text:
    A13A2318.
    BROYARD v. THE STATE.
    (755 SE2d 36)
   Miller, Judge.

Following a jury trial, Kevin Broyard was convicted of armed robbery (OCGA § 16-8-41 (a)), two counts of aggravated assault (OCGA § 16-5-21 (a)), possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b) (1)), and fleeing or attempting to elude an officer (OCGA § 40-6-395 (a)). Broyard appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to sustain his convictions and (2) the trial court erred in failing to sever his trial from that of his co-defendant. For the reasons set forth below, we vacate Broyard’s conviction on one of the aggravated assault counts and remand this case for resentencing.

Viewed in the light most favorable to the jury’s verdict, the trial evidence shows that, on the night of July 12, 2008, Broyard drove his co-defendant, Nolan Welch, in a red pickup truck to the Burger King restaurant on the corner of Fairview Road and Panola Road in Henry County to get something to eat. Around 8:45 that evening, Welch entered the restaurant wearing blue jeans, a long-sleeved thermal shirt, a green and yellow hat and Nike shoes. Welch entered through the door on the right side of the restaurant, approached the front cashier, pulled out a black automatic pistol, pointed the pistol at her face, and told her to open the cash drawer (Count 3). In addition to the pistol, Welch was holding a blue and black bag.

When the cashier told Welch that the manager had the key to the cash drawer, Welch asked “[w]here’s the manager?” Welch waved the gun at the cashier and told her to slide over. The cashier then got down on the floor and crawled on her knees to the back of the restaurant. When the cashier got to the back, other employees opened up the drive-through window. The cashier, the back line cook and other employees then crawled through the window and ran to a McDonald’s where one of the employees called 911.

Meanwhile, the assistant manager, who was working the night shift, saw Welch enter the restaurant while the manager was helping a customer. When the cashier alerted the manager, he turned around and saw Welch in the green hat holding the pistol. Welch pointed the pistol at the manager’s face, and told the manager to open the cash register and empty it. While the manager was getting the key, Welch hit the manager over the head with the pistol and told the manager to hurry up (Count 2).

When the manager opened the cash drawer, Welch grabbed the drawer, took the money and hopped over the counter (Count 1). Welch then went to the drive-through area, pushed the manual button on the drive-through register, took the money in that drawer and hopped back over the counter. Welch removed more than $700 from the restaurant’s cash drawers and put the money in the blue and black bag. Welch then left the restaurant and got into the truck with Broyard, who drove out of the parking lot down Panola Road to Flakes Mill Road.

An officer, who was patrolling the area that night, received a radio call from dispatch about the armed robbery at the Burger King around 8:46 p.m. When the officer arrived at the restaurant, he was greeted by a group of employees who were in the restaurant’s parking lot. The employees informed the officer that they had been robbed and that the robber left in a red Ford pickup truck in the direction of Flakes Mill Road. The officer broadcast that information over the radio so that any responding units that were in the area could try to make contact with the suspect. The officer then secured the scene, assisted the manager who had an open wound on his head, and handed witness statement forms to everyone at the scene. The officer then notified the detective division and turned the investigation over to the responding detective.

A police sergeant, who was also in the area that night, heard the radio dispatch about the Burger King robbery. The sergeant headed toward Flakes Mill Road. When he stopped at the intersection of Amsler Road and Flakes Mill Road, a red Ford pickup truck passed by him. The sergeant pulled behind the truck and called in the tag number. The driver then hit the gas, turned left and went up a hill. At the top of the hill the road ended in a gravel driveway that went into the woods.

When the sergeant stopped behind the truck, Broyard and Welch jumped out, turned around and looked at the sergeant. Broyard and Welch then ran down the gravel driveway, and the sergeant followed them and yelled at them to stop. When Broyard stopped, the sergeant ordered him to the ground and handcuffed him. The sergeant called dispatch on his phone, and when other officers arrived on the scene, they took Broyard into custody. The sergeant then returned to the truck, which was still running. The doors of the truck were closed, so the sergeant looked through the windows and saw some clothes on the front seat, a blue bag and what looked like the butt of a handgun in the open glove compartment.

The crime scene technician who processed the red pickup truck, found the blue and black b ag containing $749 in cash, the gun and two cell phones. Subsequent investigation also revealed that the cell phone found on the driver’s side belonged to Broyard.

1. Broyard contends that the evidence was insufficient as a matter of law to support his convictions.

(a) Fleeing or attempting to elude an officer.

With regard to the crime of feeling or attempting to elude a pursuing police vehicle,

the relevant statute, OCGA § 40-6-395 (a), provides: [a]ny driver of a vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor.

(Citations and punctuation omitted.) Westmoreland v. State, 287 Ga. 688, 692-693 (4) (b) (699 SE2d 13) (2010).

Here, Broyard admitted that, after he and Welch left the Burger King, he “started freaking out” because he heard sirens, Welch had a gun and Welch told him that he had “just robbed the place[.]” Broyard also “hit the gas” when the sergeant pulled behind his truck, and he admittedly jumped out of the truck and ran from the sergeant, even though the sergeant repeatedly ordered him to stop. Accordingly, the evidence was sufficient to support Broyard’s misdemeanor conviction, as the driver of the vehicle, for fleeing an officer. See Dixson v. State, 313 Ga. App. 379, 383-384 (3) (721 SE2d 555) (2011); Tauch v. State, 305 Ga. App. 643, 646 (2) (700 SE2d 645) (2010).

.(b) Armed robbery, aggravated assault and possession of a firearm during the commission of a felony.

Aperson commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. OCGA § 16-8-41 (a). A person commits the offense of aggravated assault when he assaults with the intent to rob or with a deadly weapon which, when used offensively against a person is likely to or actually does result in serious bodily injury. OCGA § 16-5-21 (a).

A person commits the offense of possession of a firearm during the commission of a felony when he has on or within arm’s reach of his person a firearm during an armed robbery. See OCGA § 16-11-106 (b) (1). “Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commissionofacrimearespecificallyauthorizedbyOCGA § 16-11-106 (e).” (Citations and punctuation omitted.) Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991). Moreover, this Court has held that

[a] defendant is a party to a crime if he intentionally aids or abets the commission of the crime, or advises, encourages, hires, counsels, or procures another to commit it. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. Further, where a getaway driver waited for his co-defendant to return to the car, the driver was also guilty of his co-defendant’s crimes.

(Citations and punctuation omitted.) Johnson v. State, 299 Ga. App. 706, 708 (1) (a) (683 SE2d 659) (2009).

Where a party has committed armed robbery and possession of a firearm during commission of a felony, an accomplice who is concerned in the commission of those crimes under OCGA § 16-2-20 is likewise guilty of both offenses, notwithstanding the fact that the accomplice did not have actual possession of the firearm.

(Citation and punctuation omitted.) Bryson v. State, 316 Ga. App. 512, 514 (1) (729 SE2d 631) (2012). See also Howze, supra, 201 Ga. App. at 97.

Essentially, under the facts of this case, the law allows Broyard to be charged with and convicted of the same offenses as his co-defendant Welch. Notably, the evidence showed that Broyard drove Welch to the Burger King on the night of the crimes, he waited as the getaway driver for Welch to return, and he and Welch fled from the scene in his truck after the robbery. Proof of Broyard’s direct commission of the crimes was not required because the jury could infer his participation in the crimes from his conduct before, during and after the crimes. See Washington v. State, 285 Ga. 541, 542 (1) (678 SE2d 900) (2009); Bryson, supra, 316 Ga. App. at 515 (1) (defendant’s flight from officers and act of driving the getaway car were additional circumstances from which the jury could infer his guilt as a party to the crimes). Accordingly, the evidence as set forth above was more than sufficient to support Broyard’s convictions as a party to the crimes of armed robbery, aggravated assault against the manager and cashier, and possession of a firearm during the commission of the armed robbery.

(c) Merger of Broyard’s convictions for armed robbery and aggravated assault of the manager.

Merger is one area of law where, even if the defendant did not raise it on appeal, the Supreme Court of Georgia and this Court may still consider these issues and vacate convictions and sentences. Nazario v. State, 293 Ga. 480, 486 (2) (b) (746 SE2d 109) (2013). Moreover, merger claims cannot be waived because a conviction that merges as a matter of law or fact with another conviction is void, and any resulting sentence is void and illegal. Id. at 485 (2) (b).

Here, Broyard was indicted for and convicted of armed robbery (Count 1) as a party to Welch’s actions in taking Burger King’s money while in the immediate presence of the manager by use of a gun. Although Broyard’s indictment for aggravated assault (Count 2) alleged that the crime was committed by the act of striking the manager about the head with the gun, the evidence as set forth above clearly shows that the armed robbery began when Welch pointed the gun at the manager and demanded cash from the register. Welch hit the manager on the head with the gun when the manager did not immediately comply with his demand to give him the cash. Because the aggravated assault arose out of the same act or transaction as the armed robbery, it was included in and merged with the armed robbery as a matter of fact. For this reason, Broyard’s conviction and sentence for aggravated assault against the manager must be vacated. See Bradley v. State, 292 Ga. 607, 610 (1) (c) (740 SE2d 100) (2013) (armed robbery and aggravated assault arose out of same act or transaction where defendant pointed gun at victim and immediately thereafter took money from a cigar box).

2. Broyard also contends that the trial court erred in failing to sever his trial from Welch’s. We discern no error.

As a preliminary matter, although Broyard argued at his motion for new trial hearing that he requested severance some time before the trial started, the record reveals that no motion was filed. Welch, not Broyard, raised the issue of severance at trial. Accordingly, Broyard has waived any error. See Allen v. State, 273 Ga. App. 227, 230 (2) (b) (614 SE2d 857) (2005). Even if not waived, however, Broyard failed to show that the trial court abused its discretion.

The decision whether to grant a severance lies within the discretion of the trial court. OCGA § 17-8-4 (a); Mapp v. State, 258 Ga. 273, 274 (3) (368 SE2d 511) (1988).

In exercising its discretion, the trial court must consider the following factors: (1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights.

(Citations and punctuation omitted.) Jones v. State, 315 Ga. App. 427, 431 (2) (727 SE2d 216) (2012). Nevertheless, “[i]t is incumbent upon the defendant who seeks a severance to show clearly that he will be prejudiced by a joint trial, and in the absence of such a showing, the trial court’s denial of a severance motion will not be disturbed.” (Footnote omitted.) Green v. State, 274 Ga. 686, 688 (2) (558 SE2d 707) (2002). Moreover, “the fact that the evidence as to one of two co-defendants is stronger does not demand a finding that the denial of a severance motion is an abuse of discretion, where there is evidence showing that the defendants acted in concert.” (Citation and punctuation omitted.) Strozier v. State, 277 Ga. 78, 81 (5) (b) (586 SE2d 309) (2003).

In this case, Broyard has failed to show that the evidence may have been confusing to the jurors, especially since there were only two co-defendants involved in the case. See Jones, supra, 315 Ga. App. at 431-432 (2). Moreover, the evidence showed that Broyard acted in concert with Welch, because he drove Welch to the Burger King, waited in the getaway truck, and fled with Welch after the robbery. Finally, during the hearing on Welch’s severance motion, Broyard concurred with the State’s argument that the case was fairly straightforward. Accordingly, Broyard did not show that the trial court abused its discretion in failing to sever his trial. See Strozier, supra, 277 Ga. at 81 (5) (b).

In sum, we affirm Broyard’s convictions for armed robbery, fleeing or attempting to elude an officer and possession of a firearm during the commission of a crime. We also affirm his convictions for aggravated assault against the cashier (Count 3). We vacate Broyard’s conviction for aggravated assault against the manager (Count 2), and remand this case for resentencing.

Decided February 21, 2014.

Brandon Lewis, for appellant.

James L. Wright III, District Attorney, Ralph Bailey, Jr., Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Barnes, P. J., concurs. Ray, J., concurs fully in all but Division 1 (c) and in the judgment only as to Division 1 (c).

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The investigation revealed that the cell phone found on the passenger side of the truck belonged to Welch.


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A13A1938.
    FISHER et al. v. GALA et al.
    (754 SE2d 160)
   ELLINGTON, Presiding Judge.

Dorian Fisher filed this medical malpractice action in the Superior Court of Fulton County against Vishal Gala, M.D., Regis Haid, M.D., and Atlanta Brain and Spine Care, PC. (collectively, “the neurosurgeons”). The neurosurgeons moved to dismiss the complaint, averring that the physician who gave the affidavit submitted with Fisher’s complaint was not competent to testify regarding the neurosurgical care at issue and, therefore, that the affidavit was defective under OCGA § 9-11-9.1. Fisher filed an amended complaint along with the affidavit of a board-certified neurosurgeon. After a hearing on the neurosurgeons’ motion to dismiss, the trial court ruled that Fisher failed to show that the original affiant-physician was competent to testify and, therefore, that the affidavit was defective. In addition, the trial court held that Georgia law does not authorize a plaintiff to cure such a defect by filing an amended complaint with the affidavit of a different expert. Based on these determinations, the trial court granted the neurosurgeons’ motion to dismiss Fisher’s complaint. Fisher appeals, and, for the reasons explained below, we reverse.

The following facts are relevant to this appeal. On July 10, 2012, Fisher filed his complaint against the neurosurgeons. Fisher claimed that he sought treatment after he sustained a back injury in March 2010. After diagnostic testing, Fisher’s initial treating physicians diagnosed a possible intradural spinal cord tumor. Fisher sought-a second opinion with Dr. Gala, who also diagnosed an intradural spinal cord tumor, specifically, a schwannoma. Dr. Gala recommended a laminectomy at the L5-S1 level of Fisher’s spine and removal of the suspected schwannoma. Dr. Gala and Dr. Haid performed the surgery on July 13, 2010. According to Fisher, the surgery revealed no schwannoma at L5-S1, although the neurosurgeons found a bundle of clumping nerve roots consistent with arachnoiditis, and they then explored the S1-S2-S3 level. Still finding no schwannoma, the neurosurgeons explored the dura and, finding no lesion, patched the dura and ended the surgery. In his claim for medical malpractice, Fisher alleged that the neurosurgeons were negligent in diagnosing him with a schwannoma rather than arachnoiditis, that they performed unnecessary and suboptimal neurosurgical procedures (lumbar laminectomy, durotomy, and intradural exploration), and that, as a result of their negligence, he suffered serious complications and permanent disabilities.

With his initial complaint, Fisher filed the affidavit of James Rogan, M.D., who opined that the neurosurgeons violated the standard of care in failing to provide a proper diagnosis of Fisher’s condition and in performing an unnecessary and suboptimal surgery which revealed no intradural tumor and which caused post-surgical complications and permanent disabilities. With regard to the basis of his knowledge in performing the procedures, diagnosing the conditions, or rendering the treatments at issue, Dr. Rogan averred that he is board-certified by the American Board of Family Practice, that at least 80 percent of his general practice is devoted to the care of disabled patients and those with neurological disabilities, and that he is familiar with and has personal knowledge of the standard of skill exercised by physicians generally under the same conditions and like surrounding circumstances as those presented by Fisher.

On August 9, 2012, the neurosurgeons filed a motion to dismiss, challenging Dr. Rogan’s competency to testify concerning the neurosurgical care at issue. Fisher filed his amended complaint, with the affidavit of Michael Dogali, M.D., on September 7, 2012. Dr. Dogali opined that, during the July 13, 2010 surgery, the neurosurgeons were negligent in failing to protect the nerves of the cauda equina sufficiently and that, as a result, irreversible nerve injuries occurred during the surgery. Dr. Dogali’s affidavit showed that he was a board-certified neurosurgeon and that, at the time of the neurosurgeons’ alleged negligence, he had been regularly engaged in the active practice of neurosurgery for at least three of the preceding five years, including performing lumbar intradural surgical procedures and otherwise providing the type of care at issue.

As noted above, in granting the neurosurgeons’ motion to dismiss, the trial court ruled that a plaintiff cannot comply with OCGA § 9-11-9.1 by filing with a medical malpractice complaint an affidavit given by an expert who is not competent to testify under the applicable standard and then cure such a deficiency by filing an amended complaint with an affidavit given by another expert who is competent to testify. Because this issue is a legal question, not one involving an exercise of the trial court’s discretion, our review is de novo, and we view the pleadings in the light most favorable to Fisher, resolving any doubts in his favor. See Ndlovu v. Pham, 314 Ga. App. 337, 338 (723 SE2d 729) (2012); Craigo v. Azizi, 301 Ga. App. 181, 183-184 (687 SE2d 198) (2009).

Because Fisher’s complaint raised a claim for professional malpractice against medical doctors and against a licensed health care facility alleged to be liable based upon the doctors’ actions, OCGA § 9-11-9.1 (a) required him “to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” See Jensen v. Engler, 317 Ga. App. 879, 881 (733 SE2d 52) (2012); OCGA § 9-11-9.1 (a) (1), (a) (3), (g) (11) (effective ■July 1,2007). At the relevant time, “[t]he standard for determining an expert’s competence to testify [was] governed by [former] OCGA § 24-9-67.1, and the statute applie[d] to affiants under OCGA § 9-11-9.1.” (Citation, punctuation and footnote omitted.) Aguilar v. Children’s Healthcare of Atlanta, 320 Ga. App. 663, 664 (739 SE2d 392) (2013).

In this case, the neurosurgeons’ argument that Dr. Rogan was incompetent to testify regarding the neurosurgical care at issue was well taken. If a plaintiff files an affidavit with his or her complaint, and the defendant to whom a claim of malpractice pertains

alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff’s complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective.

OCGA § 9-11-9.1 (e). Under this provision,

[i]f the plaintiff files an expert affidavit that is inadequate for some reason, the defendant can move to dismiss the case, but . . . dismissal is warranted in such a case only if the motion identifies with specificity the respects in which the affidavit is inadequate, and only if the plaintiff fails within 30 days to cure these inadequacies by amendment.

(Punctuation and footnote omitted.) Ndlovu v. Pham, 314 Ga. App. at 337-338. See also Porquez v. Washington, 268 Ga. 649, 651-652 (1) (492 SE2d 665) (1997) (When an expert affidavit is initially filed with a complaint alleging malpractice, a plaintiff is allowed to supplement the affidavit if the defendant disputes the sufficiency of the affidavit, either as to the expert’s competency or as to the sufficiency of the expert’s statements regarding negligent acts.); Harris v. Murray, 233 Ga. App. 661, 666 (3) (504 SE2d 736) (1998) (accord); see also Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga. App. 534, 535-537 (510 SE2d 101) (1998) (holding that the original affidavit could be amended or a new valid affidavit substituted for it, and that, because such had been accomplished before the trial court ruled on the motion to dismiss, the suit was no longer subject to dismissal under OCGA § 9-11-9.1).

Fisher contends that, pursuant to the cure provision of OCGA § 9-11-9.1 (e), he cured the deficiency in the affidavit filed with his original complaint by filing an amended complaint with a substitute affidavit from a new expert, citing Piscitelli v. Hosp. Auth. of Valdosta, 302 Ga. App. 746, 752 (691 SE2d 615) (2010).

As in this case, the trial court in Piscitelli “was called upon to determine whether dismissal was warranted under OCGA § 9-11-9.1 for failure to satisfy the requirements set forth by OCGA § 24-9-67.1 (c) (2) and (e)” regarding an affiant’s competency to testify in a medical malpractice action. 302 Ga. App. at 751. As in this case, before the trial court in Piscitelli heard and ruled on the defendant’s motion to dismiss based on the original affiant’s incompetency, the plaintiff filed the affidavit of a new expert. Id. at 747-748. As in this case, the defendant never challenged the new affiant’s competency to testify, and the trial court did not consider whether the affidavit of the new expert satisfied OCGA § 9-11-9.1’s pleading requirement. We ruled that,

given [the new affiant’s] admittedly wholly unchallenged affidavit, which was submitted in support of [the plaintiff’s] professional malpractice action against the [defendant], dismissal of that action based upon a competency determination concerning only [the original affiant] . . . was error.

(Footnote omitted.) Id. at 753. We therefore reversed the dismissal of the plaintiff’s complaint. Id.

We discern no meaningful basis for distinguishing the instant case from Piscitelli. Furthermore, we are mindful that, although OCGA § 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it nevertheless must be construed in a manner consistent with the liberality of the Act, so long as such a construction does not detract from the gatekeeping function of OCGA § 9-11-9.1’s pleading requirement, which is to reduce the number of frivolous malpractice suits. Porquez v. Washington, 268 Ga. at 652 (l). In particular, allowing a plaintiff a broad right of curing an allegedly defective affidavit by amendment “does not defeat the purpose of the statute, but instead helps to insure that the complaint is not frivolous.” Id. In this case, once the neurosurgeons challenged the sufficiency of the supporting affidavit, Fisher availed himself of the cure provision of OCGA § 9-11-9.1 (e), and Dr. Dogali’s unchallenged affidavit shows that the purpose of OCGA § 9-11-9.1 is satisfied. We conclude that, under the circumstances, the trial court erred in disregarding Dr. Dogali’s affidavit and dismissing Fisher’s action based upon a competency determination concerning only Dr. Rogan. Piscitelli v. Hosp. Auth. of Valdosta, 302 Ga. App. at 753. See also Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga. App. at 536 (Allowing amendment by substitution with a valid affidavit served the gatekeeper purpose of OCGA § 9-11-9.1 and “at the same time allow[ed] a person with an arguably meritorious complaint against a professional for malpractice to enter the door of the courthouse for an airing of her complaint on its merits.”).

Decided February 6, 2014

Reconsideration denied February 24, 2014

Belli, Weil, Grozbean & Davis, Douglas J. Davis, for appellants.

Weathington Smith, Paul E. Weathington, J. Paul Mitchell, for appellees.

Judgment reversed.

Phipps, C. J., concurs. Branch, J., concurs in judgment only.

       In the same action, Fisher’s wife, Michelle, asserted a claim for loss of consortium. The trial court’s order applied to her claim as well, and she joins in this appeal.

       See Hewett v. Kalish, 264 Ga. 183, 184 (442 SE2d 233) (1994) (When an affidavit shows on its face that the affiant is competent to testify under the applicable standard, but a defendant believes that the plaintiff’s expert is in fact incompetent, “the defendant may attempt to resolve this discrepancy at [an evidentiary] hearing under OCGA § 9-11-12 (d).”).

       Former OCGA§ 24-9-67.1 (c) (2) provided that, in a medical malpractice action, the opinions of an expert shall be admissible
      only if, at the time the act or omission is alleged to have occurred, such expert.. . had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in... [t]he active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or . . . [t]he teaching of his or her profession [as specified].
      Former OCGA § 24-9-67.1 (e) provided, “[a]n affiant must meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1.” We note that former OCGA § 24-9-67.1 was repealed, effective January 1,2013; OCGA § 24-7-702 (c), which became effective on that date, contains the same standard for determining an expert’s competence to testify as former OCGA § 24-9-67.1. See Ga. L. 2011, pp. 99,124-125, § 2 (Act 52); City of Atlanta v. Bennett, 322 Ga.App. 726, 730, n. 11 (746 SE2d 198) (2013). Because the provisions of Georgia’s new Evidence Code apply “to any motion made or hearing or trial commenced on or after [January 1, 2013,]” Ga. L. 2011, pp. 99, 214, § 101, andbecause the relevant hearing occurred before that date, the prior Evidence Code applies in this case. City of Atlanta v. Bennett, 322 Ga. App. at 730, n. 11.

       As noted above, Dr. Rogan opined that the neurosurgeons failed to diagnose Fisher’s condition of arachnoiditis, instead diagnosed his condition as an intradural schwannoma, and performed an unnecessary and suboptimal surgery (lumbar laminectomy, durotomy, and intradural exploration). Dr. Rogan failed to aver, however, that, at the time the neurosurgeons diagnosed Fisher’s spinal condition and performed the surgery, he (Dr. Rogan) had for at least three of the preceding five years regularly engaged in the active practice (or teaching) of neurosurgery or in any overlapping area of practice or specialty that involves knowledge of the diagnosis of intradural spinal tumors and related neurosurgical treatment.

       See also Walker v. Cromartie, 287 Ga. 511, 512 (2) (696 SE2d 654) (2010) (“The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice lawsuits being filed against professionals. The requirement of filing an expert affidavit at the time the complaint is filed serves this stated purpose because it requires plaintiffs to find an expert who will attest that at least one act of professional negligence has occurred, thereby reducing the number of frivolous claims filed.”) (citation omitted); Labovitz v. Hopkinson, 271 Ga. 330, 336 (519 SE2d 672) (1999) (The legislative intent in enacting OCGA § 9-11-9.1 “was to enact a statute which sought to reduce the number of frivolous professional malpractice actions by placing a procedural hurdle before those plaintiffs who sought damages for professional negligence.”);
        Handson v. HCA Health Svcs., 264 Ga. 293, 294 (443 SE2d 831) (1994) (OCGA§ 9-11-9.1 imposes “merely an initial pleading requirement!.] • • • The purpose of this statute is ... not to force a plaintiff to prove in his pleadings a prima facie case entitling him to a recovery. In addition, the expert affidavit should be construed most favorably to the plaintiff and all doubts resolved in his favor, even if an unfavorable construction of the affidavit is possible, so long as such a construction does not detract from the stated purpose of reducing the number of frivolous malpractice suits.”) (citations and punctuation omitted); Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga. App. at 534-535 (With regard to amended or substituted affidavits, “plaintiffs must be afforded wide berth to conform to the requirements of OCGA § 9-11-9.1 in accordance with the liberality of the Civil Practice Act as long as the purpose of the affidavit requirement, which is to reduce frivolous malpractice actions, is not thwarted.”).

       WenotethatthebreadthoftherightofaplaintifftoamendisreflectedinOCGA § 9-11-9.1 (e)’s provision that a plaintiff may cure deficiencies “by amendment pursuant to Code Section 9-ll-15[,]” although the liberality of amendments otherwise allowed under that Code Section istemperedby OCGA § 9-11-9.1 (e)’s time limitations. See Jensen v. Engler, 317 Ga. App. at 883; Richard C. Ruskell, Davis and Shulman’s Ga. Practice and Procedure, § 13.1 (database updated September 2012).


author: Miller, Judge.

text:
    A13A2159.
    KEMPER v. BROWN et al.
    (754 SE2d 141)
   Miller, Judge.

Amy Marie Kemper appeals from the trial court’s order granting Christopher Brown’s motion to enforce a settlement agreement in a personal injury action arising from a motor vehicle accident. Kemper contends that Brown did not unconditionally and unambiguously accept her settlement offer, and that his purported acceptance amounted to a counteroffer. For the reasons that follow, we reverse.

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

(Citation and punctuation omitted.) Johnson v. DeKalb County, 314 Ga. App. 790, 791 (726 SE2d 102) (2012).

So viewed, the evidence shows that on March 10, 2012, Kemper was riding her motorcycle when she was struck by a vehicle driven by Brown. Kemper suffered serious injuries and was transported by air to Atlanta Medical Center to receive emergency medical care. Brown was charged with multiple traffic violations, including reckless driving and driving under the influence.

At the time of the accident, Brown had an automobile insurance policy issued by Equity Insurance Company (“Equity”), and the policy had a per person bodily coverage limit of $25,000. Kemper’s insurer, Progressive Insurance Company, notified Equity of the loss, and Equity assigned the claim to its third-party claims administrator, Statewide Claims Services (“Statewide”).

On May 18, 2012, while Kemper was at the hospital receiving treatment for her injuries, she sent a demand letter to Statewide. The letter provided, in relevant part:

Please send all the insurance money that Mr. Brown had under his insurance policy. In exchange, I will agree to sign a limited release.
The release must not have any language saying that I will have to pay Mr. Brown or his insurance company any of their incurred costs.
The check should be made payable to Amy M Kemper and the check and release must be delivered to my address____ It must be delivered no later than June 8, 2012 (21 days) from today’s date.
If you fail to meet my demand, I will be forced to hire an attorney and sue Mr. Brown and your company. Please do not contact me, or my friends [,] as this demand is very simple.

(Emphasis omitted.)

On June 5, 2012, Statewide sent a letter to Kemper agreeing to settle her claims for the limits of Brown’s liability insurance. Attached to the letter was a $25,000 check and a two-page limited liability release form. The letter stated, in relevant part, “[i]n concluding the settlement, we are entrusting that you place money in an escrow account in regards to any and all liens pending. This demand is being asserted to protect the lien’s interest[.]” The limited liability release form also contained indemnification language providing that Kemper would agree to indemnify Equity and Brown “in the event any entity makes a claim against any one of them either for reimbursement of medical bills or other treatment expenses_incurred for treatment following, and as a result of, said accident, for subrogation or for statutory right of reimbursement.”

On July 31, 2012, Kemper, who had retained counsel, notified Statewide that she considered the June 5,2012 letter to be a counteroffer because it contained a demand that she place settlement funds into an éscrow account. Kemper stated that she was rejecting the counteroffer, and she subsequently filed suit against Brown. Brown answered and filed a motion to enforce the purported‘settlement agreement. The trial court granted Brown’s motion, and this appeal ensued.

1. Kemper contends that the purported settlement agreement was not enforceable because Brown’s response, through Statewide, to her settlement demand was not unconditional or identical to the terms of her offer. In particular, Kemper argues that Statewide’s demand that she place settlement funds into an escrow account constituted a counteroffer. We agree.

The law favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.

(Citation and punctuation omitted.) Johnson, supra, 314 Ga. App. at 793 (1). “[Settlement agreements must meet the same requirements of formation and enforceability as other contracts.” (Footnote omitted.) Torres v. Elkin, 317 Ga. App. 135, 141 (2) (730 SE2d 518) (2012). To establish a contract, the offer must be accepted unequivocally and without variance of any sort. Anderson v. Benton, 295 Ga. App. 851, 855 (1) (673 SE2d 338) (2009). Apurported acceptance of an offer that varies even one term of the original offer is a counteroffer. Butler v. Household Mtg. Svcs., 266 Ga. App. 104, 106 (1) (596 SE2d 664) (2004).

In deciding whether a purported acceptance imposes conditions rendering it a counteroffer, we must consider whether additional terms are “precatory words.” Torres, supra, 317 Ga. App. at 141 (2). “Precatory words are words whose ordinary significance imports entreaty, recommendation, or expectation rather than any mandatory direction.” (Citation and punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994).

Applying these principles to the facts in this case, we conclude that Statewide’s June 5, 2012 letter to Kemper clearly constituted a counteroffer. In that letter, Statewide demanded that Kemper place settlement funds into an escrow account for the purpose of protecting the interests of any pending liens. Statewide’s response did not merely inquire about the existence of liens against Kemper’s causes of action. See McReynolds v. Krebs, 290 Ga. 850, 853-854 (2) (725 SE2d 584) (2012) (holding that a mere request for confirmation regarding existence of liens will not transform a purported acceptance into a counteroffer, but adding condition involving resolution of liens will). Rather, by using the term “demand,” Statewide clearly expressed a condition that Kemper was required to satisfy for Statewide’s acceptance to be effective. See id. (purported acceptance letter imposed additional condition of lien resolution as part of settlement); Frickey v. Jones, 280 Ga. 573, 575 (630 SE2d 374) (2006) (purported acceptance letter conditioned settlement upon resolution of medical liens not mentioned in offer); Torres, supra, 317 Ga. App. at 142-143 (2) (purported acceptance letter included conditional language requiring satisfaction of liens). A reasonable person in the position of Kemper would interpret this “demand” as a mandatory direction, rather than a mere recommendation. Torres, supra, 317 Ga. App. at 142 (2) (language stating “I trust that your office will satisfy any liens arising out of this matter,” imposed a new condition that transformed purported acceptance to counteroffer). Therefore, we construe Statewide’s response as a counteroffer rather than an unconditional and unequivocal acceptance, and we conclude that no binding settlement agreement was formed. See Frickey, supra, 280 Ga. at 575-576; Torres, supra, 317 Ga. App. at 142-143 (2).

Decided January 16, 2014

Motions for reconsideration denied and dismissed February 24, 2014

Summerville Moore, J. Darren Summerville, S. Leighton Moore, Michael L. Werner, for appellant.

Michael L. Wetzel, for appellees.

2. Since we conclude that Statewide’s response was a counteroffer, we need not address Kemper’s other challenges to the purported acceptance. Accordingly, we reverse the trial court’s order granting Brown’s motion to enforce settlement.

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

       Although Kemper was notified that the matter was set for a hearing, neither she nor counsel appeared at the hearing.

       Brown argues that the “demand” to place settlement funds into an escrow account was eliminated when Kemper’s counsel confirmed that she had health insurance and, therefore, there should be no liens filed by any of her medical providers. The fact that Kemper had health insurance did not necessarily, however, preclude a hospital from filing a lien for any unpaid expenses. See MCG Health, Inc. v. Kight, 325 Ga. App. 349 (750 SE2d 813) (2013). Nevertheless, regardless of whether any liens could be filed against Kemper’s causes of action, Statewide’s demand constituted a new condition that varied from Kemper’s offer. See Butler, supra, 266 Ga. App. at 106 (1).


author: Ray, Judge.

text:
    A13A1696.
    HUDSON v. THE STATE.
    (755 SE2d 209)
   Ray, Judge.

After a jury trial, Johnny Hudson was convicted of one count of theft by taking (OCGA § 16-8-2). He appeals from that conviction and from the denial of his motion for new trial, arguing that he received ineffective assistance of counsel and that the trial court failed to conduct the proper balancing test or to make findings on the record regarding convictions to be used for impeachment purposes. Finding no error, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the verdict. Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). So viewed, the evidence adduced at trial shows that on August 16, 2010, Michael Durden, the service manager at a Firestone tire store in Douglasville, noticed Hudson and another man, later identified as Hudson’s brother, loading tires from the store’s bin of used tires into their van. At this initial contact, Durden told the men to stop loading the tires, that the store employed a service to remove the tires, and that the store would get into trouble if anyone else removed the tires. The men then left. Approximately thirty minutes later, Durden noticed the two men back their van up to the store’s tire bins again, but they left when he told them to stop and informed them that they could go to jail if they did not leave the tires alone. Later that evening, when Durden was closing the store, he again noticed the two men driving near the back of the building, but he did not speak to them. Durden testified that no one had permission to take the tires and that the area where the tires were located had a sign posted stating “do not take tires.” Maurice Martin, the Firestone store manager, testified that there is a store policy against reselling or giving away tires to anyone other than a licensed recycler possessing a contract with the store.

Officer Julie Bustamante, an officer with the Douglasville Police Department, testified that she went to the Firestone store after receiving a 911 phone call reporting suspicious behavior at that location. Upon arriving at the store, the officer found Hudson and his brother loading a van with tires from the back of the Firestone store. The men told the officer that they had received permission from an employee of the store to take the tires. Hudson told the officer that he did not know the employee’s name, but knew that he drove a red pickup truck. The store’s manager told the officer that no employee of his store matched that description.

Hudson testified at trial that he had received permission to remove the tires from a Firestone employee named John. The State then called John Brewer, a former Firestone employee, who testified that he had never given Hudson permission to take the tires.

1. In several enumerations of error, Hudson argues that his trial counsel rendered constitutionally ineffective assistance. In order to prevail on a claim of ineffective assistance, Hudson

must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by this Court. Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). Additionally, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Chapman v. State, 273 Ga. 348, 350 (2) (541 SE2d 634) (2001). “The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004). In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

(a) Hudson alleges that his counsel was ineffective for failing to object when the prosecutor used his brother’s criminal history when cross-examining him, rather than his own.

Hudson testified in his own defense during trial. His testimony on direct examination included admissions that he had been convicted on drug charges in the past. During cross-examination, the prosecutor asked Hudson about his convictions of nine additional crimes, which Hudson denied committing. It was ultimately revealed, however, that the prosecutor had been incorrectly relying upon Hudson’s brother’s criminal record during cross-examination. The State then sought to justify its confusion by asking Hudson if he had once previously given his brother’s name as his own during an arrest. Hudson explained that he had mistakenly given his brother’s driver’s license to an officer during an arrest, but that he immediately cleared up the mistake. At the prosecutor’s request, the trial court then issued a curative instruction informing the jury that Hudson had been questioned using the wrong criminal history and that they were to disregard those questions.

Hudson contends that his counsel rendered ineffective assistance by failing to object or to request a mistrial after the State sought to impeach him with the wrong criminal record. At the motion for new trial hearing, Hudson’s trial counsel testified that his decision not to request a mistrial after the State questioned Hudson using the wrong report was strategic because Hudson’s truthful answers “made [Hudson] look more credible as a witness.” He further stated that he made the strategic decision not to move for a mistrial because he believed his client had done a good job denying the erroneous charges on the stand and the trial court’s curative instruction would show the jury that he had, in fact, been telling the truth. “In general, a matter of reasonable trial strategy does not amount to ineffective assistance of counsel. And, the decision not to object is usually a matter of strategy.” (Citations omitted.) Vanstavern v. State, 293 Ga. 123, 125 (3) (a) (744 SE2d 42) (2013). “The standard regarding ineffective assistance of counsel is not errorless counsel and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance.” (Citation and punctuation omitted.) Farris v. State, 293 Ga. App. 674, 678-679 (3) (667 SE2d 676) (2008). The cases cited by Hudson in his brief do not demand a different conclusion because there was no evidence that the alleged errors of trial counsel in those cases were part of a valid trial strategy. See Whitaker v. State, 276 Ga. App. 226, 226-227 (1) (622 SE2d 916) (2005); Sinkfield v. State, 217 Ga. App. 527 (458 SE2d 664) (1995).

Further, even assuming that trial counsel’s failure to object to the State’s line of questioning or to move for a mistrial constituted ineffective assistance, Hudson has not proven that such a failure prejudiced his defense in light of the curative instructions provided by the trial court. See Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997) (finding that curative instructions were an “adequate remedy” when a defendant’s character was improperly placed into evidence by testimony regarding his prior convictions or criminal acts, especially when such testimony was inadvertent).

(b) After the trial court issued its curative instructions, the State then questioned Hudson regarding a time when he had been arrested and provided his brother’s driver’s license, rather than his own, to officers. Hudson admitted that he had, on one occasion, given his brother’s driver’s license information as his own during an arrest, but that he immediately corrected the mistake. Hudson argues that his trial counsel’s failure to object to this line of questioning constituted ineffective assistance. At the motion for new trial hearing, his trial counsel testified that his decision not to object was strategic because he believed that Hudson was doing well testifying on the stand and that his truthful' answers were “having an effect on the jury.”

Further, even assuming that trial counsel’s failure to object constituted ineffective assistance, Hudson has not shown that there is a reasonable probability that the outcome of the proceedings would have been different if his trial counsel had successfully objected to this testimony. Hudson incorrectly contends on appeal that the evidence presented at trial was solely a matter of his credibility against that of the Firestone employee he asserts gave him permission to take the tires. Rather, the evidence presented at trial showed that Hudson and his brother were caught loading tires into the van; that the store had a sign instructing people not to remove tires; that the store’s service manager had twice told the brothers to leave and not to take the tires; and that his brother accepted a guilty plea for the same incident. Although Hudson testified that a Firestone employee named John had told them that they could take the tires, John took the stand in rebuttal and stated that he had never given the brothers permission to take the tires. See Thomas v. State, 291 Ga. App. 795, 804-805 (6) (662 SE2d 849) (2008) (trial counsel did not render ineffective assistance by failing to object to admission of witnesses’ prior convictions when trial counsel’s decision not to object was strategic and was not prejudicial to his client’s defense because other evidence presented in the case supported the jury’s verdict).

(c) Hudson argues that his trial counsel was ineffective for failing to object to the State’s use of convictions that were over ten years old and for failing to request a probative value hearing as to the convictions to be used or the age of the charges under former Georgia Evidence Code, OCGA § 24-9-84.1.

OCGA § 24-9-84.1 (b) “applies to prior felony convictions that are more than ten years old.” (Emphasis supplied.) Clay v. State, 290 Ga. 822, 837 (3) (B) (725 SE2d 260) (2012). This subsection excludes evidence of such convictions “unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” OCGA § 24-9-84.1 (b). Even if we assume that Hudson’s trial counsel rendered ineffective assistance by failing to request that the trial court perform such a balancing test prior to the State erroneously impeaching Hudson with his brother’s convictions, we find that Hudson has not proven that such error prejudiced his defense. Once the State discovered that it had sought to impeach Hudson with the wrong criminal record, the trial court issued its curative instruction telling the jury to disregard any questions and responses regarding such convictions. The State did not subsequently question Hudson regarding any convictions older than a decade.

(d) Hudson claims his trial counsel rendered ineffective assistance by failing to object to the State impeaching Hudson without certified copies of the convictions. “It is well-settled that evidence of a witness’ prior convictions must be tendered and admitted in the form of certified copies of the convictions and not by testimony alone.” (Citations omitted.) Rucker v. State, 205 Ga. App. 651 (423 SE2d 51) (1992). However, “[t]he failure to introduce a certified copy of an impeaching prior conviction is subject to a best evidence’ objection... and such objection may be waived.” (Citation omitted.) Thomas v. State, 268 Ga. 135, 140 (13) (485 SE2d 783) (1997). Thus, “in the absence of a best evidence’ objection, a witness’ answer to the effect that he or she has been convicted of a crime is admissible to prove the crime.” (Citations omitted.) McIntyre v. State, 266 Ga. 7, 10 (4) (463 SE2d 476) (1995). Even if we assume that Hudson’s trial counsel was ineffective for failing to object to the State’s attempts to impeach him without a certified copy of the conviction, he has not proven that such failure was prejudicial to his defense. The convictions the State sought to impeach Hudson with were either already addressed by him during his direct examination or were his brother’s convictions, and the trial court properly instructed the jury to disregard questions about them.

(e) Hudson next contends that his trial counsel rendered ineffective assistance by failing to object to the out-of-court hearsay statement of a recycler as testified to by Maurice Martin. We disagree.

Martin, the manager of the Firestone store, testified that prior to the date of the theft, a man hired by the store to recycle used tires had reported that the store was “missing a lot of [used] tires.” At the motion for new trial hearing, trial counsel testified that his decision not to object to this hearsay statement was strategic because he did not want to “add[ ] fuel to the fire,” indicating that he did not want to draw the jury’s attention to the fact that the store had experienced problems with tire theft in the past that ended with the arrest of Hudson and his brother. As noted earlier, a decision not to object is usually a matter of trial strategy that will not amount to a valid claim of ineffective assistance of counsel. Vanstavern, supra. Accordingly, we find that trial counsel’s decision not to object to this statement did not amount to an instance of deficient performance.

Decided February 24, 2014.

September Guy, for appellant.

Matthew C. Krull, Solicitor-General, David Holmes, R. Wesley Starrett, Assistant Solicitors-General, for appellee.

2. Hudson next argues that the trial court erred by failing to conduct a balancing test under OCGA § 24-9-84.1 and by failing to make findings on the record with regard to the test. However, this claim is waived as it was not raised either in the motion for new trial as amended or at the hearing thereon by appellate counsel who had been appointed following Hudson’s conviction. See Collier v. State, 288 Ga. 756, 758 (3) (707 SE2d 102) (2011).

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Hudson’s brother pled guilty to theft by taking for the same incident and testified at Hudson’s trial on behalf of the State.

       When questioned about a 1999 conviction for theft by shoplifting, Hudson testified that he had not been convicted of shoplifting, but that he had once been questioned by store personnel for walking out of the store while wearing a pair of sunglasses he had been trying on. However, he testified that the store personnel, upon realizing he made an honest mistake, allowed him to leave without further investigation.

       OCGA § 24-9-84.1 was repealed by Ga. L. 2011, p. 99, § 2, effective January 1, 2013.


text:
    A13A2023.
    THE STATE v. HAMMONDS.
    (755 SE2d 214)
   Ray, Judge.

The State appeals the trial court’s grant of Kristen Ann Hammonds’s motion to dismiss and quash the indictment which charged Hammonds with six counts of sexual assault against a person in custody in violation of OCGA § 16-6-5.1 (b) (1). For the reasons that follow, we affirm.

“We begin by noting that the interpretation of a statute is a question of law, which is reviewed de novo on appeal. Because the trial court’s ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review.” (Citation and punctuation omitted.) Frix v. State, 298 Ga. App. 538, 539 (680 SE2d 582) (2009).

OCGA § 16-6-5.1 (b) (1) provides in relevant part:

A person who has supervisory or disciplinary authority over another individual commits sexual assault when that person . . . [i]s a teacher, principal, assistant principal, or other administrator of any school and engages in sexual contact with such other individual who the actor knew or should have known is enrolled at the same school....

Hammonds’s indictment alleged that she engaged in sexual contact with three males who she knew were students at the high school where she was employed as an “administrator” with supervisory or disciplinary authority over the students. The record shows that Hammonds was a secretary at the school’s ninth grade academy, as well as an assistant coach for the junior varsity cheerleading team. The three male students involved were between the ages of 17 and 19 years old. One was a junior and the other two were seniors, and they were not members of the cheerleading team. The sole issue in this case is whether Hammonds, as a secretary and an assistant cheer-leading coach, is among the classification of individuals with supervisory or disciplinary authority subject to prosecution under OCGA § 16-6-5.1 (b) (1).

At the hearing on the motion to dismiss and quash the indictment, the school’s principal testified that Hammonds’s job duties as a secretary were limited to answering the telephone and performing general office and clerical work. She had no disciplinary authority over any of the students, and if she observed any misconduct on the part of a student, she could only report it to one of the administrators. Although she had the authority to write up disciplinary referrals, the principal testified that “everybody on campus [had] the [authority] to do that.” The principal further testified that Hammonds had no supervisory authority over any students beyond the basic supervision that “[any] adult in the building” would have.

The trial court granted the motion to dismiss the indictment, finding that Hammonds did not fall within the ambit of OCGA § 16-6-5.1 (b) (1). Specifically, the trial court found that Hammonds was not a teacher, a principal, an assistant principal, or an administrator at the school, and that she lacked the requisite disciplinary and supervisory authority over the students.- The trial court further found that Hammonds, in her capacity as an assistant cheerleading coach, was not in a position of authority over the three students with whom she was sexually involved.

In the construction of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.

(Citation omitted.) Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013). Furthermore, “[i]t is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning.” (Citation and punctuation omitted.) Belvin v. State, 221 Ga. App. 114, 115 (470 SE2d 497) (1996).

According to the Merriam-Webster online dictionary, an “administrator” is defined as “a person whose job is to manage a company, school, or other organization” or “one who administers especially business, school, or governmental affairs.” The same resource defines a “secretary” as “a person whose job is to handle records, letters, etc., for another person in an office” or “one employed to handle correspondence and manage routine and detail work for a superior.”

Here, the record shows that Hammonds’s job as a secretary at the school was strictly clerical in nature and, as such, did not fall within the ordinary, logical, and common definition of an “administrator.” If we were to hold that a secretary is equivalent to an administrator, we would be judicially expanding the term “administrator” beyond its ordinary, logical, and common meaning for the purposes of OCGA § 16-6-5.1 (b) (1). This we cannot do. “[CJourts must generally refrain from expanding the scope of penal statutes by implication[.]” (Citation and punctuation omitted.) Belvin, supra. Compare Hart v. State, 319 Ga. App. 749, 750-751 (738 SE2d 331) (2013) (interpretation of the term “teacher” in OCGA § 16-6-5.1 (b) (1) to include a “paraprofessional” who taught in a high school classroom did not constitute an impermissible judicial expansion of term “teacher” beyond its ordinary, logical, and common meaning). Under the facts and circumstances of this case, we find that Hammonds, in her secretarial position, was not an “administrator” for the purposes of prosecution under OCGA § 16-6-5.1 (b) (1).

The State also argues that Hammonds could be considered a “teacher” for the purposes of OCGA § 16-6-5.1 (b) (1) because she was an assistant cheerleading coach who helped “teach” cheerleading. We find this argument to be unpersuasive. Even if Hammonds could be considered a teacher by virtue of her position as an assistant cheer-leading coach, the record still shows that she lacked the requisite ■supervisory and disciplinary authority over the students at the school in general, and any supervisory or disciplinary responsibilities she arguably may have had as an assistant cheerleading coach would have been confined to the members of the junior varsity cheerleading team. In Whitehead v. State, 295 Ga. App. 562, 563-566 (1) (672 SE2d 517) (2009), we determined that the defendant, a teacher who was also a faculty advisor of the high school’s academic “Quiz Bowl” team, was in a position of direct supervisory control over the victim, a high school student who was a member of the team. This direct supervisory control satisfied the required element to support the defendant’s conviction for sexual assault against the victim, even though the defendant did not teach any classes that the victim was enrolled in at the time of the sexual encounters.

Here, the three male students were not members of the junior varsity cheerleading team. Hammonds had no direct supervisory or disciplinary control over them in her capacity as an assistant cheer-leading coach.

Lastly, we note that OCGA § 16-6-5.1 (b) provides for the offense of sexual assault in five separate contexts: a teacher, principal, assistant principal, or other administrator at a school and a student (OCGA § 16-6-5.1 (b) (1)); an employee or agent of a probation or parole office and a probationer or parolee (OCGA § 16-6-5.1 (b) (2)); an employee or agent of a law enforcement agency and a detainee or person in custody (OCGA § 16-6-5.1 (b) (3)); an employee or agent of a hospital and a patient (OCGA § 16-6-5.1 (b) (4)); and an employee or agent of a correctional facility, juvenile detention facility, facility providing services to a person with a disability, or a facility providing child welfare and youth services and any person in the custody of such facility (OCGA § 16-6-5.1 (b) (5)).

“It is a fundamental rule that courts avoid a construction of a statute that makes some language mere surplusage. Further, criminal statutes must be strictly construed against the State.” (Citations and punctuation omitted.) Hedden v. State, 288 Ga. 871, 875 (708 SE2d 287) (2011). In OCGA § 16-6-5.1 (b) (1), the Georgia legislature chose to specify the classification of individuals who may be prosecuted for sexual assault in the school context. In these other contexts, the legislature provided that any “employee or agent” with supervisory or disciplinary authority maybe prosecuted. See OCGA § 16-6-5.1 (b) (2) through (5). When the five components of subsection (b) of the statute are read in pari materia with each other and strictly construed, it is clear that the classification of individuals who may be prosecuted under OCGA § 16-6-5.1 (b) (1) is limited to teachers, principals, assistant principals, or other administrators of the school. Thus, a mere “employee or agent” of the school, such as Hammonds, is not subject to prosecution under OCGA § 16-6-5.1 (b) (1).

Decided February 24, 2014.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Anne C. Allen, Assistant District Attorneys, for appellant.

Jerry Mac Pilgrim, for appellee.

For the above reasons, the trial court did not err in dismissing the indictment.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       If Hammonds was considered an administrator simply because she could initiate a disciplinary referral, then logically an argument can be made that the same would apply to janitors or food service workers.

       At the hearing, Hammonds and the State stipulated that one of the students involved would testify that he perceived Hammonds to be an authority figure at the school.

        Merriam-Webster.com. Merriam-Webster, n. d. Web. 31 January 2014.

       See http://www.merriam-webster.com/dictionary/administrator.

       See http://www.merriam-webster.com/dictionary/secretary.

       Certainly, policy arguments can be made that all adults in a school setting should be subject to penalty for sexual contact with any students who attend that school. However, whether such policy should have the force of law is the job of the legislature to so determine.


author: MCMILLIAN, Judge.

text:
    A13A2093.
    NELSON v. THE STATE.
    (755 SE2d 217)
   MCMILLIAN, Judge.

Ricky Nelson appeals following his conviction for theft by receiving stolen property, arguing in his sole enumeration of error that the trial court erred by charging the jury on theft by receiving as a lesser included offense of theft by taking. As more fully set forth below, we now affirm.

The pertinent facts show that on May 21, 2008, Jeanna Manders’s van was stolen within minutes of her arrival at 101 Speering Street in Wrens, Georgia, where she was visiting. She reported the theft to police, and police issued a BOLO (be on the lookout) for the van. Police spotted Nelson driving the van the next day, stopped the van, and arrested Nelson.

Nelson was ultimately charged with several offenses, including theft by taking, and his case proceeded to trial before a jury. During the charge conference, the trial court asked Nelson’s counsel if he wanted to request a charge on any lesser included offenses. Defense counsel responded “I’m trying to think of what lesser...” and the trial court suggested the “one that comes to mind is theft by receiving stolen property.” Defense counsel then stated “I didn’t request that because the theft by receiving stolen property and theft by — to me they’re about synonymous, but I will at this time request theft by receiving stolen property,” and the State consented to the request. Defense counsel noted that he was “sort of stuck,” seeming to indicate that he did not have a specific charge to propose and suggested the trial court could “on its own look for that lesser” based on the evidence presented at trial. The trial judge declined, indicating that he did not usually give a charge on a lesser included offense unless it was requested, at which time the court and defense counsel then crafted the charge based on defense counsel’s already filed written requests and the charges the judge had in his “system.” The trial court instructed the jury in accordance with the agreed upon charge, and neither the State nor defense counsel posed any objection to the charge as given.

Nelson now argues that theft by receiving is not a lesser included offense of theft by taking, and that, therefore, the trial court committed plain and obvious error by giving the requested charge because he was not separately charged with that offense, and it was not otherwise included within the allegations of the charging accusation. Marriott v. State, 320 Ga. App. 58, 62 (1) (739 SE2d 68) (2013) (theft by receiving and theft by taking may be charged in the alternative); Adams v. State, 164 Ga. App. 295, 296-297 (2) (297 SE2d 77) (1982) (separate counts setting forth theft by receiving and robbery are permitted).

Nelson recognizes that his failure to object at trial requires us to review the trial court’s instructions to the jury only for plain error. Shaw v. State, 292 Ga. 871 (742 SE2d 707) (2013). But, even when plain error appears, which we do not decide here, reversal is not required if the defendant invited the alleged error. Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012). As the Supreme Court explained in Cheddersingh v. State, 290 Ga. 680, 682-684 (724 SE2d 366) (2012), affirmative waiver, which involves the intentional relinquishment or abandonment of a known right, as opposed to mere forfeiture by failing to object, prevents a finding of plain error. Here, Nelson requested that the trial court instruct the jury on theft by receiving as a lesser included offense of theft by taking and participated with the court in crafting the charge that was given. “A party cannot invite error by requesting a certain jury instruction, and then complain on appeal that the instruction, when given, is incorrect.” (Citation and punctuation omitted.) Bellamy v. State, 312 Ga. App. 899, 901 (1) (720 SE2d 323) (2011). Accordingly, the trial court did not err by denying Nelson’s motion for new trial on this basis.

Decided February 25, 2014.

Tobe C. Karrh, for appellant.

S. Hayward Altman, District Attorney, Kelly A. Jenkins, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       Nelson was also charged with driving with a suspended license and driving under the influence. The jury found him not guilty of driving under the influence, and the trial court granted his motion for new trial and vacated his sentence on the driving with a suspended license charge based on a finding, to which the State conceded, that the evidence as to that charge was insufficient.

       We have decided numerous cases that stand for the proposition that theft by receiving is not a lesser included offense of theft by taking, and, as some of these cases explain, these offenses are mutually exclusive. E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) (739 SE2d 68) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 (673 SE2d 82) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) (604 SE2d 520) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) (404 SE2d 154) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) (297 SE2d 77) (1982); Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980).

       Nelson was charged as the principal thief.

       We note that in Shaw, our Supreme Court questioned the viability of its prior holding that the defendant in Mitchell v. State, 283 Ga. 341, 343-344 (2) (659 SE2d 356) (2008) had invited error because Mitchell was decided prior to the enactment and adoption of the plain error rule. But the court in Shaw did not overrule Mitchell or like cases. Moreover, both Shaw and Mitchell are distinguishable, because in those cases defendants argued that the charge given at their request was incomplete, not that the trial court should not have given their requested charge. Shaw, 292 Ga. at 873 (2), n. 3.


author: Barnes, Presiding Judge.

text:
    A13A1749.
    FIRST CHATHAM BANK v. LIBERTY CAPITAL, LLC et al.
    (755 SE2d 219)
   Barnes, Presiding Judge.

In this case involving a dispute over a loan purchase agreement related to the development of certain residential lots, the trial court denied summary judgment to First Chatham Bank (the “Bank”) on its claim for specific performance against Liberty Capital, LLC. A central issue in the case is whether the loan purchase agreement contained a typographical error in the list of residential lot numbers covered by the agreement, entitling the Bank to equitable reformation of the agreement on the ground of mutual mistake of the parties. In moving for summary judgment, the Bank argued that the uncontroverted evidence showed that the agreement contained a typographical error resulting from a mutual mistake of the parties, but the trial court disagreed, concluding that a genuine issue of material fact existed over the contractual terms. We agree with the trial court and therefore affirm the denial of summary judgment to the Bank.

Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from a trial court’s denial of summary judgment, we “conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.” Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012). “Moreover, we will affirm a trial court’s denial of a motion for summary judgment if it is right for any reason.” Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325) (2010). Guided by these principles, we turn to the record here.

The dispute in this case arises out of the financing and development of several residential lots located on Hampton Island in Liberty County, Georgia. The development of Hampton Island was facilitated by a number of interconnected corporate entities, including Hampton Island, LLC and Liberty Capital, LLC. Ronald Leventhal was the president of the company which ultimately managed Liberty Capital. In 2007, Leventhal and others sought construction companies in Savannah to build homes on Hampton Island, including Best Custom Homes, LLC (“Best Custom”). Best Custom agreed to purchase several lots from Hampton Island, LLC and sought financing from the Bank for the acquisition of the lots and for the construction of homes on them (the “Acquisition Loan”).

To encourage the Bank to provide the Acquisition Loan, Leventhal wrote a letter to the Bank on January 11, 2008 on behalf of Liberty Capital (the “Letter Agreement”). The subject line of the Letter Agreement stated: “Re: Sale of Lots T004, T005, T007 and TL10 (the ‘Lots’) by Hampton Island, LLC (‘Seller’) to Best Custom Homes, LLC (‘Purchaser’), such acquisition to be financed by a loan (the ‘Acquisition Loan’) from First Chatham Bank (‘Lender’).” The Letter Agreement further provided in part:

This letter represents Liberty Capital’s commitment that if the speculative residences to be constructed on the Lots by Purchaser from the proceeds of the Acquisition Loan are for any reason not sold by the second anniversary of the Acquisition Loan closing date, Purchaser, within sixty (60) days following receipt of written demand by Lender provided within 90 days following such second anniversary, will purchase the Acquisition Loan from Lender. In connection with the consummation of the Acquisition Loan purchase by Liberty Capital, Liberty Capital shall pay to Lender a purchase price equal to the sum of the outstanding principal balance of the Acquisition Loan, plus all accrued, unpaid interest under the Acquisition Loan to the date of purchase at the contract rate and Lender will assign the Acquisition Loan without recourse pursuant to such loan assignment documentation as is customary for similar loan sales and reasonably requested by Liberty Capital and its counsel....
Liberty Capital, an affiliate of Seller, acknowledges that the provision of this letter agreement for the benefit of Lender constitutes a material inducement to Lender’s willingness to make the Acquisition Loan to facilitate the acquisition of the Lots by Purchaser from Seller.

On the same day that Liberty Capital wrote the proposed Letter Agreement, the Bank provided a letter to Best Custom committing to provide an Acquisition Loan “[p] ending the receipt and review of the buy-back letter from Liberty Capital, LLC” (the “Commitment Letter”). However, in contrast to the Letter Agreement, the Commitment Letter identified the four lots as “Lots V4, Y7, VIO and V14.”

Afew days later, on January 14, 2008, the parties completed the sale of the four Hampton Island lots and closed on the Acquisition Loan. Several documents were signed as part of the purchase and loan transaction, but none of them contained the same four lot numbers as either the Letter Agreement or the Commitment Letter. Specifically, Best Custom signed a document entitled “Statement of Purpose” in which it stated that the Bank had extended a loan to it for the development of four lots on Hampton Island and agreed to pay back the loan in full within 24 months. The Statement of Purpose identified the four Hampton Island lots as “TL-4, TL-5, TL-9 and TL-10.” In addition to signing the Statement of Purpose, Best Custom signed a commercial promissory note in favor of the Bank that similarly identified “TL04, TL05, TL09 & TL10” as security for the note, and the principals of Best Custom signed commercial loan guarantees pertaining to the debt. The “Commercial Construction Real Estate Deed to Secure Debt” signed by Best Custom in favor of the Bank also identified the lots as “TL04, TL05, TL09 & TL10.” Lastly, the HUD Settlement Statement completed at the closing identified the four lots as “4, 5, 9 & 10 Hampton Island.”

On January 14, 2010, the second anniversary of the closing date of the Acquisition Loan, the Bank wrote to Liberty Capital demanding the purchase of the loan as outlined in the January 11,2008 Letter Agreement. Leventhal replied to the letter on behalf of Liberty Capital, refusing the Bank’s request. On March 25, 2010, the Bank renewed its demand that Liberty Capital honor the Letter Agreement, and Liberty Capital again refused.

In January 2011, the Bank filed the instant action against multiple defendants, including Best Custom, its principals, and Liberty Capital, for breach of contract, negligent misrepresentation, and other claims relating to the Acquisition Loan. The Bank alleged that Best Custom had breached the promissory note and its principals had breached their guarantees by failing to repay the Acquisition Loan. The Bank further alleged that Liberty Capital had breached the Letter Agreement by failing to purchase the Acquisition Loan upon proper demand and sought specific performance as a remedy.

Following discovery, the Bank moved for summary judgment against Liberty Capital, arguing that it was entitled to specific performance of the Letter Agreement as a matter of law. Liberty Capital responded that summary judgment in favor of the Bank was inappropriate for several reasons, including that Liberty Capital had only agreed in the Letter Agreement to purchase an Acquisition Loan extended by the Bank to Best Custom for the sale of “Lots T004, T005, T007 and TL10,” but the Bank had ultimately extended a loan to Best Custom that did not cover the same four lots. Given the discrepancy in the lot numbers, Liberty Capital contended that it was not obligated to purchase the Acquisition Loan from the Bank.

Replying to Liberty Capital’s argument regarding the discrepancy in the lot numbers, the Bank asserted that the uncontroverted evidence, including Leventhal’s deposition, showed that all the parties involved in the transaction knew that Lots 4, 5, 9, and 10 were the Hampton Island lots to be purchased by Best Custom. As a result, the Bank argued that it was clear that the reference to “Lots T004, T005, T007 and TL10” in the Letter Agreement was a “typographical error” resulting from a mutual mistake by the parties over the respective lot numbers that occurred during their negotiations over the loan transaction. The Bank asserted that because of the mutual mistake, the trial court ought to equitably reform the subject line of the Letter Agreement to reflect that the lots at issue were Lots 4, 5, 9, and 10, and the Bank also amended its complaint to include a claim for equitable reformation.

After reviewing the submissions of the parties and hearing oral argument, the trial court denied the Bank’s motion for summary judgment against Liberty Capital. The trial court concluded that while the record “show[ed] assent of the parties to something, it [was] notclear.. .what the parties [had] agreed to.” The trial court rejected the Bank’s argument that Leventhal’s deposition clarified the reason for the discrepancy in the lot numbers and instead found that there remained genuine issues of material fact as to the essential terms of the agreement reached between the Bank and Liberty Capital.

Although the trial court denied the Bank’s motion for summary judgment, the court granted a certificate of immediate review. We granted the Bank’s application for interlocutory appeal, and this appeal followed.

1. As an initial matter, Liberty Capital argues that this Court lacks jurisdiction over the present appeal “[b]ecause the propriety of equitable relief (reformation and specific performance) is at issue, and such relief does not automatically follow despite resolution of underlying factual and legal issues.” We disagree.

It is true that the Supreme Court of Georgia has appellate jurisdiction over “[a]ll equity cases.” Ga. Const. 1983, Art. VI, Sec. VI, Par. III. But

[w]hether an action is an equity case for the purpose of determining jurisdiction on appeal depends upon the issue raised on appeal, not upon how the case is styled nor upon the kinds of relief which may be sought by the complaint. That is, “equity cases” are those in which a substantive issue on appeal involves the legality or propriety of equitable relief sought in the superior court — whether that relief was granted or denied. Cases in which the grant or denial of such relief was merely ancillary to underlying issues of law, or would have been a matter of routine once the underlying issues of law were resolved, are not “equity cases.”

(Citations omitted.) Durham v. Durham, 291 Ga. 231, 232 (2) (728 SE2d 627) (2012). See Beauchamp v. Knight, 261 Ga. 608, 609 (2) (409 SE2d 208) (1991).

Here, the propriety of equitable relief is ancillary to the underlying substantive issues of contract law that are the focus of this appeal, including whether the parties made a mutual mistake in their agreement over the purchase of the Acquisition Loan. Accordingly, this Court, rather than the Supreme Court, has jurisdiction over the appeal. See Lee v. Green Land Co., 272 Ga. 107, 108 (527 SE2d 204) (2000) (appeal that turns on “construction of an underlying document” does not fall within the Supreme Court’s jurisdiction over “equity cases”); Hall v. Hall, 303 Ga. App. 434, n. 1 (693 SE2d 624) (2010) (noting that Supreme Court transferred jurisdiction to this Court because “the issue of reformation ... and the resulting denial of equitable relief was merely ancillary to the resolution of the underlying issue of whether there had been a mutual mistake”).

2. As previously indicated, in denying summary judgment to the Bank, the trial court concluded that there was a genuine issue of material fact as to the lot numbers and the terms covered by the agreement reached between the Bank and Liberty Capital regarding Liberty Capital’s purchase of the Acquisition Loan. The Bank contends that the trial court erred in concluding that there was a genuine issue of material fact regarding the lot numbers because the uncontroverted evidence showed that the lot numbers listed in the Letter Agreement contained a typographical error resulting from the mutual mistake of the parties during their negotiations over the loan transaction. Given this evidence, the Bank contends that the trial court erred in failing to equitably reform the Letter Agreement to reflect that the lots covered by the agreement were Lots 4, 5, 9, and 10 rather than Lots 4, 5, 7, and 10, and in failing to grant the Bank summary judgment on its claim for specific performance. We are unpersuaded.

A petition for reformation of a written contract will lie where by mistake of the scrivener and by oversight of the parties, the writing does not embody or fully express the real contract of the parties. The cause of the defect is immaterial so long as the mistake is common to both parties to the transaction.

(Citations and punctuation omitted.) American Manufacturers Mut. Ins. Co. v. E A Technical Svcs., 270 Ga. App. 883, 885 (1) (608 SE2d 275) (2004). See Tidwell v. Bassett, 271 Ga. App. 867, 869 (611 SE2d 123) (2005). Parol evidence may be introduced to prove the mistake, see Amin v. Guruom, Inc., 280 Ga. 873, 874 (635 SE2d 105) (2006), and contemporaneously executed documents as well as the subsequent conduct of the parties to the agreement can be considered as evidence of their true intent. See Tidwell, 271 Ga. App. at 869. However, “[t]he power to relieve mistakes [must] be exercised with caution,” and the evidence of the mistake must be “clear, unequivocal, and decisive.” OCGA § 23-2-21 (c). See CS-Lakeview at Gwinnett v. Simon Property Group, 283 Ga. 426, 429 (659 SE2d 359) (2008); American Manufacturers Mut. Ins. Co., 270 Ga. App. at 886 (1). Thus, the burden on the party attempting to prove mutual mistake is a “heavy” one. Hall, 303 Ga. App. at 437 (1).

In the present case, there was evidence — in the form of contemporaneously executed documents and the subsequent conduct of the parties involved in the loan transaction — from which a trier of fact could infer that the reference to Lot 7 in the Letter Agreement was a typographical error resulting from a mutual mistake of the parties. But given the fact that the evidence of mutual mistake must be “clear, unequivocal, and decisive,” and in light of the summary judgment standard requiring that the evidence and all inferences drawn from it must be construed in the light most favorable to the nonmovant, we conclude that the evidence of mutual mistake was not so strong as to entitle the Bank to judgment as a matter of law on the issue.

The Bank did not introduce any affidavits supporting its position that the reference to Lot 7 in the Letter Agreement was a typographical error. Nor did the Bank question Leventhal, who testified in his deposition that he drafted the Letter Agreement with input from the Bank, about why there was a discrepancy in the lot numbers or about whether there had been any drafting errors. As such, there are no affidavits or deposition testimony in the record in which anyone addresses the reference to Lot 7 in the Letter Agreement, explains how it came to be inserted therein, or shows why the Acquisition Loan ultimately entered between the Bank and Best Custom covered Lot 9 rather than Lot 7.

During his deposition, Leventhal testified generally that the Letter Agreement was part of “numerous documents and agreements that flowed back and forth amongst all of [the] parties that were contemporaneous in this January 2008 transaction that comprised to and led up to the acquisition loan closing and the sale of the property.” He also testified that the Letter Agreement was a material inducement to the Bank deciding to make a loan to Best Custom. At the same time, however, Leventhal testified without further explanation that there was a contract for Best Custom to acquire “Lots 4, 5, 7 and 10” that occurred in “late ’07 or the first week in ’08” after which he wrote the Letter Agreement to the Bank. Leventhal was not questioned any further about the lot numbers in the Letter Agreement and was never asked any questions regarding the discrepancy between those lot numbers and the ones listed in the other loan documents. Thus, taken as a whole, Leventhal’s deposition testimony was more confusing than clarifying with regard to whether the reference in the Letter Agreement to Lot 7 was a typographical error. Indeed, a trier of fact could conclude from Leventhal’s testimony that he intended to refer to Lot 7 in the Letter Agreement but that the Bank decided to extend a loan to Best Custom for the development of a different lot.

Decided February 26, 2014.

Bouhan Falligant, Todd M. Baiad, Andrew H. Dekle, for appellant.

Merritt & Fletcher, James R. Fletcher II, Ratcliffe & Smith, James W. Smith, Weiner, Shearouse, Weitz, Greenberg & Shawe, William G. Glass, for appellees.

“On summary judgment all inferences, all ambiguities, and all doubts, are resolved against the movant and in favor of the party opposing the motion,” and summary judgment is appropriate only if it “appears without dispute that the case can have but a single outcome.” Kirk v. Ashley, 199 Ga. App. 805, 807-808 (3) (406 SE2d 82) (1991). In light of the record as it currently exists (which is incomplete at best) and the “heavy” burden placed on the Bank to prove mutual mistake, the trial court did not err in finding that a genuine issue of material fact exists concerning whether the reference to Lot 7 in the Letter Agreement was a typographical error. Accordingly, because a genuine issue of material fact exists regarding the essential terms of the agreement reached between the Bank and Liberty Capital, we conclude that the trial court committed no error in denying summary judgment to the Bank on its claim for specific performance. See generally Hall, 303 Ga. App. at 437 (1) (concluding that grant of summary judgment was inappropriate “[bjecause material questions of fact remain regarding whether the terms of the quitclaim deed are, by mutual mistake, contrary to the agreement of the parties”); Tidwell, 271 Ga. App. at 869 (concluding that trial court committed no error in denying motion for directed verdict or judgment notwithstanding the verdict “[b]ecause the evidence presented a disputed question of material fact with respect to the intent of the parties” and thus over whether a mutual mistake had occurred).

3. In light of our decision in Division 2, we need not address the Bank’s remaining enumerations of error.

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs in judgment only.

       Liberty Capital admitted in its answer that it had “entered into an agreement whereby [it] represented to [the Bank] that it would perform certain obligations in connection with real property in Liberty County, Georgia,” but disputed its legal obligations under the agreement and whether it had breached the contractual terms as actually agreed to by the parties. An admission by a party in its answer is treated as an admission in judicio that cannot be denied unless withdrawn. See Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 500-501 (1) (748 SE2d 407) (2013). See also Budget Rent-A-Car of Atlanta v. Webb, 220 Ga. App. 278, 280 (1) (469 SE2d 712) (1996) (unwithdrawn admission in defendant’s answer that parties had entered into rental agreement was binding admission that defendant could not deny). Based on the unwithdrawn admissions in its answer, Liberty Capital could not deny that it had entered into a contract with the Bank, but it was entitled to dispute the specific contractual terms that had been reached by the parties and thus its legal obligations under the contract.