining its shifting theories in light of the questions which will surely be posed by the Defendants.” The court also found that for purposes of showing contradictory or shifting theories of recovery the missing exhibit was “surplusage,” and “remotely, at best, favorable to the Defendants and not, as they claim, the linchpin of their case.”

“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Such conduct creates the presumption that the evidence would have been harmful to the spoliator.” (Citation and punctuation omitted.) Clay ton County v. Austin-Powell, 321 Ga. App. 12, 16 (2) (740 SE2d 831) (2013). “The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse.” (Citations and punctuation omitted.) Allen v. Zion Baptist Church, 328 Ga. App. 208, 217 (3) (761 SE2d 605) (2014).

Decided March 30, 2015.

Swift, Currie, McGhee & Pliers, M. Diane Owens, Anandhi S. Rajan, Bradley S. Wolff, for R. C. Acres.

Patricia Whitney, pro se.

Vinay Bose, pro se.

Teague & Chambless, J. Stuart Teague, Keisha Martin Chambless, for Mommies Properties et al.

Assuming without deciding that a visual aid or demonstrative exhibit prepared by counsel, see OCGA § 9-10-183, constitutes “evidence” that could be deemed subject to spoliation, we cannot say that the trial court abused its discretion in denying cross-appellants’ motion. In Allen, supra, we observed that the trial court did not abuse its discretion in determining that destroyed records were cumulative of testimony to the same effect, nor in determining that the movants “had established no significant connection between the allegedly spoliated evidence and the success or failure of their ... claims.” 328 Ga. App. at 217 (3). The trial court viewed the exhibit in question at the TRO hearing, and concluded that it was either cumulative or primarily favorable to R. C., and thus its disappearance was not sufficiently harmful to warrant sanctions. We cannot say that it abused its discretion in so deciding.

Judgment affirmed in Case Nos. A14A1689 and A14A2102. Judgment reversed in part and vacated in part, and case remanded in Case No. A14A1688.

Barnes, P. J., and Branch, J., concur.

       The trial court entered default judgment against two defendants, 20 West Land Co. LLC and Silver Creek Development, and they are not parties to this appeal. It also directed a verdict against the Cambridge defendants as to liability for interference with the easement. R. C. reached a post-trial settlement with the Cambridge defendants, and they likewise are not parties to this appeal.

       The jury also declined to award punitive damages against any defendant, and found in favor of the M. P. defendants on the issue of trespass to realty, and in favor of R. C. on the defendants’ counterclaims, as well as in favor of a third-party defendant who is not a party to this appeal.

       Appellees Bose and Whitney, appearing pro se, filed briefs incorporating the brief of Mommies Properties in Case No. A14A1688.

       Mommies Properties quitclaimed a portion of its property to Bose, its property manager, after this litigation began. Defendant Whitney is the tenant operating the stable on the property.

       Because this case was tried in 2013, Georgia’s new Evidence Code applies. Ga. L. 2011, p. 99, § 101.

       We note that the trial court did not have the opportunity to rule on R. C.’s pending Motion to Amend Judgment before the notice of appeal was filed.

       An officer of Rochester & Associates testified by affidavit that every plat, map and survey in its possession had been produced.

       At the time of the hearing on the TRO, R. C. was represented by a different law firm.


text:
    A14A1711.
    HEADRICK et al v. STONEPARK OF DUNWOODY UNIT OWNERS ASSOCIATION, INC. et al.
    (771 SE2d 382)
   Branch, Judge.

Individual property owners appeal the grant of summary judgment in favor of the defendants in this suit arising out of structural problems at a condominium complex. As explained below, this Court does not have jurisdiction over one of the appellants’ enumerations of error, and therefore it must be dismissed. With one exception, the remaining enumerations of error are without merit or have been abandoned. We therefore grant in part Stonepark’s motion to dismiss the appeal and affirm in part and reverse in part the trial court’s decision.

This suit arises out of the fact that portions of a condominium complex were constructed on top of a waste pit and that as a consequence, one or more buildings have settled causing damage to the buildings. As the appellees readily admit:

There is no dispute that significant subsurface soil problems exist under at least a portion of the Stonepark development that have caused more than one building to settle. There is no dispute that some of the buildings in Stonepark were constructed over a “Debris Pit” resulting from when, in the 1980’s, the developer of Stonepark apparently left felled trees in place and covered them with fill dirt. There is no dispute that this has caused soil subsidence over time as the organic material deteriorated and caused foundation settlement in the 1300 and 1400 Buildings where the foundation pile system did not extend below the Debris Pit to rock. There is no dispute that the Debris Pit has caused the Association significant expense and that all members of the Association, including the parties have had to pay additional assessments to finance the work needed to stabilize building foundations and make other repairs in the development.

In March 2012, in the Superior Court of Fulton County, appellant condominium owners (hereinafter “Headrick” or “appellants”) filed suit against Stonepark of Dunwoody Unit Owners Association, Inc. and the individual members of its board of directors (the “Board Members”). The suit is not one against a seller for failure to disclose known defects with the property. Rather, Headrick and the other appellants allege that although many repairs have been made, the appellants are entitled to damages and certain injunctive relief because the appellees falsely represented that the repairs would permanently correct the problems; wilfully misrepresented the nature and extent of the problems; failed to maintain the property; failed to produce documents regarding the problems and their resolution; conducted improper meetings of the board regarding the problems; violated association bylaws by, among other things, conducting closed meetings; and failed in other ways from acting properly vis-á-vis the appellants regarding resolution of the ongoing structural problems.

After the complaint was filed, the Board Members answered and moved for judgment on the pleadings and to dismiss the complaint. Stonepark, too, answered, and it counterclaimed and moved to dismiss certain counts of the complaint. On February 6, 2013, the court denied the Board Members’ motion for judgment on the pleadings but granted their motion to dismiss claims for declaratory or injunctive relief; the court also granted in part and denied in part Stonepark’s motion to dismiss.

The Board Members thereafter sought reconsideration of the February 6 order, including the trial court’s decision not to treat their motion to dismiss as a motion for summary judgment due to the trial court’s consideration of materials presented by the appellants which were outside of the pleadings. On June 17, 2013, the trial court granted the Board Members’ motion to reconsider the denial of their motion for judgment on the pleadings and treated the motion as one for summary judgment. The court held that when the Board Members’ motion was converted into a motion for summary judgment, the Board Members were entitled to judgment as a matter of law because the appellants failed to produce any evidence whatsoever, thus resolving all of the claims against the Board Members. Although the June 17, 2013 order of the trial court was directly appealable under OCGA § 9-11-56 (h) (“An order granting summary judgment on any issue or as to any party shall be subject to review by appeal.”), Headrick did not appeal the June 17 order.

In the meantime, Stonepark moved for summary judgment on all remaining claims against it. On October 10, 2013, the trial court granted the motion in full. Stonepark’s counterclaims, however, remain pending below, and therefore the October 10 order is not a final order. Headrick timely filed a notice of appeal, as authorized by OCGA § 9-11-56 (h), following the October 10 summary judgment order.

1. The appellees have moved to dismiss those portions of the appeal that challenge the February 6 and June 17,2013 orders on the ground that we do not have jurisdiction.

(a) To the extent Headrick is appealing the February 6, 2013 order, we have jurisdiction because of his timely direct appeal of the trial court’s October 10 order pursuant to OCGA § 9-11-56 (h). The general rule is that “when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) (271 SE2d 199) (1980). In Patterson v. Bristol Timber Co., 286 Ga. App. 423 (649 SE2d 795) (2007), the appellant appealed a nonfinal order granting summary judgment to one defendant and sought review of two earlier interlocutory orders that were not directly appealable. Id. at 425 (1), 426 (2), n. 4. This Court determined that it had jurisdiction over the two interlocutory orders under the general rule quoted above. Id. at 426 (2). Here, the February 6 order was a nonfinal ruling on two motions to dismiss and therefore was not directly appealable. See generally Bd. of Regents v. Canas, 295 Ga. App. 505, 506 (1) (672 SE2d 471) (2009) (order denying motion to dismiss a certain claim is not a directly appealable final judgment). The October 10 order, however, was the proper subject of a direct appeal. Accordingly, we have jurisdiction to review the February 6 order to the extent Headrick has challenged any of the holdings therein.

(b) We do not, however, have jurisdiction of the appeal of the June 17, 2013 order. In enumeration of error “B,” Headrick challenges the trial court’s June 17 order, which was a nonfinal order granting summary judgment in favor of the Board Members on all claims asserted against them. The order, therefore, was directly appealable under OCGA § 9-11-56 (h), but the appellants chose not to appeal at that time.

This Court has held that where a party has failed to timely appeal from a grant of partial summary judgment, “[that party cannot] obtain appellate review of that ruling in an appeal from a subsequent grant of partial summary judgment, where the latter order [does] not constitute a final judgment in the case.” Hutchison v. Nat. Svcs. Indus., 191 Ga. App. 885, 886 (1) (383 SE2d 212) (1989) (citations omitted). This holding is a recognized exception to the general rule that once a case is on appeal, all rulings previously made by the trial court are subject to review. Id. As stated in Hutchison,

[s]uch an exception is . . . appropriate in that a grant of partial summary judgment, unlike most other non-final orders, is immediately appealable as a matter of right, with the result that a party who chooses not to bring a direct appeal from such an order may reasonably be deemed to have made an election to wait until a final judgment has been entered in the case to challenge the ruling.

Id. See also Jones v. White, 311 Ga. App. 822, 832-833 (4) (717 SE2d 322) (2011). Although OCGA § 5-6-34 (d) allows this Court to consider all prior orders rendered in the case “without regard to the appealability” of the order standing alone and “without regard to whether the .. . order appealed from was final or was appealable by some other express provision of law,” that Code section, by its express terms, applies only when the appeal is taken under subsection (a), (b), or (c) of this Code section, i.e., final judgments, certified interlocutory reviews, and one aspect of death penalty cases. Here, Headrick timely noticed his appeal of the October 10, 2013 order, and his appeal is authorized by OCGA § 9-11-56 (h), not by OCGA § 5-6-34 (a), (b) or (c). Accordingly, OCGA § 5-6-34 (d) does not provide us jurisdiction to consider Headrick’s appeal of the June 17, 2013 order.

Because Headrick chose not to appeal the June 17, 2013 order at that time, he has elected to wait until a final order is issued in the trial court before appealing that ruling; accordingly, this Court does not have jurisdiction of any assertion of error regarding that order and it must be dismissed. See Hutchison, supra; Jones, supra. The dismissal resolves all assertions of error pertaining to Headrick’s claims against the Board Members.

2. In one of his remaining enumerations of error, Headrick argues that the trial court failed to rule in a timely manner on the appellees’ motions to dismiss and failed to convert their motions to dismiss into a motion for summary judgment. These arguments are without merit.

OCGA § 9-11-12 (j) provides that if a party files a motion to dismiss at or before the time of the answer, discovery shall be stayed for 90 days during which time the trial court “shall” decide the motion to dismiss:

If a party files a motion to dismiss before or at the time of filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed for 90 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner. The court shall decide the motion to dismiss within the 90 days provided in this paragraph.

OCGA § 9-11-12 (j) (1). Here, the BoardMembers filed an answer and a motion to dismiss on April 26, 2012; Stonepark filed a motion to dismiss on May 11, 2012, about two weeks after its answer. The trial court did not rule on either motion to dismiss until February 6, 2013, well beyond the 90-day time limitation specified in OCGA § 9-11-12 (j). But as the appellees point out, it is well established that even though a statute imposing a time limitation uses the word “shall,” if the statute does not provide for any sanction or negative consequence for a failure of the trial court to rule within that time period, the limitation is to be read as merely directory. Charles H. Wesley Ed. Foundation v. State Election Bd., 282 Ga. 707, 709 (2) (654 SE2d 127) (2007); Cobb County v. Robertson, 314 Ga. App. 455, 457 (724 SE2d 478) (2012). Here, OCGA § 9-11-12 does not provide a sanction or consequence for a trial court’s failure to meet the 90-day time limitation, and accordingly, there is no reversible error.

Headrick’s assertion that the trial court erred by refusing to convert the Board Members’ motion to dismiss into a motion for summary judgment is without merit given that the trial court did exactly that on June 17, 2013 when it ruled on the motion to reconsider its earlier ruling.

3. Headrick contends the trial court erred by granting summary judgment to Stonepark on one aspect of Headrick’s claim of fraud. Although the trial court appears to have granted summary judgment on all aspects of Headrick’s claim of fraud, Stonepark failed to move for summary judgment on a second aspect of Headrick’s claim of fraud and therefore summary judgment on that aspect was erroneous.

In paragraphs 17-21 of the complaint, Headrick alleged that although Stonepark has attempted to repair the structural problems in the condominium buildings, it falsely represented to the current condominium owners that the repairs would permanently correct the problems even though Stonepark knew that more repairs would be necessary in the future. In paragraphs 37-42, Headrick alleged that Stonepark failed to disclose the nature and extent of the structural problems to prospective condominium purchasers. In its motion for summary judgment, Stonepark sought summary judgment only on the claim that it defrauded prospective purchasers, and in the corresponding order, the trial court addressed only that claim, yet it appears that the trial court granted summary judgment on all aspects of the fraud claim. On appeal, Headrick does not challenge the trial court’s ruling on the claim regarding prospective purchasers; rather, Headrick asserts that the trial court erred by granting summary judgment on its claim that Stonepark defrauded the current condominium owners. Stonepark responds that the trial court’s ruling should be affirmed because it was right for other reasons.

“A grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013) (citations and punctuation omitted; emphasis in original). Because Stonepark did not move for summary judgment on Headrick’s claim that Stonepark defrauded the current condominium owners, application of the right-for-any-reason rule is not appropriate. Id.; see also Thunderbolt Harbour Phase II Condo. Assn. v. Ryan, 326 Ga. App. 580, 583 (2) (a) (757 SE2d 189) (2014) (where defendant did not raise alternative argument for summary judgment in trial court, this Court could not use that argument to affirm the trial court’s decision as right for any reason) (physical precedent only). Here, because Stonepark never sought summary judgment on Headrick’s fraud claim regarding the current condominium owners, the trial court’s order must be reversed to the extent that it purports to resolve all of Headrick’s claims of fraud.

Stonepark’s argument that the appellants abandoned this remaining claim of fraud in their brief filed in response to Stonepark’s motion for summary judgment is without merit. A review of the statement made by Headrick in his brief in opposition to summary judgment, upon which Stonepark relies, shows that it was merely an acknowledgment of an earlier trial court ruling, not abandonment of a claim. Thus, Headrick did not abandon this claim.

4. Headrick argues that the trial court erred by granting summary judgment on Count III of the complaint. In Count III, Headrick asserted that Stonepark has a duty to inspect the common areas, determine what maintenance is needed, and effect repairs, but that it has failed to perform these duties, thereby resulting in a decrease in value of the condominiums and allowing dangerous conditions and health hazards to exist. In response to Stonepark’s motion for summary judgment on this count, the trial court first concluded that

based on the court’s review of the record, Plaintiffs’ complaint is not that [Stonepark] has failed to perform maintenance on the common areas but that Plaintiffs disagree with the methods recommended by [Stonepark’s] engineer to repair the subsurface soil issues at the condominium.

The court then concluded that Stonepark is protected by the business judgment rule, that is, in the words of the trial court, “that courts will not interfere in matters involving merely the judgment of the majority in exercising control over corporate affairs.” The trial court further found that Stonepark was authorized to rely on the advice of its engineer in determining what steps to take to remedy the ongoing structural problems. Finally, because the undisputed evidence showed that Stonepark in fact relied upon its engineer, the trial court found that Headrick’s complaints about what steps Stonepark used to address the structural problems were not actionable. See, e.g., Vernon Bowdish Builder v. Spalding Lake Homeowners Assn., 196 Ga. App. 370, 371 (396 SE2d24) (1990) (“controversy concern[ing] a difference between the judgment and actions taken by the board of directors of the homeowners’ association and the judgment of plaintiff[ ] . . . member of the homeowners’ association” was not actionable).

On appeal, Headrick argues that although the trial court’s reasoning was sound, the trial court misconstrued the complaint in that the appellants also claim that Stonepark has failed to repair “multiple problems with sink holes, cracks in the sidewalks, stairs pulling away from walls, and other problems that do not require major work,” thereby creating dangerous conditions, all in violation of its duty to maintain the common area. But Headrick cites only to photographs of some of these conditions and fails to provide any supporting information that might describe the nature of the problems, when they occurred, what efforts have been taken to address them, or similar information. Most importantly, Headrick has not shown that any of the photographs are not related to the major structural problems that exist at the Stonepark development. Accordingly, Headrick has not shown that the trial court erred.

5. Headrick contends the trial court also erred by granting summary judgment on Counts IV and V of the complaint. In these claims, the appellants asserted that Stonepark breached its duty to the property owners by failing to give notice of and hold meetings in accordance with Stonepark’s bylaws and by failing to keep and make available records of the meetings, thereby improperly excluding the appellants from association meetings and preventing them from knowing what transpired at the meetings. The trial court granted summary judgment on both counts. The court held that (1) Stonepark operated in compliance with its bylaws with regard to holding meetings; (2) Stonepark acted within the bylaws and Georgia law when it excluded Headrick, who was a director at the time, from the September 21, 2010 meeting of the board of directors because Headrick had a conflict of interest; (3) Headrick did not show that Stonepark breached a duty with regard to keeping association meeting minutes; and (4) Headrick failed to show that the appellants suffered any damages as a result of the alleged violations.

Decided March 30, 2015.

Clifford H. Hardwick, for appellants.

Lueder, Larkin & Hunter, John T. Lueder, Elina V. Brim, Weiss-man, Nowack, Curry & Wilco, Jason A. LoMonaco, for appellees.

On appeal, Headrick has not attempted to challenge the trial court’s conclusion that these claims fail because the appellants have failed to show any damages. Headrick therefore has abandoned any claimed error on one of the independent grounds that the trial court based its decision. See Court of Appeals Rule 25 (c) (2); Rolleston v. Estate of Sims, 253 Ga. App. 182, 188 (8) (558 SE2d 411) (2001) (error deemed abandoned if not supported by citation to legal authority or to the record). It follows that Headrick cannot show that the trial court erredby granting summary judgment on Counts IV and V of the complaint.

6. For the same reasons — lack of argument or citation to authority or the record, Headrick has also abandoned any claim that the trial court erred by granting summary judgment on the remaining claims addressed by the trial court in the October 10, 2013 order.

Judgment affirmed in part and reversed in part, and appeal dismissed in part.

Barnes, P. J., and Boggs, J., concur.

       At least one of the appellants — Headrick himself — has filed such a suit against the person from whom he purchased a unit and the property management company.

       The Board Members’ motion mistakenly named the property management association in the title as the movant; the remainder of the motion shows that it was made by the Board Members, and the trial court subsequently granted a motion to correct the misnomer.

       Although one of Headrick’s enumerated errors refers to Stonepark’s “Partial Motion for Judgment on the Pleadings,” in the argument section of the brief, Headrick clearly states that he challenges the trial court’s grant of Stonepark’s motion for summary judgment.

       Although Headrick only specifically refers to Count IV, the argument shows that Headrick intends to assert error with regard to Count V as well.