text:
    A10A2152.
    TAYLOR v. THE STATE.
    (705 SE2d 295)
   Miller, Chief Judge.

A jury convicted Maurice Antonio Taylor of single counts of armed robbery (OCGA § 16-8-41 (a)), aggravated assault (OCGA § 16-5-21 (a) (1)), burglary (OCGA § 16-7-1 (a)), and possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)). On appeal, he challenges the sufficiency of the evidence and asserts that the trial court abused its discretion in denying his amended motion for new trial based upon newly discovered evidence.

This Court reviews the denial of a motion for new trial upon the ground of newly discovered evidence for an abuse of discretion.

[M]otions for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless that discretion is abused. Furthermore, the trial court’s determination is entitled to great consideration.

(Citations, punctuation and footnotes omitted.) Rivera v. State, 296 Ga. App. 152, 153-154 (2) (673 SE2d 642) (2009).

Viewed in the light most favorable to the jury’s verdict (Davis v. State, 275 Ga. App. 714, 715 (1) (621 SE2d 818) (2005)), the evidence shows that in the late evening of April 17, 2006, Robert James Ward, Jr., heard the sound of breaking glass and the scream of his nine-year-old nephew. When Ward went to investigate the matter, he encountered Charles Daniel Mitchell, Taylor’s co-defendant. Ward knocked Mitchell to the floor, knocking Mitchell’s gun from his hand as he did so. Seeing this, Taylor shot Ward twice in the back. As Ward lay on the floor disabled, Taylor went through Ward’s pockets, stealing his wallet, driver’s license, credit cards, and $6,000 in cash.

During an investigation of the incident, Taylor and Mitchell were identified as suspects, and their arrests followed. Tried separately and convicted of the offenses here at issue, Mitchell testified against Taylor as a State’s witness at trial. Mitchell identified Taylor as his accomplice during the incident. Further, Mitchell stated that he and Taylor drove to the crime scene together and gained entry into the residence by breaking through a glass door.

Following a jury trial, Taylor was convicted of the offenses and filed a motion for new trial. At the trial court’s hearing thereon, Mitchell recanted his trial testimony to the effect that he and Taylor had broken into Ward’s home together, indicating instead that Taylor had neither accompanied him to Ward’s home nor known of his intent to commit an armed robbery while there.

1. The complaint that the evidence was insufficient, although unsupported by citation to the record or relevant authority, as here, requires a review of the evidence in the light most favorable to the verdict. Howard v. State, 200 Ga. App. 188, 189 (2) (407 SE2d 769) (1991). So viewed, we conclude that the evidence was sufficient to have authorized any rational trier of fact to have found the essential elements of the crimes at issue beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also OCGA § 16-8-41 (a) and Crowder v. State, 241 Ga. App. 818, 818-819 (1) (527 SE2d 901) (2000) (armed robbery); OCGA §§ 16-5-21 (a) (2) (aggravated assault); 16-7-1 (a) (burglary);-and 16-11-106 (a) (possession of a firearm during the commission of a crime).

2. Further, Taylor contends that the trial court erred in denying his motion for new trial, arguing that Mitchell’s recanted testimony at the trial court’s hearing on the motion constituted newly discovered evidence. We disagree.

“Motions for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless that discretion is abused.” (Citations and punctuation omitted.) Lester v. State, 278 Ga. App. 247, 253 (6) (628 SE2d 674) (2006). The exercise of such discretion “is entitled to great consideration.” (Citation, punctuation and footnote omitted.) Thompson v. State, 291 Ga. App. 355, 360 (4) (662 SE2d 135) (2008). And the party seeking a new trial on the ground of newly discovered evidence bears the burden of satisfying the court:

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

(Citations and punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). “Failure to show one requirement is sufficient to deny a motion for a new tried.” (Citation omitted.) Id.

Here, Mitchell’s testimony at the hearing on the motion for new trial in which he stated that he had proceeded to the crime scene alone and that Taylor had not known of his intent to commit a crime at the Ward residence did not authorize a new trial because it was cumulative of other evidence offered at Taylor’s trial. Specifically, Keely Reed, who lived with Taylor, Taylor’s girlfriend, and Mitchell, testified that Taylor was at their home on the night of the crime and did not leave. Moreover, Mitchell testified that he and Taylor broke through a glass door and entered Ward’s home without authority, having driven there together. Thus, Taylor’s reliance on OCGA § 24-9-85 (b) is misplaced in such regard. See id. (“If a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unim-peached evidence.”) (emphasis supplied). Given the foregoing, we find that the trial court did not abuse its discretion in denying Taylor’s motion for new trial on the ground of newly discovered evidence.

Decided December 17, 2010.

William C. Mewborn III, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    A10A2178.
    CRUICKSHANK v. FREMONT INVESTMENT & LOAN et al.
    (705 SE2d 298)
   JOHNSON, Judge.

Kenneth Cruickshank sued Fremont Investment & Loan, McCurdy & Candler, LLC, and Mortgage Electronic Registration Systems, Inc. (“MERS”) asserting, among numerous other claims, wrongful foreclosure. The trial court granted Fremont’s, McCurdy’s, and MERS’s motions for summary judgment and denied Cruick-shank’s cross-motion for summary judgment as untimely filed. On appeal, Cruickshank claims that his requests for admissions were admitted by Fremont, McCurdy, and MERS because McCurdy and MERS failed to respond to the requests in a timely manner or to make a filing contemplated by the Uniform Superior Court Rules (“USCR”), and that the admissions, in turn, created issues of material fact precluding the grant of summary judgment. We disagree for the reasons set forth below.

“On review of a grant of summary judgment, we apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. If there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment is proper.”

Viewed independently of the requests for admissions, the evidence shows that Fremont loaned Cruickshank $290,454. The loan was secured by a first priority security deed in favor of Fremont and its nominee, MERS, encumbering certain Cobb County real property. Cruickshank defaulted on the loan and failed to cure the default within 30 days of notice thereof.

In light of the default, Fremont hired McCurdy to handle the nonjudicial foreclosure sale of the property, but before the sale Cruickshank tendered two drafts, each entitled “International bill of exchange,” as full settlement of Cruickshank’s loan obligations to Fremont. Fremont presented the drafts to its financial institution, which then returned the drafts to Fremont with the notation “account closed.” The secured property was later knocked off and sold at foreclosure to Fremont for $231,000.

Notwithstanding the foregoing, Cruickshank relies on facts which he claims were admitted by Fremont, McCurdy, and MERS through McCurdy’s and MERS’s alleged failure to timely respond to his requests for admissions or to timely file certificates of compliance under USCR 5.2. These admitted facts include, as contended by Cruickshank, that there was no consideration for the underlying debt obligation and that he tendered full payment for any debt obligation owing to Fremont, rendering summary judgment on his claims inappropriate. Because Cruickshank relies on the alleged admissions to show error, the threshold question is whether McCurdy and MERS admitted Cruickshank’s requests for admissions. If not, Cruick-shank’s appeal fails.

OCGA § 9-11-36 (a) (2) provides in relevant part:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. . . .

If the time for response to a request for admission passes “without answer or objection, then the requests are admitted subject only to the requestee’s opportunity under OCGA § 9-11-36 (b) on motion to have his admissions withdrawn. . . ,”

With respect to MERS, the record shows that Cruickshank served a request for admissions on MERS’s counsel by hand delivery on March 20, 2009. On April 20, 2009, MERS’s counsel served Cruickshank with its response by mailing a copy of the response to Cruickshank by first class mail. Cruickshank contends he received the response on April 22, 2009, two days beyond the deadline for a timely response.

As relevant here, service of pleadings and other papers subsequent to the original complaint is made by delivering a copy to the person to be served or “by mailing it to the person to be served . .. ,” and in the latter case “[sjervice by mail is complete upon mailing.” Thus, although Cruickshank points to the date of his receipt of MERS’s response as controlling, service was complete on April 20, 2009. Further, MERS served Cruickshank with its response within the required 30-day period as calculated under OCGA § 1-3-1 (d) (3). Accordingly, MERS’s service was timely.

Cruickshank contends that MERS nevertheless failed to file the certificate required by USCR 5.2 with the clerk of the superior court within the time required. The record shows that MERS filed its “Certificate of Compliance with Rule 5.2 Response” on April 21, 2009, which was not within the 30-day period required for service of MERS’s response to the request for admissions. Pretermitting the timeliness of MERS’s filing of the Rule 5.2 certificate, the admission for failure to respond contemplated by OCGA § 9-11-36 (a) (2) is tied to whether requestee “serves” the response. Cruickshank does not show otherwise. “If a party served with a request for admission does not serve an answer or objection and does not move for an extension of time or to withdraw the admissions resulting from a failure to answer, the matter stands admitted.” It follows that MERS, having timely served its response, did not admit in wholesale Cruickshank’s request for admissions.

As to McCurdy, the record shows that Cruickshank served his request for admissions on August 20, 2008, by hand delivery. McCurdy mailed a response on September 19, 2008, within 30 days of the service of the request for purposes of OCGA § 1-3-1 (d) (3). Thus, as with MERS, the response was timely served within 30 days of the service of the request, and McCurdy did not admit Cruick-shank’s requests for admission notwithstanding whether it filed a Rule 5.2 certificate in a timely manner.

Decided December 17, 2010.

Kenneth Cruickshank, pro se.

McCurdy & Candler, Frank R. Olson, Troutman Sanders, Kelly L. Atkinson, for appellees.

Judgment affirmed.

Miller, C. J., and Phipps, P. J., concur.

       Cruickshank sued Fremont, McCurdy, and MERS for quiet title, wrongful foreclosure, breach of loan agreement, fraud, intentional infliction of emotional distress, wrongful eviction, predatory lending/violations of civil rights, punitive damages, and attorney fees.

       The appellant’s argument calls to mind a passage in philosopher Thomas Carlyle’s master work, Sartor Resartus: “Man is, properly speaking, based upon Hope, he has no possession but Hope, this world of his is emphatically the ‘Place of Hope.’ ” Alas, such hope is legally insufficient to allow, much less require, that the trial court’s judgment be reversed.

        Nat. Business Acquisitions v. Mandula, 245 Ga. App. 14, 15 (1) (537 SE2d 162) (2000).

       Fremont also held a loan secured by a second deed to secure debt on the property.

       Fremont argues that McCurdy did not file an untimely response to Cruickshank’s request for admissions and does not attempt to differentiate itself from McCurdy for purposes of the alleged admissions.

       In summary, Cruickshank’s claims of error are that (i) the trial court contradicted Fremont’s, McCurdy’s, and MERS’s admissions in granting their motion for summary judgment; (ii) the request for admissions were admitted because they were filed late for purposes of OCGA § 9-11-36 (a) and (b); (iii) each and every averment was admitted without objection; (iv) the trial court erred in concluding Cruickshank failed to set forth facts showing a genuine issue of fact on any of his claims (because, as he argues in the body of his brief, the defendants had admitted every prima facie element of his action); (v) the trial court erred in admitting evidence contrary to the admissions; (vi) the trial court erred because the admissions were not withdrawn; and (vii) the trial court erred in entering an order claiming that Cruickshank had agreed that all dispositive pleadings be filed by August 31, 2009. As to the last claim, which is based on an absence of such consent in the record and his own lack of recall, Cruickshank again returns to the argument about the admissions in the body of his brief.

       (Citation, punctuation and emphasis omitted.) Atlanta Cas. Co. v. Goodwin, 205 Ga. App. 421 (422 SE2d 76) (1992). See Nat. Bank ofGa. v. Great Southern Business Enterprises, 130 Ga. App. 221 (202 SE2d 848) (1973); Nat. Bank of Ga. v. Merritt, 130 Ga. App. 85, 86-87 (1) (202 SE2d 193) (1973).
      Although McCurdy and MERS maintained below that they had timely responded to Cruickshank’s request for admissions, they moved in their respective summary judgment reply briefs to withdraw their admissions should they be deemed admitted by an untimely response. The trial court’s order on motion for summary judgment is consistent with a finding that McCurdy and MERS did not admit Cruickshank’s requests for admission. The record does not indicate that the trial court found wholesale admissions as alleged by Cruickshank and then allowed withdrawal of the admissions. See Hanson v. Farmer, 163 Ga. App. 561, 562 (1) (295 SE2d 343) (1982) (ruling on motion to withdraw admission improper without a hearing).

       OCGA § 9-11-5 (b). See Allen v. Bd. of Tax Assessors &c., 247 Ga. 568, 569 (277 SE2d 660) (1981) (“Upon mailing of the service copy, service is complete. The fact that service is complete, if unrefuted, controls.”); Kirkland v. Kirkland, 285 Ga. App. 238, 240 (2) (645 SE2d 626) (2007) (service by mail is complete upon mailing); Tyson v. Automotive Controls Corp., 147 Ga. App. 409, 409-410 (1) (249 SE2d 99) (1978) (service of request for admissions perfected by mail).

       See OCGA § 9-11-6 (a) (“In computing any period of time prescribed or allowed by this chapter . . . the computation rules prescribed in paragraph (3) of subsection (d) of Code Section 1-3-1 shall be used.”). The 30th day after March 20, 2009 fell on Sunday, April 19, 2009, and so MERS had until Monday, April 20, 2009, to serve Cruickshank. Unless otherwise specifically provided, in calculating a period of time for the discharge of any duty, “the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.” OCGA § 1-3-1 (d) (3).

       USCR 5.2 provides, in applicable part, “original discovery material shall not be filed with the court unless or until required by the provisions of OCGA § 9-11-29.1 (a) (l)-(5),” and “[a] party serving . . . Requests for Admission and Answers or responses . . . shall file with the court a certificate indicating the pleading which was served, the date of service . . . and the persons served.”

       USCR 5.2 does not provide for a specific time in which the certificate must be filed, but Cruickshank contends that it must be filed “within” the time allowed for service of the response to his requests for admission in light of OCGA § 9-11-5 (d), notwithstanding OCGA § 9-11-29.1 (a) (limiting filing requirements for discovery material).

       “The matter is admitted unless, within 30 days after service of the request. . ., the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter. . . .” OCGA § 9-11-36 (a) (2).

       (Emphasis supplied.) Albitus v. Farmers &c. Bank, 159 Ga. App. 406, 407 (1) (283 SE2d 632) (1981).

       Cruickshank does not contest McCurdy’s characterization of its transmission by Federal Express as a “mailing” for purposes of OCGA § 9-11-5 (b). Inasmuch as Cruickshank did not raise the issue here or below, we decline to address it.


author: Johnson, Judge.

text:
    A10A2241.
    OWEN v. WATTS.
    (705 SE2d 852)
   Johnson, Judge.

Kathy Watts sought a stalking protective order against Christine Owen on the ground that Owen falsely reported hazardous conditions affecting minor children in Watts’ home to the Rabun County Sheriffs Office and the Department of Family and Children Services (“DFCS”), and had closely observed Watts and her family’s private lives for years. Following an evidentiary hearing, the trial court issued a stalking protective order enjoining Owen from electronically or otherwise surveilling, investigating, or interfering with Watts. On appeal, Owen contends that her report of child abuse was immune from civil or criminal liability, that the preponderance of the evidence did not establish the elements of stalking as required for the trial court to issue the protective order, and that the trial court erred in finding that her internet research constituted stalking. For the reasons that follow, we disagree and affirm.

In order to obtain a stalking protective order, Watts was required to establish the elements of the offense of stalking by a preponder-anee of the evidence. “The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion.”

Viewed in a light most favorable to the trial court’s findings, the evidence showed that Watts and Owen filed competing petitions to adopt Watts’ grandchild, M. F. L., who had previously been placed in Owen’s home as a foster child. Gerald Johnson, the chief investigator with the Rabun County Sheriffs Office, testified that in April 2010 he received a complaint from Owen that alleged the deprivation, neglect, and possible abuse of two minor children living in Watts’ home. M. F. L. and her brother were living with Watts at that time. Johnson investigated and found nothing to substantiate Owen’s allegations. Owen later telephoned Johnson and indicated that the children’s mother, who was under “some type of safety plan” not to contact the children, “had gone out a window.” Johnson followed up on the conversation, determined that Watts was the guardian of her grandchildren, and decided that no further investigation was warranted.'

On April 9, 2010, Amy Galbraith, an investigator with DFCS, received a telephone call from 911 advising her that a person had called requesting a “welfare check” on M. F. L. at Watts’ home. The person who called 911 was aware that Johnson and another DFCS worker had been to Watts’ home earlier that day. The basis for the referral was the caller’s claim that Watts was not protecting the children from their uncle and biological mother. Galbraith drove with Johnson to Watts’ residence. She found no trace of the mother or the uncle at Watts’ home.

Also on April 9, 2010, Deputy Matt Roberts received information from his dispatch that “a ten-year-old girl. . . was attempting to sneak out the back window of the residence.” Roberts went to Watts’ house, spoke with Watts and M. F. L., who said everything was fine, and he ended the investigation.

Watts testified that she was the temporary guardian of M. F. L. and the adopted mother of M. F. L.’s brother. According to Watts, law enforcement and DFCS began investigating her after her daughter and son “put her address down to be paroled from prison,” but they were not living at her home. She claimed that Owen’s calls caused DFCS and police to open investigations, and as a result M. F. L. feared “someone would come get her” if she went outside by herself. On cross-examination, Watts further testified that she feared for her physical safety because of Owen.

During Owen’s cross-examination of Watts the proceedings evolved into a series of discussions between the trial court and Owen, who was representing herself pro se. Owen was concerned that M. F. L.’s uncle and biological mother were in Watts’ home in violation of a no contact order that had been issued in a previous case. She believed the uncle was living in Watts’ home because of information she obtained by researching the parolee database. She admitted contacting law enforcement with her concerns, although she denied contacting DFCS.

Owen argued to the trial court that because she had conducted internet research and had “monitored from the comfort of my home,” she could not have placed Watts under surveillance. Owen admitted that people in the community were reporting to her about activities at Watts’ home. She further contended that she wanted to ask Watts about her daughter’s internet activity, after which the following exchange occurred:

The Court: Why are you monitoring this family?
Owen: I’m not, your Honor.
The Court: How do you know about her daughter’s internet
activity?
Owen: Because other people report it to me.

1. Owen claims that the trial court abused its discretion in granting the stalking protective order because her actions in reporting child abuse were immune from civil or criminal liability under OCGA § 19-7-5. Owen correctly shows that in addition to the mandatory reporters listed in OCGA § 19-7-5 (c), “[a]ny other person . . . who has reasonable cause to believe that a child is abused may report or cause reports to be made as provided in this Code section.” Further, any person making a child abuse report to a child welfare agency or appropriate police authority pursuant to OCGA § 19-7-5, whether required by OCGA § 19-7-5 or not, “shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, provided such participation pursuant to this Code section or any other law is made in good faith.” And as specifically applicable here, “harassing and intimidating” conduct for the purposes of the offense of stalking must “ serve [ ] no legitimate purpose.” Given the policy of the state as expressed by the legislature in OCGA § 19-7-5, we find that the assertion of a good faith claim of child abuse serves a legitimate purpose.

We disagree with Owen, however, that the trial court was required to find any of her conduct protected under OCGA § 19-7-5. “The Supreme Court of Georgia has held that immunity under OCGA § 19-7-5 (f) should be granted to a person making a report with either the ‘reasonable cause’ specified in subsections (c) and (d) or the ‘good faith’ specified in subsection (f).” The evidence does not show that Owen received any information that M. F. L. had been subjected to “physical injury or death,” “neglect or exploitation,” “sexual abuse,” or “sexual exploitation,” which constitute child abuse for purposes of OCGA § 19-7-5 (b) (3). At best, when Owen contacted law enforcement she had reason to suspect that M. F. L.’s uncle and biological mother were in violation of a court order limiting contact with the child. Although the order was not formally tendered into evidence, it was reviewed by the trial court and discussed at length by the parties. Owen represented that she had tried to enforce the no contact order through contempt proceedings but that the court had refused to hear the matter. There was no evidence that M. F. L.’s mother, uncle, or her brother, who was also subject to the order, were a danger to the child. The trial court was authorized to conclude that Owen did not have reasonable cause to believe M. F. L. was the victim of child abuse.

Notwithstanding the lack of an objective reason for suspecting child abuse, “[a] reporter acting in good faith will be immune even if she is negligent or exercises bad judgment.” Good faith “is a subjective standard: a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.” Although Owen maintained she acted to protect M. F. L., Watts and Owen were longstanding adversaries in their respective petitions to adopt the child. And in assessing Owen’s motivations, the trial court was entitled to consider Owen’s extensive surveillance of Watts and her family and Owen’s credibility. Accordingly, the trial court was authorized to find by a preponderance of the evidence that Owen did not act with a legitimate purpose in reporting child abuse to the police and that her conduct was not immunized because it was not taken in good faith.

2. Owen claims that the trial court abused its discretion in issuing the protective order because the preponderance of the evidence was insufficient to establish the elements of stalking. We disagree.

“A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” “Harassing and intimidating” is

a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

In this case, evidence showed that Owen placed Watts and her family under extensive surveillance through a combination of internet searches and third-party observations of Watts’ home. She then contacted law enforcement on at least two occasions and caused officers to subject M. F. L. and Watts’ family to groundless investigation.

Owen argues that her act of filing a child abuse report could not have placed Watts in reasonable fear for her safety. But Watts did not just file reports, and stalking does not require “an overt threat of death or bodily injury.” The evidence showed that Owen’s surveillance of Watts and her family was so extensive that she knew about, among other things, Watts’ daughter’s internet activities, and she purported to know that someone crawled out of a window at Watts’ residence. Watts testified that Owen caused her to fear for her safety. Although Owen’s actions were more surreptitious than confrontational, they could also be fairly described as obsessive and intrusive even of Watts’ residence, and Owen would not promise to stop even at the urging of the trial court. Under the circumstances, the trial court was not required to conclude that Watts’ fears were unreasonable. “[I]t is not this Court’s function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments.”

In view of the foregoing, the preponderance of the evidence was sufficient to establish that Owen committed the offense of stalking, and the trial court did not abuse its discretion in entering the protective order.

3. Lastly, Owen argues that the trial court erred in ruling that her computer research on the internet constituted stalking. We disagree with Owen that the trial court made such a ruling. At the hearing, Owen argued that her behavior could not constitute stalking because “everything I’ve done has been from the privacy of my own home, including drafting letters and Internet research.” The trial court disagreed, pointing out that “part of the statute. . . contemplates computers.” The trial court did not rule that internet research, in and of itself, and irrespective of the other elements required to establish the crime, constituted misdemeanor stalking. We find no error.

Judgment affirmed.

Miller, C. J., and Phipps, P. J., concur.

Decided December 17, 2010.

Christine Owen, pro se.

Merlinus G. Monroe, for appellee.

       Watts’ motion to sanction Owen for filing a frivolous appeal and violating the rules of this Court is denied. Owen’s motion for sanctions is also denied.

        Pilcher v. Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007). See OCGA §§ 16-5-90 (a); 16-5-94 (a).

       (Citations and punctuation omitted.) Id.

       See De Louis v. Sheppard, 277 Ga. App. 768, 769 (627 SE2d 846) (2006).

       In Owen v. Watts, 303 Ga. App. 867 (695 SE2d 62) (2010), we affirmed the trial court’s order denying Owen’s petition to adopt M. F. L. In Owen v. Watts, 296 Ga. App. 449 (674 SE2d 665) (2009), we reversed the trial court’s order granting Watts’ petition to adopt M. E L.

       OCGA § 19-7-5 (d).

       OCGA § 19-7-5 (f).

       OCGA § 16-5-90 (a) (1).

       (Citation and punctuation omitted.) Brown v. Rader, 299 Ga. App. 606, 610 (1) (c) (683 SE2d 16) (2009).

       It was also not clear that the order at issue was still in effect.

        O’Heron v. Blaney, 276 Ga. 871, 873-874 (1) (583 SE2d 834) (2003).

       (Punctuation and footnote omitted.) Id. at 873 (1).

       See generally Gay v. Strain, 261 Ga. App. 708, 712 (3) (583 SE2d 529) (2003) (“[t]he existence of good faith is a question for the trier of fact”).

       Owen presents this argument in two separate claims of error. In a third claim of error she asserts that the trial court misconstrued OCGA § 16-5-90 (a) (1) by considering the statute’s definition of “harassing and intimidating” in the absence of a preponderance of the evidence to show that she followed, placed under surveillance, or contacted Watts. The evidence did show that Owen placed Watts under surveillance, and we disagree with Owen that the trial court either misapplied or misconstrued OCGA § 16-5-90 (a) (1).

       OCGA § 16-5-90 (a) (1).

       Id.

       See Quinby v. Rausch, 300 Ga. App. 424, 426 (685 SE2d 395) (2009) (evidence of stalking included that petitioner’s ex-wife hired a private investigator to follow him).

       See generally Daker v. Williams, 279 Ga. 782, 785 (621 SE2d 449) (2005) (“[T]wo related instances of stalking behavior. . . occurring within the space of a single week. . . evinced a pattern of prohibited behavior criminalized by the [stalking] statutes.”); Harvill v. State, 296 Ga. App. 453, 456 (1) (a) (674 SE2d 659) (2009) (report to police by defendant of an alleged hit-and-run accident was sufficient to show an intent to convey a message to victim with the intent to harass).

       See Pilcher, supra, 282 Ga. at 167 (verbal taunts, which occurred at various times during working hours, were not sufficient to create a reasonable fear for the safety of appellees or their families).

       OCGA § 16-5-90 (a) (1).

       An observer had also reported to Owen that Watts’ daughter had been served with process at Watts’ home.

       See Placanica v. State, 303 Ga. App. 302, 304 (693 SE2d 571) (2010) (“A defendant need not engage in unequivocally hostile conduct or make explicit threats in order to be convicted of stalking”).

       Compare Sinclair v. Daly, 295 Ga. App. 613, 615 (672 SE2d 672) (2009) (petitioner did not testify that defendant’s actions caused him to fear for his safety).

       See, e.g., Hennessey v. State, 282 Ga. App. 857, 860 (640 SE2d 362) (2006) (evidence authorized jury’s verdict for stalking where defendant’s comments were not overtly threatening but his actions were “persistent, disturbing. . . and [he refused] to leave the victim alone”).

        Rawcliffe v. Rawclijfe, 283 Ga. App. 264, 265 (1) (641 SE2d 255) (2007).


author: Miller, Chief Judge.

text:
    A10A1949.
    JOHNSON v. THE STATE.
    (705 SE2d 303)
   Miller, Chief Judge.

Following a jury trial, Kenneth Johnson was convicted of criminal damage to property in the second degree, OCGA § 16-7-23 (a) (1); possession of a knife during the commission of a crime, OCGA § 16-11-106 (b) (2); carrying a concealed weapon, OCGA § 16-11-126 (a); and misdemeanor obstruction of a law enforcement officer, OCGA § 16-10-24 (a). In Johnson v. State, 302 Ga. App. 318, 320-321 (1) (b) (690 SE2d 683) (2010), we reversed Johnson’s conviction for possession of a knife during the commission of a crime. We affirmed his convictions for criminal damage to property in the second degree, carrying a concealed weapon, and misdemeanor obstruction, and remanded the case for resentencing. Id. at 320 (l)-322 (2) (b). Johnson contends on appeal that the trial court’s resentencing was unlawful because it gave rise to harsher punishment. We disagree because the trial court did not impose a more severe sentence on resentencing.

Due process prohibits “the imposition of a more severe sentence as a result of vindictiveness against a defendant for successfully attacking his conviction.” (Citations omitted.) Alvarado v. State, 248 Ga. App. 810, 811 (1) (547 SE2d 616) (2001). See North Carolina v. Pearce, 395 U. S. 711, 725 (II) (C) (89 SC 2072, 23 LE2d 656) (1969). Vindictiveness is presumed if the trial court imposes a harsher punishment on resentencing, “which [presumption] may be overcome only by objective information in the record justifying the increased sentence.” (Citation and punctuation omitted.) Wasman v. United States, 468 U. S. 559, 565 (II) (A) (104 SC 3217, 82 LE2d 424) (1984). Accordingly, the threshold issue is whether Johnson received a harsher punishment on resentencing.

The record shows that the trial court originally sentenced Johnson to an aggregate of ten years imprisonment. The trial court sentenced Johnson to five years incarceration for Count 2, criminal damage to property in the second degree. The trial court sentenced Johnson to five years on Count 3, possession of a knife during the commission of a crime, to be served consecutive to the sentence imposed on Count 2. As to Count 4 and Count 5, the misdemeanor offenses of carrying a concealed weapon and obstruction, the trial court sentenced Johnson to 12 months incarceration concurrent with Count 3.

On remand, the trial court reimposed the five-year sentence on Count 2, vacated the sentence on Count 3, and sentenced Johnson to 12 months confinement on Count 4 to run consecutive to Count 2. The trial court also sentenced Johnson to 12 months confinement on Count 5 to run consecutive to Count 2 and concurrent with Count 4. This resulted in reducing Johnson’s term of confinement from ten years to six years. Johnson nevertheless claims he received an impermissibly harsher sentence because the trial court changed the misdemeanor sentences to require that they be served consecutive to Count 2. We disagree.

Johnson’s original misdemeanor sentences were expressly concurrent with the five-year sentence imposed on Count 3, and the sentence in Count 3 was consecutive to the five-year sentence imposed on Count 2. Thus, a sentence served concurrent with Count 3 would necessarily be served consecutive to Count 2. When the trial court resentenced Johnson to serve five years on Count 2 and made the misdemeanor sentences consecutive to Count 2, it did not increase Johnson’s sentence, either by count or in the aggregate. Rather, the five-year sentence on Count 2 remained the same and the twelve-month sentences on the misdemeanor convictions were required to be served consecutive to the sentence in Count 2, just as in the original sentence. The trial court did not impose harsher punishment on resentencing, and no presumption of vindictiveness arises therefrom. See Fair v. State, 281 Ga. App. 518, 519 (1) (636 SE2d 712) (2006) (“a concurrent sentence may be converted into a consecutive sentence without being considered ‘more severe’ under Pearce”) (punctuation omitted); Alvarado, supra, 248 Ga. App. at 811 (1) (trial court did not impose a harsher sentence where it converted an “existing sentence from a concurrent sentence into a consecutive one without increasing the length of the sentence”); Duffey v. State, 222 Ga. App. 802, 803 (1) (476 SE2d 89) (1996) (same). Compare Adams v. State, 287 Ga. 513, 520 (2) (696 SE2d 676) (2010) (“the Pearce presumption of vindictiveness is not triggered unless the new sentence, in the aggregate, is more severe”). It follows that the judgment on resentencing must be affirmed.

Decided December 20, 2010.

John G. Edwards, for appellant.

Joseph K. Mulholland, District Attorney, for appellee.

Judgment affirmed.

Phipps, P J., and Johnson, J., concur.

       Johnson points out that OCGA § 17-10-10 (a) provides that “sentences shall be served concurrently unless otherwise expressly provided therein.” He argues that because his initial sentence did not specify that the misdemeanor sentences ran consecutive to Count 2 that they were to run concurrently therewith. We reject Johnson’s argument because it is inconsistent with the terms of the original sentence as “expressly provided.” The original sentence required the misdemeanor sentences to be served concurrent with Count 3, not with Count 2.

       Johnson does not attempt to show actual vindictiveness on the part of the trial court. See Texas v. McCullough, 475 U. S. 134,138 (II) (106 SC 976, 89 LE2d 104) (1986) (“Where the prophylactic rule of Pearce does not apply, the defendant may still obtain relief if he can show actual vindictiveness upon resentencing”) (citation omitted).


author: PHIPPS, Presiding Judge.

text:
    A10A1621.
    NORTON v. BUDGET RENT A CAR SYSTEM, INC.
    (705 SE2d 305)
   PHIPPS, Presiding Judge.

Ouida Lee Norton was sued by Budget Rent A Car System, Inc. because of damage sustained by a truck she rented from that company. In this interlocutory appeal, Norton contests the denial of her motion for summary judgment. We review the denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. For reasons that follow, we reverse.

On Saturday, May 19, 2007, Norton rented a truck from Budget to transport her belongings from her former residence to her new one. Several of her friends, including Robert McKelvey and his wife, helped her move. Norton and her friends finished unloading the truck late that evening, and the McKelveys offered to return the truck to Budget because it was along their route home. Between 9:30 and 10:00 p.m., the McKelveys left Norton’s new residence, heading for Budget, which was only a few blocks away.

Norton filed affidavits by McKelvey and his wife to show what happened next. McKelvey, following his wife who was driving their car, drove the truck without incident to the Budget rental lot, where he parked the truck, secured its windows, and locked its doors. Because the rental office was closed, McKelvey placed the truck keys in the key drop box located outside the office. When the McKelveys left the rental lot in their car at approximately 10:05 p.m., the truck was undamaged.

It is undisputed that the following Monday morning, the rental office manager called Norton and informed her that the truck had not been properly returned, that it had been wrecked over the weekend, and that she was responsible for the damage. Norton immediately went to the rental office, where personnel there insisted she was responsible for the damage to the truck. Upon Norton’s request, the police arrived. According to a document, which both Norton and Budget claim is the police report: the police investigated a “theft by taking” of the truck from Budget’s place of business; Budget’s personnel subsequently received notification that the vehicle had been wrecked in a collision and towed to a salvage yard; no security or surveillance footage was available; and no suspect information was obtained.

To recover for the damage to the truck, costs incurred for towing and storing the wrecked truck, loss of its use, and associated administrative fees, Budget sued Norton on a theory of breach of contract. Budget alleged that Norton had breached the rental agreement by allowing McKelvey, who was not an authorized driver under the agreement, to drive the truck. Budget pointed to a provision of the rental agreement that, “subject to any limitations imposed by applicable law,” placed responsibility for damage resulting from collision or theft on a renter who “violate[s] any prohibition on use of the vehicle stated in [the] agreement [or] violate [s] any other material provision of [the] agreement.”

Norton denied that she could be held liable for damages in connection with what happened to the truck after it was returned to Budget. “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” In seeking summary judgment, Norton attacked the “resultant damages” element. In so doing, she cited OCGA §§ 13-6-1 and 13-6-2, which provide respectively that “[d]amages are given as compensation for the injury sustained as a result of the breach of a contract” and that “[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.”

We agree with Norton that she was entitled to summary judgment. Budget admitted that customers were not responsible for damage to rented vehicles that occurred after vehicles were returned to its possession. Budget further admitted that it would have been consistent with its own policies and procedures for a customer to return a rented vehicle to its premises and leave the keys in the key drop box. And, Budget admitted that it had provided a key drop box so that rented vehicles could be returned to its premises after hours. Moreover, Budget offered no evidence to contradict Norton’s evidence that McKelvey returned the truck undamaged to Budget’s rental lot, locked its windows and doors, and placed the keys in the drop box. While McKelvey may have been an unauthorized driver, Budget failed to show that the damages it sought to recover from Norton resulted from McKelvey’s unauthorized driving of the rented vehicle. As Norton maintains on appeal, when the truck was so returned to Budget’s premises, her responsibilities for safekeeping the vehicle from subsequent theft and wreckage terminated — even though not expressly stated in the rental agreement.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmo-vant’s favor, warrant judgment as a matter of law. A defendant who will not bear the burden of proof at trial need only show an absence of evidence to support an essential element of the nonmoving party’s case. [Where, as here,] the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Because Budget failed to adduce any such evidence on the attacked element — that the damages resulted from the alleged breach, summary judgment should have been granted to Norton.

Decided December 22, 2010.

Bouhan, Williams & Levy, Roy E. Paul, for appellant.

Sherwin P. Robin, for appellee.

Judgment reversed.

Miller, C. J., and Johnson, J., concur.

        Talbot County Bd. of Commrs. v. Woodall, 275 Ga. 281 (1) (565 SE2d 465) (2002).

       Language quoted here from the rental agreement was typed in all bold-face, capital letters.

        Kuritzky v. Emory Univ., 294 Ga. App. 370, 371 (1) (669 SE2d 179) (2008) (citation omitted); see Budget Rent-A-Car &c. v. Webb, 220 Ga. App. 278, 279 (1) (469 SE2d 712) (1996) (“The elements of a right to recover for a breach of contract are the breach and the resultant damages to the party who has the right to complain about the contract being broken.”) (punctuation omitted; emphasis supplied).

       (Emphasis supplied.)

       (Emphasis supplied.)

       See Simmons v. Boros, 176 Ga. App. 346, 347 (1) (335 SE2d 662) (1985) (damages for breach of contract “must be such as can be traced solely to the breach, must be capable of exact computation, must have arisen naturally and according to the usual course of things from such breach, and must be such as the parties contemplated as a probable result of the breach”), affd, 255 Ga. 524 (341 SE2d 2) (1986). Compare Gist v. Ferguson Constr. Co., 197 Ga. App. 625, 626-627 (1) (398 SE2d 862) (1990) (evidence was presented authorizing finding that defendant was hable for damages on breach of contract theory); Budget Rent-A-Car, supra at 279-280 (1) (where evidence showed that renter was contractually required to return the vehicle in the same good condition, but he did not because he fell asleep while driving it at 65 mph and thereupon wrecked it, there was liability for damages arising from a breach of the rental agreement).

       See generally Ellis v. Brookwood Park Venture, 161 Ga. App. 242, 243 (288 SE2d 308) (1982) (implicit contractual provision exists “where such provision is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it”).

        Latson v. Boaz, 278 Ga. 113-114 (598 SE2d 485) (2004) (citations and punctuation omitted).

       See id.


author: ANDREWS, Presiding Judge.

text:
    A10A1839.
    EFFINGHAM COUNTY et al. v. RHODES.
    (705 SE2d 856)
   ANDREWS, Presiding Judge.

We granted Effingham County and County Commissioner Myra Lewis’s petition for interlocutory review of the trial court’s order denying their motion for summary judgment on sovereign immunity grounds. For the following reasons, we reverse.

Deborah Rhodes sued the County and Lewis, the chairperson of the Board of County Commissioners, after the car she was driving “hit a hole measuring approximately three feet in length.” The complaint alleges that defendant Savannah River Utility “was responsible for the hole in the roadway,” and each defendant was negligent for failing to maintain and repair the roadway and/or for failing to warn of a known hazard.

The County and Lewis moved for summary judgment on the basis that they were immune from suit, and the trial court denied the motion. This appeal followed.

Summary judgment is proper when the evidence, construed in the nonmovant’s favor, shows that no issue of material fact remains and the movant is entitled to judgment as a matter of law. A defendant may prevail on summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. The trial court erred in not granting the County’s motion for summary judgment because there is no evidence that the County waived its sovereign immunity. “The doctrine of sovereign immunity protects governments from legal action unless they have waived their immunity from suit. The immunity, at least for counties, may only be waived by a legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.” (Punctuation omitted.) Williams v. Whitfield County, 289 Ga. App. 301, 302 (656 SE2d 584) (2008).

In her response to the motion for summary judgment, Rhodes cites to OCGA § 36-92-2 for the proposition that the sovereign immunity of local government entities is waived up to specified limits for claims arising out of the “use of a covered motor vehicle.” But, there is no evidence in the record that a county vehicle, motor or otherwise, caused the hole. The record shows only Rhodes’s allegation that “the hole in the road was caused by county utilities being installed under and around the area.” Rhodes claims that because county vehicles were used to install the utilities, the county’s purchase of liability insurance waives its sovereign immunity under OCGA § 33-24-51. But unsupported allegations in pleadings and briefs are not evidence, and the record shows no evidence of any kind as to who or what caused the hole in the road, much less that it was caused by a county-owned motor vehicle. “[M]ere speculation as to what might have caused the incident [is] insufficient to . . . withstand summary judgment.” (Punctuation omitted.) Johnson u. Dept, of Transp., 245 Ga. App. 839, 841 (538 SE2d 879) (2000).

Finally, and most importantly, Rhodes misapprehends the burden of proof in establishing waiver. She contends that the County was required to establish “that the defective road condition was not caused by use of [its] motor vehicle.”

Sovereign immunity is not an affirmative defense . . . that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver. Thus, [Rhodes], not the defendants, had the burden of establishing that the county had waived sovereign immunity by purchasing liability insurance protection covering [her] claim.

(Punctuation and footnotes omitted.) Spalding County v. Blanchard, 275 Ga. App. 448, 449 (620 SE2d 659) (2005).

Rhodes has failed to submit evidence of any kind on this issue and therefore has failed to establish that the County waived sovereign immunity. Therefore, the trial court erred in denying the County’s motion for summary judgment.

2. The trial court erred in not granting summary judgment to Lewis in her official capacity. Rhodes sued Lewis individually, and in her official capacity, alleging that she had been “negligent in failing to maintain the roadway in a safe condition, failing to warn approaching motorists of the hazard, negligently allowing the hazard to exist on the roadway and failing to fix a known hazard on the roadway.” Rhodes’s argument below as to how Lewis may be liable in her official capacity is difficult to discern, and fails in any event because of our holding in Division 1 that the County is entitled to sovereign immunity.

A suit against Lewis in her official capacity is, in essence, a claim against the County, and Lewis may raise any defense available to the County, including sovereign immunity. Gilbert v. Richardson, 264 Ga. 744, 746 (452 SE2d 476) (1994). As previously stated, “[sovereign immunity is not an affirmative defense that must be established by the party seeking it's protection. Instead, immunity from suit is a privilege and the waiver must be established by the party seeking to benefit from the waiver.” Banks v. Happoldt, 271 Ga. App. 146, 148 (608 SE2d 741) (2004). Here, Rhodes “advance[s] no argument nor make[s] any showing that an Act of the General Assembly specifically waived the sovereign immunity protecting [Lewis in her official capacity].” Id. at 148.

3. The trial court erred in not granting summary judgment to Lewis in her individual capacity.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight. Thus, damage suits are maintainable in this state against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office.

(Citation and punctuation omitted.) Banks, supra at 148.

The difference between ministerial and discretionary acts has been explained as follows:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

Banks, supra at 149.

Again, there is no evidence in the record of any procedures or instructions with regard to road maintenance or repair. “Absent such applicable standards, [Rhodes] cannot establish that the defendant[’s] actions were ministerial — namely, that the procedures or instructions were so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.” (Punctuation omitted.) Banks, supra at 150. Further, this Court has already held that a county commissioner cannot be liable for “deciding when and how to work on roads[,] because such a decision [is] discretionary.” Hennessy v. Webb, 245 Ga. 329, 331 (264 SE2d 878) (1980). See also Banks, supra at 153 (defendants entitled to summary judgment on all claims against them in their individual capacities because no evidence of established procedure directing road repair); Brown v. Taylor, 266 Ga. App. 176,177 (596 SE2d 403) (2004) (absent a formal or written policy regarding road maintenance, county employees’ duty to repair six-inch drop at road shoulder due to broken pavement was discretionary); Standard v. Hobbs, 263 Ga. App. 873, 876 (1) (589 SE2d 634) (2003) (action is ministerial only if county creates policy requiring certain actions under certain situations); Norris v. Emanuel County, 254 Ga. App. 114, 118-119 (561 SE2d 240) (2002) (decision on road repair was discretionary); Kordares v. Gwinnett County, 220 Ga. App. 848, 851 (470 SE2d 479) (1996) (absent county procedure dictating the method of inspection, road official’s alleged negligent inspection was discretionary).

Accordingly, for all of the reasons set out above, Lewis was entitled to official immunity for the claims brought against her in her individual capacity. It follows that the trial court erred in denying her motion for summary judgment on those grounds.

Decided December 28, 2010.

Oliver Maner, Benjamin M. Perkins, for appellants.

Donaldson & Donaldson, Jeffrey C. Donaldson, Ellis, Painter, Ratterree & Adams, Ryburn C. Ratterree, John P Connell, Brannan, Searcey & Smith, David R. Smith, for appellee.

Judgment reversed.

Ellington and Doyle, JJ., concur.

       Rhodes also sued Savannah River Utility and Stevenson and Palmer Engineering, Inc., but neither of these defendants is a party to this appeal.

       See Jones v. City of Willacoochee, 299 Ga. App. 741, 742 (683 SE2d 683) (2009) (allegations in complaint and opposition brief were not evidence for purposes of summary judgment resolution); Wright v. Millines, 217 Ga. App. 464, 466 (458 SE2d 488) (1995) (allegations in pleadings are not evidence).

       Rhodes did not file a brief on appeal.


text:
    A10A1863.
    THE STATE v. BETHEL.
    (705 SE2d 860)
   ANDREWS, Presiding Judge.

The State appeals from the trial court’s order granting Terrance Bethel’s motion to suppress marijuana found in his car after a traffic stop. The trial court granted the motion to suppress after holding that the police officer was outside his jurisdiction when he made the traffic stop. The law is clear, however, that an officer may arrest a person violating any law concerning the operation of a vehicle, regardless of territorial limitations, provided the offense occurs in the officer’s presence. Accordingly, the trial court erred in granting Bethel’s motion to suppress.

The record shows that Officer Turner, a Tallapoosa city police officer, was parked in the median of 1-20 observing traffic traveling westbound on the interstate. Turner stopped Bethel’s car after he saw Bethel make an improper lane change in front of a tractor-trailer. Bethel was extremely nervous and smelled of alcohol. Turner gave Bethel an alco-sensor test which was negative, and then asked Bethel if he could search his car. Turner said the car smelled so strongly of alcohol that he thought Bethel had thrown an open container under the seat. Bethel consented to the search, and Turner found marijuana in Bethel’s trunk.

Turner filed a motion to suppress the marijuana, claiming that the stop was made without articulable suspicion, that his consent was not voluntarily given, that the consent was the result of an unlawful extension of the initial stop, and that the officer was outside his jurisdiction when he made the traffic stop. The court granted the motion on the basis of Bethel’s argument that the officer was outside his jurisdiction and therefore was without legal authority to stop him. The State now appeals.

Where, as here, the issue turns on the question of whether a trial court committed an error of law in granting a motion to suppress, we apply a de novo standard of review. State v. Tan, 305 Ga. App. 55, 56 (699 SE2d 74) (2010).

The record shows that Turner acknowledged that he was not sure of the exact location of the Tallapoosa city limits sign, but thought that he was parked within the city limits. Two other witnesses also testified as to their opinion of where the city limits ended. The trial court held that the State failed to prove that Turner was patrolling within the city limits or that the traffic offense occurred within the city limits.

Bethel points to OCGA § 40-13-30 as authority for his contention that Turner was without authority to arrest him. That Code section provides:

Officers of the Georgia State Patrol and any other officer of this state or of any county or municipality thereof having authority to arrest for a criminal offense of the grade of misdemeanor shall have authority to prefer charges and bring offenders to trial under this article, provided that officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality unless such jurisdiction is given by local or other law.

OCGA § 40-13-30.

The legislature carved out an exception to this Code section, however, when it passed OCGA § 17-4-23:

A law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation, licensing, registration, maintenance, or inspection of motor vehicles by the issuance of a citation, provided the offense is committed in his presence or information constituting a basis for arrest concerning the operation of a motor vehicle was received by the arresting officer from a law enforcement officer observing the offense being committed, except that, where the offense results in an accident, an investigating officer may issue citations regardless of whether the offense occurred in the presence of a law enforcement officer. . . .

OCGA § 17-4-23 (a).

Decided December 28, 2010.

Robert E. Brooks, Jr., District Attorney, Bryan R. Howard, Assistant District Attorney, for appellant.

Oliver J. Browning, Jr., for appellee.

In interpreting these Code sections, this Court has held that

[a]s a general rule, a municipal police officer is authorized to investigate crimes and/or arrest suspects only for those infractions that occur within that officer’s territorial jurisdiction. We have held, however, that an officer has authority to arrest a person accused of violating any law or ordinance governing the operation of a vehicle . . . where the offense is committed in his presence regardless of territorial limitations.

(Punctuation omitted.) Griffis v. State, 295 Ga. App. 903, 904 (673 SE2d 348) (2009). In Griffis, we held that an off-duty officer, outside his territorial jurisdiction, was authorized to arrest the defendant for traffic offenses committed in the officer’s presence. Id.

The trial court distinguished Griffis, pointing out that, unlike Turner, the officer in Griffis was off duty when he saw the defendant commit the offenses.

This distinction does not appear to be warranted by the language of the statute or the holdings of the cases. See State v. Heredia, 252 Ga. App. 89, 90 (555 SE2d 91) (2001) (holding that officer was authorized to arrest for traffic offenses and DUI outside his jurisdiction and reversing the trial court for too narrowly construing the exception to peace officers’ territorial jurisdiction). See also Duprel v. State, 301 Ga. App. 469, 475 (687 SE2d 863) (2009) (on-duty officer had authority to arrest outside his jurisdiction when he saw defendant operating a motorcycle after admitting to drinking).

Accordingly, we conclude that Turner had authority to arrest Bethel when he saw him commit a traffic violation, even though Turner was outside his jurisdiction. Therefore, the trial court erred in granting Bethel’s motion to suppress the marijuana.

Judgment reversed.

Ellington and Doyle, JJ., concur.

       The court rejected Bethel’s remaining contentions.


text:
    A10A1812.
    A10A1991.
    CNL APF PARTNERS, LP et al. v. DEPARTMENT OF TRANSPORTATION. RCI REALTY, LLC et al. v. DEPARTMENT OF TRANSPORTATION.
    (705 SE2d 862)
   PHIPPS, Presiding Judge.

The Georgia Department of Transportation (DOT) instituted proceedings to condemn real property on which a restaurant stood. The condemnation constituted a total taking of the property, and the condemnees sought a jury trial on their fair and adequate compensation for the taking. We granted this interlocutory review of the trial court’s rulings on several pre-trial motions.

In Case No. A10A1812, condemnee CNL APF Partners, LP (CNL) appeals the trial court’s denial of its motion for partial summary judgment, its motion to strike the DOT’s brief in opposition to partial summary judgment, and its motion in limine to exclude evidence. For reasons that follow, we vacate the court’s ruling on the partial summary judgment motion and remand for further proceedings not inconsistent herewith; we affirm the court’s ruling on the motion to strike; and we reverse the court’s ruling on the motion in limine.

In Case No. A10A1991, condemnees RCI Realty, LLC (RCI) and Restaurant Concepts II, LLC (Restaurant Concepts) appeal the court’s denial of their several motions in limine to exclude evidence. For reasons that follow, we affirm the denial of their motions to exclude evidence of certain of the condemnees’ prior knowledge of the potential condemnation, evidence of a 2003 letter from Restaurant Concepts’s counsel to an appraiser, and evidence of rent that RCI had charged Restaurant Concepts for use of the property. We reverse the denial of the motions to exclude evidence of funds that the DOT placed in the court registry when it petitioned for condemnation, and evidence of the cause of a fire that damaged the restaurant on the property prior to the condemnation.

The record shows that in December 2004, CNL purchased from RCI the property at issue, on which the restaurant was operating. CNL leased the property back to RCI under a lease agreement dated December 30, 2004. RCI in turn subleased the property to a related entity, Restaurant Concepts, which continued to operate the restaurant.

On January 9, 2006, the restaurant was damaged in a fire. The restaurant ceased operating after the fire, but RCI continued to pay CNL rent on the property pursuant to the parties’ lease agreement. RCI filed an insurance claim and obtained estimates for restoring the restaurant so it could reopen, but it did not restore or reopen the restaurant.

On March 23, 2006, the DOT petitioned to condemn the property and deposited into the court registry its estimate of the property’s value. On April 20, 2006, RCI exercised a contractual option to terminate its lease with CNL on account of the condemnation. Subsequently, the insurance carrier paid a claim relating to the restaurant fire.

Case No. A10A1812

1. CNL sought a partial summary judgment on the issue of RCI’s contractual obligations under the December 30, 2004 lease between those parties. Specifically, CNL sought a ruling on RCI’s obligations, at the time of the taking, to continue paying CNL rent on the property and to restore and repair the restaurant. The trial court denied CNL’s motion. We agree with CNL that this ruling was error.

The court determined that it had no jurisdiction to decide the issue because a ruling thereon would amount to an advisory opinion. But the ruling sought in the motion was not advisory — it concerned the condemnees’ legally compensable interests in property that was the subject of the pending condemnation proceeding. The court had jurisdiction over the motion for partial summary judgment filed in the condemnation action pending before it.

The court also determined that a ruling on the issue raised in the motion for partial summary judgment would invade the province of the jury. But the construction of a contract is a matter of law for the court so long as the contract is unambiguous. This general rule of contract interpretation has been applied to the construction of a lease in a condemnation action. Thus, the construction of the lease in this case would require jury resolution only if the lease contained an ambiguity that could not be resolved by applying the pertinent rules of contract construction. The trial court did not conduct this contract analysis.

We decline to affirm the denial of partial summary judgment under the “right for any reason” rule. In the proceeding below, neither the trial court nor the DOT addressed the merits of the sole argument made by CNL in support of its motion for partial summary judgment, and no considerations of judicial economy apply given the procedural posture of this case.

Accordingly, we vacate the order denying the motion for partial summary judgment and remand to the trial court for further proceedings not inconsistent herewith.

2. CNL contends that the trial court erred in denying its motion to strike as untimely filed the DOT’s brief in opposition to summary judgment. The record shows that the DOT filed its brief more than 30 days after the service of CNL’s motion, in violation of Uniform Superior Court Rule 6.2. But the effect of an untimely response to a motion for summary judgment is the loss of the responding party’s right to present evidence in opposition to the motion. The DOT did not attempt to present evidence opposing CNL’s motion, but instead used its brief solely to present legal argument. Under these circumstances, we find no abuse of discretion in the trial court’s decision not to strike the DOT’s brief, and we affirm that ruling.

3. CNL contends that the trial court erred in denying its motion in limine. “A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. Irrelevant evidence that does not bear directly or indirectly on the questions being tried should be excluded.” We review the court’s ruling on a motion in limine for abuse of discretion.

CNL sought in its motion to exclude evidence of its entitlement to statutory pre-judgment interest under OCGA § 32-3-19. That Code section concerns the acquisition of property for transportation purposes and provides in pertinent part that, after a jury enters a verdict in a condemnation proceeding, the court shall enter judgment in favor of the condemnee in the amount of the jury verdict, together with accrued court costs. Subject to certain limitations specified in the Code section,

[a]fter just and adequate compensation has been ascertained and established by judgment, the judgment shall include, as part of the just and adequate compensation awarded, interest from the date of taking to the date of payment pursuant to final judgment at the rate of 7 percent per annum on the amount awarded by final judgment as the value of the property as of the date of taking.

Under this statutory framework, the amount of pre-judgment interest due a condemnee is determined after the jury enters its verdict. As the trial court acknowledged in its order, “all parties are in agreement that pre-judgment interest . . . should not be considered by the jury in making its award.” Accordingly, the evidence regarding pre-judgment interest that CNL sought to exclude through its motion in limine was not relevant to the issue to be decided by the jury. Nevertheless, the court denied the motion to exclude this irrelevant evidence, stating in an order prepared and presented to it by the DOT’s counsel that the

best way to insure that this matter does not creep into the jury’s deliberation, either consciously or subconsciously, is for the Court to explain to the jury that it is the obligation of the Court to add pre-judgment interest to any award where applicable and the jury should not consider the matter.

The court further noted its intent to instruct the jury not to consider pre-judgment interest.

That the court can later instruct the jury to disregard irrelevant evidence is not a reason to allow the jury to hear the irrelevant evidence. The court erred in denying CNL’s motion to exclude the irrelevant evidence. We reverse the denial of CNL’s motion in limine.

Case No. A10A1991

4. RCI and Restaurant Concepts argue that the court erred in denying their motions in limine to exclude certain evidence. As discussed above, the trial court should exclude evidence that does not bear directly or indirectly on the question being tried. “[T]he sole issue to be determined in a condemnation matter is the just and adequate compensation due for property taken.” In the case of a total taking, as here, the just and adequate compensation generally is determined by the fair market value of the condemned property at the time of the taking. “As the lessee[s] of the condemned premises . . . , [RCI and Restaurant Concepts] would be entitled to just and adequate compensation for the value, if any, of [their] leasehold.” When a leasehold is condemned, the lessee loses the use of the property for a specified time at a set amount of rent. The property owner (lessor) loses the value of the improved property. Courts should be “liberal in allowing matters to be considered by the jury which might affect [the jurors’] collective minds in determining the just and adequate compensation to be paid the condemnee.”

(a) RCI and Restaurant Concepts moved to exclude evidence concerning funds, representing an estimate of the property’s value, that the DOT had deposited into the court registry upon filing its condemnation petition. This Court held in Dept, of Transp. v. Gunnels that evidence of the amount of funds deposited with the court at the time of the taking in a condemnation proceeding should not be admitted, because the jury must consider de novo the question of compensation. In denying the motion in limine in this case, the trial court held that Gunnels did not preclude evidence of the fact that the DOT made a deposit of funds. We do not view Gunnels as so holding.

Because the trial court’s denial of the motion in limine to exclude this evidence was error, we reverse that ruling.

(b) RCI and Restaurant Concepts moved to exclude evidence of the cause of the fire that damaged the restaurant, on the ground that such evidence was not relevant to their just and adequate compensation and that speculation concerning the cause of the fire would be prejudicial to them. The DOT countered that uncertainty about the cause of the fire had affected the availability of insurance to restore the restaurant, which in turn had affected the property’s market value at the time of the taking. The court denied the motion on this ground.

“The admission of evidence of factors which may reasonably influence a prospective purchaser’s decision is a matter within the discretion of the trial court.” The record contains some evidence that the availability of insurance was not yet settled at the time of the taking. We agree with the DOT that evidence of uncertainty concerning insurance coverage could reasonably influence a prospective purchaser’s decision, and thus is relevant to the issue of the condemnees’ just and adequate compensation. But we agree with RCI and Restaurant Concepts that evidence concerning the reasons giving rise to the uncertainty in insurance coverage (i.e., the cause of the fire), as opposed to the fact of uncertainty, was not relevant to the issue of just and adequate compensation. Under these circumstances, we find that the trial court abused its discretion in denying the motion to exclude evidence concerning the cause of the restaurant fire, and we reverse that ruling.

(c) RCI and Restaurant Concepts moved to exclude evidence that RCI and CNL knew of the possible condemnation when RCI sold the property to CNL in 2004. The trial court denied the motion. It found that RCI and CNL’s knowledge of the possible condemnation was relevant to whether the 2004 sale of the property was a bona fide, arm’s length transaction, which in turn was relevant to whether the 2004 sale price could be used to determine the property’s market value at the time of the taking.

RCI and Restaurant Concepts point to City of Atlanta v. West, in which we held that evidence that a condemnee took certain action with knowledge of an impending condemnation was properly excluded from jury consideration because it did not concern the property’s fair market value at the time of the taking, even if the action was allegedly taken for the sole purpose of increasing the condemnee’s damages upon condemnation. Unlike in West, however, the DOT in this case seeks to use evidence of RCI and CNL’s knowledge of a possible condemnation to discredit the condemnees’ estimate of the property’s market value at the time of the taking, by challenging the use of the 2004 sale as a factor in reaching that estimate. Used in this way, the evidence of RCI and CNL’s knowledge of a possible condemnation would bear, at least indirectly, on the question of the just and adequate compensation due the con-demnees. Accordingly, the court’s denial of the motion in limine to exclude this evidence was not an abuse of discretion, and we affirm that ruling.

(d) RCI and Restaurant Concepts moved to exclude evidence of what they characterize as a pre-condemnation offer of compromise contained in a letter. The November 2003 letter was sent by Restaurant Concepts’s counsel to an appraisal firm hired by the DOT to value the property. It enclosed a business valuation of the restaurant that Restaurant Concepts had obtained; based on the valuation, counsel argued in the letter for a “change in the [DOT’s] condemnation plans” given the restaurant’s profitability, and expressed the expectation that the condemnees would be “compensated for the full replacement value which would include the real estate value and the business value of the enterprise.” Counsel concluded by asking for information “associated with the timing in connection with this transaction” so that Restaurant Concepts could make arrangements for its affected employees if condemnation occurred. The trial court held that this letter was not an offer to compromise and that the valuation contained therein was an admission against the condemnees’ interest; thus, it denied the motion in limine.

OCGA § 24-3-37 provides that admissions or propositions made with a view to a compromise are inadmissible. “The purpose of this Code section is to encourage settlements and protect parties who freely engage in negotiations directed toward resolution of lawsuits.” But “[w]hen construing OCGA § 24-3-37 an important distinction has been noted between an offer or proposition to compromise a doubtful or disputed claim, and an offer to settle upon certain terms a claim that is unquestioned.” The latter is admissible, while the former is not.

The trial court did not err in concluding that the November 2003 letter, which was sent to an appraiser and not to the DOT, was not an inadmissible offer of compromise under OCGA § 24-3-37. No condemnation proceeding was pending when it was sent; the terms of the letter sought to persuade against the condemnation of the property, or, alternatively, to ensure that Restaurant Concepts would receive the full amount that it believed would be its just and adequate compensation should condemnation occur; and the letter did not propose a compromise of that amount.

Citing Dept. ofTransp. v. Wright, RCI and Restaurant Concepts contend that their motion to exclude the November 2003 letter nevertheless should have been granted, because the statements in the letter were too remote in time to be admissible as statements against their interest regarding the March 2006 taking. Wright stated that

with regard to admissibility of the statements by an owner of the value of his property as an admission against interest, the rule appears to be that a statement of value by the owner, to be competent as an admission, must have been made sufficiently near in time to the date of the taking to be reasonably helpful to the jury, and much must be left to the discretion of the trial court in determining whether the time was too remote or the conditions too dissimilar to make the evidence available.

Decided December 30, 2010.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Charles L. Ruffin, Ivy N. Cadle, for appellants (case no. A10A1812).

Pursley, Lowery & Meeks, Charles N. Pursley, Jr., for appellants (case no. A10A1991).

Thurhert E. Baker, Attorney General, Capers, Dunbar, Sanders, Bruckner & Bellotti, Paul H. Dunbar III, Ziva P. Bruckner, for appellee.

RCI and Restaurant Concepts contend that the passage of more than two years between the statements concerning value in the letter and the date of the taking rendered the trial court’s admission of these statements an abuse of discretion. But in discussing the trial court’s discretion in determining whether the passage of time rendered a statement too remote to be admissible, the court in Wright stressed that “[n]o hard and fast rule can be laid down.” And RCI and Restaurant Concepts have not pointed to any evidence that the market conditions were dissimilar in 2003 and 2006. Under these circumstances, we find no abuse of discretion and affirm the court’s denial of the motion in limine regarding this evidence.

(e) RCI and Restaurant Concepts moved to exclude evidence of the rent RCI charged Restaurant Concepts for its use of the property before it sold the property to CNL in 2004. The DOT argued that this evidence was admissible to show that the rent CNL later charged RCI did not reflect the fair market rent of the property at the time of the taking. Used in this manner, the evidence bears upon the property’s market value, and we find no abuse of discretion in the court’s denial of the motion to exclude this evidence. We affirm the court’s ruling thereon.

Judgment affirmed in part, reversed in part and vacated in part, and case remanded with direction in Case No. A10A1812. Judgment affirmed in part and reversed in part in Case No. A10A1991.

Miller, C. J., and Johnson, J., concur.

       See Ga. Const, of 1983, Art. I, Sec. Ill, Par. I (a) (except as otherwise provided therein, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid); OCGA § 32-3-16 (a) (providing for jury trial on value of property or interest taken).

       See generally MARTA v. Funk, 263 Ga. 385, 387 (435 SE2d 196) (1993) (discussing impact of contractual rent obligations in determining leaseholder’s legally compensable interest in condemned property).

       See OCGA § 9-11-56 (b), (d) (party against whom claim is asserted may, at any time, move for summary judgment as to all or any part thereof; if, on such motion, judgment is not rendered upon the whole case, the court shall, if practicable, ascertain what material facts exist without substantial controversy and shall make an order specifying such facts; upon subsequent trial of the action, such facts shall be deemed established). See also Walker v. Dept, of Transp., 279 Ga. App. 287, 288 (1) (630 SE2d 878) (2006) (“We apply a de novo standard of review to purely legal questions such as whether a trial court has jurisdiction over a matter.”) (citation and footnote omitted).

        U. S. Enterprises v. Mikado Custom Tailors, 250 Ga. 415, 416 (297 SE2d 290) (1982).

       See Cann v. MARTA, 196 Ga. App. 495, 496 (1) (396 SE2d 515) (1990).

       See U. S. Enterprises, supra.

       See generally City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002).

        Ackerman & Co. v. Lostocco, 216 Ga. App. 242, 244 (1) (454 SE2d 792) (1995).

       See id.; see also Cogland v. Hosp. Auth. &c., 290 Ga. App. 73, 74 (1) (658 SE2d 769) (2008) (applying abuse of discretion standard of review to ruling on motion to strike as untimely a brief filed in opposition to a motion to dismiss).

        Gwinnett County v. Howington, 280 Ga. App. 347 (634 SE2d 157) (2006) (citations and punctuation omitted); see OCGA § 24-2-1.

       See Forsyth County v. Martin, 279 Ga. 215, 221 (3) (610 SE2d 512) (2005).

       OCGA § 32-3-19 (b).

       OCGA § 32-3-19 (c).

       OCGA § 32-3-19 (b), (c).

       See generally City of Atlanta v. Landmark Environmental Indus., 272 Ga. App. 732, 741 (5) (613 SE2d 131) (2005) (pre-judgment interest is not a component of the just and adequate compensation due a condemnee under the Georgia Constitution).

       Because the evidence of pre-judgment interest was not relevant to a jury issue, we find inapposite the general rule pointed to by the DOT, which favors the admission of any relevant evidence, no matter how slight its probative value. See Ford Motor Co. v. Reese, 300 Ga. App. 82, 91 (4) (684 SE2d 279) (2009).

       We take this opportunity to reiterate that the practice of a trial court adopting orders prepared and presented by counsel is greatly disfavored by this Court. See Richardson v. Barber, 241 Ga. App. 254, 255 (1) (527 SE2d 8) (1999).

       The propriety of a jury instruction discussing pre-judgment interest is not an issue before us on appeal, as no such instruction has been requested or given at this stage of the proceedings.

       See Housing Auth. &c. v. Younis, 279 Ga. App. 599, 601 (631 SE2d 802) (2006) (where there was no circumstance under which the evidence at issue was likely to be admissible in condemnation case, trial court erred in denying motion in limine to exclude it).

       See Division 3, supra.

       See OCGA § 24-2-1; Gwinnett County, supra.

        Collins & Assoc, v. Henry County &c. Auth., 290 Ga. App. 782, 783 (1) (661 SE2d 568) (2008) (footnote omitted).

       See Dept, of Transp. v. Petkas, 189 Ga. App. 633, 638 (5) (377 SE2d 166) (1988). See generally Fulton County v. Funk, 266 Ga. 64, 66 (463 SE2d 883) (1995).

        MARTA v. Funk, supra at 387.

       Id.

       Id.

        Dept, of Transp. v. Southeast Timberlands, 263 Ga. App. 805, 808 (2) (a) (589 SE2d 575) (2003) (punctuation and footnote omitted).

       175 Ga. App. 632 (334 SE2d 197) (1985), rev’d on other grounds, 255 Ga. 495 (340 SE2d 12) (1986).

        Gunnels, supra at 636 (4).

       See id. at 636 (5) (both the fact of the DOT’s initial estimate and its payment of the estimated amount into court registry were irrelevant to any issue before the jury).

       See Younis, supra; Gunnels, supra.

        Dept. ofTransp. v. Aeree Oil Co., 266 Ga. 336, 337 (2) (467 SE2d 319) (1996) (citation omitted).

       See Younis, supra.

       123 Ga. App. 255 (180 SE2d 277) (1971).

       Id. at 256-257 (1).

       See generally Rescigno v. Vesali, 306 Ga. App. 610, 613 (2) (703 SE2d 65) (2010) (impeaching evidence was relevant to case and thus court’s denial of motion in limine to exclude evidence was not error).

       See id.

        Bounds v. Coventry Green Homeowners’ Assn., 268 Ga. App. 69, 72 (2) (601 SE2d 440) (2004) (punctuation and footnote omitted).

        Nevitt v. CMD Realty Investment Fund IV, L.P., 282 Ga. App. 533, 535 (1) (a) (639 SE2d 336) (2006) (punctuation and footnote omitted).

       Id.

       Compare Dept. ofTransp. v. A. R. C. Security, 189 Ga. App. 34, 38 (4) (375 SE2d 42) (1988) (contact between condemnee and condemnor in which latter announced price it had determined to pay was not an offer to compromise) with DeKalb County v. Daniels, 174 Ga. App. 319, 320-321 (4) (329 SE2d 620) (1985) (letter proposing to “settle” a claim that county disputed constituted an offer of compromise).

       169 Ga. App. 332 (312 SE2d 824) (1983).

       Id. at 335 (1) (citation, punctuation and emphasis omitted).

       Id. (citations and punctuation omitted).

       Compare id. (citing evidence that, during the two-year period between a party’s statements of value and the date of the taking, there was great fluctuation in the land market at issue, and evidence that, in the six months immediately prior to the taking, the subject property’s value had increased approximately 37 percent).

       See Chouinard v. City of East Point, 237 Ga. App. 266, 268 (2) (514 SE2d 220) (1999) (the amount of rent paid to lease property may be considered in determining the property’s value at the time of the taking).

       See generally Rescigno, supra.