author: Smith, Presiding Judge.

text:
    A11A0728.
    CROSSING PARK PROPERTIES, LLC et al. v. ARCHER CAPITAL FUND, L.P. et al.
    (715 SE2d 444)
   Smith, Presiding Judge.

Crossing Park Properties, LLC, Glen H. Hammer and Joan F. Hammer appeal from the trial court’s grant of summary judgment in favor of Archer Capital Fund, L.P (“Archer”) and two affiliated entities. Because disputed issues of material fact remain to be decided with respect to the dealings between the Hammers and Archer, we reverse.

The underlying dispute arose from a 2006 real estate transaction. 2000 Ocean Drive LLC purchased a hotel property in Florida. Financing was arranged from several sources. Those sources were an initial financing from Bank of America and secondary financing through two lenders: JDI, the senior lender, which held the first mortgage on the property, and Archer, the junior lender, which held the second mortgage. The Archer loan was entered into by 2000 Ocean Drive LLC, Crossing Park, Mrs. Hammer, and TKW Partners, LLC. As part of the arrangements with Archer, which were negotiated between Archer’s representative and Mr. Hammer, Crossing Park and the Hammers offered security in the form of real property, and Mr. Hammer signed a personal guaranty.

During the course of negotiations, Mr. Hammer and Archer’s representative mutually agreed that they would “be totally open and honest” with one another and would deal “in a very honest and straightforward manner.” Mr. Hammer specifically requested, and Archer’s representative agreed, that “all the documents that pertain to [him] . . . would be forwarded to Atlanta in advance to give us a chance to review the documents.” Archer’s representative agreed that it was his “intention that no document was concealed.” But the documents given to Mr. Hammer did not include a subordination agreement between 2000 Ocean Drive LLC, Archer, and JDI that included several provisions specifically affecting Mr. Hammer and his obligations in the transaction. Provision 14 (a) of the subordination agreement provided that Archer would not, without JDI’s consent,

commence, prosecute or participate in any administrative, legal or equitable action against Owner, any Guarantor (as defined in the Loan Agreement) other than Glen Hammer (“Hammer”) or the Property or take any other action that might adversely affect any Guarantor (other than Hammer), Owner or Owner’s interest in the Property or the interests of the Owner’s members in the membership interests in Owner or that might adversely affect JDI and its interest in the Property.

(Emphasis supplied.) Provision 19 provided that if JDI obtained the property from 2000 Ocean Drive LLC by deed in lieu of foreclosure, Archer would release its lien on the property.

Mr. Hammer testified that when Archer’s representative “sent me the papers that pertained — that he said pertained to Joan, my wife, me, and my family, there was never any word of this and it was never provided.” The document was not at the closing and was never sent to him, and he was not aware of its contents. He would not have proceeded with closing if he had known of the two paragraphs in question:

First of all, I was a credit enhancement on the transaction. I was not the owner. I didn’t stand to make a large amount of profits that the developers and owners stood to make. And if I knew there was an arrow painted on my back as the sole responsible party, that was not the deal.... That changed the entire dynamic in which we would not have proceeded.

After the transaction ended in default in 2007, Crossing Park and the Hammers brought this action against Archer and seven other defendants. They initially brought claims against Archer seeking damages for fraud and discharge and release from their obligations as surety and accommodation parties. Crossing Park and the Hammers initially obtained an interlocutory injunction, but it was eventually dissolved, and the appeal of that order was dismissed as moot after the foreclosure sale took place in 2009.

Thereafter, Archer moved for partial summary judgment on the counts of the original complaint alleging civil fraud (Count I), release of surety (Count VII), and discharge of surety (Count VIII). Five months later, Crossing Park and the Hammers amended their complaint to add two affiliates of Archer as defendants and allege additional claims against Archer and its affiliates.

In a very detailed 21-page order, drafted by counsel for Archer, the trial court granted Archer’s motion and then went on to conclude that all claims against Archer and its affiliates were foreclosed by its ruling on the claims identified in Archer’s motion. It therefore granted summary judgment “on each and every count of Plaintiffs’ Amended Complaint alleged against Archer and the Archer Affiliates; namely, Counts I through V and Counts VTII through XI.”

Crossing Park and the Hammers appeal, arguing in a single enumeration of error that the trial court erred in granting summary judgment on any count because disputed issues of fact remain as to Archer’s failure to disclose the agreements between Archer and other parties to the transaction, which Crossing Park and the Hammers contend exposed them to unanticipated liability and impaired the available security for the loans.

1. We first address the appropriate standard of review. Archer contends that because witnesses testified at the hearing on its earlier motion to dissolve the preliminary injunction, that hearing was “tantamount to trial” and the trial court’s finding that no disputed issues of fact existed therefore must be “accorded substantial deference.” This novel argument is without merit. Archer’s summary judgment motion was not yet filed at the time of the preliminary injunction hearing, and in any event the standards for the resolution and review of injunctions are irrelevant to those applied to summary judgments. OCGA § 9-5-8; Satilla Health Svcs. v. Bell, 280 Ga. App. 123, 127 (633 SE2d 575) (2006) (standard for interlocutory injunctions).

Nor are the cases cited by Archer relevant to the standard of review on summary judgment. Both Harris v. Williams, 304 Ga. App. 390 (696 SE2d 131) (2010), and Saravia v. Mendoza, 303 Ga. App. 758 (695 SE2d 47) (2010), are appeals of child custody orders. Such matters may be heard, as they were in those cases, with the trial court sitting as the finder of fact and conducting what amounts to a bench trial. See OCGA § 19-6-17 (c) (“The petition .. . shall be heard by the court, unless a jury trial is demanded by either party to the case.”).

The appropriate standard of review on summary judgment, on the other hand, is completely clear:

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. [Cit.]

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). See also OCGA § 9-11-56 (c).

In addition, we note that the transaction documents provide that they are to be governed by “the laws of the State of New York,” and appellants filed formal notice of their intent to rely upon New York law. ‘ ‘Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought.” (Citation and punctuation omitted.) Bunker Hill Intl. v. Nationsbuilder Ins. Svcs., 309 Ga. App. 503, 506 (710 SE2d 662) (2011). See also Bernstein v. Flagstar Bank, 240 Ga. App. 535, 536 (1), n. 1 (524 SE2d 241) (1999) (“agreement to apply foreign law applies only to substantive law and not to procedure”).

2. Viewing the evidence in this case under the proper standard, and applying the relevant New York law, Crossing Park and the Hammers have identified disputed issues of material fact that render summary judgment inappropriate on all their claims.

An expert on behalf of Crossing Park and the Hammers testified at length to the effect of the provisions in the subordination agreement on Crossing Park and the Hammers. He gave as his opinion that the undisclosed subordination agreement, while it contained subordination provisions, also contained “many other material provisions,” some of which “dramatically and detrimentally affected” Crossing Park and the Hammers, “had a material and adverse” effect on them, and “materially increased the risk” to them. These other material provisions “are not found in subordination agreements typically utilized in transaction^] such as this.”

This expert witness explained that provision 14 (a) barred legal action against the owner, as well as any guarantor except Mr. Hammer. In addition, it did not bar action against Crossing Park and Mrs. Hammer, who were not owners or guarantors but “accommodation parties.” Provision 14 (a) thus “singled out” the Hammers and Crossing Park for legal action. He further explained that provision 19 materially impaired the value of the collateral, and that guarantors and accommodation parties should be discharged from their obligations “on a dollar-for-dollar-basis for each dollar value of impairment of the collateral.”

The expert also testified that, in his opinion, Archer’s failure to disclose the other material provisions was not consistent with its duty of good faith and fair dealing under New York law. In his opinion, good faith and fair dealing required that such unusual provisions be disclosed and presented for review and signature to any party that they materially and adversely affected, in this case Crossing Park and the Hammers.

In Chemical Bank v. Layne, 423 FSupp. 869 (S.D. N.Y. 1976), the federal district court summarized New York law regarding sureties:

A contract of guaranty is one in which the guarantor is entitled to a full disclosure of every point which would be likely to bear upon his disposition to enter into it. The law imposes upon a creditor the duty of dealing with his surety with the utmost good faith at every step in the transaction. Honesty and fair dealing required the [lender] to speak out, and correct the false impression which was entertained by [the surety], and for which the [lender] was largely, if not wholly, responsible. While in many instances mere silence cannot be made the basis of fraud, yet, where the circumstances are of such a nature as to impose a duty upon one to speak, and where he deliberately fails to do so, his neglect will be deemed a deliberate suppression of the truth, and will amount to constructive, if not actual, fraud. A concealment of facts which, if known to the surety, would have deterred him from entering into the contract of suretyship, or which increased the risk of his undertaking, constitutes fraud, and will prevent an enforcement of his obligation.

(Citations and punctuation omitted.) Id. at 871 (I). At the same time,

[t]he obligee is not under an obligation to disclose to a surety information of which the surety has knowledge readily to hand. A surety cannot “rest supinely, close his eyes, and fail to seek important information” and then seek to avoid liability under the guaranty by claiming he was not supplied with such information.

(Citations and punctuation omitted.) Id. at 871-872. Here, the guaranties contained no language alerting Mr. Hammer to the possibility that other guarantors had been released or that the available collateral had already been impaired. Id. at 878 (IV).

Archer asserts that Chemical Bank supports the grant of summary judgment here because the court ultimately determined that the guarantor prevailed on only some of his claims. But the district court’s opinion in Chemical Bank was issued after “[t]he case was tried to the court without a jury.” Id. at 870. An ultimate decision in that case was, presumably, not appropriate for summary disposition.

Archer contends that Crossing Park and the Hammers were aware of the existence of the subordination agreement generally, and that it had no duty to disclose the contents of a document of which Mr. Hammer was aware and which he should have exercised due diligence to investigate on his own initiative. It further contends that Archer’s junior position to JDI was fully disclosed.

As the expert witness testified, however, the issue was not the existence of the subordination agreement itself. Rather, the agreement contained unusual provisions “not found in subordination agreements typically,” that affected Crossing Park and the Hammers directly and excluded them from an agreement benefitting all the other guarantors. These unusual provisions, according to the expert, should have been disclosed to Crossing Park and the Hammers as part of Archer’s obligation of good faith and fair dealing and its promise to provide all documents that pertained to the Hammers. And although Archer argues that “one who signs a document is presumed to have read it,” Crossing Park and the Hammers were not signatories to the agreement containing the other material provisions.

Archer further argues that the failure to disclose was immaterial, for various reasons. But Mr. Hammer testified that he would not have entered into the agreement at all had he known of the undisclosed provisions, because in his view they unacceptably increased his and his family’s risk in light of the benefits accruing to him from the agreement. Whether that testimony is credible is not an issue that the trial court can determine on summary judgment. Peach Blossom Dev. Co. v. Lowe Elec. Supply, 300 Ga. App. 268, 271 (684 SE2d 398) (2009) (trial court cannot discount affidavit because it is self-serving).

While Archer also contends that release language in a forbearance agreement, allegedly executed after default, binds Crossing Park and the Hammers, evidence was presented that the parties never reached an agreement. Mr. Hammer testified that Archer sent him a typed draft of the agreement to which he made handwritten changes but that Archer returned to him a copy with “No” written on it and told him that it was rejecting his offer. Under these circumstances no meeting of the minds between the parties was shown. Yenom Corp. v. 155 Wooster St., Inc., 23 AD3d 259, 260 (805 NYS2d 304) (2005).

In summary, the issue of good faith and fair dealing “is not an issue which is readily determinable on a motion for summary judgment.” (Citations and punctuation omitted.) Credit Suisse First Boston v. Utrecht-America Finance Co., 80 AD3d 485, 487 (915 NYS2d 531) (2011). In Credit Suisse, an expert on behalf of one party testified that the other party did not act in accordance with customary practices in the business, and the Appellate Division held that this created “a triable issue of fact,” and that “while the availability of a more prudent course of conduct does not preclude a party from demonstrating its good faith, it presents a factual issue for resolution at trial. At such time, the weight to be afforded to the expert opinion is within the province of the trier of fact.” (Citations omitted.) Id.

On summary judgment, a trial court is not authorized to resolve disputed issues of material fact. A trial court is authorized only to determine whether disputed issues of material fact remain. If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.

(Citation and punctuation omitted.) Ly v. Jimmy Carter Commons, 286 Ga. 831, 833 (1) (691 SE2d 852) (2010). Crossing Park and the Hammers have demonstrated that disputed issues of material fact exist as to whether Archer breached its duty of good faith and fair dealing and whether that breach was material. As the trial court noted in its order, these issues apply with equal force to all the claims asserted against Archer and its affiliates. The trial court therefore erred in granting summary judgment to Archer and its affiliates on any of the grounds asserted in the amended complaint.

Decided July 11, 2011

Reconsideration denied July 27, 2011

Smith, Gambrell & Russell, Edward H. Wasmuth, Jr., William W. Maycock, Stephen M. Forte, for appellants.

Paul N. Monnin, Mark E. Grantham, for appellees.

Judgment reversed.

Mikell and Dillard, JJ., concur.

       The amended complaint asserted claims against Archer and its affiliates for fraud, constructive fraud, conspiracy, malicious procurement, breach of implied duty of good faith and fair dealing, release of surety, discharge of accommodation makers, and wrongful foreclosure.

       “Nothing in the applicable law places a burden on the nonmovant to respond to issues which are not raised in the motion for summary judgment. But a trial court may grant summary judgment sua sponte under certain circumstances, so long as it ensures that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.” (Citation and punctuation omitted.) Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 288 (3) (690 SE2d 225) (2010). Crossing Park and the Hammers do not assert that they did not receive fair notice and an opportunity to respond.

       The hearing on that motion was held exactly one year before the trial court entered its order granting summary judgment.

       Appellee quotes from Harris: “While we apply a de novo standard of review to any questions of law decided by the trial court, factual findings made after a [hearing] shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” See Harris, supra, 304 Ga. App. at 390. But the original decision quoted by Harris uses the words “bench trial” rather than “hearing.” Lifestyle Home Rentals v. Rahman, 290 Ga. App. 585 (660 SE2d 409) (2008).

       “Expert opinion testimony is allowed where the nature of the question is such that the factors leading to a conclusion are not known to the common or average person, but are among those things shrouded in the mystery of professional skill or knowledge.” (Citation and punctuation omitted.) Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 689-690 (12) (689 SE2d 62) (2009) (full concurrence in Division 12). Such testimony may be permitted even with respect to the ultimate issue in the case. PN Express v. Zegel, 304 Ga. App. 672, 679 (4) (697 SE2d 226) (2010).


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A11A0746.
    SMITH v. THE STATE.
    (715 SE2d 434)
   SMITH, Presiding Judge.

Addie Smith appeals, pro se, from her convictions of driving without insurance, failure to register a vehicle, and two counts of obstruction of a law enforcement officer. She asserts insufficient evidence supports her obstruction convictions, that she received ineffective assistance of counsel, that her right to a speedy trial was violated, and numerous other alleged errors. For the reasons set forth below, we affirm.

1. Smith asserts insufficient evidence supports her obstruction conviction because the State failed to prove that she knowingly and willingly obstructed or hindered the law enforcement officers. On appeal, we must view the evidence “in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citation and punctuation omitted.) Williams v. State, 217 Ga. App. 636, 638 (3) (458 SE2d 671) (1995).

So viewed, the evidence shows that Officer Heller stopped Smith after noticing that her dealer “drive-out tag” had expired. When the officer asked Smith for her driver’s license and explained the reason he stopped her, she admitted that “she had not gotten the vehicle registered yet because she was not able to afford to do so.” After obtaining her license and a bill of sale for the car, Officer Heller returned to his patrol car and determined through his computer system that the insurance status of the car “was unknown.” He returned to Smith, and she verified that she had not yet obtained insurance for the car. When Officer Heller informed Smith that she should contact someone for a ride because he planned to impound her car for lack of registration and insurance, she became visibly upset. He then returned to his car to complete the impound form and citations for Smith.

While Officer Heller completed the required paperwork, Smith stepped out of her car, forcing him to repeat an earlier instruction he had given to her about remaining inside her car. Smith did not immediately comply, and instead asked for the officer’s supervisor, After Officer Heller agreed to contact his supervisor, Smith returned to her car.

While Officer Heller continued completing paperwork, he observed Smith moving around in her vehicle “in an agitated obviously frustrated type demeanor.” She honked the horn more than once and he saw “her arms sort of flailing about in a sort of frustrated gesture.” After completing the forms, Officer Heller continued “to do [his] job” and returned to Smith’s car to issue the citations to her even though his supervisor had not yet arrived. As he did so, Officer Lymber, who was not his supervisor, arrived as back-up.

When Officer Heller discovered that Smith had rolled up her driver’s side window, he asked her to roll the window down so he could issue her the citations; she rolled it down only an inch. When he asked her to roll the window down some more so that she could sign the citations, Smith refused, stating “she wasn’t going to sign the citations, that she hadn’t done anything wrong.” Officer Heller explained to her several times that her signature was not an admission of guilt, and that she was required to sign it as a promise to appear in court and resolve the citations. When Smith continued to refuse to roll her window down, Officer Heller asked her to step out of her car because he “planned to put her under custodial arrest based on the fact that she hadn’t signed the citations” and he could not “impound the vehicle with the person inside it.” Smith continued to refuse to get out of the car even though the officer explained that he would be forced to arrest her if she did not sign the citations.

At this point, Sergeant Shaw, the supervisor, arrived. Sergeant Shaw asked Smith “to exit the vehicle so he could speak with her and resolve the issue,” but Smith “rant[ed] and rav[ed] on the phone, said that she was not a criminal, she wasn’t getting out of the car, that she didn’t do anything.” She handed a cell phone to Sergeant Shaw through a small crack in her sunroof and asked him to speak with her insurance agent. Sergeant Shaw took the telephone, terminated the call without speaking to anyone, and asked Smith to step out of the car. Sergeant Shaw explained that he hung up the phone because he

was trying to communicate with her. And she was in the car being a little bit belligerent and not wanting to talk and screaming help me, and that she was going to sue my a**, and that she wasn’t getting out of the car. ... I guess I would call it a tantrum, having a four-year-old. But it was just in a tantrum. So the phone was distracting her from communicating with me. So at that point I decided that the phone call needed to end.

The stand-off between Smith and the officers continued until Sergeant Shaw informed Smith “if she didn’t get out of the car we were going to have to break the window to effect the arrest.” Smith retorted, “Go ahead, and I’ll sue your a**.” Sergeant Shaw then broke a back passenger window with his baton, and Smith kept re-locking the car doors each time the officers unlocked them. When Officer Lymber threatened to use his taser on her, Smith finally exited her car, and she was placed under arrest.

We find this evidence sufficient to support Smith’s obstruction convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). All of the officers were in full uniform, and Smith repeatedly refused to obey the lawful instructions of Officer Heller and then Sergeant Shaw to exit her car. See Turner v. State, 274 Ga. App. 731, 733 (1) (b) (618 SE2d 607) (2005) (affirming obstruction conviction based on defendant’s refusal to remain in his vehicle as ordered by police officer).

2. Smith asserts 13 instances of ineffective assistance of counsel. The State asserts we cannot consider the specific claims asserted because they are raised for the first time on appeal. We agree.

The record shows that the trial court appointed different counsel for Smith following her conviction, that this attorney filed a written motion for new trial that did not include a claim for ineffective assistance of counsel, that this attorney raised the issue of ineffective assistance of counsel generally during the motion for new trial hearing, that Smith’s trial counsel did not testify in the motion for new trial hearing, and that Smith asked the trial court to deny her motion for new trial so that she could appeal her conviction to this court, pro se, as soon as possible. The trial court granted Smith’s request to deny her motion for new trial only after warning Smith of the procedural pitfalls that awaited her on appeal if she failed to avail herself of the opportunity to have an evidentiary hearing on her motion for new trial.

Our law requires that a claim for ineffective assistance of counsel must be raised at the earliest practical moment. This rule requires that a claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on a motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.

(Citation and punctuation omitted.) Stegall v. State, 308 Ga. App. 666, 666 (1) (708 SE2d 387) (2011). In this case, Smith raised none of the specific claims of ineffective assistance of counsel below when she had an opportunity to do so. Consequently, we cannot consider them for the first time on appeal. Id. See also Buckley v. State, 270 Ga. App. 493, 497 (5) (d) (606 SE2d 581) (2004) (failure to raise particular claim of ineffective assistance of counsel in the trial court results in waiver of issue on appeal).

3. Smith asserts the State violated her right to a speedy trial. The record shows that she was arrested on February 4, 2009, that the State filed an accusation against her on April 15, 2009, that the case was specially set for trial on November 2, 2009, that it was set for more than one trial calendar before being tried, that her case was tried beginning on April 21, 2010, that she never asserted a violation of her speedy trial rights below, and that the trial court never ruled on the issue.

We cannot consider the merits of Smith’s speedy trial claim because she has raised it for the first time on appeal. See Moore v. State, 278 Ga. 473, 474 (2) (604 SE2d 139) (2004). “The general rule regarding the raising of issues for the first time on appeal is well known. An issue not raised during the trial in any form calling for a ruling will not be considered by this court.” (Citation and punctuation omitted.) Moore v. State, 141 Ga. App. 245, 246 (3) (233 SE2d 236) (1977) (defendant may not raise speedy trial claim on appeal for the first time).

4. Smith asserts that the trial court judge violated her oath of office by failing to “impartially discharge and perform all the duties incumbent upon [her], according to the best of [her] abilities and understanding,” for two separate reasons. Neither of these claims has merit.

(a) In support of her first claim, Smith points to an isolated statement made by the trial court during sentencing, italicized below.

Well, I’m going to tell you what I’m going to do, Ms. Smith. I’m going to go ahead and impose sentence now. I will tell you this Ms. Smith, I’ve been on this bench ten years. I have never heard a case like this, ever. I have had people argue with police. I have had people do other things to the police. But I’ll be real honest, in many ways I am baffled. Because I don’t understand why this happened. Because it shouldn’t have happened. . . .
I think everybody in this room . . . have probably gotten a traffic ticket at this point in our lives where we’ve disagreed with that. We’ve not been happy to get a ticket. Nobody is. But I’ve never had it escalate to this point. And, quite frankly, I think the mental health evaluation recommended by the State is completely appropriate because it should not have happened.

(Emphasis supplied.) We find no merit in Smith’s claim that the italicized excerpt demonstrates that the trial judge was imposing sentence “in a state of thorough confusion.”

(b) In support of her second claim, Smith takes issue with statements made by the trial court to the assistant solicitor-general’s visiting parents that were apparently made outside the presence of the jury and off the record. We cannot consider the merits of this claim because Smith cannot meet her “burden of proving error by the record.” Carr v. State, 267 Ga. 701, 707 (5) (482 SE2d 314) (1997).

5. Smith asserts the trial court violated her Fourteenth Amendment rights by purposely omitting from the trial transcript testimony, objections, evidence, voir dire, opening statements, closing arguments, and the charge conference “in an attempt to deny Appellant a fair trial and ultimately, a fair appeal.” Smith makes no attempt to demonstrate any harm or prejudice resulting from the alleged failures to record. “Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for [this court] to review.” (Citations and footnotes omitted.) Boone v. State, 250 Ga. App. 133, 139 (11) (549 SE2d 713) (2001).

6. Smith claims the trial court committed reversible error by failing to disclose evidence “that is both favorable and material.” We find no merit in this claim for several reasons. First, the trial court does not owe such an obligation to the defendant. Second, Smith fails to point to any specific favorable and material evidence that was not provided to her. As Smith “has neither alleged nor shown how [s]he was prejudiced, and our review of the trial transcript discloses no such aggrievement, appellant has not borne [her] burden to show harmful error by the record.” (Citation and punctuation omitted.) Snyder v. State, 201 Ga. App. 66, 67 (4) (410 SE2d 173) (1991).

7. Smith claims the trial court erred by allowing perjured testimony to be presented to the jury. In support of this claim, Smith points to inconsistencies in the record about which window was broken by Sergeant Shaw (the rear driver’s side window versus the rear passenger’s side window) and the officers’ testimony that their dash camera was not operational. We cannot consider this claim because Smith asserted no “perjury” objection at trial and there was no ruling by the trial court on any such issue. “Appellate courts exist to review asserted error but where the defendant makes no objection or obtains no ruling of the trial court, the contended problem cannot be made the basis of appellate review as there is no ruling to review.” (Citation omitted.) Sanders v. State, 179 Ga. App. 168, 169 (2) (345 SE2d 677) (1986).

8. Smith argues that the trial court “committed reversible error when it denied the Appellant the right to have witnesses in her favor.” In support of this argument, Smith points to defense counsel’s failure to call witnesses who were present at the time of her arrest or the person with whom she was talking on the cell phone when she handed it to Sergeant Shaw. We cannot consider this claim because Smith points to no place in the record where the trial court denied her request to present the witnesses. Sanders, supra.

9. Smith claims the trial court erred by denying her request for a different attorney during her trial, but she fails to support this claim with a citation to the record demonstrating the circumstances of this alleged denial. Because Smith has failed to point to a ruling for this court to review, we cannot consider this claim. Sanders, supra.

10. Smith asserts the trial judge’s sentence was disproportionate to the gravity of the misdemeanor offenses she committed. The judge sentenced Smith to 12 months confinement for each conviction running concurrently to be served on probation following 60 days of confinement, $1,500 in fines, 100 hours of community service, and a mental health evaluation.

The Eighth Amendment protects against cruel and unusual punishment, a concept which prohibits, among other things, arbitrary and disproportionate sentences. Unless a sentence is so overly severe or excessive in proportion to the offense as to shock the conscience, a legislatively authorized punishment does not ordinarily exceed the constitutional bound. It could, if the court abused its discretion in imposing a sentence which is excessive and disproportionate in a specific case.

Decided July 6, 2011

Reconsideration denied July 27, 2011.

Addie Smith, pro se.

Rosanna M. Szabo, Solicitor-General, Joelle M. Nazaire, Zachary W. Procter, Assistant Solicitors-General, for appellee.

(Citations, punctuation and footnote omitted.) Small v. State, 243 Ga. App. 678, 680 (3) (534 SE2d 139) (2000). Here, Smith’s sentence is within the statutory limits set by OCGA §§ 16-10-24 (b), 40-6-10 (b), and 40-2-20 (c), and it is not so disproportionate as to shock the conscience. We therefore find no merit in this claim of error. See McLeod v. State, 251 Ga. App. 371, 373 (2) (554 SE2d 507) (2001).

11. Smith asserts the trial court “committed reversible error in failing to transmit [her] notice of appeal to the Court of Appeals.” This enumeration apparently relates to notices filed by Smith pro se for an appeal to the wrong court. On May 21, 2010, Smith filed a notice of appeal “to the Superior Court of Gwinnett County,” and she filed an amended notice of appeal to the same court on May 24, 2010. She also filed a pro se motion for stay pending her appeal to superior court and an affidavit of indigency. The record shows that the trial court scheduled a hearing as a result of these filings and appointed new appellate counsel for her. Following the denial of an out-of-time motion for new trial entertained by the trial court, Smith filed a timely notice of appeal, resulting in the present appeal. See Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003).

Because Smith’s appeal is presently before this court, her complaint about the trial court’s failure to forward her pro se appeal to the wrong court to this court is moot.

Judgment affirmed.

Mikell and Dillard, JJ., concur.


text:
    A11A0758.
    KENERLY v. THE STATE.
    (715 SE2d 688)
   SMITH, Presiding Judge.

In this case presenting an issue of first impression, we are called upon to determine whether a special purpose grand jury is authorized to return a criminal indictment. We hold that it is not and therefore reverse.

The record reveals that the Gwinnett County District Attorney petitioned the judges of the Gwinnett County Superior Court to impanel a special purpose grand jury, pursuant to OCGA § 15-12-100, for the purpose of investigating the acquisition of real property by the Gwinnett County Board of Commissioners. The petition was granted, and an order was issued impaneling the special purpose grand jury.

After the special purpose grand jury conducted its investigation for more than a year, the State contends that it served Kevin Kenerly, a Gwinnett County commissioner, with a notice of the State’s intent to present a criminal indictment with evidence. On October 7, 2010, Kenerly filed an objection to the special purpose grand jury, and, on October 8, presented his objection and refused to be present during the presentation of evidence. The parties agree that on this same day, the special purpose grand jury returned an indictment against Kenerly, charging him with one count of bribery and two counts of failing to disclose financial interest.

The trial court held a hearing on Kenerly’s objection to the special purpose grand jury on October 20, 2010, and following that hearing, denied Kenerly’s challenge and upheld the special purpose grand jury’s authority to return the criminal indictment. It is from this order that Kenerly appeals.

1. Kenerly first asserts that the trial court erred in holding that the special purpose grand jury was authorized to return the criminal indictment. We agree. OCGA § 15-12-100 et seq. are entitled “Special Purpose Grand Juries.” The first Code section under that part, OCGA § 15-12-100, provides:

(a) The chief judge of the superior court of any county to which this part applies, on his own motion or on petition of any elected public official of the county or of a municipality lying wholly or partially within the county, may request the judges of the superior court of the county to impanel a special grand jury for the purpose of investigating any alleged violation of the laws of this state or any other matter subject to investigation by grand juries as provided by law.
(b) The chief judge of the superior court of the county shall submit the question of impaneling a special grand jury to the judges of the superior court of the county and, if a majority of the total number of the judges vote in favor of impaneling a special grand jury, the members of a special grand jury shall be drawn in the manner prescribed by Code Section 15-12-62. Any special grand jury shall consist of not less than 16 nor more than 23 persons. The foreman of any special grand jury shall be selected in the manner prescribed by Code Section 15-12-67.
(c) While conducting any investigation authorized by this part, investigative grand juries may compel evidence and subpoena witnesses; may inspect records, documents, correspondence, and books of any department, agency, board, bureau, commission, institution, or authority of the state or any of its political subdivisions; and may require the production of records, documents, correspondence, and books of any person, firm, or corporation which relate directly or indirectly to the subject of the investigation being conducted by the investigative grand jury.

(Emphasis supplied.) OCGA § 15-12-101 provides guidance on the supervision of a special grand jury and procedure for its dissolution once its investigation has been completed:

(a) When a special grand jury is impaneled pursuant to Code Section 15-12-100, the chief judge of the superior court of the county shall assign a judge of the superior court of the county to supervise and assist the special grand jury in carrying out its investigation and duties. The judge so assigned shall charge the special grand jury as to its powers and duties and shall require periodic reports of the special grand jury’s progress, as well as a final report.
(b) When the judge assigned to a special grand jury decides that the special grand jury’s investigation has been completed or on the issuance of a report by the special grand jury of the matter investigated by it reporting that the investigation has been completed, the judge so assigned shall recommend to the chief judge of the superior court that the special grand jury be dissolved. The chief judge shall report the recommendation to the judges of the superior court of the county and, upon a majority thereof voting in favor of the dissolution of the special grand jury, the special grand jury shall stand dissolved. If a majority of the judges do not vote in favor of the dissolution of the special grand jury, the chief judge shall instruct and charge the special grand jury as to the particular matters to be investigated; and the special grand jury shall be required to investigate further and establish a period of time within which the investigation shall be completed. At the expiration of the period of time, the special grand jury shall be dissolved.

(Emphasis supplied.)

OCGA § 15-12-100 provides only that a special purpose grand jury may be impaneled “for the purpose of investigating any alleged violation of the laws of this state or any other matter subject to investigation by grand juries as provided by law.” OCGA § 15-12-100 (a). There is no language under this section giving a special purpose grand jury the power to return a criminal indictment. The State argues that a special purpose grand jury has all the power and privileges of a grand jury as enumerated in OCGA § 15-12-71, but we find no statutory or case law demanding such a conclusion, and indeed the rules of statutory interpretation suggest otherwise.

First, the plain language of OCGA § 15-12-71 lists the mandatory duties of a regular grand jury, OCGA § 15-12-71 (b) (1) and (2); it also provides that a grand jury “may prepare reports or issue presentments based upon its inspections.” OCGA § 15-12-71 (b) (3). There is no similar language in OCGA § 15-12-100. The plain language of OCGA § 15-12-100 (a) provides only that a special grand jury is impaneled for the purpose of investigating. And OCGA § 15-12-100 (c) enumerates the powers granted to a special grand jury “[wjhile conducting any investigation.” OCGA § 15-12-101 further supports the conclusion that a special grand jury is empowered only to investigate. Section (a) provides that the judge assigned to supervise and assist the special grand jury shall require periodic reports as well as a final report after the special grand jury has carried out its “investigation and duties.” And section (b) requires the assigned judge to recommend that the special grand jury be dissolved when he decides that “the special grand jury’s investigation has been completed or on the issuance of a report by the special grand jury.” Under this subsection, if the majority of judges do not vote in favor of the dissolution of the special grand jury, the chief judge is required to instruct and charge the special grand jury concerning the “particular matters to be investigated,” and require the special grand jury to “investigate further” and establish a time within which “the investigation shall be completed.”

There is no language in these Code sections granting a special grand jury the power to indict following its investigation. To the contrary, these sections anticipate that the special grand jury be dissolved upon the completion of the investigation or upon the issuance of a report.

Second, the venerable principle of the maxim “expressum facit cessare taciturn” is used to assume deliberate omission of actions not listed in a statute and not otherwise addressed elsewhere. See Hinton v. State of Ga., 224 Ga. App. 49, 50 (2) (479 SE2d 424) (1996). And the General Assembly is presumed to act with full knowledge of the existing law. See Battallia v. City of Columbus, 199 Ga. App. 897, 898 (2) (406 SE2d 290) (1991). It is well-settled, as the Georgia Supreme Court has held, that

when we are interpreting a statute, we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it. We construe statutes “in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence,” and “their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.”

(Citations, punctuation and footnotes omitted.) Chase v. State, 285 Ga. 693, 695-696 (2) (681 SE2d 116) (2009). If the legislature had intended to empower a special purpose grand jury with the same “powers and duties” (see OCGA § 15-12-101 (a)) as a regular grand jury as provided in OCGA § 15-12-71, it could have provided to that effect in OCGA § 15-12-100 or made reference to the powers enumerated in OCGA § 15-12-71. When the legislature did so intend, it made a specific reference: OCGA § 15-12-100 makes reference to OCGA § 15-12-62 (how members may be drawn) and OCGA § 15-12-67 (how the foreman is selected). The legislature also made a general reference to the Code sections governing regular grand juries to address other minor procedural details such as the qualifications of the jurors and issues concerning bailiffs. OCGA § 15-12-102 provides: “Except as otherwise provided by this part, the law relative to grand juries shall apply to the grand juries provided for by this part.” (Emphasis supplied.) Therefore, because the powers and duties of a special grand jury are specifically provided for, the powers granted to regular grand juries, including the power to indict, do not apply.

The State attempts to interpret prior decisions of this court to stand for the proposition that a special grand jury is authorized to return a criminal indictment, but the authorities relied upon by the State do not so hold. The State’s reliance upon State v. Guhl, 140 Ga. App. 23, 25 (1) (230 SE2d 22) (1976) (rev’d on other grounds, Mitchell v. State, 239 Ga. 3 (235 SE2d 509) (1977)), is misplaced here. Although a special purpose grand jury apparently indicted the defendant in that case, the issue of the special purpose grand jury’s power to do so was neither raised nor considered.

In State v. Bartel, this court held that the oath to be taken by witnesses before regular grand juries, OCGA § 15-12-68, is inapplicable for special grand juries conducting “civil investigations” pursuant to OCGA § 15-12-100. State v. Bartel, 223 Ga. App. 696, 697-699 (479 SE2d 4) (1996). Although Bartel did not decide whether the particular grand jury before which Bartel testified was operating under OCGA § 15-12-100 or § 15-12-71, see id. at 697, it concluded that special purpose grand juries conduct only civil investigations. Id. at 699. And although the defendant in that case was charged with a criminal offense, perjury, for making a false statement “ ‘before a grand jury in a noncriminal proceeding,’ ” id. at 696, there is no indication that the special purpose grand jury, as opposed to a regular grand jury, returned the indictment against him. See generally id. at 696-697.

Decided July 6, 2011

Reconsideration denied July 27, 2011

Anderson, Tate & Carr, Jason W. Blanchard, for appellant.

In the three other cases cited by the State, Vaughn v. State, 259 Ga. 325 (381 SE2d 30) (1989), Inman v. State, 187 Ga. App. 652 (371 SE2d 230) (1988), and State v. Williams, 181 Ga. App. 204 (351 SE2d 727) (1986), there is no indication that the defendants were indicted by a special purpose grand jury. See State v. Bartel, supra at 698 (stating that neither Vaughn, Inman, nor Williams addresses OCGA § 15-12-100, and that Vaughn and Williams concerned regular grand juries). In Inman, supra, it appears that the defendant “lied twice” in testimony before a special grand jury that was conducting an investigation of the Mitchell County School System. But there is no indication that he was indicted by that same body as opposed to a regular grand jury. 187 Ga. App. at 652-653.

We can find no case raising and deciding the issue before us, and are therefore bound by the plain language of OCGA § 15-12-100 et seq.

[T]his court is charged with the duty of interpreting statutes, not enacting them .... It is a fundamental principle that the legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are bound to follow such laws if constitutional.

(Citations and punctuation omitted.) Housing Auth. &c. of Macon v. Ellis, 288 Ga. App. 834, 836 (655 SE2d 621) (2007). Therefore any change to or expansion of the powers of a special grand jury must be implemented by the General Assembly.

2. Kenerly’s remaining enumeration is moot in light of our holding in Division 1.

Judgment reversed.

Mikell and Dillard, JJ., concur.

Daniel J. Porter, District Attorney, Chandler, Britt, Jay & Beck, Walter M. Britt, Luther H. Beck, Jr., for appellee.

       We note that subsection (b) of this Code section was amended by Ga. L. 2011, p. 59, § 1 et seq. Those amendments will not take effect until July 1, 2012.


author: McFADDEN, Judge.

text:
    A11A1127.
    KENSINGTON PARTNERS, LLC et al. v. BEAL BANK NEVADA.
    (715 SE2d 491)
   McFADDEN, Judge.

This appeal arises from the trial court’s order granting summary judgment to Beal Bank Nevada on its suit on a promissory note and personal guaranties. Because there are no genuine issues of material fact, we affirm.

“ ‘Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.’ [Cit.]” Core LaVista, LLC v. Cumming, 308 Ga. App. 791 (709 SE2d 336) (2011). So viewed, the evidence shows that on May 25, 2006, Kensington Partners, LLC executed a promissory note in favor of BankFirst in the principal amount of $7,345,000. Steven DeFrancis, David DeFrancis and Regis Haid, Jr., executed individual guaranties of the note. The note was also secured by a deed of trust to real estate located in Mississippi.

Beal Bank filed a complaint for breach of the promissory note and guaranty agreements, asserting that it had acquired the loan by assignment from the Federal Deposit Insurance Corporation (“FDIC”), acting as receiver for BankFirst. Beal Bank subsequently moved for summary judgment, supported by affidavits and the loan documents. After a hearing, the trial court granted the motion, awarding Beal Bank the principal sum of $6,977,750, plus interest and attorney fees. Kensington and the individual guarantors appeal.

1. The appellants contend that the trial court erred in granting summary judgment because there is no evidence that Beal Bank received a valid assignment of the loan documents. Although the appellants concede that the affidavits establish that the FDIC assigned the note to Beal Bank, they claim that Beal Bank has not shown that the assignment was valid because there is no evidence that BankFirst had failed or that the FDIC was appointed receiver of BankFirst. However, in their own trial court brief opposing the motion for summary judgment, Kensington and the guarantors expressly stated as matters of fact that “BankFirst. . . subsequently failed” and that “[wjhen BankFirst failed the [FDIC] was appointed receiver for the bank.” “It is well established that a party may make admissions in judicio in their pleadings, motions and briefs.” (Citations and punctuation omitted.) Mitsubishi Motors Corp. v. Colemon, 290 Ga. App. 86, 87 (1) (658 SE2d 843) (2008). What a party admits to be true in its pleadings may not subsequently be denied. Aycock v. Calk, 228 Ga. App. 172, 173 (491 SE2d 383) (1997). The factual admissions in judicio made by Kensington and the guarantors in their trial court brief are binding. See Holmes v. Clear Channel Outdoor, 298 Ga. App. 178, 183 (2) (679 SE2d 745) (2009); Mitsubishi Motors, supra.

Moreover, contrary to the appellants’ claims, the evidence submitted in support of the motion for summary judgment shows that the FDIC was acting as receiver for BankFirst when it assigned the loan documents to Beal Bank. This evidence includes an affidavit providing that Beal Bank acquired the note and deed for valuable consideration by assignment from the FDIC as receiver of BankFirst; the written assignment of the deed from the FDIC to Beal Bank, which repeatedly identifies the FDIC as receiver for BankFirst; and a Note Allonge attached to the promissory note, identifying Beal Bank as the assignee and the FDIC as receiver for BankFirst. See Milestone v. David, 251 Ga. App. 832, n. 1 (555 SE2d 163) (2001) (an allonge is a paper attached to a promissory note on which parties write endorsements for which there is no room on the instrument itself). Accordingly, the trial court did not err in finding that there was a valid assignment of the loan to Beal Bank. Compare Green v. Cavalry Portfolio Svcs., 305 Ga. App. 843, 844 (700 SE2d 741) (2010) (trial court erred in granting summary judgment where no evidence that plaintiff had received valid assignment of contract rights).

2. The appellants contend that there is no evidence that the individual guaranties were also assigned to Beal Bank. Again, the contention is belied by the record. An affidavit of the portfolio manager of the loan servicing company for Beal Bank provides that the guaranties were transferred to Beal Bank by the FDIC as receiver for BankFirst in connection with the transfer of the note. Furthermore, the FDIC assignment of the deed of trust to Beal Bank also expressly assigned “such other documents, agreements, instruments and other collateral that evidence, secure or otherwise relate to Assignor’s right, title or interest in and to the Mortgage and/or the Note and/or the loan evidenced by the Note[.]” The individual guaranties clearly were such other documents or agreements that relate to the note.

In addition, a “transfer of the underlying principal obligation operates as an assignment of the guaranty. [Cits.]” Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 899 (4) (324 SE2d 746) (1984). Thus, even without an express assignment of the guaranties, the FDIC’s assignment to Beal Bank of the note effectively operated as an assignment of the individual guarantors’ obligations. See id.; Hazel v. Tharpe & Brooks, Inc., 159 Ga. App. 415, 415-416 (2) (283 SE2d 653) (1981).

The appellants seek to avoid this assignment of the guaranties by arguing that Mississippi law should apply and that, unlike Georgia law, Mississippi law is silent as to whether the transfer of the principal obligation operates as an assignment of the guaranties. The appellants, however, failed to give proper notice that they intended to raise an issue concerning Mississippi law. “OCGA § 9-11-43 (c) provides that ‘a party who intends to raise an issue concerning the law of another state or of a foreign country shall give notice in his pleadings or other reasonable written notice.’ ” (Punctuation omitted.) Godinger Silver Art Co. v. Olde Atlanta Marketing, 269 Ga. App. 386, 389 (2) (604 SE2d 212) (2004). Kensington and the guarantors did not give written notice, in their pleadings or otherwise, that they intended to rely on Mississippi law. On the contrary, in their written response to the motion for summary judgment, they relied exclusively on Georgia law. The first mention of Mississippi law occurred at the hearing on the motion for summary judgment, when counsel for the appellants referenced it during his oral argument, but even then he failed to cite any specific case or statutory law supporting his argument. Under these circumstances, the notice was insufficient. See Wade v. Crannis, 209 Ga. App. 501, 502-503 (2) (433 SE2d 669) (1993) (notice of foreign law insufficient when first given on day of hearing in a brief opposing motion for summary judgment); Fortson v. Fortson, 204 Ga. App. 827, 828 (421 SE2d 106) (1992) (notice insufficient where first made at hearing on motion for directed verdict). “Where a party has failed to provide sufficient notice of intent to rely upon foreign law, the law of this state shall apply. [And] ‘[ajbsent proper introduction and proof of the law of a sister state, ... it is presumed that such foreign law is the same as that of Georgia.’ [Cit.]” Fortson, supra at 828-829. Accordingly, the appellants have not shown any error in the application of Georgia law. See Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 642 (1), n. 1 (490 SE2d 124) (1997) (although contract stated that it was to be construed under California law, Georgia law applied because California law was not properly pled pursuant to OCGA § 9-11-43 (c)).

3. Kensington and the guarantors contend that summary judgment was improper because there are genuine issues of material fact as to the amount of the outstanding indebtedness and calculation of the interest due. The contentions are without merit.

In two affidavits, the portfolio manager affirmatively set forth the principal balance and interest outstanding on the note. He averred that the business records relating to the subject loan were transferred and delivered to Beal Bank from the FDIC as receiver for BankFirst; that the records were obtained in the regular course of business and were maintained under his direct control and supervision; that these documents included the original note, deed, guaranties and a payment history of the subject loan; that the payment history established an accounting of the loan from its inception, accurately reflected the outstanding balance and evidenced the calculation of interest per the terms of the note. The payment history was attached as an exhibit to the affidavit.

Decided July 27, 2011.

Schreeder, Wheeler & Flint, John A. Christy, Elizabeth L. Fite, for appellants.

McCullough, Payne & Haan, John G. McCullough, Michael D. Payne, Gregson T. Haan, for appellee.

There is no evidence in the record contradicting the affidavits and business records introduced by Beal Bank, which plainly show the principal debt and interest due. Accordingly, “the trial court did not err in granting summary judgment based on the evidence contained therein.” (Citations omitted.) Boyd v. Cavalry Portfolio Svcs., 285 Ga. App. 390, 392 (1) (646 SE2d 496) (2007). As for the claim that there is insufficient documentation to support the interest calculations, the affiant’s explanation that interest was calculated per the terms of the note, as evidenced by the attached payment history, was sufficient to support the trial court’s order. See OVIP, Inc. v. Blockbuster Textiles, 289 Ga. App. 276, 280 (3) (656 SE2d 907) (2008).

4. In two separate enumerations of error, the appellants challenge the award of attorney fees on the basis that the trial court erroneously applied Georgia law and instead should have applied Mississippi law. As discussed above in Division 2, the appellants did not provide sufficient notice of their intent to rely on foreign law. “Accordingly, the trial court did not err in applying Georgia law.” Godinger Silver Art, supra at 390 (2).

Judgment affirmed.

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


author: McFadden, Judge.

text:
    A11A1141.
    WASHINGTON v. THE STATE.
    (715 SE2d 495)
   McFadden, Judge.

Eric Washington appeals his convictions for burglary and carrying a concealed weapon. He argues that the trial court erred in admitting a photograph and that the evidence does not support the convictions. Because we find that the state established a sufficient foundation for the admission of the photograph and that the evidence supports the convictions, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that the victim, Cartez Weaver, lived in an apartment in College Park. His neighbor, Lenora Alexander, happened to look out of her window and saw Washington and William Edwards walking toward the end of the apartment building. She saw one of the men push the door of Weaver’s apartment, number 1904, with his shoulder. Weaver was not at home at the time, and no one had permission to enter his apartment. The men walked away from apartment 1904 and entered apartment 1901. Alexander called the police. While Alexander was still on the phone, she saw Washington and Edwards exit apartment 1901 and return to apartment 1904. Phelip Fox, who lived in 1901, and Antwan Haywood also exited 1901, although they did not enter 1904. One of the men began working the lock on the door. Washington and Edwards entered 1904. Alexander was still on the phone when Washington and Edwards exited the apartment. It looked as if they were concealing something under their shirts. All four men reentered apartment 1901, where the police arrested them a short time later. When the police arrested Washington, he had a small firearm in his rear pocket. Alexander identified the four men to the police.

The frame of the door to apartment 1904 was shattered. The apartment was ransacked. A ring, a necklace, a Kyocera cell phone and $800 were missing from the apartment.

The next day, Fox’s father allowed the police to search his apartment. Weaver’s mother accompanied them. Ms. Weaver saw items belonging to her son in the bathroom. The county photographer took a photo of the items on the bathroom counter.

1. Washington contends that the trial court erred in admitting the photograph of the items on the bathroom counter. Weaver identified his necklace, his ring and the cell phone from the photograph. The state later admitted the items themselves, and Weaver identified the ring and necklace as his, but testified that although the cell phone was similar to his, it was not his.

Decided July 27, 2011.

James W. Bradley, for appellant.

As a general rule, before a photograph may be introduced in evidence, it must be authenticated by a showing that it is a fair and truthful representation of what it purports to depict. The quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter to be left within the discretion of the trial court.

(Citations and punctuation omitted.) McCoy v. State, 190 Ga. App. 258, 262 (6) (a) (378 SE2d 888) (1989). One of the officers who participated in the search of the Foxes’ apartment testified that the photograph was a fair and accurate description of what he observed, the bathroom counter in the apartment. “Because that testimony satisfied the basic foundational requirements, the trial court did not err in [admitting the photograph].” (Citation omitted.) Hamilton v. State, 274 Ga. 582, 586 (8) (555 SE2d 701) (2001). The fact that Weaver testified that the cell phone was not his went to the weight, not the admissibility, of the photograph. See CFUS Properties v. Thornton, 246 Ga. App. 75, 78 (2) (539 SE2d 571) (2000).

2. “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. ...” OCGA § 16-7-1 (a). The evidence, including the eyewitness testimony identifying Washington as one of the men who forced his way into Weaver’s apartment and the fact that items were taken from the apartment, is sufficient to support Washington’s burglary conviction. See Morton v. State, 276 Ga. App. 421, 422 (1) (623 SE2d 239) (2005).

At the time of the incident, the offense of carrying a concealed weapon was defined by OCGA § 16-11-126 (a) (2008) as when a person “knowingly has or carries about his or her person, unless in an open manner and fully exposed to view, any . . . firearm . . . outside of his . . . home or place of business. ...” The evidence that when the police arrested Washington in the Foxes’ apartment, he had a small firearm in his back pocket supports the conviction of carrying a concealed weapon. Daniel v. State, 170 Ga. App. 795 (1) (318 SE2d 218) (1984).

Judgment affirmed.

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

Tracy Graham-Law son, District Attorney, Caroline C. Owings, Assistant District Attorney, for appellee.


author: PHIPPS, Presiding Judge.

text:
    A08A2246.
    HAMILTON-KING et al. v. HNTB GEORGIA, INC. et al.
    (715 SE2d 476)
   PHIPPS, Presiding Judge.

This is the second appearance of this case in this court. In the first appearance, Lakeisha Hamilton-King and others appealed from the grant of summary judgment to an architectural engineering firm and general contractor based on the trial court’s determinations that expert testimony was inadmissible and that, without expert testimony to establish the standard of care and breach thereof, the evidence was insufficient to create an issue of material fact as to liability. We reversed the grant of summary judgment to the defendants, holding that the expert’s testimony should not have been excluded. On certiorari, the Supreme Court of Georgia held that the expert testimony was inadmissible, reversed this court’s decision and remanded the case for this court to determine whether a simple negligence claim remains and, if so, whether a genuine issue of material fact remains as to that claim. We hold that no simple negligence claim remains. Accordingly, we adopt the opinion of the Supreme Court and affirm the judgment of the trial court granting summary judgment to the defendants.

Hamilton-King and her brothers (collectively, the Hamiltons) were involved in an automobile accident at night in a bridge construction zone on Interstate 95. The Hamiltons exited their vehicle and, shortly thereafter, were struck by another vehicle; the Hamiltons were injured, one fatally.

Alleging that their injuries were caused wholly or in part by a lack of proper lighting and signage leading up to and in the construction area, the Hamiltons filed a negligence action against the architectural engineering firm that designed the construction project, HNTB Georgia, Inc., and the general contractor for the project, Plant Improvement Company, Inc. In their complaint, the Hamiltons alleged that HNTB had a duty to exercise reasonable care in drafting architectural plans for the project, and that it breached that duty by failing to call for proper lighting and proper signage in the area. As to Plant Improvement, the Hamiltons alleged that it had a duty to exercise reasonable care in properly implementing its contract with and specifications provided to it by the Georgia Department of Transportation (DOT), “in accordance with generally accepted standards in effect at the time of construction”; and that it breached its duty by failing to implement proper lighting in and proper signage leading up to the work area, as required by the Manual on Uniform Traffic Control Devices (MUTCD).

To support their negligence claims, the Hamiltons relied upon the testimony of two professional engineers; the expert testimony, they maintained, showed that the bridge should have had shoulders or, in the absence of shoulders, lighting and additional signage. One of the engineers averred that the MUTCD does not address every condition encountered in a construction zone and, as such, the MUTCD requires the use of engineering judgment, which judgment is part of a traffic control plan.

HNTB moved to exclude the experts’ testimony, challenging the witness’s qualifications and opinions. HNTB also moved for summary judgment, arguing that the Hamiltons’ claim against it was for professional negligence and that there was no admissible evidence of the standard of care or breach thereof. In responding to these motions, the Hamiltons did not deny that their claim was one for professional negligence. Instead, they pointed to what they urged was admissible expert evidence of HNTB’s breach of the standard of professional care, and contended that summary judgment was therefore not warranted.

Plant Improvement also moved for summary judgment, arguing, among other things, that one of the Hamiltons’ experts had conceded that lighting was not required in the area and that he could not conclude that the lack of signage caused either collision. In opposing this motion, the Hamiltons pointed to evidence that Plant Improvement was responsible for developing a traffic control plan for the project and to expert testimony regarding alleged safety deficiencies in the construction zone (including failure to comply with the MUTCD). The Hamiltons argued that the credibility to be given the expert witnesses and the weight to be given that testimony was for the jury to determine.

At issue at this point in the proceedings is the following: Did the Hamiltons assert a simple (ordinary) negligence claim against HNTB and Plant Improvement? If so, do genuine issues of material fact remain regarding any such claims?

Whether a complaint alleges ordinary negligence or professional malpractice is a question of law for the court, regardless of how the plaintiff categorizes it. Although complaints against professionals may state claims based on ordinary as well as professional negligence, where the allegations of negligence against a professional involve the exercise of professional skill and judgment within the professional’s area of expertise, the action states professional negligence. If a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice. However, administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence.

1. Did the Hamiltons assert a simple negligence claim against HNTB? In their complaint, the Hamiltons alleged that HNTB was liable because it had a duty to exercise reasonable care in drafting architectural plans in substantial compliance with generally accepted engineering or design standards, and that it breached that duty. Notably, when HNTB moved for summary judgment, the Hamiltons’ opposition thereto discussed the testimony of the experts, and contained no argument that the complaint was based on ordinary negligence. The Hamiltons’ allegations of negligence against HNTB involved the exercise of professional skill and judgment within HNTB’s area of expertise, and went to the propriety of its professional decisions rather than to the efficacy of its conduct in carrying out decisions previously made. Thus, the claim against HNTB sounded in professional malpractice only; no simple negligence claim was asserted.

2. Did the Hamiltons assert a simple negligence claim against Plant Improvement? In their complaint, the Hamiltons alleged that Plant Improvement had a duty to exercise reasonable care in properly implementing the contract and specifications provided it by the DOT, in accordance with generally accepted standards. They further alleged that Plant Improvement breached its duty by failing to implement proper lighting and signage in the work area, as required by the MUTCD. As noted above, in their brief filed in opposition to the summary judgment motion, the Hamiltons argued and pointed to evidence that Plant Improvement was responsible for developing a traffic control plan for the project, and that the MUTCD required the exercise of professional judgment. The development of traffic control plans in a construction project is not an administrative, clerical, or routine act demanding no special expertise. The allegations of negligence against Plant Improvement involved the exercise of professional skill and judgment within the professional’s area of expertise; the claim went to the propriety of Plant Improvement’s professional decision rather than to the efficacy of its conduct in carrying out a decision previously made. Whether Plant Improvement personnel should have recognized that the lighting and signage on and near the bridge were inadequate were design questions that required expert testimony. Accordingly, the claim sounded in professional malpractice.

Decided July 14, 2011

Reconsideration denied July 28, 2011

Savage, Turner, Pinson & Karsman, Brent J. Savage, Kathryn H. Pinckney, Clark & Williams, Nathan T. Williams, for appellants.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard A. Brown, Jr., Steven G. Blackerby, Carlock, Copeland & Stair, Gregory H. Wheeler, for appellees.

Notably, the Hamiltons did not argue to the trial court that summary judgment in favor of Plant Improvement was not authorized because genuine issues of material fact remained on an ordinary negligence claim. The Hamiltons’ arguments — whether the expert testimony was sufficient to survive the summary judgment motion — concerned professional negligence only. No claim for ordinary negligence was asserted against Plant Improvement.

3. Because no claims for ordinary negligence were asserted against either defendant, no genuine issue of material fact remains as to any such claims. The trial court’s grant of summary judgment to HNTB and Plant Improvement is affirmed.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

        Hamilton-King v. HNTB Ga., 296 Ga. App. 864 (676 SE2d 287) (2009).

       Id. at 869 (2).

        HNTB Ga. v. Hamilton-King, 287 Ga. 641 (697 SE2d 770) (2010).

        Hamilton-King, supra, 296 Ga. App. at 864-865.

       Id.

        Pattman v. Mann, 307 Ga. App. 413, 415-416 (701 SE2d 232) (2010) (punctuation and footnotes omitted); see Walls v. Sumter Regional Hosp., 292 Ga. App. 865, 868, 869 (2) (666 SE2d 66) (2008); Baskette v. Atlanta Center for Reproductive Medicine, 285 Ga. App. 876, 880 (4) (648 SE2d 100) (2007).

       See Pattman, supra.

       Id. at 416.

       See Dept. of Transp. v. Mikell, 229 Ga. App. 54, 56-58 (1) (a) (493 SE2d 219) (1997) (plaintiffs’ challenge to the choice of traffic control devices at an intersection involved the exercise of professional engineering judgment; thus, plaintiff was required to present expert engineering testimony on the issue to establish the applicable standard of care).

       See Pattman, supra.

       See id.; Dept. ofTransp., supra.

       Id.


author: Miller, Presiding Judge.

text:
    A10A1911.
    HUDSON v. THE STATE.
    (715 SE2d 442)
   Miller, Presiding Judge.

A Fulton County grand jury indicted David Hudson for two counts of aggravated sodomy (OCGA § 16-6-2 (a) (2)), one count of sexual battery (OCGA § 16-6-22.1 (b)), one count of battery (OCGA § 16-5-23.1 (a)), and one count of reckless conduct (OCGA § 16-5-60). Hudson appeals from the trial court’s denial of his motion for discharge and acquittal, arguing that the trial court erroneously found that his speedy trial demand did not satisfy the statutory pleading requirements of OCGA § 17-7-170. We agree and conclude that Hudson’s demand for speedy trial was properly pled as a separate, distinct, and individual document. Accordingly, we reverse the trial court’s order and remand this case for further proceedings.

This appeal presents a question of law, which we review de novo. Snow v. State, 229 Ga. App. 532 (494 SE2d 309) (1997).

The record shows that on June 23, 2009, Hudson was indicted in the Superior Court of Fulton County. On August 6, 2009, Hudson filed his demand for a speedy trial, together with ten other pleadings and motions upon a single form certificate of service. On September 17, 2009, the trial court granted the State’s motion to dismiss Hudson’s demand for failure to comply with the pleading requirements of OCGA § 17-7-170. Thereafter, on December 30, 2009, Hudson filed a motion for discharge and acquittal for failure to be tried within the time frame set forth in OCGA § 17-7-170. The trial court denied Hudson’s motion on April 16, 2010, finding that it was meritless in light of the prior dismissal of Hudson’s speedy trial demand. The instant appeal followed.

Hudson challenges the trial court’s denial of his motion for discharge and acquittal, as well as the underlying dismissal of his speedy trial demand, arguing that his demand satisfied the pleading requirements of OCGA § 17-7-170 (a) and that the trial court’s prior ruling to the contrary was error. We agree.

OCGA § 17-7-170 (a) pertinently sets forth the required form of a statutory speedy trial demand:

... A demand for speedy trial filed pursuant to this Code section shall be filed as a separate, distinct, and individual document and shall not be a part of any other pleading or document. Such demand shall clearly be titled “Demand for Speedy Trial”; reference this Code section within the pleading; and identify the indictment number or accusation number for which such demand is being made. . . .

As noted above, the record reflects that Hudson filed 11 different documents on August 6, 2009, all of which were listed upon a single certificate of service. One of the eleven documents filed included Hudson’s statutory demand for a speedy trial. Notwithstanding the absence of a separate certificate of service attached directly to Hudson’s speedy trial demand filing, see generally OCGA § 17-1-1 (e) (2), Hudson’s demand was otherwise its own separate, distinct, and individual document that was not a part of any of the ten additional documents filed on August 6, 2009. See OCGA § 17-7-170 (a). Compare Jones v. State, 304 Ga. App. 445, 449 (2) (b) (696 SE2d 346) (2010) (concluding defendant’s speedy trial demand was not a separate, distinct, and individual document where it was contained within the defendant’s motion to dismiss). Moreover, Hudson’s speedy trial demand complied with the additional pleading requirements of OCGA § 17-7-170 (a) insofar as the self-contained document clearly bears the title “DEMAND FOR SPEEDY JURY TRIAL,” references OCGA § 17-7-170 (a), and identifies the indictment number for which such demand is being made.

Decided July 11, 2011

Reconsideration denied July 28, 2011.

Teddy R. Price, for appellant.

Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.

We therefore conclude that, contrary to the trial court’s ruling otherwise, Hudson’s speedy trial demand complied with the pleading requirements as contemplated by OCGA § 17-7-170 (a). Consequently, the trial court erred in dismissing Hudson’s speedy trial demand. In light of this error, we hereby reverse the trial court’s order denying Hudson’s motion for discharge and acquittal and remand this case for further proceedings to determine whether Hudson’s statutory speedy trial demand satisfied all the remaining requirements of OCGA § 17-7-170.

Judgment reversed and case remanded for further proceedings.

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

       The State argues that Hudson’s demand for a speedy trial is nevertheless void under OCGA § 17-7-170 (b) for failure to show there were jurors empaneled and qualified to try Hudson within the term of court in which his demand was made or in the term of court which followed. However, this issue was not ruled upon by the trial court. Thus, we are not authorized to consider it on appeal. See Frank v. State, 257 Ga. App. 164, 167 (3) (570 SE2d 613) (2002) (“It is well settled that we will not consider errors, even those of constitutional magnitude, unless they were raised and ruled on in the trial court.”) (citation and punctuation omitted).